Smith and Repatriation Commission - [2003] AATA 121

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 121
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/203

VETERANS' APPEALS DIVISION )

Re William Kenneth Smith

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal Dr J D Campbell, Member
Date7 February 2003
PlaceSydney

Decision
The Tribunal determines that the decision under review be affirmed.

[SGD] Dr J D Campbell
Member
CATCHWORDS

VETERANS' ENTITLEMENTS - Special rate - issue of accepted disabilities alone preventing continuing to work - issue of non-accepted disabilities - issue of redundancy leading to cessation of work - issue of multiple psychiatric diagnoses
Veterans Entitlement Act 1986         ss 22, 23, 24, 28
Cavell v Repatriation Commission (1988) 9 AAR 534
Birtles v Repatriation Commission (1991) 33 FCR 290
Banovich v Repatriation Commission (1986) 69 ALR 395
Forbes v Repatriation Commission [2000] FCA 328
Flentjar v Repatriation Commission (1997) 48 ALD 1
REASONS FOR DECISION

7 February 2003   Dr J D Campbell, Member

1.      In this matter, Mr William Smith ("the Applicant") seeks a review of the decision of the Repatriation Commission (the Respondent") dated 2 June 2001 which increased the Applicant's disability pension to 100 per cent of the general rate with effect from 18 May 2001, but refused a disability pension payable at the Intermediate Rate, Special Rate or Extreme Disablement Allowance Rate. This decision was affirmed by the Veterans' Review Board ("VRB") on 21 January 2002.
2.      A hearing was held before the Tribunal in Sydney on 18 November 2002 at which the Applicant was represented by Mr N Dawson of Counsel. The Respondent was represented by Ms S Breuer, a solicitor from the Department of Veterans' Affairs. The Applicant presented oral evidence to the Tribunal.
3.      The following material was placed into evidence before the Tribunal:

Exhibit

Description

Date

T1-T14

Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975

A1

Applicant's Statement

11 June 2002

A2

Medical Report of Dr Burns

29 April 2002

A3

Applicant's Statement of Facts & Contentions

25 June 2002

A4

Redundancy Estimate from the Civilian Personnel Administration Centre (3 page document)

R1

Bundle of documents, commencing with letter to Ms Robertson dated 30 August 2002

R2

Bundle of documents from the Applicant's personnel file

R3

Medical Report of Dr Brown

20 June 2002

R4

Medical Report of Dr Herman

28 May 2002

R5

Respondent's Statement of Facts & Contentions

13 August 2002

issue
4.      The relevant issue in this matter is whether the Applicant is entitled to payment of Disability Support Pension ("DSP") at either the Intermediate or Special Rate or at the Extreme Disablement Allowance Rate.
legislation
5.      The relevant legislation is the Veterans' Entitlement Act 1986 ("the Act") and in particular sections 22, 23, 24, 28.
background
6.      The Applicant was born on 31 October 1937, served in the Australian Army between 1959 and 1968, with a period of operational service in Vietnam in 1967. The Applicant has the following disabilities accepted as war-caused diseases/injuries:
·     interigo
·     plantar wart right heel

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 Smith and Repatriation Commission

Details

AGLC: Smith and Repatriation Commission [2003] AATA 121
Case: [2003] AATA 121
Decision Date: 7 February 2003

CaseChat Overview and Summary

The matter before the Court involved Mr Smith and the Repatriation Commission, focusing on entitlements under the Veterans' Entitlements Act 1986. Mr Smith, a veteran, contested the Commission's decision to deny him certain benefits, specifically questioning whether his disabilities were accepted as preventing him from continuing work, whether non-accepted disabilities should be considered, if his redundancy was due to his disabilities, and if his multiple psychiatric diagnoses should be taken into account. The Court was required to interpret the relevant sections of the Veterans' Entitlements Act 1986, namely sections 22, 23, 24, and 28, alongside key precedents such as Cavell v Repatriation Commission, Birtles v Repatriation Commission, Banovich v Repatriation Commission, Forbes v Repatriation Commission, and Flentjar v Repatriation Commission.

The court addressed several legal issues, including whether Mr Smith's disabilities were sufficiently severe to prevent him from continuing his employment, whether non-accepted disabilities could influence the assessment of his entitlements, if his redundancy was due to his disabilities, and how to consider the impact of multiple psychiatric diagnoses. The central question was whether Mr Smith's conditions, as a whole, were so disabling that they prevented him from working, as required by the Act. The court also needed to determine whether the Commission's approach to Mr Smith's psychiatric diagnoses was consistent with previous rulings and statutory provisions.

After considering the evidence and the applicable legal framework, the court concluded that the Repatriation Commission's decision was correct. The Tribunal found that the disabilities accepted by the Commission alone were sufficient to prevent Mr Smith from continuing his work. The court further held that non-accepted disabilities and the redundancy did not alter the outcome. The Tribunal determined that the multiple psychiatric diagnoses did not collectively amount to an accepted disability under the Act. Consequently, the decision under review was affirmed.

The orders made by the Tribunal confirmed the Repatriation Commission's decision, upholding the denial of the benefits sought by Mr Smith. The Tribunal's decision stands, and Mr Smith's appeal was dismissed.

Orders

Orders of the court

The Tribunal determines that the decision under review be affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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VETERANS' APPEALS DIVISION		)
Re		William Kenneth Smith

Exhibit	Description	Date
T1-T14	Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1	Applicant's Statement	11 June 2002
A2	Medical Report of Dr Burns	29 April 2002
A3	Applicant's Statement of Facts & Contentions	25 June 2002
A4	Redundancy Estimate from the Civilian Personnel Administration Centre (3 page document)
R1	Bundle of documents, commencing with letter to Ms Robertson dated 30 August 2002
R2	Bundle of documents from the Applicant's personnel file
R3	Medical Report of Dr Brown	20 June 2002
R4	Medical Report of Dr Herman	28 May 2002
R5	Respondent's Statement of Facts & Contentions	13 August 2002