Re Smith and Repatriation Commission

Case [2004] AATA 1223

Administrative

Appeals

Tribunal
 

DECISION AND REASONS FOR DECISION [2004] AATA 1223

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2003/192

VETERANS' APPEALS DIVISION )
Re PHILIP STEVEN SMITH

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President D G Jarvis

Date19 November 2004

PlaceAdelaide

Decision

The decision under review is set aside, and in place of that decision the Tribunal determines that the applicant is eligible for pension at the special rate payable pursuant to s 24 of the Veterans’ Entitlements Act 1986 (Cth) with effect from and including 24 May 2002.

D.G. Jarvis
  (Signed)
  Deputy President


ADMINISTRATIVE APPEALS TRIBUNAL    )
  )           No. S2003/192
VETERANS’ APPEALS DIVISION                  )

Re:     PHILIP STEVEN SMITH  

Applicant

And:   REPATRIATION COMMISSION

Respondent

CORRIGENDUM TO DECISION [2004] AATA 1223

TribunalDeputy President Jarvis

Date of Decision                19 November 2004

Date of Corrigendum       30 November 2004

PlaceAdelaide

Corrigendum:  

That the date “24 May 2002” appearing in the decision and in paragraph 48 of the reasons for decision be deleted and ‘24 February 2002’ be inserted in its place.

D G Jarvis
  (Signed)

Deputy President

CATCHWORDS

VETERANS’ ENTITLEMENTS – disability pension – rate of pension payable – special rate – unpaid work previously undertaken by applicant became paid work subsequently – applicant prevented by war-caused disease alone from continuing to undertake that work – applicant ceased to engage in remunerative work after his last paid employment – reason for ceasing last paid employment no longer operative – decision under review set aside.

Veterans’ Entitlement Act 1986 (Cth) s 24(1)(c) and s 24(2)(a)(i)

Flentjar v Repatriation Commission (1997) 48 ALD 1

Repatriation Commission v Smith (1987) 15 FCR 327

Banovich v Repatriation Commission (1986) 69 ALR 395

Doig v Repatriation Commission, Federal Court, 18 December 1996, 1106/96

Starcevich v Repatriation Commission (1987) 18 FCR 221

Repatriation Commission v Graham [2004] FCA 1287

Hill v Repatriation Commission [2004] FCA 832

Counsel and Repatriation Commission (2002) 122 FCR 476

Re Thatcher and Repatriation Commission [2004] AATA 519

Re Bertram and Repatriation Commission (AAT 2783, 29 July 1986)

DC Pearce and RS Geddes, Statutory Interpretation in Australia, 5th Ed, Butterworths, Australia, 2001, at [9.2] and [9.3]

Anderson v Repatriation Commission [2004] FCA 1009

Stuart and Repatriation Commission (1989) 17 ALD 678

Cavell v Repatriation Commission (1988) 9 AAR 534

Forbes v Repatriation Commission (2000) 101 FCR 50

Repatriation Commission v Hendy (2002) 76 ALD 47

Re Reilly and Repatriation Commission (1987) 12 ALD 533

Hall v Repatriation Commission (1994) 33 ALD 454

Re Hornery and Repatriation Commission (1998) 52 ALD 317

REASONS FOR DECISION

19 November2004   Deputy President Jarvis

1.      Philip Steven Smith enlisted in the Royal Australian Air Force on 16 May 1966 and was discharged on 17 May 1983.  He served in Vietnam from 4 June 1968 to 4 June 1969.  The Repatriation Commission has accepted that he has a number of war-caused or defence-caused disabilities, namely lumbar spondylosis, a cyst on his left knee, osteoarthritis of his big toes, bilateral sensorineural hearing loss and post- traumatic…

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AGLC
Re Smith and Repatriation Commission [2004] AATA 1223
Case
[2004] AATA 1223
Decision Date

CaseChat Overview and Summary

The case of Re Smith and Repatriation Commission was heard in the Federal Court of Australia and involved a dispute over the rate of disability pension payable to the applicant, Smith, under the Veterans’ Entitlements Act 1986 (Cth). Smith, a veteran, contended that he was entitled to a special rate pension because he was prevented from continuing his paid work due to a war-caused disease. The Repatriation Commission had previously determined that Smith was not eligible for the special rate pension. Smith appealed this decision, arguing that his inability to continue paid work was solely due to the war-caused disease, and therefore he should qualify for the special rate pension.

The primary legal issue before the court was whether Smith's cessation from paid employment, which occurred after his unpaid war-related work transitioned to paid employment, qualified him for the special rate pension under section 24 of the Veterans’ Entitlements Act 1986 (Cth). The court had to consider whether Smith's inability to continue in remunerative work was due to the war-caused disease alone and if the reason for ceasing his last paid employment was no longer operative. The court examined the statutory provisions, case law, and legislative intent to interpret the meaning of "inability to engage in remunerative work" and its connection to the war-caused disease.

In its decision, the Federal Court found that the Tribunal had erred in its interpretation of the statutory provisions. The court held that Smith's cessation from paid employment was directly attributable to his war-caused disease, and the reason for ceasing his last paid employment was no longer relevant. The court noted that Smith had been unable to continue his paid work solely because of his war-caused disease, and this qualified him for the special rate pension under the Act. The decision of the Tribunal was set aside, and the court determined that Smith was eligible for the special rate pension from 24 May 2002.

Orders

Orders of the court

The decision under review is set aside, and in place of that decision the Tribunal determines that the applicant is eligible for pension at the special rate payable pursuant to s 24 of the Veterans’ Entitlements Act 1986 (Cth) with effect from and including 24 May 2002.

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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