Rendell v Repatriation Commission

Case [2001] FCA 1881

FEDERAL COURT OF AUSTRALIA

Rendell v Repatriation Commission [2001] FCA 1881

VETERANS' AFFAIRS - veteran's entitlement - rate of disability pension - applicant with accepted war-caused conditions - whether war-caused conditions alone rendered applicant incapable of undertaking remunerative work - whether applicant eligible for Special (Totally and Permanently Incapacitated) Rate of Pension - whether Tribunal correctly stated the law and adequately set out its reasons

Veterans' Entitlements Act 1986 (Cth) s 24
Administrative Appeals Tribunal Act 1975 (Cth) s 44, s 43

Brown v Repatriation Commission (1985) 60 ALR 289
Waterford v The Commonwealth  (1987) 71 ALR 673

GARY ALAN RENDELL v REPATRIATION COMMISSION
W67 OF 2001

FRENCH J
21 DECEMBER 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W67 OF 2001

On Appeal from the Administrative Appeals Tribunal constituted by Mr RD Fayle, Senior Member;  Brigadier RDF Lloyd, Member; Dr Y Haslam, Member.

BETWEEN:

GARY ALAN RENDELL
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

FRENCH J

DATE OF ORDER:

21 DECEMBER 2001

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The applicant to pay the respondent's costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W67 OF 2001

On Appeal from the Administrative Appeals Tribunal constituted by Mr RD Fayle, Senior Member;  Brigadier RDF Lloyd, Member; Dr Y Haslam, Member.

BETWEEN:

GARY ALAN RENDELL
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

FRENCH J

DATE:

21 DECEMBER 2001

PLACE:

PERTH

REASONS FOR JUDGMENT

Introduction

  1. Gary Alan Rendell, a Vietnam veteran, appeals against a decision of the Administrative Appeals Tribunal refusing to increase the rate of his Service Pension from the General to the Special Rate. The appeal raises questions about the construction of s 24 of the Veterans' Entitlements Act 1986 which lays down the conditions for the payment of Service Pensions at the Special Rate.

    Factual Background

  2. Gary Alan Rendell was born on 25 August 1945.  He left school at age 16 having completed the second year of his high school education.  On 4 February 1964 he enlisted in the Australian Army.  He served in the army until February 1970 when he was discharged.  During that time he saw operational service in Sarawak, from 25 April 1966 to 20 August 1966, and in Vietnam from 21 May 1968 to 21 May 1969.  Following his discharge he held a variety of jobs in Queensland and in Western Australia from 1973 to 1980.  He worked variously at an industrial plant and as a laboratory tester and plant manager at Pioneer Concrete in Queensland and subsequently at Pioneer Concrete in Collie in Western Australia.  From 1986 to 1988, he worked as a cleaner in a shopping centre at Armadale and from 1988 to 1990 operated a sub-franchise for Crystal Soft Drinks.  Mr Rendell ceased fulltime work in June 1990 citing as the reasons for his inability to continue working his "sore neck, shoulders…

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AGLC
Rendell v Repatriation Commission [2001] FCA 1881
Case
[2001] FCA 1881
Decision Date

CaseChat Overview and Summary

In the case of Rendell v Repatriation Commission, the appellant, Gary Alan Rendell, a Vietnam veteran, appealed against a decision of the Administrative Appeals Tribunal which had refused to increase the rate of his Service Pension from the General to the Special Rate. The case required the court to determine the interpretation of s 24 of the Veterans' Entitlements Act 1986, which sets out the conditions for the payment of Service Pensions at the Special Rate. The legal issues included whether the Tribunal correctly determined that alcohol abuse contributed to Rendell's incapacity and whether the Tribunal appropriately applied the ameliorating provisions of s 24(2)(b) to s 24(1)(c). The court examined the evidence presented and the reasoning of the Tribunal in reaching its decision.

The court found that the Tribunal did not err in concluding that alcohol abuse contributed to Rendell's incapacity, as there was evidence to support this finding. The court further held that the Tribunal appropriately applied the ameliorating provisions of s 24(2)(b) to s 24(1)(c). The court noted that the Tribunal's determination was based on the correct interpretation of the relevant sections of the Act and that the Tribunal had adequately considered the evidence and arguments presented by both parties. The court dismissed the appeal and ordered that the appellant pay the respondent's costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The applicant to pay the respondent's costs of the appeal.

Background

Background to the litigation

Gary Alan Rendell, a Vietnam veteran, appeals against a decision of the Administrative Appeals Tribunal refusing to increase the rate of his Service Pension from the General to the Special Rate. The appeal raises questions about the construction of s 24 of the Veterans' Entitlements Act 1986 which lays down the conditions for the payment of Service Pensions at the Special Rate.Factual Background Gary Alan Rendell was born on 25 August 1945. He left school at age 16 having completed the second year of his high school education. On 4 February 1964 he enlisted in the Australian Army. He served in the army until February 1970 when he was discharged. During that time he saw operational service in Sarawak, from 25 April 1966 to 20 August 1966, and in Vietnam from 21 May 1968 to 21 May 1969. Following his discharge he held a variety of jobs in Queensland and in Western Australia from 1973 to 1980. He worked variously at an industrial plant and as a laboratory tester and plant manager at Pioneer Concrete in Queensland and subsequently at Pioneer Concrete in Collie in Western Australia. From 1986 to 1988, he worked as a cleaner in a shopping centre at Armadale and from 1988 to 1990 operated a sub-franchise for Crystal Soft Drinks. Mr Rendell ceased fulltime work in June 1990 citing as the reasons for his inability to continue working his "sore neck, shoulders and knees, blocked ears and prickling back". Between February and June 1991 he worked part time as a paving contractor with N & A Allpike, but found even that employment too strenuous. It appears from a summary of events attached to the s 37 statement and documents submitted to the Administrative Appeals Tribunal, that Mr Rendell was in receipt of a Service Pension at fifty per cent of the General Rate from 8 August 1984. This was increased to eighty per cent of the General Rate from 16 January 1985. The record is not clear but it appears that the conditions in respect of which the pension was payable included ischaemic heart disease. On 2 August 1990, Mr Rendell made a further application for a Service Pension on the basis of permanent incapacity derived from additional conditions. The conditions he cited were as follows: · Anxiety - commenced 1970· Back rash - commenced 1970· Blocked ears and dizziness - commenced December 1989· Stiff neck and jaw muscles - commenced 1989· Sore knees and joints He submitted that his conditions caused him to suffer loss of balance, pins and needles on his back during hot weather and dizziness making it hard for him to walk and turn his head. He concurrently applied to increase the rate of pension payable to him. On 7 September 1990, a delegate of the Repatriation Commission determined that Mr Rendell was permanently incapacitated for Service Pension purposes as defined by the Veterans' Entitlements Act 1986 s 39(6)(1). This assessment appears to have been based on a combination of the ischaemic heart disease and chronic anxiety state suffered by Mr Rendell. A further determination was made on 30 January 1991 by a delegate of the Repatriation Commission that his pension be payable at ninety per cent of the General Rate with effect from 13 August 1990. Ischaemic heart disease was again determined to be a war-caused disease/injury within the meaning of s 9 of the Veterans' Entitlements Act with effect from 13 August 1990. Claims for pension in respect of the skin conditions, cholinergic urticaria and keratosis pilaris, were refused. These were determined not to be war-caused.

Evidence

Evidence Before The Court

The grounds of appeal are as set out in a substituted notice of appeal accepted at the hearing on 21 November 2001. They are as follows:"a)The Tribunal erred in law in finding that the applicant's incapacity to engage in remunerative work was contributed to by the disease of alcohol abuse: i.When there was no evidence before the Tribunal to support that finding; ii.Alternatively, the Tribunal relied on its own information concerning the disease of alcohol abuse and its effects without disclosing that information to the parties; iii.Alternatively, the Tribunal failed to apply the relevant date to determine whether the Applicant met the criteria to be eligible for the pension at the special rate, namely the date of the application to the primary decision-maker; iv.Alternatively, the Tribunal failed to comply with s43(2B) of the Administrative Appeals Tribunal Act in that it (sic) to disclose its reasoning process in determining that the Applicant's "tendency to over-indulge in alcohol…is an appropriately significant factor in his employability and ability to work".b)The Tribunal erred in law: i.In failing to apply the ameliorating provisions of s 24(2)(b) when applying the provisions of s24(1)(c); ii.Alternatively, the Tribunal failed to comply with s43(2B) of the Administrative Appeals Tribunal Act in that it (sic) to disclose its reasoning process in applying the provisions of s 24(2) to the provisions of s24(1)(c).c)The Tribunal failed to consider and determine whether, but for the applicant's PTSD, the applicant would be continuing to seek to engage in remunerative work and whether the applicant's PTSD was the substantial cause of his inability to obtain remunerative work in which to engage. d)To the extent that the Tribunal determined that "remunerative work" meant in relation to the applicant his business of running a soft drink franchise, the Tribunal erred in law as to the meaning of the phrase "remunerative work" in s24(1)(c).e)The Tribunal made its decision only by reference to its determination of the reasons that the applicant had ceased his business of a franchise soft drink distributor. The Tribunal failed to consider and determine the reasons that the applicant ceased his subsequent work as a paving contractor for N & A Allpike. f)The Tribunal erred in law in failing to make a finding as to the "remunerative work that the (applicant) was undertaking" within the meaning of s24(1)(c) of the Act, when determining the reasons that the applicant was prevented from continuing to undertake remunerative work and the Tribunal thereby failed to give adequate reasons for its decision."No Evidence of Alcohol Abuse Contributing to Incapacity The Tribunal found that Mr Rendell's alcohol abuse condition was a distinct disability and not to be regarded as war-caused at the date of the claim. It then said: "58. As to the effect of this condition on the applicant's ability to undertake remunerative work, the evidence before the Tribunal is both unclear and somewhat contradictory. However, on careful consideration, the Tribunal finds that the applicant's tendency to over-indulge in alcohol, as portrayed in his evidence and also the evidence of Dr Kay before he chose to amend it at the hearing, is an appropriately significant factor in his employability and ability to work."

Decision

Reasons for decision

FRENCH J
The liability of the Commonwealth to pay pensions for defence caused injury or disease is established by s 70 of the Veterans' Entitlements Act 1986. The Commission is given the responsibility under s 21A of the Act to determine the degree of incapacity of veterans from war-caused injury or war-caused disease or both, according to the provisions of the approved Guides of Assessment of Rates of Veterans Pensions. The degree of incapacity is determined as ten per cent or a multiple of ten per cent, but not exceeding one hundred per cent. Relevantly for present purposes the criteria for the grant of the Special Rate of pension are set out in s 24. That section provides: "24(1) This section applies to a veteran if: (aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and (aab)the veteran had not yet turned 65 when the claim or application was made; and (a)either: (i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and (b)the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and (c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and(d)section 25 does not apply to the veteran.(2)For the purpose of paragraph (1)(c):(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if: (i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and (b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking."The Tribunal's Decision

Ratio Decidendi

Legal Principle Established

Established by: FRENCH J

Full text does not contain this section.