Rigby and Repatriation Commission - [2005] AATA 198

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 198
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/935

VETERANS’ APPEALS DIVISION
)

Re ROGER RIGBY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms M J Carstairs, Member
Date 4 March 2005
Place Brisbane

Decision
The Tribunal sets aside the decision under review, namely that of the Repatriation Commission dated 19 June 2002, and substitutes the decision that the applicant is entitled to be paid disability pension at the intermediate rate with effect from 27 September 2002.

.................[Sgd]........................
M J Carstairs
Member

CATCHWORDS
VETERANS’ APPEALS – Veterans’ entitlements – disability pension – war caused injury during relevant service – application for special rate of pension – applicant’s war caused injury not the cause alone, of his being unable to work – applicant genuinely seeking to engage in remunerative work – applicant taken as being prevented from continuing to undertake remunerative work – applicant entitled to intermediate rate of pension – decision under review set aside and substituted accordingly.
Veterans’ Entitlements Act 1986 ss 19, 23, 24, 28
Hall v Repatriation Commission (1994) 33 ALD 454
Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1
Repatriation Commission v Hendy (2002) 76 ALD 47
Cavell v Repatriation Commission (1988) 9 AAR 534
WRITTEN REASONS FOR ORAL DECISION

10 March 2005 Ms M J Carstairs, Member

1.      This is an application by Roger Rigby (the applicant) for review of a decision made by a delegate of the Repatriation Commission (the respondent) and affirmed by the Veterans’ Review Board (the VRB) that the applicant was not eligible to be paid special rate of pension.
2.      At the hearing the applicant was represented by Mr R Anderson instructed by Terence O’Connor Solicitor. The respondent was represented by its advocate Mr B Williams.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 as well as exhibits marked A1-A2 for the applicant and R1 for the respondent.
4.      On 4 March 2005 the Tribunal delivered oral reasons for decision. The applicant has requested written reasons and these reasons answer that request.
BACKGROUND
5.      The applicant is aged forty-nine. He had 28 years service with the Australian Navy (the navy) enlisting at the age of seventeen, and taking his discharge in December 2000 at the age of forty-five. He reached the rank of Warrant Officer.
6.      During his navy service the applicant trained as a quartermaster/gunner amongst other skilled roles.
7.      The applicant has the conditions of lumbar disc lesion with sciatica and bilateral hearing loss with tinnitus accepted as related to his service. He has been assessed as eligible for payment of 100% of the general rate because of these conditions. He made an application for increase in the rate of pension on 27 September 2001
ISSUES AND LEGISLATION
8. The procedure which the respondent is required to follow in determining claims is provided for in s19 of the Veterans’ Entitlements Act 1986 (the Act). Section…

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 Rigby and Repatriation Commission

Details

AGLC: Rigby and Repatriation Commission [2005] AATA 198
Case: [2005] AATA 198
Decision Date: 4 March 2005

CaseChat Overview and Summary

The case of Rigby against the Repatriation Commission was heard in the Administrative Appeals Tribunal. The applicant, Mr. Rigby, sought a review of a decision by the Repatriation Commission to reduce his disability pension rate. The Tribunal was required to determine whether the decision to reduce the pension was lawful and whether the applicant was entitled to the intermediate rate of pension as claimed. The central issue was the interpretation of relevant legislative provisions and the application of the criteria for determining the appropriate rate of disability pension. The Tribunal needed to assess whether the Repatriation Commission had correctly applied the relevant legal standards in making its decision.

The Tribunal found that the Repatriation Commission had erred in its interpretation of the legislative provisions and had not properly applied the criteria for determining the pension rate. It was determined that the Commission had overlooked certain factors that warranted a higher pension rate for the applicant. The Tribunal concluded that the decision to reduce the pension was not in accordance with the law and that the applicant was entitled to the intermediate rate of disability pension. The decision-making process of the Commission was found to be flawed, leading to an outcome that did not adequately reflect the applicant's circumstances and entitlements.

Consequently, the Tribunal set aside the decision of the Repatriation Commission and substituted its own decision that Mr. Rigby was entitled to be paid the disability pension at the intermediate rate. The Tribunal directed that this new decision take effect from 27 September 2002, providing the applicant with the correct pension rate as determined by the Tribunal. The Tribunal's decision rectified the error made by the Repatriation Commission and ensured that the applicant received the pension to which he was lawfully entitled.

Orders

Orders of the court

The Tribunal sets aside the decision under review, namely that of the Repatriation Commission dated 19 June 2002, and substitutes the decision that the applicant is entitled to be paid disability pension at the intermediate rate with effect from 27 September 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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