Carter v Repatriation Commission

Case [2001] FCA 992

FEDERAL COURT OF AUSTRALIA

Carter v Repatriation Commission [2001] FCA 992

CATCHWORDS – Veterans’ affairs – application for special rate of pension – meaning of “last paid work” in Veterans’ Entitlements Act 1986 (Cth) par 24(2A)(d) – veteran did not qualify for special rate as at time when he stopped undertaking his last paid work he had not been working on his own account in his profession for a continuous period of at least ten years, as required by par 24(2A)(g)

Veterans’ Entitlements Act 1986 (Cth) ss 5Q, 24

Banovich v Repatriation Commission (1986) 69 ALR 395 considered

EDWARD GORDON CARTER v REPATRIATION COMMISSION
N 213 of 2001

BRANSON J
SYDNEY
30 JULY 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 213 of 2001

BETWEEN:

EDWARD GORDON CARTER
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

BRANSON J

DATE OF ORDER:

30 JULY 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The decision of the Tribunal be affirmed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 213 of 2001

BETWEEN:

EDWARD GORDON CARTER
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

BRANSON J

DATE:

30 JULY 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

  1. This is an “appeal” from a decision of the Veterans’ Appeals Division of the Administrative Appeals Tribunal (“the Tribunal”) dated 8 February 2001 whereby the Tribunal affirmed a decision of the respondent refusing an application for an increase in pension payable to the applicant pursuant to the Veterans’ Entitlements Act 1986 (Cth) (“the Act”).

  2. The only issue in dispute before the Tribunal was whether Mr Carter was eligible for pension at the intermediate (s 23) or special (s 24) rate.  To be eligible for pension at the intermediate or special rate Mr Carter had to satisfy the requirement, amongst others, that:

    “when [he] stopped undertaking his … last paid work, [he]:

    (i)…

    (ii)if he … was then working on his … own account in any profession … - had been so working in that profession …;

    for a continuous period of at least 10 years that began before the veteran turned 65 …”. 
    (see s 23(3A)(g) and s 24(2A)(g)).

  3. The only ground of appeal pressed by the applicant (“Mr Carter”) is that:

    “The Tribunal erred in law in its interpretation of section 24 of the Act by:

    (a)      Finding that the ‘last paid work’ of the applicant within the terms of subsections 24(2A)(d) and 24(2A)(g) could be constituted by work of a de minimus nature, that is, work of less than 8 hours per week ….”

  4. As the above ground of appeal contains no reference to s 23 of the Act, these reasons for decision similarly make no further reference to that section.

  5. For the reasons given below, I have concluded that Mr Carter’s appeal must fail and the decision of the Tribunal affirmed.

    BACKGROUND FACTS

  6. The Tribunal in its written reasons…

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Carter v Repatriation Commission [2001] FCA 992
Case
[2001] FCA 992
Decision Date

CaseChat Overview and Summary

In the case of Carter v Repatriation Commission, the respondent, Mr. Carter, appealed against the decision of the Tribunal that he was not eligible for a special rate of pension under the Repatriation Act. Mr. Carter argued that he met the criteria set out in the Act, particularly the requirement that he had been engaged in remunerative work for a continuous period of at least ten years before turning 65. The Tribunal found that Mr. Carter had not met this requirement because he had not worked in the accounting profession for a continuous period of ten years before he stopped working for NZI. The court was required to determine whether the Tribunal's decision was correct in law and whether Mr. Carter was eligible for the special rate of pension.

The court examined the statutory provisions of the Act and considered the interpretation of the phrase "remunerative work that the veteran was last undertaking" in section 24(2A). The court held that the term "remunerative work" should be read as referring to work generally, rather than a specific job with a particular employer. The court also noted that the phrase "the remunerative work... that the veteran was last undertaking" should be read as a reference to the type of work that the veteran previously undertook and not to any particular job. The court concluded that Mr. Carter's contract work with NZI was clearly remunerative work and that he had ceased to undertake his last paid work when he stopped working for NZI. However, the court found that Mr. Carter had not been working in the accounting profession for a continuous period of at least ten years before he stopped working for NZI, and therefore he did not meet the eligibility criteria for the special rate of pension.

The court affirmed the decision of the Tribunal and held that Mr. Carter was not eligible for the special rate of pension. The court also noted that the respondent had not filed a notice of cross-appeal or a notice of contention, and therefore it was not necessary to consider further the issue of whether Mr. Carter's work as an Official Prison Visitor could be regarded as his last paid work. The court held that the construction of the phrase "the remunerative work... that the veteran was last undertaking" in section 24(2A)(d) of the Act would have a harsh impact on veterans seeking to receive the special rate of pension, and it doubted that such a construction would reflect the intention of Parliament. However, the court did not consider it appropriate to consider the issue further as it had not heard full argument on the matter.

In conclusion, the court affirmed the decision of the Tribunal and held that Mr. Carter was not eligible for the special rate of pension under the Repatriation Act. The court found that Mr. Carter had not been engaged in remunerative work for a continuous period of at least ten years before he turned 65, and therefore he did not meet the eligibility criteria for the special rate of pension. The court held that the Tribunal's decision was correct in law and that the appeal should be dismissed.

Orders

Orders of the court

1. The decision of the Tribunal be affirmed.

Background

Background to the litigation

For the reasons given below, I have concluded that Mr Carter’s appeal must fail and the decision of the Tribunal affirmed.BACKGROUND FACTS The Tribunal in its written reasons for decision briefly outlined Mr Carter’s war service and noted that “post traumatic stress disorder had been accepted as a war-caused injury on 15 April 1991”. Mr Carter gave evidence before the Tribunal, which the Tribunal accepted, as to his working life after his war service. That evidence is set out in the reasons for decision of the Tribunal and may be summarised as follows. Mr Carter returned from war service to work as a junior clerk in an accountant’s office. He studied at night and after four to five years became a chartered accountant and later a chartered secretary. He worked in these capacities first in Sydney and then in Tamworth. In Tamworth Mr Carter, after an initial period of employment, commenced to practice on his own account building up a run-down accountancy practice which he had bought. In about 1970 Mr Carter went into a commercial business venture with two other men but the business did not prove to be successful. He continued his accountancy practice, admitting two other men as partners, until 1989 when the partnership was dissolved. At the time of the dissolution of the partnership Mr Carter was approximately seventy years of age. Mr Carter did not work for approximately twelve months following the dissolution of the partnership. After that period he was approached by NZI Workers Compensation (NSW) Limited (“NZI”) and he agreed to undertake contract audit work for NZI. Mr Carter undertook contract work for NZI from June 1990 to June 1995. It is apparently not in dispute that this contract work occupied Mr Carter on average for less than eight hours per week. Mr Carter’s record of work undertaken for NZI, however, reveals that there were weeks in which he was occupied undertaking contract work for NZI for periods which aggregated in excess of eight hours per week. Mr Carter also worked for a period as an Official Prison Visitor. It appears from his income tax return for the period 1 July 1994 to 30 June 1995 that he received income from the Department of Corrective Services during that financial year. His evidence was that he resigned as an Official Prison Visitor in September 1999.STATUTORY PROVISIONS Subsection 24(4) of the Act has the effect that, except in circumstances where a veteran’s rate of pension is affected by participation in a vocational rehabilitation program, pension at a rate specified in the subsection is payable to a veteran to whom the section applies. It is not in dispute that Mr Carter will be entitled to pension at the rate specified by subs 24(4) if, and only if, he meets the requirements of subs 24(2A). It is convenient to set out subs 24(2A) in full:“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.”Section 25 of the Act does not apply to Mr Carter.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BRANSON J
There may be some work, or other activities, for which payment is received which on analysis could not be found to be “remunerative work” as that term is defined in s 5Q of the Act (perhaps, for example, because the payment received was low and in the nature of an honorarium or because of the level of related costs incurred). However, I do not consider that Mr Carter’s activities as a contract auditor for NZI were of that character. His hourly rate of remuneration and the total remuneration received by him from his contract auditing activities in the 1991 financial year seem to me bring his activities clearly within the ordinary meaning of “remunerative activities”. I conclude that Mr Carter stopped undertaking his “last paid work” within the meaning of subs 24(2A) of the Act when he ceased undertaking contract work with NZI.CONCLUSION When Mr Carter, in June 1995, stopped undertaking his “last paid work”, namely his contract work with NZI, he had not then been working on his own account in the accounting profession for a continuous period of at least ten years. Mr Carter had, as the Tribunal found, not worked at all in the period of approximately twelve months which followed the dissolution of his partnership in 1989. This break in Mr Carter’s working life broke the continuity of his work in the accounting profession with the result that when he ceased to undertake contract work with NZI he had only been working in the accounting profession for a continuous period of five years. This period did not begin before he turned sixty-five years of age. The Tribunal was thus right to conclude that Mr Carter is not eligible for pension at the special rate for which s 24 of the Act provides as he does not satisfy the criterion of eligibility contained in par 24(2A)(g) of the Act. The decision of the Tribunal will be affirmed.

Ratio Decidendi

Legal Principle Established

Established by: BRANSON J

The written submissions of the respondent asserted that “[I]t would arguably have been open to the Tribunal to regard the applicant’s work as a prison visitor as the last paid work which he performed.” Had the Tribunal treated Mr Carter’s work as an Official Prison Visitor as his last paid work, it would have been obliged to conclude that he did not meet the requirements of pars 23(3A)(g) and 24(2A)(g) as he did not undertake work of this kind for a continuous period of ten years. However, as the respondent did not file a notice of cross-appeal or a notice of contention (see O 53 r 13 of the Federal Court Rules) it is not necessary for this issue to be considered further.CONSIDERATION In Banovich v Repatriation Commission (“Banovich”) (1986) 69 ALR 395, the Full Court of this Court gave consideration to the meaning of the phrase “remunerative work that the member was undertaking” in a predecessor provision of s 24 of the Act (ie par [1](b)(iii) of Sch 2 of the Repatriation Act 1920 (Cth)). At 402 the Court said:“… 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 …. 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.” Although it did not prove to be vital to the Tribunal’s decision in this case, the Tribunal accepted the Applicant’s submission that the “… work the Applicant did as a professional accountant is clearly the same nature as the audit work.” It is not, in my view, self evidently clear that the approach of the Full Court in Banovich would allow full-time work as a partner in an accounting practice to be characterised as work of the same type as limited and irregular audit work undertaken on a contract basis. Paragraph 24(2A)(d) of the Act might prove to have a harsh impact on veterans seeking to receive the special rate of pension if the work which Mr Carter undertook as a partner in his accounting practice and the limited audit work that he subsequently undertook for NZI were both properly to be understood as examples of “the remunerative work … that [he] was last undertaking before he … made the … application” within the meaning of par 24(2A)(d). A consequence of this construction of the phrase “the remunerative work … that the veteran was last undertaking …” would seem to be that a veteran who was, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from undertaking work as a full-time partner in an accounting practice, but not prevented from undertaking on a contract basis limited and irregular audit work (even though such work was not in fact undertaken), might not be able to establish that he or she was because of that incapacity alone prevented from undertaking his or her last paid work. I am inclined to doubt that such a construction of par 24(2A)(d) would reflect the intention of Parliament. Moreover, it is to be observed that par 24(2A)(g) is not concerned with whether a veteran had at the crucial time been undertaking the same remunerative work for a continuous period of at least ten years, but merely with whether the veteran, if employed, had been working with the same employer or, if self employed, in the same profession, trade etc, for a continuous period of at least ten years. However, as I did not hear full argument on the issue of the proper construction of the phrase “the remunerative work … that the veteran was last undertaking” it is not appropriate for me to consider it further.