Easterbrook and Repatriation Commission
[2004] AATA 506
•20 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 506
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N 2001/453
VETERANS APPEALS DIVISION ) Re NORMAN EASTERBROOK Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal MS N BELL Date20 May 2004
PlaceSydney
Decision The decision under review is affirmed
[sgd] Ms N Bell, Member
CATCHWORDS
SOCIAL WELFARE AND SERVICES – application for special rate of pension under Veteran’s Entitlements Act – discussion of ss24(2A)(d),(e) and (g)(ii) – applicant required to work in a profession, trade, employment, vocation or calling for continuous period of 10 years – in relevant period applicant successively owned golf course and driving range, coached golf and patented interactive golf instruction system – not work in a profession, trade, employment, vocation or calling – decision affirmed.
LEGISLATION
Veterans Entitlements Act 1986 section 24(2A)
CASELAW
Banovich v Repatriation Commission (1986) 6 AAR 113
Carter v Repatriation Commission [2001] FCA 992
Thomson v Repatriation Commission [2002] FCA 204
White v Repatriation Commission [2001] FCA 1585
REASONS FOR DECISION
20 May 2004 MS N BELL 1.The decision under review is the decision of the Repatriation Commission (“the Respondent”) dated 1 June 2000 that refused the claim made by Norman Easterbrook (“the Applicant “) for carotid arterial disease and granting an increase in rate of pension under the Veterans Entitlements Act 1986 (“the Act”) to 100% of the General Rate of pension with effect from 24 December 1999.
2.The Applicant abandoned his claim for carotid arterial disease and is satisfied for that aspect of the decision under review to be affirmed. However, he contends that the aspect of the decision under review that assessed pension at 100% of the General Rate should be set aside and a decision that pension is payable at the Special Rate should be substituted.
3.There is no dispute that the Applicant’s accepted war caused disabilities are recurrent synovitis of the left knee, malaria, bilateral deafness and ischaemic heart disease. The Applicant reached age 65 on 16 May 1988. His circumstances therefore attract the operation of section 24 and, in particular subsection 24(2A), of the Act which provides as follows:
“24Special rate of pension
(1) This section applies to a veteran if:
(aa) 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
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(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; and
(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; and
(d) section 25 does not apply to the veteran.
(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
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
(2A) 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.
(2B) For the purposes of paragraph (2A) (e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a) 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
(b) the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.
(3) This section also applies to a veteran who has been blinded in both eyes as a result of war-caused injury or war-caused disease, or both.
(4) Subject to subsection (5), the rate at which pension is payable to a veteran to whom this section applies is $571.70 per fortnight.
(5) If section 115D applies to a veteran, the rate at which pension is payable to the veteran is the amount specified in subsection (4) less the pension reduction amount worked out under that section.”
4.It is agreed between the parties, and I concur, that the Applicant satisfies the requirements in subsections 24(2A) (a), (b), (c), (f) and (h) of the Act. The issues to be considered by the Tribunal are therefore whether the Applicant:
i) when he stopped undertaking his last paid work, had been working, commencing before he turned 65, on his own account in that profession, trade, employment, vocation or calling, for a continuous period of 10 years (s 24(2A)(g)(ii)); and
ii) was prevented, by his accepted disabilities alone, from continuing the last paid work he was undertaking before he made his claim for increase of pension (s.24(2A)(d)); and
iii) is suffering a loss of earnings on his own account that he would not be suffering if he were free from his war caused disabilities (s.24(2A)(e)).
WHEN THE APPLICANT STOPPED UNDERTAKING HIS LAST PAID WORK HAD HE WORKED FOR A CONTINUOUS PERIOD OF 10 YEARS ON HIS OWN ACCOUNT IN THAT PROFESSION, TRADE, EMPLOYMENT, VOCATION OR CALLING, COMMENCING BEFORE HE TURNED 65?
5.The Applicant’s evidence, given in his statement dated 20 March 2003 (Exhibit A2) and orally to the Tribunal, was that after his service in World War II he worked for Clarke’s Nursery doing sales, landscaping and stonework before establishing his own business in landscaping, rockeries, stonework, tennis courts, pathways and driveways. He had occasion, in this work, to learn about geology and mining, including construction, equipment and techniques.
6.From 1956 to 1971 the Applicant acquired some large earthmoving machinery and did soil, brick and pipe clay mining and earthmoving. After selling the business, the purchasers went into liquidation and he spent from 1969 to 1971 retrieving equipment.
7.In 1971 the Applicant began work as a contractor doing site excavation and reconfiguration for the construction of Liverpool Golf Course. He answered to the Managing architect and directed his own employees and sub contractors. He said his love of golf began with this work. At this time the Applicant retained control of quarries he had established at St Ives and Maitland and had a contract for a subdivision in Warwick Farm.
8.From 1976 to 1980 the Applicant contracted with Pikes Nursery to take over a peat mining project in swamp land in the Southern Highlands of New South Wales.
9.In 1980 the Applicant leased Council land and designed and built a golf driving range and course on 50 acres at Wollongong. He was responsible for the design and construction of buildings and for earthworks. The driving range, containing 20 bays, was completed in 1980. The Applicant operated the range and that included site work such as draining portions of the land, mowing, collecting balls and teaching golfing technique.
10.The Applicant constructed a 10 hole golf in 1982 and 1983 that required considerable land shaping and took 12 months to complete. The profit from the driving range funded the golf course. Soon after the course was in use it became apparent that the driving range was an obstruction to golfers and it was closed in about 1985. Apart from personal tuition, the Applicant had also produced a golf instruction video at a cost of approximately $68,000. He said he did not sell many videos and did not get his investment back. In 1984 the Applicant went to the USA for 2 months to coach golf. He returned to the USA, usually annually, to conduct golfing clinics until 1987 when he underwent heart surgery. After his surgery and convalescence he returned to the US to teach but found he was “no good” in that he kept forgetting things. He continued to run the golf course but it involved labouring, such as top dressing, mowing, whipper-snippering and spraying. He referred to the knowledge of trees and shrubs required to maintain the golf course. He described it as a never ending job and said he found it very difficult to do. He said his son helped him with the mowing after his heart surgery but he did everything else himself. He ceased operating the golf course in 1997. In its last year it had operated at a $14,000 loss. He had been a sole trader at the golf course and had never registered a business name. He said the assets of the golf course were sold.
11.He said that when he closed the golf course he remained living on the property and worked on his interactive golf instruction system. He said the profits from the golf course over the years had paid the costs, including the patent costs, associated with the system.
12.The Applicant had had an idea, in about 1983, for an interactive golf instruction system. He said he found it too expensive to develop and implement and so put it on hold until about 1988 or 1989 when he said he found an appropriate “mixer”. He said he gave instructions to a Patent Attorney in 1990 and by 1993 had developed an “interactional instructive system in real time in mirror image in juxtaposition” as a golf teaching tool. He had begun the process of applying for a patent in 1990 and a number of problems arose concerning the patent attorney he had instructed and so he did not obtain the patent until 1998 or 1999. He said the patent and the development of the system had cost him $300,000 in total.
13.In 1998 the Applicant leased a large hall in Wollongong and installed and operated another driving range with only two bays. It took 2 months to set up. He also set up a prototype of his interactive training system at the local basketball centre and later transferred this to the leased premises. He operated again as a sole trader but had registered the trademark “Graphic Golf Academy” and took out public liability insurance for the activity. He also advertised in the local papers and in the Yellow Pages directory. He gave this up in 1999 because he was unable, due to a lack of energy, inability to make decisions and inability to understand people on the phone, to keep the range open on 7 days per week and could only, with his wife’s help, keep it open for half that time. The business needed to be open full time in order to be financially rewarding. He said he had realised, within 2 weeks of opening, that he would not be able to run it. He said this business had never paid expenses.
14.The Applicant said that in 1988 when he turned 65 he didn’t have any retirement plans. He said he had intended to continue to run the golf course for a further 5 or 6 years.
15.He acknowledged that his duties on the golf course were very different from his work in relation to his training system in that one was outdoor work and the other was indoor.
16.The evidence of Mr Scott Menzies, Chartered Accountant, was given in his report dated 21 May 2003 (Exhibit R2) and his oral evidence to the Tribunal. He reported as follows:
“1. In May 1984 Mr Easterbrook entered into a lease of land at Lot 100 Princes Highway, Yallah, with Wollongong City Council. He then constructed a 9 hole golf course and practice range on the site, which was completed and commenced operation in June 1985. This business was carried on in the name of Mr Easterbrook as a sole trader. This business continued until it ceased in March 1997. At the time the business ceased the lease with the Wollongong City Council was on a monthly tenancy. The 1997 income tax return for Mr Easterbrook shows gross income from the operation of the golf course of $29,840 (which agrees to a list of takings from July 1996 to March 1997) plus a grant from Expertise Pty Ltd of $9,400, less expenses relating to the operation of the golf course of $53,147, for a net operating loss of $13,907.
2. The documents include a copy of an advertisement in December 1996 (which incorporates a letter dated 4 November 1996), and a letter dated 13 march 1997, for sales of a golf video by Mr Easterbrook. We have been provided with details of Mr Easterbrook’s income for the 2 years between 1 July 1996 and 30 June 1998, which do not include any income from the sale of golf videos, unless it is incorporated in the list of taking for the golf course for the 8 months between 1 July 1996 and 1 March 1997. There is no gross income from any source of person effort or sales from 1 March 1997 to 30 June 1998.
3. On 15 June 1998 Mr Easterbrook entered into a lease of a building at land at Denison Street, Wollongong, to use as a gold instruction and practice centre. This business was called Graphic Golf Academy and was carried on in the name of Mr Easterbrook as a sole trader. This business commenced in July 1998, which is evidenced by an electricity account with Integral Energy and a business and public liability insurance policy. Mr Easterbrook paid $1,575 for an advertisement on a local bus in September 1998, placed an advertisement in Yellow Pages in December 1998 and in the local newspaper in March 1999. We do not know when Graphic Golf Academy ceased, but it was still going in July 1999. The financial statement provided for Mr Easterbrook for the year ended 30 June 1998 does not show any income from this business as it has not commence, however it shows considerable expenses of $31,833. We are not able to tell what these expenses relate to. They may be incurred in preparation for the commencement of Graphic Golf Academy in July 1998, including development of the instruction system used at Graphic Golf Academy (for which a US patent applied for in August 1997 and granted in October 1998). No income tax return has been provided for 1998, and no financial details at all for 1999 and following years.”
Mr Menzies was called upon in his report to answer certain specific questions. Although not set out in this format in his report, I have set out each question with the answer that follows:
·“What was the nature of the business in 1997/1998?
No income was derived from any business or other personal effort between 1 July 1997 and 30 June 1998. Expenses of $31,833 were incurred, however we are not able to tell what these expenses relate to. They may have been incurred in preparation for the commencement of Graphic Golf Academy in July 1998, including development of the instruction system used at Graphic Golf Academy (for which a US patent applied for in August 1997 and granted in October 1998.)
·From where was the business run, did he lease premises or run it from home?
We are not able to tell where Mr Easterbrook worked from between 1 July 1997 and 30 June 1998. It was probably from home, however there is rent included in the expenses for that year.
·Is there any indication from the records provided of the kind of business he ran prior to 1997?
Prior to 1997 it appears that the only business operated by Mr Easterbrook was the 9 hole golf course and practice range.
·When did he begin marketing and/or developing the instructional system?
The instructional system appears to have been developed prior to the patent application in August 1997 and first applied in the business Graphic Golf Academy from July 1998.
·Was the computerised instructional business profitable at any point?
No income at all was generated from the instruction system up to 30 June 1998 when the financial records cease.
·What was the relevant profit/loss from the instructional business in the years for which records are held?
Nil
·Were any of the predictions in the ‘cash flow forecast’ at pages 19 to 21 ever realised in the period 1997 to 1998?
No. Note that these projections appear to relate to the period from 1 July 1998 for which we have no financial records.
·If not is there any indictation [sic] as to why the business did not come up to expectations?
No
·Does the veteran continue to earn income from his instructional business?
We are not able to tell as we do not have any financial records after 1 July 1998.
·If not, what is the veteran’s current source of income?
Not known”
17.In oral evidence, Mr Menzies said that he considered the golf course and the Graphic Golf Academy to be two separate businesses each conducting different activities.
18.The Applicant’s income tax returns for the financial years ending 1997, 1998 and 1999, cover the years in which, respectively, the Applicant closed the golf course, opened the Graphic Golf Academy and closed the Graphic Golf Academy. On each of these returns the “Business name of main business” is “Norman John Easterbrook”. The 1997 return has “GOLF CLUB OPERATION (EXCEPT HOSPITALITY)” as the “Description of main business activity”. Under the same heading for the 1998 return appear the words “GOLF COACHING SERVICE” and under the same heading for the 1999 return appear the words “GOLF INSTRUCTION AND PRACTICE CENTRE”. For the Golf club operation and for the Golf coaching service the business address of 56 Warwick Street, Lindsay Heights is given, while the Golf Instruction and Practice Centre has the business address of 1-19 Denison Street, Wollongong.
19.I note that there is no dispute that the Applicant ceased operating the golf course in March 1997 and began the operation of Graphic Golf in August 1998. His evidence was that he spent the time from March 1997 to August 1998 selling off the golf course assets and finalising the interactive system. Pages 36 and following of Exhibit TD2 are a claim for age pension made by the Applicant to the Department of Veterans Affairs on 14 December 1997. In answer to question number 28 on that form, “Do you own/partly own or conduct a business?”, the Applicant ticked “No”. He also gave the date “1/3/97” as the date he “ceased work”.
20.The Applicant said that he answered the questions in this way because at the time he did not consider that his activity of getting the interactive system up and running and disposing of the equipment on the golf course amounted to working.
21.Ms Buss, on behalf of the Applicant, submitted that the ten years continuity must be seen in the context of the correct characterisation of the self employed Applicant’s business and all aspects of the Applicant’s golfing enterprises should be seen as related parts of a “consistent drive to perfect golfing skills and technique”. Ms Buss likened the Applicant’s various activities to “a person maintaining a commercial retail and generalised plant nursery, the profits of which also finance his activities developing an as yet uncommercial new strain of plant” and said that could hardly be said to be carrying on two different ”profession(s), trade(s), employment(s), vocation(s) or calling(s)”.
22.Ms Buss also submitted that the use of different names for the golf course (“Yallah Park Golf Course”) and the interactive system (“Graphic Golf Academy”) does not mean that the applicant was engaged in two different ”profession(s), trade(s), employment(s), vocation(s) or calling(s)”. She noted that the name given to the interactive system was a reflection of its trademark consequential to its patent and merely asserted exclusive rights as a matter of prudent business practice.
23.Similarly, Ms Buss submitted that the different descriptions of main business activities noted in the 1997, 1998 and 1999 income tax returns simply reflect the focus, in those years, of “the transition overlap from one facet of the enterprise to another” and that the differing descriptions do not sever them.
24.Ms Buss also submitted that the period of time between the closure of the golf course and the opening of the interactive system was in fact a period during which the applicant worked – dismantling and selling off the disposable parts of the golf course, further patenting and production, advertising, locating of premises and setting up for the interactive system.
25.Ms Buss also submitted that any distinction between the golf course and the interactive system on the basis that one is outdoor and the other is indoor is meaningless.
26.Ms McConnell, for the Respondent, submitted that the Applicant’s last work was his work at the Graphic Golf Academy. She referred to the Macquarie Dictionary definitions of the words “profession, trade, employment, vocation or calling” and “work” and submitted that these definitions “emphasise the need for particularity” and make it an insufficient identification of the Applicant’s “profession, trade, employment, vocation or calling” to say that he was in the “golfing industry”. This, she submitted is an identification of the broad area in which he was working rather than the nature of the work he was doing. She submitted further that it is necessary for the Tribunal to determine what was the particular “profession, trade, employment, vocation or calling” in which the applicant was engaged within the golfing industry when he was last engaged in remunerative work, and then to determine whether he was engaged in that particular “profession, trade, employment, vocation or calling” for the previous 10 years.
27.Ms McConnell submitted that the “profession, trade, employment, vocation or calling” the applicant was last engaged in was the interactive system at the Graphic Golf Academy in Wollongong. She submitted there is a huge difference between running an outdoor golf course/driving range and running an indoor instructional centre.
28.I was referred to a number of authorities by the representatives of each of the parties. In Banovich v Repatriation Commission (1986) 6 AAR 113, the Full Federal Court said (at 119) that “it is … erroneous to read the phrase ‘remunerative work that the member was undertaking’ as referring to a particular job with a particular employer … the phrase … should be read as a reference to the type of work which the member previously undertook and not to any particular job.”
29.In Carter v Repatriation Commission [2001] FCA 992, Branson J said:
“21 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."
22 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 10 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 10 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.”
30.Her honour said later:
“26.…The paragraphs are, in my view, intended to deal with distinct issues. Section 24(1)(b) is concerned with degree of incapacity, par 24(2A)(d) with the reason which prevented the veteran from continuing to undertake his or her last paid work and par 24(2A)(g) with the demonstration of a long-term intention to undertake a particular type of work beyond the age of 65 years.”
31.Ms Buss, for the Applicant, submitted that Carter may be distinguished from the present case because it was found that Mr Carter had broken the ten year continuity by not working at all for a period of 12 months, whereas the Applicant in this case had continued to work.
32.In Thomson v Repatriation Commission [2000] FCA 204 the Full Federal Court held:
“11 Thus, the inquiry mandated by the sub-section in the present case required consideration of whether the appellant had been working as a medical practitioner on his own account for a continuous period of at least 10 years prior to his cessation of work during July 1996. Continuity of the appellant's medical work throughout the period is relevant to, but not determinative of, that matter. Continuity of a doctor's work as a self-employed medical practitioner in a case such as the present would also, usually, be expected to involve consideration of whether indemnity insurance, medical registration, AMA membership, medical journal subscriptions and the requisite medical equipment continued to be maintained throughout the relevant period.”
33.Ms McConnell, for the Respondent, submitted that this passage indicates a concentration on particularity of profession, trade, etc and suggested that the applicant in Thomson could not, for example, try his hand at some other area of the health industry that did not require relevant qualifications as a medical practitioner.
34.In White v Repatriation Commission [2001] FCA 1585, Conti J said:
“27 The consequence of my foregoing finding is that Mr White could only fulfil the continuity test by reliance upon a combination of accounting work undertaken whilst principally engaged in farming (see [10] above), and of accounting work undertaken at TAFE as a lecturer, and thereafter of similar accounting work undertaken at Skillshare.”
35.Ms McConnell submitted that this passage indicates a concentration on a profession. Ms Buss, however, sought to distinguish the decision in White because the result in that case had rested on the applicant having been, for one period, an employee, and for another, self employed.
36.I consider that the decisions outlined above indicate a requirement for particularity, not of job, or, in the case of a self employed person, business entity, but of nature of profession, trade, employment, vocation or calling. This, in turn, requires an examination of the activity engaged in by the Applicant and the skills and experience required of the Applicant in that activity. The Applicant’s last paid work, or his last activity, was the operation of the Graphic Golf Academy.
37.It is clear that golf is a common thread running throughout the Applicant’s work from at least 1980. His work in operating and maintaining Yallah Park Golf Course, his work teaching golfing technique and his work operating the Graphic Golf academy all concerned golf and were sited within the golf industry.
38.However, the emphasis in each of these strands of activity within the golf industry was markedly different and utilised significantly different experience and skills. In the operation and maintenance of the golf course, the Applicant brought to bear, on his own evidence, his experience as a landscaper and his own labour in that respect and ran a club which collected fees from members. As a golf teacher, the Applicant brought to bear his skills in the game of golf and his ability to teach those skills. As an operator of the Graphic Golf Academy, the Applicant brought to bear his skills in the game of golf and his knowledge of the video based technology and method used in the interactive system he invented. Although all centred on golf, these activities, and the skills required to pursue them, are very different.
39.The Respondent submitted that the difference between working “outside” in relation to the golf course and working ”inside” in relation to the Graphic Golf Academy was significant. I consider that it is not the environment in which the work was done for each of these endeavours that is significant but rather the presence of a large component of skilled physical work, including top dressing, mowing, spraying and caring for shrubs and trees, required to maintain the golf course grounds and the absence of that component in relation to the Applicant’s last paid work, that is, the Graphic Golf Academy.
40.The Applicant submitted that a constant throughout the relevant period was his teaching (although, I note the Applicant’s evidence that he had to cease his teaching in the US after his heart surgery because he could no longer remember things) and further submitted that the operation of the interactive system amounted to teaching in that it provided instruction in golf. However, even if I were to accept that, there is no evidence that during the period between the closure of the golf course, where the Applicant taught golf technique, and the opening of the Graphic Golf Academy the Applicant continued to teach golf technique. Indeed the Applicant’s evidence was that during this period he concerned himself with the selling off of the golf course’s assets and the finalisation and implementation of the interactive system. He made no mention in his evidence of teaching golf technique in that period. This is also supported by the Applicant’s answers on his claim for age pension to the effect that he had ceased work and did not conduct a business. This is a significant break in continuation of the “profession, trade, employment, vocation or calling” of teaching golf and serves to interrupt any continuity, over a 10 year period leading back from his last paid work (the Graphic Golf Academy) in 1999.
41.I am therefore not satisfied that the time spent by the Applicant in the period between the closure of the golf course and the opening of the Graphic Golf Academy can be characterised as “teaching golf technique”, even if the operation of the Graphic Golf Academy can be so characterised.
42.I am also mindful of the evidence of Mr Menzies that the businesses styled “Yallah Golf Club” and “Graphic Golf Academy” are separate businesses conducting different activities. However, I consider that it is the activities, in terms of his “profession, trade, employment, vocation or calling”, of the Applicant, rather than the business vehicles used by him, that are most important in the application of section 24(2A)(g).
43.Given that the Applicant is required, by the terms of section 24(2A), to satisfy all of the paragraphs in that provision, he therefore does not qualify to receive pension at the Special rate and it is not necessary to consider the remaining issues concerning subsections (d) and (e).
DECISION
44.
The decision under review is affirmed.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: Guy Moloney .....................................................................................
Associate
Date/s of Hearing 17 September 2003
Date of Decision 20 May 2004
Representative for the Applicant Ms Judith Buss
Advocate for the Respondent Ms Trina McConnell
Solicitor for the Respondent Mr Stephen Modder
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