Tiplady and Repatriation Commission - [2005] AATA 755

Administrative

Appeals

Tribunal

WRITTEN REASONS FOR ORAL DECISION [2005] AATA 755
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1962

VETERANS APPEALS DIVISION )

Re LINDSAY TIPLADY

Applicant

And

REPATRIATION COMMISSION

Respondent

WRITTEN REASONS FOR ORAL DECISION

Tribunal   Senior Member, Mrs Josephine Kelly

Date of Decision  14 July 2005
Date of Written Reasons for Oral Decision    8 August 2005
Place  Sydney

Decision
The reviewable decision of the delegate of the Repatriation Commission dated 26 May 2003 to refuse Mr Tiplady’s application for Recreational Transport Allowance is affirmed.

[sgd] Senior Member, Mrs Josephine Kelly

CATCHWORDS
VETERANS’ AFFAIRS –Recreational Transport Allowance – application for low rate of allowance – not entitled to allowance – locomotion is not affected, due to war caused injuries, to the extent that is similar in effect or severity to the extent of incapacity associated with the disability of both arms amputated at or above the wrists – decision affirmed.
LEGISLATION
Veterans Entitlements Act 1986 sections 104 and 120
CASELAW
Re Clifford v Repatriation Commission (1988) 14 ALD 721
Re Loftus v Repatriation Commission, AAT 8931, 20 August 1993
Re Keefe v Repatriation Commission (1991) 24 ALD 240
Re Doulis v Repatriation Commission (1996) 44 ALD 465
Re Sleep v Repatriation Commission (1999) 30 AAR 179
Re Bennett v Repatriation Commission, [2000] AATA 805
Re Johnson v Repatriation Commission, [2002] AATA 684,
Tracy v Repatriation Commission [1999] FCA 1523
Tracy v Repatriation Commission [2000] FCA 779
Re Tiplady v Repatriation Commission unreported 28 May 1997
Re Tiplady v Repatriation Commission [2001] AATA 884
WRITTEN REASONS

1. At the conclusion of the hearing of this matter, the terms of the decision made and the reasons for that decision were stated orally. The Applicant requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975.
2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons. The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and furnished to the Applicant and to the Respondent.
WRITTEN REASONS FOR ORAL DECISION

Senior Member, Mrs Josephine Kelly

Background
1.        On 7 May 2003, Mr Tiplady, applied for a Recreation Transport Allowance, (T3), pursuant to section 104 of the Veterans Entitlements Act 1986 ("the Act"). On 26 May 2003, a delegate of the Repatriation Commission, ("the Commission") refused the application, (T4) , and on 1 December 2003, another delegate of the Commission affirmed that decision, (T2). This is an application for a review of those decisions.
2.        Mr Tiplady was born on 23 January 1922, and is now 83 years old. He has been receiving a TPI pension since 1994. His war caused injuries and diseases are nervous dyspepsia, otitis externa, blepharitis, haemorrhoids, generalised anxiety disorder and obsessive compulsive disorder.
3.        There have been two previous decisions of the Tribunal…

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 Tiplady and Repatriation Commission

Details

AGLC: Tiplady and Repatriation Commission [2005] AATA 755
Case: [2005] AATA 755
Decision Date: 14 July 2005

CaseChat Overview and Summary

The case of Tiplady and the Repatriation Commission involved a dispute over the Recreational Transport Allowance granted by the Repatriation Commission. The applicant, Mr Tiplady, sought a low rate of this allowance due to war-caused injuries. The Repatriation Commission’s delegate denied his application, a decision that was subsequently reviewed. The Federal Court was tasked with determining whether the delegate’s decision was lawful and correct.

The primary legal issue before the Court was whether Mr Tiplady's war-caused injuries warranted the Recreational Transport Allowance. Specifically, it needed to be determined if his injuries affected his locomotion to a degree similar to the severity of having both arms amputated at or above the wrists. The Court had to interpret the relevant legislative provisions and assess the evidence provided to decide if Mr Tiplady’s condition qualified for the allowance.

In its decision, the Court affirmed the delegate's determination that Mr Tiplady was not entitled to the Recreational Transport Allowance. The Court found that while Mr Tiplady had sustained significant injuries, his locomotion was not impaired to the extent required for the allowance. The injuries, although severe, did not meet the statutory threshold for the allowance, which is tied to the incapacity associated with the loss of both arms at or above the wrists. The Court held that the delegate's decision was based on a proper interpretation of the legislation and the evidence presented.

The Court's decision resulted in the affirmation of the Repatriation Commission’s delegate's decision dated 26 May 2003, which refused Mr Tiplady’s application for the Recreational Transport Allowance. The Court's ruling upheld the Commission’s stance that Mr Tiplady’s injuries, while serious, did not meet the criteria for the allowance under the applicable legislation.

Orders

Orders of the court

The reviewable decision of the delegate of the Repatriation Commission dated 26 May 2003 to refuse Mr Tiplady’s application for Recreational Transport Allowance is affirmed.

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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