Anderson and Repatriation Commission
[2003] AATA 376
•14 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 376
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V99/216
VETERANS APPEALS DIVISION ) Re GILBERT ANDERSON
by his Attorney under Power,
Allison AndersonApplicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J. Handley, Senior Member Date14 April 2003
PlaceMelbourne
Decision The decision of the Veterans Review Board of 4 December 1988 in so far as it concerned post traumatic stress disorder is set aside and in substitution it is decided that post traumatic stress disorder is war-caused. The decision of the VRB with respect to aortic stenosis is affirmed. The claim for special rate pension is refused. ........………………………..
Senior Member
CATCHWORDS
Veterans Entitlement - Veteran served in Middle East in WWII - whether he suffers post traumatic stress disorder - whether it is war-caused - applicant a farmer - whether entitled to special rate - whether war-caused injuries alone caused loss of remuneration - decision set aside, in part.
REASONS FOR DECISION
14 April 2003 Mr J. Handley, Senior Member 1. The applicant applies to review a decision of the Veterans Review Board (‘VRB’) made on 4 December 1998. The VRB then affirmed decisions made by the respondent on 26 March 1998 and 15 June 1998 where it was decided that aortic stenosis and post traumatic stress disorder (“PTSD”) were not war-caused. The respondent also refused a claim for attendant allowance.
2. This application was initially heard - in part - at Warrnambool on 22 March 2000 by Deputy President Forrest and Doctor Re, both being former members of this Tribunal. The hearing was not concluded because there was another application then pending before the Veterans Review Board where a review was sought of a decision by the respondent refusing a claim for alzheimer’s disease. Subsequent to the hearing in Warrnambool, the VRB set aside the decision refusing Alzheimer’s Disease by amending the diagnosis to ischaemic dementia and finding that that condition was war-caused.. The effect of that decision was to permit Mrs Anderson to qualify for attendant allowance and accordingly that part of the decision of the VRB of 4 December 1998 was no longer under review by these proceedings. There has subsequently been a decision made by this VRB made on 4 December 1998 with respect to attendant allowance. Accordingly this review proceeded only with respect to the decision concerning PTSD and aortic stenosis.
3. The application was listed for hearing at Warrnambool on 4 July 2002. By reason of Deputy President Forrest and Dr Re no longer being members of the Tribunal, the Tribunal was (obviously) re-constituted. I heard the review which commenced in Warrnambool and was adjourned part heard for completion in Melbourne. There was no transcript of the evidence at the hearing before the former members and by reason of the applicant’s solicitors having changed and the advocate for the respondent being different to the advocate who appeared on the first occasion, it was not known whether there was any evidence at all with respect to the issues remaining alive. Accordingly the review commenced afresh. Ms Black appeared on behalf of the applicant and Mr Rudge appeared on behalf of the respondent. The review with respect to aortic stenosis was withdrawn. Accordingly the application proceeded only upon the injury of PTSD, and - subject to a finding that PTSD was war-caused - an entitlement to special rate pension.
4. Mr Anderson, the Veteran in these proceedings is 89 years of age having been born on 23 March 1914. He presently receives extreme disablement adjustment for the accepted conditions of bilateral sensori neural hearing loss, acquired cataracts, ischaemic heart disease and ischaemic dementia. He remarried on 17 January 1983 and these proceedings were prosecuted by his wife who holds an enduring power of attorney, which was granted on 17 June 1999. Prior to the commencement of the hearing in Warrnambool the applicant was admitted to a nursing home in Penshurst by reason of his dementia.
5. The application was listed for resumption in Melbourne on 20 August 2002. It was then learnt that Mr Shackell, a treating psychologist was overseas and unavailable to give evidence. He was regarded by the applicant’s representative as being a critical witness and the matter was adjourned.
6. When the matter was eventually re-listed for Hearing on 26 February 2003, neither party called any doctors with respect to the condition of PTSD. Both were content to rely on the reports lodged.
7. It was submitted prior to hearing evidence from Mrs Anderson that the claim for special rate would be put upon the basis that a combination of PTSD and the accepted conditions principally ischaemic heart disease equally contributed to the applicant’s incapacity, thereby giving rise to special rate entitlement. It was put that the clinical onset of ischaemic heart disease was well prior to the clinical onset of aortic stenosis. In effect it was put that despite the “alone” test as found within s.24 of the Veterans Entitlements Act, the condition of aortic stenosis did not contribute to incapacity. Additionally, it was submitted that despite the applicant having suffered a traumatic leg amputation in 1961 he thereafter continued to farm and earn income from farming and that injury did not contribute to incapacity.
Alice Anderson
8. Mrs Anderson said that she married her husband in 1983. He was then 68 years of age. She said that Mr Anderson was then self-employed in farming, yet despite his amputated leg he was working stock, fencing, ploughing and escavating. He was also able to undertake home maintenance and repairs, cut firewood and drive vehicles. She recalled that he was not working a full-day and was often assisted by others. She also noticed that her husbands breathing was laboured, he would “flush easily” and he refused medication and medical assistance.
9. Mrs Anderson said that she eventually learnt that her husband had had a “heart condition” from 1974 but she did not know it when she married him. She said that her husband eventually told her that he had believed that if he disclosed that illness that his proposal of marriage would have been refused. Mrs Anderson said that she also learnt from her husband’s General Practitioner, Dr Holland, that he had aortic stenosis and that he had been prescribed medication but he destroyed the prescription.
10. With respect to comments in a report of Dr Cole, a consultant medico legal psychiatrist, who reported that Mr Anderson endured wartime experiences for which he was reluctant to speak, Mrs Anderson said that her husband suffered nightmares up to three occasions per week and profuse sweating. She said he would be awake for “half of each night” and whilst asleep he would frequently be “thrashing”. Despite this she said that she and Mr Anderson did not ever discuss his apparent anxiety because he had a “stiff upper lip” mentality and refused treatment or therapy.
11. With respect to the applicant’s leg amputation, Mrs Anderson said that it did not interfere with his work or his social activities. She recalled that her husband danced at a local mayoral ball and he was able to farm hilly country, frequently on foot. She said his greatest difficulty in being able to work was his “breathing”, his “heart condition” and his “PTSD”.
12. Mrs Anderson was adamant that it was her husband’s ischaemic heart disease and PTSD that eventually prevented him from farming. She said that her husband had suffered from ischaemic heart disease for many years prior to the diagnosis of aortic stenosis. Indeed she said that his aortic stenosis was corrected by surgery in 1995.
13. With respect to the farming activity undertaken by her husband in the financial years between 1976 and 1986, Mrs Anderson was referred to a summary of the taxation returns lodged by her husband. That summary appears at paragraph 21 of the respondent’s Statement of Facts and Contentions. It demonstrates that in all of the financial years within the above period, a profit was declared in two years only, namely the 1976 and 1985 financial years. In all of the other years, a loss is recorded. Mrs Anderson said that whilst she did not know her husband for some of those years within this above period, she agreed with the summary. She said that her husband sold a farm that he had at Derinallum in the 1975 financial year when he moved to Camperdown “because of a heart turn”.. In 1986 he sold the Camperdown farm and moved to a smaller farm at Scotts Creek. She said on both of those occasions he sold a number of items of plant and machinery and stock.
14. Mrs Anderson was then taken to a number of documents lodged by the respondent with respect to various claims made by her husband upon the Repatriation Commission and associated correspondence. In a letter dated 4 April 1976 Mr Anderson apparently made enquiries concerning his eligibility for a service pension. In the letter he refers to the amputation of his right leg, and records-
“With prices and seasons the way they are at present many farmers are seeking work elsewhere to supplement their almost non-existent incomes. I feel that my age and my disability exclude me from so many jobs that I reluctantly feel that I should investigate the possibility of a service pension”.
15. Mrs Anderson said that she was not aware of farmers leaving farms and said that there were many wives of farmers that she knew who obtained salaried employment because of poor rural incomes.
16. When asked by Mr Rudge why her husband had not ever claimed a pension by reason of PTSD during the times that he was farming, Mrs Anderson said that her husband did not know that he suffered from PTSD and believed that he could “overcome” his heart problems. She said that her husband did not ever want to inform anybody of the extent of his inability to work a full day and few people were aware that he would return home at about 10am each morning and rest until the early afternoon when he would resume farming.
17. Mrs Anderson was then taken to the application for service pension made by her husband in May 1976 where he recorded that the basis for the claim being his “age” and “permanent unemployability”. The basis for the claim for permanent unemployability was recorded as being the disability of the right leg amputation. Mrs Anderson said that her husband’s response to the questions asked in that form would be “typical” and that he would not ever disclose his heart disease or his heart condition.
18. With respect to the apparent poor rural economy and drought existing in 1976, Mrs Anderson was referred to a letter written by her husband to the Repatriation Commission on 2 June 1976. The letter was written apparently in response to a request for further information from the Repatriation Commission. The letter concludes-
“In other words seasonal prices and conditions are still against any sort of a profit - the shire will shoot another 1,000 head this week - making 3,000 in 3 weeks. Stock sale notes and/or payslips can be forwarded if necessary”.
19. Mrs Anderson said that the way this letter was written was typical of her husband’s refusal or reluctance to disclose his illnesses. She said that her husband was unable to generate income because of the illnesses however he was not as disadvantaged as other farmers who held bigger properties. She said that he would not admit that his illnesses prevented him from working or slowing down. In fact she said that her husband’s accountant had recommended to him that he cease farming all together but he refused.
20. In a letter of 30 July 1986 the Repatriation Commission wrote to Mrs Anderson, apparently in response to her enquiry as to why service pension was then reduced. The Commission indicated that the value of combined assets exceeded a threshold level. In response to that letter Mrs Anderson wrote on 13 November 1986 that by reason of the decision to revalue assets “we have been compelled to sell the property …. at Camperdown”. In a supporting letter from the applicant’s accountant dated 23 December 1986, the Repatriation Commission was advised that the applicant and his wife had purchased a smaller farm at Scotts Creek. The letter concludes-
“It is anticipated that there will be little or no income from the farming venture so that future income will consist only of interest from the $35,000 investment at 14.25%”
21. Mrs Anderson agreed that the property at Camperdown was sold in order to fall below the service pension asset threshold, however she said that she ‘later learnt’ that the property was sold because of her husband’s health problems.
22. In a declaration to the Repatriation Commission in February 1987, Mr Anderson disclosed that the property at Scotts Creek comprised 14 Acres, of which 7 only were cleared. The pasture was described as “fair” and the estimated carrying capacity of the property was “6 cows”. Mrs Anderson agreed that the Scotts Creek property was insufficient in size to generate an income. She said that her husband at this stage was unable to cope with “sudden change” and reducing his farming to a smaller property “helped him ease out of farming”. She said this was consistent with a letter written by her husband to the Commission in October 1987 where he recorded-
“This past year has made it most difficult to farm any longer because of my age and an artificial leg so I have disposed of the old place and stock and most of the plant”.
23. By way of summary of the above documents Mrs Anderson agreed that her husband on a number of occasions between 1976 and 1986 in correspondence to the Repatriation Commission and various questionnaires, relied on his age, his amputated leg and a poor rural economy as the basis for either reducing or eliminating his farming activities. She said that her husband first commenced to speak about his illnesses in 1989.
24. With respect to her husband’s military service, Mrs Anderson was taken to a copy of a newspaper article published in the “Hampden Guardian” on 21 July 1995. The headline to the article is “Tonsils out in Kaiser’s Palace - Memories of a Light Horseman”. The article then records in considerable detail the extent of the applicant’s military experiences. Whilst these circumstances will be referred to later in this decision it is beyond doubt that the late Mr Anderson was engaged in heroic and meritorious service. Mrs Anderson said that the article was largely written by her having researched his diaries and in consultation with her husband. She said that from about 1995 her husband “opened up” and spoke to her about his service.
25. Mrs Anderson was also taken to an extract from the “Australian Role of Honour”, being a memorial of persons who received the Queens Medal in 1998. There is an extensive bibliography referable to Mr Anderson and under the sub-heading of “Community Service” his service is recorded as
“past President Derrinallum RSL, delegate of District Board at state conference of RSL; 10 year secretary of local Repatriation Committee; past Chairman Derrin Allum State Primary School; On Committee parents and citizens Derrinallum High School; Lieutenant Lismore Fire Brigade and mobile wireless operator; volunteer in Streatham and Ash Wednesday fires; Derrinallum Fire Brigade 27 years; Member APPU (Primary Producers Graziers Association); Farmers and Graziers Co-Operative; Hereford Society; Session Clerk, Elder and Board Member Derrinallum and Darlington Presbaeterian Church; Member National Party three terms as Vice President Hampden Assembly Electorate District Counsel; endorsed country party candidate for Federal Electorate of Corangamite, opposed Mr Tony Street, also Sir Henry Bolte in Hampton and Mr Cec Burgin in Polwarth; Counsellor, former Shire of Hampton (now Corangamite) 14 years, 2 terms as Shire President; retired from Public Life 1984”.
26. Mrs Anderson disagreed with the suggestion put to her that the extent of her husband’s activities was inconsistent with a person who was incapacitated by PTSD. She said that her husband did suffer from nightmares but was able to carry on daily living. She said most of the activities referred to above ceased at 1984 and in any event most of the above activities were not “9 to 5”.
27. Nonetheless she agreed that the extent of his community service did qualify him for the Queens Jubilee Medal. She said however that her husband did not seek political office and “others put him forward to stand as an MP”. She said that he was “dragged in” because he was a decent man and he never “shirked”.
28. Mrs Anderson was referred to reports written by Doctors Cole, Stephens and Van Der Linden and Mr Shakell. The reports do not refer to the applicant’s community activities. Mrs Anderson said that she did not know why her husband’s community activity was not recorded but assumed it was because questions of this type were not asked. She said that the times reserved for consultations with these doctors were limited and that she did not think of it at the time. She said that had she or her husband been asked of these activities they would have been disclosed.
29. Mrs Anderson agreed that her husband is presently 89 years of age but said it had been his intention to farm for remuneration. She said that her husband’s parents and sisters were farmers who “went on for years”.
30. In re-examination Mrs Anderson said that the newspaper article was written largely from research that she undertook from his war diaries and by questions she asked of her husband. She said that she did not ever read his diaries until about 1995. Indeed she said that her husband’s daughters (from his first marriage) did not know that he possessed the diaries. She said therefore that at 1995 he spoke about his military service for the first time.
31. At the conclusion of the evidence of Mrs Anderson in Warrnambool, she agreed to make available copies of her husband’s diaries to Mr Rudge. This followed some discussion concerning the difficulty experienced by the respondent with deciding whether Mr Anderson satisfied the applicable Statement of Principle concerning PTSD. Mr Rudge indicated that the respondent - on the limited information that was known to it - was prepared to concede that Mr Anderson objectively satisfied the definition of “experiencing a stressor” under the Statement of Principle but was not able to satisfy the subjective element.
32. When the hearing eventually did resume in Melbourne, Mr Rudge confirmed that the respondent continued to concede the objective element but subjectively it was the respondent’s position that Mr Anderson could not meet the Statement of Principle (refer later).
33. When the application did resume in Melbourne, Mr Rudge also indicated that it was not his intention to call medical witnesses and he was content to proceed “on reports” only. Mr DeMarchi indicated that he was intending to call Dr Cole and Mr Shakell.
34. I indicated to both counsel that from the information available in the documents lodged - including the diaries - and having heard Mrs Anderson at Warrnambool that it would appear - subject to further submissions and/or any additional evidence - that the veteran was likely to meet the applicable factor within the Statement of Principle for PTSD. I reaffirmed that I did not at that time hold any concluded view - but that that view was expressed only to assist the parties. I also indicated that I was very concerned as to the claim being pursued for special rate. This was because on the day prior to the hearing Mrs Anderson lodged a proof of evidence (refer later), which contained references to the activities over the ‘farm’ at Scotts Creek which had not been described in such detail prior to the proof of evidence being lodged. I also indicated to both counsel that I would appreciate their assistance in considering the application of a decision of the Full Federal Court in Counsel v Repatriation Commission 2002 FCA FC 201 and a decision of Willcox J in Hill v Repatriation Commission 2000 FCA 929. The decision in Counsel was delivered on 20 June 2002 being approximately 2 weeks before the commencement of the hearing in Warrnambool. It was not referred to at that hearing nor has it been referred to by either party, in their facts and contentions.
35. I stood the application down to permit both counsel to consider my comments. When the matter resumed Mr DeMarchi indicated that he did not intend to call medical evidence with respect to the condition of PTSD and both counsel gave undertakings that they would not make any submissions against each other arising out of the failure to call medical witnesses. The matter therefore proceeded only upon the resumption in Melbourne by Mr DeMarchi calling Mrs Anderson with respect to the special rate issue only.
36. Mrs Anderson confirmed that she first met her husband in the late 1970’s when he was then living on the Camperdown farm which comprised 162 acres of cleared open paddocks and from which he operated a hereford stud. She said that her husband had been farming since 1947 when he was allocated a soldier settlement at the conclusion of WWII.
37. At the time they met, Mrs Anderson said she was a teacher in Melbourne. She and Mr Anderson married in January 1983 and she was adamant that her husbands leg prosthesis did not affect him as a farmer. She provided photographs of him calfing, climbing a ladder and dancing at a mayoral ball as indicative of his mobility. However she conceded that “as time went on” her husband needed assistance in some farm activities. She also noticed that he was becoming “flushed” and “short of breath” and would frequently return home at about 10am each morning to rest and/or to sleep. She said that her husband was having nightmares and sleeping poorly. She recalled that he would become dizzy and flushed when bending whilst undertaking farm activity and although he had mobility, despite his prosthesis, most movement around the farm was either by him driving a tractor or a landrover. She said that she later learnt that her husband had been attending a doctor for treatment of “heart problems” but he did not disclose these conditions to her.
38. In December 1995 Mr Anderson was admitted for coronary by-pass surgery and aortic valve repair. Mrs Anderson said that her husband developed pneumonia and the surgery was not “completed”. She recalled that her husband was “traumatised” following surgery and was also confused and disorientated. By this time the Camperdown farm had been sold and she and her husband were living at Scotts Creek. She recalled some months later, after the completion of surgery, that her husband had attempted to chop kindling wood at home but had become short of breath and was physically unable to complete that activity. She also said that her husband was using a walking stick. Mrs Anderson said that she and her daughter were undertaking most of the work around the farm.
39. The Scotts Creek farm was described as being “pretty and fertile”.. Mrs Anderson said that it had a piggery constructed on it and incomplete poultry sheds. She said that the farm was located in a high rainfall district with sufficient acreage for a market garden. She agreed that the property was heavily timbered but that was available for firewood and milling. The property did stock sheep which grazed in the uncleared paddocks.
40. Mrs Anderson relied on a proof of evidence that she lodged on 24 February 2003 which is reproduced as follows-
“1.In 1986 my husband and I moved to Scotts Creek on 14 acres.
2.We started with approximately 6 pigs as well as piglets, which were sold for meat. It was our intention, and it was fully viable, to have 30 sows plus piglets on this size land. We were also smoking our own pork.
3.In additional to the pigs, we had meat poultry as well as egg-laying poultry, which we sold for cash. It was possible for us to have to have a far greater amount of birds on the land, but my husband’s conditions of ischaemic heart disease, causing shortness of breath and the effects of lack of sleep due to nightmares and the condition and anxiety prevented this.
4.We also bred sheep dogs, and were paid for this at stud.
5.We had 72 black sheep, which were wool producers as well as meat. We sold the wool to woolbrokers and the meat to sales yards. We reduced to 50 sheep. It was possible to run up to 100 sheep on the property. There were also private sales of sheep and wool for cash.
6.As well as the above, we agisted 7 racehorses during this time for cash payment. We also bred border collies for sheep-dog trials.
7.My husband was also involved in making leather belts from which he was earning quite a good income for a time, for cash mostly.
8.We added to an orchard paddock with pears, berries and apples, as well as a small market garden, which provided quite a good income when we sold the fruit to small shops.
9.My husband and myself were both actively involved with all of the above-stated activities.
10.Had my husband’s health not deteriorated, we would have continued to run the farm as outlined above, and to improve the property. I believe we could have made quite a good living as the land was very fertile and had a lot of possibilities despite the small acreage. Instead, we lost remuneration when my husband was not able to continue.
11.Payments and journal entries documenting sales and expenses of running the farm at Scotts Creek have been previously provided.
12.On 12 August 1999, as a result of my husband no longer being able to engaged in the running of it because of his accepted disabilities, we sold the farm and moved to a small house in Hamilton”.
41. Mrs Anderson had lodged photocopies of some invoices and farm accounts together with a summary of those transactions. She said however that some records were destroyed inadvertently, but she attempted to salvage as many records as was possible to substantiate this application.
42. Mrs Anderson said that following the sale of the farm at Camperdown, $30,000 was invested into the Scotts Creek property by way of improvements of the piggery, a dairy, fencing, poultry sheds and dog pens. She said that pigs were purchased for breeding and piglets were sold. She and her husband initially purchased 2 dozen chickens but that activity was ceased when her husband had an aversion to the slaughter. She and her husband bred Border Collie pups which were sold as was the black wool which was shorn from sheep specifically purchased for that purpose. Some income was obtained from agisting racehorses and income was also obtained by Mr Anderson making leather belts, which were sold to craft outlets.
43. Mrs Anderson said that but for her husband suffering PTSD and having ischaemic heart disease, the farm would have eventually transferred to white wool where better prices would have been achieved and the “orchard” would have been extended to obtain a greater income from fruit sales. She said that the poultry sheds would have also been extended. Whilst acknowledging that her husband did previously suffer from aortic stenosis, she said that this was corrected at the 1995 open heart surgery, but thereafter her husband suffered from ongoing ischaemic heart disease, ischaemic dementia, and PTSD which together caused incapacity.
44. In cross-examination Mrs Anderson re-affirmed that her husband was not incapacitated by reason of his leg-amputation. She said that despite his prosthesis he was able to walk around the Scotts Creek property which she described as being hilly. She also denied a comment made by Doctor Bayley in a report dated 18 January 1996 (Exhibit 1, page 39) following the open heart surgery where he reported that Mr Anderson had “previous memory problems”.
45. Mrs Anderson was then taken to a bundle of documents (Exhibit 6) which contained copies of a number of income and asset statements completed by Mr Anderson with respect to ongoing entitlement to service pension.
46. In a questionnaire dated 10 February 1987, Mr Anderson was asked at question 9-
“have you been in full time, part time, seasonal or casual employment (including self employment or odd jobs) in the last 12 months”.
47. Mr Anderson answered “yes” and acknowledged that he was ”self employed”..
48. In a further questionnaire dated 6 November 1988, the same question is asked at question 6 and Mr Anderson recorded as “no” (page 109). In another questionnaire dated 26 February 1991 the same question is again asked at question 7 and Mr Anderson has again answered “no” (page 112).
49. When Mrs Anderson was asked to comment on whether those documents tended to indicate that her husband saw himself as being retired, Mrs Anderson disagreed and said that her husband “was there to build up the farm”. When she was asked to comment on the perception of her husband having sold a farm of 168 acres and moving to a farm of 14 acres, (7 of which only were cleared), thereby not permitting any remunerative activity, Mrs Anderson said that sheep that had been acquired were grazed throughout the 14 acres, that is including grazing on the uncleared land.
50. By reason of the contents of the proof of evidence lodged on 24 February 2003, the absence of detail concerning the activities referred to in that document from examination in chief and the inability of Mr Anderson to give evidence, I then asked Mrs Anderson a number of questions.
51. I asked Mrs Anderson to consider a letter that was written by the Deputy Commissioner of Repatriation Affairs on 30 July 1986 (page 84) where the level of disclosed assets exceeded a limit then imposed resulting in a reduction in service pension. In apparent response to that letter Mrs Anderson wrote on 11 November 1986 (omitting irrelevant parts) in the following terms-
“in response to your letter of 30/7/86 and the decision of the Department to revalue our asset we have been compelled to sell the property known as “Morianda” at Camperdown”.
52. Mrs Anderson said that she wrote that letter in those terms because “this is all I knew at that time. I didn’t know better”. She said that her husband’s family had been attempting to persuade Mr Anderson to leave the Camperdown property because they apparently were aware - but she was not - of the extent of his illnesses. I then asked Mrs Anderson to comment on a letter written by Mr Roberts, her husband’s accountant (page 86) dated 23 December 1986. The letter is addressed to the Department of Veterans Affairs and appears to be in the nature of a statement concerning the assets and proposed income of Mr and Mrs Anderson following the sale of the Camperdown farm and the purchase of the property at Scotts Creek. Under the sub-heading of “income” the letter records-
“on 9-1-87 when the $20,000 matures it will be invested in State Guard Insurance Bonds - a friendly society arm of the State Bank - for a period of 10 years. It is anticipated that there will be little or no income from the farming venture so that future income will consist only of interest from the $35,000 investment at 14.24%”.
53. Mrs Anderson said that the accountant had “no authority” to make the comment that he did as reproduced above. She said that she and her husband did not discuss future income with Mr Roberts nor was there ever any conversation with him concerning future income.
54. Mrs Anderson was then taken to an application for service pension made by Mr Anderson in 1976 (page 3). The application was made by Mr Anderson for the reasons stated by him as “age” and “permanent unemployability”. When asked to describe the disability giving rise to the application on the grounds of “permanent unemployability” Mr Anderson recorded “right leg amputated below knee”. That application was made following a letter Mr Anderson wrote to the Repatriation Commission on 4 April 1976 (page 1 and 2) where he referred to his right leg amputation and recorded-
“I feel that my age and my disability exclude me from so many jobs that I reluctantly feel I should investigate the possibility of a service pension”.
55. Mrs Anderson said these references by her husband in his service pension application to the lower leg amputation was a “excuse”. She said that her husband referred to his leg amputation as a “throw away line”.. She said her husband had been advised by his former accountant to apply for service pension, but her husband was in fact a stoic person and would not admit he had a coronary illness.
56. Mrs Anderson said that following the sale of the farm at Camperdown, most of the hereford stock was sold however two cows were kept, with the intention of either private sale or for home consumption.
57. Concerning the proof of evidence of 24 February 2003, Mrs Anderson confirmed that hens were kept to produce eggs. She said that there were eight laying hens who each produced an average of 6 eggs per day, being 4 dozen eggs per week. She said that some eggs were given away, some were consumed and the average sale of eggs from the hens was 1 dozen per week at $2 per dozen. She said at no time were any more than 8 laying hens kept. She said that there were three hens only in 1999 when the Scotts Creek farm was sold and when she and her husband moved to Hamilton.
58. With respect to the reference made in the Statement to “meat poultry” Mrs Anderson said that a special breed of hen was acquired with the intention of fattening only for the purposes of killing and sale of poultry meat. She said that two dozen hens were purchased for this purpose, however they were kept for 6 to 8 weeks only. She said her husband became ill at the sight of the hens being slaughtered and that activity ceased.
59. Income was obtained from breeding boarder collie pups, however Mrs Anderson estimated that $100 only was obtained over a period of five years. She said that she and her husband had one stud dog and it served between 3 and 5 female dogs per annum. She said income was obtained only from a fee charged by them when their dog served others. When asked to confirm that $100 only was paid in total for the stud fees of their dog over a 5 year period, Mrs Anderson said that her husband “may have had an arrangement with the owners” of female dogs where money was paid to him in cash.
60. In the 1996/1997 financial year Mr and Mrs Anderson agisted some racehorses. She agreed that from the figures supplied by her that the total income from that activity in that year was $2,540 being an average of approximately $50 per week. It was in that income year only that horses were agisted.
61. The reference to a “orchard paddock” comprised three large pear trees which had been planted at the Scotts Creek Farm prior to it being purchased in 1986. Additionally three peach trees, one nectarine tree, three citrus trees and some apple trees were planted. Mrs Anderson said that the pear trees were very large and produced considerable quantities of pears each year. The three citrus trees comprised one orange tree, one lemon tree and one mandarin tree. She agreed that but for the pear trees, the remaining trees were young and it would be a considerable number of years after first planting before they would bear fruit. She said that pears were sold at either $5 a bucket from the farm or, together with other produce, at organic fruit shops in Cobden and at Timboon and at some weekend markets. The reference to a “small market garden” in the proof of evidence was a reference to an area of the farm described in size by Mrs Anderson as being about “3/4 of the size” of the room in which the hearing was convened in Melbourne. She said that the “market garden” comprised strawberries, which were sold at $1.50 per punnet and some currant bushes. She said that peas, beans, beetroot and sweet corn was also grown. Some of it was sold and the remainder was for home use. Mrs Anderson said that her husband attended to the “market garden” however, because of his breathlessness and dizziness, a friend completed rotary hoeing when needed. Mrs Anderson acknowledged that she had no documentation concerning the receipts from sales of fruit and vegetables and acknowledged that all sales would have been on a cash basis. Despite few references in the bundle of invoices produced concerning the purchase of vegetable seeds - and then in modest quantities - Mrs Anderson said that her husband was “always purchasing seeds” where cash was paid and where invoices were not obtained.
62. Mrs Anderson said that there were a number of sales of wool over a period of 3 or 4 years to either wool brokers that specifically dealt with black wool or private sales. She said that some receipts were available from the proceeds of sale, but some documents had been destroyed.
63. Mrs Anderson also acknowledged that there were a number of payments of money made by her mother as gifts, which were eventually transferred from her bank account into a joint account. Mrs Anderson also said that she earnt monies from lace making and tutoring at the Glen Ormiston College.
64. After her husband had his surgery in 1995, Mrs Anderson said that he was not engaged in any farming activities. She recalled that her husband would “sit in the shed and watch me”.
65. When asked why a claim for special rate was not made any earlier than 1999, Mrs Anderson said that she was advised by her former solicitor, a claims officer at the Department of Veterans Affairs and two RSL advocates that there was no entitlement. She said the claim was initially made in 1999 because her husband wanted her to make the application for him and pursue it and because she was also “pig headed”.
66. Arising out of the evidence of Mrs Anderson in response to questions from me, Mrs Anderson said to Mr DeMarchi in re-examination that the sum of $35,000 referred to by her accountant in his letter of 23 December 1986 was in fact invested in the Scotts Creek property by way of improvements. She said that that property was purchased jointly with her husband and initially 1 bull and 12 hefers were brought from Camperdown and kept at Scotts Creek but were eventually sold.
67. Mrs Anderson said that the flock of black sheep commenced with the acquisition of 6 black ewes and 1 ram. Stock was eventually increased and monies were obtained from the sale of black fleece. Income was also obtained by the sale of black sheep with wool and from sale of sheep for slaughter. Mrs Anderson recalled that the top price paid for black sheep with wool was $35 per head however the usual price achieved was between $15 minimum and $30 maximum. She said there were two “major sales” of black sheep in the 13 years that she and her husband held the Scotts Creek property.
68. After 1995 Mrs Anderson said that her husband did not purchase any seeds and whilst he had a “interest” in the agistment of racehorses and breeding of dogs he did not undertake any physical work around the farm. Mrs Anderson said that work was undertaken by her and by their daughter.
Submissions
69. Mr DeMarchi submitted that the decision in Hill & Repatriation Commission should be distinguished from the present circumstances. He said that the decision in Hill concerned an enquiry into whether a veteran was conducting a “hobby” for the purposes of assessing whether the veteran had an entitlement to special rate pension. Mr DeMarchi acknowledged that some of the activity undertaken by Mr Anderson might be regarded as a “hobby” but in broad terms there should be a finding that he was engaged in farming activity, which was commercially viable.
70. With respect to the decision of the Full Court in Counsel it was submitted that the test was whether there were “earnings” from the farming activity as opposed to a finding of whether the farm operated at a profit.
71. It was conceded that the ‘earnings’ of the applicant were very modest but only by reason of his war-caused injuries, alone, and but for those disabilities the applicant would have continued to develop his farm at Scotts Creek where it ultimately would have become profitable.
72. In making these submissions Mr DeMarchi said that it was implicit that PTSD should be found to be war caused. He submitted that Mr Anderson performed outstanding service and did “experience a stressor” during service.
73. With respect to some of the comments made by the applicant in various forms and questionnaires lodged with the respondent, it was submitted that most were completed by the applicant with the assistance of others. It was submitted that applying the answers to some of the questions in those forms to the present circumstances involving complex legislation, would be unfair. Put another way, it was submitted that the applicant did not understand the legal implications of the answers given by him to forms he completed.
74. Mr Rudge on behalf of the respondent submitted that the assessment period in the present application commenced on 6 January 1998 but by reason of ischaemic dementia not having been accepted by the respondent until 8 July 1999, satisfaction of the alone test - if at all - could not be achieved before that date.
75. Whilst some of the preliminary sub-sections of section 24(2A) were achieved by Mr Anderson, it was submitted that he could not satisfy the “alone” test by reason of his age, his amputated leg, his mixed dementia (being a combination of ischaemic dementia and Alzheimer’s disease) and the applicant winding down his farming operations by reason of a combination of poor seasons, poor prices, drought, poor work opportunities and the sale of the Camperdown farm.
76. With respect to the claimed condition of PTSD, Mr Rudge confirmed that at an objective level the applicant satisfied the definition of “experiencing a stressor” but did not satisfy that definition at a subjective level. He said an analysis of the applicant’s war diary would indicate a person who was stoic and heroic, yet had a sense of humour and could not be seen as a person who had a response involving “intense fear, helplessness or horror”.
Conclusion & Reasons For Decision
Post Traumatic Stress Disorder
77. The applicant claimed acceptance of the condition of PTSD as being war-caused on 6 January 1998. Accordingly the assessment period commenced on that date. At that time Instrument No. 15 of 1994 was in force and it was entitled “Post Traumatic Stress Disorder”.. It was amended by Instrument No. 225 of 1995 but that amendment was immaterial for these purposes. Instrument No. 15 of 1994 and Instrument No. 225 of 1995 were both revoked by Instrument No. 3 of 1999. That instrument was amended by Instrument No. 54 of 1999.
78. In Repatriation Commission v Gorton 2001 FCA 1194 the Federal Court decided that this Tribunal “must consider the reasonableness of the hypothesis advanced by reference to the SoP which is “in force” ……. If the current SoP “upholds the claimants hypothesis then the AAT moves pursuant to s.120(1) to consider whether it has been disproved beyond reasonable doubt”.. The court then decided that if the current SoP does not uphold the hypothesis a claimant may - pursuant to an accrued right under an earlier SoP - submit that the hypothesis is reasonable by reference to that earlier SoP.
79. There are material differences between Instrument No. 15 of 1994 and Instrument No. 3 of 1999 (as amended by Instrument No. 54 of 1999). The earlier Instrument contains a factor of “experiencing a stressor” whereas the later instrument contains a factor of “experiencing a severe stressor”.
80. For the purposes of this analysis and for the reasons which follow, I am satisfied that the applicant does satisfy Instrument No. 3 of 1999 as amended by Instrument No. 54 of 1999. The amending SoP concerns the definition of ‘experiencing a severe stressor’ and a corresponding factor. The amended definition as found within Instrument No. 54 of 1999 is reproduced as follows-
“Experiencing a severe stressor means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the persons, or other persons, physical integrity.
In the setting of service in the defence forces, or other service where the Veterans Entitlements Act applies, events that qualify as severe stressors include;
(i)threat of serious injury or death ; or
(ii)engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
81. In reaching the conclusions found below, reference can only be had to the evidence of Mrs Anderson, the contents of various medical reports and the applicant’s diaries. The applicant himself is infirm, and the extent of his dementia apparently prohibits him giving any evidence. It follows that in addition to this limited evidence, a number of facts will be assumed or inferred (refer Byrnes v Repatriation Commission 1993 116 ALR 210; Critch v Repatriation Commission 1996 43 ALD 574).
82. Additionally, this was an application where the respondent conceded paragraph 2(A)(i) of the definition of Post Traumatic Stress Disorder as it appears in Instrument No 3 of 1999. Sub-paragraphs (i) and (ii) have been the subject of debate in many applications heard by this Tribunal as to whether there should be an objective and subjective element to the above respective sub-paragraphs. I understand that this issue is presently before the Full Federal Court in at least two appeals, which are presently reserved. The relevance of this argument will hopefully be determined by the Full Court yet the observation needs to be made that “Statement of Principles are not relevant to the question of diagnosis” (refer Benjamin v Repatriation Commission 2001 FCA 1879). The initial issue in the present case is whether the applicant suffers PTSD. For the reasons which follow, I am satisfied, on the probabilities that the applicant does suffer PTSD.
83. Doctor Cole, in his reports of 5 September 2001 and 10 July 2002 found that the applicant did suffer from PTSD. In his first report he found that it was related to service. Doctor O’Brien reported on 8 April 2000 - having then attended the applicant for the first time - that Mr Anderson had a “long history of Post Traumatic Stress Disorder”.. He then consulted the applicant with respect to dementia. Doctor Van Der Linden in a report of 25 February 1998 (T-18) was unable to find evidence of “a service related psychiatric disability”, mainly because the extent of the applicant’s dementia prohibited obtaining an adequate history. In a further report of 24 July 2002 - having been provided with reports from Mr Shackell and Dr Cole, Dr Van Der Linden agreed with the conclusions expressed by Mr Shackell and Dr Cole. Whilst he did not find that PTSD did exist, he concluded that “the information supplied is strongly suggestive of that diagnosis”.. Mr Shackell in reports of 30 March 1998 (T-24) and 17 July 2002 (Exhibit F) found that a diagnosis of PTSD can properly be made. Having regard therefore to the medical opinion expressed above I am satisfied and find as a fact that the applicant does suffer from PTSD. There is nothing, which permits a finding of any precision as to when there was the clinical onset of PTSD, however there are many references in the reports to the condition being “longstanding”.. Mr Shackell reported that by the applicant having recorded in his diary that he was having sleep problems whilst serving in the Middle East, the symptoms of PTSD would have existed at least from the time he was discharged from service. Mrs Anderson in her evidence referred to the applicant frequently experiencing nightmares and sleeplessness from 1983 (when they married). It follows that the clinical onset of PTSD at the earliest occurred at or about the time of discharge from service and at the latest prior to 1983. The issue is not significant because the applicant did experience a severe stresssor which for reasons, which will follow, occurred during service. If the clinical onset at the earliest was at the time of discharge he must have therefore experienced a severe stressor prior to the clinical onset of PTSD.
84. The service records indicate that Mr Anderson was a member of the Australian Army between 1 July 1940 and 8 November 1945. He served in the South West Pacific, the Western Desert and the Middle East. Whether PTSD arose out of service and whether Mr Anderson can satisfy factor 5(a), as a minimum, are the remaining issues. The 4 stages of analysis, as determined by Repatriation Commission v Deledio 1998 49 ALD 193 at 206 are crucial for these purposes. Those stages are reproduced as follows-
“1. The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4. The tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved. ”
85. I am satisfied that the first two stages of the Deledio analysis are satisfied. There is material which points to a hypothesis connecting PTSD with service. As is recorded above there are Statements of Principles in force.
86. With respect to the third stage of Deledio I am satisfied that the hypothesis is reasonable because it is consistent with the template found within the Instrument. There is, in my view, material available which points to the applicant having experienced a severe stressor, prior to the clinical onset of PTSD.
87. The applicant’s diaries portray him as being a person who was exposed to and involved in severe and extreme conflict. There are many references made by him to “stukka raids”, “stukkas” and “sirens howling” (27 and 28 October 1942). He describes areas being “shelled” and “two chaps hit” (29 October 1942). Thereafter there are many references to Air Force sorties and “30 fighters keeping a screen over us” (29 October 1942). There are references in the diary to the applicant having to ride a motorcycle to deliver messages and serve as a dispatch rider. He has referred to listening to “rotten Hun propaganda” on a wireless. There is also a reference in a report from Dr Philpot (Exhibit L) which refers to the applicant having previously suffered a “undiagnosed intra cranial haemorrhage” by reason of a blast injury to the applicant’s face and a shrapnel injury to his left eye during service.
88. All of the above events satisfy me that there is a sufficiency of material which points to the applicant having experienced, witnessed have been confronted with events which did actually involve the threat of death or serious injury to himself or other persons. It follows therefore that the raised hypothesis is reasonable.
89. The fourth stage of Deledio requires an analysis of whether the respondent can satisfy the reverse onus. Findings of fact are required only at this stage.
90. I do attach considerable weight to the applicant’s diaries. They were obviously not written in contemplation of litigation and were contemporaneous to the horror and atrocities to which he was exposed. Little else is known in any detail of the events in service but that is principally because the applicant either refused or was unwilling to discuss his service experiences. Indeed it was not until 1995 that his wife learnt that he in fact did hold diaries and when she commenced to undertake research he spoke - although with reluctance - to her about his events in service. It is not uncommon to hear evidence in Veterans applications of the reluctance of Veterans to discuss their war-time experiences. It is not uncommon for wives and children to hear - for the first time - of the circumstances of service when husbands and fathers give evidence at this Tribunal. Whether discussion of events in service is too painful, or whether modesty prevents the discussion of service - particularly in circumstances where it is meritorious - I am unable to say, however the behaviour of Mr Anderson manifesting and observed by his wife after 1983 clearly points to PTSD which had its origin in service. There is nothing else known in the applicant’s lifetime which would point to or suggest that he experienced a stressor. I was impressed by the opinions expressed by Mr Shackell in his report of 17 July 2002 particularly at pages 2 and 3 where he recorded the following-
“In the case of Mr Anderson it is very clear that he must have been a very strong and determined individual to have survived the rigours of war-service as a dispatch rider in the Middle East, a very hazardous occupation. He sustained a number of injuries detailed in my report of 1998. He then returned to Australia, retrained as a commando where he was further wounded and served further in the South West Pacific. He took up a soldiers settlement block after the war, throwing himself fully into that and the community in which he lived. It is only as he has approached the latter years of his life that the full impact of the psychological damage that has occurred as a result of his war-service has become fully manifest”.
91. For the above reasons I find that the applicant did subjectively respond to events in service in a manner involving intense fear, helplessness or horror (refer paragraph 76).
92. For the reasons given above I am satisfied, as a fact, that the events described by Mr Anderson in his diaries, did occur. I am also satisfied that he does suffer PTSD, and that it is related to service. Accordingly, and having regard to the provisions of s.120(1), I am not satisfied that that respondent has disproved beyond reasonable doubt that the applicant suffers from PTSD nor has it been disproved beyond reasonable doubt that PTSD arose out of service. Mr Rudge submitted that a number of diary entries pointed to Mr Anderson not being affected by his service experiences, indeed it was submitted they were manifestations of humour and resilience. On balance I suggest they are no more than attempts at bravado, written at a time when Mr Anderson knew and appreciated the peril to which he was exposed. Accordingly the decision of the VRB insofar as it applied to PTSD should be set aside and in substitution for that part of the decision there will be a finding that the applicant does suffer PTSD.
Special Rate Pension
93. Entitlement to Special Rate Pension is to be determined by s.24 of the Veterans Entitlements Act 1986.
94. By reason of the applicant’s age, his entitlement is specifically to be considered under sub-section (2A)(d) which reads as follows-
“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;”.
95. For reasons which follow I am not satisfied on the probabilities that Mr Anderson can satisfy s.24(2A)(d), that is to say, I am not satisfied that Mr Anderson has become incapacitated from war-caused injuries, alone, preventing him from continuing to undertake the remunerative work that he was last undertaking before he made the application which has given rise to these proceedings.
96. Mr Anderson was born in 1914 and at the date of the application giving rise to these proceedings (6 January 1998) he was then 84 years of age. He is presently 89 years of age. Entitlement to special rate pension will not be determined by reference only to a persons age, but it is a relevant factor. In Repatriation Commission v Strickland 1990 12 AAR 343 at 351 Davies and Ryan JJ said-
“Age 65 was not an irrelevant matter. It is a common retiring age for employees and can be taken to reflect somewhat arbitrarily the community’s general understanding of the effect of age upon ability to undertake gainful employment, Thus, as the Tribunal said, 65 years is the age at which a male person qualifies for the grant of an age pension. It follows that, if nothing more were known of an applicant for a pension than that he was over the age of 65 years when the application was lodged, a tribunal would not be likely to be satisfied that the veteran was then suffering a loss of earnings by reason only of his war-caused incapacity. Of course, that is only a hypothetical case and, invariably, more is known about the matter than that, as it was in the present case. But the point is that a tribunal, especially a tribunal which deals with issues of this nature regularly, might reasonably proceed from the premise that applications for pension made after that age would fail, unless facts were disclosed which tended to the conclusion that the veteran would then still be continuing to undertake remunerative work, but for his war-caused incapacity.”
97. In the present case an analysis of the veteran’s capacity to undertake remunerative work can only be determined by reference to the evidence of his wife and other documents presently available. As is recorded above Mr Anderson is infirm and incapable of giving evidence.
98. As a general proposition it is well known and understood that self-employed farmers often work beyond the age of 65. Additionally, persons with disabilities are capable of working on a full-time or near full time basis and it would appear that despite the traumatic amputation of the applicant’s lower leg, he was able to successfully conduct farming operations for many years.
99. On balance however I am satisfied that the documents referred to below indicate that from about 1976 when Mr Anderson was then 62 years of age he had reached or was reaching a stage in his life where retirement was contemplated and then for reasons not associated with his war-caused injuries.
100. The letter written by Mr Anderson to the Repatriation Commission on 7 April 1976 stated that his age and his disability (leg amputation) caused him to investigate payment of a service pension. In the claim form for service pension Mr Anderson recorded that the basis of his claim was by reason of age and permanent unemployability. He recorded that permanent unemployability was constituted by a below right knee amputation.
101. In July 1986 the Repatriation Commission assessed the level of the applicant’s assets and decided that pension should be reduced. Mrs Anderson then wrote to the Commission apparently in response to the letter valuing assets and advised that she and her husband have “been compelled to sell the property …... at Camperdown”. In 1986 Mr Anderson was 72 years of age. The property at Camperdown was 168 acres. The property at Scotts Creek, which was purchased in 1986, was 14 acres. No reference at all is made in the letter completed by Mrs Anderson in November 1986 to the Camperdown property being sold by reason of her husband being unable to undertake remunerative work because of war-caused (or any other) injuries. The explanation given is entirely on the basis of the devaluation of assets.
102. Moving from 168 acres at the age of 72 to a property of 14 acres is again, in my view, consistent with a person intending to or having decided to retire. In fact it would appear that in 1986, Mr Anderson had in fact ceased working because in a questionnaire completed by him and forwarded to the Repatriation Commission he recorded (question 9) that in the previous 12 months, he had not been in full-time, part-time, seasonal or casual employment (page 78).
103. Mr Roberts, the applicant’s accountant wrote to the respondent in December 1986 - after the Scotts Creek property was purchased - indicating that there would be “little or no income from the farming venture” when advising that interest was likely to be achieved from monies invested following receipt of the proceeds of sale of the Camperdown farm. Mrs Anderson said that no discussion was ever held with Mr Roberts concerning future income, nor about investment of monies. However the comments made by him - being a submission to the Department of Veteran’s Affairs with respect to an entitlement to service pension - are consistent with the representations that would ordinarily be made in those circumstances. That “little or no income” would be achieved from farming 14 acres, (7 of which were uncleared) amounts in my view to a statement borne from his experience as an accountant in rural Victoria and from a view reasonably held that income from 14 acres would be difficult to achieve. Of course income from 14 acres would be difficult to achieve if a person had a state of mind that he was in or about to be in retirement.
104. Curiously when the applicant completed another assets test questionnaire on 10 February 1987, he represented to the Department of Veterans Affairs (page 99) that he had been in full time, part-time seasonal or casual employment for the previous 12 months and in fact had been self employed. However on 5 October 1987 Mr Anderson wrote to the Department of Veterans Affairs (page 106) and recorded in part the following-
“This past year has made it most difficult to farm any longer because of my age and an artificial leg, so I have disposed of the old place and stock and most of the plant.”
105. I would again find that comments of that type - absent any reference to war-caused disabilities - are consistent with the applicant being in a state of actual or intended retirement consistent with a declaration he made to the Repatriation Commission on 6 November 1988 where he again advised that he had not been in full-time, part-time, casual or self employment for the previous 12 months (page 109) followed by similar representation (page 112) in February 1991.
106. At the hearing Mrs Anderson lodged a proof of evidence dated 24 February 2003 which purported to demonstrate that there was commercial activity operating over the Scotts Creek property. Indeed it was submitted at the conclusion of the evidence that I should find that the Scotts Creek property was commercially viable and this application should be distinguished from the application in Hill v Repatriation Commission.
107. Having read the statement of Mrs Anderson of 24 February 2003, having heard her evidence and having enquired in detail into the activity operating at Scotts Creek, I am now satisfied and find as a fact that in or about the late 1980’s and probably by 1990 at the latest Mr Anderson had realistically chosen to retire and thereafter he and Mrs Anderson chose to pursue a lifestyle involving varied activity over their small holding which could not ever realistically be categorised as “remunerative work”.. Indeed I am now satisfied that a greater part of the content of the statement of 24 February 2003 is no more than an exaggeration of the true nature and level of the activity conducted at Scotts Creek. For example income from “meat poultry” extended for a period of between 6 and 8 weeks only and then involving 24 chickens. This activity ceased because the slaughter of the hens revolted Mr Anderson. The reference to “egg laying poultry” as a means of obtaining income amounted to no more than an average of $2 per week, even allowing for the exceptional laying capacity of the hens who according to Mrs Anderson produced an average of 6 eggs each per day.
108. The income from dog breeding amounted to no more than $100 over 5 years subject to cash payments Mrs Anderson speculated were made to her husband but over which she could offer no proof. It is doubtful however that with one stud dog only serving five female dogs per year that much by way of income would have been achieved.
109. Racehorses were agisted but for a 12 month period only and then providing an income of no more than $50 per week on average. That income was received after 1995 when the applicant underwent coronary surgery from which date Mrs Anderson agreed that he had effectively retired.
110. It was submitted that income was achieved from the sales of fruit and vegetables. Mrs Anderson said pears were sold at ‘$5 per bucket’ yet no documentation existed to prove the amounts received, nor did Mrs Anderson give any estimates of the amounts actually received other than to say that produce was sold to two local organic fruit shops and at weekend markets. Any income must have been extremely modest because fruit necessarily is seasonal, the trees were young and except for the pear trees which apparently existed before the Scotts Creek property was purchased, the remaining trees would have needed many years to mature to become of fruit bearing age. The “small market garden” was estimated by Mrs Anderson to occupy land approximately ¾ of the size of the Tribunal hearing room, which in my view would be marginally greater than an ordinary domestic vegetable garden.
111. I would imagine that Mr Anderson would enjoy tending the vegetable garden. In retirement this would constitute activity which would give him pleasure and he would be able to work at his own pace allowing for his many illnesses and physical disability. Indeed the lifestyle at Scotts Creek would appear to have been idealic and enviable and consistent with a person who had retired. Mr Anderson had been a farmer on broadacres for many years prior to 1986 when the Scotts Creek property was purchased. It is inconceivable that he would have regarded the Scotts Creek property as engaging him in remunerative work. The varied activities undertaken at Scotts Creek may not collectively amount to that property being regarded as a “hobby farm” but it would appear - at least to Mrs Anderson - that such a characterisation is appropriate. This is because in the application for pension which has given rise to these proceedings, Mr Anderson on 26 December 1997 completed an application form which appears to be in the handwriting of Mrs Anderson (page 41) where the history of employment records that from 1986 the type of work undertaken was “retirement acres, hobby farm, sheep”.. Increasing dementia and leg amputation are also recorded on the same page as disabilities affecting employment. The explanation given by Mrs Anderson in the pension application is consistent with her evidence at Warrnambool, namely, “reducing his farming to a smaller property helped him ease out of farming” (refer para 22 earlier). This explains the absence of remuneration. It was by his choice, in 1986, eleven years before the application was lodged that he decided to “ease out of farming”.. It was not by war caused injuries, alone. Mrs Anderson is to be acknowledged for her fortitude and devotion. Her commitment to Mr Anderson and the Scotts Creek property is beyond doubt, however the legislation and relevant case law cannot be ignored.
112. In Cavell v Repatriation Commission 1989 9 AAR 534 Burchett J. decided that the word “alone” does not mean “sole, unique and absolute cause”. His Honour concluded that in order to comprehend that expression the Tribunal should “make a practical decision whether the veterans loss of remunerative work is attributable to his service related incapacities and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions but with an eye to reality and as a matter in respect of which common sense is the proper guide”.
113. Despite the absence of Mr Anderson from these proceedings, the thesis of Re Strickland (refer earlier) commands enquiry into the hypothetical position of a veteran beyond the age of 65. On the one hand Mr Anderson has made representations to the respondent over many years concerning his intended and actual applications for various pensions including representations as to whether he has been employed. There is not one reference made by him in his applications that his intended and actual retirement is by reason of war-caused injuries alone. Mrs Anderson on the other hand has suggested that her husband was stoic, reluctant to talk about his illnesses, yet capable of being able to undertake farming were it not for his war-caused illnesses and injuries alone. Whilst I have no quarrel that Mr Anderson was stoic and reluctant to speak of his various illnesses, I am satisfied on the balance of probabilities, and by reference to the decision in Cavell, that by a combination of the applicant’s age, his stated reasons for applying for service and disability pensions, his representation that he had ceased employment, his lifestyle at Scotts Creek, the number of years between the admitted retirement in 1995 (probably much earlier) and the application in 1998 prevent Mr Anderson from satisfying the “alone” test, under s.24.
114. In the circumstances the application for special rate pension is refused.
I certify that the 114 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member.
Signed: ....C. Irons ....................................
SecretaryDate/s of Hearing 4 July 2002, 20 August 2002, 26 February 2003
Date of Decision 14 April 2003
Counsel for the Applicant Mr D. DeMarchi
Solicitor for the Applicant
Counsel for the Respondent Mr K. Rudge, Departmental Representative
Solicitor for the Respondent
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