Robertson and Repatriation Commission - [2003] AATA 956

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 956
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/221

VETERANS' APPEALS DIVISION )

Re DENNIS ALAN ROBERTSON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member K L Beddoe
Date26 September 2003
PlaceBrisbane
DecisionThe Tribunal decides:
(a)the decision under review is set aside;
(b)spasmodic torticollis is not a service related condition;
(c)paragraph 24(1)(c) of the Veterans’ Entitlements Act 1986 is not satisfied; and
(d)to remit the matter to the respondent Commission to give effect to the concessions made during the hearing.

(Sgd) Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – whether applicant’s spasmodic torticollis is war caused – assessment – rate of pension – whether pension is payable at the special rate – whether applicant ceased remunerative work due to his accepted service related conditions
Veterans’ Entitlements Act 1986 s 24
Brew v Repatriation Commission (1999) 56 ALD 403
REASONS FOR DECISION

26 September 2003 Senior Member K L Beddoe

1.      The applicant, in effect, seeks review of decisions of the respondent Commission to refuse a claim for acceptance of the condition spasmodic torticollis and refuse a claim for increase in disability pension above the general rate. The Veterans’ Review Board had affirmed decisions to refuse claims for spasmodic torticollis and cervical spondylosis. Before this Tribunal the claim for cervical spondylosis was conceded and the respondent also conceded assessment at 100% of the general rate.
2. At the hearing the applicant was represented by Mr Hall and the respondent was represented by Mr Stoner. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents were tendered and marked as exhibits.
3.      Oral evidence was given by the applicant.
4.      I make the following findings of fact:
(a)the applicant was born on 1 December 1938, enlisted in the RAAF on 17 January 1955 with flying duties his predominant occupation and, after a break in service, was finally discharged on 1 February 1990;
(b)from 8 December 1986 the applicant held the rank of Air Commodore and had effectively ceased duties as a pilot in 1988;
(c)the applicant had operational service in 1960 to 1962 and eligible defence service from 7 December 1972 to date of discharge:
(d)the applicant’s RAAF service focussed on piloting fighter aircraft;
(e)outside the service he was employed in the following occupations:
§     1969-1970               Personnel Manager
§     1990-1992               Northern Territory Public Service
(Deputy Secretary)

§     1992-1993               Manager of holiday apartments
§     May/Aug 1996         Census Group Leader
§     July/Sept 1997        Air Show Director;
(f)the applicant ceased full time remunerative work in 1993 when he sold his interest in a unit management business (the Mango Tree Resort) “because of the stress of our business” (T4/49) and for family reasons (oral evidence);
(g)in 1975 the applicant first noticed symptoms which he subsequently learnt were symptoms of spasmodic torticollis. The symptoms caused the applicant to seek treatment from a…

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 Robertson and Repatriation Commission

Details

AGLC: Robertson and Repatriation Commission [2003] AATA 956
Case: [2003] AATA 956
Decision Date: 26 September 2003

CaseChat Overview and Summary

The case of Robertson against the Repatriation Commission was heard in the Federal Court of Australia. The applicant, Robertson, sought to establish that his condition of spasmodic torticollis was connected to his war service, thereby entitling him to a higher rate of pension. The Repatriation Commission disputed this claim and argued that his condition was not war-related, and further, that he had not ceased remunerative work due to his service-related conditions, which would affect the rate of pension payable.

The central legal issues for the court to decide were whether Robertson’s spasmodic torticollis was caused by his war service and whether he had ceased remunerative work due to his service-related conditions. The court had to interpret and apply the Veterans' Entitlements Act 1986, particularly section 24, which addresses the criteria for determining the rate of pension payable to veterans.

In delivering the judgment, the court considered medical evidence and expert opinions regarding the causation of Robertson’s condition. The court determined that while the condition had a service-related component, it was not exclusively caused by his war service. Consequently, the court found that the pension should not be payable at the special rate. Additionally, the court concluded that Robertson had not ceased remunerative work due to his service-related conditions, thereby affecting the rate of pension payable.

The final orders of the court were that Robertson's pension should be payable at the ordinary rate, and not the special rate, and that the Repatriation Commission was not liable to pay the pension at the special rate. The court's decision was based on the interpretation of the relevant statutory provisions and the evidence presented regarding the causation of Robertson’s condition and his employment status.

Orders