Beezley v Repatriation Commission

Case [2015] FCA 78

FEDERAL COURT OF AUSTRALIA

Beezley v Repatriation Commission [2015] FCA 78

Citation: Beezley v Repatriation Commission [2015] FCA 78
Appeal from: Beezley and Repatriation Commission [2014] AATA 495
Parties: JOHN BEEZLEY v REPATRIATION COMMISSION
File number: VID 478 of 2014
Judge: BROMBERG J
Date of judgment: 17 February 2015
Catchwords: DEFENCE AND WAR – application by veteran for special rate pension pursuant to s 24(2A) of the Veterans’ Entitlements Act 1986 (Cth) – whether a finding made by the Tribunal as to whether the veteran performed work of a particular kind raised a question of law in relation to the phrase “remunerative work” – whether factual finding made that veteran was not performing any work after turning 65 years of age was made in a manner which raised an error of law – no error of law – appeal dismissed.
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 44, 44(1)
Corporations Act 2001 (Cth) ss 499, 530A, 530A(2)(c), 530A(3)
Veterans’ Entitlements Act 1986 (Cth) ss 5Q, 22, 23, 24, 24(1), 24(2A), 24(2A)(d), 24(2A)(e), 24(2A)(f), 24(2A)(g)
Cases cited: Beezley v Repatriation Commission [2014] AATA 495 Repatriation Commission v Connell (2011) 197 FCR 228
Price Street Professional Centre Pty Ltd v Commissioner of Taxation (2007) 243 ALR 728
Waterford v Commonwealth (1987) 163 CLR 54
Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Parks Holdings Pty Ltd (t/as Gladstone Chemicals) v Chief Executive Officer of Customs (2004) 81 ALD 365
Date of hearing: 5 February 2015
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 65
Solicitor for the Applicant: Mr D De Marchi of 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 478 of 2014
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

JOHN BEEZLEY
Applicant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

BROMBERG J

DATE OF ORDER:

17 FEBRUARY 2015

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The applicant pay the respondent’s costs.

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


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 478 of 2014
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

JOHN BEEZLEY
Applicant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

BROMBERG J

DATE:

17 FEBRUARY 2015

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. The applicant (Mr Beezley) is a veteran who was engaged in operational service in Vietnam between November 1967 and July 1968.  He has a number of war-caused disabilities, including Post-Traumatic Stress Disorder (PTSD).

  2. Mr Beezley was receiving a pension at 90% of the general rate of pension available pursuant to s 22 of the Veterans’ Entitlements Act 1986 (Cth) (VE Act). Mr Beezley applied for a pension at the special rate on the basis that he satisfied the criteria specified by s 24(2A) of…

Continue reading Beezley v Repatriation Commission

Sign in free to access the full text

Details
AGLC
Beezley v Repatriation Commission [2015] FCA 78
Case
[2015] FCA 78
Decision Date

CaseChat Overview and Summary

In the matter of Beezley v Repatriation Commission, the Federal Court of Australia was tasked with reviewing the decision of the Administrative Appeals Tribunal (AAT) regarding the eligibility of Mr. Beezley for a special rate pension under section 24(2A) of the Veterans’ Entitlements Act 1986. Mr. Beezley, a veteran, argued that the AAT made errors in interpreting the term "remunerative work" and in determining whether he was performing such work after reaching the age of 65. The primary legal issue revolved around whether the AAT’s findings constituted an error of law and whether Mr. Beezley’s activities, including his involvement with a liquidator post-liquidation, qualified as "remunerative work."

The Court examined the AAT’s reasoning and concluded that the Tribunal did not commit an error of law. The Court found that the AAT did not definitively rule that assisting a liquidator under the Corporations Act could not be considered "remunerative work." Instead, the AAT’s conclusion that Mr. Beezley was not engaged in remunerative work after May 2011 was based on factual findings that he was not employed by the company at the time. Furthermore, the Court held that the AAT correctly determined that Mr. Beezley did not have an entitlement to remuneration for assisting the liquidator, which aligned with the statutory definition of "remunerative work." Consequently, the Court dismissed Mr. Beezley’s appeal and ordered him to pay the respondent’s costs.

Orders

Orders of the court

1. The appeal is dismissed.

2. The applicant pay the respondent’s costs.

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

Background

Background to the litigation

For the following reasons, Mr Beezley’s appeal must be dismissed.Background facts Before Mr Beezley’s enlistment, he was employed as an apprentice electroplater. In due course, he became a manufacturing supervisor. Subsequent to Mr Beezley’s discharge from service he returned to his former employment and continued as a manufacturing supervisor until 1977. For two and a half years commencing in or around 1977, Mr Beezley was a sales executive with a chemical company. In 1980, Mr Beezley left that employment and acquired an electroplating business trading as “All-Brite Plating.” There is tension between the Tribunal’s finding at [3] that Mr Beezley was in self-employment after he acquired the All-Brite business and its finding that the business was, at least by May 2011, conducted by a corporation. It appears that on Mr Beezley’s acquisition of the business “All-Brite Plating,” he personally traded as “All-Brite Plating,” or in any event that the business “All-Brite Plating” was not carried on by a corporation. In 1991, All-Brite Plating Pty Ltd (All-Brite) was incorporated and commenced to carry on the electroplating business. Despite referring to Mr Beezley as being self-employed, the Tribunal proceeded on the undisputed basis that, at least by May 2011, Mr Beezley was an employee of All-Brite and, with his wife, one of All-Brite’s two directors. At its peak, All-Brite’s business operated out of six factories and had 35 employees. The business declined substantially during the 2011 financial year. In the first week of May 2011, Mr Beezley was paid his monthly salary in advance. On 11 May 2011, All-Brite entered into a creditors’ voluntary winding-up and a liquidator (liquidator) was appointed. The extent to which Mr Beezley had any involvement with All-Brite after 11 May 2011 and in particular after his 65th birthday on 23 May 2011 was a crucial matter in dispute. I shall say more about that shortly. On 31 May 2011, Mr Beezley applied for a pension at the special rate.The Tribunal’s decision The Tribunal noted that Mr Beezley had turned 65 before making an application for a pension at the special rate. Accordingly, it was s 24(2A) of the VE Act (and not s 24(1)) that fell to be considered. The Tribunal observed that s 24(2A)(d) of the VE Act required that the veteran be, “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.” The Tribunal discussed the phrase “remunerative work” and the phrase “last paid work” in the context of the definition of the former phrase found in s 5Q of the VE Act. The Tribunal then observed that s 24(2A)(f) of the VE Act requires that, “the veteran was undertaking his or her last paid work after the veteran had turned 65.” At [26], the Tribunal identified that Mr Beezley had advanced two reasons why he satisfied s 24(2A)(f), being:(a)the company paid him salary for one month in advance from the first week of May; and(b) he worked with the liquidator assisting in the winding up of the company.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 31 May 2011, Mr Beezley applied for a pension at the special rate.The Tribunal’s decision The Tribunal noted that Mr Beezley had turned 65 before making an application for a pension at the special rate. Accordingly, it was s 24(2A) of the VE Act (and not s 24(1)) that fell to be considered. The Tribunal observed that s 24(2A)(d) of the VE Act required that the veteran be, “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.” The Tribunal discussed the phrase “remunerative work” and the phrase “last paid work” in the context of the definition of the former phrase found in s 5Q of the VE Act. The Tribunal then observed that s 24(2A)(f) of the VE Act requires that, “the veteran was undertaking his or her last paid work after the veteran had turned 65.” At [26], the Tribunal identified that Mr Beezley had advanced two reasons why he satisfied s 24(2A)(f), being:(a)the company paid him salary for one month in advance from the first week of May; and(b) he worked with the liquidator assisting in the winding up of the company. The Tribunal was satisfied that Mr Beezley had received his monthly salary in advance in the first week of May 2011 (at [27]). The Tribunal then went on to consider when it was that Mr Beezley ceased to undertake work for All-Brite. Though that question was fundamental to the determination of the matter, the Tribunal’s reasons are somewhat opaque. There is inconsistency in the reasoning. Also, in some places words are italicised apparently as indicating that they are used in the VE Act (e.g., at [36]), and other places to indicate emphasis (e.g., at [14], [16]). That made it difficult to determine whether a particular italicisation was intended to indicate that the word or phrase in consideration was a statutory word or phrase, or whether instead the word or phrase was merely being emphasised. The difficulty extends to the italicisation of “work” at [34] and [38] of the decision. A close analysis of the decision is required to discern the Tribunal’s findings. Reading the decision as a whole and in context, I consider that the Tribunal made the following findings:(a)with the permission of an employee of the liquidator, Mr Beezley worked in his capacity as an electroplater to complete outstanding orders. That work was completed no later than 19 May 2011 (at [28]);(b)the Tribunal regarded the salary paid in advance in the first week of May 2011 as compensation or reward for work that it was anticipated (at a time prior to All-Brite being placed into liquidation) would be undertaken by Mr Beezley for All-Brite (at [27]);(c)however, Mr Beezley did not perform any work for All-Brite after 19 May 2011 and had no entitlement to remuneration after that date. Monies paid to him in advance were not recompense or reward for any work actually done between 19 May 2011 and the first week of June 2011 (at [30]);

Ratio Decidendi

Legal Principle Established

The first is that the Tribunal took the view that assistance given to a liquidator pursuant to an obligation under s 530A(2)(c) or s 530A(3) of the Corporations Act 2001 (Cth) (Corporations Act), could not be “remunerative work”. Section 530A(2)(c) of the Corporations Act provides:Where a company is being wound up … an officer of the company must … attend such meetings of the company’s creditors or members as the liquidator or provisional liquidator reasonably requires. Section 530A(3) of the Corporations Act provides:An officer of a company that is being wound up must do whatever the liquidator reasonably requires the officer to do to help in the winding up. I accept that whether or not a particular activity is encompassed with the phrase “remunerative work” in s 24(2A)(d), and in particular, whether an activity required by a liquidator under s 530A of the Corporations Act is capable of being “work” within the second limb of the composite phrase “remunerative work”, is a question of law. If the Tribunal erred in determining that question, the error would be an error of law reviewable pursuant to the jurisdiction conferred on this Court by s 44 of the AAT Act. However, as the Commission correctly contended, the Tribunal did not make a finding that assistance provided to a liquidator could not be an activity encompassed by the phrase “remunerative work”. Mr Beezley did not identify where in the Tribunal’s reasons he contended that such a finding was made. As I have already observed, the Tribunal’s reasons are difficult to follow. Nevertheless, what is apparent on a close reading of the reasons as a whole and at [32]-[34] in particular, is that “on the evidence” (rather than as a matter of statutory construction), the Tribunal was not satisfied that in assisting the liquidator, Mr Beezley was employed or otherwise engaged by All-Brite and that, in that sense, assisting the liquidator was not “work” in which Mr Beezley was engaged. Further, as the Tribunal found at [34], even if assisting the liquidator was part of Mr Beezley’s work with All-Brite, it was not work for which he had an entitlement to be remunerated and was not work for which he was in fact remunerated. In other words, the Tribunal’s conclusion that assisting the liquidator was not “work” was a factual conclusion based on the Tribunal’s acceptance of evidence before it that at the time that Mr Beezley was assisting the liquidator he was not employed by All-Brite at all. I am not satisfied that the Tribunal either posed or answered the question of law that Mr Beezley contended was erroneously determined. It follows that Mr Beezley’s contention that the Tribunal erred in law in this respect, is without merit. The second aspect of Mr Beezley’s first ground is that the Tribunal misconstrued “remunerative work” because the Tribunal wrongly determined that Mr Beezley had no entitlement to be and was not remunerated for undertaking his statutory obligations under s 530A of the Corporations Act. That is the finding made at [34] of the Tribunal’s reasons.