Murphy and Repatriation Commission - [2004] AATA 1349

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 1349
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/64

VETERANS' APPEALS DIVISION )

Re TERENCE JOHN MURPHY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen
Date17 December 2004
PlaceSydney

Decision
The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision namely

1.    That the Applicant is entitled to pension for the war-caused disease of alcohol abuse/dependence as and from 21 November 2000.

2.    Pension is to be paid for incapacity occasioned by all war-caused injuries and diseases at the following rates, namely:

(i)      as and from 21 November 2000 to 27 March 2001 inclusive at 70 per cent of the General Rate of pension;

(ii)     as and from 28 March 2001 at the Special Rate pursuant

to s 24 Veterans Entitlements Act 1986 ( VEA).

................(Sgd) M D Allen.................
  Senior Member

CATCHWORDS
VETERANS’ ENTITLEMENTS: Respondent accepted Applicant’s claim for alcohol dependence and increased pension to 50% of General Rate – Applicant seeks increase of pension to 80% of General Rate and Special Rate – whether Applicant’s loss of remunerative work is related to service related incapacities – evidence of Applicant’s progress in rehabilitation - any return to work by Applicant would cause him to decompensate – decision under review set aside.
Veterans' Entitlements Act 1986 s 24, s 28, ss 120(4) and (6)
McGill v Repatriation Commission [2002] FCA 744
Cavell v Repatriation Commission (1988) 9 AAR 534
Repatriation Commission v Smith (1987) 15 FCR 327
REASONS FOR DECISION

17 December 2004 Senior Member M D Allen

1.      By application made the 15^th day of January 2004 the Applicant sought review of a decision by the Respondent made the 14^th day of May 2001 that accepted a claim for alcohol dependence or alcohol abuse and increased the disability pension payable to the Applicant to 50 per cent of the General Rate of pension.
2.      In these proceedings the Applicant contended that as at the effective date of acceptance of the condition of alcohol abuse/dependence namely the 14^th November 2000 he was entitled to pension at 80 per cent of the General Rate and that as and from the 28^th March 2001 being the day after he ceased work, he was entitled to pension at the Special Rate as provided by s 24 Veterans’ Entitlements Act 1986.
3.      A major difficulty in this matter is that the reports relating to any degree of incapacity obtained for these proceedings must discuss the Applicant not as he currently appears but are required to relate back to the Applicant’s condition as at November 2000 and March 2001.
4.      Two initial comments can be made regarding the fact that the Applicant has been examined after ceasing work. The first is that psychiatrists Drs Darcy, Dinnen and Sagar all agree that the Applicant’s psychiatric state is fragile and that to require him to return to work would cause him to decompensate…

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 Murphy and Repatriation Commission

Details

AGLC: Murphy and Repatriation Commission [2004] AATA 1349
Case: [2004] AATA 1349
Decision Date: 17 December 2004

CaseChat Overview and Summary

In the matter of Murphy against the Repatriation Commission, the Federal Court of Australia was called upon to review a decision regarding the pension rate of a former serviceman suffering from alcohol dependence. The applicant, Mr Murphy, sought an increase in his pension rate from 50% to 80% of the General Rate, as well as the application of the Special Rate under the Veterans’ Entitlements Act 1986. The Repatriation Commission had previously accepted Mr Murphy's claim for alcohol dependence and adjusted his pension accordingly. However, the applicant argued that his loss of employment was directly related to his service-related incapacities and that any attempt to return to work would result in a deterioration of his condition. The legal issues before the court involved interpreting the relevant sections of the Veterans’ Entitlements Act and determining whether Mr Murphy's circumstances met the criteria for a higher pension rate.

The court considered the relevant statutory provisions, particularly sections 24, 28, and 120(4) and (6), alongside relevant case law such as McGill v Repatriation Commission and Cavell v Repatriation Commission. It was established that Mr Murphy's condition of alcohol dependence was war-caused and that the loss of his employment was a consequence of this condition. The court found that there was evidence of Mr Murphy's progress in rehabilitation but concluded that any attempt to return to work would likely cause him to decompensate. Based on this evidence, the court found that the Repatriation Commission had erred in not awarding a higher pension rate, as the statutory criteria for the Special Rate were met.

The Federal Court set aside the decision of the Repatriation Commission and substituted its own decision. The court ruled that Mr Murphy was entitled to a pension for his war-caused disease of alcohol abuse/dependence from 21 November 2000. The pension was to be paid at a rate of 70% of the General Rate from 21 November 2000 to 27 March 2001, and at the Special Rate from 28 March 2001 onwards, in accordance with section 24 of the Veterans Entitlements Act 1986. This decision recognised Mr Murphy's unique circumstances and the direct link between his service-related incapacities and his current condition.

Orders

Orders of the court

The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision namely

1. That the Applicant is entitled to pension for the war-caused disease of alcohol abuse/dependence as and from 21 November 2000.

2. Pension is to be paid for incapacity occasioned by all war-caused injuries and diseases at the following rates, namely:

(i) as and from 21 November 2000 to 27 March 2001 inclusive at 70 per cent of the General Rate of pension;

(ii) as and from 28 March 2001 at the Special Rate pursuant

to s 24 Veterans Entitlements Act 1986 ( VEA).

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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VETERANS' APPEALS DIVISION		)
Re		TERENCE JOHN MURPHY