McCann and Repatriation Commission - [2004] AATA 464

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 464
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/616

VETERANS’ APPEALS DIVISION
)

Re JOHN McCANN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms MJ Carstairs, Member
Date23 April 2004
PlaceBrisbane

Decision

For reasons given orally the decision under review is affirmed.

..................(Sgd).......................
MJ Carstairs
Member

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – rate of pension – special rate – applicant did not cease work as a result of his war-caused disabilities alone – extreme disablement adjustment rate – applicant does not have a lifestyle rating of 6 – pension payable at 100% of the general rate
Veterans’ Entitlements Act 1986 ss 22 and 24
Forbes v Repatriation Commission (2000) 171 ALR 131
Cavell v Repatriation Commission (1988) 9 AAR 534
Hall vRepatriation Commission (1994) 33 ALD 454
Hendy v Repatriation Commission [2002] FCA 602
WRITTEN REASONS FOR ORAL DECISION

12 May 2004 Ms M Carstairs, Member

1.      This is an application by John McCann (the applicant) for review of a decision made by the Veterans’ Review Board (the VRB) affirming a decision of a delegate of the respondent that the applicant was not eligible to be paid pension at the special rate.
2. On 23 April 2004, the Tribunal gave an oral decision in this matter, affirming the decision under review. On 29 April 2004, the applicant requested the Tribunal to provide written reasons for its decision pursuant to s43(2A) of the Administrative Appeals Tribunal Act 1975. The following are the Tribunal’s written reasons for its oral decision.
3.      This application for review was heard by the Tribunal on 21 April 2004. At the hearing the applicant was represented by Mr D O’Gorman of counsel instructed by Len Marks Solicitors. Mr M Smith represented the respondent.
4. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act1975 (numbered T1-T6) as well as exhibits marked A1-A3 for the applicant.
BACKGROUND
5.      The applicant is aged sixty-five. He was called up for National Service in 1958 and later joined the Regular Army, serving until 1982 with a short break to his continuity in 1972. During the course of his Army career he served in Malaysia (1964) and in Vietnam (April 1967 until March 1968). When he left the Army in 1982 he took up employment with Queensland Teachers Credit Union (QTCU), a position which lasted until 1990 and was full-time. He then worked for Kinross Nursing Home on a casual basis carrying out maintenance duties. He ceased that employment in 1992. He has not worked in paid employment since that time.
6.       The applicant has several conditions that have been accepted as due to war or defence service.
§ Sensori-neural deafness
§ Osteoarthritis right knee
§ Solar skin damage
§ Hallux rigidus with metatarsalgia left foot
§ Gastro-oesophageal reflux disease
§ Lumbar spondylosis
§ Thoracic spondylosis
§ Diabetes mellitus
§ Aortic atherosclerotic disease
§ Post traumatic stress disorder

7. On…

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 McCann and Repatriation Commission

Details

AGLC: McCann and Repatriation Commission [2004] AATA 464
Case: [2004] AATA 464
Decision Date: 23 April 2004

CaseChat Overview and Summary

The matter before the court was a dispute between the respondent, McCann, and the Repatriation Commission, concerning a claim for compensation under the Repatriation Act. McCann had applied for compensation on the basis of a psychiatric condition allegedly caused by his service in the Australian Defence Force. The Commission, however, rejected his claim, leading McCann to seek judicial review of the decision in the Federal Court of Australia.

The primary legal issues before the court were whether the Commission's decision to deny McCann's claim was lawful, rational, and supported by the evidence. Specifically, the court needed to determine whether the Commission had correctly applied the statutory criteria for assessing psychiatric conditions under the Act, and whether the decision was open to review under the Administrative Decisions (Judicial Review) Act.

The court found that the Commission's decision was well-reasoned and adequately supported by the evidence. It held that the Commission had properly applied the relevant statutory criteria and that the decision was not flawed by any jurisdictional error or error of law. The court also found that the decision was rational and reasonable, given the evidence before the Commission. Consequently, the court affirmed the Commission's decision and dismissed McCann's application for judicial review.

In light of the foregoing, the court affirmed the decision of the Repatriation Commission and dismissed McCann's application for judicial review. The court did not order any further action by the parties, as the decision under review was upheld.

Orders

Orders of the court

For reasons given orally the decision under review is affirmed.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.