Schellhorn and Repatriation Commission - [2006] AATA 697

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 697
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1015

GENERAL ADMINISTRATIVE DIVISION )

Re JOACHIM SCHELLHORN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member R. Hunt and Member Dr I. Alexander
Date 11 August 2006
Place Sydney

Decision The decision under review is affirmed.
…………………………………..
Ms R. Hunt
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – disability pension – special rate of pension – incapacity from war-caused injury ‘alone’ did not prevent the veteran from undertaking remunerative work – incapacity not substantial cause of inability to obtain remunerative work – decision under review affirmed
Veterans’ Entitlements Act 1986 ss 19(5C), 19(9), 24(1)(c), 24(2)(a), 24(2)(b)
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47
Banovich v Repatriation Commission (1986) 69 ALR 395
Repatriation Commission v Buckingham [1996] FCA 37 Starcevich v Repatriation Commission (1987) 18 FCR 221
Magill v Repatriation Commission [2002] FCA 744
Hall v Repatriation Commission (1994) 33 ALD 454
Rehabilitation Commission v Braund (1991) 23 ALD 591
Conway v Repatriation Commission (2003) 37 AAR 461
Jackman v Repatriation Commission (unreported), FCA, Tamberlin J, 30 June 1997
Westfield Holdings v Adams [2001] NSWIRComm 293Leane v Repatriation Commission (2004) 81 ALD 625
Repatriation Commission v Buckingham [1996] FCA 37
11 August 2006
REASONS FOR DECISION

SUMMARY

1.      Mr Schellhorn, the applicant, is seeking review of a decision of the Veteran’s Review Board (VRB) rejecting his claim for an increased rate of disability pension. After considering the material before us, we are satisfied on the balance of probabilities that Mr Schellhorn has been correctly assessed at 100% of the General Rate of pension. We are not satisfied that Mr Schellhorn meets all the additional requirements for the special rate or intermediate rate of pension. This means that Mr Schellhorn’s claim has been unsuccessful and that the decision under review is affirmed. Our full reasons are set out below.
BACKGROUND
2.      Mr Schellhorn was born on 21 September 1945 in Berlin, Germany. In 1955 Mr Schellhorn’s family migrated to Australia. In 1961 Mr Schellhorn completed his Intermediate Certificate and then went on to do a 5 year apprenticeship as a technician with the Post-Master General’s Office, now Telstra.
3.      On 16 April 1968, Mr Schellhorn commenced operational service in Vietnam and he served there until 23 December 1968. During his service, Mr Schellhorn served with the Mechanical Engineers Air Squadron 3^rd Cavalry Regiment. Mr Schellhorn was a radio mechanic based at Nui-Dat. In civilian life, Mr Schellhorn was apprenticed to the Post mater General (PMG). On his return from duty in 1968, Mr Schellhorn resumed his employment with the PMG, which later became known as Telstra. He told the tribunal that, on returning to work, his duties were substantially the same as they had been before he left for his war service. Mr Schellhorn met his wife, Kay, while an apprentice and, following his return from Vietnam, he married her in…

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 Schellhorn and Repatriation Commission

Details

AGLC: Schellhorn and Repatriation Commission [2006] AATA 697
Case: [2006] AATA 697
Decision Date: 11 August 2006

CaseChat Overview and Summary

Schellhorn filed an appeal against a decision made by the Repatriation Commission regarding his eligibility for a special rate of pension. The Federal Court was tasked with determining whether the Commission's decision was lawful and correct. The central issue before the court was whether the appellant's incapacity from war-caused injuries was the substantial cause of his inability to obtain remunerative work, as required by section 19(9) of the Veterans’ Entitlements Act 1986.

The court examined the relevant statutory provisions and considered previous case law to interpret the meaning of "substantial cause" in the context of the Act. It held that the appellant's incapacity from war-caused injury alone did not prevent him from undertaking remunerative work, as he was capable of performing such work. The court found that there was no evidence to suggest that his incapacity was the substantial cause of his inability to obtain remunerative work. The decision of the Repatriation Commission was thus affirmed.

In summary, the court upheld the Commission's decision, finding that the appellant's incapacity from war-caused injury was not the substantial cause of his inability to obtain remunerative work. The decision under review was affirmed, and no further pension was payable to the appellant.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOACHIM SCHELLHORN