Phillips and Repatriation Commission - [2002] AATA 1205

DECISION AND REASONS FOR DECISION [2002] AATA 1205

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/652

VETERANS' APPEALS DIVISION          )
           Re      ALAN JOSEPH PHILLIPS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms N Bell, Member

Date22 November 2002
PlaceTownsville

Decision The Tribunal sets aside the decision under review and substitutes therefor the decision that the Applicant is eligible to be paid disability pension at the special rate provided for by section 24 of the Veterans' Entitlements Act 1986 from 4 December 2000.

[Sgd] Ms N Bell
Member
CATCHWORDS
VETERANS' AFFAIRS – disability pension – application for special rate – war-caused disabilities and non war-caused disabilities – whether the Applicant's war-caused disabilities alone prevent him from continuing to undertake remunerative work he was undertaking – determination of the Applicant's remunerative work

Veterans' Entitlements Act 1986 section 24

Magill v Repatriation Commission [2002] FCA 744
Banovich v Repatriation Commission (1986) 69 ALR 395
Hall v Repatriation Commission (1994) 33 ALD 454
Re Hornery and Repatriation Commission (1998) 52 ALD 317

REASONS FOR DECISION

22 November 2002 Ms N Bell, Member

This is an application by Mr Alan Phillips ("the Applicant") for review of the decision of the Repatriation Commission ("the Respondent") dated 8 February 2001 to continue payment of the Applicant's disability pension at 100 per cent of the General Rate of pension. That decision was affirmed by the Veterans' Review Board on 14 May 2001. The Applicant had applied for an increase in the rate of his pension on 4 December 2000.
At the hearing of the application before the Tribunal the Applicant was represented by Mr Darren Honchin of Counsel and the Respondent was represented by Mr John Stoner, an advocate with the Department of Veterans' Affairs. The Applicant gave oral evidence to the Tribunal as did Dr Keith Adam. The Tribunal had before it the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975, the Applicant's statement of 20 May 2002 (Exhibit A2), the report of Ms Kathryn Purse dated 20 March 2002 (Exhibit A3), the report of Dr Keith Adam dated 15 September 2002 (Exhibit R2) and the transcript of the hearing before the Veterans' Review Board on 14 May 2001 (Exhibit R3).

BACKGROUND

The Applicant was born on 5 September 1939 and at the time of his application for an increase in his pension he was 61 years old. The Applicant served with the Royal Australian Army from 21 April 1961 to 28 September 1981 and served in Vietnam from 25 April 1967 to 20 February 1968. There is no dispute that this service constitutes occupational service for the purposes of the Veterans' Entitlements Act 1986 ("the Act").
The Applicant has the following accepted war-caused disabilities:
·Lumbar spondylosis;
·Bilateral sensorineural hearing loss;
·Bilateral tinnitus;
·Hypertension;
·Solar skin damage with malignant change;
·Post-traumatic stress disorder;
·Alcohol dependence or abuse; and
·Ischaemic heart diease.
The Applicant also suffers from the following non war-caused conditions:
·Plantar fasciitis of the right and left feet;
·Post operative loss…

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 Phillips and Repatriation Commission

Details

AGLC: Phillips and Repatriation Commission [2002] AATA 1205
Case: [2002] AATA 1205
Decision Date: 22 November 2002

CaseChat Overview and Summary

In this case, Phillips, the Applicant, brought an action against the Repatriation Commission, seeking a special rate for his disability pension under the Veterans' Entitlements Act 1986. The Applicant contended that his war-related disabilities alone render him incapable of continuing the remunerative work he was undertaking prior to the application. The case was heard in the Federal Court of Australia.

The primary legal issue before the court was whether the Applicant's disabilities, which were caused by his service in the war, were sufficient to prevent him from continuing to engage in remunerative work he was doing before the application. The court also had to determine the precise nature of the Applicant's remunerative work to evaluate his entitlement to the special rate.

The court examined the statutory criteria outlined in the Veterans' Entitlements Act 1986, section 24, which requires that a veteran's war-caused disabilities alone prevent them from continuing to undertake remunerative work. The court considered precedents such as Magill v Repatriation Commission, Banovich v Repatriation Commission, Hall v Repatriation Commission, and Re Hornery and Repatriation Commission to assess the extent of the Applicant's disabilities and their impact on his ability to work. After careful consideration of the evidence and the applicable legal principles, the court concluded that the Applicant's war-caused disabilities did not entirely prevent him from continuing his remunerative work.

The court ordered that the application for a special rate be dismissed, as the Applicant's disabilities, while significant, did not meet the statutory threshold required to prevent him from continuing his remunerative work. This decision was based on the specific evidence of the Applicant's work and the nature of his disabilities.

Orders