Martin and Repatriation Commission - [2001] AATA 346

DECISION AND REASONS FOR DECISION [2001] AATA 346

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1999/1014

VETERANS' APPEALS DIVISION       )
           Re      RAYMOND JOHN MARTIN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Hon. CR Wright QC, Deputy President Brigadier IRW Brumfield, Member Dr JB Morley, Member

Date30 April 2001
PlaceBrisbane

Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the applicant RAYMOND JOHN MARTIN is entitled to be paid disability pension at the Special Rate with effect from 11 September 1997.

(Sgd) CR WRIGHT
DEPUTY PRESIDENT
CATCHWORDS
VETERANS' AFFAIRS – special rate pension – whether accepted disabilities caused the applicant to cease work – time at which the incapacity is to be assessed – time at which loss is to be assessed – intention of the legislature.

Veterans' Entitlements Act 1986 ss 24
Starcevich v Repatriation Commission (1987) 18 FCR 221

REASONS FOR DECISION

30 April 2001 Hon. CR Wright QC, Deputy President Brigadier IRW Brumfield, Member Dr JB Morley, Member

This was an application to review a decision of the Repatriation Commission dated 16 June 1998, as affirmed by the Veterans' Review Board on 26 August 1999.
This matter was heard by a Tribunal as constituted above in Brisbane on 4 April 2001. At the hearing the applicant was represented by Mr D O'Gorman of Counsel, instructed by Messrs Gilshenan and Luton and the respondent was represented by Mr B Williams, Departmental Advocate. The following documents were taken into evidence:

Exhibit 1 "T" Documents
Exhibit A1 Statement of Raymond Martin dated 6.6.00
Exhibit A2 Statement of Karen Lee Robins dated 28.9.00
Exhibit A3 Report of Dr R Troup dated 15.5.00
Exhibit A4 Report of Dr R Troup dated 24.7.00
Exhibit R1 Report of Dr W Kingswell dated 8.1.00
Exhibit R2 Report of Dr W Kingswell dated 10.10.00
Exhibit R3 Tax Return documents of Raymond Martin

The applicant veteran, Raymond John Martin was born on 24 November 1934. He served 25 years with the RAAF and was discharged in 1976. He was on active service in Vietnam from October 1970 to June 1971. During that period he experienced several traumatic events which were detailed in comprehensive reports by Dr Rosalie Troup which were presented in evidence both before the Veterans' Review Tribunal and this Tribunal.
After discharge from the RAAF the applicant undertook various employment which was fully described in his evidence in Statement Exhibit A1 before the Tribunal. This will be referred to later. Following his tour of duty in Vietnam, the applicant developed a number of disorders which were subsequently accepted by the Repatriation Commission as related to his war service. There were:
(a)      Sensori-Neural Deafness
(b)      Post Traumatic Stress Disorder
(c)       Gastro-Oesophageal Reflux Disease
(d)      Chronic Bronchitis and Emphysema
(e)      Psychoactive Substance Abuse or Dependence Involving Alcohol.

On 4 September 1998 the Repatriation Commission increased the applicant's disability pension to 100% of the General Rate with effect from 11 September 1998. When this assessment came under review by the Veterans' Review…

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 Martin and Repatriation Commission

Details

AGLC: Martin and Repatriation Commission [2001] AATA 346
Case: [2001] AATA 346
Decision Date: 30 April 2001

CaseChat Overview and Summary

The case of Martin and the Repatriation Commission involved the applicant, Martin, seeking a special rate pension under the Veterans' Entitlements Act 1986. Martin claimed that his accepted disabilities had caused him to cease work, entitling him to the pension. The court was tasked with determining whether Martin's disabilities had indeed led to his inability to work and, if so, the specific time at which his incapacity and loss of employment should be assessed to determine eligibility for the pension.

The primary legal issues before the court were the interpretation of the Veterans' Entitlements Act 1986, specifically section 24, and the intention of the legislature regarding the assessment of incapacity and loss of employment for the purposes of a special rate pension. The court needed to ascertain whether Martin's disabilities had caused him to cease work and, if so, when the incapacity and loss should be assessed.

The court examined the legislative intent behind the provision of special rate pensions, concluding that the legislature intended for the assessment of incapacity and loss to occur at the time when the applicant's disabilities rendered them incapable of work. The court found that the disabilities must have directly led to the cessation of employment. Based on this interpretation, the court ruled in favour of Martin, determining that his disabilities had indeed caused him to cease work and that the assessment should be made at the time of incapacity.

As a result, the court granted Martin's claim for a special rate pension, recognising that his disabilities had led to his inability to work and that the assessment of incapacity and loss should be made at the relevant time. The court's decision underscored the importance of interpreting the legislative intent to ensure that veterans who are genuinely incapacitated by their disabilities receive the appropriate support.

Orders