McCormack and Repatriation Commission - [2008] AATA 670

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 670
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N 2006/1597

VETARANS’ APPEALS DIVISION )

Re GERALD MCCORMACK

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen
Dr M E C Thorpe, Member
Date1 August 2008
PlaceSydney

Decision
The Decision under Review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, viz. THAT this matter be remitted to the Respondent with the Direction that the Applicant is entitled to pension at the Special Rate as per section 24 of the Veterans Entitlement Act 1986

as and from the 30^th day of March 2005.

  ..................[sgd]...................

  M D Allen

  Presiding Member

CATCHWORDS
VETERANS’ ENTITLEMENTS – review of decision by respondent affirmed by veterans’ review board that applicant not entitled to pension at special rate – whether veterans loss of remunerative work is attributable to applicant’s service-related incapacities – alone test – whether applicant could attract an employer to employ him to do work for which applicant’s skills and experience are suited – civil standard of proof – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 sections 19, 24, 28 and 120(4)
CASE LAW
Repatriation Commission v Smith (1987) 15 FCR 327
Chambers v Repatriation Commission (1995) 36 ALD 207
Re Davis and Repatriation Commission (1986) 12 ALD 483
Re Martin (KF) and Repatriation Commission (1987) 13 ALD 83
Cavell v Repatriation Commission (1988) 9 AAR 534
Repatriation Commission v Braund (1991) 23 ALD 591
Repatriation Commission v Bowman (1981-82) 38 ALR 650
REASONS FOR DECISION

1 August 2008 Senior Member M D Allen
Dr M E C Thorpe, Member

1. In these proceedings the Applicant sought review of a decision by the Respondent as affirmed by a Veterans' Review Board that he was not entitled to pension at the Special Rate pursuant to section 24 Veterans’ Entitlements Act 1986.
2. Section 24 VEA reads inter alia:
“Special rate of pension
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

(b) 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…

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 McCormack and Repatriation Commission

Details

AGLC: McCormack and Repatriation Commission [2008] AATA 670
Case: [2008] AATA 670
Decision Date: 1 August 2008

CaseChat Overview and Summary

In the matter of McCormack and Repatriation Commission, the applicant, McCormack, sought review of a decision by the Commission that he was not entitled to a pension at the special rate under the Veterans Entitlement Act 1986. The dispute arose from the Commission’s determination that McCormack’s loss of remunerative work was not attributable to his service-related incapacities, which would entitle him to the special rate pension. The case was heard by the Administrative Appeals Tribunal (AAT).

The key legal issue before the Tribunal was whether the applicant’s loss of employment was attributable to his service-related incapacities, applying the 'alone test'. This test required the Tribunal to determine if McCormack’s incapacities were the sole reason for his inability to secure employment suitable to his skills and experience. Additionally, the Tribunal had to consider whether the applicant could attract an employer given his abilities and experience, under the civil standard of proof.

The Tribunal found that the Commission had incorrectly applied the 'alone test' and failed to consider the applicant’s capacity to attract employment despite his service-related incapacities. The Tribunal held that McCormack’s incapacities were indeed the sole reason for his unemployment and that he could not attract an employer willing to hire him for work suited to his skills and experience. Consequently, the Tribunal concluded that the applicant satisfied the criteria for the special rate pension and set aside the original decision of the Commission.

The Tribunal remitted the matter back to the Commission with directions that McCormack is entitled to the pension at the special rate from 30 March 2005. The Tribunal’s decision underscored the importance of correctly applying the statutory tests and considering all relevant factors when assessing veterans' entitlements.

Orders

Orders of the court

The Decision under Review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, viz. THAT this matter be remitted to the Respondent with the Direction that the Applicant is entitled to pension at the Special Rate as per section 24 of the Veterans Entitlement Act 1986

as and from the 30th day of March 2005.

..................[sgd]...................

M D Allen

Presiding Member

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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