FEDERAL COURT OF AUSTRALIA
Beezley v Repatriation Commission [2015] FCAFC 165
Citation: Beezley v Repatriation Commission [2015] FCAFC 165 Appeal from: Beezley v Repatriation Commission [2015] FCA 78 Parties: JOHN BEEZLEY v REPATRIATION COMMISSION File number: VID 99 of 2015 Judges: NORTH, TRACEY AND MORTIMER JJ Date of judgment: 20 November 2015 Catchwords: DEFENCE AND WAR – whether Tribunal erred in finding the appellant did not satisfy s 24(2A) of the Veterans’ Entitlements Act 1986 (Cth) on the basis “remunerative work” or “last paid work” was not performed after turning 65 – grounds dismissed given no challenge to the finding the appellant was not prevented from undertaking remunerative work by war-caused injury or disease “alone” – whether Tribunal erred by imposing an onus of proof on the appellant – appeal dismissed
PRACTICE AND PROCEDURE – disregard of appellate case management processes – relevant considerations where appellant seeks to raise fresh arguments on appeal
Legislation: Administrative Appeals Tribunal Act1975 (Cth) s 44
Corporations Act 2001 (Cth) ss 530A(2), 530A(3)
Federal Court of Australia Act 1976 (Cth) s 37M
Veterans’ Entitlements Act 1986 (Cth) ss 5Q, 15, 24, 24(1)(c), 24(2A), 120Cases cited: AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175
Applicant VEALof 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88
Coulton v Holcombe [1986] HCA 33; 162 CLR 1
Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] FCAFC 81; 289 ALR 237
Grant v Repatriation Commission [1999] FCA 1047
Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; 322 ALR 254
Maurici v Chief Commissioner of State Revenue [2003] HCA 8; 212 CLR 111
McDonald v Director-General of Social Security [1984] FCA 59; 1 FCR 354
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164
Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; 44 FLR 41
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
Peacock v Repatriation Commission [2007] FCAFC 156; 161 FCR 256
Repatriation Commission v Richmond [2014] FCAFC 124; 226 FCR 21
Repatriation Commission v Watkins [2015] FCAFC 10; 228 FCR 573
Summers v Repatriation Commission [2015] FCAFC 36; 230 FCR 179
Ward v Western Australia [1996] FCA 1452; 69 FCR 208
Watkins v Repatriation Commission [2014] FCA 787; 142 ALD 106Date of hearing: 17 August 2015 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 76 Counsel for the Appellant: Mr N Green QC Solicitor for the Appellant: De Marchi & Associates Counsel for the Respondent: Ms C Dowsett Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 99 of 2015
ON APPEAL FROM THE FEDERAL COURT OF…
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- Beezley v Repatriation Commission [2015] FCAFC 165
- Case
- [2015] FCAFC 165
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CaseChat Overview and Summary
In the case of Beezley v Repatriation Commission, the appellant, Mr Beezley, appealed against the decision of the Tribunal to reject his application to increase his pension to the special rate under the Veterans’ Entitlements Act 1986 (Cth). Mr Beezley contended that he was entitled to the special rate pension because he was prevented by his war-caused injuries from undertaking remunerative work after he turned 65 years of age. The Tribunal found that Mr Beezley was not prevented from undertaking remunerative work by his war-caused injuries or disease alone, and therefore dismissed his application. The primary issue before the court was whether the Tribunal erred in finding that Mr Beezley did not satisfy the requirements of s 24(2A) of the Veterans’ Entitlements Act 1986 (Cth). The court noted that Mr Beezley did not challenge the finding that he was not prevented from undertaking remunerative work by his war-caused injury or disease alone, and therefore dismissed the appeal on this ground. The court also considered whether the Tribunal erred by imposing an onus of proof on Mr Beezley. The court found that s 15(4) of the Act did not impose any onus of proof on an applicant, and that Mr Beezley was free to submit evidence in support of his application at any time before the determination of the application. The court dismissed the appeal on this ground as well.
The court further considered whether Mr Beezley was entitled to raise a new question of law on appeal. The court found that the appellant had not sought leave to raise the new question of law, and that it was not appropriate to do so in the circumstances of this case. The court dismissed the appeal and ordered that Mr Beezley pay the respondent’s costs of and incidental to the appeal, including any costs related to the further amended notice of appeal filed in court on 17 August 2015. The court emphasised the importance of adhering to appellate case management processes and noted that the appellant’s failure to do so was a relevant consideration in determining the outcome of the appeal.
The court further considered whether Mr Beezley was entitled to raise a new question of law on appeal. The court found that the appellant had not sought leave to raise the new question of law, and that it was not appropriate to do so in the circumstances of this case. The court dismissed the appeal and ordered that Mr Beezley pay the respondent’s costs of and incidental to the appeal, including any costs related to the further amended notice of appeal filed in court on 17 August 2015. The court emphasised the importance of adhering to appellate case management processes and noted that the appellant’s failure to do so was a relevant consideration in determining the outcome of the appeal.
Orders
Orders of the court
1. Leave to raise the new question of law identified in the further amended notice of appeal filed in court on 17 August 2015 is refused.
2. The appeal be dismissed.
3. The appellant pay the respondent’s costs of and incidental to the appeal, including any costs related to the further amended notice of appeal filed in court on 17 August 2015.
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 set out below, the appeal must be dismissed.FACTUAL BACKGROUND In the opening part of its reasons, the Tribunal set out the factual background as follows:1.Mr Beezley, the applicant in this review, was engaged in operational service in Vietnam between November 1967 and July 1968. He has a number of disabilities accepted by the respondent as war-caused, the most significant being post traumatic stress disorder (PTSD).2.Prior to enlistment, the applicant commenced an electroplating apprenticeship with a firm to which he ultimately became the manufacturing supervisor. He returned to that employment, after he was discharged from service and remained in that position until 1977.3.He was then employed for about 2 ½ years as a sales executive with a chemical company until 1980 when he acquired an electroplating business – All-Brite Plating. Thereafter, he has been in self-employment.4.In 1991, the business was incorporated and thereafter traded as All-Brite Plating Pty Ltd (All-Brite). That entity conducted the electroplating operations and employed persons. He also incorporated another company, All Bright Plating (Australia) Pty Ltd which was engaged only in research and development. The applicant and his wife were the sole directors of both companies.5.A number of events occurred in May 2011 which were significant in the context of this review. Those events were:(a)on 11 May 2011, All-Brite entered into a creditors voluntary winding up;(b) on 23 May 2011, the applicant turned 65 years; and(c)on 31 May 2011, the applicant made a claim for an increase in pension.6.At the date of this review, the applicant was receiving pension at 90% of the general rate. His application was to seek pension at the special rate. The primary judge noted at [7] of his reasons, and we agree, that there is tension between the Tribunal’s finding at [3] of its reasons that the appellant was “in self-employment” after he acquired the All-Brite business, and its finding at [4] and [5] that the business was, at least by May 2011, conducted by a corporation. Since the matter is not material to the determination of the grounds of appeal, we say no more about it. What was critical to the Tribunal’s decision (and the appeal before the primary judge) was the nature of the appellant’s activities after he turned 65 on 23 May 2011, shortly after All-Brite was placed into liquidation. The appellant contended he performed “remunerative work” as defined in the Veterans’ Entitlements Act beyond his 65th birthday because he was paid a month’s salary in advance from the first week of May 2011, and because he worked with the liquidator of All-Brite assisting in the winding-up of the company. As we set out in more detail below, the Tribunal rejected these contentions.RELEVANT LEGISLATION Section 24 of the Veterans’ Entitlements Act sets out the circumstances in which a veteran may be entitled to receive a pension at the special rate. The appellant, who was in receipt of a pension under the Act, applied after he turned 65 to increase his pension to the special rate. The fact that he applied after he had turned 65 made his application subject to s 24(2A) of the Act, which provides:This section applies to a veteran if:(a)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and(b) the veteran had turned 65 before the claim or application was made; and(c) paragraphs (1)(a) and (1)(b) apply to the veteran; and(d)the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and(e)because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and(f)the veteran was undertaking his or her last paid work after the veteran had turned 65; and(g) when the veteran stopped undertaking his or her last paid work, the veteran:(i)if he or she was then working as an employee of another person—had been working for that person, or for that person and any predecessor or predecessors of that person; or(ii)if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling—had been so working in that profession, trade, employment, vocation or calling;for a continuous period of at least 10 years that began before the veteran turned 65; and(h) section 25 does not apply to the veteran.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Specifically in relation to applications for an increase in the rate of pension, s 15 of the Act relevantly provides:(3)An application under subsection (1) or (2):(a)shall be in writing and in accordance with a form approved by the Commission;(b) shall be accompanied by such evidence available to the applicant as the applicant considers may be relevant to the application; and(c)is to be lodged at an office of the Department in Australia in accordance with section 5T and is taken to have been made on a day determined under that section.(4)Subsection (3) shall not be taken to impose any onus of proof on an applicant or to prevent an applicant from submitting evidence in support of the application subsequently to the making, but before the determination, of the application.THE TRIBUNAL’S DECISION Only the appellant gave evidence before the Tribunal. The evidence before the Tribunal was otherwise in documentary form. The appellant gave evidence that his business was at one stage successful, operating 24 hours a day out of six factories and employing 35 people. However the business lost customers, which the appellant attributed at least in part to his attitude to customers, which was, he said, a consequence of his PTSD. At the creditors’ meeting of All-Brite, the appellant is recorded as reading out a statement prepared by his accountant, which described the downturn of the business in the following way:There were 3 factors that made the business unsustainable.The closure of SPS Fasteners in Australia. Even though the work was resourced locally the products were imported.The general downturn in manufacturing.The increase of imported products mainly China. The appellant’s evidence was that he was paid a salary by All-Brite monthly in advance, including a payment made in the first week of May for the period expiring the first week of June 2011. His salary payments were made by electronic transfer, but directed into his superannuation account by way of salary sacrifice. The Tribunal noted that the “history of deposits and withdrawals associated with All-Brite and the purpose of some of its bank accounts were largely unexplained during the hearing”. The Tribunal noted that the bank records showed two deposits into the appellant’s superannuation account of $40,000 and $14,200 in the period 1 to 10 May 2011, but that there were no corresponding withdrawals from All-Brite’s bank account. The appellant could not explain the payments and could not tell the Tribunal from which All-Brite account his salary was debited. The Tribunal’s reasons then record the following evidence from the appellant (at [23]-[24]):On that day, I assume before the liquidator arrived, the applicant went to his bank and withdrew approximately $1500 in cash to pay wages owing to John Kaleske and Mark Tramontana. The bank statement of the All-Brite account does not show any cash withdrawal on 11 May 2011. The applicant supervised the work that was undertaken by John Kaleske and Mark Tramontana and, having regard to his earlier evidence of the work that was on hand and undertaken after 12 May 2011, he said it was likely that those persons last worked on or about 19 May 2011.The applicant said that he was receiving income prior to All-Brite being liquidated and he has subsequently lost significant income.
Ratio Decidendi
Legal Principle Established
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