Chambers, M.R. v Repatriation Commission

[1994] FCA 479

MICHAEL RALPH CHAMBERS v. REPATRIATION COMMISSION
No. NG623 of 1992
FED No. 479/94
Number of pages - 4
Veterans' Affairs

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
WHITLAM J

CATCHWORDS

Veterans' Affairs - total and permanent incapacity - meaning of "vocational, trade and professional skills, qualifications and experience of the veteran" - relevance of physical fitness unconnected with work experience.

Veterans' Entitlements Act 1986, ss 24(1)(b), 28

HEARING

SYDNEY, 10 September 1993
#DATE 15:7:1994

Counsel for the applicant: Mary Burke
instructed by Terry Murphy (Legal Aid Commission)

Counsel for the respondent: R. M. Henderson
instructed by Australian Government Solicitor

JUDGE1

WHITLAM J This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") refusing to grant a pension at the so-called special rate under the Veterans' Entitlements Act 1986 ("the Act"). The background to the appeal may be briefly outlined.

1. The applicant was born on 25 March 1948. After obtaining the Intermediate Certificate issued by the New South Wales Department of Education, he commenced employment on 18 February 1963 with The Sydney County Council ("the SCC") as a clerk. The applicant served in the Army from 17 July 1968 to 16 July 1970, including a period of service in Vietnam. Upon being discharged he resumed employment with the SCC and by 29 January 1982, having been promoted four times, he occupied the position of senior clerk, grade 1.

2. In March 1983 the applicant claimed a pension for disabilities which he described as "skin rash and nerves." On 14 September 1984 the respondent's delegate accepted that incapacity resulting from what were diagnosed as psoriasis and a personality disorder was related to the applicant's service, and he was granted a pension at 10% of the general rate.

3. On 21 April 1989 the applicant applied under the Act for an increase in his pension. On 5 July 1989 the respondents' delegate increased the pension to 70% of the general rate, but determined that the applicant did not meet the requirements for pension at the intermediate or special rate. Two days later, on 7 July 1989, the applicant retired from his employment with the SCC "on the grounds of ill health (nervous disorder)." He has not worked since.

4. The application of 21 April 1989 was in due course determined by the Tribunal, which assessed a pension payable at 70% of the general rate from 21 April 1989 and at 90% of the general rate from 14 September 1990. The applicant claims in this appeal that he should have been granted a pension at the special rate, had the Tribunal correctly construed the relevant provisions of the Act.

5. The qualifying criteria for payment of pension at the special rate are set out in s 24(1) of the Act, which provides (so far as relevant):
   

"24 (1) This section applies to a veteran, ... if:

(a) either:

(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or

(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate;

(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."

1. In Banovich v. Repatriation Commission (1986) 69 ALR 395 the Full Court described the criterion prescribed by the statutory predecessor of s 24(1)(b) as total and permanent incapacity. This was the issue which the Tribunal decided adversely to the applicant.

2. Section 28 of the Act then provides (so far as relevant):
   

"28. In determining, for the purposes of (paragraph 24 (1) (b)), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, ... the Commission shall have regard to the following matters only:

(a) the vocational, trade and professional skills, qualifications and experience of the veteran;

(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and

(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b)."

1. I turn now to the Tribunal's reasons for decision. There was extensive material before the Tribunal relating to the nature of the applicant's incapacity. In particular, it should be noted that the Tribunal had regard (paragraphs 12-17) to the fact that the applicant was suffering from organic brain damage as a result of his war-caused personality disorder with alcoholic dependency.

2. When the Tribunal came to deal specifically with the issue of total and permanent incapacity it referred, having first set out the provisions of s 24(1) of the Act, to the evidence as to the applicant's retirement from the SCC (paragraph 33) and to the contemporaneous psychiatric opinion as to his unfitness for that work (paragraph 34). It next referred to the evidence of Dr Martha Baz, a specialist in occupational medicine (paragraphs 35-37).

3. Dr Baz had prepared a comprehensive and up-to-date report, including a review of several rehabilitation assessments of the applicant. She did not think that he was fit for his previous work, but she did think that he was fit for a variety of alternative occupations. In oral testimony, Dr Baz refined the views expressed in her report in the light of cognitive defects revealed in psychological tests, which the applicant's solicitor had subsequently arranged. (The Tribunal had already referred to this aspect of her evidence in paragraph 27 of its reasons.)

4. The Tribunal then dealt with s 28 of the Act and the evidence as to the applicant's physical fitness, educational qualifications, training and lifestyle (paragraphs 38-43). The evidence of his exercise regime was obviously impressive and accorded, I may say, with the medical opinions of his physical condition. The Tribunal concluded:
   

"44. Taking this evidence into account the Tribunal is not satisfied on the balance of probabilities that the Applicant does not possess a residual ability to engage in some low stress manual employment. No doubt mere labouring would be perceived as below his status and thus exacerbate his personality disorder - cf Re Martin supra but that still leaves a range of tasks which could be undertaken, particularly in an area such as Northern New South Wales and the Gold Coast of Queensland."

1. It is here, counsel for the applicant submits, that the Tribunal fell into error. The Tribunal, it is said, reached this finding through the misconstruction of s 24(1)(b) and s 28 of the Act.

2. It may be accepted, as the applicant somewhat tritely submits, that the introductory words of s 28 mean what they say, namely, regard may be had only to the matters in paras (a), (b) and (c) in determining, for the purposes of s 24(1)(b), whether he is incapable of undertaking remunerative work. Nothing the Tribunal said suggests it took a different view.

3. Counsel for the applicant submits that s 28(a) does not admit of any consideration of manual labour (whether work related or related to domestic maintenance or personal habits) nor of the applicant's physical fitness. If this submission be correct, this appeal must succeed.

4. The submission is developed this way. The adjectives "vocational, trade and professional" modify each of the following nouns "skills, qualifications and experience." The word "experience" should be read ejusdem generis with the preceding words, thus limiting it to job experience. The applicant's job experience, skills and qualifications do not include manual labour. Nor, it is said, do they include "mere physical aptness."

5. Counsel for the respondent accepts the grammatical analysis as far as it goes and seeks to meet it with dictionary definitions of all six words. She does not accept that a veteran's skills, qualifications and experience have to be looked at in a narrow sense. I agree. The expression "vocational qualification" seems to me perfectly apt to encompass a person's physical fitness. In the days before disability discrimination legislation one frequently saw job advertisements which pronounced: "All applicants must be physically fit." Even now legislative drafters describe "physical fitness" as a "qualification" for certain positions, such as a police constable. See, for example, Australian Federal Police Regulations, reg 5(2).

6. If a veteran's physical fitness may be a "vocational qualification", as I think it may, there is nothing in the context of s 28 which requires that such fitness be acquired as a result of attendance at a school of physical culture or participation in an exercise program at work. The strained and unnatural interpretation, urged on behalf of the applicant, is the linchpin of the attack on the Tribunal's reasons. Once it is rejected, the consequential submissions fall away. The Tribunal plainly had regard to all the applicant's skills, qualifications and experience in considering under s 28(b) the kinds of remunerative work he might reasonably undertake. Otherwise the reference to Re K F Martin and the Repatriation Commission (1987) 13 ALD 83 would make no sense. So too, there is not the slightest doubt from a reading of the Tribunal's reasons or perusal of the evidence to which it refers that, as counsel for the respondent correctly submits, the degree of mental impairment of the applicant lay at the core of the Tribunal's consideration of this case. The requirements of s 28(c) are properly reflected in the Tribunal's finding about low stress manual work.

7. Finally, counsel for the applicant referred to the weight of the evidence concerning the applicant's impairments. In what was described as a catch-all submission, it was contended that the Tribunal's decision was manifestly unreasonable within the meaning of the principles expounded in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation (1948) 1 KB 223 at 229. I need only say that, in my view, such a proposition is simply unarguable.

8. The appeal is dismissed with costs.