Doig, Ronald Havelock v Repatriation Commission

[1996] FCA 1106

CATCHWORDS

DEFENCE AND WAR - Veterans - application for "Special Rate" pension under s 24 of - Veterans' Entitlements Act 1986 - appeal from Administrative Appeals Tribunal ("AAT") - whether AAT erroneously considered whether veteran was prevented from continuing to undertake a particular job that he had been undertaking as distinct from a "type of work" or "field of remunerative activity" that he had been undertaking.

Veterans' Entitlements Act 1986, s 24 (1) (c)

Banovich v Repatriation Commission (1986) 69 ALR 395 (FCA/FC)

RONALD HAVELOCK DOIG v REPATRIATION COMMISSION

No NG 157 of 1996

Lindgren J
Sydney
18 December 1996

IN THE FEDERAL COURT OF AUSTRALIA  )
NEW SOUTH WALES DISTRICT REGISTRY  )        No NG 157 of 1996
GENERAL DIVISION                 )

On appeal from the Administrative Appeals Tribunal
         constituted by Mrs M T Lewis, Senior Member

BETWEEN:

RONALD HAVELOCK DOIG
  Applicant

AND:

REPATRIATION COMMISSION
  Respondent

CORAM:Lindgren J

PLACE:Sydney

DATE:18 December 1996

MINUTE OF ORDERS

THE COURT ORDERS:

1. THAT the application be dismissed.

1. THAT the applicant pay the respondent's costs.

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  )        No NG 157 of 1996
GENERAL DIVISION                 )

On appeal from the Administrative Appeals Tribunal
         constituted by Mrs M T Lewis, Senior Member

BETWEEN:

RONALD HAVELOCK DOIG
  Applicant

AND:

REPATRIATION COMMISSION
  Respondent

CORAM:Lindgren J

PLACE:Sydney

DATE:18 December 1996

REASONS FOR JUDGMENT

INTRODUCTION
The applicant ("Mr Doig") appeals to the Court on a question of law pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 from a decision of the Administrative Appeals Tribunal ("the AAT") given on 30 January 1996. The AAT affirmed a decision of the respondent ("the Commission") dated 2 December 1993 continuing assessment of Mr Doig's pension at 100% of the General Rate. Mr Doig had sought pension at the "Special Rate" provided for in s 24 of the Veterans' Entitlements Act 1986 ("the VE Act").

BACKGROUND
The following description of background matters is based upon the AAT's Reasons for Decision.  Mr Doig served in the Royal Australian Air Force from 31 January 1942 to 20 February 1946
in Canada and Australia.  He has the following conditions which have been accepted as war-caused: "sensori-neural deafness, functional dyspepsia, coronary artery disease, anxiety state, tinea, otitis externa, atherosclerosis, solar skin damage, and fractured left heel resulting in weak ankle" (para 4 of AAT's Reasons for Decision).

Sub-section 24 (1) of the VE Act, as it applied to Mr Doig at the date of lodgment of his claim, was relevantly as follows:

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

(a)either:

(i)the degree of incapacity of the veteran from war-cased 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

...

(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."

Sub-section 120 (4) of the VE Act required that the issue of Mr Doig's entitlement be determined to the AAT's reasonable satisfaction. The Commission conceded that Mr Doig met the requirements of paras 24 (1) (a) and (b). Therefore the only issue presented by Mr Doig's application was that raised by para 24 (1) (c).

FACTS
The following account of facts is also based on the AAT's Reasons for Decision.  Mr Doig was born in 1923.  Before working in the Air Force, he worked in the Postmaster General's Department, as it then was.  While on operational service in Canada, Mr Doig had abdominal surgery, with complications; his state of health caused him to be returned to Australia after 12 months, and he was excluded from further air crew service.  He was then posted to Townsville and later to Cairns where he served in the postal unit of the Air Force for three years. 

Mr Doig was discharged from the Air Force in 1946 and returned to work at the Postmaster General's Department where he was employed until 1964.  He then worked at the Manning Base Hospital as an  admissions and accounts officer.  He worked at that Hospital in that capacity until he attained the age of 65 years in 1988 - a period of some 24 years.

Mr Doig did not experience problems with his left ankle while
working at the Postmaster General's Department or when he began work at the Manning Base Hospital.  He developed heart problems in the late 1960s and early 1970s, experiencing pains in the chest, shortness of breath and inability to walk long distances.  He had a triple by-pass operation in 1982.  After nine weeks he recovered and returned to work.  After about four years, he developed pains in the chest again and tiredness.  In 1993 an angiogram showed that the pain was caused by a blockage in one of the grafts. 

His evidence was that his heart condition made him feel tired and made him want to give up work, but that he continued to work until his 65th birthday in 1988 so that he would be eligible for superannuation.  He said that if he had been financially able to do so, he would have retired earlier, but that if it had not been for his deteriorating health, he would not have retired at age 65 and would have continued working at the Manning Base Hospital until the age of 70 years.  However, he said that his doctor had advised him that it would be better for his health, and in particular for his heart condition, if he ceased work at the age of 65.  His evidence was that he enjoyed his work and was sorry to give it up.  In response to a question as to whether he would have continued to work if his health had permitted him to do so, he replied:

"I would have done, yes.  I love work and I was a person that even during times that I was sick, I would force myself to go to work rather than to stay at home.  I just loved work.  I loved being with the people I worked with." (T 15)

Mr Doig said that he had a general intention up to 12 months before retiring, that is to say, before the deterioration in his health, to seek alternative employment in a private hospital or in a completely different area of employment after retiring at the age of 65 years at Manning Base Hospital.  There are two private hospitals in the area: one in Taree and one in Forster.  Notwithstanding his evidence as to his intention, he had not applied or inquired about any specific jobs and there was no other evidence supporting his statement that he had intended to continue working beyond the age of 65 years.

On the hearing before the AAT, evidence was given by a Mrs Maunsell.  She was, at the time, the Director of Nursing and Chief Executive Officer at the Mayo Private Hospital in Taree.  She had met Mr Doig more than 25 years earlier when she had been the Director of Nursing at the Manning Base Hospital.  She had taken up the position at the Mayo Private Hospital when she left the Manning Base Hospital.  Her change of employment had occurred subsequent to Mr Doig's retirement.  She said that as Director of Nursing at the Mayo Private Hospital, she had employed three people over the preceding year aged 40, 36 and 28 years respectively.  She was asked whether she would have considered employing Mr Doig if he had applied for a position at age 71.  Her reply was that she did not wish to express an opinion as she was only part of a panel of three at the Mayo Private Hospital, and it would be
impossible to express accurately the opinion of three people.  Asked whether Mr Doig's age would be considered in a negative light, she said that age was not as important as a person's attitude to work and his or her work experience and physical energy.  She added that if Mr Doig had applied for a position in the accounts and records section of the Mayo Private Hospital, his application would have been considered.

REASONING OF THE AAT
The AAT saw its task as being to determine whether, as at the application date, 15 March 1993, when Mr Doig was aged 70 years, he would have been employed had it not been for his accepted disabilities.  The AAT noted that it did not suffice that there was a possibility that he may have been employed and that the AAT must be "reasonably satisfied" of that fact.

The reasoning of the AAT which has drawn criticism is found in paras 22 and 23 of its Reasons for Decision.  They are as follows:

1. The Applicant ceased work at the age of 65 years in 1988.  At that time the retirement age in his job was 65 years, and therefore he could not then have continued working at the Manning Base Hospital.  Certainly, a few years after he retired the age restriction on employees' retirement was lifted.  There is no evidence before the Tribunal, however, that in March 1993 he would have been redeployed at the Manning Base Hospital, notwithstanding the change in policy.  At that time Mrs. Mauncell [sic] was still at the Manning Base Hospital.  Therefore, she could not have used her influence, based on her experience of the Applicant's skills, to employ him at the Mayo Private Hospital.  Moreover she was not able to say specifically whether it was more probable than not that the Applicant would have been employed by her in the Admissions and Accounts Department of Mayo Private Hospital when she was in charge of that hospital.  Apparently it was her practice to use a selection committee of three people to select staff for their Accounts section.  She was only one of the decision makers, and she could not predict the position of the other two.  There is no other concrete evidence that the Applicant would have been employed elsewhere as at the application date.

1. The Tribunal is not reasonably satisfied that the Applicant's war-caused injuries alone have prevented him from continuing to undertake remunerative work that he was undertaking and by reason thereof he has suffered a loss of wages or salary that he would not be suffering if he were free of that incapacity.  The Applicant is not entitled to be paid pension at the Special Rate.  Therefore that part of the decision under review which assessed the Applicant's pension at one hundred per cent of the General Rate is affirmed."

In his amended notice of appeal, Mr Doig claims that the AAT "erred in law in applying a test to its determination under s 24 that related solely to his particular employment rather than to the range of work available to him generally". The reference to "particular employment" is a reference to the jobs at the Manning Base Hospital and the Mayo Private Hospital mentioned in para 22.

REASONING ON THE PRESENT APPEAL
Mr Doig lodged his application for an increase in the rate of his existing pension on 15 March 1993 from 100% of the General Rate to the Special Rate.  He had had his 70th birthday some 2 months earlier, on 2 January 1993, having retired from the work force five years earlier, in January 1988, at the age of 65 years.  In para 22 of its Reasons for Decision, the AAT found as a fact that Mr Doig's employment as admissions and accounts officer at the Manning Base Hospital came to an end in 1988 for the reason that the "retirement age" in his job at the time was 65 years.  The AAT did not accept his contention that he had not been obliged to retire from the Manning Base Hospital at that age as legislation abolishing the compulsory retirement age commenced just after his retirement.

Mr Doig attacks the approach of the AAT as being too restrictive.  He submits that the AAT fell into an error similar to that referred to in Banovich v Repatriation Commission (1986) 69 ALR 395 at 402-403. A Full Court of this Court there held that the expression "remunerative work that the veteran was undertaking" in the then counterpart of the present para 24 (1) (c) does not refer to a particular job, which the veteran had held, but to a "type of work" or "field of remunerative activity" which the veteran had been undertaking. In the present case, the submission is put in this way:

"What the Tribunal has done, and where it has fallen into error, is to look at two possible, specific jobs, conclude that the Applicant could not have obtained either of those jobs, and concluded that the Applicant could not have undertaken remunerative work of the type that he was undertaking.  The Tribunal also seems to have determined that, because the Applicant could not point to any other specific job which he could not obtain, there were no such jobs." (para 5 of Mr Doig's written submissions)

Understandably, the only "remunerative work that [Mr Doig] was undertaking" which has been suggested to be relevant in the present case, is that based on his job as an admissions and accounts officer at the Manning Base Hospital which he had undertaken for 24 years from 1964 to 1988.  The "type of work" or "field of remunerative activity" based on that job might, however, be accurately described in more ways than one.  It might, for example, be described at different levels of generality as follows:

1. "the work of an admissions and accounts officer at the Manning Base Hospital".

1. "the work of an admissions and accounts officer at a hospital".

1. "accounting, administrative and clerical work in a hospital".

1. "accounting, administrative and clerical work".

It seems to me that the appropriateness of any particular description of work that had been undertaken is governed by the purpose of the description.  In cases under para 24 (1) (c), that purpose is one related to capacity to work. 

The AAT's Reasons for Decision do not describe the particular work which Mr Doig undertook as an admissions and accounts officer at the Manning Base Hospital.  Nor did Mr Doig's evidence.  In her evidence Mrs Maunsell referred to negotiation with "the Funds",  "patient biddings" and "work in the reception area and, in particular, admissions and discharges" (T 22.05-.08, AB 91).  It seems appropriate, in the absence of any suggestion of peculiar or special features of the work which the job at the Manning Base Hospital entailed, to conceive of the "type of work" or "field of remunerative activity" which Mr Doig had been undertaking simply as "accounting, administrative and clerical work".  Accordingly, the question posed by para 24 (1) (c) is whether Mr Doig was, as at the date of his application on 15 March 1993, by reason of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake remunerative accounting, administrative and clerical work.

In resolving this question, the AAT had to consider the relevant evidence before it.  It is important to note the context in which the AAT embarked upon that task in para 22 of its Reasons for Decision.  First, the AAT had correctly noted in the preceding paragraph of its Reasons that it had to be "reasonably satisfied" that at the application date 15 March 1993 (this was some five years after Mr Doig retired and when he was aged 70 years), Mr Doig would have been undertaking remunerative accounting, administrative and clerical work but for his accepted disabilities, and that a possibility that he would have been doing so was not enough.  Secondly, the AAT found as a fact that Mr Doig could not have continued in 1988 to undertake such work at the Manning Base Hospital because of the retirement age of 65 years which applied.  Thirdly, Mr Doig did not support his evidence of his "general intention to seek alternative work after finishing at the Manning Base Hospital" by tendering evidence of inquiries made by him of prospective employers, either before retiring in 1988 or in the intervening five year period.  Fourthly, Mr Doig did not lead evidence from employers or potential employers of 70 year old accountants, administrators and clerks, establishing that such persons are in fact taken on by employers. 

Apart from the evidence given by Mr Doig of his intention, the only other evidence relevant to the issue arising under para 24 (1) (c) concerned the Manning Base Hospital and the Mayo Private Hospital.  There was no evidence of the position at the unidentified private hospital at Forster.  The AAT had to address the question whether the evidence touching the two Taree hospitals mentioned overcame the paucity of evidence led by Mr Doig in relation to the issue posed by para 24 (1) (c).

The AAT first noted that there was no evidence that in March 1993 Mr Doig would have been redeployed at the Manning Base Hospital, notwithstanding its change in policy and to retirement age.  I do not think that this observation indicates that the AAT understood para 24 (1) (c) to refer to the question whether Mr Doig was prevented from continuing to undertake the particular job which he had held at that Hospital.
In relation to the Mayo Private Hospital in Taree, the AAT noted that in March 1993 Mrs Maunsell was still at the Manning Base Hospital and therefore could not have used her influence, based on her knowledge of Mr Doig's conscientiousness, efficiency and personality, to employ him at the Mayo Private Hospital.  The AAT went on to note that even as at the subsequent time when she was in charge of the Mayo Private Hospital, she was not able to say specifically whether it was more probable than not that he would have been employed in the Admissions and Accounts Department of that hospital.  Again, I do not think that these observations indicate that the AAT misconstrued para 24 (1) (c) to refer to a particular job.  Indeed, the fact that Mr Doig had never been employed at the Mayo Private Hospital demonstrates that in para 22 of its Reasons for Decision, the AAT did not have in contemplation a capacity to continue to undertake a particular job.

The final sentence in para 22 ("There is no other concrete evidence that the applicant would have been employed elsewhere as at the application date") indicates, in my view, the purpose and general thrust of para 22.  The AAT was closely attending to the question whether there was any evidence before it on which it should be "reasonably satisfied" that as at March 1993, Mr Doig was, by reason of incapacity from war-caused injury or disease, or both, alone, prevented from continuing to undertake remunerative work of an accounting, administrative or clerical kind.  It was as a step along the way to answering that question in the negative, that it addressed specifically, the only two jobs to which the evidence before it referred, and explained why the evidence relating to them did not reasonably satisfy it of that matter.

In the result, in my view, the AAT did not make the error of law suggested.

It is not amiss to note that in the course of submissions, Mr Doig drew my attention to Repatriation Commission v Maley (1991) 14 AAR 278 (FCA/FC) at 287 and Birtles v Repatriation Commission (1991) 33 FCR 290 (Hill J) at 299-300, but I do not find it necessary to elaborate on the reasons given above for my conclusion that the AAT did not fall into any error of a kind referred to in those passages.

CONCLUSION
The application will be dismissed with costs.

I certify that this and the preceding 12 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.

Associate:

Dated:18 December 1996

Heard:           6 December 1996

Place:           Sydney

Decision:        18 December 1996

Appearances:     Mr I Sanderson of counsel instructed by Vardanega Roberts, solicitors, appeared for the applicant.

Ms R M Henderson of counsel instructed by the Australian Government Solicitor, appeared for the respondent.