Jensen v Repatriation Commission [2010] FCA 422

Jensen v Repatriation Commission [2010] FCA 422

The appeal failed because the Tribunal made findings fatal to entitlement under the cumulative statutory schemes. The applicant could not qualify for the special rate because he was capable of remunerative work for 15 hours or more per week and therefore did not satisfy s 24(1)(b). He could not qualify for the intermediate rate because he did not satisfy the "alone" test in s 23(1)(c): his cessation of Commonwealth Bank work, inability to conduct the later business, and failed short-term opportunities involved reasons other than war-caused incapacity alone. Once those cumulative criteria were not satisfied, the Tribunal was not required to examine every remaining criterion. The Tribunal...

Jurisdiction
Australia
Judgment Date
05 May 2010
Procedural Posture
Appeal From the Administrative Appeals Tribunal Pursuant to S 44(1) of the Administrative Appeals Tribunal Act 1975 (cth) / Federal Court Judgment on Appeal
Outcome
Appeal dismissed with costs.
Legal Topics
["veterans' Disability Pension" 'special Rate Pension' 'intermediate Rate Pension' 'relevant Considerations' 'cumulative Statutory Criteria' 'adequacy of Tribunal Reasons' 'question of Law Appeal']
['administrative Law' "veterans' Entitlements" 'defence and War'] ["veterans' Disability Pension" 'special Rate Pension' 'intermediate Rate Pension' 'relevant Considerations' 'cumulative Statutory Criteria' 'adequacy of Tribunal Reasons' 'question of Law Appeal']

Case Brief

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Procedural Posture

Appeal From the Administrative Appeals Tribunal Pursuant to S 44(1) of the Administrative Appeals Tribunal Act 1975 (cth) / Federal Court Judgment on Appeal

Legal Issues

  1. 1 ["Whether the Administrative Appeals Tribunal failed to take into account relevant considerations in determining entitlement to an increase in pension under ss 23 and 24 of the Veterans' Entitlements Act 1986 (Cth)." 'Whether the Tribunal was required to examine every criterion in ss 23(1) and 24(1) despite finding that the applicant failed one cumulative criterion.' "Whether the Tribunal failed to take into account the applicant's current employment with his son for the purposes of s 23(1)(c)." "Whether the Tribunal erred in its comparison of s 23 and s 24 of the Veterans' Entitlements Act 1986 (Cth)." 'Whether s 23(3)(b) applied to the applicant in circumstances where he was continuing to undertake remunerative work.' 'Whether the Tribunal gave adequate reasons under s 43(2) and s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth).']

Ratio Decidendi

The appeal failed because the Tribunal made findings fatal to entitlement under the cumulative statutory schemes. The applicant could not qualify for the special rate because he was capable of remunerative work for 15 hours or more per week and therefore did not satisfy s 24(1)(b). He could not qualify for the intermediate rate because he did not satisfy the "alone" test in s 23(1)(c): his cessation of Commonwealth Bank work, inability to conduct the later business, and failed short-term opportunities involved reasons other than war-caused incapacity alone. Once those cumulative criteria were not satisfied, the Tribunal was not required to examine every remaining criterion. The Tribunal...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' "The applicant pay the respondent's costs of the appeal."]