Barnes v Repatriation Commission

Case [2019] FCA 1685

FEDERAL COURT OF AUSTRALIA

Barnes v Repatriation Commission [2019] FCA 1685

Appeal from: Barnes v Repatriation Commission (Veterans' Entitlements) [2017] AATA 1385
File number: VID 1070 of 2017
Judge: KENNY J
Date of judgment: 16 October 2019
Catchwords: VETERANS ENTITLEMENTS – appeal under s 44 Administrative Appeals Tribunal Act 1975 (Cth) affirming a decision of the Veterans’ Review Board to refuse application for increase to pension at intermediate or special rate – whether Tribunal erred with respect to “the substantial cause” test in s 23(1)(c) of the Veterans’ Entitlements Act 1986 (Cth) – whether Tribunal failed in duty to give reasons
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Veterans’ Entitlements Act 1986 (Cth) ss 23, 23(1)(c), 23(3)(b)

Cases cited:

Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280

Commissioner of Taxation v Osborne (1990) 26 FCR 63; 95 ALR 654

Flentjar v Repatriation Commission (1997) 48 ALD 1; 26 AAR 93

Fox v Repatriation Commission [1997] FCA 176; 45 ALD 317

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323

Owen v Repatriation Commission [1995] FCA 607; 59 FCR 93

Re Bowman and Repatriation Commission (1990) 19 ALD 794

Repatriation Commission v Smith (1987) 15 FCR 327

Repatriation Commission v Woodall [2015] FCA 1267; 243 FCR 441

Smith v Repatriation Commission [2014] FCAFC 53; 220 FCR 452

Summers v Repatriation Commission [2015] FCAFC 36; 230 FCR 179

Willis v Repatriation Commission [2012] FCA 399; 202 FCR 323

Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480

Date of hearing: 11 September 2018
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 65
Counsel for the Applicant: Mr D De Marchi
Solicitor for the Applicant: De Marchi & Associates
Counsel for the Respondent: Mr T Smyth
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

VID 1070 of 2017
BETWEEN:

PHILIP JOHN BARNES

Applicant
AND:

REPATRIATION COMMISSION

Respondent

JUDGE:

KENNY J

DATE OF ORDER:

16 OCTOBER 2019

THE COURT ORDERS THAT:

1.The appeal under section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) be dismissed.

2.Unless a party notifies the Court by 4:00 pm on 23 October 2019, by writing stating opposition to this order, the applicant pay the respondent’s costs of the proceeding, as agreed or assessed.

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


REASONS FOR JUDGMENT

KENNY J:

  1. This is an appeal from a decision of the Administrative Appeals Tribunal (Tribunal) under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).  On 29 August 2017, the Tribunal affirmed a decision of the Veterans’ Review Board (VRB), which in turn affirmed a decision of a delegate of the…

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AGLC
Barnes v Repatriation Commission [2019] FCA 1685
Case
[2019] FCA 1685
Decision Date

CaseChat Overview and Summary

Mr Barnes, a former member of the Royal Australian Air Force, appeals a decision of the Administrative Appeals Tribunal affirming the decision of the Veterans’ Review Board to refuse his application for an increase in the rate of his disability pension. The Tribunal found that the incapacitating effects of Mr Barnes’ accepted disabilities were not the substantial cause of his inability to undertake remunerative work. The central issue was whether the Tribunal erred in its application of the “substantial cause” test in s 23(1)(c) of the Veterans’ Entitlements Act 1986 (Cth). The Court found that the Tribunal correctly applied the statutory test. The Tribunal had found that Mr Barnes could undertake up to 20 hours per week in a primarily sedentary role. It preferred the opinion of Dr Horsley, an occupational physician, who had considered Mr Barnes’ capacity to undertake remunerative work, over the opinion of Mr Prestage, a consultant orthopaedic surgeon, whose assessment had focused substantially on Mr Barnes’ right ankle. The Tribunal’s reasons, which included a detailed account of the evidence, enabled the Court to understand its reasoning. The Court found that the Tribunal’s reasoning was consistent with the law. The Court dismissed Mr Barnes’ appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). It ordered that unless a party notified the Court by 4:00 pm on 23 October 2019, by writing stating opposition to this order, the applicant pay the respondent’s costs of the proceeding, as agreed or assessed.

Orders

Orders of the court

1. The appeal under section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) be dismissed.

2. Unless a party notifies the Court by 4:00 pm on 23 October 2019, by writing stating opposition to this order, the applicant pay the respondent’s costs of the proceeding, as agreed or assessed.

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

Background

Background to the litigation

For the reasons that follow, I would dismiss Mr Barnes’ appeal under s 44 of the AAT Act.BACKGROUND The Tribunal found (at [1]) that Mr Barnes served as a clerk/auditor in the Royal Australian Air Force (RAAF) between 26 April 1971 and 31 December 1992. He achieved the rank of Sergeant. Mr Barnes is now in his 60s and suffers from a number of medical conditions. He receives a Full Treatment Disability Pension at 100% of the “general rate”, as provided by s 22 of the VE Act. At the time of the Tribunal’s decision, Mr Barnes’ accepted conditions were: cervical, thoracic and lumbar spondylosis; sleep apnoea; fracture of the right malleolus (ankle); solar skin damage; sensorineural hearing loss; tinnitus; deviated nasal septum; and “pes planus [flat foot] right foot and left foot sprain”: Tribunal reasons, [12]-[13]. Mr Barnes applied to the Repatriation Commission for an increase in his pension in March 2014. His application referred to a “right ankle problem”, attributable to an ankle fracture suffered while playing football for an RAAF team. A delegate of the Repatriation Commission accepted Mr Barnes’ “right ankle problem” as service-related on 20 May 2014 but refused his application for a pension increase on the basis that Mr Barnes had “ceased work due to reasons other than [his] accepted disabilities, and [has] non-accepted disabilities that also impact upon [his] ability to undertake remunerative employment”. The delegate also found that Mr Barnes was not eligible for the Extreme Disablement Adjustment (see s 22(4) of the VE Act) as he was at that time under 65 years of age. The VRB affirmed the decision of the Repatriation Commission on 18 November 2015. Mr Barnes applied to the Tribunal for review of the decision of VRB on 18 March 2016. The Tribunal affirmed the decision under review on 29 August 2017. RELEVANT LEGISLATION Section 13(1) of the VE Act provides that the Commonwealth is liable to pay a pension by way of compensation to a veteran who is “incapacitated from a war-caused injury or a war-caused disease”. Broadly speaking, the meaning of the expressions “war-caused injury” or “war-caused disease” is the subject of s 9 of the VE Act. As the Commonwealth has accepted liability under s 13 in respect of a number of the conditions from which Mr Barnes suffers (accepted conditions or accepted disabilities), it is unnecessary to consider the extended meanings given by the VE Act to “war-caused injury” or “war-caused disease”. As a consequence of the Commonwealth’s acceptance of liability, Mr Barnes is a recipient of a pension at 100% of the general rate under s 22. Section 15 of the VE Act provides a means by which a veteran in receipt of pension may apply for an increase in the rate of the pension “on the ground that the incapacity of the veteran has increased since the rate of the pension was assessed or last assessed”. Division 4 of Part II of the VE Act, which deals with the different rates of pension payable to veterans for war-caused injuries and war-caused diseases, is central to this case. As already indicated, s 22 provides for the general rate. Section 23 provides for an intermediate rate of pension; and s 24 provides for a special rate of pension. The last-mentioned is the most generous rate. Amongst other things, to be entitled to a pension at the special rate the veteran must satisfy the decision-maker that the veteran (in s 24(1)(b)):… 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[.]

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Provision is made in s 120 of the VE Act for the standard of proof to be applied in determining a claim for a pension. Section 120(4) is relevant in Mr Barnes’ case since he did not render operational service (as defined in the VE Act). Where s 120(4) applies, in making a decision in respect of a matter arising under the VE Act, including the assessment or re­assessment of the rate of a pension granted under Part II, the Repatriation Commission shall decide the matter to its reasonable satisfaction. The direction in s 120(4) has been said “to introduce the standard of proof required in civil litigation”: see Repatriation Commission v Smith (1987) 15 FCR 327 at 335 (Beaumont J, Northrop and Spender JJ agreeing). On review, the Tribunal must also make a decision to its reasonable satisfaction. THE TRIBUNAL’S DECISION As already indicated, Mr Barnes’ focus in this Court was on the Tribunal’s determination that he was not entitled to an intermediate rate of pension under s 23. The Tribunal’s reasons included a detailed account of the evidence, including that of Mr Barnes and of Dr Robyn Horsley, an occupational physician, both of whom gave evidence before it and were subject to cross-examination. The Tribunal also carefully discussed the various medical reports before it about cervical, thoracic and lumbar spondylosis, including: Dr Horsley’s reports of 20 October 2016 and 14 July 2016; the 7 September 2016 report of Mr Patrick Lo, neurosurgeon; the 30 June 2015 letter from Dr Fotakis, general practitioner (said to be in part contrary to the specialist opinions of Drs Horsley, Joubert and Poon); the 24 April 2014 report of Mr Vasudeva S Pai, consultant orthopaedic surgeon; and the 17 April 2014 report of Mr David Prestage. The Tribunal also discussed the medical reports so far as they concerned an old fracture of the right malleolus (ankle), including the 14 July 2016 report of Dr Horsley; the 1 June 2015 letter from Philip Spark, podiatrist; the 26 May 2015 report by Dr Robert Piaggio, diagnostic radiologist; the 15 May 2015 x-ray report by Dr Alex Dulimov; and the 24 April 2014 report by Mr Vasudeva S Pai. In addition, the Tribunal considered the expert evidence concerning solar skin damage, sensorineural hearing loss and tinnitus, and deviated nasal septum and held that none of these three conditions had “a significant effect on Mr Barnes’ capacity to undertake remunerative work”: see Tribunal reasons, [31]-[33]. The Tribunal also outlined the evidence relating to foot pain, which in large part concerned two conditions that had not been accepted by the Repatriation Commission and/or the VRB. These were the conditions of Plantar Fasciitis and Sinus Tarsii syndrome (non-accepted conditions). The Tribunal accepted that Mr Barnes had these non-accepted conditions at the time of its decision. As well, the Tribunal considered evidence relating to Mr Barnes’ shoulder problems and right knee. The Tribunal recorded, at [42], that it had “placed more weight on the opinion of occupational physician, Dr Horsley, whose education and training is far more applicable to the circumstances of this case” than to the medical reports relied on by Mr Barnes. It added (at [41]-[42]):Moreover, Dr Horsley’s opinion is contained in a comprehensive report that draws on her specialised knowledge and the reports of other physicians, which is then applied to the inter-relationship between Mr Barnes and his capacity for work. I note that orthopaedic consultant Mr Pai defers in his report to the judgement of occupational physicians when it comes to questions of employment capacity.I therefore prefer Dr Horsley’s opinion over that of Dr Prestage and the other physicians, because her clinical assessment was comprehensive, whereas the referral underpinning Dr Prestage’s assessment was focussed substantially on Mr Barnes’ right ankle. Consistent with the opinion of Dr Horsley, which I note is reflected in Mr Barnes’ own assessment of his work capacity, I therefore find that he is able to work up to 20 hours per week in a ‘primarily sedentary role,’ where he can move around and sit-stand as he could do in his market research role.

Ratio Decidendi

Legal Principle Established

The respondent contended that the Tribunal gave written reasons for its decision in accordance with its statutory duty. Specifically, it contended that: (1) it was “possible to discern that the Tribunal correctly applied Kiefel J’s reasoning in Fox”; (2) the Tribunal did not “‘disqualify’ [Mr Barnes] by use of a tentative or insufficient finding” and (3) the Tribunal did not “‘disqualify’ him on the basis that there were ‘accepted’ and ‘non-accepted’ causes in play; rather it … reached the view that his accepted conditions were not the substantial cause of his inability to work”.CONSIDERATION Question 1 As will be seen, the primary question that was raised on Mr Barnes’ notice of appeal and his submissions concerned the Tribunal’s application of s 23(3)(b) of the VE Act. Mr Barnes did not, of course, have any difficulty with the Tribunal’s finding that it was reasonably satisfied that he had genuinely been seeking to engage in remunerative work. Rather, his principal complaint was that the Tribunal failed to address the correct statutory question when considering whether or not it was reasonably satisfied that he had met the statutory requirement in s 23(3)(b) that the incapacitating effect of a war-caused injury be the substantial cause of his inability to obtain remunerative work. This Court has considered on a number of occasions the operation of s 24(2) of the VE Act, which is in similar, though not identical, terms to s 23(3). Relevantly for present purposes, s 24(2)(b) is in identical terms to s 23(3)(b). Just as s 24(2)(b) “creates a beneficial easing of the impact of the word ‘alone’ in s 24(1)(c)” (Smith at [11]), so too s 23(3)(b) eases the impact of “alone” in s 23(1)(c). In Smith at [12]-[14], Rares J helpfully explained the relationship of ss 24(1)(c) and 23(3)(b) in the following terms:If a veteran who has applied for an increase in the rate of pension under s 15 cannot satisfy the requirements of s 24(1), he or she may still be eligible for a lesser increase under s 23. That section operates in respect of a veteran who is not totally and permanently incapacitated within the meaning of s 24(1)(b), but whose incapacity has resulted in him or her being only able to undertake part-time or intermittent remunerative work….The general scheme of s 23(1) and (2) follows that of s 24(1) but with adaptations to take account of the differing impacts of the effects of war-caused injuries that leaves a veteran with, on the one hand, some substantial capacity to engage in remunerative work (s 23) and, on the other, no, or a very minimal, capacity to do so (s 24). Thus, s 23(2) excludes a veteran who is capable of, or is actually, undertaking remunerative work for more than 50% of the ordinary time for that type of work or 20 hours per week from satisfying s 23(1)(b).It is clear that where s 23(1)(c) repeats verbatim the terms of s 24(1)(c), the two are, nonetheless, referring to differing degrees of incapacity or effects of a war-caused injury on the veteran.