Small and Repatriation Commission - [2011] AATA 268

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 268
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5659

VETERANS' APPEALS DIVISION )

Re ADRIAN CYRIL SMALL

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal
Miss E A Shanahan, Member

Brigadier C. Ermert (Retd), Member

Date21 April 2011
PlaceMelbourne

Decision
The Tribunal affirms the decision under review.

.................[signed].................
Member

VETERANS' AFFAIRS – Application for special rate – involuntary redundancy – failure to satisfy s 24(1)(c) – decision affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 24, 120
Repatriation Commission v O'Brien (1985) 155 CLR 422
Langley v Repatriation Commission (1993) 115 ALR 51
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Van Heteren (2003) 75 ALD 703
Cadd v Repatriation Commission [2008] FCA 1024
REASONS FOR DECISION

21 April 2011 Miss E A Shanahan, Member
Brigadier C. Ermert (Retd), Member

1.      Mr Small has been receiving a Department of Veterans' Affairs (DVA) pension at 80 percent of the general rate. On 3 September 2007, he lodged a claim for an increase in pension rate. On 12 June 2009, the DVA increased Mr Small's rate of pension from 80 percent to 100 percent, backdated to 3 September 2007 but refused to increase it to the special rate.
2.      On 29 October 2009 the Veterans' Review Board (VRB) affirmed the decision. Mr Small applied to the Administrative Appeals Tribunal for review of the VRB decision on 26 November 2009.
3. The issue before the Tribunal is whether Mr Small satisfies s 24 of the Veterans’ Entitlements Act 1986 (the Act). In accordance with s 120(4) of the Act, the standard of proof the Tribunal must apply is one of reasonable satisfaction, which may also be expressed as on the balance of probabilities.
4.      Ms Ann McMahon of Counsel, instructed by Williams Winter Solicitors, represented Mr Small. Mr Ken Rudge, an advocate with DVA, represented the Respondent.
5.      The parties lodged the following documents:

Document Exhibit No.

Statement of Adrian Small dated 23 November 2009 A1

Statement of Adrian Small dated 10 May 2010 A2

Dr Waldron's clinical notes regarding Mr Small A3

Report of Mr G Grossbard dated 17 March 2010 A4

Report of Mr G Grossbard dated 20 May 2010 A5

Report of Dr Clayton Thomas dated 28 April 2010 A6

Documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T Documents) R1

Report of Professor Stark dated 31 January 2005 R2

Report of Professor Stark dated 17 July 2006 R3

Report of Professor Stark dated 9 March 2010 R4

Report of Professor Stark dated 6 August 2010 R5

Report of Professor Stark dated 12 October 2010 R6

Report of Dr Robyn Horsley dated 19 April 2010 R7

Employer's file with cover letter dated 17 February 2010 R8

Documents relating to the acceptance of the condition "Muscle Cramps (R) Leg" with cover letter dated 3 August 2010. R9

The applicant's service record with cover letter dated 3…

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 Small and Repatriation Commission

Details

AGLC: Small and Repatriation Commission [2011] AATA 268
Case: [2011] AATA 268
Decision Date: 21 April 2011

CaseChat Overview and Summary

In the case of Small and Repatriation Commission, the applicant sought to be granted a special rate under the Veterans' Entitlements Act 1986 (Cth). The matter was heard by the Administrative Appeals Tribunal, which had to determine whether the applicant's involuntary redundancy qualified as a reason for the special rate. The Repatriation Commission argued that the applicant did not satisfy section 24(1)(c) of the Act.

The legal issue before the Tribunal was whether the applicant's involuntary redundancy met the criteria for a special rate under section 24(1)(c) of the Veterans' Entitlements Act 1986. The Tribunal considered whether the applicant had been compulsorily retired due to a permanent physical or mental incapacity, which arose out of or in the course of service in the armed forces. The Tribunal also examined the circumstances of the applicant's redundancy and whether it was genuinely involuntary.

The Tribunal found that the applicant's involuntary redundancy did not meet the criteria for a special rate under section 24(1)(c) of the Veterans' Entitlements Act 1986. The Tribunal determined that the applicant's redundancy was not due to a permanent physical or mental incapacity arising out of or in the course of service. The Tribunal held that the applicant's redundancy was a genuine redundancy, and not due to the applicant's incapacity. As a result, the Tribunal affirmed the decision under review.

The Tribunal affirmed the decision of the Repatriation Commission, finding that the applicant did not satisfy section 24(1)(c) of the Veterans' Entitlements Act 1986. The Tribunal concluded that the applicant's involuntary redundancy did not meet the criteria for a special rate. The Tribunal's decision was affirmed, and the applicant's application for a special rate was dismissed.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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.

Document	Exhibit No.
Statement of Adrian Small dated 23 November 2009	A1
Statement of Adrian Small dated 10 May 2010	A2
Dr Waldron's clinical notes regarding Mr Small	A3
Report of Mr G Grossbard dated 17 March 2010	A4
Report of Mr G Grossbard dated 20 May 2010	A5
Report of Dr Clayton Thomas dated 28 April 2010	A6
Documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T Documents)	R1
Report of Professor Stark dated 31 January 2005	R2
Report of Professor Stark dated 17 July 2006	R3
Report of Professor Stark dated 9 March 2010	R4
Report of Professor Stark dated 6 August 2010	R5
Report of Professor Stark dated 12 October 2010	R6
Report of Dr Robyn Horsley dated 19 April 2010	R7
Employer's file with cover letter dated 17 February 2010	R8
Documents relating to the acceptance of the condition "Muscle Cramps (R) Leg" with cover letter dated 3 August 2010.	R9
The applicant's service record with cover letter dated 3…