Leane v Repatriation Commission

Case [2003] FCA 889

FEDERAL COURT OF AUSTRALIA

Leane v Repatriation Commission [2003] FCA 889

JOHN AUBREY LEANE v REPATRIATION COMMISSION
V119 OF 2003

FINN J
27 AUGUST 2003
CANBERRA


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

V119 OF 2003

BETWEEN:

JOHN AUBREY LEANE
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

FINN J

DATE OF ORDER:

27 AUGUST 2003

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:

  1. The application be dismissed.
  2. The applicant pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

V119 OF 2003

BETWEEN:

JOHN AUBREY LEANE
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

FINN J

DATE:

27 AUGUST 2003

PLACE:

CANBERRA

REASONS FOR JUDGMENT

  1. The Repatriation Commission has conceded that the Administrative Appeals Tribunal’s decision in this matter is not accompanied by “a model set of reasons”.  Those reasons are an understandable cause of frustration to the applicant, John Leane.  The crucial question is whether they betray an error of law.  While I can quite understand why Mr Leane may feel hard done by on the facts, I reluctantly conclude that no reviewable error is disclosed.

    Factual Background

  2. Mr Leane is a veteran who served in the Australian Army from 1954 to 1980 and in the Royal Australian Air Force from 1980 to 1989.  His service included operational service in Vietnam.  After brief periods of employment he was engaged by ACT Electricity and Water (“ACTEW”) for which he worked from 1989 to 1996.  In August 1996 he accepted a redundancy package (though not as part of a restructure).  He has not worked thereafter save for short periods with the Australian Electoral Commission in 1997 and 2001.

  3. On 18 November 1996 Mr Leane lodged a claim for pension under Part II of the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”). Suffice it to say that, in consequence of this and a later claim and of reviews by the Veterans’ Review Board, the Repatriation Commission has accepted that he has the following disabilities: hearing loss and tinnitus, post traumatic stress disorder (“PTSD”) and osteoarthritis of the right wrist and thumb. Mr Leane has, as well, the non-war caused disability of osteoarthritis in both hips, and he underwent hip replacement surgery in 1997 and 1998.

  4. The Veterans’ Review Board assessed Mr Leane’s pension at 100 per cent of the General Rate on 1 March 2001.  It also determined that he did qualify, additionally, for the special rate.  It was the latter determination that prompted his application to the Tribunal whose decision adverse to him is the subject of the present application.

    The Legislative Setting

  5. Section 24 of the VE Act provides for the special rate of pension. For the section to apply a number of requirements are to be satisfied of which the following are presently relevant. The first is that the veteran claimant had not turned 65 at the time of the claim and has…

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AGLC
Leane v Repatriation Commission [2003] FCA 889
Case
[2003] FCA 889
Decision Date

CaseChat Overview and Summary

In the matter of Leane v Repatriation Commission, the applicant, John Leane, a veteran, sought judicial review of a decision by the Administrative Appeals Tribunal, which had dismissed his application for a special rate of pension under the Veterans’ Entitlements Act 1986 (Cth). The key issue for the court was whether the Tribunal's decision contained a reviewable error of law. The Tribunal had found that Leane was totally and permanently incapacitated due to his post-traumatic stress disorder (PTSD) and other war-caused disabilities, but had denied him the special rate of pension on the basis that his incapacity was not solely attributable to war-caused conditions.

The court examined the statutory provisions of the Veterans’ Entitlements Act, particularly section 24, which outlines the criteria for the special rate of pension. The court noted that Leane satisfied the initial criteria, including being under 65 years of age and having a degree of incapacity of at least 70 per cent. The primary focus of the court's analysis was on whether Leane's incapacity was solely due to war-caused injury or disease, as required by section 24(1)(c). The Tribunal had concluded that Leane's incapacity was not solely due to war-caused conditions because his osteoarthritis in both hips, a non-war-caused disability, also contributed to his inability to undertake remunerative work. The court found that this conclusion was consistent with the evidence presented and did not disclose any reviewable error of law. The court emphasized that while Leane's situation was indeed unfortunate, the Tribunal's decision was not flawed in its application of the law.

In light of the above findings, the court dismissed Leane's application for judicial review and ordered that Leane pay the respondent's costs of the application.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs of the application.

Background

Background to the litigation

The Repatriation Commission has conceded that the Administrative Appeals Tribunal’s decision in this matter is not accompanied by “a model set of reasons”. Those reasons are an understandable cause of frustration to the applicant, John Leane. The crucial question is whether they betray an error of law. While I can quite understand why Mr Leane may feel hard done by on the facts, I reluctantly conclude that no reviewable error is disclosed.Factual Background Mr Leane is a veteran who served in the Australian Army from 1954 to 1980 and in the Royal Australian Air Force from 1980 to 1989. His service included operational service in Vietnam. After brief periods of employment he was engaged by ACT Electricity and Water (“ACTEW”) for which he worked from 1989 to 1996. In August 1996 he accepted a redundancy package (though not as part of a restructure). He has not worked thereafter save for short periods with the Australian Electoral Commission in 1997 and 2001. On 18 November 1996 Mr Leane lodged a claim for pension under Part II of the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”). Suffice it to say that, in consequence of this and a later claim and of reviews by the Veterans’ Review Board, the Repatriation Commission has accepted that he has the following disabilities: hearing loss and tinnitus, post traumatic stress disorder (“PTSD”) and osteoarthritis of the right wrist and thumb. Mr Leane has, as well, the non-war caused disability of osteoarthritis in both hips, and he underwent hip replacement surgery in 1997 and 1998. The Veterans’ Review Board assessed Mr Leane’s pension at 100 per cent of the General Rate on 1 March 2001. It also determined that he did qualify, additionally, for the special rate. It was the latter determination that prompted his application to the Tribunal whose decision adverse to him is the subject of the present application.The Legislative Setting Section 24 of the VE Act provides for the special rate of pension. For the section to apply a number of requirements are to be satisfied of which the following are presently relevant. The first is that the veteran claimant had not turned 65 at the time of the claim and has been determined to have a degree of incapacity of at least 70 per cent. I merely note that Mr Leane satisfies these. The second requirement, imposed by s 24(1)(b), is that:“the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.”To anticipate matters, the Tribunal found that Mr Leane satisfied this provision and that finding is not in issue in this proceeding. What is in issue is whether Mr Leane could satisfy the requirements of s 24(1)(c). Because of the complex character of that subsection and of its interrelationship with s 24(2), it is helpful to approach the provision in the manner set out by Nicholson J in Forbes v Repatriation Commission (2000) 101 FCR 50 at 52-53.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FINN J
I would note in passing that the “assessment period” for the purposes of s 19(5C) of the VE Act commenced to run from 18 November 1996 when Mr Leane’s claim for a pension was lodged.The Tribunal’s Decision The Tribunal set out at quite some length, though essentially in précis form, the evidence of nine medical practitioners who gave evidence and/or provided reports. The practitioners had varying specialisations (most notably psychiatry, orthopaedics and that of rehabilitation physician). Their reports focussed, in the main, on Mr Leane’s PTSD condition, his alcoholism and his hip complaints. They embodied divergent opinions which will be exemplified below. In addressing the question whether Mr Leane was totally and permanently incapacitated for the purposes of s 24(1)(b) the Tribunal reached the following conclusion:“The weight of the evidence before the Tribunal is that Mr Leane is incapable of undertaking any remunerative work for periods aggregating more than eight hours per week. Of the medical practitioners only Dr McGrath disagrees. Furthermore, the medical evidence also strongly suggests this is solely attributable to Mr Leane’s PTSD. See especially the evidence of Drs Rosendahl, Stone, Koller and White. Dr Cole is a little more tentative whilst Dr Strum asserts the reason is depressive illness and alcoholism not PTSD.On all the material before me I am satisfied that Mr Leane is totally and permanently incapacitated for the purposes of section 24(1)(b).”As I have indicated this conclusion is not in issue in this proceeding. The Tribunal then turned to s 24(1)(c) and proceeded, though with some adaptation, to answer four questions which it considered the Full Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5 held were required to be answered. These questions were: “1.What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 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 year, 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?” The answer it gave to the first of these was that Mr Leane had been undertaking “general administrative/clerical and inspection activities”. It went on to indicate that his casual work with the AEC fell within that broad description. Consistent with its s 24(1)(b) finding it concluded that the second question should be answered affirmatively. Mr Leane was, by reason of his war-caused PTSD, prevented from continuing to undertake general administrative/clerical and inspection activities.

Ratio Decidendi

Legal Principle Established

Established by: FINN J

Full text does not contain this section.