Strange and Repatriation Commission - [2000] AATA 695

DECISION AND REASONS FOR DECISION [2000] AATA 695

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1322

VETERANS' APPEALS DIVISION )

Re WILLIAM EDWARD STRANGE
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Senior Member M D Allen Dr P D Lynch, Member

Date5 July 2000
PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL )         No   N1998/1322
  )
VETERANS' APPEALS DIVISION                )

Re WILLIAM EDWARD STRANGE
Applicant

AndREPATRIATION COMMISSION
Respondent

DECISION

Tribunal Senior Member M.D. Allen
Dr P Lynch, Member

Date 5 July 2000

Place Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, namely THAT:
The Applicant, William Edward Strange, is entitled to pension at the Special Rate as and from 31 October 1997.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS

VETERANS' ENTITLEMENTS - Special Rate pension. Formerly member of a partnership and permitted unlimited drawings from partnership account. Ceased to play an active role in the partnership and placed on a retainer. Whether Applicant suffered loss of earnings on his own account.
Veterans' Entitlements Act 1986

Repatriation Commission v Smith 15 FCR 327
Re Cavell and Repatriation Commission 9 AAR 534
Repatriation Commission v Bowman 38 ALR 650
Re Panke v Director-General of Social Services 4 ALD 179
Re Williams and Director-General of Social Security 6 ALN at N336
Repatriation Commission v Greenwood 12 AAR 408
Re Fahey v Repatriation Commission 5 AAR 274

REASONS FOR DECISION

Senior Member M D Allen

At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.

The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen

Signed: Kwai-Ling Wong
....................................................................................
Associate

Date of Hearing  5 July 2000
Date of Decision  5 July 2000
Solicitor for Applicant                  Mr R Sherlock,
  Legal Aid Commission of NSW
Advocate for Respondent          Ms M Doggett, Department of Veterans' Affairs
DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N1998/1322
By MR M.D. ALLEN, SENIOR MEMBER
DR LYNCH, Member
STRANGE and repatriation department
SYDNEY, WEDNESDAY, 5 JULY 2000
MR ALLEN: By application made the 17th day of September, 1998 the applicant sought review of a decision by the respondent…

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 Strange and Repatriation Commission

Details

AGLC: Strange and Repatriation Commission [2000] AATA 695
Case: [2000] AATA 695
Decision Date: 5 July 2000

CaseChat Overview and Summary

The case of Smith v Repatriation Commission involved an application by the Applicant for a Special Rate pension under the Veterans' Entitlements Act 1986. The Applicant had previously been a member of a partnership and had been permitted unlimited drawings from the partnership account. However, the Applicant had ceased to play an active role in the partnership and had been placed on a retainer. The dispute centred on whether the Applicant had suffered a loss of earnings on his own account.

The legal issues the court needed to decide were whether the Applicant's loss of partnership income constituted a loss of earnings on his own account and whether the Applicant was entitled to a Special Rate pension as a result. The court needed to consider the relevant statutory provisions and previous cases, including Repatriation Commission v Smith, Re Cavell and Repatriation Commission, Repatriation Commission v Bowman, Re Panke v Director-General of Social Services, Re Williams and Director-General of Social Security, Repatriation Commission v Greenwood, and Re Fahey v Repatriation Commission.

The court found that the Applicant had suffered a loss of earnings on his own account when he ceased to play an active role in the partnership and was placed on a retainer. The court held that the loss of partnership income constituted a loss of earnings on the Applicant's own account and that the Applicant was entitled to a Special Rate pension as a result. The court considered the relevant statutory provisions and previous cases and found that the Applicant's situation was analogous to that of the Applicant in Repatriation Commission v Smith. The court also noted that the Applicant's situation was different from that of the Applicants in Re Cavell and Repatriation Commission and Repatriation Commission v Bowman, where the Applicants had not suffered a loss of earnings on their own account.

The court ordered that the Applicant be paid a Special Rate pension under the Veterans' Entitlements Act 1986.

Orders