Llewellyn and Repatriation Commission (Veterans' entitlements) - [2019] AATA 5290

Llewellyn and Repatriation Commission (Veterans' entitlements) [2019] AATA 5290 (10 December 2019)
Division:VETERANS' APPEALS DIVISION
File Number: 2018/7079
Re:Ron Llewellyn
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:10 December 2019
Place:Brisbane

The Decision under review is affirmed.
........................................................................
Deputy President J Sosso
Catchwords
VETERANS’ AFFAIRS — Disability pension — Where the veteran is in receipt of the pension at 100% of the general rate — Special rate pension – Whether s 24(1)(b) met – Whether veteran totally and permanently incapacitated as to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week – Decision under review affirmed
Legislation
Veterans’ Entitlements Act 1986 (Cth)
Cases
Banovich v Repatriation Commission (1986) 6 AAR 113
Chambers v Repatriation Commission (1995) 55 FCR 9
Fox v Repatriation Commission (1997) 45 ALD 317
Repatriation Commission v Smith (1987) 15 FCR 327
Smith v Repatriation Commission (2014) 220 FCR 452
Watkins v Repatriation Commission (2014) 142 ALD 106
Wright and Repatriation Commission (2005) 144 FCR 302
Secondary materials
Guide to the Assessment of Rates of Veterans’ Pensions – Fifth Edition
REASONS FOR DECISION
Deputy President J Sosso
10 December 2019
INTRODUCTION

Mr Ron David Llewellyn (the veteran) lodged an Application for Increase in Disability Pension (Exhibit 1 T36 pp. 306 – 317) which was received by the Repatriation Commission (the Commission) on 27 July 2015.
The veteran was born in 1950 and was 64 years old when his Application was lodged.
The veteran performed National Service in the Australian Army from 7 July 1971 until 23 January 1973 and served in the Australian Regular Army from 24 January 1973 until his discharge on 28 July 1981, having attained the rank of Captain – Exhibit 1 T8 p. 42. The veteran rendered eligible service as a Member of the Forces during this time with the Australian Regular Army. It is not contested that the veteran did not render any periods of operational service for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (the Act).
Whist serving in the Army, the veteran rendered much of his service in military parachute training, instructing and researching – Exhibit 1 T37 p. 321.
During the course of the veteran’s military career he made 538 military parachute jumps (of which 31 were made carrying combat equipment) and a further 427 were made during Routine Order approved activity with civilian sport parachute clubs and with the Australian Army competition team. After completing his service the veteran made a further 500 jumps – Exhibit 1 T24 p. 111, T25 p. 114.
For the first thirteen years after leaving the Army (1981 – 1994) the veteran operated the Australian Air Sports Centre at Byron Bay. The veteran was responsible for the training of approximately 4000 students in ultralight aircraft flying and tandem parachuting – Exhibit 1 T37 p. 320.
Whilst still engaged at the Australian Air Sports Centre, the veteran undertook a series of marine studies and engaged in extensive…

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

Case: [2019] AATA 5290
Decision Date: 10 December 2019

CaseChat Overview and Summary

This matter concerned an appeal by a veteran against a decision of the Repatriation Commission regarding a disability pension. The veteran was in receipt of a pension at 100% of the general rate and sought an increase to the special rate pension, arguing he met the criteria under section 24(1)(b) of the relevant legislation. The Administrative Appeals Tribunal (AAT) was required to determine whether the veteran was totally and permanently incapacitated to the extent that he was incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.

The court considered the interpretation of section 24(1)(b) in conjunction with section 28 of the Veterans' Entitlements Act 1986 (Cth). Drawing on previous Full Federal Court decisions, the court affirmed that section 24(1)(b) requires a veteran to demonstrate an incapacity that prevents them from undertaking remunerative work for more than 8 hours per week. Section 28 was noted to limit the scope of considerations to specific matters, excluding factors such as depressed market conditions. The court reviewed the veteran's extensive work history since leaving the Army, which included roles in aviation, security, and a broad range of marine-related activities such as diving instruction, yacht skippering, and professional yacht services.

The court found that the evidence presented did not reasonably satisfy the Tribunal that the veteran's accepted conditions prevented him from working more than eight hours per week. The Commission had submitted that the veteran had provided conflicting accounts of his work history. Consequently, the veteran had not satisfied the requirements of section 24(1)(b). As this ground was not met, it was unnecessary to consider section 24(1)(c). The decision under review was affirmed.

Orders

Orders of the court

Full text does not contain this section.

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

Having concluded that the veteran has not satisfied the requirements of s 24(1)(b), it is not necessary to consider the operation of s 24(1)(c).DECISION The Decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

The veteran participated in the Hearing by telephone and gave evidence. No other witnesses were called by either Mr O’Neill or Mr Crethary.CONSIDERATIONCapacity for work – ss 24(1)(b) and 28 As Hill J observed in Wright and Repatriation Commission (2005) 144 FCR 302 at [15]/308 ss 24(1)(b) and (c) “pose different hurdles which the veteran must surmount”. His Honour explained that s 24(1)(b):“goes to the nature and level of incapacity by which ability to undertake remunerative work is to be assessed. If the character and effect of the incapacity is such as to render the veteran incapable of undertaking remunerative work for a period aggregating more than eight hours per week then s 24(1)(b) is satisfied.” Rares J observed in Smith (at [8]/455) the evident intention of s 24(1)(b) “is to define when a veteran is totally and permanently incapacitated for the purposes of determining whether he or she can qualify for an increase in the rate of pension.” Consequently s 24(1)(b) contemplates that a veteran is incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. It is important to note that the task of the Tribunal is to make a determination on the veteran’s capacity to engage in remunerative work during the assessment period. Regard must also be had to s 28, which was explained previously. Section 28 is relevant only to the application of s 24(1)(b) and not to an inquiry pursuant to s 24(1)(c) – Fox v Repatriation Commission (1997) 45 ALD 317. It will be noted that s 28 requires a decision to only take into account the matters outlined in paragraphs (a) – (c). The Full Federal Court in Chambers v Repatriation Commission (1995) 55 FCR 9 held that s 28 operated to exclude matters made might otherwise be relevant to an assessment under s 24(1)(b) such as depressed market conditions. The evidence presented highlights that the veteran has engaged in broad range of remunerative work since leaving the Army. For a number of years immediately after leaving the Army (1981 – 1994) he was engaged in training students parachuting and ultralight aircraft flying and immediately thereafter worked as a security officer. Since that time the bulk of the veteran’s remunerative endeavours have involved the marine industry with work as a diving instructor in the Philippines and Queensland, the skipper of yachts, the Master of a Tug vessel, scuba diving instructor and a range of professional yacht services including yacht deliveries, instruction, maintenance, day charters, whale watching and sailing instruction. It is difficult to put a precise label on the type of remunerative work that the veteran has engaged in other than to note that he has not had “desk” jobs, and the focus of his remunerative endeavours has been in the flying and marine industries, with a particular focus on yachting and services related to yachting. The Commission submits (Respondent’s Submissions (RS) para 12) that the Tribunal could not be reasonably satisfied on the evidence presented that the veteran was prevented by his accepted conditions from working more than eight hours per week. In that regard, the Commission submits that the veteran has given numerous conflicting accounts of his work history (RS para 14).