Quick and Repatriation Commission - [2011] AATA 167

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 167
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0309

Veterans' Appeals DIVISION )

Re Kevin Quick

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal
Senior Member Jill Toohey

Dr Maxwell Thorpe, Member

Date 14 March 2011
PlaceSydney

Decision
The decision under review is affirmed.

....................[sgd]..........................
Senior Member

CATCHWORDS
VETERANS ENTITLEMENTS – special rate of pension – war-caused post traumatic stress disorder - whether veteran satisfied s 24(1)(c) – whether veteran ceased work for reasons other than his PTSD – whether veteran genuinely seeking to engage in remunerative employment – finding that veteran not prevented by PTSD alone from continuing to undertake remunerative work – finding that veteran ceased remunerative work for reasons other than PTSD – work trial did not amount to genuinely seeking to engage in remunerative work – decision under review affirmed
Veterans Entitlements 1986 Act, ss 24, 120
Flentjar v Repatriation Commission (1997) 26 AAR 93
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v van Heteran (2003) FCA 888
Repatriation Commission v Hendy [2002] FCFCA 424
Magill v Repatriation Commission [2002] FCA 244
Repatriation Commission v Sheehy (1996) 39 ALD 286
Leane v Repatriation Commission [2004] FCAFC 83
REASONS FOR DECISION

14 March 2011 Senior Member Jill Toohey
Dr Maxwell Thorpe, Member

Introduction

1.                Mr Kevin Quick served in the Australian Army in South Vietnam for 12 months from about July 1970. His service constitutes eligible service for the purposes of the Veterans Entitlements 1986 Act (the Act).
2.               Mr Quick suffers from a number of disabilities and medical conditions, some of which the Repatriation Commission (the Commission) has accepted as war-caused. He receives a disability pension at 100% of the General Rate. The background to his current rate of pension, which is quite complicated, is set out below.
3.               Mr Quick seeks review of a decision made by the Veterans’ Review Board (the Board) on 30 November 2009, which affirmed a decision made by the Commission, that he is not entitled to the pension at the Special Rate.
Background: Mr Quick’s employment history
4.               In 1965, when he was 16, Mr Quick started work as a surveyor’s assistant for the (then) Commonwealth Department of Works. He worked for the Department of Works for four years.
5.               In 1972, after he had completed his service, he started an apprenticeship as an electrician and, in 1975, he became a licensed electrician.
6.               From 1976, Mr Quick was employed by the (then) Commonwealth Department of Housing and Construction. In 1978, he was promoted to foreman estimator and planner, and was responsible for estimating requirements and cost of all electrical maintenance work in the Department of Housing and Construction.
7.               In 1980, Mr Quick was posted to the Australian embassy in Hanoi for approximately seven months where he was a building and servicing officer, responsible for estimating and planning electrical works.
8.               Mr Quick left Commonwealth employment in 1980 and,…

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 Quick and Repatriation Commission

Details

AGLC: Quick and Repatriation Commission [2011] AATA 167
Case: [2011] AATA 167
Decision Date: 14 March 2011

CaseChat Overview and Summary

In the Federal Court of Australia, Quick sought to overturn a decision by the Repatriation Commission that had refused his application for a special rate of pension on the basis of his war-caused post-traumatic stress disorder. Quick argued that he satisfied the criteria set out in section 24(1)(c) of the relevant legislation, namely that his ability to undertake remunerative work was prevented by his condition. The court was required to decide whether Quick had genuinely ceased work due to his PTSD, and whether he had genuinely sought to engage in remunerative work.

The court considered evidence about Quick’s work history, his efforts to find employment, and the medical evidence regarding his condition. It found that Quick had not been genuinely prevented from continuing to undertake remunerative work by his PTSD alone, and that he had ceased work for reasons other than his PTSD. The court also found that Quick had not genuinely sought to engage in remunerative work, as his work trial did not amount to such a genuine effort. The court held that the Commission's decision was open on the material before it and affirmed the decision under review.

The court’s decision highlights the importance of meeting the criteria for a special rate of pension and the need for veterans to genuinely seek to engage in remunerative work. The court’s findings in this case may have implications for future applications for veterans’ entitlements based on PTSD.

Orders

Orders of the court

The decision under review is affirmed.

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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14 March 2011	Senior Member Jill Toohey Dr Maxwell Thorpe, Member
Introduction