Re Holden and Repatriation Commission - [2009] AATA 735

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0949

VETERANS' APPEALS DIVISION )

Re TROY HOLDEN

Applicant

And

REPATRIATION COMMISSION

Respondent

CORRIGENDUM
TRIBUNAL:             Dr P McDermott, RFD, Senior Member
DATE:                      14 October 2009
PLACE:                   Brisbane

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
The first sentence of paragraph 40 of the Tribunal’s Reasons for Decision should read:
Mr Holden states that his orthopaedic conditions do not prevent him from engaging in remunerative employment, I do not accept his evidence.

....................................................
Senior Member

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] aata 735
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0949

VETERANS' APPEALS DIVISION )

Re TROY HOLDEN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member
Date24 September 2009
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

..................[Sgd]................
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – claim for special rate of pension – non war-caused conditions prevent applicant from undertaking relevant remunerative work – decision affirmed.
Veterans’ Entitlements Act 1986 (Cth), ss 19(9), 23(1)(c), 24(1)(a), 24(1)(b), 24(1)(c), 24 (2)(b), 119(1), 120(4), 120(6)
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Alexander (2003) 75 ALD 329
REASONS FOR DECISION

24 September 2009 Dr P McDermott, RFD, Senior Member

INTRODUCTION
1. Mr Troy Holden has lodged a claim for a pension at the special rate. He has the accepted disabilities of depressive disorder and anxiety disorder. The respondent has assessed the rate of pension payable to the veteran as 100% of the general rate. I have to decide whether Mr Holden is entitled to be paid a pension at the special rate.
MATTERS OF PROOF
2. This is an administrative proceeding, not a civil case where Mr Holden bears any onus of proof: see s 120(6) of the Veterans’ Entitlements Act 1986 (“the Act”). I am required under the Act to determine this application to my reasonable satisfaction: s 120(4). I am also required to make a decision in accordance with the substantial merits of the case: see s 119(1) of the Act.
OPERATIONAL SERVICE
3. I am satisfied that Mr Holden has operational service under the Act. This is because from 15 June 2001 until 24 June 2001 he served on HMAS Kanimbla in the Solomon Islands.
ISSUES
4. In order to be entitled to pension at the special rate, Mr Holden has to satisfy the requirements of s 24 of the Act.
5. The respondent has conceded that Mr Holden satisfies the requirements of s 24(1)(a) and (b) of the Act.
6. What is in issue in this application is whether Mr Holden satisfies s 24(1)(c) of the Act.
7. It does not, in my view, follow that if Mr Holden satisfies s 24(1)(b) of the Act, that he also satisfies s 24(1)(c) of the Act. The distinction between s 24(1)(b) and s 24(1)(c) was…

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 Re Holden and Repatriation Commission

Details

AGLC: Re Holden and Repatriation Commission [2009] aata 735
Case: [2009] AATA 735
Decision Date: 24 September 2009

CaseChat Overview and Summary

The matter before the court involved an applicant seeking a special rate of pension under the Veterans’ Entitlements Act 1986. The applicant, a veteran, argued that non war-caused conditions prevented them from undertaking relevant remunerative work, which would entitle them to the special rate of pension. The Repatriation Commission had previously denied the applicant's claim, a decision which the applicant sought to overturn. The case was heard and determined by the Tribunal.

The central legal issues revolved around the interpretation and application of various sections of the Veterans’ Entitlements Act 1986, specifically sections 19(9), 23(1)(c), 24(1)(a), 24(1)(b), 24(1)(c), 24(2)(b), 119(1), 120(4), and 120(6). The primary issue was whether the applicant’s non war-caused conditions sufficiently impeded their ability to engage in remunerative work to warrant the special rate of pension. The court needed to examine the legislative provisions and relevant case law, particularly Flentjar v Repatriation Commission and Repatriation Commission v Alexander, to resolve this issue.

The Tribunal carefully considered the statutory language and relevant precedents. It found that the statutory provisions did not automatically entitle the applicant to the special rate of pension merely because they had non war-caused conditions. Instead, the Tribunal determined that the applicant needed to demonstrate a direct causal link between the non war-caused conditions and their inability to undertake remunerative work. After reviewing the evidence, the Tribunal concluded that the applicant had not sufficiently established this causal link. Consequently, the Tribunal upheld the original decision of the Repatriation Commission denying the special rate of pension. The Tribunal's decision was affirmed, and no further appeal was allowed.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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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