Strike and Repatriation Commission - [2006] AATA 606

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 606
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/491

VETERANS' APPEALS DIVISION )

Re WILLIAM LESLIE STRIKE AS LEGAL PERSONAL REPRESENTATIVE OF CLAUDE ARTHUR STRIKE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date 7 July 2006
PlaceBrisbane (Heard in Townsville)

Decision The decision under review is affirmed.
..............................................
Deputy President

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’ Entitlement Act 1986 s 24(1)(c), s 24(2)(b), s 126
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47
Magill v Repatriation Commission [2002] FCA 744
Hall v Repatriation Commission (1994) 33 ALD 454
Conway v Repatriation Commission (2003) 37 AAR 486
REASONS FOR DECISION

7 July 2006 Deputy President P E Hack SC

INTRODUCTION

1.Mr Claude Strike served in the Australian Regular Army between 1964 and 1981. He saw operational service in Borneo and South Vietnam.
2.On 27 September 2004 when he was aged 59 years Mr Strike made application for an increase in the disability pension paid to him under the Veterans’ Entitlements Act 1986 (the Act). Mr Strike applied for a pension at the special rate, that is, on the footing that he was totally and permanently incapacitated.
3.The claim was refused by the Commission and that decision was affirmed by the Veterans’ Review Board. Thereafter, Mr Strike sought a review of the decision in this Tribunal. In March 2006 Mr Strike died however his claim is preserved by operation of s 126 of the Act and his legal personal representative (Mr William Strike) is treated as the claimant.

THE ISSUES
4.Having regard to the various concessions that have been made before and during the hearing two issues fall to be determined. Stated shortly, they are,
·whether Mr Strike’s incapacity from war-caused conditions alone prevented him from working (the s 24(1)(c) issue); and
·whether the ameliorating provisions of s 24(2)(b) apply.

BACKGROUND
5.There was no dispute as to the facts. What follows is common ground. Mr Strike left school after Grade 7 and then entered the workforce. He pursued unskilled occupations until he joined the Army in 1964. He had two periods of army service between 1964 and 1981. After discharge he worked mainly with plant and equipment – backhoes, graders and trucks. From February 1984 to January 1997 he was employed by Comalco at Weipa, initially as a labourer, but gradually obtaining more skilled employment. Mr Strike’s statement makes reference to him having worked in the Comalco kaolin plant until it shut down operations in December 1996. It is not clear from the material the precise nature of the work undertaken by Mr Strike at that plant. I infer from its description as a plant…

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 Strike and Repatriation Commission

Details

AGLC: Strike and Repatriation Commission [2006] AATA 606
Case: [2006] AATA 606
Decision Date: 7 July 2006

CaseChat Overview and Summary

The case before the court involved a veteran who was seeking to have his disability pension rate increased. The veteran argued that his incapacity due to a war-caused injury prevented him from undertaking remunerative work, thus qualifying him for a special rate of pension. The matter was brought before the Federal Court of Australia for review of a decision made by the Repatriation Commission. The court was required to determine whether the veteran's incapacity from the war-caused injury was the sole reason for his inability to obtain remunerative work, and if so, whether this incapacity was substantial enough to warrant a special rate of pension.

The legal issues before the court centred on the interpretation of sections 24(1)(c), 24(2)(b), and 126 of the Veterans’ Entitlement Act 1986. The court needed to determine whether the veteran's incapacity from the war-caused injury was the sole reason for his inability to obtain remunerative work, and if it was, whether this incapacity was substantial enough to warrant a special rate of pension. The court examined previous cases, including Flentjar v Repatriation Commission, Repatriation Commission v Hendy, Magill v Repatriation Commission, Hall v Repatriation Commission, and Conway v Repatriation Commission, to understand the scope and application of the relevant statutory provisions.

In its decision, the court found that the veteran's incapacity from the war-caused injury did not alone prevent him from undertaking remunerative work. The court determined that the incapacity was not a substantial cause of his inability to obtain remunerative work. The court noted that the veteran's incapacity did not preclude him from working in any capacity, and that he had been able to engage in various forms of remunerative work. The court concluded that the veteran's incapacity did not meet the criteria for a special rate of pension under the Veterans’ Entitlement Act 1986. Therefore, the decision of the Repatriation Commission to deny the veteran a special rate of pension was affirmed.

The court's final order was that the decision under review, which denied the veteran a special rate of pension, was affirmed. The court upheld the Repatriation Commission's determination that the veteran's incapacity from the war-caused injury did not prevent him from undertaking remunerative work, and that his incapacity was not the substantial cause of his inability to obtain such work. The veteran's appeal was dismissed, and the special rate of pension was not granted.

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.

VETERANS' APPEALS DIVISION		)
Re		WILLIAM LESLIE STRIKE AS LEGAL PERSONAL REPRESENTATIVE OF CLAUDE ARTHUR STRIKE