Vulich v Repatriation Commission - [2013] FCA 1370

FEDERAL COURT OF AUSTRALIA
Vulich v Repatriation Commission [2013] FCA 1370

Citation: Vulich v Repatriation Commission [2013] FCA 1370

Appeal from: Vulich v Repatriation Commission [2012] AATA 547

Parties: GARY VULICH v REPATRIATION COMMISSION

File number: TAD 38 of 2012

Judge: MARSHALL J

Date of judgment: 17 December 2013

Catchwords: DEFENCE AND WAR – veterans’ entitlements – whether applicant satisfied criteria for pension at the special rate – accepted war-caused disabilities – necessary to satisfy both limbs of s 24(1)(c) of the Veterans’ Entitlements Act 1986 (Cth) – appeal dismissed.

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 43(2B), 44
Veterans’ Entitlements Act 1986 (Cth) s 24

Cases cited:
Hill v Repatriation Commission [2004] FCA 832; (2004) 207 ALR 470
Smith v Repatriation Commission [2012] FCA 1043; (2012) 131 ALD 63

Date of hearing: 8 August 2013

Place: Melbourne (heard in Hobart)

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 20

Counsel for the Applicant: Mr D Wallace

Solicitor for the Applicant: Wallace Wilkinson & Webster

Counsel for the Respondent: Ms C Dowsett

Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY

GENERAL DIVISION

TAD 38 of 2012

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:
GARY VULICH
Applicant

AND:
REPATRIATION COMMISSION
Respondent

JUDGE:

MARSHALL J

DATE OF ORDER:

17 DECEMBER 2013

WHERE MADE:

MELBOURNE (HEARD IN HOBART)

THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The applicant pay the costs of the respondent.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY

GENERAL DIVISION

TAD 38 of 2012

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:
GARY VULICH
Applicant

AND:
REPATRIATION COMMISSION
Respondent

JUDGE:

MARSHALL J

DATE:

17 DECEMBER 2013

PLACE:

MELBOURNE (HEARD IN HOBART)

REASONS FOR JUDGMENT

Mr Vulich is a Vietnam veteran. He joined the army in 1967 at the age of 17. He served until 1973. In the period September 1970 to March 1972, he engaged in operational service in Vietnam. Mr Vulich suffers from the following war caused disabilities:
·injuries to both shoulders;
·alcohol abuse; and
·depressive disorder.
From April 2010, Mr Vulich has been in receipt of a disability pension at 100% of the general rate. The relevant assessment period commenced on 29 January 2010. In May 2010, he lodged an application to review the decision of the Repatriation Commission to grant him a pension at 100% of the general rate and sought a pension at the special rate. In late May 2010, the Veterans’ Review Board (“the Board”) affirmed the decision of the Repatriation Commission. Mr Vulich then applied to the Administrative Appeals Tribunal (“the Tribunal”) to review the Board’s decision. The Tribunal affirmed the Board’s decision. Mr Vulich now appeals pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) from the decision of the Tribunal.
The legislative context
A veteran is entitled to a pension at the special rate if he or…

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 Vulich v Repatriation Commission

Details

AGLC: Vulich v Repatriation Commission [2013] FCA 1370
Case: [2013] FCA 1370
Decision Date: 17 December 2013

CaseChat Overview and Summary

Vulich was the applicant in an appeal against the Repatriation Commission, contesting the denial of his application for a pension at the special rate under the Veterans’ Entitlements Act 1986 (Cth). The dispute centred on whether Vulich met the criteria for the pension, specifically under section 24(1)(c) of the Act, which requires that a veteran has a medically accepted war-caused disability and is unable to gain remunerative employment due to that disability. The matter was heard in the Federal Court of Australia.

The court was required to determine whether the Tribunal had erred in concluding that Vulich did not satisfy the second limb of section 24(1)(c) of the Act. This involved examining whether Vulich was unable to gain remunerative employment due to his war-caused disabilities. The court also had to consider the breadth of work activities undertaken by Vulich and whether the Tribunal's failure to focus on specific activities, such as woodworking, was justified.

The court found that the Tribunal had not erred in its decision. It held that the Tribunal had taken a broad view of Vulich’s work history, considering a range of activities, and that it was not unfair for the Tribunal to focus on his inability to find employment as an employee. The court concluded that the Tribunal’s findings on the application of the second limb of section 24(1)(c) were open to it based on the evidence presented. Consequently, the court dismissed the appeal, finding no utility in waiting for the outcome of another related case, Smith, or in remitting the matter back to the Tribunal.

The court ordered that the appeal be dismissed and that Vulich pay the costs of the respondent. The costs order was made in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The appeal is dismissed.

2. The applicant pay the costs of the respondent.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The above analysis of the Tribunal is consistent with it taking a broad view of the remunerative work undertaken by Mr Vulich in light of his history of engaging in a broad range of activities. It would be unfair to criticise the Tribunal’s failure to give particular attention to Mr Vulich’s woodworking activity when it was dealing with a work history based largely on employment rather than self-employment. That is why the main focus of the submissions and evidence in the Tribunal proceeding was on Mr Vulich’s inability to find work as an employee.Conclusion The findings made by the Tribunal on the question of the application of the second limb of s 24(1)(c) of the VE Act were open to it on the material before it. Given that that is so, the decision of the Tribunal would stand even if Ground 1 were made out. Accordingly, there is no utility in the Court waiting for the appeal judgment in the Smith litigation. Equally, there is no utility in remitting the matter to the Tribunal on the basis of the correctness of the judgment of Gordon J at first instance in Smith, given that both limbs of s 24(1)(c) are required to be satisfied. The instant appeal must be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:	Vulich v Repatriation Commission [2013] FCA 1370
Appeal from:	Vulich v Repatriation Commission [2012] AATA 547
Parties:	GARY VULICH v REPATRIATION COMMISSION
File number:	TAD 38 of 2012
Judge:	MARSHALL J
Date of judgment:	17 December 2013
Catchwords:	DEFENCE AND WAR – veterans’ entitlements – whether applicant satisfied criteria for pension at the special rate – accepted war-caused disabilities – necessary to satisfy both limbs of s 24(1)(c) of the Veterans’ Entitlements Act 1986 (Cth) – appeal dismissed.
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) ss 43(2B), 44 Veterans’ Entitlements Act 1986 (Cth) s 24
Cases cited:	Hill v Repatriation Commission [2004] FCA 832; (2004) 207 ALR 470 Smith v Repatriation Commission [2012] FCA 1043; (2012) 131 ALD 63
Date of hearing:	8 August 2013
Place:	Melbourne (heard in Hobart)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	20
Counsel for the Applicant:	Mr D Wallace
Solicitor for the Applicant:	Wallace Wilkinson & Webster
Counsel for the Respondent:	Ms C Dowsett
Solicitor for the Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
GENERAL DIVISION	TAD 38 of 2012

BETWEEN:	GARY VULICH Applicant
AND:	REPATRIATION COMMISSION Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	17 DECEMBER 2013
WHERE MADE:	MELBOURNE (HEARD IN HOBART)

JUDGE:	MARSHALL J
DATE:	17 DECEMBER 2013
PLACE:	MELBOURNE (HEARD IN HOBART)