Clayton and Repatriation Commission (Veterans' entitlements) - [2017] AATA 1546

Clayton and Repatriation Commission (Veterans' entitlements) [2017] AATA 1546 (4 September 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/2630
Re:Michael Clayton
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President K Bean
Date:4 September 2017
Date of written
reasons:21 September 2017
Place:Adelaide

The decision under review is affirmed.
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Deputy President K Bean
CATCHWORDS
VETERANS’ ENTITLEMENTS – Whether veteran aged over 65 entitled to pension at special rate – Preliminary issue – Whether veteran had been working on his own account for a continuous period of 10 years when veteran stopped undertaking his last paid work – Decision under review affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986, s 24(2A)
Administrative Appeals Tribunal Act 1975, s 42B
Veterans’ Affairs Legislation Amendment (Budget Measures) Act 2017, Sch 2 Item 3
CASES
Ralph v Repatriation Commission [2016] FCAFC 89
REASONS FOR DECISION
Deputy President K Bean
21 September 2017

The veteran in this matter, Mr Clayton, is now 70 years old. When he was 21, he was conscripted into the Australian Army and subsequently undertook operational service in Vietnam, before being discharged in 1970. Unfortunately, as a result of his operational service he has sustained a number of medical conditions, including posttraumatic stress disorder, alcohol dependence and lumbar spondylosis.
Although he turned 65 in 2012, Mr Clayton was still working at that time. In the event, he ceased working about two years later, and on 13 August 2014, he lodged an application with the Repatriation Commission (the respondent) seeking an increase in his disability pension, which was then being paid at 100% of the general rate. That application was denied by the original delegate and the delegate’s decision was subsequently affirmed by the Veterans’ Review Board on 17 February 2016.
On 19 May 2016, Mr Clayton applied to this Tribunal for review of the rejection of his application for a higher rate of pension.
Mr Clayton’s application was originally listed for a substantive hearing before the Tribunal on 28 and 29 August this year. However, in response to an application by the respondent for a particular legal issue to be determined as a preliminary point, that listing was ultimately converted into a preliminary hearing on Monday, 28 August 2017. The purpose of that hearing was to determine the respondent’s application that the application for review be dismissed pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (the AAT Act) on the basis that it had no reasonable prospect of success or, alternatively, that the Tribunal address the particular legal issue raised by the respondent as a preliminary issue and, if that led to a conclusion that the applicant could not succeed, that the decision under review be affirmed.
I will proceed to explain and address that preliminary issue before returning to the issue of the proper disposition of Mr Clayton’s substantive application to the Tribunal.
I should also add that I originally delivered my Decision and Reasons orally on 4 September 2017. However, both parties subsequently…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 1546
Decision Date: 4 September 2017

CaseChat Overview and Summary

This matter concerned an appeal by Mr Clayton against a decision of the Repatriation Commission regarding his entitlement to a pension at the special rate. The core of the dispute revolved around whether Mr Clayton, who was over 65, met the requirements of the "10 year rule" under section 24(2A)(g) of the relevant legislation. The Deputy President K Bean was required to determine this preliminary issue.

The legal issue before the court was whether Mr Clayton satisfied the second limb of section 24(2A)(g), which pertains to veterans working on their own account. Specifically, the court had to consider if Mr Clayton's period of working as a hotel owner/manager for at least 10 years, which commenced before he turned 65 and ended after he turned 65, was sufficient to satisfy the rule, notwithstanding his subsequent short-term employment. The court also had to determine the point in time and the capacity in which Mr Clayton last undertook paid work.

The court reasoned that section 24(2A)(g) directs attention to the capacity in which a veteran last undertook paid work. Citing the Full Court of the Federal Court in *Ralph v Repatriation Commission*, the court noted that the criterion is concerned with the capacity of that last paid work. The evidence established that Mr Clayton's last remunerated work was as an employee at Fassina Liquor merchants, concluding on 3 August 2014. The provision then requires, in cases of last employment as an employee, that the veteran had been working for that employer or predecessors for a continuous period of 10 years that began before they turned 65. As Mr Clayton did not satisfy this limb, and his last work was not on his own account, he could not satisfy the 10 year rule.

Having determined that Mr Clayton did not satisfy section 24(2A)(g), the court concluded that he was not entitled to a pension at the special rate. Accordingly, the decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

I will proceed to outline the relevant facts before addressing the parties’ contentions.THE RELEVANT FACTS There is no dispute that Mr Clayton’s work history from June 2000 onwards was as follows:(a)Managing partner and hotel manager at the Bridgeway Hotel: from June 2000 to April 2007;(b)Owner/operator and managing partner of Dundees Hotel: from December 2005 to June 2013;(c)25% shareholder, managing partner and (at times) hotel manager of the Pier Hotel, Glenelg: from February 2009 to 20 September 2013;(d)Delivery work and bottle shop sales work as an employee at Skye Cellars: from 1 November 2013 to 30 November 2013;(e)Sales, cash handling, loading and unloading work as an employee, Woodville Hotel: from 11 December 2013 to 14 April 2014; and(f)Bottle shop sales, customer service, cash handling, loading and unloading work as an employee at Fassina Liquor merchants: from 10 June 2014 to 3 August 2014. It is against this factual background that I must determine whether Mr Clayton met or could meet the requirements of the 10 year rule.CAN MR CLAYTON SATISFY THE 10 YEAR RULE? Mr Miller conceded at the preliminary hearing that Mr Clayton did not satisfy the first limb of s 24(2A)(g), that is, the requirement that if he had been working as an employee of another person, that he had been so working for a period of at least 10 years that began before he turned 65. However, Mr Miller contended that Mr Clayton met the second limb of the provision as he had been working on his own account, as a hotel owner/manager, for a period of at least 10 years, which commenced before he turned 65 and ended after he turned 65. He contended that it was open to the Tribunal to construe the provision such that this was sufficient to satisfy the 10 year rule, notwithstanding that after ceasing work as a hotel owner/manager, Mr Clayton had a series of short-term jobs as an employee before lodging his application for an increase in pension. However, the difficulty with this submission, in my view, is that s 24(2A)(g) clearly directs attention to the point in time at which the veteran last worked, and the capacity in which that work was undertaken. As the Full Court of the Federal Court observed in relation to s 24(2A)(g) in Ralph v Repatriation Commission,[1] “[t]hat criterion is concerned with the capacity in which that last paid work was undertaken”. On any view of the evidence, Mr Clayton last undertook remunerative or paid work on 3 August 2014, his last day of work for Fassina Liquor merchants. [1] Ralph v Repatriation Commission [2016] FCAFC 89, at [33]. Having regard to the veteran’s last remunerated work, the provision then directs attention to either of two potential scenarios, depending on the nature of the veteran’s last work. If at the time the veteran was undertaking their last work they were working as an employee of another person, the provision requires that they had been working for that person “or for that person and any predecessor or predecessors of that person” for a continuous period of 10 years that began before the veteran turned 65. Alternatively, if the veteran’s last work consisted of work on their own account, the provision requires that the veteran had been working in the relevant profession, trade, employment, vocation or calling, for a period of at least 10 years.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

However, given that I have heard full argument on the s 24(2A)(g) issue, I have decided it is more appropriate for me to indicate that I have formally determined the issue as a preliminary matter and having reached the conclusion that Mr Clayton does not satisfy s 24(2A)(g), I have also concluded that he is not entitled to pension at the special rate, and the decision under review should be affirmed. I note Mr Miller raised no objection to that course in the event that I concluded Mr Clayton could not succeed.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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