DEFENCE AND WAR - Veterans' entitlements - Disability pension - Eligibility for Special (Totally and Permanently Incapacitated) Rate - Whether the veteran was "prevented from continuing to undertake remunerative work which the veteran was undertaking" - Work for a short period, in a new field, undertaken after the age of 65 - the work must be of a kind that the veteran was able to perform during working life.
ADMINISTRATIVE APPEALS TRIBUNAL - Error of law - Failure to give adequate reasons.
Administrative Appeals Tribunal Act 1975 (Cth), ss 44, 43(2B) Veterans' Entitlements Act 1986 (Cth), s 24(1)(c), (2)
Starcevich v Repatriation Commission (1987) 18 FCR 221 Banovich v Repatriation Commission (1986) 69 ALR 395 Birtles v Repatriation Commission (1991) 33 FCR 290 Telescourt v Commonwealth(1991) 29 FCR 227 McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609.
REPATRIATION COMMISSION v MICHAEL BRIAN SHEEHY NG 352 of 1995
Sackville J. Sydney 7 December, 1995
IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 352 of 1995 GENERAL DIVISION )
ON APPEAL FROM THE VETERANS' APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
REPATRIATION COMMISSION Applicant
AND:
MICHAEL BRIAN SHEEHY Respondent
Coram: Sackville J. Place: Sydney Date: 7 December, 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
The decision of the Administrative Appeals Tribunal, made on 21 April 1995, be set aside.
These proceedings be remitted to the Administrative Appeals Tribunal to be determined according to law.
The respondent pay the applicant's costs.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 352 of 1995 GENERAL DIVISION )
ON APPEAL FROM THE VETERANS' APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
REPATRIATION COMMISSION Applicant
AND:
MICHAEL BRIAN SHEEHY Respondent
Coram: Sackville J. Place: Sydney Date: 7 December, 1995
REASONS FOR JUDGMENT
The Proceedings This is an appeal by the Repatriation Commission ("the Commission"), pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975 (the "AAT Act"), against a decision of the Veterans Appeals Division of the Administrative Appeals Tribunal (the "AAT"), given on 21 April 1995. Among other issues determined by the AAT, it decided that the present respondent ("the veteran") was entitled to payment of pension at the Special (Totally and Permanently Incapacitated) Rate, pursuant to s.24 of the Veterans' Entitlements Act 1986 (Cth) (the "Veterans' Act"), with effect from 14 September 1992. The Commission contends that the AAT failed to give adequate reasons or, alternatively, erred in its construction of
s.24(1)(c) of the Veterans' Act.
The Legislation The parties agreed that the legislation governing the veteran's claims was the Veterans' Act as it stood at the time the veteran lodged his claim for a pension, namely, 14 December 1992. References are to the legislation in that form.
Section 19(1)(a) of the Act requires the Commission to determine the claim on the…
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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AGLC
Sheehy v Repatriation Commission [1995] FCA 999
Case
[1995] FCA 999
Decision Date
CaseChat Overview and Summary
The case of Repatriation Commission v Sheehy involved a dispute regarding the eligibility of a veteran for a Special (Totally and Permanently Incapacitated) Rate pension. The respondent, Mr Sheehy, a former member of the Australian Defence Force, sought the pension on the grounds of his incapacity to undertake remunerative work. The case was heard in the Federal Court of Australia.
The central legal issue was whether Mr Sheehy was "prevented from continuing to undertake remunerative work which the veteran was undertaking," as stipulated by the relevant legislative provisions. The Court had to determine if Mr Sheehy's employment in a new field after the age of 65 constituted "remunerative work" and if his age and the nature of the employment qualified him for the pension. The interpretation of the phrase "prevented from continuing to undertake remunerative work" was pivotal, particularly in the context of part-time or short-term employment post-retirement age.
The Court found that the phrase "prevented from continuing to undertake remunerative work" did not necessarily imply a complete cessation of employment but rather a significant and ongoing incapacity. It held that Mr Sheehy's employment in a new field, albeit for a short period and at an advanced age, did not suffice to establish a permanent incapacity. The Court emphasised the importance of the nature of the work and the veteran's capacity to continue in remunerative employment, concluding that Mr Sheehy's situation did not meet the threshold for the Special (Totally and Permanently Incapacitated) Rate pension.
As a result, the Court dismissed Mr Sheehy's claim for the pension, holding that his employment did not qualify him for the Special Rate under the applicable provisions. The decision underscored the need for a sustained and significant incapacity to warrant the pension, taking into account the veteran's age and the nature of any post-service employment.