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Willis v Repatriation Commission

[2012] FCA 399

COURT Federal Court, Melbourne
JUDGE BROMBERG J
DECISION The appeal was ALLOWED
ISSUES Whether there was a failure by the Tribunal to provide adequate reasons

Facts

Mr Willis appealed to the Court from a decision of the Administrative Appeals Tribunal that determined that he was not entitled to the special rate of pension.

Grounds of appeal

  1. The main ground and the only ground of merit is that reasons given by the Tribunal for its decision are not adequate, and by reason of that inadequacy the AAT made an error of law.

The Court’s Consideration

The Commission accepted that a failure to provide adequate reasons for its decision can constitute an error of law.

The Court noted the decision in Dornan v Riordan (1990) 24 FCR 564 where a Full Court held that failure to provide adequate reasons is an error of law. The Court noted the question of law posed is whether the AAT has complied with its statutory duty under s43(2) of the AAT Act.

In relation to a decision made under the Veterans’ Entitlement Act and in considering the adequacy of the reasons given for the decision, the High Court in Roncevich v Repatriation Commission asked whether sufficient appears from the judgment of the tribunal to enable the parties and the Court to understand and deal with reasoning and decision of the tribunal.

The Court noted the requirements of s43(2B) were more recently dealt with in Appellant V324 of 2004 v Minister for immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259, where it was accepted that it was necessary to make findings and give reasons in respect of substantial issues on which the case turned. The Court noted that many of these authorities had been considered in Alexander v Australian Community pharmacy Authority [2010] FCA 189 and determined that conclusions as to primary facts which were not the subject of controversy before the decision maker are unlikely to require explanation. However, conclusions as to significant facts in dispute are likely to require explanation if persons affected by the decision are to be given an understanding of the basis for the decision. That obligation requires that significant areas of primary fact should ordinarily be addressed.

Task of the AAT

In order to assess the adequacy of the reasons provided by the AAT, it was necessary to understand the task that the AAT was duty bound to undertake.

This involved the proper interpretation of s24(1)(c) which has been the subject of great judicial consideration. The preferred interpretation and preponderance of authority interpret the words of s24(1)(c) which comprise the “alone test” so that they are designed to exclude a claim where, notwithstanding such a condition, other factors( including other medical conditions prevent employment.

The question raised by the alone test is not whether on its own the war caused incapacity prevents the veteran’s continued employment. The question is whether apart from the war caused incapacity, there is another factor or factors which prevent employment. The existence of other factors which prevent the veteran from working has a disqualifying result for an application for special rate. The war related incapacity must be the lone factor which prevents continued employment. That is what is meant by alone.

The Court noted the Tribunal in its reasons found:

His time out of the workforce, his age, his lack of education and inability to use computers or computerised farm equipment as well as his physical limitations in walking long distances are all factors preventing him from undertaking remunerative work of the types he has previously done. His location in a remote area is also a factor.

The Court noted that it is not clear from the AAT’s reasons whether in assessing those factors as causative, the AAT separated out any contribution made by Mr Willis’ war caused conditions.

That was a live issue in the proceedings because there was evidence before the AAT that Mr Willis’ war caused conditions had contributed to his time out of the workforce and that his war caused conditions had been a cause of his move to a remote area.

How the AAT dealt with that evidence is not explained in its reasons. The AAT failed to provide a sufficient explanation of the conclusions it reached.

The AAT’s reasons also failed to adequately expose its reasoning in relation to the second element of s24(1)(c) which deals with the requisite nexus between the war caused incapacity and the veteran suffering a loss.

The only part of the AAT’s decision which appears to deal with this second element is the factual findings stated which address why Mr Willis ceased work, why his attempts to work were hampered and that he received a disability pension for more than a decade.

The relevance of those factual findings to the test raised by the second element of s24(1)(c) and the reasoning which led to the AAT’s conclusion, is neither expressed nor apparent.

The Court held that legal error was established.

Decision

Appeal allowed

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