ROBERT RETROT and REPATRIATION COMMISSION - [2010] AATA 87

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 87
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0949

VETERANS’ APPEALS DIVISION )

Re ROBERT RETROT

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal M J Carstairs, Senior Member
Date5 February 2010
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

................[sgd]..............................
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – special rate of pension – remunerative work – whether prevented from continuing remunerative work – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth), ss 19, 24
Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 171 ALR 131
Repatriation Commission v Hendy (2002) 76 ALD 47
Peacock v Repatriation Commission (2004) 40 AAR 143
REASONS FOR DECISION

5 February 2010 M J Carstairs, Senior Member

1.      Mr Robert Retrot was called up for National Service with the Australian Army from 1966 to 1968, and had operational service in Vietnam between 1967 and 1968. Prior to his Army service, Mr Retrot had joined the Queensland Police Force, and, essentially, resumed that employment until taking his retirement in 2005 at the age 60; the compulsory age for retirement.
2.      In 2007, Mr Retrot lodged an application for special rate of pension, a rate available to veterans whose war-caused injuries prevent them from working, if they can establish that they have lost earnings that they otherwise would have had, absent war-caused disabilities.
3.      Mr Retrot maintains that his war-caused disabilities – post traumatic stress disorder and lumbar spondylosis being the main ones affecting employment – prevented him from further engaging in remunerative work. The respondent does not agree. The respondent maintains there were other reasons to explain why Mr Retrot was no longer undertaking remunerative work.
BACKGROUND
4.      Mr Retrot joined the Queensland Police Force as a cadet in 1962. In 1965, he was sworn in as a constable and after three months, was transferred to the Innisfail Police Station. In 1966, Mr Retrot was called up for National Service. He served in Vietnam as a “gunner/radar operator”.
5.      After his Vietnam service, Mr Retrot resumed work in the Police Force, apart from a brief period in 1970-71. After re-joining in 1971, Mr Retrot gradually moved from general policing to more senior corporate roles in the service. He undertook tertiary studies relevant to senior management. Mr Retrot was promoted to Inspector in 1990. He was then appointed Regional Operations Coordinator in Rockhampton at the rank of Chief Superintendent in 1999. Mr Retrot acted in the role of Assistant Commissioner intermittently between 2000 and 2004. He was awarded the Australian Police Medal in 2004 in recognition of his nearly 40 year’s distinguished service to the Queensland Police Service.
6.      Mr Retrot retired from the Police Service in 2005 at the age of sixty, having taken an extended period of long service leave on half pay from July 2004 to December 2005. Mr Retrot has not been in paid employment since…

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: ROBERT RETROT and REPATRIATION COMMISSION [2010] AATA 87
Case: [2010] AATA 87
Decision Date: 5 February 2010

CaseChat Overview and Summary

Robert Retrot sought a review of a decision by the Repatriation Commission regarding his eligibility for a special rate of pension under the Veterans' Entitlements Act 1986. The crux of the dispute was whether Mr Retrot was prevented from continuing remunerative work due to a service-connected disability. The matter was heard in the Administrative Appeals Tribunal (AAT).

The legal issues before the Tribunal involved interpreting the relevant provisions of the Veterans' Entitlements Act, particularly sections 19 and 24, in the context of Mr Retrot's circumstances. The Tribunal had to determine whether Mr Retrot's service-connected disability constituted a barrier to his ability to engage in remunerative work. The cases of Cavell v Repatriation Commission, Flentjar v Repatriation Commission, Forbes v Repatriation Commission, Repatriation Commission v Hendy, and Peacock v Repatriation Commission provided relevant precedents for the interpretation of the statutory provisions and the concept of a barrier to employment.

The Tribunal found that Mr Retrot had not established that his service-connected disability prevented him from continuing remunerative work. The Tribunal noted that while Mr Retrot had a disability, he had not demonstrated that this disability was the sole or primary reason for his inability to find or maintain employment. The Tribunal also considered the evidence regarding Mr Retrot's efforts to find work and his capacity to perform certain types of employment. Ultimately, the Tribunal concluded that the decision of the Repatriation Commission was supported by the evidence and affirmed the decision under review.

No further orders were made by the Tribunal.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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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