Hamilton, J.D. v Repatriation Commission

[1991] FCA 751

UDGVENT No, 23:  ... /...L

CATCHWORDS

ADIIInISTRATIVE LAW - e. 24(1) Veterans' Entitlements Act 1986 - eligibility for special rate pension - whether evidence existed to justi fy A.A.T16 conclusion that age wae factor in retirement -

applicant worked until aged over 70.

Bntitlemente Act 1986 6. 24(1)

SPENDER J. BRISBANE 1 NOVEMBER 1991
JOHN	v.
No. 4650 of 1991

C

COURT OF 41lSIPBBLIB 1

REGISTRY	)	k0. QG50 of 1991
1

BETWEEN: - D N

Applicant

AND:

Respondent

W U T E S OF ORDER

Spender J.
1 November 1991
Briebane

The application be diemieeed with costs, to be taxed if not agreed.

Settlement and entry of orders is dealt with in Order

ml!Bt 36 of the Federal Court Rules.

BETWEEN: m DESMOND m

Applicant

Respondent

c ! a & u r	Spender	J.
E u C E *	Bri ebane

&?Azn:  1 November 1991

RE REASONS FOR JUDGMENT

This is an appeal from a decision of the Administrative Appeal6 Tribunal ("the Tribunal") affirming a decieion of the Repatriation Comiasion to continue to pay the applicant, John h m n d Hamilton, a disability pension at 100% of the general rate. Mr Hamilton's contention wae that he should have been paid the penmion at the special rate from the day on which he ceased

work, 30 November 1986.

The appeal concerns the application of a. 24(1) of the

ente A c t 1986 (Cth) ("the Act*), to the
circum6tances of Mr Hamilton. That sub-section relevantly

provides

r

" This s e c t i o n a p p l i e s t o a ve t e ran , o t h e r than a

ve t e ran t o whom sectf on 25 a p p l i es, if -

( a )	e f t h e r r
(l) the degree of incapacf t y of the ve t e ran

from war-caused f n jury o r war-caused

d i s e a s e , or both, i s determined under

s e c t i o n 21A to be a t l e a s t 70% or has been so determined by a de terminat ion

t h a t i s i n force; o r

the ve teran i s , because h e or she has s u f f e r e d or i s s u f f e r i n g from pulmonary tubercu los i S , r e c e i v i n g or e n t i t l e d t o

receive a pension a t the general r a t e ;

(b) t h e ve t e ran i s t o t a l l y and permanently

incapac i ta t ed , t h a t i s to say , the ve te ran ' s

incapacf t y from war-caused i n j u r y or war-caused

d i s e a s e , or both, i s o f such a na ture a s , o f

o f undertaking remunerative work for per iods	i t se l f a lone , t o render the ve te ran incapable
aggregat ing more than B hours per week; and

( c ) t h e ve t e ran i s , by reason o f i n c a p a c i t y from

t h a t war-caused i n j u r y o r war-caused d i s e a s e ,

or both,	a lone , prevented	from con t inu ing t o
undertake remunerative work t h a t the ve te ran was undertaking and i s , by reason thereof, s u f f e r i n g a loss o f s a l a r y or wages, or o f	earnings on his or her own account,	t h a t t h e

ve teran w u l d n o t be s u f f e r i n g i f t h e ve t e ran

were free o f t h a t i ncapac i t y . "

Mr Hamilton was born on 27 July 1916 and saw service

in the second world war, serving in the Australian Infantry
Forces in New Guinea and Borneo from 1941 to 1946.

The application to review before the Tribunal was heard by Senior Member D.W. Muller in Southport on 5 March 1991.

During that hearing Mr Hamilton was represented by Mr Dooley of counael, and the respondent Commission by its advocate, Mr Loftus. Oral evidence was given before the Tribunal by Mr Hamilton, by Dr Grant (a medical practitioner called by the Comnfssion) and by Dr. Yuille (Mr Hamilton's general practitioner) and each of them was cross-examined.

At the conclusion of the evidence and submissions, the Tribunal affirmed the decision under review and gave oral reasons for that decision. The decision to affirm the decision under review wae made in writing on the eame day.

A notice of appeal dated 2 April 1991 was filed in the Federal court. It appears from the written reasons of the Tribunal dated 15 July 1991 that the Registrar of the Administrative Appeals Tribunal in Brisbane received a copy of that notice of appeal on 22 April and received a request from the solicitors for the applicant for a statement in writing of the reasons for decision on 5 June. Notwithstanding the provisions of 0. 53 r. lO(2) of the Federal Court Rule4 and the provisions Of 8. 43(2A) of the Winiatrative ADDealS Tribunal Act 1975, the Tribunal provided its reasons in writing for the decision made on 5 March 1991.

Mr Hamilton ceased remunerative work on 30 November 1986, at which time he was aged 70 years and 4 months. He has

various charitable and other community organisations and has	since that time engaged in considerable activity on behalf of
continued his connection with Legacy and with the performance of audits for community groups.
Mr Hamilton qualified as an accountant after his war aervice in late 1947, but has never practiced as an accountant.
He took up dairy fanning in mid 1947 and he has been involved in
dairy fanning in one way or another from that time until his retirement in November 1986. He was physically active in dairy
farming until 1971, but since then his activities in connection with dairy fanning have not involved active, physical fanning. Prom 1971 he entered into arrangements with other dairy farmers whereby those fanners milked his herd.
Mr Hamilton suffers severely from an obstructive airways disease. He was granted a disability pension of 80% of the general rate from 2 November 1978 and 100% of the general rate from 2 July 1985. The Tribunal said, and there is no room to cavil with its conclueion, that:

" There i s no doubt t h a t t h e app l i can t has been

severe1 y d isabled by h i S b rea th ing problems over t h e

l a s t f i f t e e n years or so. "

It is apparent from the reasons of the Tribunal that the testa proposed by s. 24 were addressed by it. The Tribunal said in its reasons:

" I t i s c l e a r t h a t the app l i can t s a t i s f i e s the

condi t i o n s imposed by B . 2 4 ( l ) ( a ) . Mr L o f t u s for

the respondent conceded t h a t the app l i can t s a t 1 s f i es

8 . 2 4 ( l ) (b). The d i s p u t e to be reso lved by the

Tribunal was whether or n o t the appl i can t sa ti s f i ed

the prov is ions o f S . 2 4 ( l ) ( c ) . I t was t h e

app l i can t ' B conten t1 on t h a t h is war-caused

d i sabi l i t y (brea th ing d i f f i c u l ti es) a lone prevented

him from con t inu ing t o be e i t h e r a d a i r y farmer or

t o be a d i r e c t o r o f t h e South Coast Dairy Co-

opera t i ve . "

There was before the Tribunal a history of Mr

Hamilton's activities from his commencing work in a general store

in 1932 until his term as chairman of the South Coast Co-

operative Dairy Association and its subsidiary companies lapsed on 30 November 1986, in respect of which positions Mr Hamilton

5   i

did not seek re-election. It is relevant to note from the history that in 1975 Mr Hamilton was elected deputy chairman of the board of the South Coast Co-operative Dairy Association and it6 subsidiary companies and in the following year sold all of his remaining land to a Mr Geary who in turn sold it to a further purchaser. Mr Hamilton obtained a lease over the land sold to Geary and maintained hie milk quota, which was a requirement for

him to retain his position as a director of the board.

Mr. Hamilton was elected chairman in 1980 and was re- elected in 1982, when fresh arrangement~ were made in respect of the milking of cattle owned by Mr Hamilton. He made an arrangement with a Mr Currie, who had a dairy farm at Coomera, and transferred 44 cows to Mr Currie's property. According to the Tribunal, from April 1982 to November 1986 Mr Hamilton was chairman of the board. He leased land at Carrara to keep his milk quota, but the land itself had no cows on it because they had all been transferred to Mr Currie'a farm.

During that period Mr Currie sold six or eight of Mr

Hamilton's cows by agreement with Mr Hamilton. Mr Currie also	lost about 26 of Mr Hamilton's cows and apparently did not know
that they had disappeared. It appeared in evidence that Mr Hamilton did not physically check on the herd at all during this four year period and the cows were not milked during this period by Mr Currie.
Subsequent to Mr Hamilton's term as chairman expiring by effluxion of time on 30 November 1986, he went to Mr Currie's
farm to see what remained of his herd. He found ten of hie cattle left. He decided that he did not have the financial renourcee or the energy to rebuild his herd, so he sold the remaining ten cows, cancelled the lease of the land at Carrara and sold his milk quota for $25,000.
The Tribunal posed for itself the issue before it in thin way at paragraph 10 of its reasons:

" It was submitted on behalf of Mr Hamilton that he is entitled to recei ve the Speci a1 Rate pension because he was forced into retirement solely because of his breathing difficulties. It was said that if it had not been for his war-caused disabilities he would have either remained on the Board as a Director or he muld have resumed dairy farming. In either caae, it was claimed, he would have continued to undertake remunerative work after 30 November 1986. W

The Tribunal rejected thoee submissions and set out a number of considerations for that conclusion. The Tribunal

c aid at paragraph 11:

" (1) The Special Rate pension is not to be

regarded as a means of providing a

superannuati on benefit for veterans. It is a pension which is designed to provide an income for thoee veterans whose war-caused i n juri es prevent them from earni ng a l i vi ng. It was never contemplated that veterans who have worked a full working life and who have then retired in the normal course of events would be elf gible for a Speci a1 Rate pension.

(if) Mr Hamilton had a full working life and he worked until he was over 70 years of age which is well past the normal retiring age. His ape is an important factor in his decision to retlre.

(ifi) At the date of his retirement &-Hamilton did

not own a dairy farm. He was merely leasing

t h e land a t Carrara which he had	so ld i n
1976.

( i v ) A t t h e d a t e o f his re t i r emen t Mr Hamilton d i d

not own a d a i r y herd.	H e had 10 cows i n the
h i l l s a t a proper ty a t Coomera and	they had

n o t been mi lked for a t l e a s t f our years .

( V ) H e d i d n o t have t h e f i nanc ia l resources t o

re -bu i ld h i s d a i r y herd . Even i f he had re- b u i l t the herd , he owned no land on which to

put i t .

( v i ) I t seemed t o me to be very doub t fu l a s t o

whether Mr Hamilton was,

(a)	entitled	to	have	a	m i l k	quota,	and
therefore,

( b ) e n t i t l e d t o be a Director o f the Board,

from mid 1982 u n t i l November 1986.

The Tribunal concluded by eaying a t para. 12:

" There i s no doubt t h a t a s a t t h e d a t e o f h i s

r e t i r emen t M r Ham1 l t o n was severely d isabled by h i s

l u n g c o n d i t i o n b u t t h a t was n o t t h e only reason for

h i s retirement from t h e d a i r y i n g b u s i n e s s . The

f a c t o r s set o u t i n paragraph 11 above were a l s o

h i g h l y si pni f i c a n t . M r Hami 1 t o n ' s c ircumstances d i d

not s a t i s f y t h e c o n d i t i o n s set o u t i n S . 2 4 ( l ) ( c ) o f

the Act because he was not prevented from con t inu ing	to undertake remunerative work by reason o f
i n c a p a c i t y from war-caused d i s e a s e a lone . "

For thoee reasons , the Tribunal a f f i r m e d t h e

d e c i e i o n	under	review.
In the hearing i n t h i s c o u r t , counsel f o r the

appe l lan t submitted t h a t t h e conclueion s t a t e d b y the Tribunal

t h a t " ( h ) i s age was an important f a c t o r i n his d e c i s i o n t o

r e t i r e " was erroneoue .

Conscioua, no doubt , t h a t appeal t o t h i e c o u r t l i e s

o n l y on a quee t ion o f law ( e e e 8.44 o f t h e Admin i s t ra t i ve Av~ea1.q

A c t 1975), it was submitted that on the evidence before

it, the Tribunal had no choice but to conclude that the physical

deterioration admitted by Mr Hamilton in the years preceding his decision not to pursue re-election as chairman or director of the board, had nothing to do with his advancing years. In short, it was submitted that there was no basis for the finding that Mr Hamilton'e age was an important factor in hie decision to retire.

I accept that the other matters referred to by the Tribunal ae relevant to its decision are, in a sense, consequential on the decision made by him in 1986 not to seek re- election and the question is really whether there was material before the Tribunal permitting it to make the conclusion (which is one of fact) that the age of Mr Hamilton was a factor in his decieiion to retire. If that conclusion was open to the Tribunal, then no legal error affects the conclusion to which it came.

It is necessary, therefore, to turn to the material before the Tribunal. First, Mr Hamilton gave evidence and was	cross-examined. His age was before the Tribunal, but it was
never expressly put to him by Mr Loftua, the advocate for the Cormnission, that his advancing years were a factor in his decision not to seek re-election in November 1986.

Mr Hamilton did say in his evidence that his

breathing difficulties cauaed him difficulty in carrying out hia duties aa director and chairman of the South Coast Dairy Co- operative. He delegated some of hie functions, which involved

conmiderable walking and climbing of stairs, to officers of the companies and had to excuse himself from guiding visitors around the factory. He was asked in cross-examination:

" . . your position as chairman was an elected

position, wasn't it?---Yes.

... your chairmanship lapsed at the end of November

1986. Is that right?---Yes.

. . .you didn't renominate or stand for election in

that year. Is that ri ght7---Yes, my term expired at
the annual meeting.

Why didn't you choose to re-nominate?---Well, my medical condition was deteriorating. I was finding

- becomi ng increasingly breathless, and I deci ded i t

wasn't fair either to the factory, the board or
myself, to carry on.

Now, at the time your position lapsed, you'd been a director of the co-op for some 21 years, you say. Had anyone given any indication that you would be - that if you chose to re-nominate, you would be opposed in 19867---No, no. On the contrary, there wwre many expressions of regret expressed at the - my final annual meeting. "

Mr Hamilton conceded that he was not able to do

thingm in 1986 that he was able to do several years previously,

but he has continued to engage in his study of Japanese, his

addiction to crossword puzzles and his community activities and

Legacy work.

In Banovich v. peoatriation Commiesion (1986) 69

A.L.R. 395 the Full Court of the Federal Court (Fisher, Beaumont

and Wilcox JJ) said at 404:

" ...	although the tribunal rightly accepted that a person was not automatically disentitled to a pension on attaining 65 years, the tribunal found, on the facts of this case and having regard to
Wr Banovich 'S employment history, that Mr Banovi ch
w u l d i n any event have been u n l i k e l y t o cont inue i n remunerative work a f t e r t h e d a t e upon which he w u l d
have r e t i r e d from the Railways.
W e see no error o f law i n t h e d e c i s i o n o f the
tri bunal . "

The Full Court referred, at 404, to the second
reading speech which attended the introduction of the

Leaislation Amendment B i u 1985, where the Acting

Minister for Veterans' Affairs said:

" S ince 1920, t h e r e has been a spec ia l r a t e o f

d i s a b i l i t y pension payable i n c ircumstances where,

because o f t o t a l and permanent incapaci t y r e s u l ti n g froln war service, a ve teran has been unable t o resume or t o con t inue i n civil employment. The

s p e c i a l o r TPI r a t e pension was deaf gned for

severely d i sabled ve t e rans o f a r e l a t f vely young age

who could never go back to work and could never hope

to support themselves or their fami l f es or put away

money for t h e i r o l d age. I t was never in tended t h a t

the TPI r a t e w u l d become payable t o a ve t e ran who,

having enjoyed a f u l l w r k i n g l i f e a f t e r war

servi ce, then retires from work possibly wi th

whatever superannuation or o t h e r re t i r emen t b e n e f i t s

a r e a v a i l a b l e t o the Aus t ra l ian work force.

Determining author1 t ies have found the a p p l i c a t i o n

o f the present l e g i s l a t i v e prov i s ions d i f f i c u l t

because t h e prov i s ion , unchanged since 1920, con ta in

outmoded and imprec ise terms. The amendments

c l a r i f y the e l i g i b i l i t y c r i t e r i a and make i t c l e a r

t h a t t o q u a l i f y for a TPI pension a ve t e ran must be

e l i g i b l e for t h e l 0 0 per c e n t general r a t e pension.

I n a d d i t i o n , t h e TPI r a t e pension can become payable

only when a ve t e ran i s t o t a l l y and permanently

d i sabled by accepted d i sabi l i ti es and i 8 thereby

precluded from con t inu ing t o engage i n remunerative

work.	I f a person has had t h e usual span o f a
working	l i f e or has r e t i r e d v o l u n t a r i l y o r has l e f t

employment for reasons other than accepted

d i s a b i l i t i e s , a TPI pension i s n o t payable. I t

w u l d be i n only very r a r e cases t h a t any ve teran

beyond the normal re t i r emen t age could be e l f g i b l e

for t h i s pension. Special p rov i s ion i s made by t h e

B i l l to cover veterans who are under 65 par s o f	age, a r e unemployed, and a r e genuine ly seek ing to
engage i n remunerat ive work.	"

Notwithstanding those s ta temen t s , t h e ques t ion i s

whether, i n t h e terms o f 8 . 2 4 ( l ) ( c ) , " t h e ve teran i s , by reason

o f i n c a p a c i t y from t h a t war caused i n j u r y or war-caused d i sease ,

or both, alone, prevented from con t inu ing t o undertake

remunerative wrk t h a t the ve teran was undertaking".	The general
recogn i t ion o f t h e r e t i r i n g age o f persona	i n var ious avocat ions
i s but one f a c t o r t o be considered.	The age o f t h e appl icant f o r

a spec ia l r a t e pension i s no doubt a v e r y re l evan t f a c t o r and one

which has t o be considered i n t h e con tex t o f t h e s u b j e c t i v e

circumstances o f t h a t appl icant and no t by any a ~ r i o r i r u l e .

In m r i a t i o n Commission v . S t r i c k l a n d ( 1 9 9 0 ) 12

A.A.R. 343, Davies and Ryan J J said a t 351:

"	I n the course o f i t s reasons, t h e AAT r e f e r r e d on several occasions t o age 65. Having read these several r e f e r e n c e s , t h e t r i a l judge considered t h a t
the AAT had r a i s e d the age o f 65 t o the s t a t u s o f a
c u t - o f f po in t , or a t l e a s t a balancing p o i n t , and
had wrongly t r e a t e d t h e respondent a s b e i n g required
t o d i s p l a c e an assumption t h a t a person over 65
w u l d not normally be g a i n f u l l y employed. W e do n o t
f i n d i n t h e MT's reasons t h e error which t h e t r i a l
judge thought t o exist .

Speaking more genera l l y , t h e i r Honours continued a t 351:

"

Age 65 was no t an i r r e l e v a n t ma t t e r . I t i s a common

r e t i r i n g age for employees and	can be	taken t o
reflect somewhat	a r b i t r a r i l y t h e communi ty 's	general

understanding o f t h e e f fect o f age upon a b i l i t y t o

undertake gal n f u l employment.	Thus, a s the Tribunal
s a i d ,	65 years i s the age a t which a male person

q u a l i f i e s f o r the grant o f an age pension. I t

follows t h a t , i f noth ing more were known o f an

appl icant for a pension than t h a t he was over t h e

agw o f 65 p a r s when t h e a p p l i c a t i o n was lodged, a

t r ibuna l would not be l i ke ly t o be s a t i s f i e d t h a t

t h e veteran was then s u f f e r i n g a loss o f earnings by

reason only o f h i s war-caused incapac i t y . O f

course,	t h a t	i s o n l y a	hypothe t ica l	case	and,
i n v a r i a b l y ,	more	i s known	about	t h e mat t e r	than

t h a t , a s i t was i n t h e present case . But t h e pof n t

i s	t h a t	a	t r i b u n a l ,	e s p e c i a l l y	a	t r ibuna l	wh ich
d e a l s	w i t h	i s s u e s	o f	this	na ture	r e g u l a r l y ,	might

reasonably	proceed	from	the	premise	t h a t
a p p l i c a t i o n s	for	pension	made	a f t e r t h a t age	would

f a i l , u n l e s s f a c t s were d i s c l o s e d which tended t o

the conclus ion t h a t the ve te ran would then st i l l be

c o n t f nu ing t o undertake remunerative work, b u t for

his war-caused incapacf ty .

Of	course ,	age 65 i s n o t an age which i s d i r e c t l y
app l i cab le t o a person	who	i s running his own

b u s i n e s s or who c o n t r o l s t h e a f f a i r s o f a company

which conducts the b u s i n e s s i n which he i s engaged.

But t h a t i s n o t t o s a y age i s i r r e l e v a n t t o such a

person.

In that case, Mr Strickland was engaged in work which involved very long hours, much beyond the normal working hours of employees and this was a factor which the Tribunal had taken into account in deciding whether or not the respondent would have continued to work to age 68.

Having regard to the subjective circumstances of Mr
Strickland, the finding of fact by the Tribunal that the

respondent would not have continued running the business until

open to the Tribunal. the age of 68 was, in the view of Davies and Ryan JJ, reasonably In Sheman v. Jl eDatrietion (unreported,

6 June 1991, Federal Court of Australia), Gray J was concerned with a similar problem to the present one, but in which the subjective circumstances of the applicant were different in kind from those of Mr Hamilton. Mr Sherman had last been employed in the public service, which carried a mandatory retiring age of 65. He would not, therefore, have continued in that employment beyond

that age. The Tribunal examined in detail evidence as to the likelihood of Mr. Sherman's return to some form of self-employed tailoring and concluded that he had not satisfied the requirement of s. 24(l)(c).

The question here is whether there was material before the Tribunal on which it could conclude, as it did, that age was a factor in the decision of Mr Hamilton not to seek re- election as chairman or director on the board of the South Coast Dairy Co-operative.

It is impossible to say that such a finding was not open to the Tribunal. It had the opportunity of seeing and hearing Mr Hamilton. The considerations referred to by Davies and Ryan JJ in Strickland's Case (supra) had a direct relevance to the assessment made by the Tribunal of the factual reasons for the resignation by Mr Hamilton from the board. The finding to which it came was, in my view, reasonably open to it.

I emphasise that nature of an appeal to this court

is not one of merit review, but is concerned with whether the proceedings and the conclusion to which the Tribunal came is attended by legal error. No such error has been demonstrated in the circumstances of this case and the application is refused.

The order that I make is that the application be diemissed with costs, to be taxed if not agreed.

I cert i fy t h a t the 13 preced ing pages a r e a

t r u e c o p y o f the reasons f o r judgment h e r e i n

o f his Honour J u s t i c e J.\Em Spender .

/- ,

Date: 1 November 1991

Counsel f o r the a p p l i c a n t : M r . P . F . Dooley

S o l i c i t o r s f o r the a p p l i c a n t : P r i c e & Roobottom

Counsel f o r the re sponden t : M r . W . V. V i t a l i

S o l i c i t o r s f o r	the	respondent8	A u s t r a l i a n	G o v e r n m e n t
S o l i c i t o r
Date o f Hearing:	1 November 199 1