Ralph and Repatriation Commission - [2013] AATA 948

[2013] AATA 948

Division VETERANS' APPEALS DIVISION

File Numbers

2010/3627

Re

Desmond Francis Ralph

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Regina Perton, Member

Date 24 December 2013

Place Melbourne
The Tribunal affirms the decision under review.
...........................[sgd].............................................
Regina Perton, Member
VETERANS’ APPEALS - pension at special rate – whether war caused conditions alone cause of inability to work – claim lodged shortly after applicant’s 65^th birthday – whether applicant still working after 65^th birthday – whether 10 years of work in same field as employee or contractor - decision under review affirmed
Veterans’ Entitlements Act 1986 sections 24(1)(a), (b), 24 (2A)
Grant v Repatriation Commission [1999] FCA 1629
Ralph and Repatriation Commission [2011] AATA 881
REASONS FOR DECISION
Regina Perton, Member
24 December 2013

Desmond Francis Ralph, who is now 69 years old, served with the Australian Army (the Army) from 1966 to 1971. His service included operational service in Vietnam. Mr Ralph currently receives a service disability pension at 100 per cent of the general rate. He suffers from multiple medical conditions, of which post traumatic stress disorder (PTSD), non-Hodgkin’s lymphoma, alcohol dependence, hypertension and ischaemic heart disease have been accepted by the Repatriation Commission (the Commission) as having been war-caused.
Mr Ralph has applied for a special rate pension, which is a higher rate of pension paid to a person who is unable to work due to his accepted war caused disabilities alone. Mr Ralph, with the help of an RSL advocate, commenced preparing his claim some weeks before his 65^th birthday. The Commission received the claim for an increase in pension on 1 May 2009. This was eight days after Mr Ralph’s 65^th birthday. Mr Ralph, through his solicitor, contended that his claim should have been deemed to have been received prior to his 65^th birthday.
There are differences in the statutory requirements depending on whether a claim is lodged before or after a veteran’s 65^th birthday. In his claim, Mr Ralph stated that he had stopped working before his 65^th birthday due solely to his accepted war-caused conditions.
The Commission rejected Mr Ralph’s application for special rate on 28 July 2009 because it determined that his application was lodged on 1 May 2009 after his 65^th birthday. This impacted on his eligibility given Mr Ralph’s evidence that he had stopped working before that crucial birthday. The Veterans’ Review Board (VRB) affirmed the decision on 27 May 2010 on the same basis as the Commission. Mr Ralph applied to this Tribunal on 26 August 2010.
The Tribunal decided to make a finding on the date of lodgement of the claim prior to considering the other relevant provisions about special rate. On 14 November 2011 the Tribunal heard evidence and argument about the date of the claim. The Tribunal gave oral reasons setting out the reasons for its finding that the claim was lodged on 1 May 2009. Written reasons for decision were subsequently provided at Mr Ralph’s request…

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 Ralph and Repatriation Commission

Details

AGLC: Ralph and Repatriation Commission [2013] AATA 948
Case: [2013] AATA 948
Decision Date: 24 December 2013

CaseChat Overview and Summary

The case involved Mr. Ralph, who sought a pension at a special rate under the Act. The Tribunal found that he did not meet the criteria set out in section 24(2A)(g) of the Act, and therefore was not eligible for the pension. The Tribunal affirmed the decision under review. The central legal issue before the court was whether Mr. Ralph's work as a consultant for Jet Couriers Pty Ltd and Metrans Pty Ltd qualified him for the special pension rate. The court considered the nature of Mr. Ralph's contributions to the businesses, his hours worked, and the form of his remuneration. The court found that his work, while significant, did not meet the criteria for the special pension rate. The Tribunal concluded that Mr. Ralph's position as a consultant, and the flexible nature of his work, did not constitute employment that would qualify him for the special pension rate.

The court based its decision on the evidence provided by Mr. Ralph and other witnesses. Mr. Ralph's work as a consultant involved providing advice and guidance to the businesses, but it was not regular or continuous employment. The court also noted that his remuneration was in the form of a motor vehicle, rather than a salary or wage. The court found that these factors did not meet the criteria for the special pension rate under the Act. The Tribunal therefore affirmed the decision that Mr. Ralph was not eligible for the pension. The court's decision was based on a careful consideration of the evidence and the relevant provisions of the Act. The final orders of the Tribunal were that Mr. Ralph did not meet the criteria for the special pension rate, and that the decision under review was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Tribunal finds that Mr Ralph does not meet the criteria section 24(2A)(g) of the Act. He is therefore not eligible for payment of a pension at a special rate. DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

Mr Brett Ralph, Managing Director of Jet Couriers provided a statement dated 13 August 2012:Re: Request, Remuneration and Consulting Details for D. F. RalphEstablished in 1996, Jet Couriers Pty Ltd and Metrans Pty Ltd operate transport and couriers businesses in all Australian state capital cities, and some regional areas. With fifteen (15) operating depots, the businesses are highly reliant on the performance of branch managers and their staff. As a director and more particularly a consultant, Mr Ralph was an integral contributor to the performance of the businesses. Having over forty (40) years experience in most facets of transportation, his contacts, knowledge, and insights, are used in supporting staff development and decision-making.Mr Ralph’s unique position within Westgate Logistics enabled him the flexibility to provide consultation to Jet Couriers and Metrans, as, and when required. With an arms length approach, he was able to guide sales staff when to offer transport solutions to Westgate and their Blue Chip clients. This situation would occur when the task was beyond the scope of Westgate. (Courier and light truck supply)The hours worked by Mr Ralph between 1996 and 2007 were the equivalent of one and a half to two days per week, with his remuneration being the supply of a motor vehicle, usually a Holden Statesman. In a statement dated 18 February 2013, Mr Brett Ralph stated:Re: Employment Details Regarding D. F. RalphFurther to my letter dated August 12, 2012, I have been asked to provide detail for specific period years 2008 to 2012, regarding work performed by Des Ralph.While a Director and Secretary of Jet Couriers, Des also provided contract consultancy to the various branches of the business. This included Occupational Health and Safety Compliance, advising on staff remuneration, mentoring, and sales initiatives. Consultancy provided by Mr Ralph was from 2008 – 2012 inclusive....Des also liaised with Pellacano Construction in the design and construction of a new Head Office facility, located at South Dandenong.Remuneration for this work was the provision of a motor vehicle. In a letter dated 19 February 2013 addressed to his solicitor, Mr Ralph stated:Re: Clarification Operators of Jet Couriers / MetransBrett Ralph is the Managing Director and Shaun Ralph is the Operations Director of Jet Couriers and Metrans Pty Ltd.They are two of my four sons, and have held their positions since they started the companies.Apart from being the Chairman and Secretary, my involvement has been to provide the start-up funds in the form of a line-of-credit, for the businesses. Since re-paid in full with the deeds from the family home returned from the bank. My consultancy has always been to the management as distinct from client involvement. In a letter dated 18 June 2013, Mr Bogumil Zaleski, Div Manager Procurement & Supply Chain of Associated Retailers Ltd, stated that:During the period August 2011 and June 2012 I held the position of Operations Manager, Westgate Ports, located at Victoria Dock, Melbourne.Cube Logistics acquired Westgate Ports in late March 2012 and I remained with the business until June, 2012.Prior to the acquisition, during February and March, I took direction on Industrial and Key contractual matters from Mr Des Ralph, who was consulting to Westgate Ports.

Division	VETERANS' APPEALS DIVISION
File Numbers	2010/3627
Re	Desmond Francis Ralph
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Regina Perton, Member
Date	24 December 2013
Place	Melbourne