Birtles, S.G. v Repatriation Commission
[1991] FCA 822
•18 DECEMBER 1991
Re: SAMUEL GEORGE BIRTLES
And: REPATRIATION COMMISSION
No. G013 of 1991
FED No. 822
Veterans' Entitlements
(1991) 105 ALR 359
(1991) 14 AAR 497
(1991) 33 FCR 290
(1991) 24 ALD 545
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Hill J.(1)
CATCHWORDS
Veterans' Entitlements - Administrative Law - appeal from Administrative Appeals Tribunal - application for increased pension pursuant to s.24 Veterans' Entitlement Act 1986 - whether veteran is prevented by reason of incapacity from war-caused injury or disease alone from "continuing to undertake remunerative work that the veteran was undertaking" - applicant left last employment upon reaching statutory retiring age - whether relevant remunerative work "last" remunerative work - consideration of decisions in Banovich and Starcevich - relevance of retirement of applicant to country area to qualification under s.24.
Banovich v Repatriation Commission (1986) 69 ALR 395
Repatriation Commission v Maley (Full Court of the Federal Court, unreported, 15 October 1991)
Starcevich v Repatriation Commission (1987) 18 FCR 221
Veterans' Entitlements Act 1986: ss.23, 24
Repatriation Act 1920: schedule 2.
HEARING
SYDNEY
#DATE 18:12:1991
Counsel and Solicitors for Applicant: Mr M.B. Smith instructed by
Legal Aid Commission of New South Wales
Counsel and Solicitors for Respondent: Ms R.M. Henderson instructed by
the Australian Government Solicitor
ORDER
The matter be remitted to the Tribunal for redetermination in accordance with law with or without the reception of new evidence as the Tribunal shall determine.
The respondent pay the applicant's costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
The applicant, Mr Samuel George Birtles ("Mr Birtles"), appeals against the decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal constituted by a Deputy President, affirming a decision of the Repatriation Commission refusing to Mr Birtles an increase in the rate of his Veterans' Disability Pension.
Mr Birtles served in the Royal Australian Air Force during World War II and was shot down over Italy on 23 August 1944, taken prisoner and transferred to Germany. He had been shot in the left elbow and left leg and spent four and a half months in hospital. He was forced to march 160 miles through Germany during the northern winter of 1945 along with a group of other prisoners of war and was ultimately liberated in May 1945 returning to Australia in September of that year when he was discharged.
It was accepted by the Commission that Mr Birtles had the following war service disabilities:
"* gun shot wound left elbow * myopia right and left
* diabetes mellitus
* below knee amputation right leg * below knee amputation left leg."
Mr Birtles is an insulin-dependent diabetic. His right leg was amputated below the knee in October 1981 and his left leg amputated below the knee in January 1984.
For a short time before his war service, Mr Birtles had worked with the Alliance Insurance Company as a clerk. Upon his discharge he rejoined that company for one year and then worked for another insurance company for two further years. He joined the State Electricity Commission of Victoria in 1948 and worked with the Commission for the next 32 years. In that time he had wide experience in investigations for coronial inquiries, motor vehicle and workers' compensation claims. For his last five years at the Commission he was Managing Law Clerk in charge of workers' compensation claims. He retired early from the Commission when in February 1981 he was appointed as a lay member of the Workers' Compensation Board of Victoria. He remained in that capacity until the Board was replaced by the Accident Compensation Tribunal in 1985 and served on that Tribunal as a member until 31 May 1987, when he retired when reaching the statutory retiring age of 65 years. He was paid, both on his retirement from the Commission and later from the Accident Compensation Tribunal, superannuation fund pension entitlements.
The Tribunal found that in the months leading up to his retirement Mr Birtles had approached a number of solicitors in the workers' compensation jurisdiction inquiring generally about the prospects of employment subsequent to his retirement from the Accident Compensation Tribunal. Although the Tribunal found that Mr Birtles had had favourable responses to these approaches, they did not advance to the point of discussing specific terms of any prospective employment. Mr Birtles realised that with his incapacity he would be unable to undertake such employment. In particular he could not carry out worksite inspections, climb more than a few stairs, nor was he able to use public transport without real difficulty and he would have had difficulty in attending Tribunal and court hearings in the workers' compensation area.
In June 1987, that is to say effectively upon his retirement from the Accident Compensation Tribunal, Mr Birtles and his wife retired to Mollymook on the south coast of New South Wales. They had purchased a house there prior to Mr Birtles retirement from the Accident Compensation Tribunal. In its reason the Tribunal noted that Mr Birtles had said that his retirement was not planned:
"... in that they only decided to move to Mollymook after he realised he would not be able to continue working beyond his retirement from the ACT. He would have stayed in Melbourne had not his disabilities prevented him from continuing working."
On 28 October 1987 Mr Birtles applied for an increase in his disability pension. He was at that time paid, and still is being paid, at 100% of the general rate plus an allowance for the amputation of his legs. Increased pensions may be granted pursuant to ss.23 or 24 of the Veterans' Entitlement Act 1986 ("the Act"); the former section dealing with what is known as "intermediate rate" and the latter section dealing with what are referred to as "the special (totally and permanently incapacitated) rates". This application was refused by a delegate of the Commission on 30 May 1988 on the basis that as at the date of the application Mr Birtles did not qualify under either section because he was not prevented from continuing to undertake remunerative work by reason of his war-caused incapacity alone. The delegate said:
"In his case, it was a combination of factors which, other than his war-caused conditions, included his age, his having been out of the work force for some months (having reached a statutory retirement age now universal throughout Australia), and the general state of the labour market, bearing in mind his employment background and place of residence."
Mr Birtles then appealed to the Veterans' Review Board which affirmed the decision of the delegate, albeit taking a different view of the matter. In the view of the Veterans' Review Board, Mr Birtles was quite capable of working for more than 20 hours a week and so qualified under neither ss.23 nor 24 of the Act. In the alternative, the Board expressed the view that there was another reason why, if Mr Birtles was incapable of working for more than eight hours a week, that he could not engage in remunerative work, that being that he had retired to a beachside resort where his obvious experience could not be made use of. It was from this decision that Mr Birtles applied to the Administrative Appeals Tribunal for review.
Before setting out the reasons for decision of the Tribunal, it is appropriate to set out the terms of s.24 of the Act so far as they are relevant to the present appeal.
"24. (1) This section applies to a veteran, other than a veteran to whom section 25 applies, if: ...
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity.
(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and ...".
For present purposes s.23 of the Act is in similar terms save as to the period referred to in paragraph (b).
As formulated by the Administrative Appeals Tribunal, the question for decision was whether, as at the date of his application, Mr Birtles satisfied the criterion for special rate pension in s.24 of the Act. In so doing the Tribunal put to one side the issue whether Mr Birtles was incapable of undertaking remunerative work for periods aggregating more than eight hours per week, as raised by s.24(1)(b), as unnecessary to decide having regard to the Tribunal's conclusions.
The Tribunal pointed out that Mr Birtles had not left the Compensation Tribunal because of any war-caused disability. Rather, he did so because of his having reached the statutory retiring age. The Tribunal noted a testimonial of Judge Harris, of the Victorian County Court, dated 4 May 1989 in which his Honour had said:
"Indeed, but for statutory age limits, I believe he would still be insisting on his right to work, against all reasonable medical assessments of his condition but in the presence of real physical and moral courage."
The Tribunal's reasons for finding that Mr Birtles was not entitled to the additional pension are to be found in the following passage:
"It is for reasons other than his accepted disabilities that caused the applicant to retire from work. To qualify for Special Rate pension it must be his war-caused disabilities alone which prevent him from working, and not something else as well.
On the evidence Mr Birtles cannot satisfy the requirements of s.24(1)(c). That difficulty for Mr Birtles is obvious from the terms of s.24(2)(a) as it is clear from the evidence that he retired from the ACT where he was working full time, when he reached the statutory retiring age. I accept without reservation Mr Birtles had difficulties from time to time in fulfilling his duties notwithstanding he did not take any sick leave after 10 November 1981, but the factor which prevented him from continuing as a member of the ACT was not his service related disabilities but his attainment of the statutory retiring age. It is therefore not open to this Tribunal to make a finding that Mr Birtles is, by reason of incapacity from war-caused injury or war-caused disease or both alone, prevented from continuing to undertake the remunerative work he was undertaking."
This was, in the Tribunal's view, consistent with the legislative purpose expressed by the Honourable Clyde Holding representing the Minister for Veterans' Affairs when introducing the legislation into Parliament in his Second Reading Speech as follows:
"The TPI Rate pension was designed for severely disabled veterans of a relatively young age who could never go back to work and could never hope to support themselves or their families or put away money for their old age. It was never intended that the TPI Rate would become payable to a veteran who, having enjoyed a full working life after war service, then retired from work, possibly with whatever superannuation and other retirement benefits are available to the Australian work force."
(See Weekly Hansard (Cth) House of Representatives, No. 15, 1985 at 2180).
It is obvious from the passage cited that the Tribunal regarded the relevant "remunerative work" to which s.24(1)(c) refers as being Mr Birtles service with the Tribunal which had come to an end because of Mr Birtles having reached the statutory retirement age. Were there any doubt about the matter, it is dispelled by a reference made in the reasons to the decision of the Tribunal in Re Gough (unreported 9 July 1986), a case regarded by the Deputy President as similar, where the Tribunal expressly stated the test to depend upon the circumstances in whether a claimant ceased "his or her last remunerative work" (at 12). This, however, it was submitted for Mr Birtles, was an error of law having regard to what was said by two full courts of this court in recent cases. It is to these cases that I now turn.
The first case, to consider the interpretation of the relevant words in s.24, was Banovich v Repatriation Commission (1986) 69 ALR 395. That case was heard by a full court comprising Fisher, Beaumont and Wilcox JJ.
Mr Banovich, after his discharge from the army, was originally self-employed. During the 1950s he worked as a driver. From 1952-1960 he had been employed by the Metropolitan Sewerage and Drainage Board as a "clerical labourer" and from 1964 until September 1975 was employed as a fitter's assistant and thereafter as a depot man with the Commissioner for Railways. Mr Banovich retired from his employment with the State Rail Authority as a result of a medical condition arising, as it was found, out of an accident having nothing to do with his military service. Following his retirement from the Railways, Mr Banovich was unemployed for some eight years prior to his application being made by which time he was 73 years of age.
In the course of its judgment, the full court considered the interpretation of para (1)(b)(iii) in Schedule 2 to the Repatriation Act (1920) which for present purposes is identical to s.24(1)(c). Their Honours said (at 402-3):
"We accept that the loss referred to in para (1)(b)(iii) may be caused either by a loss of existing employment or by an inability to obtain new employment. There is no difficulty in regarding either circumstance as preventing the member `continuing to undertake' remunerative work. But it is, in our opinion, erroneous to read the phrase `remunerative work that the member was undertaking' as referring to a particular job with a particular employer. The term `remunerative work' is used in the Schedule in a context which indicates an intention to refer to work generally: see, for example, para (1)(b)(ii), para (2)(b), para (3). Consistently with that use, the phrase `remunerative work which the respondent was undertaking' should be read as a reference to the type of work which the member previously undertook and not to any particular job. It follows that a member's loss of particular employment for a reason unrelated to a war disability would never destroy a member's subsequent entitlement to claim a special rate pension; the question would remain, at the relevant date for determination of a claim, whether the member was prevented by his or her war-related incapacity - and by that incapacity alone - from continuing in that field of remunerative activity."
Two things may perhaps be said of this decision. First, the Schedule under consideration contained the following words:
"In this Schedule, a reference to remunerative work shall be read as including a reference to any remunerative activity."
There is no comparable definition for the purposes of s.24(1)(c). Second, it was argued in Banovich that to adopt a different construction would result in hardship.
On the facts of the case, however, the court was of the view that the Tribunal had not fallen into error. It said (at 404):
"Having regard to the findings of the tribunal, the present applicant faces two hurdles - each of which we regard as insurmountable - in his quest for a special rate pension. The tribunal found that the cause of his retirement from the employ of the State Rail Authority was the injury to his hip occasioned by the fall at work. This injury, which has not been accepted as a war-related incapacity, thereafter would, in any event, have prevented Mr Banovich from continuing to undertake the remunerative work which he had previously undertaken. Consequently, even immediately after his retirement, Mr Banovich did not comply with sub-para (iii). But secondly, by the date of his application for a special rate pension - June 1983 - he would, in any event, have been retired by the Railways. His age, even according to their records, exceeded 65 years. And, although the tribunal rightly accepted that a person was not automatically disentitled to a pension on attaining 65 years, the tribunal found, on the facts of this case and having regard to Mr Banovich's employment history, that Mr Banovich would in any event have been unlikely to continue in remunerative work after the date upon which he would have retired from the Railways."
The second decision, Starcevich v Repatriation Commission (1987) 18 FCR 221 was a majority decision of Fox and Jenkinson JJ., Neaves J. dissenting. In that case, which concerned the present legislation, the applicant had been a farmer prior to service. On return to Australia he worked for some time as a wood machinist but returned to farming in 1956, continuing as a farmer until he was forced to give up farming again as a result of a war-caused illness in 1970-1971. Thereafter he worked for the Postmaster General's Department for approximately three years until the branch at which he worked moved to a new site. Apart from working for one day in a furniture factory, his war-caused injuries made it impossible for him to work thereafter. It was found as a fact that were it not for his war injury the applicant would have still been farming. Nevertheless the Tribunal rejected the application on the basis that the tests in s.24(1)(c) had to be considered in relation to the applicant's last employment and since this had ceased because of a change of circumstances in the Postmaster General's Department it was not his incapacity alone which prevented him from continuing to work with that Department.
Fox J., in holding for the applicant, said (at 224):
"Where a veteran has undertaken different types of work, the meaning of `remunerative work' in par (c) is ambiguous. The use of the phrase `prevented from continuing to undertake' in relation to `remunerative work' does suggest the last remunerative work undertaken, but this is not necessarily so. The use of the indefinite `remunerative work' simpliciter, rather than `the remunerative work', tends against this construction, and `continuing' can also mean resuming after a suspension or interruption. Furthermore, both paragraphs of subs(2) look to a wider concept of `remunerative work': this is especially so of par (b).
It was submitted for the applicant that the reference to `remunerative work' in s 24(1)(c) includes the main or chosen, rather than the last, remunerative work undertaken by a veteran, and that in the case of the applicant it was or included farming work. It was submitted that if remunerative work to be considered under the paragraph is farming, the applicant comes within the terms of the paragraph."
His Honour (at 224-5) then set out extracts from the Acting Minister's Second Reading Speech introducing the Repatriation Legislation Amendment Bill 1985 in the following terms:
"Since 1920, there has been a special rate of disability pension payable in circumstances where, because of total and permanent incapacity resulting from war service, a veteran has been unable to resume or to continue in civil employment. The special or TPI rate pension was designed for severely disabled veterans of a relatively young age who could never go back to work and could never hope to support themselves or their families or put away money for their old age. It was never intended that the TPI rate would become payable to a veteran who, having enjoyed a full working life after war service, then retires from work possibly with whatever superannuation or other retirement benefits are available to the Australian work force."
Later in the speech, the Acting Minister said:
"... the TPI rate pension can become payable only when a veteran is totally and permanently disabled by accepted disabilities and is thereby precluded from continuing to engage in remunerative work. If a person has had the usual span of a working life or has retired voluntarily or has left employment for reasons other than accepted disabilities, a TPI pension is not payable. It would be in only very rare cases that any veteran beyond the normal retirement age could be eligible for this pension."
However, his Honour regarded the Second Reading Speech as of no assistance in resolving the ambiguity in the words "remunerative work". His Honour said (at 225):
"It is clear that the intention was that the TPI pension should only be payable to veterans forced (sooner or later) into retirement by their war injuries, but the Speech is silent as to how premature retirement is to be assessed in a case such as the present, where the veteran has been forced out of his preferred occupation into other remunerative work, and then into retirement from that work, by his war injuries."
His Honour then referred to Banovich, and of that case said (at 225):
"It was there held that the `work' need not be the last employment, or work generally, but related to a `type' of work previously undertaken. It was also said that `the loss referred to in subs(1)(b)(iii) may be caused either by a loss of existing employment or by an inability to obtain new employment'."
In his Honour's view it was necessary to give the legislation a "reasonably liberal interpretation" having regard to the great public importance in providing adequately for incapacitated ex-servicemen. His Honour then continued (at 225-6):
"It seems to me that the intention of s 24(1)(c) is that the applicant must have suffered substantial loss of remuneration consequent alone upon the incapacity referred to in s 24(1)(a) and (b). The loss must be real, in the sense that the applicant cannot rely upon any remunerative work that he has undertaken in the past, but it would be unnecessarily restrictive to assess the loss by reference only to the last remunerative work undertaken before the applicant's inability to work became complete. In my opinion, a veteran's entitlement to a pension under s 24 may be based on his being prevented from continuing to undertake substantial remunerative work that he has undertaken in the past, even if that work was followed by work of a different type before the veteran ceased work altogether. In such circumstances, the passage of time from the cessation of the work upon which reliance is placed to the veteran's complete retirement may mean that the other requirement of s 24(1)(c), namely that the veteran's war-caused injury or disease alone prevents him from undertaking the remunerative work upon which his claim is based, is not satisfied, but this is a different matter, and one which does not arise here."
Jenkinson J. (at 226-7) said:
"A critical question is whether s 24(1)(c) of the Veterans' Entitlements Act 1986 (Cth) comprehends any `type of work' (other than a type of work which might, perhaps, be put out of consideration on the ground that it had been undertaken for a only a very short period) which the veteran had at any time undertaken and which otherwise satisfies the criteria ordained by that paragraph, or comprehends only that particular `type of work' (to adopt the term used by the Full Court in Banovich v Repatriation Commission (1986) 6 AAR 113 at 119; 69 ALR 395 at 402) which, of those types of work otherwise satisfying those criteria, was the last to be undertaken before the veteran made application for increase in the rate of pension to that prescribed by s 24. The imperfect past tense of the adjective-clause, `that the veteran was undertaking', suggests that a particular time or period of time will have been indicated in a preceding clause as the time or the period when the undertaking of work postulated by that clause occurred. No such an indication is clearly to be discerned. It might perhaps be thought that the time indicated is the time which immediately preceded the time when the prevention, which is postulated for the purposes of s 24(1)(c) as in effect at the time when the application of the section to the veteran is being determined, supervened. But that would not be consonant with the opinion of the Full Court in Banovich v Repatriation Commission
(1986) 6 AAR 113 at 120; 69 ALR 395 at 402 that `a member's loss of particular employment for a reason unrelated to a war disability would never destroy a member's subsequent entitlement to claim a special rate pension; the question would remain, at the relevant date for determination of a claim, whether the member was prevented by his or her war-related incapacity - and by that incapacity alone - from continuing in that field of remunerative activity'. That opinion seems to contemplate that the provision now contained in s 24(1)(c) may be satisfied notwithstanding the intermission of a substantial period between the last time when the relevant type of work was undertaken and the time when incapacity from war-caused injury or disease prevented the veteran from continuing to undertake that type of work. However, the terms of s 24 in its statutory context do not, in my opinion, suggest any other particular time or period of time. Nor do I find anything in the language of the section to justify confinement of the application of s 24(1)(c) to that type of remunerative work which was the last of several types of remunerative work to satisfy the criteria literally expressed in that paragraph. Counsel for the respondent sought to rely on parliamentary observations, which Fox J. has set out, to indicate a legislative intention to confine the application of the paragraph in that way, but I agree with his Honour that those observations do not assist the respondent. My conclusion is that the farming work that the veteran was undertaking for some years before 1971 is within the contemplation of the expression `remunerative work that the veteran was undertaking' in s24(1)(c), notwithstanding that after 1971 and before he made the application for an increase in the rate of his pension he was undertaking remunerative work, different in kind from farming, which he was when he applied for the increase and is still prevented from continuing to undertake."
Neaves J., who dissented, was of the opinion that the sub-section was limited to a state of affairs which was continuing and which was interrupted by incapacity attributable to war-caused injury or disease. In his Honour's view the expression was not apt to describe a state of affairs which existed at some time in the past but which the veteran was prevented from taking up afresh after having an intervening period undertaking other remunerative work. According to his Honour the applicable remunerative work was limited to that which the veteran was most recently undertaking. In so holding, his Honour distinguished Banovich as involving a different factual situation.
It may be noted that in the course of his judgment, Fox J. expressed the view that the applicant's submissions were to be preferred. Those submissions, as reported, were that the reference to "remunerative work" included the "main or chosen" rather than the "last" remunerative work undertaken. On the facts of the particular case this was or included farming work. Counsel for the Commission in the present appeal, seized upon his Honour's acceptance of these submissions. So it was said that attention should be directed at what was the main or chosen remunerative work which the applicant in the present case had undertaken. This, it was said, was work with a statutory tribunal involved in workers' compensation matters. It was submitted that on the evidence before the Tribunal, Mr Birtles had chosen to be an adjudicator employed by the government. It was suggested that the evidence had been that Mr Birtles had wanted the job for a period of some 30 years. However, a perusal of the evidence indicated that this was not what Mr Birtles had said at all and this was ultimately accepted.
Counsel for the Commission submitted that I should adopt a narrow view as to the "type of remunerative work" to which the section referred. This was work with the government as an adjudicator of workers' compensation claims. With respect, it seems to me that that is too narrow an approach. An example may be imagined of a person who was a solicitor employed by the government in a particular area of concern to a government department. There is no particular reason to limit the area of his remunerative work to work with the government if the solicitor had in the past worked as a solicitor in private enterprise. Indeed prior work in private practice may not even be necessary. Nor would it be sensible to restrict the field of endeavour to work as a solicitor of a particular kind. Although a solicitor may work in a government department in a particular area of expertise eg conveyancing, there is no reason why the remunerative work should be limited to work in conveyancing. In a particular case it may well be appropriate to refer to work as a solicitor.
In any event, it is clear from what fell from their Honours in Starcevich that no such limitation was to be applied. What is involved in each case is ultimately a question of fact, namely, has the veteran by reason of his war incapacity been prevented from "continuing" a type of remunerative work which he previously undertook (not being work undertaken only for a short period)? The word "continuing" in this context is used to encompass the case where a veteran may be unable to find a similar kind of work by reason of that incapacity and as a result suffers the loss to which the paragraph refers. If the answer to the question be yes and the other sub-paragraphs apply, then s.24 is applicable to that veteran.
By reference to the present factual circumstances, it is obvious that for some 32 years the applicant had worked with an employer, the State Electricity Commission, with particular experience in workers' compensation claims. At least five years of that employment involved employment in charge of workers' compensation claims. The kind of work cannot be narrowly characterised as work solely with an electricity commission, nor with a commission in Victoria, nor indeed, in my view, solely with the government. It must include the possibility of working with private enterprise in the same field of endeavour.
What the appropriate kind of work is will be a matter that will vary on the facts of each particular case. In the present circumstances, it may properly be characterised as work in the area of dealing with workers' compensation claims. As presently advised, I see no reason to limit it to work with an insurance company relating to workers' compensation. It could extend to working for law firms which themselves advised insurance companies on workers' compensation claims. However, the decision as to what the relevant kind of work is, being a decision of fact, is ultimately one for the Tribunal.
I see no reason why such a view of the matter offends the policy of the legislation. Indeed, I think it promotes it. Let it be assumed that a veteran with the same disabilities as Mr Birtles and his same work experience, left his employment at say age 40 and worked with a Tribunal for a fixed term of 5 years. His employment with that Tribunal would have ceased by virtue of the expiration of his statutory term of office. However, if his disabilities were such that he thereafter was unable to obtain employment with an insurance company solely because of those disabilities, he would be disentitled to the increased pension. On these facts, age, on its own, would be no handicap to him. There seems to be no reason to suggest that, assuming the other provisions of s.24 were satisfied, he should be disentitled from receiving the additional pension. This would be particularly so in a case such as the present, where the work with the Tribunal was carried out at considerable personal sacrifice.
It is obvious that in having regard only to Mr Birtles' service with the Workers' Compensation Board and its successor Tribunal as the relevant "remunerative work", the Tribunal fell into error and, at least subject to discretionary matters, the matter should be remitted to the Tribunal for reconsideration.
It was submitted, by counsel for the Commission, that it would be futile to refer the matter back to the Tribunal because the issue for decision had to be considered at the time of Mr Birtles' application and at that time he had retired to Mollymook and therefore put himself out of contention for any remunerative work of the kind which might otherwise be available.
In answer to this submission, counsel for the applicant referred me to the decision of the full court of this court in Repatriation Commission v Maley (unreported, full court, 15 October 1991). That was a decision of a full court of this court comprising Beaumont, Burchett and Lee JJ. In that case an argument was made on behalf of the Commission that given his war-caused injuries at the time of application, the applicant suffered from a lack of motivation to work and it was this lack of motivation that had caused him to retire prematurely. Of this argument the court said (at 19):
"But this circumstance could hardly assist the Commission here. For the purposes of s.24(1) it is necessary to inquire, inter alia, into the hypothetical position which would have obtained if Mr Maley had not suffered his war injuries and had retired at the time when, in that case, he would have retired. He claims he would have worked to age 65 and would then have continued to do consulting work for his former employer and, as well, or alternatively, for Illawarra Engineering until Mr. Beattie's death. It is no answer to his claim to point to the difficulties he has now encountered in keeping or obtaining employment because of his war injuries...".
In the present case, the Tribunal made no adequate findings of fact to enable this matter to be determined. In its reasons it suggested that Mr Birtles would present an attractive proposition as an employee or in a consultancy role to a legal firm practising in the field of workers' compensation law. It referred to his approaches to solicitors to inquire about the prospect of post-retirement employment, and the realisation formed by Mr Birtles of his inability to undertake such employment because of his restricted mobility. Reference was also made by the Tribunal to medical evidence which was in conflict as to whether Mr Birtles was restricted to less than full time work because of his physical disabilities. The Tribunal did not seek to resolve this conflict having regard to the view it took as to whether it was open to it to find that Mr Birtles was by reason of incapacity or from his incapacity alone prevented from continuing to undertake remunerative work.
If, as a matter of fact, by virtue of his war-caused incapacities and those alone, he was unable to work, although otherwise willing and able so to do, the fact that he retired to Mollymook (a factor itself related to the reality of his situation and not to the hypothesis required to be constructed under the sub-section) would be no disqualification to his qualifying under s.24(1)(c).
In these circumstances the matter must be remitted to the Tribunal for redetermination in accordance with law with or without the reception of new evidence as the Tribunal shall determine.
The respondent Commission must pay the applicant's costs of the appeal.
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