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REPATRIATION COMMISSION and THORPE

REPATRIATION COMMISSION and THORPE

Case [2011] AATA 491 15 July 2011

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CATCHWORDS – VETERANS’ ENTITLEMENTS – intermediate rate of pension – whether veteran must have ceased undertaking all remunerative work – identifying “remunerative work” under 23(1)(b) – may not be same as “remunerative work that the veteran was undertaking” under s 23(1)(c) – identification of incapacity for “undertaking remunerative work otherwise than on a part-time basis or intermittently” should be decided separately from issues under s 23(2) in relation to capacity and remunerative work undertaken - assessment of whether incapacity arising from war-caused condition alone prevents continuance of remunerative work under s 23(1(c) separate issue from assessment of whether veteran’s being so prevented has led to a loss of salary or wages or of earnings.

Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

Military Rehabilitation and Compensation Act 2004, s 2(1), item 2
Repatriation Legislation Amendment Bill 1985

Veterans’ Entitlements Act 1986 ss 5Q(1), 13(b) and (d), 13(6A), 14, 14(1) and (4), 17(1), (2) and (3), 18(1), 19(1)(a) and (b), (3) and (5A)(a), 19(5C), 19(5C)(a) and (b), 19(5F), 19(6), 20(1) and (2), 21A(1), (2) and (3), 22, 22(2), 23(1), 23(1)(aa), (aab), (b), (c) and (d), 23(2), (3A), (3B) and (6), 24, 24(1)(a), (b) and (c), 24(2) and (6), 24(2A) and (2B), 25, 25A, 28, 28(a), (b) and (c), 115D and 115D(1) and (7)
Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994

Guide to the Assessment of Rates of Veterans’ Pensions

Second Reading Speech to Veterans’ Entitlements Bill 1985 Hansard, House of Representatives, 16 October 1985 at 2180
Repatriation Legislation Amendment Bill 1985 Hansard, House of Representatives, 17 May 1985 at 2646-2647

DECISION AND REASONS FOR DECISION [2011] AATA 491

ADMINISTRATIVE APPEALS TRIBUNAL )

) 2009/5772

VETERANS’ APPEALS DIVISION )

Re:REPATRIATION COMMISSION

Applicant

And:PETER THORPE

Respondent

DECISION

Tribunal: Deputy President S A Forgie

Place: Melbourne

Date: 15 July 2011

Decision:The Tribunal:
1.sets aside the decision of…

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.

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Details

AGLC: REPATRIATION COMMISSION and THORPE [2011] AATA 491
Case: [2011] AATA 491
Decision Date: 15 July 2011

CaseChat Overview and Summary

In the case before the court, the Repatriation Commission was the respondent, and Thorpe was the applicant. Thorpe sought to determine the criteria for receiving an intermediate rate of pension under the relevant legislation, specifically focusing on whether a veteran must cease all remunerative work and the definition of “remunerative work” within the statute.

The court was tasked with interpreting the statutory provisions, particularly sections 23(1)(b) and 23(1)(c), to ascertain whether they referred to the same type of work. Additionally, the court had to examine the distinction between incapacity for undertaking remunerative work on a part-time or intermittent basis and the capacity to undertake remunerative work under section 23(2). The court was also required to decide whether the incapacity arising from a war-caused condition alone should prevent the continuation of remunerative work and whether this incapacity led to a loss of salary, wages, or earnings.

The court found that the terms “remunerative work” in sections 23(1)(b) and 23(1)(c) may not necessarily refer to the same type of work. It held that the identification of incapacity for undertaking remunerative work otherwise than on a part-time basis or intermittently should be decided separately from issues under section 23(2). Furthermore, the court determined that the assessment of whether the incapacity arising from a war-caused condition alone prevents the continuance of remunerative work under section 23(1)(c) is a distinct issue from assessing whether the veteran's being so prevented has led to a loss of salary, wages, or earnings.

The court's decision clarified the interpretation of the statutory provisions and provided guidance on the separate considerations required for determining eligibility for the intermediate rate of pension. The court’s final orders would be based on the interpretations and findings outlined in the judgment.

Orders