Summers and Repatriation Commission - [2008] AATA 481

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 481
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q200700053

VETERANS' APPEALS DIVISION )

Re FRANCIS SUMMERS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe
Date10 June 2008
PlaceBrisbane (heard in Cairns)

Decision The Tribunal affirms the decision under review.
.......................[Sgd].......................
Senior Member

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe
Signed: ................................[Sgd].....................................................
  Michael Buckingham, Associate
Date of Hearing  28 May 2008
Date of Decision  10 June 2008
Counsel for the applicant          Mr M Sumner-Potts
Solicitors for the applicant        Myles Thompson Lawyers
Solicitor for the respondent      Departmental advocate

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.

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Details

Case: [2008] AATA 481
Decision Date: 10 June 2008

CaseChat Overview and Summary

The case before the court involved Summers, an applicant for a war veteran's pension, and the Repatriation Commission, the body responsible for determining the rate of pension payable to war veterans. The dispute centred on whether the applicant's morbid obesity, which was claimed to be war-caused, warranted an adjustment in the pension rate. Specifically, the applicant argued that his excessive caloric intake could not be compensated by physical exercise due to difficulties in pursuing certain forms of exercise.

The legal issues before the court required it to determine whether morbid obesity was a war-caused condition and if the applicant's difficulty in engaging in physical exercise meant that he could not compensate for excessive caloric intake. The court had to assess whether these factors warranted a higher pension rate under the Veterans’ Entitlements Act 1986. The court also considered the case of Repatriation Commission v Deledio, which set a precedent for evaluating the extent of physical incapacity necessary to warrant a higher pension rate.

The court found that while the applicant had some difficulty in pursuing certain forms of exercise, he was not rendered incapable of undertaking physical exercise that might compensate for excessive caloric intake. The court held that the applicant's morbid obesity was not necessarily war-caused and that the difficulties in physical exercise did not rise to the level of incapacity required to adjust the pension rate. Consequently, the Tribunal affirmed the decision under review, upholding the Repatriation Commission's determination on the pension rate.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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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