Veteran’s Entitlements Act, 1986 (Cth) – Section 24(2)(b) – Whether the veteran was genuinely seeking to engage in remunerative work – Whether veteran must show that he complies throughout the assessment period – Whether material before AAT capable of satisfying AAT that veteran met requirements
Veterans’ Entitlements Act 1986 (Cth) s 9, 19(1), 19(3), 19(5A), 19(5B), 19(5C), 19(5D), 19(9), 22, 24(1)(b), 24(1)(c), 24(2)(a), 24(2)(b) and 135 Administrative Appeals Tribunal Act 1975 s 44
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
JOHN AUBREY LEANE APPELLANT
AND:
REPATRIATION COMMISSION RESPONDENT
JUDGES:
EMMETT, CONTI & SELWAY JJ
DATE OF ORDER:
31 MARCH 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
A25 OF 2003
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
JOHN AUBREY LEANE APPELLANT
AND:
REPATRIATION COMMISSION RESPONDENT
JUDGES:
EMMETT, CONTI & SELWAY JJ
DATE:
31 MARCH 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant, John Aubrey Leane (‘the Veteran’), claims to be entitled to a special rate of pension under the Veterans’ Entitlements Act 1986 (Cth) (‘the Entitlements Act’). On 30 July 1997 the respondent, the Repatriation Commission (‘the Commission’), refused to grant a pension at the special rate. On 1 March 2001, the Veterans’ Review Board (‘the Board’) decided that the Veteran be granted a pension at 100 per cent of the general rate to operate from and including 18 August 1996. However, the Board affirmed the decision not to grant a pension at the special rate. The Veteran applied on 27 March 2001 to the Administrative Appeals Tribunal (‘the Tribunal’) for a review of the decision of the Board. On 7 February 2003 the Tribunal affirmed the decision of the Board of 1 March 2001.
On 6 March 2003, the Veteran filed a notice of appeal in the Federal Court of Australia, pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’). On 27 August 2003, a judge of the Court ordered that the appeal be dismissed with costs. On 17 September 2003 the Veteran filed a notice of appeal to the Full Court from the orders of the primary judge.
THE VETERAN’S DISABILITIES
The Veteran served in the Australian Army from 31 May 1954 until transferring to the Royal Australian Air Force in 1980. He was discharged from the Royal Australian Air Force on 20 July 1988.…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Leane v Repatriation Commission [2004] FCAFC 83
Case
[2004] FCAFC 83
Decision Date
CaseChat Overview and Summary
The case of Leane v Repatriation Commission involved a veteran who sought to be awarded a pension at the special rate under section 24 of the Entitlements Act. The veteran suffered from a range of war-caused conditions, including post-traumatic stress disorder, bilateral sensorineural hearing loss with tinnitus, osteoarthrosis of the right wrist, and osteoarthrosis of the right thumb. The sole issue before the Tribunal was whether the veteran was entitled to a pension at the special rate, specifically considering whether he was incapable of undertaking remunerative work for more than eight hours a week due to his war-caused disabilities.
The Tribunal determined that the veteran was indeed incapable of undertaking any remunerative work for periods aggregating more than eight hours per week, thereby satisfying the criteria for total and permanent incapacity under section 24(1)(b) of the Entitlements Act. However, the Tribunal also needed to assess whether there were other reasons, unrelated to the war-caused injuries, that contributed to the veteran’s incapacity to work. The Tribunal considered the relevant work the veteran had undertaken, which was general administrative/clerical and inspection activities. It concluded that the veteran's war-caused PTSD was the primary factor preventing him from continuing such activities, satisfying the conditions of section 24(1)(c) of the Act.
The Tribunal dismissed the appeal and ordered that the appellant pay the respondent’s costs. This decision hinged on the veteran’s total and permanent incapacity due to his war-caused conditions, particularly his PTSD, which rendered him unable to perform remunerative work beyond a limited capacity. The Tribunal’s reasoning focused on the statutory requirements and the specific nature of the veteran’s disabilities.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
The Commission accepts that the Veteran meets all the requirements for a pension at the special rate save for the requirement in s 24(1)(c). In particular, the Commission accepts that the Veteran is totally and permanently incapacitated for the purpose of s 24(1)(b) of the Entitlements Act. THE TRIBUNAL’S DECISION The sole issue before the Tribunal was the correct level of assessment for the Veteran’s accepted conditions and, in particular, whether he is entitled to a pension at the special rate payable under s 24. The Tribunal proceeded on the basis that the Veteran’s degree of incapacity from war caused injury had been determined to be 100 per cent by the Board. The Veteran suffers from the following accepted war caused conditions: post traumatic stress disorder; bilateral sensorineural hearing loss with tinnitus; osteoarthrosis of the right wrist; and osteoarthrosis of the right thumb.Although the Veteran also suffers from osteoarthrosis of both hips, that condition was not accepted as war caused. The Tribunal posed the question of whether the Veteran is incapable of undertaking remunerative work for more than eight hours a week, and if so, whether that incapacity was attributable solely to the Veteran’s war caused disabilities. That is the question raised by s 24(1)(b). The Tribunal found that the Veteran is incapable of undertaking any remunerative work for periods aggregating more than eight hours per week, and that, accordingly, he is totally and permanently incapacitated within the meaning of s 24(1)(b). The Tribunal then considered the application of s 24(1)(c) of the Entitlements Act. The Tribunal observed that s 24(1)(c) focuses on whether there are reasons other than war related injuries that caused a claimant to cease working or prevent him from working. It considered the following four questions (see Flentjar v Repatriation Commission (1997) 26 AAR 93 at 96):‘1.What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of section 24(1)(c) of the Act?2.Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?3.If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?4.If the answers to questions 2 and 3 are, in each case, yes, is the veteran, by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?’ In answer to question 1, the Tribunal found the type of work the Veteran previously undertook was general administrative/clerical and inspection activities. In answer to question 2, the Tribunal found that the Veteran is, by reason of his war caused PTSD, prevented from continuing to undertake such activities. Accordingly, it was necessary to consider question 3.