Miles and Repatriation Commission - [2006] AATA 843

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 843
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/433

VETERANS' APPEALS DIVISION )

Re ALLAN MILES

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr EK Christie, Member
Date4 October 2006
PlaceBrisbane

Decision
The decision under review is set aside and in substitution thereto, the Tribunal decides that Mr Miles is entitled to pension payable at the Special Rate. The earliest date of effect is 1 January 2003.

...................[Sgd]...........................
Member

CATCHWORDS
VETERANS’ ENTITLEMENTS – disability pension – whether applicant entitled to special rate – whether applicant totally and permanently incapacitated – whether applicant prevented from continuing to undertake remunerative work by reason of war-caused incapacity alone – whether accepted service-related conditions ‘substantial cause’ of inability to engage in remunerative work
Veterans’ Entitlements Act 1986 ss 19, 24, 120
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Flentjar v Repatriation Commission (1997) 48 ALD 1
Chambers v Repatriation Commission (1995) 129 ALR 219
Re Bos and Defence Forces Retirement and Death Benefits Authority (1977) 20 ALR 663; 1 ALD 31
Forbes v Repatriation Commission (2000) 101 FCR 50
Hendy v Repatriation Commission [2002] FCA 602
Jackman v Repatriation Commission, Federal Court, 30 June 1997, 564/1997
Magill v Repatriation Commission [2002] FCA 744
Caswell v Powell Duffryn Associated Colleries (1939) 3 All ER 722
REASONS FOR DECISION

4 October 2006 Dr EK Christie, Member

1.      This is an application by Allan Miles for a review of the decision made by the Veterans’ Review Board (‘the VRB’) on 20 May 2005, that he was entitled to disability pension at 100% of the General Rate with effect from 1 January 2003.
2.      At the hearing, Ms B Carter-Nicol of Counsel represented Mr Miles. The respondent was represented by Mr J Kelly, a Departmental Advocate.
3. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the ‘T’ documents) Exhibit R1 and the various documents tendered by the parties.
4.      Oral evidence on behalf of the applicant was given by Mr Allan Miles himself, Dr P Nyst (treating GP for about 20 years) and Dr J Carter (consultant psychiatrist). The respondent called Dr J Sowby (occupational medicine specialist) and Dr W Kingswell (consultant psychiatrist).
FACTS
5.      Allan Miles was born on 19 March 1941 and currently receives disability pension assessed at 100% of the General Rate. Mr Miles was discharged from the RAAF in June 1979 after twenty years service. He held the rank of a Warrant Officer.
6.      During his service, Mr Miles rendered operational service in the Malaysia region from 17 August 1964 to 1 September 1965 and in South Vietnam from 18 November 1966 to 20 November 1967.
7.Mr Miles also rendered eligible defence from 7 December 1972 to 20 June 1979.
8.Mr Miles has the following conditions accepted as “service related”:
·     Bilateral sensori-neural hearing loss with tinnitus
·     Post traumatic stress disorder
·     Alcohol dependence/abuse
·…

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 Miles and Repatriation Commission

Details

AGLC: Miles and Repatriation Commission [2006] AATA 843
Case: [2006] AATA 843
Decision Date: 4 October 2006

CaseChat Overview and Summary

The case of Miles and the Repatriation Commission involved the applicant, Mr Miles, seeking a review of a decision denying him entitlement to a special rate of pension under the Veterans’ Entitlements Act 1986. Mr Miles argued that he was totally and permanently incapacitated due to war-related conditions, which prevented him from undertaking remunerative work. The dispute was heard and determined by the Federal Court of Australia. The central legal issues in this case revolved around whether Mr Miles met the statutory criteria for a special rate pension, specifically whether his incapacity was solely attributable to his war-caused conditions and whether these conditions were the substantial cause of his inability to engage in remunerative work. The court had to examine the relevant provisions of the Veterans’ Entitlements Act 1986, particularly sections 19, 24, and 120, in light of established case law.

The court reviewed the statutory provisions and relevant precedents to determine the applicability of Mr Miles’s circumstances. It considered the interpretation of "total and permanent incapacity" and the meaning of "war-caused incapacity alone" in the context of Mr Miles’s service-related conditions. The court also assessed whether Mr Miles’s inability to work was substantially caused by his war-related conditions, referencing decisions such as Drake v Minister for Immigration and Ethnic Affairs and Flentjar v Repatriation Commission. Additionally, the court examined the requirement that Mr Miles’s incapacity must prevent him from undertaking remunerative work, considering the decisions in Chambers v Repatriation Commission and Hendy v Repatriation Commission.

After thoroughly reviewing the evidence and legal arguments, the court found that Mr Miles was entitled to the special rate pension. The court determined that Mr Miles met the statutory criteria for total and permanent incapacity and that his incapacity was substantially caused by his war-related conditions. The Federal Court set aside the decision under review and substituted it with a decision that Mr Miles is entitled to the pension payable at the Special Rate, effective from 1 January 2003.

Orders

Orders of the court

The decision under review is set aside and in substitution thereto, the Tribunal decides that Mr Miles is entitled to pension payable at the Special Rate. The earliest date of effect is 1 January 2003.

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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