MacDonald and Repatriation Commission - [2007] AATA 1980

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1980
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1529

VETERANS’ APPEALS DIVISION )
ReJOHN ARTHUR MACDONALD

Applicant
AndREPATRIATION COMMISSION

Respondent
DECISION
TribunalSenior Member M D Allen
Dr M E C Thorpe, Member

Date23 November 2007
PlaceSydney
DecisionThe decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, viz. THAT John Arthur MacDonald is entitled to pension at the intermediate rate pursuant to section 23 of the Veterans’ Entitlements Act 1986 as and from 1 July 2002.

.................[sgd]........................
M D Allen
Presiding Member

ADMINISTRATIVE APPEALS TRIBUNAL
No: N 200601529

VETERANS’ APPEALS DIVISION
Re: John MacDonald
Applicant

And: Repatriation Commission
Respondent

DIRECTION [2007] AATA 1980
TRIBUNAL:             Senior Member M D Allen
DATE:                      25 January 2008
PLACE:                   Sydney

Pursuant to section 43AA of the Administrative Appeals Tribunal 1975 being satisfied that there is an obvious error in the text of the decision of the Tribunal, I DIRECT the Registrar of the Tribunal to alter the text of the decision in accordance with the following directions namely:
That the date of the reviewable decision is amended to read 12 July 2004.
..................[sgd]......................
M D Allen
Senior Member

CATCHWORDS
VETERANS’ ENTITLEMENTS – application for review of decision increasing applicant’s pension for incapacity from war-caused injury and disease to eighty percent of general rate pension as opposed to special rate of pension – inability to undertake remunerative work due to war caused incapacity – loss of earnings – alone test – standard of proof to tribunal’s reasonable satisfaction – applicant no longer producing income for partnership – gross receipts – partnership may arrange remuneration in any manner including agreement that one or more partners receive nothing – decision under review set aside
LEGISLATION:
Veterans’ Entitlements Act 1986 sections 23, 23(1)(b), 23(2), 23(2)(a), 24, 24(1)(b), 28, 28(a), 28(b), 120(4) and 120(6)
CASE LAW
Repatriation Commission v Smith (1987) 15 FCR 327
Chambers v Repatriation Commission (1995) 36 ALD 207
Repatriation Commission v Alexander (2003) 75 ALD 329
Repatriation Commission v Hendy [2002] FCAFC 424 (reported 76 ALD 47)
Cavell v Repatriation Commission (1988-9) 9 AAR 534
Counsel v Repatriation Commission (2002) 122 FCR 476
M Young Legal Associates Ltd v Zahid (a firm) and Others [2006] 1 WLR 2562
REASONS FOR DECISION

23 November 2007

Senior Member M D Allen

Dr M E C Thorpe, Member

Summary

1. By application made 7 November 2006, the Applicant sought review of the decision of the Respondent made on 18 September 2006 that increased his pension for incapacity from war-caused injury and disease to 80 percent of the general rate of pension.
2. It was contended by the Applicant in these proceedings that he was entitled to the special rate of pension pursuant to section 24 of the Veterans’ Entitlements Act 1986.
3. Section 24 VEA, so far as is relevant, reads:
…
Special rate of pension
(1)This section applies to a veteran if:

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.

Continue reading MacDonald and Repatriation Commission

Details

AGLC: MacDonald and Repatriation Commission [2007] AATA 1980
Case: [2007] AATA 1980
Decision Date: 23 November 2007

CaseChat Overview and Summary

The matter involved an application by MacDonald against the Repatriation Commission, seeking a review of a decision that increased his pension for incapacity due to a war-caused injury and disease to eighty percent of the general rate pension, instead of the special rate of pension. MacDonald had argued that he was unable to undertake remunerative work due to his incapacity, leading to a loss of earnings. The primary issue for the court was to determine whether the Repatriation Commission's decision was correct in applying the 'alone test' and the standard of proof required by the tribunal to be reasonably satisfied that MacDonald no longer produced income for the partnership.

The court examined the evidence regarding MacDonald's incapacity and its impact on his ability to earn income. It was established that a partnership may arrange remuneration in any manner, including an agreement that one or more partners receive nothing. The court also considered whether the tribunal was correct in concluding that MacDonald was not producing income for the partnership. Ultimately, the court found that the decision under review did not properly consider the partnership's arrangements and that the tribunal had not been reasonably satisfied that MacDonald was not producing income for the partnership. The court set aside the decision and remitted the matter back to the Repatriation Commission for reconsideration.

The final orders of the court were to set aside the decision of the Repatriation Commission and to remit the matter back to the Commission for reconsideration in light of the court's findings. The Commission was directed to consider the evidence afresh and make a new decision in accordance with the law, taking into account the court's reasoning and the relevant legal principles.

Orders