Agius v Repatriation Commission

Case [2017] FCA 935

FEDERAL COURT OF AUSTRALIA

Agius v Repatriation Commission [2017] FCA 935

Appeal from: Agius and Repatriation Commission (Veterans’ entitlements) [2017] AATA 41
File number: VID 94 of 2017
Judge: O'CALLAGHAN J
Date of judgment: 14 August 2017
Catchwords: ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – where claim for payment at Special Rate under s 24(2)(b) of the Veterans’ Entitlement Act 1986 (Cth) refused by delegate of the respondent – where Administrative Appeals Tribunal affirmed delegate’s decision on the basis of a misunderstanding of the Full Court’s decision in Leane v Repatriation Commission [2004] FCAFC 83; 81 ALD 625 – where parties agree that the Tribunal erred and that the appeal should be allowed – whether Court should finally resolve the matter rather than remit it back to the Tribunal for rehearing according to law
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s 44

Veterans’ Entitlement Act 1986 (Cth), s 24(2)(b)
Cases cited:

Civil Aviation Safety Authority v Caper Pty Ltd (No 2) [2012] FCA 1305; 132 ALD 475

Harradine v Secretary, Department of Social Security (1989) 25 FCR 35

Irwin v Military Rehabilitation and Compensation Commission (2009) 174 FCR 574

Leane v Repatriation Commission [2004] FCAFC 83; 81 ALD 625

Smith v Repatriation Commission (2014) 220 FCR 452
Date of hearing: 14 August 2017
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 11
Counsel for the Applicant: Ms F Ryan
Solicitor for the Applicant: Williams Winter Solicitors
Counsel for the Respondent: Ms C Dowsett
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

VID 94 of 2017
BETWEEN:

NORMAN JOSEPH AGIUS

Applicant
AND:

REPATRIATION COMMISSION

Respondent

JUDGE:

O'CALLAGHAN  J

DATE OF ORDER:

14 AUGUST 2017

THE COURT ORDERS BY CONSENT THAT:

1.The appeal be allowed.

2.The decision of the Administrative Appeals Tribunal dated 19 January 2017 be set aside.

3.The decision of the respondent’s delegate in respect of the applicant’s application for payment of his Department of Veterans’ Affairs disability pension at Special Rate be set aside.

4.The applicant’s claim for payment of his Department of Veterans’ Affairs disability pension at Special Rate be allowed with effect from 25 May 2011.

5.The respondent pay the applicant’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

O’CALLAGHAN J:

INTRODUCTION

  1. This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), from a decision of the Administrative Appeals Tribunal (the Tribunal) dated 19 January 2017, which affirmed a decision of a delegate of the respondent denying the applicant’s claims under the Veterans’ Entitlement Act 1986 (Cth) (the Act).

  2. The appeal came on for hearing in this Court on 14 August 2017.  At the conclusion of the hearing, the parties agreed that it was appropriate for the Court to make the following orders by consent:

    1.The appeal be allowed.

    2.The decision of…

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Agius v Repatriation Commission [2017] FCA 935
Case
[2017] FCA 935
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CaseChat Overview and Summary

The case of Agius v Repatriation Commission involves an appeal against a decision of the Administrative Appeals Tribunal (AAT). The appellant, Agius, sought payment at a Special Rate under section 24(2)(b) of the Veterans’ Entitlements Act 1986 (Cth), which was denied by a delegate of the Repatriation Commission. The AAT affirmed the delegate's decision, citing a misinterpretation of the Full Court's decision in Leane v Repatriation Commission. Both parties agreed that the AAT erred in its interpretation of the law and that the appeal should be allowed. The key issue before the court was whether it should resolve the matter definitively or remit it back to the AAT for a rehearing.

The court addressed the issue by examining the statutory framework and the relevant case law. It noted that the AAT's decision was based on a misunderstanding of the Full Court's ruling in Leane. The court found that the Full Court's decision did not require the applicant's efforts to obtain remunerative work to occur during the "assessment period," contrary to the AAT's interpretation. Instead, the law permits reliance on efforts made before the assessment period begins. The court highlighted that it has the discretion under section 44(4) of the Administrative Appeals Act 1975 (Cth) to either remit the matter to the AAT or make a decision in substitution for the one under review. Given that only one outcome was possible upon correcting the AAT's error, the court decided to substitute its decision for that of the AAT.

In light of the above, the court allowed the appeal and made consent orders to reflect the correct legal position. The orders substituted the court's decision for that of the AAT, thereby resolving the matter definitively. The court's decision emphasized the importance of correctly interpreting relevant case law and applying it appropriately to the facts of the case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is necessary to give brief reasons for making those consent orders, because in determining an appeal under s 44 of the AAT Act, this Court exercises judicial power: see Irwin v Military Rehabilitation and Compensation Commission (2009) 174 FCR 574 at [12]-[16]. Accordingly, what follows are the Court’s reasons for being satisfied that it was appropriate to make the orders set out at [2] above.TRIBUNAL’S DECISION Section 24 of the Act relevantly provides:24Special 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.…

Ratio Decidendi

Legal Principle Established

In this case, the Tribunal held that, for the purposes of s 24(2)(b) of the Act, the decision of the Full Court in Leane v Repatriation Commission [2004] FCAFC 83; 81 ALD 625 at [7] and [28] stood for the proposition that the applicant’s requisite efforts to obtain remunerative work must occur during the “assessment period” (which commences when a veteran makes a relevant application). It dismissed the applicant’s appeal on the basis of that proposition of law.CONSIDERATION At the hearing on 14 August 2017, after hearing helpful submissions from counsel for the applicant and the respondent, it became apparent that, once it was accepted, as the respondent’s counsel quite properly accepted, that the Tribunal’s statement on the critical point (being the principle in Leane v Repatriation Commission [2004] FCAFC 83; 81 ALD 625) was wrong, only one result was possible. Section 44(4) of the AAT Act empowers the Court to “hear and determine the appeal and make such order as it thinks appropriate by reason of its decision”: see Harradine v Secretary, Department of Social Security (1989) 25 FCR 35 at 36 per Wilcox J, 42-43 per French J and 49 per von Doussa J. In some cases, the appropriate order will be to remit the matter to the Tribunal to be heard and determined according to law. In other cases, this being one, the appropriate order will be for the Court to make a decision in substitution for that under review. Relevantly, as Murphy J held in Civil Aviation Safety Authority v Caper Pty Ltd (No 2) [2012] FCA 1305; 132 ALD 475, “ [i]t is established that where only one result is consistent with the court’s decision is possible, the court may make a decision in substitution for that under review, thereby relieving both the tribunal and the parties of the burden of a further hearing…” (at [7]). It is sufficient for present purposes to record, as the respondent properly conceded, that the decision in Leane v Repatriation Commission [2004] FCAFC 83; 81 ALD 625 does not stand for the proposition that the applicant’s requisite efforts to obtain remunerative work must occur during the assessment period and that the law on the question is well settled to the contrary. As Buchanan J explained in Smith v Repatriation Commission (2014) 220 FCR 452 at [69]:The AAT also concluded that it should not take into account at all the efforts made by the appellant to obtain work which predated the assessment period. That appears to me, as I have already said, to have been a clear error of law. It follows from the scheme of the Act set out earlier that it must be possible to assess the merits of a claim at the date that an application is lodged, on which date the assessment period commences. That is because there is a requirement to assess whether any entitlement arises at any time during the assessment period. That means that it must be open to a veteran to rely upon genuine efforts to find work before the application is made. That would not be possible if the question is to be tested only after the date of the application.(See too at [185] per Foster J.)