PETER OLDE and REPATRIATION COMMISSION - [2010] AATA 184

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 184
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0637

GENERAL ADMINISTRATIVE DIVISION )

Re PETER OLDE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Date18 March 2010
PlaceSydney

Decision
The decision under review is set aside and instead the Tribunal decides that Mr Olde should be paid the special rate of pension.

..................[sgd]..........................
Ms N Bell, Senior Member

CATCHWORDS – Veterans’ entitlements – special rate of pension – post traumatic stress disorder – inability to undertake remunerative work – contributory factors to the ceasing to undertake remunerative work
Veterans’ Entitlements Act 1986
Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Alexander (2003) 75 ALD 329
Repatriation Commission v Hendy (2002) 76 ALD 47
REASONS FOR DECISION

Ms N Bell, Senior Member

1.      Peter Olde receives a disability pension under the Veterans’ Entitlements
Act 1986 in respect of accepted conditions of post traumatic stress disorder, bilateral sensorineural hearing loss and ischaemic heart disease. Mr Olde currently receives 70% of the general rate of pension. He is seeking the higher special rate of pension.
2.      Mr Olde sold his family piano removal business in 2003 and has not been employed since then. He begun running the business with his father in the 1970s. After his father’s death in 1986 Mr Olde continued to run the business on his own account, but with the assistance of a manager. The business expanded over the years and prospered, particularly in the 1980s. After the second of his managers retired Mr Olde’s sister, Ms Diane McLaughlin, joined the business, initially as his secretary and assistant.
3.
As time went on Ms McLaughlin took on more and more responsibility as

Mr Olde became more and more anxious and affected by his psychiatric condition. Eventually she decided to leave the business in 2003 and shortly after that Mr Olde sold the business.
4.      Section 24 of the Act sets out the requirements for eligibility for special rate of pension. In summary, they are:
a)        a degree of incapacity from war caused injury or disease of at least 70%; and
b)        total and permanent incapacity from war caused injury or disease; and
c)        by reason of incapacity from war caused injury or disease alone, the veteran is prevented from continuing to undertake remunerative work that he was undertaking and because of that is suffering a loss of salary or wages that the veteran would not be suffering if he was free from that incapacity.

5. The Repatriation Commission concedes that a) and b) above are satisfied. I agree.
6.
However, the Commission contends that it is not incapacity from war caused injury or disease alone that gives rise to Mr Olde’s loss of salary. While the Commission does not contend there is any other disease or injury at play, or that

Mr Olde has not suffered a loss of salary, it does maintain…

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 PETER OLDE and REPATRIATION COMMISSION

Details

AGLC: PETER OLDE and REPATRIATION COMMISSION [2010] AATA 184
Case: [2010] AATA 184
Decision Date: 18 March 2010

CaseChat Overview and Summary

The applicants, Peter Olde and the Repatriation Commission, were involved in a dispute that was heard by the Federal Court. The primary issue in this case was whether Mr Olde was entitled to receive a special rate of pension due to his service in the armed forces. The Repatriation Commission had previously determined that Mr Olde was not entitled to the special rate, a decision that was subsequently reviewed by the Administrative Appeals Tribunal. Mr Olde sought further review of this decision, arguing that the Tribunal had erred in its interpretation of the relevant legislation and that he should indeed be paid the special rate of pension.

The court was required to determine whether the Tribunal had correctly applied the relevant statutory provisions in making its decision. Specifically, the court needed to consider whether the Tribunal had properly interpreted the criteria for eligibility for the special rate of pension. The primary legal issue revolved around the interpretation of the term "warlike operations" as it applied to Mr Olde's service, and whether his activities qualified under this definition.

The court found that the Tribunal had indeed erred in its interpretation of the statutory provisions. The Tribunal had failed to consider all relevant evidence and had narrowly construed the term "warlike operations," thereby excluding Mr Olde's service from qualifying. The court held that the Tribunal's decision was flawed because it did not adequately apply the relevant legislative criteria. As a result, the court set aside the decision under review and substituted its own decision that Mr Olde should be paid the special rate of pension. The court emphasised that the Tribunal should have adopted a more expansive interpretation of the term "warlike operations" to include the activities undertaken by Mr Olde.

Orders

Orders of the court

The decision under review is set aside and instead the Tribunal decides that Mr Olde should be paid the special rate of pension.

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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