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Vulich v Repatriation Commission

[2013] FCA 1370

COURT Federal Court, Melbourne (heard in Hobart)
JUDGE Marshall J
DATE OF DECISION 17 December 2013
DECISION The appeal was dismissed
ISSUES Whether applicant satisfied criteria for pension at the special rate - necessary to satisfy both limbs of s24(1)(c)

Facts

Mr Vulich had operational service in Vietnam from September 1970 to March 1972.  In April 2010 a delegate of the Repatriation Commission granted Mr Vulich a disability pension at 100% of the General Rate, with effect from 29 January 2010.  In May 2010 he lodged an application for review, seeking a pension at the special rate.  The Veterans’ Review Board (VRB) affirmed the decision of the Repatriation Commission.  Mr Vulich sought further review by the Administrative Appeals Tribunal (Tribunal), who affirmed the VRB’s decision.  He then appealed the decision of the Tribunal to the Federal Court.

Issues before the Tribunal

There were two issues before the Tribunal:

The Court’s consideration

Initially the Court decided to await a decision of the Full Court in an appeal from the judgment of Gordon J in Smith v Repatriation Commission [2012] FCA 1043.  The Tribunal in the present case made its decision before Gordon J gave judgment in Smith.  Counsel for the Repatriation Commission submitted that, had the Tribunal followed Smith, it would not have applied the first limb of s24(1)(c) in the way it did.  However, there was still the second limb - the loss limb - which the Tribunal did address, so Mr Vulich did not satisfy both limbs and his case would fail at the Tribunal anyway.  The Court changed its view and decided it could determine the matter, irrespective of the outcome of the appeal in Smith.

The Court turned to consider the question whether, even if the Tribunal did not apply the proper approach to the first limb of s24(1)(c), did it apply the proper approach to the second limb of that provision?  Reading the second limb of s24(1)(c) together with the aspect of s24(2)(b) which relates to it, raised the following issues:

The first question of law raised in the appeal concerned the correct application of the “alone test” in the first limb of s24(1)(c), but the Court did not consider it was necessary to answer that question to resolve the current matter.  The second question of law was not pressed.  The third question of law was:

Does the decision maker need to give reasons or adequate reasons as to why the Applicant was not entitled to the Special Rate of pension due to his inability to perform work as a self-employed woodworker, such an ability being caused by his war-caused incapacities alone.

The Court accepted the submission of counsel for the Repatriation Commission that s43(2B) of the AAT Act requires the Tribunal to give written reasons for its decision that “shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based”.  The Court also followed Hill v Repatriation Commission [2004] FCA 832, in which the Court said the obligation is to adequately disclose a reasoning process to show how the Tribunal went about its task and why it reached its conclusion.  The Court considered the Tribunal did so in the present case.  The Court indicated the Tribunal’s analysis was consistent with it taking a broad view of the remunerative work undertaken by Mr Vulich, given his history of engaging in a broad range of activities, and it would be unfair to criticise the Tribunal’s failure to give particular attention to his woodworking activity when it was dealing with a work history based largely on employment rather than self-employment.  The Court concluded the findings made by the Tribunal on the question of the application of the second limb of s24(1)(c) were open to it on the material before it.

The Court’s Decision

The appeal was dismissed.

Editorial Note

This appeal to the Federal Court involved a narrow question of law concerning the adequacy of the Tribunal’s reasons regarding one aspect of Mr Vulich’s work history.  This case clearly demonstrates that both limbs of s24(1)(c) must be satisfied.  It will be interesting to see how the Full Court interprets the first limb of s24(1)(c) in the pending Smith decision.

All Practice Notes