Giesen v Repatriation Commission [2005] FCA 846

Giesen v Repatriation Commission [2005] FCA 846

Assuming, because of the parties' position, that s 24(2)(b) was available, the Tribunal asked and answered the correct question by finding that the applicant's war-caused disabilities were not the substantial cause of his inability to obtain remunerative work. Its consideration of non-accepted conditions was relevant, it distinguished accepted and non-accepted conditions, did not ignore s 119, did not impose an onus or apply the wrong standard under s 120, and gave reasons sufficient to disclose its reasoning. Any failure to make specific findings that the applicant had been genuinely seeking work operated in his favour and did not warrant setting aside the decision.

Jurisdiction
Australia
Judgment Date
24 June 2005
Procedural Posture
Appeal From the Administrative Appeals Tribunal Under S 44(1) of the Administrative Appeals Tribunal Act 1975 (cth), Limited to Questions of Law / Federal Court Reasons for Judgment and Final Orders
Outcome
Appeal dismissed with costs.
Legal Topics
['special Rate Pension' 'war Caused Incapacity' 'remunerative Work' 'administrative Appeals Tribunal Appeal on a Question of Law' 'adequacy of Reasons' 'standard of Proof']
["veterans' Entitlements" 'administrative Law'] ['special Rate Pension' 'war Caused Incapacity' 'remunerative Work' 'administrative Appeals Tribunal Appeal on a Question of Law' 'adequacy of Reasons' 'standard of Proof']

Case Brief

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Procedural Posture

Appeal From the Administrative Appeals Tribunal Under S 44(1) of the Administrative Appeals Tribunal Act 1975 (cth), Limited to Questions of Law / Federal Court Reasons for Judgment and Final Orders

Legal Issues

  1. 1 ["Whether the Tribunal applied the correct test under s 24(1)(c) and s 24(2)(b) of the Veterans' Entitlements Act 1986 (Cth) in determining entitlement to pension at the special rate." 'Whether s 24(2)(b) was available to a veteran who had previously engaged in remunerative work but had ceased working.' "Whether the Tribunal took into account irrelevant considerations, failed to address the correct questions, failed to differentiate accepted and non-accepted conditions, failed to apply ss 119 and 120 of the Veterans' Entitlements Act 1986 (Cth), imposed an onus of proof, applied the wrong standard of proof, or failed to give adequate reasons."]

Ratio Decidendi

Assuming, because of the parties' position, that s 24(2)(b) was available, the Tribunal asked and answered the correct question by finding that the applicant's war-caused disabilities were not the substantial cause of his inability to obtain remunerative work. Its consideration of non-accepted conditions was relevant, it distinguished accepted and non-accepted conditions, did not ignore s 119, did not impose an onus or apply the wrong standard under s 120, and gave reasons sufficient to disclose its reasoning. Any failure to make specific findings that the applicant had been genuinely seeking work operated in his favour and did not warrant setting aside the decision.

Court Disposition

Appeal dismissed with costs.

Orders

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