Adams and Repatriation Commission - [2002] AATA 475

DECISION AND REASONS FOR DECISION [2002] AATA 475

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/621

VETERANS' APPEALS DIVISION       )
           Re      Bruce James Adams
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member Dr P D Lynch, Member

Date19 June 2002
PlaceSydney

Decision Pursuant to Section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides:
(1) To set aside the decision under review in respect of impotence and in substitution therefor the Tribunal decides that this condition is war-caused pursuant to Section 9 of the Veterans' Entitlements Act 1986 with effect from and including 13 September 1996. (2) The assessment of the correct rate of pension in relation to all of Mr Adams' accepted conditions from 13 September 1996 until 31 March 1998 is 60 per cent of the General Rate. (3) To affirm that part of the decision under review which assessed pension at 100 per cent of the General Rate from and including 1 April 1998. ……………………… Ms SM Bullock Presiding Member

CATCHWORDS
VETERANS' AFFAIRS - Entitlement to Disability Pension – Assessment - Special Rate
LEGISLATION
Veterans' Entitlements Act 1986 ss 9, 24, 119
AUTHORITIES
Carter v Repatriation Commission (2001) 66 ALD 139
Starcevich v Repatriation Commission (1987) 18 FCR 221
Banovich v Repatriation Commission (1986) 69 ALR 395
Thomson v Repatriation Commission (2000) 96 FCR 550
Woodward v Repatriation Commission (1999) 58 ALD 675
Grant v Repatriation Commission [1999] FCA 1629
Repatriation Commission v Bey (1997) 79 FCR 364

REASONS FOR DECISION

19 June 2002 Ms S M Bullock, Senior Member Dr P D Lynch, Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mr Bruce James Adams, the Applicant, of decisions by the Repatriation Commission ("the Commission") made on:

(a) 31 May 1997 which refused a claim for medical treatment and pension for incapacity for sterility and impotence on the ground that the conditions were not war-caused and increased pension to 40 per cent of the General Rate with effect from 13 September 1996;
(b) 2 October 1998, which increased Mr Adams' Disability Pension to 100 per cent of the General Rate with effect from and including 1 April 1998.

The Commission's decisions were affirmed by the Veterans' Review Board ("the Board") on 10 February 2000 (T31). At the hearing on 27 September 2001, Mr Adams withdrew his application for review in relation to the condition of sterility. In relation to the condition of impotence, the Respondent conceded at the commencement of the hearing that this condition was war-caused.
A hearing was held before the Tribunal in Sydney on 27 September 2001 and 25 October 2001. Mr Adams provided oral evidence to the Tribunal and was represented by Mr P Jones, Solicitor with Rockliffs, Solicitors and Attorneys. The Respondent was represented by Ms S Breuer, Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to Section 37 of the Administration Appeals Tribunal Act 1975 ("T Documents", T1-T33) and the following exhibits:
Exhibit No.   Description Date
A1      Letter "To Whom It May Concern" from Mr C Merrick, Accountant    21 May 2001
A2      Statutory Declaration from Mr T Underwood     21 September 2001
A3      Statutory Declaration from Mr J Guihot   21 September 2001
A4      Statement by Mr B Adams 27 September 2001
A5      Bundle of Applicant's Documents Various
A6      Report by Dr D K Dowda, Consultant Occupational Physician          13 March 2001
A7      Report by Dr A Hordern and attachments, Psychiatrist 6 September 2000
R1      Claim for Service Pension by Mr Adams 24 April 1995
R2      Department of Social Security Documents relating to Applicant        Various
R3      Financial Records from Everall Merrett Mann DFK Pty Ltd     Various
R4      Report by Dr R D Wines, Consultant Urologist 27 July 2000
R5      Report by Dr R D Lewin, Psychiatrist      22 August 2000
R6      Report by Dr P M Furey, Occupational Physician        20 October 2000
R7      Supplementary Report by Dr P M Furey, Occupational Physician     20 March 2001
R8      Report from Dr M Baz, Occupational Physician 29 August 2000
R9      "JNS – Rent Assistance Questionnaire" 22 June 1994

Issues

As the issue of entitlement to pension for the condition of impotence and its assessment was conceded by the Respondent at hearing, and accepted by the Tribunal as properly given, the remaining issue in this matter is whether or not Mr Adams satisfies Section 24 of the Veterans' Entitlements Act 1986 in respect of whether he is entitled to an earnings-related pension at the Special Rate.
Legislation
A determination in this matter requires consideration of the Veterans' Entitlements Act 1986 ("the Act").
Section 9 of the Act deals with war-caused injuries or diseases.
Section 24 of the Act deals with the qualification for pension at the Special Rate and as relevant states:
"24 Special rate of pension
(1)       This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)       either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d)       section 25 does not apply to the veteran.
(2)       For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
2A)      This section applies to a veteran if:
(a) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(b) the veteran had turned 65 before the claim or application was made; and
(c) paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d) the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g) when the veteran stopped undertaking his or her last paid work, the veteran:
(i) if he or she was then working as an employee of another person--had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii) if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling--had been so working in that profession, trade, employment, vocation or calling;
for a continuous period of at least 10 years that began before the veteran turned 65; and
(h) section 25 does not apply to the veteran.
…"
Section 119 of the Act reflects that the decision making process under the Act is of an administrative nature rather than judicial and also allows decision-makers to take into account matters such as the effects of the passage of time and the absence or the deficiency in records.
Background
The following information is provided by way of background and the information contained within is not disputed:

Mr Adams served in the Australian Army from 31 January 1951 until 30 January

1963. Mr Adams' eligible war service which is operational service, was from 22 July 1951 until 6 April 1953 in Korea.

On 13 December 1996, Mr Adams lodged an application for an increase in Disability Pension (T7).

On 9 January 1997, Mr Adams lodged a claim for Disability Pension in respect of the conditions: "Sterility / impotence"; "Deafness"; "Osteo Arthritis"; and, "High blood pressure" (T8).

On 31 May 1997, the Commission refused Mr Adams' claim for sterility and impotence. The condition of osteoarthrosis of the left knee was accepted and Disability Pension was increased to 40 per cent of General Rate with effect from 13 September 1996 (T2).

On 1 July 1998, Mr Adams lodged a claim for "PTSD (Anxiety)" and an increase in pension (T19).

On 2 October 1998, the Commission accepted Mr Adams' claim for generalised anxiety disorder and assessed pension at 100 per cent of the General Rate with effect from 1 April 1998 (T3).

On 14 August 1997, Mr Adams made an application for review to the Board in respect of the Commission's decision of 31 May 1997 (T18). A further application for review to the Board was made by Mr Adams on 1 December 1998 (T26) in relation to the Commission's decision of 2 October 1998.

On 10 February 2000, the Board affirmed the decision under review in relation to the Commission's decisions concerning entitlements for sterility and impotence; affirmed the decision in relation to the assessment of pension at 40 per cent of the General Rate from and including 13 September 1996 until 31 March 1998; and, affirmed the Commission's decision in relation to the assessment of pension at 100 per cent of the General Rate from and including 1 April 1998 (T31).

On 26 April 2000, Mr Adams lodged an application for review to the Tribunal in relation to the Board's decision of 10 February 2000 which affirmed the previous decisions of the Commission dated 31 May 1997 and 2 October 1998 (T1).

Evidence Of Mr Bruce James Adams

Mr Adams provided a statement to the Tribunal (Exhibit A4) outlining his employment history. In February 1963, he took up a position of New South Wales Training Officer for Australian Consolidated Industries and served in this capacity and more senior training and safety officer positions until 1967-68. Mr Adams set up the training function and occupational health and safety functions for the company. He later helped out in similar functions in Victoria and Queensland. In 1967 or 1968, Mr Adams had the position of National Director of Training for the timber industry with the Australian Timber Producers Council for a two year period. In 1970, Mr Adams took up the position of Director of Training with the New South Wales Timber Advisory Council. In this position, Mr Adams developed internal and external courses with the main emphasis being on middle management, supervisory levels and on salesmanship. Mr Adams was also asked to help larger companies to set up their training and safety functions.
In late 1972, Mr Adams was offered a senior position as Director of the entire New South Wales Timber Advisory Council. This position had overall responsibility for industry promotion, advertising, research and development and training and safety. During this period, Mr Adams stated that he was experiencing bouts of depression and a number of alcohol-related problems. Later, Mr Adams was asked to take up a new position of Assistant Manager for the "Trade Association- Associated Country Sawmillers" (Exhibit A4, p6, paragraph 5). He noted that this position was especially created for him in order that he obtain trade association experience before taking over the role of Chief Executive Officer when the current manager of that organisation retired in two years. Following a two year period, the positions of Manager and Chief Executive Officer were combined and the New South Wales timber industry was restructured into branches. This restructure took Mr Adams and those involved approximately two years to achieve. He also had, during that time, direct responsibility for training which was always close to his heart. During his period as Director of the Timber Advisory Council, Mr Adams said that his main difficulties, health-wise, related to his deafness and to some extent his left leg problem. Mr Adams noted that his psychiatric problems related to his Korean service were increasing and were a constant distraction.
In 1976, Mr Adams became the Chief Executive Officer of the Associated Country Sawmillers Trade Association with the New South Wales Timber Advisory Council remaining under his control. Having taken up this position, Mr Adams believed it was obvious that this arrangement could only be in existence in the short term to medium term at the longest.
In late 1979, Mr Adams left the Association and took over part-ownership of Cypine Pty Ltd. This company had two Directors, Mr Adams and his wife with the shares being valued at $2.00 each. During the 1980's, Mr Adams continued his role as a Director of Cypine Pty Ltd, in addition to fulfilling a supervisory / advisory / consulting role to the Associated Country Sawmillers Trade Association, advising on occupational health and safety issues and industrial relations matters. Mr Adams would invoice the Associated Country Sawmillers Trade Association members through Cypine Pty Ltd. Thus, the company would invoice out for Mr Adams' work external to the company. Payment for this outside work would be sent back to Cypine Pty Ltd, who would then pay Mr Adams. The work done outside Cypine Pty Ltd hours would amount to approximately eight hours during a one hundred hour week, Mr Adams told the Tribunal. The remainder of the time, Mr Adams would spend as Director and Production Manager of Cypine Pty Ltd.
Mr Adams noted in his statement (Exhibit A4) that in 1989, he sold his interest in Cypine Pty Ltd and took up "part-ownership" of a new company, Pilliger Cypress Pty Ltd. This arrangement arose partly out of Mr and Mrs Adams divorcing. Mr Adams told the Tribunal that the couple "swapped shares" in Cypine Pty Ltd and Pilliger Cypress Pty Ltd so that Mr Adams retained ownership of Pilliger Cypress Pty Ltd and Mrs Adams retained ownership of Cypine Pty Ltd. Mr Adams was also General Manager and there were approximately eleven or twelve staff working for Pilliger Cypress Pty Ltd. This staffing did not include contractors retained to undertake logging operations for the company. Mr Adams told the Tribunal that he installed "the most modern machinery and equipment in the Southern Hemisphere and became the highest productivity Cypress Pine Mill in Australia". Mr Adams explained that there were no other Directors. The administration of Pilliger Cypress Pty Ltd was conducted by Cypine Pty Ltd which Mr Adams referred to as the "sister company" and later in evidence, the "parent company" to Pilliger Cypress Pty Ltd.
Mr Adams further explained that during this time, the industry was very competitive but difficulties occurred as the economic recession and its consequences grew. Despite these tough times, Mr Adams considered that Pilliger Cypress Pty Ltd was itself very competitive because it was a highly modernised and computerised mill.
Whilst working at Pilliger Cypress Pty Ltd, Mr Adams continued his own consultancy which he had been undertaking since about 1989. This consultancy was aimed at improving the operation of other timber companies. Mr Adams told the Tribunal that he took the view that if other timber companies improved the running of their business, including mechanisation and computerisation, then the performance of the industry as a whole would be more economically viable. The consequence of this would impact on his own company's performance, causing it to improve and maintain a position ahead of its rivals.
During the period 1989 until 1993, Mr Adams recalled his consultancy work had more emphasis on quality control, although employee relations was still a heavy component. The billing for the consultancy work continued through Cypine Pty Ltd, which would invoice companies who had used Mr Adams' consultancy services. Cheques would be sent to Cypine Pty Ltd and then Mr Adams was paid by cheque from Cypine. Mr Adams was unable to estimate the income he received for his consultancy work, although he stated that the remuneration varied. It could be a nominal amount of $25.00 for a simple matter or considerably more, for example $200.00, if he helped a company out of trouble and spent a great deal of time on that matter. Mr Adams stated that his fees were less than market rates. The income earned by Mr Adams, comprising his salary from Pilliger Cypress Pty Ltd and the remuneration from his consultancy work were made by separate payments but he stated that it merged in the "administrative unit of Cypine" – "It was kept separate in a Pilliger Cypress Account but…. All of the administration and all of the payments, in fact, the addresses for payments and checks went to Cypine." (Transcript, 27-09-2001, p66). It was easier, Mr Adams stated, to filter the payments through the parent company of Cypine Pty Ltd. Mr Adams stated that he had not inquired, but he believed that for taxation purposes, the income went into Cypine Pty Ltd account.
Mr Adams stated that tax was being deducted from his pay from Pilliger Cypress Pty Ltd but he recently learned that his then accountant had not submitted personal tax returns for the 1990, 1991, 1992 and 1993 financial years.
Mr Adams stated that he did not receive regular payment for his Pilliger Cypress work. He would just draw money when he wanted it. In this regard, Mr Adams stated that he was not receiving a cheque every week or indeed every fortnight or month. If he found himself short of money, he would say to Cypine "you'd better send me down $500.00 or so" (Transcript, 27-09-2001, 69). There was a net salary agreed to for Mr Adams' work as General Manager of Pilliger Cypress Pty Ltd, but he only received it, he told the Tribunal, when he wanted it. It was a credit to the company as far as Mr Adams was concerned.

In further evidence to the Tribunal, Mr Adams stated that he saw himself as self-employed at both Cypine Pty Ltd and Pilliger Cypress Pty Ltd. He also saw himself as a consultant in business for himself between the time of 1989 and 1993.
By 1993, Mr Adams was finding it increasingly difficult to keep working because of his decline in health, he told the Tribunal. He stated that it was very difficult making decisions and he would often panic or become angry, showing his frustration and having drinking bouts. "I just started to fold up", he told the Tribunal. (Transcript, 27-09-2001, p22). Mr Adams told the Tribunal that he left the company by agreement. In his statement, Mr Adams noted :
"The reasons given for my dismissal was a combination of factors including my hearing defect combined with what I now note to be the effects of PTSD, such as forgetfulness, lack of concentration, mood swings, regular anger outbursts, inattention, periodic concentrated grog intake, etc. A lot of my problem was lack of sleep owing to nightmares and flashbacks to my Korea War experiences, and in fact I spent most of my awake time on a Hill named "227" in Korea when my Section and Platoon experienced its heaviest casualties. I was told my health and performance had deteriorated over a long period and I was now at the stage where I was no longer viable as an employee and I was a danger to both myself and others in the workplace.
It never occurred to me I should seek medical help as like most Korea Vets (all volunteers) I thought it was a soldier's lot." (Exhibit A4, p18)
After Mr Adams left Pilliger Cypress Pty Ltd in 1993, he undertook a few jobs for sawmillers who were part of his "old contact team". He had done a great deal of work at Pilliger Cypress Pty Ltd in terms of computerisation. Mr Adams decided about that time that he needed to spend some time increasing his knowledge and skills in terms of occupational health and safety, industrial relations and computerisation (Transcript, 27-09-2001, p22). Thus, between February 1993 and October 1993, Mr Adams was undertaking what he terms "local work" and also updating his skills.
Mr Adams informed the Tribunal that in about October 1993, he moved to Taree and undertook a substantial project with a sawmiller there, Campbell and Jones. This work involved evaluating the company's needs on and off for the next eighteen months until about mid 1995. Mr Adams helped with the acquisition and development of the accounting software, the instalment of computers to deal with stock and control and also salesmanship matters. This project was being conducted in addition to Mr Adams attending courses, the longest of which was a six week course conducted at the University of New South Wales in Kensington, Sydney. Mr Adams stated that he was also doing work in mid 1993 with local sawmillers of which he estimated there were between 12 and 23 companies. This work involved assisting the sawmillers with their employee relations, marketing, production development and quality control. Mr Adams estimated that he would work a couple of days per week for the Campbell and Jones company in addition to his other consultancy work or training. Mr Adams told the Tribunal that he was not earning much at that stage, just enough to cover his costs. Mr Adams stated that he did not wish to pass the allowable income levels for Department of Social Security benefits, which he received on and off during this period in the form of Job Search or Newstart Allowances. Mr Adams stated that he was on the "Dole" as his sole source of income while he was studying. During 1994, Mr Adams believed he earned between $1,300.00 and $1,400.00 paid by individual companies to him now and then.
Mr Adams told the Tribunal that specifically in relation to Newstart or Job Search Allowances, that he was paid on and off from 1993 through 1994 and into 1995. In 1994, Mr Adams stated that he did not believe he was paying rent. Part of his remuneration from Campbell and Jones involved payment in kind including board and lodging, although he thought this was not for the entire eighteen month period he worked for Campbell and Jones. Mr Adams was shown a document, "JNS – Rent Assistance Questionnaire" (Exhibit R9), verified as signed by him and dated 22 June 1994, which indicated that Mr Adams was paying rent to Mr R Campbell in the amount of $95.00 per week. Mr Adams later stated in evidence that he did not live rent-free for the entire eighteen month period but could not remember which period he paid rent and which period he lived rent-free.
Companies for which Mr Adams provided a consultancy, he believed, could have paid him higher fees but Mr Adams stated he was getting back on his feet again and also had to be careful what income he was receiving. When the proposition was put to him that he was deliberately limiting his income so as not to exceed income levels for Social Security payments and thus jeopardise his benefit, Mr Adams stated :
"I would rather put it a different way, but my main aim with benefits from the government [Social Security] was to cover me for my training – for my update of training time, but certainly yes, my charges were nominal except I got full-time board and lodging with Campbell and Jones which was worth a fair bit to me." (Transcript, 27-09-2001, p30).
Mr Adams later agreed that he asked the companies only to pay him nominally or in kind, for example board and lodgings, so that he would not pass the income limits (Transcript, 27-09-2001, p31). Mr Adams stated that in terms of the work for other sawmillers, he did not intentionally keep his payments low although he stated that the upper amounts of earnings and income limits imposed by Social Security benefits were in his mind. He stated that he could have charged more for his services.
Unlike with his work at Pilliger Cypress Pty Ltd, when he was also undertaking consultancy work, there was now no billing for his consultancy work. Mr Adams told the Tribunal that he had an "ad-hoc" arrangement. During this period, Mr Adams continued the work with the sawmillers because in his view they were dependent on him. The consultancy work continued at about eight hours per week and was with sawmillers all over the countryside.
Mr Adams stated that he has considered himself as a sole trader ever since he left the Sawmillers Association in 1979. While he was working for the companies of Cypine Pty Ltd and Pilliger Cypress, he also considered himself as a consultant on his own for part of the time.
Mr Adams was asked about a number of forms he completed for the Department of Social Security and the Department of Veterans' Affairs. Mr Adams verified that he signed a Department of Social Security form "Employment Separation Certificate" dated 26 February 1993 (Exhibit R2, p8). Mr Adams signed the form as the General Manager of the company Pilliger Cypress Pty Ltd. On the form, Mr Adams had recorded that the reason for his termination of employment was due to "shortage of work". Mr Adams agreed that he had not recorded anything on this document about his health. He stated that his answer was a "standard answer, the shortage of work, and it didn't cause embarrassment to anybody". Mr Adams agreed that he was the General Manager, sole shareholder and Director of Pilliger Cypress, and later stated in evidence that he was mainly an employee.
In relation to a Job Search claim form, verified by Mr Adams as being signed by him on 26 October 1993 (Exhibit R2, p10-17), Mr Adams had recorded that he had last worked on 26 February 1993 and had ceased work because of the recession closing the company. Mr Adams stated to the Tribunal that the recession was taking hold at the time. There was a shortage of work and when he left the company, it owed him money. He in fact only received forty per cent of his entitlements. Cypine Pty Ltd, which had been responsible for paying him his entitlements at Pilliger Cypress, later "crashed", Mr Adams stated. Mr Adams told the Tribunal that he had entitlements dating back to 1979 and only received fourteen thousand dollars in July 1993. Although acknowledging that he had not recorded any health reasons for his cessation of work in the Separation Certificate or the Job Search form, Mr Adams stated that the main reasons for cessation of work were his disabilities and the recession and its economic consequences were a minor matter. Mr Adams reiterated that he had "gone to the pack". Mr Adams denied that he had lied to the Department of Social Security by not mentioning his illnesses in the separation certificate or in the subsequent Job Search applications. Mr Adams later stated that using the recession as a reason for cessation for work was "a nice way of putting it". He conceded that it was not really true that the recession had closed the company.
Mr Adams stated that after February 1993, he looked for management work from middle management positions up. He emphasised to the Tribunal that his reputation was well known in the industry and he was trying to find full-time work. Mr Adams stated that he also wanted to gain a position which would allow him to have enough out of hours time to service his consultancy clients, the individual sawmillers. Mr Adams noted that his disabilities were also well known to the industry and people would often ask him how he was health-wise.
Mr Adams was referred to another Department of Social Security document, a "Client's Report" verified as signed by him and dated on 26 October 1993 (Exhibit R2, p9). In that form, Mr Adams had recorded that he was fit and available for full-time employment and willing to undertake any position considered suitable by the then Commonwealth Employment Service. Mr Adams recorded that he had attempted to find full-time employment from three companies but was unsuccessful because of "age problems". At that time, Mr Adams was 63 or 64 years of age. In answer to a question that during the period around October 1993, before deciding to set up his own business, that he was trying to obtain work from other people as an employee he answered that it was correct to a minor extent that he was not successful in obtaining work because of his age and that they were in the heart of a terrible recession.
After 1993, Mr Adams completed outstanding work for individual sawmillers over three or four days per week working for each company and on occasion, extending up to a week per project. Mr Adams worked like this for a few months but believed that the amount of effective work would have been one month in total.
On 31 July 1994, Mr Adams signed an "Application for Payment of Job Search / Newstart Allowance" (Exhibit R2, p1-2). Mr Adams had recorded in that form that he looked for work at "Campbell and Jones", "RA Sweetman", "Cypine" and "Bingara Sawmill" during the period 19 July 1994 until 1 August 1994. Mr Adams had told the Tribunal that in relation to the Campbell and Jones work, he had never had to ask for work at that company, they had approached him. On this form, Mr Adams had ticked "No" in answer to the questions asking whether he worked part-time or was self-employed (Exhibit R2, Q5, p2). When questioned about the inconsistency of the information recorded by him on this form, compared with Mr Adams' clear evidence to the Tribunal that he was working in a self-employed capacity, Mr Adams reiterated that he worked at Campbell and Jones from November 1993 in addition to up to 23 other sawmillers. Mr Adams could not specifically say when these periods of self-employment occurred. Mr Adams stated he worked intermittently and at best estimated it was once per month. Nowhere on the form however had Mr Adams indicated that he was self-employed, working for either Campbell and Jones or up to 23 other sawmilling companies. Perhaps it was, Mr Adams told the Tribunal, that he had not done anything for those companies or for Campbell and Jones during the month in question specified on the form. It was put to Mr Adams that either what he had said in the form or what he had told the Tribunal was incorrect, he could not have it both ways. Mr Adams then told the Tribunal that he could not remember the specific details.
Mr Adams was shown a Department of Social Security claim form for Job Search / Newstart Allowance verified as signed and dated by him on 7 June 1994 (Exhibit R2, p3-7). At Question 4 on the form, Mr Adams was asked about employment before making the claim. He did not tick boxes either indicating that he was self-employed or a wage and salary earner, stating only that he was unemployed. He recorded on the form that he had last worked on 24 February 1993 at Pilliger Cypress Pty Ltd. Ms Breuer, for the Respondent, put to Mr Adams that this again was inconsistent with evidence to the Tribunal that since late 1993, he had been doing some work for at least 22 or 23 sawmilling companies. Mr Adams replied that he took the question to mean that it was referring to when he was last employed on a full-time basis. Mr Adams told the Tribunal that it was not his habit to lie. He filled in the form with the best of intentions. Mr Adams also recorded in that form that he was paying rent to Mr R Campbell. Mr Adams denied being untruthful to the Department of Social Security in that claim form because, he stated, he did not know which period the form referred to. When it was again put to Mr Adams that the claim form referred to the period around the date he was applying for the benefit, and that he had already told the Tribunal that he considered himself self-employed during late 1993, 1994 and 1995, he stated that he was not self-employed if he was not working on the specific day he completed the form. After further questioning, Mr Adams stated he did not understand he was self-employed when he filled out this form. He stated that he believed he was unemployed when he filled out and signed the form.
In 1995, after Mr Adams finished his work with Campbell and Jones, he undertook some work in Canberra. He stated that the area of industrial relations in both the Federal and State arenas was changing. Mr Adams became interested in the Workplace Relations Bill and started working with the Minister for Industrial Relations through a contact in the Minister's office who was a Senior Ministerial Adviser. Mr Adams stated that he was still working for individual sawmillers at that time. Mr Adams became involved in conducting many seminars concerning the new industrial relations proposals for the Federal Government in Southern Queensland, New South Wales and Canberra. He provided community feedback and additional information and suggestions to the Federal Minister concerning the proposed legislation.
In Mr Adams' Service Pension application verified by Mr Adams as having been signed by him and dated on 24 April 1995 (Exhibit R1), Mr Adams had answered "No" to Question 37, asking him whether he was involved in a business. Mr Adams agreed that this answer was inconsistent with information he had provided to the Tribunal in that he had worked as a consultant in 1993, 1994, 1995 and 1996. Mr Adams agreed it looked like he was not telling the truth to the Department of Veterans' Affairs. He stated however that this was not the case and that he had misunderstood the form. At Question 24 of the Service Pension application, Mr Adams recorded that he was not employed which included the specified categories of part-time, casual or self-employment. Mr Adams stated that he had answered the question in the negative because he may not have been working on the date he completed the form, on 24 April 1995, due to the intermittent nature of his self-employment. Mr Adams later stated that his answer to the question was incorrect and the correct answer was that he was self-employed, but not working. Mr Adams explained that he hates paperwork and is not very proficient at filling out forms.
Mr Adams denied thinking of the impact of his income and assets on whether or not he would be granted a Service Pension. He believed that he was entitled to this pension. Mr Adams furthermore stated that he did not think it was necessary to inform the Department of Veterans' Affairs that he was looking for work or that he was intermittently undertaking consultancy work for timber companies. He believed that he was answering the questions according to what his position was at the date he was filling out the form. Mr Adams asked why he should tell the Department about his various business ventures. Mr Adams stated that he was not doing anything wrong, there were no assets in his previous company and there were debts of sixty or seventy thousand dollars. Mr Adams did not agree with Ms Breuer's suggestion that he was attempting to have the best of both worlds by, on the one hand, working intermittently and limiting his income while trying to receive government benefits either by way of a Job Search Allowance or a Service Pension and on the other hand, stating that he was not earning any income or being able to work because of his disabilities. Mr Adams stated that the reason his income was limited to $2,600.00 and in the next year $2,900.00 was because of his ill health and not because he deliberately limited the work he undertook to minimise his income. He conceded that he understood that one could earn one hundred dollars per fortnight and after that the Service Pension would be reduced, and that was a consideration, but the main limitation was caused by the amount of hours that he was able to work because of poor health. He stated that it was not reasonable to suggest he was not wanting to earn more money by working more. Mr Adams stated that he was just not capable of putting the hours into his work.
During 1996, Mr Adams was conducting seminars on industrial relations matters almost continuously, being on the road for four or five weeks at a time. These seminars were run every two days. Mr Adams estimated that in early 1996 he had also undertaken a number of business courses to increase his own level of knowledge and skill. The Workplace Relations Act 1996 was passed in about November 1996. During this time, Mr Adams was moving towards setting himself up and eventually established the company, "Workplace Relations Pty Ltd". Mr Adams explained that as soon as he had learnt of the proposed Act, he registered the name "Workplace Relations". The company itself was formally registered from 1 July 1997. Prior to this, Mr Adams had been preparing relevant literature and conducting seminars for employment organisations. Examples of his newsletters were provided to the Tribunal and Exhibit A5 contains various newsletters from the periods June 1996, August 1996 and June 1997.
Mr Adams stated that he was remunerated for the work he was doing for the Federal Government by provision of a "Government Credit Card" to cover his expenses. Mr Adams explained to the Tribunal that the difference between his expenses and the limit of the credit card was made available to him as his salary. In effect he was giving himself a salary with anything left over from the expenses of running the seminars. Mr Adams was not able to explain the process which allowed him to have a government credit card. He stated that it was a fairly hectic period of low returns, a heavy work load and a great deal of expenditure, but not of his money. The use of the card was an ad-hoc arrangement that he had made with a Senior Adviser to the Minister, to conduct the seminars and to go into the community and test the proposed bill. Mr Adams explained that expenses associated with the seminars were arranged with local business groups whether that be a Chamber of Commerce or other businesses in various towns. Expenditure above this was borne by the credit card. Mr Adams estimated that he received approximately two thousand and fifty dollars for the financial year ending 1997.

On 15 April 1996, Mr Adams wrote to the Department of Veterans' Affairs stating that he had been unemployed for three years and genuinely seeking work during this period (T6, p29-31). In his evidence to the Tribunal, Mr Adams agreed that he had not mentioned in this letter that he was undertaking consultancy work with up to 22 or 23 sawmilling companies or with Campbell and Jones. Mr Adams also agreed that he had not told the Department, "the whole story".
After the Workplace Relations Act 1996 came into force, Mr Adams still continued his work with the individual sawmillers who were worried about the new industrial relations' legislative requirements. The Association had not been servicing the sawmillers' needs and hence they were turning to Mr Adams. At that time, he believed that he was the only person who could help them. Mr Adams would receive remuneration in various amounts either by way of an annual subscription of several hundred dollars or individual payments of approximately $25.00. He did not have any billing records. Mr Adams also had no billing records for Pilliger Cypress Pty Ltd, because Cypine Pty Ltd had gone into receivership and the company's records were not available. Mr Adams stated that he was still undertaking the consultancy work to a level of eight hours per week and that he had last undertaken a consultancy job on the Tuesday before the hearing (Transcript, 27-09-2001, p24). His current fees involve most of the companies or individual clients paying an annual subscription of $250.00 and a fee of $15.00 per employee.
In 1997, Mr Adams found that the busier he was, the better he was physically and mentally. He was finding it increasingly difficult in his decision-making processes. He would panic when crossing a road or having to make an important decision. If he did not keep himself busy, Mr Adams found that he would imagine himself up a hill in Korea. He was still having nightmares and his pillow and sheets were wet with perspiration. Later in evidence, Mr Adams stated that his health continued to deteriorate to the point now where he can only work five hours per week.
Mr Adams stated that he has recently been made an offer by Workplace Relations Pty Ltd to work as its Senior Facilitator but he does feel able to do this. In making this statement, Mr Adams acknowledged that he himself is the company and that effectively he was making the offer of a senior position to himself. Mr Adams stated that the company has probably got the best private database in Australia of decisions in relation to industrial relations matters such as on unfair dismissals. Mr Adams stated that he can help when an individual or company is in trouble industrially or needs help in negotiating employment issues. He told the Tribunal that employment agreements provide his business with the best potential and that he could obtain full-time work anytime from any number of sources in relation to such matters. His business was and is based on word of mouth and Mr Adams believes there is a great deal of potential. If Mr Adams' health was better, he could tap into this market, he told the Tribunal. Mr Adams currently sees himself as working part-time for Workplace Relations Pty Ltd.
On 7 January 1997, Mr Adams completed a claim to the Department of Veterans' Affairs for impotence and sterility, deafness, osteoarthritis and high blood pressure. The claim was lodged on 9 January 1997 (T8). Mr Adams recorded that he was not employed since 1993 and had been unable to find work because of his deafness. In evidence to the Tribunal, Mr Adams stated that while deafness was present, his cessation of work was mainly due to emotional problems. He stated that when he gave seminars, he had to use special sound lecterns and acoustic devices. It was well known in the industry that Mr Adams was deaf. He was not permitted in industrially noisy environments because he presented a safety risk. Mr Adams also noted in the claim form that there was a gradual deterioration in his hearing, which did not effect him until 1993. In evidence to the Tribunal, Mr Adams agreed that he was at that time, working towards the setting up of the company Workplace Relations Pty Ltd, undertaking seminars during 1996 and 1997 and undertaking his own training to develop and improve his knowledge and skills. Mr Adams stated that he was not employed full-time during that period. Mr Adams restated that he was working in 1996, the same way he was working from 1993 and by that, he meant that he considered himself employed part-time from 1993 continuing until 1 July 1997 when Workplace Relations Pty Ltd was formed. Mr Adams later stated that in 1996 he was working more in that year because of the seminars and work on the Workplace Relations Act 1996.
Mr Adams stated that in January 1997, he was working from time to time yet he had ticked boxes in various claim forms that he was unemployed. Mr Adams stated that the forms were correctly filled out in terms of his not having full-time employment. He stated that in 1997, he was dealing with other small to medium businesses in terms of issues to deal with the Workplace Relations Act 1996. This pattern of work continued up until July 1997, advising timber companies and also the Federal Government. While the type of work during 1997 had not necessarily changed, what had changed was that there was a growing market of more diverse companies than just the sawmilling industry who were needing assistance in relation to the Workplace Relations Act 1996. The software he developed while working at Campbell and Jones was enhanced to apply to the more diverse companies and their accounts in terms of matters such as stock control and recovery issues. Mr Adams told the Tribunal that he saw himself as having a business from 1993 until 1997, not always working, but working whenever he had the opportunity.
Mr Adams was not able to recall how many hours he was working per week during the period 1994, 1995, 1996 but during the period when he was conducting the seminars, he thought that he would have worked "dozens of weeks".
In Mr Adams' claim to the Department of Veterans' Affairs for post traumatic stress disorder / anxiety, dated 16 June 1998, which Mr Adams stated was partly completed by him and partly by someone else, it was recorded that Mr Adams was not currently employed and that he had ceased work when at Pilliger Cypress Pty Ltd in 1993 (T19). He recorded in the claim form :
"I was suffering stress, anxiety and impatience. I could no longer relate to people and was forced on to unemployment". (T19, p77).
Ms Breuer put to Mr Adams that it was untrue to record in the June 1998 claim form that he was not working because in evidence to the Tribunal, he had stated that he was working in consultancy work and also with Workplace Relations Pty Ltd at least to the level of five and a half to six hours per week. Mr Adams stated that he was not working full-time. Mr Adams reiterated that in all of the various claim forms, he interpreted questions directed to employment to mean full-time employment. If the question was asked "Are you currently employed?", he took that to mean that he was being asked to record whether or not on the day he was completing the form he was working full-time. If he was not working specifically on that day, then he was not employed. When there was a specific reference to part-time work or self employment, Mr Adams stated that he did not know why he had omitted to record information about his activities in that regard. Mr Adams maintained his explanation that on that particular day when he signed the form, if he was not working then he would not have recorded his employment status as either being self-employed or a part-time worker. This was also the case in relation to his information to the Department of Veterans' Affairs.
Questioned specifically about Workplace Relations Pty Ltd, Mr Adams stated that he was the sole shareholder and Director of the company since July 1997. This company also used sub-contractors rather than employees for administrative support. Mr Adams stated that he had outsourced the administrative support functions in about 1999 for matters such as spreadsheets, in addition to telephone answering functions. Mr Adams stated that this outside support helped to provide the company with a professional appearance without having anyone in the office.
Mr Adams was not able to estimate for the Tribunal how many hours he worked in 1999, but he knew that in the 1998-1999 financial year, his salary was approximately $2,600.00. He thought he would have worked five hours per week. Mr Adams was also unable to inform the Tribunal of what he earned in the 1999-2000 financial year. He did not have the Company's Tax Returns but stated that Workplace Relations Pty Ltd was a growing business.
In Exhibit R3, p19, Mr Adams was referred to the fees received for 1998 and 1999 as compared with the 1999-2000 fees. Mr Adams was asked how it could be that the earnings in 1999 were seven times greater than those made in 1998. Mr Adams did not agree that these figures suggested that he might have been working greater than eight hours per week. Mr Adams stated that he had tried to work greater than five or six hours in recent times but could not. The reason that there was an increase in fees received in 1999 was that there was more opportunity. He had learnt to know what the market would bear. Furthermore, later in evidence, Mr Adams stated that there had been an increase in fees received in 1999 because he had worked on three or four long-term projects in the previous year. The completion of the results of his work had been delayed because a number of employment agreements were late in being approved by the Industrial Relations Commission. The fees received in 1999 thus referred to work done in the previous year. Mr Adams agreed that he could charge more for his work because there was so much work around. You could quote "outrageously", Mr Adams stated (Transcript, 27-09-2001, p82).
Mr Adams was asked why when he had received $37,026.50 in income, he had only paid himself $2,600.00 in 1999. Mr Adams stated that amount was all he needed and all he could be paid in order to keep him under the pension income limit. The pension was a factor in limiting payment to himself, he agreed, but the main factor was that he could not work because of his war-caused disabilities. Mr Adams stated that he would dearly love to earn more money and to work longer hours but he just could not do this. He was at a time in his life where he had his greatest earning capacity yet because of ill health, he was not able to take advantage of this, Mr Adams told the Tribunal. If he wanted to run the business in the manner in which he thought it should be run, he would need two hundred hours per week, Mr Adams stated. He explained that he could not run a team of employees or have consultants do the work because he was not capable of the supervision required. Furthermore, Mr Adams did not trust others to have the knowledge and experience to operate in the way he wished the company to be run.
When questioned as to the discrepancy in his evidence concerning the hours he worked, having initially reiterated on a number of occasions that he was working eight hours up to the current time, Mr Adams changed his evidence. He stated that he worked between five or six hours and this had been the case for the last three years.
Mr Adams told the Tribunal that he has a vehicle which he mainly uses for business but occasionally for personal use. He tends to be assisted in terms of transport by his brother. Workplace Relations Pty Ltd operates out of a room in his flat. The company has a laptop computer and Mr Adams has a personal computer.
Mr Adams considers that his general health has deteriorated but in terms of his mental health, he has improved since consulting Dr Altman, Psychiatrist, in 1998. On medication and keeping himself busy, Mr Adams feels better. Mr Adams told the Tribunal that if he is not thinking about the Workplace Relations company, then he starts to think about being on the hill in Korea. He stated that he does not have a great social life and has no friends. The improvement as a result of his treatment by Dr Altman is an improvement in the way he feels but not to the extent that he could increase the hours he is able to work beyond the five or six hours which he has worked for the past three years. Mr Adams has been prescribed "Prozac" and "Phenergan" which help him to sleep and reduces his nightmares. Mr Adams sleeps for three or four hours from about midnight. He stays up late and then sleeps in. Mr Adams' neighbours have commented to him on his demeanour and how he appears at times to be distant or distracted. Mr Adams believes that his general deterioration started before 1993.
Mr Adams stated that he could not distinguish his employment functions between 1993 to 1997 other than to say that he was in an employee-related situation in the sawmilling industry when he was working for Pilliger Cypress Pty Ltd but he also worked concurrently as a consultant which was more creative, particularly in relation to the work with the sawmillers. After 1997, he considered his work may have been more related to self-employment with different initiatives but the work from 1997 continued with more diverse client industries coming into it. For example, Mr Adams was undertaking more work within the security industry and he had to increase his knowledge about that industry. Nothing had changed greatly other than he was working for more companies with a focus beyond the timber industry. Mr Adams was still preparing employment agreements and advising and consulting on industrial relations-type matters.
Mr Adams stated that he still maintains his database and reads decisions of the Industrial Relations Commission and of the Federal and High Courts. He looks at the Internet every morning concerning possible decisions. This process only takes a short time as many decisions are not related to his area of interest. He might spend a couple of minutes each day in this activity. Mr Adams also subscribes to a computer magazine so that he keeps up to date with software developments. He is also reading more books and has been asked to prepare an hour and a half session for school children in relation to the Korea War. This request has been made through the Korea Veterans' Association.
Mr Adams was asked about business cards that he has had over the years. Mr Adams stated that in an attachment to Exhibit A5, there was a business card entitled "Bruce Adams Enterprise Consultant" which he thought was the card he was using in 1994-95. On questioning however and noting that the card indicated that he specialised in enterprise agreements, Mr Adams indicated that the card was probably more likely to have been the one he used in 1996. Mr Adams stated that he did not have a business card when he worked at Pilliger Cypress Pty Ltd as he was not out on his own touting for extra work. Page 3 of Exhibit A5 has another business card entitled in "Workplace Relations – Bruce Adams Enterprise Consultant". This card was attached to one of the Workplace Relations newsletters issued as a special edition in 1996. Page 4 of Exhibit A5 has a another card, which Mr Adams stated was his current business card. It again is entitled "Workplace Relations" and records that Mr Adams is the "Principal Advisor / Facilitator". Mr Adams stated that while the card may give an impression of their being other advisers, this was the impression he was trying to create. The reality is however that he is the only adviser and facilitator and that all of the administrative functions are being dealt with off site.
Mr Adams concluded in terms of the way he had completed various claim forms with the Department of Social Security and the Department of Veterans' Affairs that he had always taken "employment" and "work" to mean full-time work. He did not set out to obtain to any benefit that he was not entitled to receive. He acknowledged that there were some questions that he had not interpreted in the way that he should have. He did acknowledge that he had taken his income to the limit rather than bringing it down. He would have liked to have been able to earn full wages and not have to rely on a pension. Income was not as important to him as being able to work a full 38 to 40 hour week or seven days a week as is required in small business activities. Mr Adams stated that he had tried on a number of occasions to increase his hours past eight hours but he could not do it. (Transcript, 27-09-2001, p103). Dr Altman had told him that he should not be working five hours and that Mr Adams should not be working at all. Mr Adams stated that he could not take this advice because if he was not busy he would be remembering his time in Korea. He did not wish to be confronted with those memories. Thinking about the business did not involve a great deal of activity - just thinking. Mr Adams stated that activities such as researching on the Internet is saved for times when he is being paid. Mr Adams further informed the Tribunal that he works on a "continuous improvement objective" and everything he does he tries to do better the next time. He plans to keep the company going and knows that the Workplace Relations name itself has value because people are trying to buy it from him. In recent times, he has established ownership of the name "workplace relations.com.au" and "Work-Pending-Workplace-Relations.vus". These names are very valuable, Mr Adams stated and he wanted to think of the business growing into a "monstrous enterprise" so that he could stand back and look at what he started as a baby. He tries not to dwell on these ideas too much however.
MEDICAL EVIDENCE
Evidence Of Dr G Altman, Consultant Psychiatrist
Dr Altman provided a report dated 18 August 1999 (T29). Dr Altman noted that Mr Adams served in the Korea war from 1951 until 1953 for a total of twenty months. Dr Altman noted that Mr Adams saw people being killed and wounded and had in fact been wounded twice himself. He had seen numerous corpses and had to pull out the wounded and dead on a number of occasions.
Dr Altman opined that as a result of Mr Adams' experiences during the Korea War, he suffers from a severe chronic post traumatic stress disorder with an associated major depression. In Dr Altman's further opinion, Mr Adams' psychiatric impairment under Table 4 of the "Guide to the Assessment of Veterans' Pensions" 5th Edition ("the Guide") is 52 points. Dr Altman concluded that as a result of his psychiatric disorder alone, Mr Adams is totally and permanently unfit to work and should be placed on the "T& PI" disability pension.
Dr D K Dowda, Consultant Occupational Physician
Dr Dowda provided a report dated 13 March 2001 (Exhibit A6). Dr Dowda noted that at that time Mr Adams was taking the medication "Diaformin" and "Insulin" twice per day. Mr Adams was also taking: "Prozac", two tablets twice a day; "Phenergan", two tablets twice a day; "Celebrex"; and "Zocor", one tablet at night. Dr Dowda noted that Mr Adams has the conditions of post traumatic stress disorder, hearing loss, osteoarthrosis of the left knee, impotence, sterility and diabetes. Mr Adams described his hierarchy of problems for Dr Dowda as the most significant being the generalised anxiety disorder and post traumatic stress disorder. Mr Adams told Dr Dowda that he considers that his emotional situation is the most limiting factor with respect to be him being able to carry out sustained work.
Dr Dowda concluded that it was his overall impression on the history provided to him by Mr Adams, that his primary limitation in his work capacity is as a result of his emotional or psychological disorder. This condition impacts upon his ability to work because of his vagueness and forgetfulness. Mr Adams' hearing impairment combined with the psychiatric condition are the most significant factors contributing to Mr Adams' inability to work. Dr Dowda noted that on the information provided, he could not be accurate or definite in his statement that these conditions limited Mr Adams to five hours average per week of work, which he believed Mr Adams had been doing since 1993. These estimates were based on Mr Adams' own statement and Dr Dowda opined that the opinion of the psychiatrist regarding Mr Adams' work capacity needed to be taken into account. The impact of Mr Adams' left knee condition and impotence on his capacity to work is minimal, in that he could carry out work notwithstanding these conditions if the work was semi-sedentary or clerical-based such as in using a computer, using a telephone and/or working from home.

Dr Dowda opined that as an Occupational Physician, on the presentation Mr Adams gave him on the day of examination, Dr Dowda was unable to quantify the amount of work that Mr Adams would be able to undertake, that is, whether Mr Adams would be able to work up to or beyond eight hours per week. Dr Dowda reiterated that all he had to go on was Mr Adams' statement that he had tried to increase his work to six hours but was unsuccessful in doing so.
Dr A Hordern, Consultant Psychiatrist
Dr Hordern provided a report dated 6 September 2000 (Exhibit A7) following an examination of Mr Adams on 10 August 2000. Dr Hordern opined that Mr Adams provided truthful and accurate accounts of his illness and his background within the constraints of its long duration and the time available in the examination. Dr Hordern noted that Mr Adams had mentioned his difficulties, describing his army service, his post service career, his family history and early personal history. Dr Hordern used that information obtained in the interview together with material made available to him by the Department of Veterans' Affairs.
Dr Hordern opined that Mr Adams has long suffered and continues to suffer from a chronic, severe post traumatic stress disorder resulting from the stresses he experienced during his period of active service (1951-1952) in the Australian Army during the Korea War. This opinion is supported by the opinions of Dr G Vickery, Psychiatrist (T20) and Dr G Altman, Consultant Psychiatrist (T29). Dr Hordern noted also that Mr Adams suffers from osteoarthrosis of the left knee and bilateral perceptive deafness. Mr Adams was also noted to have experienced impotence since the 1960s. Dr Hordern rated Mr Adams' post traumatic stress disorder using Chapter 4 of the Guide, at an impairment level of 36 points. Dr Hordern concluded that it was unlikely that Mr Adams conditions will improve significantly and he should continue to have psychiatric treatment.
Dr R D Lewin, Adult General and Forensic Psychiatrist
Dr Lewin provided a report dated 22 August 2000 (Exhibit R5). Dr Lewin noted that Mr Adams gave a clear history of intermittent anxiety symptoms dating from his period of service overseas in Korea. There was also a history of an intermittent abusive alcohol pattern, but problems relating to alcohol abuse and use of prescribed sedatives at the time of Dr Lewin's examination were in remission. Dr Lewin noted that Mr Adams had entered psychiatric treatment approximately eighteen months ago and since then, the clinical features suggestive of a post traumatic stress disorder had emerged more prominently.
In Dr Lewin's opinion, Mr Adams suffered a long-term anxiety disorder, with the most appropriate diagnosis being generalised anxiety disorder. While there were some features suggestive of post traumatic stress disorder, Dr Lewin stated that he could not make the diagnosis of that condition at the time he interviewed Mr Adams. Dr Lewin noted during his service, Mr Adams had served in a combat unit and was actively exposed to combat experience on repeated occasions. Mr Adams had held a position of leadership in the Army and had described for Dr Lewin his rapid promotion through the ranks from Private to Senior Warrant Officer. Dr Lewin noted that this is the most senior non-commissioned rank. In Dr Lewin's opinion, it was clear to him that Mr Adams was an "exceptional serviceman" and this is consistent with the history of military service that Mr Adams provided to Dr Lewin. Using Chapter 4 of the Guide, Dr Lewin concluded that the appropriate rating for Mr Adams' generalised anxiety disorder was initially 28, but having received further information from Mr Adams in relation to how neighbours of Mr Adams perceived him, Dr Lewin increased his impairment rating for generalised anxiety disorder to 32 points.
Dr P M Furey, Occupational Physician
Dr Furey provided two reports dated 20 October 2000 (Exhibit R6) and 20 March 2001 (Exhibit R7). Dr Furey examined Mr Adams on 25 August 2000.
Dr Furey opined that Mr Adams' deafness, although not major, has a bearing on his ability to relate to others and undertake recreational activities. Mr Adams' left knee is painful and restricts his physical activities including exercising and his recreational activities are severely limited. Dr Furey opined that Mr Adams' generalised anxiety disorder is quite major and affects everything he does. In relation to post traumatic stress disorder, Dr Furey opined that this is a very prominent part of Mr Adams' nervous state and therefore it has a severe effect on his personal relationships and ability to undertake community, recreational and domestic activities. Mr Adams' impotence has caused him deep and lasting psychological traumas. In relation to the condition of hypertension, Dr Furey opined that this has no effect. Dr Furey further noted that Mr Adams' age has not got anything to do with matters and should not be a factor in consideration.
In his second report, Dr Furey concluded, having taken an employment history from Mr Adams, that Mr Adams had been undertaking remunerative work on the date of his application for a Service Pension, dated 13 December 1996, and at that time, he was self-employed. Dr Furey noted that also at that time Mr Adams was undertaking paid work that he had been doing between 1993 to 1996 for four to five hours per week. Dr Furey noted that in 1979, Mr Adams had commenced his own business which was a sawmill processing plant. On the information provided to Dr Furey, Mr Adams was quite successful but in 1981 he sold out. From then he managed a timber company in the North West Pilliger area and in 1993, Mr Adams left the manager's role as he was becoming forgetful, distracted and his hearing was worsening. Dr Furey noted that at that time, Mr Adams retired.
Dr Furey concluded that Mr Adams' accepted disabilities would not be obvious to a prospective employer and would not prevent him from obtaining employment. Considering Mr Adams' skills, experience and qualifications, Dr Furey opined that on the balance of probabilities, Mr Adams' accepted disabilities would render him incapable of undertaking remunerative work for eight hours or more per week during the assessment period from 13 December 1996 to the present. Dr Furey noted that Mr Adams becomes panicky and would not be able to undertake longer hours. Mr Adams' accepted conditions of bilateral perceptive deafness and osteoarthrosis of the left knee would not be the sole or substantial cause of Mr Adams being unable to work. However, the combination of all the accepted conditions of generalised anxiety disorder, bilateral perceptive deafness and osteoarthrosis of the left knee would be the sole cause of his unfitness to work during the assessment period. Dr Furey concluded that the only non-accepted condition that would have an effect on Mr Adams' inability to undertake remunerative work was his post traumatic stress disorder.
Mr C Merrick, Accountant
Mr Merrick provided a letter "To Whom it May Concern" dated 21 May 2001 (Exhibit A1). Mr Merrick noted that the accountancy practice of C. Merrick & Co. Pty Limited acts for Workplace Relations Pty Ltd, in financial and accountancy matters in the Newcastle-Hunter Region and in other areas. Mr Merrick noted that Mr Adams founded Workplace Relations Pty Ltd in 1995 and reserved the name with the Australian Securities Commission. The name was fully registered in June 1997 and became operational on 1 July 1997 with Mr Adams as sole Director and shareholder. Mr Adams retained part-ownership of the company.
Mr Merrick noted from February 1993, prior to the start-up of Workplace Relations Pty Ltd, Mr Adams traded as a sole trader in his own name. Mr Merrick understood that Mr Adams had previously provided newsletters, seminar brochures and business cards as evidence of his sole trader status.
Mr Merrick noted that Workplace Relations Pty Ltd has no contractual written arrangements with Mr Adams, but it has a standing offer/agreement from the company for all of the hours that Mr Adams is able to work. Mr Merrick noted that recently the company made a very attractive offer to Mr Adams to move to a position with the national authority. However his general health prevented him from accepting this offer.
Mr Merrick offered the opinion that because of Mr Adams' poor health as a result of his Korea War-caused injuries, it is important that the Department of Veterans' Affairs finalise this matter as soon as possible so as to minimise the stress placed upon Mr Adams. His capacity for work is reduced by stress to substantially less than one day a week.
Mr Tom Underwood
Mr Underwood provided a Statutory Declaration dated 21 September 2001 (Exhibit A2). Mr Underwood stated that he had known Mr Adams for 33 years and they first met when Mr Adams was Director of Training for the New South Wales Timber Advisory Council. He worked closely with Mr Adams also when Mr Adams was Manager of the Employer Association, Associated Country Sawmillers. At that time, Mr Underwood was Chairman of Cypress Pine Division. Mr Underwood noted that Mr Adams established Cypine Pty Ltd. He continued with this company as the General/ Production Manager until about 1988 when he established Pilliger Cypress Pty Ltd, where he was the Production Manager until approximately February 1993. After February 1993, Mr Adams became a consultant to the industry on sawmiller- associated matters during the remainder of 1993, 1994 and 1995. Mr Adams tended to specialise in occupational health and safety and employee relations consulting. Mr Underwood noted that in 1997, Mr Adams established Workplace Relations Pty Ltd and continues with that company as its Senior Adviser / Facilitator, part-time, principally working in the preparation and approval of Employment Agreements.
Mr John Guihot
Mr Guihot provided a Statutory Declaration dated 21 September 2001 (Exhibit A3). Mr Guihot stated that he has known Mr Adams for approximately fifteen years and associated with him except for the last few years. They first met in 1986 when Mr Adams was Manager of Cypine Pty Ltd. Mr Guihot became Mr Adams' offsider responsible for maintaining sawmilling and logging operations and machinery and equipment in Cypine Pty Ltd. About the end of 1988, Mr Adams established Pilliger Cypress Pty Ltd, a sister company to Cypine. Mr Adams left Pilliger Cypress in early 1993 at the height of the recession, Mr Guihot noted. After Pilliger Cypress Pty Ltd, Mr Adams became a consultant to other sawmillers in the industry and continued to do this until 1995. After that, Mr Adams spent several years on safety training and industrial relations matters inside and outside the sawmilling and timber industry. Mr Guihot noted that Mr Adams worked part-time for Workplace Relations Pty Ltd as its Senior Adviser on industrial relations matter since about 1997 and is still with the company.
Submissions
In relation to the entitlement matter concerning impotence, which had been conceded by the Commission, Mr Jones submitted that the correct assessment of this condition would be ten points from the Guide and that for the period 13 September 1996 until 31 March 1998, Mr Adams should be assessed at 60 per cent of the General Rate.
Mr Jones submitted that Mr Adams was a capable and intelligent man but after thirty minutes giving evidence, it was evident that he was affected by poor concentration and became distressed, all of which is consistent with Dr Altman's report. Mr Jones noted that Mr Adams' appearance at the Tribunal is the first occasion he has had the opportunity to give his evidence and to be cross-examined.
In relation to Mr Adams' credibility, Mr Jones said that this was bought into question by reference to various forms he had submitted to the Department of Social Security on social security benefit matters and to the Department of Veterans' Affairs. Mr Jones submitted that the questions on the forms were ambiguous. It may be difficult, Mr Jones acknowledged, for the Tribunal to conclude that Mr Adams was being entirely frank in the completion of various claim forms and it is a matter for the Tribunal whether Mr Adams is believed or not. Mr Jones submitted that it would seem unlikely however that Mr Adams would deliberately limit his income to obtain some lower paid governmental benefit and deprive himself of more lucrative income from his work efforts, if he did not have to, because of his ill-health, limit the hours he worked. If the Tribunal was of the view that Mr Adams did not complete the forms accurately, this had no bearing on the application of Section 24 of the Act, Mr Jones submitted. At its highest point, the evidence from the Department of Social Security forms indicates that he applied for Social Security benefits in October 1993, June and July 1994 and rent assistance on one occasion. Mr Jones submitted that there is no evidence that Mr Adams was incorrectly paid. Social Security benefits were paid after he left Pilliger Cypress Pty Ltd and before he applied for the Service Pension. Specifically in relation to the Service Pension, Mr Jones submitted that there is no evidence detailing when the pension was granted and on what grounds it was granted. Service Pensions are age-related and are asset tested.
Mr Jones submitted that the real issue in this matter is whether or not Mr Adams meets Section 24 of the Act and specifically subsections 24(2A)(d),(e) and (g). Mr Jones submitted that Section 24 does not require that a veteran must cease all remunerative work. Mr Adams accepts that he undertook remunerative work from time to time. The test for over 65 year old veterans in relation to the Special Rate is that if subsections 24(1)(a) and (b) are satisfied, then one has to look to the impact of war-caused conditions on the work the veteran was last undertaking. In this regard, Mr Adams is entitled to work up to eight hours per week.
In relation to subsection 24(2A)(d), Mr Jones referred the Tribunal to the Federal Court decision in Carter v Repatriation Commission (2001) 66 ALD 139 in which Branson J noted at paragraph 22 :
"… A consequence of this construction of the phrase "the remunerative work… that the veteran was last undertaking…" would seem to be that a veteran who was, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from undertaking work as a full-time partner in an accounting practice, but not prevented from undertaking on a contract basis limited and irregular audit work (even though such work was not in fact undertaken), might not be able to establish that he or she was because of that incapacity alone prevented from undertaking his or her last paid work. I am inclined to doubt that such a construction of s24(2A)(d) would reflect the intention of parliament. Moreover, it is to be observed that s24(2A)(g) is not concerned with whether a veteran had at the crucial time been undertaking the same remunerative work for a continuous period of at least ten years, but merely with whether the veteran, if employed, had been working with the same employer or, if self employed, in the same profession, trade etc, for a continuous period of at least 10 years."
Mr Jones further submitted in relation to that decision, that Branson J noted that a veterans' "last paid work" within the meaning of subsection 24(2A) of the Act is "the remunerative work… that the veteran was last undertaking before he or she made the claim or application: s24(2A)(d)". Section 5Q of the Act defines "remunerative work" broadly to include "any remunerative activity". Branson J further noted that subsection 24(1)(b) of the Act is concerned with the degree of incapacity, subsection 24(2A)(d) of the Act is concerned with the reason which prevented the veteran from continuing to undertake his or her last paid work and subsection 24(2A)(g), with the demonstration of a long-term intention to undertake a particular type of work beyond the age of 65 years. Mr Jones submitted that Branson J found that any work can be the last paid work. Mr Adams' consulting work in the timber industry spans a ten year period, Mr Jones contended.
In relation to subsection 24(2A)(e) of the Act, regarding the loss of salary, wages or income, Mr Jones submitted that it is clear that Mr Adams suffered a loss of income. The Tribunal was referred on this point to the Federal Court decisions in Starcevich v Repatriation Commission (1987) 18 FCR 221 and Banovich v Repatriation Commission (1986) 69 ALR 395. Mr Adams was either earning less because of war-caused conditions or he suffered a loss of income because of his war-caused conditions, Mr Jones submitted. It is clear, Mr Jones contended, that Mr Adams had and has more work available to him, but he cannot take up these work opportunities because of his war-caused ill health.
Mr Jones submitted the real issue in this matter is the application of sub-section 24(2A)(g)(ii) of the Act, which deals with the issue of self-employment. Mr Jones submitted that it is arguable that subsection 24(2A) may not be applicable to Mr Adams because he has not ceased working. The section is poorly drafted and Mr Jones submitted that if the Tribunal found that Mr Adams did not satisfy the ten year test, if he was continuing to work for five further years, then he could re-apply and perhaps qualify for a Special Rate pension.
Mr Jones submitted that Mr Adams worked as a consultant to various players in the timber industry starting in 1979/1980 when he started Cypine Pty Ltd, having left the Sawmillers Association. Mr Adams undertook consultancy jobs and continued with these to the present. In fact, Mr Adams had last undertaken some consultancy work some two days before the hearing. Mr Jones contended that the Federal Court in Carter v Repatriation Commission (supra), dealt with remunerative work and found that it is irrelevant whether the person is self-employed or works full-time, as long as the work is continuous. Mr Adams was continuing to do the work for less and less hours and receiving less and less money. In Mr Jones' submission, continuing does not mean daily or weekly. It would be different if Mr Jones had gone to work in a different profession but he had not, he maintained the same professional outlook and business, Mr Jones contended. Mr Jones concluded that Mr Adams meets the ten year test and is unable to work beyond five hours per week because of his war-caused conditions following his increasingly poor health. Mr Jones relied on Mr Adams' statements at T6, p29-30 and T7, p37 which state that Mr Adams was not working because of illness. Furthermore, the continuity of Mr Adams consultancy work is attested to by his producing the newsletter noted at Exhibit A5.
Ms Breuer, for the Respondent, submitted that it is clear from the case law that all of the criteria for Special Rate must be met and referred the Tribunal to a discussion of this issue in Starcevich v Repatriation Commission (supra). Ms Breuer submitted that this matter is a factually confusing case with Mr Adams' credibility a major factor for the Tribunal to determine. Mr Breuer submitted that almost all the history before the Tribunal comes from Mr Adams. There are no relevant tax records for Pilliger Cypress Pty Ltd and Mr Adams stated that the personal tax returns were not lodged between 1993 and 1996. Mr Adams' evidence concerning billing for his consultancy work was also very scratchy, Ms Breuer submitted. The only way Mr Adams could be successful, Ms Breuer contended, is if his evidence was totally accepted. What documentary evidence there is, Ms Breuer submitted, is at variance with Mr Adams' evidence.
Specifically, Ms Breuer noted that it was not clear what hours Mr Adams is currently working. Mr Adams' position towards the end of his evidence was that he was working five hours or less. There were explanations in relation to Mr Adams' filling out of various Department of Social Security and Department of Veterans' Affairs forms that he may have been confused in discussing his working hours and the type of work that he was undertaking. Referring to page 24 of the Transcript (27-09-2001), Ms Breuer noted that Mr Adams' evidence was that he worked about eight hours per week from 1993 up until the present and this occurred over seven days per week. Then later, as recorded at pages 27 of the Transcript (27-09-2001), Mr Adams states that he cannot work beyond five hours per week. On page 52 of the Transcript, Mr Adams noted he was working an average of five and a half hours, perhaps six hours or maybe four hours per week. At page 96 of the Transcript, Mr Adams stated that his work now had dropped off to five hours, and then later he said five to six hours.

Ms Breuer referred to another example of Mr Adams' unreliable evidence. When asked questions about details he had recorded in a Department of Social Security document (Exhibit R2, p1), Job Search / Newstart Allowance form, completed on 31 July 1994, Mr Adams stated he was working for the company Campbell and Jones with payment mainly made in kind, in the form of board or lodging or nominal fees. In the claim form however, Mr Adams lists Campbell and Jones as an employer with whom he had sought work between 19 July 1994 and 1 August 1994. Mr Adams had said in evidence to the Tribunal that he could not recall why he put this in the Job Search application when his evidence to the Tribunal was that Campbell and Jones had approached him to work for it.
Other serious credibility issues are evident, Ms Breuer submitted, from the way in which Mr Adams completed the Department of Social Security forms, stating that he was not employed when in fact his evidence to the Tribunal was that he was employed. Mr Adams' explanation was that he considered that the term "employment" in questions meant full-time employment. He thus answered that in the negative because he was only employed part-time.
Ms Breuer referred the Tribunal to Mr Adams' Service Pension claim (Exhibit R1) signed by Mr Adams and dated 24 April 1995. Question 4 of the form asked whether or not Mr Adams was presently employed and specifically included the categories "part-time", "casual" and "self-employment". Mr Adams had answered that he was not employed in any of these categories, giving the date he ceased any form of work as February 1993. Mr Adams had also answered "No" to Question 37 which asked whether he was involved in a business. Yet, Mr Adams' evidence to the Tribunal is that he has been undertaking consulting work for at least ten years. At page 88 of the Transcript (27-09-2001), Mr Adams states that on 24 April 1995, he was self-employed, but on that precise date, may not have been working as his work was intermittent. Thus, he explained, he may have filled the form out indicating that he was not working because on that particular day, he had no form of actual work from his self-employment. Ms Breuer pointed the Tribunal to Mr Adams' later evidence that he did not consider it necessary to inform the Department of Veterans' Affairs that he was undertaking consultancy work intermittently for the timber industry.
Ms Breuer submitted that Mr Adams was claiming a benefit beyond the date he filled in the form. His answers were not credible and he should have informed the Department of Veterans' Affairs that he had a business and was self-employed, Ms Breuer contended.
A further example of Mr Adams' poor credibility relates to his evidence to the Tribunal that he was forced out of Pilliger Cypress Pty Ltd, Ms Breuer submitted. Mr Adams is asking the Tribunal to conclude that he forced himself out of Pilliger Cypress Pty Ltd because of his anxiety at the time when he was the Director, General Manager and sole shareholder and trying to fulfil the duties of his managerial positions. Ms Breuer submitted that Mr Adams was forced out of the company when it was in fact himself, as the Director and General Manager, who made the decision. This evidence should be contrasted with the contemporaneous information Mr Adams supplied to the Department of Social Security in the "Employment Separation Certificate" (Exhibit R2, p8) that his employment terminated at that time because of a shortage of work. Ms Breuer contended that Mr Jones' submission concerning the issues of inconsistent information being supplied on Department of Social Security and Department of Veterans' Affairs' forms as not being a serious issue, could not be sustained when these examples of Mr Adams frequent inconsistency are so pervasive.
Ms Breuer referred the Tribunal to Mr Adams' letter to the Department of Veterans' Affairs written on 15 April 1996 (T6, p29), in which there is no mention that between 1993 and 1996, he was working for 22 or 23 different companies as he told the Tribunal. In that letter, he also noted his frustration at the then Commonwealth Employment Services' lack of support in his job search efforts, when in fact he was working in various consultancy roles and had also told the Tribunal that the company, Campbell and Jones, had approached him to take up work with them. Ms Breuer noted that Mr Adams had stated in that letter that if the CES had competently handled his case, he may have found employment within six months of first becoming unemployed. He also noted in that letter that he had been "surviving on the seat of my pants for nearly 3 years of unemployment and genuinely searching for work". He put his lack of employment down to incompetence by the CES sprinkled with age discrimination (T6, p31). Further oral evidence by Mr Adams is contrasted with his application for Job Search / Newstart Allowance, signed and dated on 31 July 1994 (Exhibit R2, p1 and 2), in which Mr Adams stated that he was seeking employment from Campbell and Jones and also Cypine Pty Ltd. Ms Breuer contended that any decision that the Tribunal makes in this matter must be made in the context of Mr Adams' answers in various claims and letters to the Department of Veterans' Affairs and the Department of Social Security, which contrasts completely with the evidence he provided to the Tribunal. Ms Breuer submitted that these forms are all signed and contain significant information which in the completion of the forms, Mr Adams would have had to have thought about and considered carefully.
Ms Breuer contended that Mr Adams has provided different information to different organisations depending on the circumstances and the purpose. Thus, between 1993 and 1996, Mr Adams is purporting to government departments that he cannot obtain work but then he is presenting to the Tribunal in 2002 that he was working during this time and continuously over a ten year period. In the letter to the Department of Veterans' Affairs of 15 April 1996, Mr Adams is purporting to be setting up his own business. In another letter to the Department of Veterans' Affairs dated 11 December 1996 (T7, p37), Mr Adams states that since the 1993 recession, he has been trying to bring himself up-to-date in human resource/industrial relations matters so that he can find employment. He notes that his hearing loss almost totally prevents him interacting with an audience and he has been unable to gain employment. Again, this is contrary to the evidence to the Tribunal that during that period he was undertaking consultancy work. Ms Breuer referred the Tribunal to Mr Adams' claim form for Disability Pension made on 7 January 1997, for the conditions of sterility, deafness, osteoarthritis and high blood pressure in which Mr Adams recorded that he last worked in 1993 because of deafness (T8). There was no mention in this claim form of his consultancy work.
Ms Breuer referred the Tribunal to Mr Adams' most recent claim for Disability Pension for his psychiatric condition, dated16 June 1998, in which Mr Adams stated that he ceased work in 1993 because he was suffering stress, anxiety and impotence (T19). He stated that he could no longer relate to people and was forced on to Unemployment Benefit (T19, p77). The Commission had made a decision on that matter on 2 October 1998 in which it was noted that Mr Adams was 67 years of age and had retired from the workforce in 1993. Accordingly, the Commission had concluded that Mr Adams' age and length of time out of the workforce would be factors preventing him from working. Ms Breuer noted that when Mr Adams lodged his appeal to the Board (T26), there was no mention of him working beyond 1993 and the issue of Special Rate was not raised. Ms Breuer submitted that with such serious credibility issues, Mr Adams could not satisfy subsection 24(2A) of the Act as the Tribunal could not be satisfied that the war-caused disabilities alone prevented Mr Adams from continuing to undertake the remunerative work he was last undertaking before he made the claim.
In the context of a submission of Mr Adams' extremely poor credibility, Ms Breuer considered subsection 24(2A)(g). Ms Breuer contended that Mr Adams' last paid work must be determined. Referring to Carter v Repatriation Commission (supra), Mr Carter had a problem with how his full-time accountancy practice could be equated to part-time audit work. Ms Breuer submitted that it was clear from paragraph 22 of that decision, that the last paid work has to be specific and not general. Ms Breuer submitted that Mr Adams' last paid work before the claim was in employee relations-related matters and consulting within the timber industry. This evidence is based on objective material contained in Exhibit R2 at page 9, where Mr Adams wrote that he last worked on 26 February 1993 and again at page 7 of Exhibit R2 in his claim for a Job Search Allowance, where he stated that he last worked on 24 February 1993.
Considering subsection 24(2A)(g)(i) on the one hand, there is evidence that Mr Adams ceased working in February 1993 yet we have other evidence that he continued his consultancy work. Ms Breuer submitted that it seems to be that Mr Adams was formulating his ideas in terms of the Workplace Relations company and also training and developing his skills. Ms Breuer submitted that there is no objective evidence that Mr Adams was working continuously until 1996. There is a three year break and therefore this would not satisfy the ten years continuous work requirement contained within subsection 24(2A) of the Act.
If the Tribunal rejected that argument, then Ms Breuer submitted that the Tribunal may gain some guidance from Thomson v Repatriation Commission (2000) 96 FCR 550. In that decision (at paragraph 10), the Federal Court referred to Grant v Repatriation Commission [1999] FCA 1629:
"As was pointed out by Full Court, subsection (g) of s24(2A) is concerned with the capacity in which the last paid work was undertaken. A veteran meets the requirements of the subsection if the last paid work has been undertaken in the relevant capacity for a continuous period of at least 10 years. If the capacity is as an employee, the veteran must have been employed by the same employer (or its predecessor) continuously for the 10 year period. If the veteran is self-employed, then the last paid work must have been undertaken in that capacity continuously for the 10 year period. When subclause (ii) refers to the requirement that the self-employed veteran must have been "so working" continuously for the 10 year period, the reference is to the capacity in which the veteran worked
…
As explained above, subcll (i) and (ii) make it quite clear that s24(2A)(g) is concerned with the capacity in which the last paid work was undertaken. The purpose of those subclauses in s24(2A)(g) appears to be to prevent claims by veterans over sixty-five years of age that are based on new or recent employment or self-employment (ie in the present context, less than 10 years in duration).…"
In the decision of Thomson v Repatriation Commission (supra), it was noted that temporary unavailability of work or periods of illness or sickness would not, if satisfactorily explained, disentitle a claimant from qualifying for the ten year period. The Full Court determined that the whole of the ten year period should be considered rather than a snap shot at the end.
Ms Breuer submitted that a break for Mr Adams occurred because he was looking for work as an employee and not as a Consultant. Mr Adams has asserted that he was self-employed and on that basis, Ms Breuer submitted that he had a different employment status. Ms Breuer further referred the Tribunal to Exhibit R2 at page 9 which is the Client's Report to the Department of Social Security signed by Mr Adams on 26 October 1993. At that point, Mr Adams had recorded that he was trying to look for work with three companies as an employee and he further noted that he was fit for full-time employment. Ms Breuer submitted that this set of circumstances does not satisfy the criteria for subsection 24(2A)(g) of the Act.
The Tribunal was referred to Mr Adams' evidence that after he left Pilliger Cypress Pty Ltd, he tried to find full-time work in the industry from middle management up which would also allow him to undertake his consultancy work. Thus there are two distinct types of work. At page 60 of the Transcript, Mr Adams quite definitely said that he was looking for work or any sort of management work which would allow him to continue his consulting work. He had noted that there were two distinct work situations, that is working for the timber companies and running them and then his consulting work to the timber companies.
Ms Breuer submitted that Mr Adams' claim for Special Rate should fail when reference is made to his letter of 15 April 1996 to the Department of Veterans' Affairs (T6). Mr Adams stated that he was going into a new area of work. He further noted that he had a great deal of retraining to undertake in his new area of endeavour such as to do with occupational health and safety, equal employment opportunity, anti- discrimination issues, sexual harassment and privacy matters. He needed this training to qualify for his new role. Ms Breuer submitted that Mr Adams' previous work related to his data base material, improving the software and the efficiency and effectiveness of the sawmilling industry. Therefore, Ms Breuer submitted that there was also a break, quite evident from the evidence, during which Mr Adams retrained and updated and obtained skills in order for his new role. This is the substantial break as referred to in Thomson v Repatriation Commission (supra), Ms Breuer opined.
A further issue which the Tribunal must consider, Ms Breuer submitted, is whether or not Mr Adams has ceased working to the level of less than eight hours per week. Ms Breuer stated that Mr Adams is working the hours he has always worked. Ms Breuer submitted that a person could be working minimal hours, but it still was remunerative work for the purposes of the Act. Mr Adams evidence was that he always had been working an average of eight hours per week. Ms Breuer submitted that the only way in which Mr Adams could reach the threshold issue in terms of hours of remunerative work since 1993 when he claims to be have been working less than eight hours, is if the work constitutes real work. Since 1993, Mr Adams claims to have been undertaking consultancy work here and there. His evidence was that he was undertaking his work for eight hours on average per week and then later he said that he was working between five and six hours up to eight hours. In Ms Breuer's submission, Mr Adams was undertaking work in the way that he always had done and therefore he could not claim to have had a loss of remuneration.
In terms of Mr Adams' income being between $1,000.00 and $2,600.00, Ms Breuer submitted that the evidence was that he was paid nominally or in kind such as by way of rental or board. He has done this since at least 1993, but evidence is that this had been the case since much earlier, perhaps 1979. There is no tax being paid by Mr Adams between 1993 and 1997 because presumably he was not earning enough to pay tax.
Mr Adams stated that he had moved to Taree to look for work. Ms Breuer posed the question as to how he could possibly meet subsection 24(2A)(e) of the Act, asking how it was that Mr Adams had made a loss because of his accepted disabilities. Ms Breuer referred the Tribunal to 1999 in which Mr Adams fees were slightly over $37,000.00 from work he had undertaken previously and yet he had paid himself $2,600.00. The evidence quite clearly from Mr Adams was that he paid himself within the allowable income limits to allow him to retain his pension. Ms Breuer submitted that Mr Adams' behaviour is contrived to ensure that the income is the same and that he worked the same hours. These limited hours and remuneration have nothing to do with Mr Adams' accepted conditions but rather with Mr Adams' deliberate behaviour to control his income/hours of work to keep him within allowable government income limits for Social Security/Veterans' Affairs benefits. Ms Breuer asked how the Tribunal is to know that prior to 1993, Mr Adams had a separate business – all records/payments were filtered at that time through Cypine Pty Ltd. There is nothing to indicate that Mr Adams had a separate business apart from his evidence of separate consulting work. The other problem about Mr Adams working eight hours is that there has to be a consideration of the work that he was doing for the seminars. Mr Adams also had a government credit card. Why would he be given a credit card if he was only working eight hours per week, Ms Breuer asked.
Ms Breuer contended that Mr Adams cannot satisfy subsections 24(2A)(d), (e) and (g) of the Act. The Respondent submits that the only way Mr Adams could be successful under subsection 24(2A) of the Act is if the work between 1993 and today was considered to be remunerative work and the Tribunal accepted Mr Adams as a credible witness. In Carter v Repatriation Commission (supra), this issue is explained. Ms Breuer submitted that Mr Adams has been either paid nominally or in consideration of the work that he performed. There is a "catch 22" for Mr Adams. Ms Breuer submitted that Mr Adams wants to rely on his being in remunerative work, having reduced his hours and therefore suffering a loss, and yet he has been doing what he has always done.
Ms Breuer concluded that a major issue in this matter is Mr Adams' credibility and this goes to what work he was doing and when and how he was remunerated for it. Secondly, in relation to subsection 24 (2A)(g), there is a break in the continuity of work between 1993 and 1996, Ms Breuer submitted. A further issue is that Mr Adams was seeking work as an employee and that he changed his employee status in 1996 when he commenced the consultancy with companies apart from those in the timber industry. The fourth issue, Ms Breuer submitted, is that from 1993 until the present, there was no difference in Mr Adams' income. It has always been low and he has also been working reduced hours. This has been as a result of Mr Adams limiting his income in order to ensure his maximum benefit under either the Act or under the Social Security Act 1991. Finally there is no loss if one considers what Mr Adams is earning now as compared to 1993. Ms Breuer submitted that Mr Adams was being paid as little then as he is now. In these circumstances, Mr Breuer asked how it is that Mr Adams could be found to be prevented from working by his accepted disabilities when he is been doing what he has always done.
Findings
The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the legislation and case law.
The Respondent has conceded that Mr Adams has an entitlement to pension for the condition of impotence with effect from 13 September 1996. The Tribunal finds that this is a concession that is properly given. Based on medical opinion, the Tribunal determines that the assessment of the correct rate of Disability Pension is 60 per cent of the General Rate from 13 September 1996 until 31 March 1998. The assessment of Disability Pension from 1 April 1998 is dealt with in the remainder of this decision.
The Tribunal considers a fundamental issue in this matter is Mr Adams' credibility. Mr Adams is clearly an intelligent man. He has accepted disabilities of bilateral perceptive deafness, osteoarthrosis of the left knee, general anxiety disorder and most recently impotence has been conceded by the Repatriation Commission.
Mr Adams worked in the timber industry and ceased working in February 1993 for Pilliger Cypress Pty Ltd. This date appears in documents including claim forms to the Department of Veterans' Affairs and the Department of Social Security. Mr Adams told the Tribunal that when he ceased work at Pilliger Cypress Pty Ltd, he continued working as a consultant to individual sawmillers for whom he had undertaken consultancy work whilst he was employed by Pilliger Cypress Pty Ltd. Mr Adams' evidence was that he was working as a consultant for some 22 or 23 companies occupying varying amounts of time. Mr Adams did not declare in his Job Search or Newstart claim forms that he was undertaking other work. He did not declare to the Department of Veterans' Affairs in his Service Pension application that he was undertaking this other work. Mr Adams' explanation for not having informed either of the departments that he was undertaking other consultancy work was that on the precise day he filled out the form, he was not on that occasion working. Mr Adams explained that his work was intermittent. Another explanation was that he did not understand the question or was confused. While Mr Adams acknowledged in his evidence to the Tribunal that he was employed part-time in the consultancy work, his evidence was that he believed that the various forms were referring to full-time work. In the Service Pension form, which actually specified the various types of employment, Mr Adams, having stated in evidence previously that he was self-employed, provided the explanation that on the day he signed the form, he was not actually working.

The Tribunal finds these explanations surprising for a man who is clearly intelligent and well versed in employment/human management terms and practices. Mr Adams' accepted disabilities and non-accepted disabilities do not in any of the documents before the Tribunal indicate that he is unable to distinguish the truth or that he has any difficulty with reality. The proposition that the relevant questions were ambiguous flies in the face of his answers to the Department of Veterans' Affairs in the Service Pension claim form where the different types of employment were clearly specified.
From other evidence, where Mr Adams stated that he was careful to ensure that his earnings were not over the limit which would jeopardise his pension or social security benefits, while such action is not wrong in itself, it is indicative of his careful monitoring of his financial situation. The Tribunal is satisfied on all of the evidence that Mr Adams was limiting work to maximise the benefits to himself, both from the earnings from his work and his income from benefits provided by the various Commonwealth departments. The Tribunal then must consider in terms of section 24 of the Act, what relationship there is between Mr Adams' accepted disabilities or other factors and his reduced working hours and income. From the evidence, it is clear to the Tribunal that there was a combination of reasons operating to produce the results that Mr Adams was only working a certain number of hours and earning reduced income. The Tribunal accepts that Mr Adams' accepted disabilities impacted on his ability to work. There are other factors however limiting Mr Adams' work, including his deliberate reduction of his working hours or arranging payment in kind so as not to jeopardise his various Commonwealth benefits. In addition, other documentary evidence provides a picture of a combination of factors including the recession in 1993, the reduction in work available and Mr Adams' age.
The Tribunal considers the application of section 24 of the Act given the evidence in this case. The Tribunal notes that the Respondent has accepted that Mr Adams meets subsection 24(1)(a) and (b) of the Act. A concession which the Tribunal will not disturb.
Mr Adams applied for an increase in pension on 1 July 1998 when he was aged 67 years. He had been granted 100 per cent of the General Rate from 1 April 1998.
When a veteran is over 65 years of age at the time of claim or application, stricter criteria apply in relation to a claim for a Special Rate pension. Generally speaking, the veteran must show that the remunerative work which his or her war-caused injuries or diseases impact upon was the last paid work that the veteran undertook before making a claim. The veteran must show that he or she was doing that last paid work after turning 65 and that the veteran was doing the work continually for at least ten years before turning 65. As was noted in the Explanatory Memorandum to the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994, the amendments contained within subsection 24(2A) of the Act ensure that the veteran must have clearly demonstrated that it was his or her long-term intention to have longer than normal working life by working past the age of 65 and by working in that remunerative work for at least ten years and for that work to have commenced before the veteran turned 65 years of age.
Dealing with subsection 24(2A)(d) of the Act, the impact of this provision for the over 65 year old veteran requires that the veteran is prevented from continuing to undertake remunerative work, that is the last paid work that the veteran was undertaking before the claim or application. This subsection overturns the principle in Starcevich v Repatriation Commission (supra) that remunerative work in subsection 24(1)(c) of the Act need not be the last work in which the veteran has been engaged. As was noted in Grant v Repatriation Commission (supra), the decision maker must be satisfied that in relation to subsection 24(2A)(d) of the Act, that the remunerative work was last undertaken before the veteran made the claim or application and that the veteran at any time during the assessment period, because of incapacity from war-caused injury or war-caused disease or both alone, is prevented from continuing to undertake that remunerative work.
The Tribunal has discussed that there are a number of reasons provided by Mr Adams for his cessation and reduction of work. Some factors related to his accepted disabilities, others related to the recession and the downturn in business and to his consideration not to exceed government income levels imposed on the payment of government benefits or pension. The Tribunal is not satisfied, as discussed in relation to similar facts in Woodward v Repatriation Commission (1999) 58 ALD 675, that the sole reason for Mr Adams' reduction in his ability to work below the required eight hours per week level is incapacity due to his accepted war-caused conditions or that there is a loss of remuneration related to his accepted conditions. In Woodward v Repatriation Commission (supra), the veteran, a solicitor, ceased his practice in 1982 at age 60 and then became a consultant to the firm for payment of $65.00 per week. This figure was chosen because it would not exceed the income limit of Mr Woodward's Service Pension. Mr Woodward had claimed that he ceased the consultancy arrangement in 1996 due to his war-caused conditions. The Court found that the effect of the evidence was that the sum of $65.00 was calculated not by reference to any work undertaken but by the amount Mr Woodward was able to earn without affecting his pension. There were also other factors exercising the Court's consideration in this matter.
Other evidence in Mr Adams' case suggests that after 1993, he continued on with his consultancy as he had always done without the additional work as an employee in the company. In that case, it could be argued that Mr Adams had not ceased work. On either scenario, Mr Adams does not, in the Tribunal's view satisfy subsection 24(2A)(d) of the Act. In terms of his remuneration, it was not limited by his accepted disabilities but by what he could earn so as not to limit his Commonwealth benefits. Thus, having not satisfied subsection 24(2A)(d) of the Act, Mr Adams' claim for a Special Rate pension must fail.
For completeness, the Tribunal has also considered subsection 24(2A)(e) of the Act which requires that the veteran suffer a loss of salary or wages or earnings on his own that he or she would not have been suffering if he or she was free of the disabilities. It is difficult on the evidence in this case, to determine whether there was a loss of earnings. Mr Adams was paid either by way of remuneration, nominally or in kind. Mr Adams did not submit tax returns during the relevant period nor are there records of his billing or receipts of his earnings. The Tribunal is not in a position on the evidence in this case to conclude that Mr Adams satisfies subsection 24(2A)(e) of the Act.
The Tribunal has also considered subsection 24(2A)(g) of the Act. This section distinguishes between someone who is an employee or self-employed and goes to, as was noted in Grant v Repatriation Commission (supra), the capacity in which the work was undertaken. Mr Adams turned 65 years old on 19 December 1995. On some of the documentary evidence, Mr Adams had been unemployed for two years. On his oral evidence and statements to the Tribunal, he was working as a self-employed consultant beyond 1993 and continuing. Prior to 1993, Mr Adams' employment status was both as an employee and as a consultant. Mr Adams argues that his status after 1993 was not different but rather expanded and that he had been working continuously as a consultant, while also an employee and then continuing on as a self-employed consultant for a period of ten years before the claim. Certainly, Mr Adams was not an employee of Pilliger Cypress Pty Ltd for a period of ten years between 1985 and 1995. During that period, he worked for Pilliger Cypress Pty Ltd and was also self-employed. On the Tribunal's understanding of the evidence, Mr Adams was not working ten years continuously as a consultant before he turned 65. There was a gap between 1993 and 1995 because of the slump in the industry and it was more than a short-term gap. The Tribunal finds that there was also a gap because Mr Adams was retraining to obtain skills to ensure that he was able to commence the work with the company Workplace Relations Pty Ltd in 1997. The Tribunal also notes that at the time when Mr Adams is claiming that his accepted disabilities were impacting on his work, he was working exceptionally hard providing seminars and also undertaking training activities which the Tribunal cannot in any way find, on the evidence, amounted to only five hours per week.
The Tribunal is also not satisfied that on all the evidence, Mr Adams' last paid work had been undertaken as either an employee or a self-employed consultant for a continuous period of at least ten years. The reasons for this difficulty relate to the credibility of the evidence and the Tribunal being unable to be satisfied if Mr Adams ceased working to the requisite level of eight hours or less per week in the capacity of a self-employed consultant, or if there was a loss of remuneration solely related to his accepted disabilities.
This case has been difficult to decide because of the clearly contradictory evidence on more than one occasion. Mr Adams was provided with procedural fairness in that he was given many opportunities to explain the various inconsistencies. The explanations provided do not satisfy the Tribunal that there were not other significant factors in addition to Mr Adams' accepted disabilities, causing him to reduce his working hours and remuneration. Furthermore, Mr Adams' evidence has not satisfied the Tribunal that he worked continuously as a self-employed consultant for the requisite ten year period. There was a break for at least two years because of training and conducting seminars needed in order to take on the changed requirements of the new company, Workplace Relations Pty Ltd.
While the Act is beneficial legislation, it does not, in the Tribunal's view allow decision-makers to substitute evidence or to deem certain conclusions when the evidence is clearly objectively deficient, as was discussed in Repatriation Commission v Bey (1997) 79 FCA 364. Put simply, Mr Adams' evidence to the Tribunal as compared with contemporaneous documentary evidence is inconsistent on many occasions. The inconsistencies have not, to the Tribunal's mind, been satisfactorily explained. The Tribunal therefore cannot reasonably be satisfied, because of the issue of inconsistency, that Mr Adams meets the criteria for payment of pension at the Special Rate.
The Tribunal's decision is based on whether or not Mr Adams' circumstances satisfy the strict statutory requirements for qualification for the Special Rate. This decision does not in any way reflect on the meritorious service Mr Adams' provided to his Country, which the Tribunal recognises.
In all the circumstances and for the reasons expressed above, pursuant to Section 43 of the Administrative Appeals Tribunal Act 1975 the Tribunal decides :
(i) To set aside the decision under review in respect of impotence and in substitution therefor, determines that this condition is war-caused with effect from 13 September 1996. Disability Pension for all of Mr Adams' accepted conditions is assessed at 60 per cent of the General Rate from 13 September 1996 to 31 March 1998; and
(ii) To affirm that part of the decision under review which assessed Disability Pension at 100 per cent of the General Rate from and including 1 April 1998.
I certify that the 129 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member and Dr PD Lynch, Member.
Signed:         .....................................................................................
  Ms J Purches, Associate
Dates of Hearing  27 September 2001, 25 October 2001
Date of Decision  19 June 2002
Representative for the Applicant              Mr P Jones, Solicitor, Rockcliffs, Solicitors and Attorneys
Representative for the Respondent        Ms S Breuer, Departmental Advocate