Scott and Repatriation Commission - [2011] AATA 369

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 369
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4822

VETERANS' APPEALS DIVISION )

Re Raymond Scott

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal M D Allen, Senior Member
Date31 May 2011
PlaceSydney

Decision
The Decision under Review is AFFIRMED.

.....................[sgd]................
M D Allen, Senior Member

CATCHWORDS
VETERANS' ENTITLEMENTS: Application to have cervical spondylosis and cervical disc prolapse accepted as Defence caused. Not reasonably satisfied so caused.
Application for pension at Special Rate. Applicant under 65 years. Defence caused incapacity substantial cause of inability to engage in remunerative work, but Applicant not genuinely seeking to engage in remunerative work. Ameliorating provisions of paragraph 24(2)(b) Veterans' Entitlements Act therefore not applicable.
LEGISLATION
Veterans’ Entitlements Act 1986, S24, 69, 70, 120, 120B and 196B.
CASES
Repatriation Commission v Smith (1987) 15 FCR 327
Benjamin v Repatriation Commission (2001) 34 AAR 70
Lees v Repatriation Commission (2002) 36 AAR 484
Commissioner of Superannuation v Scott (1987) 71 ALR 408
REASONS FOR DECISION

31 May 2011 M D Allen, Senior Member

1.By application made 3 October 2009 the Applicant sought review of a decision of the Respondent that rejected his claim to have cervical spondylosis, intervertebral disc prolapse C5/6 and C6/7 and hiatus hernia recognised as Defence caused injuries and diseases and which increased the amount of disability pension payable to him to 100% of the General Rate of Pension.
2.At the commencement of the hearing in this matter the Applicant withdrew his claim in respect of hiatus hernia.
3.The issues before me were therefore:
(a)Whether the Applicant’s condition of cervical spondylosis and intervertebral disc prolapse were Defence caused; and
(b)Whether the Applicant satisfied the criteria for the grant of pension at the Special Rate.

4.The Applicant served in the Australian Regular Army from 28 January 1975 to 27 January 1987. That service constituted Defence service as defined pursuant to section 69 of the Veterans’ Entitlements Act 1986 (“VEA”).
5.Paragraph 70(1)(d) VEA provides that the Respondent is liable to pay pension to a former member of the Defence Forces who suffers incapacity as a result of a Defence caused injury or disease.
6.So far as injuries or disease caused or contributed to by Defence service are concerned Ss120(4) VEA mandates that the standard of proof is that of to the Tribunal’s “reasonable satisfaction”. As pointed out in Repatriation Commission v Smith (1987) 15 FCR 327 that equates to the civil standard of proof, namely proof on the balance of probabilities.
7.Section 120B VEA states that the Tribunal can only be reasonably satisfied that an injury or disease is Defence caused if a Statement of Principles (“SoP”), issued pursuant to Ss196B(3) or (12) VEA upholds the contention that the injury or disease is, on the balance of probabilities, connected with that service.
8.In Benjamin v Repatriation Commission (2001) 34 AAR 70, the Full Court of the Federal Court pointed out that the question of the diagnosis of any particular injury or disease suffered by 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 Scott and Repatriation Commission

Details

AGLC: Scott and Repatriation Commission [2011] AATA 369
Case: [2011] AATA 369
Decision Date: 31 May 2011

CaseChat Overview and Summary

Scott applied to the Commonwealth for a pension at a special rate on the basis that his incapacity was caused by his service in the Defence Force. The Repatriation Commission found that his incapacity was caused by his service, but that he was not genuinely seeking to engage in remunerative work. Therefore, the Commission did not grant him a pension at the special rate. Scott sought to review this decision.

The legal issue for the court was whether the Repatriation Commission was correct to find that Scott was not genuinely seeking to engage in remunerative work. The court held that the onus was on Scott to prove that he was genuinely seeking to engage in remunerative work, and that the Commission's finding that he was not was open on the evidence before it.

The court found that Scott had not demonstrated that he was genuinely seeking to engage in remunerative work, and that the Commission was therefore correct to find that the ameliorating provisions of the Veterans' Entitlements Act did not apply. The court held that the Decision under Review was correct and affirmed it.

The court did not make any further orders.

Orders

Orders of the court

The Decision under Review is AFFIRMED.

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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