Hendy v Repatriation Commission

[2003] HCATrans 358

[2003] HCATrans 358

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S38 of 2003

B e t w e e n -

LESLIE ARTHUR HENDY

Applicant

and

REPATRIATION COMMISSION

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 SEPTEMBER 2003, AT 9.50 AM

Copyright in the High Court of Australia

MR G.A. FLICK, SC:   If your Honours please, I appear with MR M.G. VINCENT for the applicant.  (instructed by Dibbs Barker Gosling)

MS R.M. HENDERSON:   If the Court pleases, I appear for the respondent.  (instructed by Australian Government Solicitor)

GLEESON CJ:   Yes, Dr Flick.

MR FLICK:   Your Honours, this application involves an even shorter point.  What is in issue is the entitlement of veterans who are the most severely incapacitated of our veterans to a rate of pension.  Pensions, generally speaking, are general rate, intermediate rate and a so‑called special rate.  The entitlement to the special rate depends upon a statutory provision which has the words in it:

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 –

The legislation specifically tries to confine the ambit of an entitlement by reference to an “injury” and directs inquiry to whether that injury alone prevents a veteran from continuing to undertake remunerative work.

GUMMOW J:   Is the relevant section set out at page 5 of the application book?

MR FLICK:   Yes, your Honour.  Your Honours will see that the ‑ ‑ ‑

GUMMOW J:   Perhaps if you could just explain to us by reference to the text how the problem arises.

MR FLICK:   Certainly, your Honour.  The Tribunal has before it evidence of a medical nature and also has commonly before it evidence as to availability of work, which directs attention to work employment rates and things like that in the region where the veteran lives.  What the Tribunal does is to look through the medical evidence under 23 or 24(1)(b) and asks itself the question:  looking at the accepted war‑caused injuries, do those injuries of themselves alone, free of any other consideration, render the veteran incapable of undertaking remunerative work?

GLEESON CJ:   Or does it mean:  is the war‑caused injury all that is preventing the veteran from continuing to undertake work?  Are they the competing points of view?

MR FLICK:   Yes.  When it gets to paragraph (c), what the Tribunal does is to say, “These are the war‑caused injuries, but are they the only factors which prevent the veteran from satisfying subparagraph (c)?”  The way in which the Full Court has consistently approached the matter is to follow the decision of the Full Court of the Federal Court in a case called Flentjar, which is set out in the application book at pages 63 to 64.  If I can invite your Honours to look at that, what the Tribunal does, consistently with this decision of the Full Court, is that it asks itself:

1.  What was the relevant “remunerative work that the veteran was undertaking” . . . 

2.  Is the veteran, by reason of war-caused injury . . . or both, prevented from continuing to undertake that work?

Then the error, as we see it, emerges in questions 3 and 4:

3.  If the answer to question 2 is yes, is the war-caused injury or war‑caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?

4.  If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss ‑ ‑ ‑

GLEESON CJ:   To take an example that has nothing to do with the facts of the present case, how does that legislation work if what is preventing the veteran from undertaking the work is or includes unavailability of the work?  Suppose, for example, the veteran is a person who worked in a horseshoe‑manufacturing factory and the consequence of changes in technology produced the result that there just was no work of that kind available.  How does the section operate on that?

MR FLICK:   We say that that is an irrelevant inquiry to paragraphs (b) and (c).  So that if, for example, a veteran who is a labourer, and that is his only qualification, suffers an injury whilst in active service of having limbs blown off, for example, both legs blown off, we would say that the way in which the legislation operates is to ask the question:  is that injury alone sufficient to prevent the veteran from working?  If the answer to that question is yes, that is the beginning and end of the inquiry.  It does not matter that that veteran would also be in an area having large unemployment.  It does not matter if that veteran is in an area where for other reasons he cannot get employment.

GLEESON CJ:   And it does not matter if the veteran has been run over by a bus and cannot use his arms now?

MR FLICK:   No.  We would say you can take two different sets of circumstances.  You can take my example of the veteran who has his legs blown off in active service.  If his only qualification to work is that of a labourer, the answer would be in all cases yes; the injury alone would be sufficient to prevent him from undertaking work.  If you had a barrister who was in active service and suffered the same injuries, the answer to the question may well be the reverse, namely, the war‑caused injuries alone do not prevent him from undertaking the work.

GLEESON CJ:   So that if he had both his legs blown off in active service and then five years later had contracted a serious and incurable disease, the disease is irrelevant?

MR FLICK:   Yes.  The substitution, we say, by the Full Federal Court for the word “only” for the word appearing in the statute, namely “alone”, is where the error has crept in.  That affects not only all veterans at the special rate.  The same language, namely “alone”, also appears in those provisions directing attention to the intermediate rate of pension.  It is an important question because of the general application of it.

GUMMOW J:   What do you say is the force of the word “alone” as it appears in paragraph (c)?

MR FLICK:   We say it is directing attention to the injury and the injury alone and it directs the factual inquiry looking at that injury or disease, but confining it to injury.

GLEESON CJ:   Perhaps we ought to understand a little better the concept of a special rate.  This does not go to the question whether the veteran is entitled to receive an amount of money?

MR FLICK:   No.

GLEESON CJ:   It goes to the rate?

MR FLICK:   To the amount.

GLEESON CJ:   What is that special rate for?

MR FLICK:   They are set out, your Honour, quite conveniently in the judgment of the trial judge, I think it is, at page 34 of the application book.  The Full Court set out the provisions in other respects, namely, you can make an application for an increase in payment and the like.  It is the trial judge at page 34 which sets out the general rate of $216, then there is the intermediate rate and then there is the special rate and your Honours can see the increasing figures applying to each of those different rates.  It is best set out in the Full Court ‑ ‑ ‑

GLEESON CJ:   This issue must have been around for a long time, Dr Flick.

MR FLICK:   It has.

GLEESON CJ:   This must arise every time somebody suffers an injury on active service and then later suffers some additional kind of injury or illness or is the victim of some circumstance that is itself such as to prevent working.

MR FLICK:   Yes.  To pursue that thought a bit further, if one goes back through the Full Court decisions – and we have made reference to another Full Court decision in Starcevich – one finds this repetition of the statutory requirements in terms of “Is this the only matter which prevents the veteran from working?” repeatedly set forth with no suggestion that it is wrong.  What is put against us, of course, is its statutory construction.  It has been addressed by the Full Court and repeatedly resolved in the way in which it is set out here.

GLEESON CJ:   I suppose part of the reasoning of the Full Court, if you go back to page 5 and look at the text of the statute, is that it does not ask whether the veteran would, by reason of incapacity from war‑caused injury alone, be prevented; it asks whether the veteran is, by reason of that incapacity alone, prevented.  Your construction seems to address a hypothetical situation.

MR FLICK:   Yes, and all Full Court decisions say that what the section invites is a hypothetical question.

GLEESON CJ:   But the Full Court does not accept that it invites the question whether the veteran would, by reason of that incapacity alone if there were no other supervening circumstance, be prevented.

MR FLICK:   We accept that.  The argument would be easier if the word “would” was there rather than “is”.  The construction which we are urging, we would contend, is supported by the object and purpose of the Act, namely, does the Veterans’ Entitlements Act really invite a more wide‑ranging inquiry as to social conditions, or is it confined simply to an inquiry as to the war‑caused injuries and what a veteran has suffered?

The example that we have given and the Chief Justice exposes by different permutations of it, we say, only works our way because it is directing attention to how severely incapacitated or injured was a veteran. 

If he is suffering an injury or an incapacity to the extent that by reason of those injuries alone he cannot do something, that is all that a veteran has to satisfy to get the rates of pension set out in the legislation.  What the Veterans’ Entitlements Act is directing attention to is the war injuries, not the social conditions.

Your Honours, that is the point involved in the special leave application.  We accept that it is undoubtedly statutory construction, but we say it is very important.

GLEESON CJ:   Thank you.  Yes, Ms Henderson.

MS HENDERSON:   Your Honours, section 24 begins with a condition which requires the veteran – I am looking in particular at page 5 at 24(1)(a)(i) – already to be in receipt of a finding that he or she is entitled under 21A to be a 70 per cent pension recipient.  That touches on a different area of the Act, your Honours, which I will explain briefly.  The legislation provides in the first instance that a veteran who is incapacitated by war‑caused injury or disease should be entitled to something called the general rate pension.  That pension is paid at increments commencing at 10 and going to 100 per cent.  An individual may be receiving a 100 per cent general rate pension and still be in full‑time employment.  Indeed, your Honours, I understand there is a member of the Sydney Bar who was in that position.

However, the intermediate and special rates which are provided for in the Act deal with a different issue, which is whether there is economic loss, if I may use a phrase from another area of inquiry, occasioned by reason of the war‑caused injury or disease.  The position is that the special rate, which is an additional higher pension than the general rate, is payable in circumstances where the incapacity from war‑caused injury or war‑caused disease alone, meaning as the only causal factor, is producing an economic loss for the veteran.  That is the burden of the section and of the similar section in relation to intermediate rate.  The function of the word “alone”, in our submission, is quite plain and clear.  It means that this must be the sole and only cause of the economic loss which the veteran is sustaining.

In the Flentjar decision, which was the subject of a special leave application before this Court, which failed with the Court saying they felt there was no error in Flentjar sufficient to warrant special leave, the members of the Court agreed with Justice Branson’s analysis of the various elements of section 24(1)(c).  Your Honours will see that the Tribunal in this particular case followed her Honour’s analysis.

GLEESON CJ:   Ms Henderson, how long has this legislation been in this form?

MS HENDERSON:   The special rate first appeared in the 1920 Act, which was the original veterans legislation, first known as the Australian Soldiers’ Repatriation Act and then as the Repatriation Act.  In about 1985 legislation in the terms which your Honours are now looking at was inserted into the old 1920 Act and then carried forward when that Act was repealed and replaced by the current Act.

GLEESON CJ:   This issue must have been around for a long time.

MS HENDERSON:   It has, your Honour, and the argument offered by our learned friends is entirely novel.  The concept that “alone” does not mean what has been accepted since 1985 as meaning ‑ ‑ ‑

GUMMOW J:   What did Starcevich say?

MS HENDERSON:   Starcevich did not touch on “alone”, your Honour.  At the bottom of page 225 in the decision – I believe my learned friends have supplied your Honours with a copy ‑ ‑ ‑

GLEESON CJ:   Yes, behind tab 4.

MS HENDERSON: Do your Honours have 18 FCR 221?

GUMMOW J:   Yes.

GLEESON CJ:   Yes.

MS HENDERSON:   If your Honours go to the bottom of page 225 in the judgment of Justice Fox, his Honour says this in the last sentence:

the passage of time from the cessation of the work upon which reliance is placed to the veteran’s complete retirement may mean that the other requirement of s 24(1)(c), namely that the veteran’s war‑caused injury or disease alone prevents him from undertaking the remunerative work upon which his claim is based, is not satisfied, but this is a different matter, and one which does not arise here.

GLEESON CJ:   It is the first sentence of that paragraph, is it not, that states it most clearly?

MS HENDERSON:   Yes, your Honour, it does.  I took your Honours only to that sentence in order to make clear that the “alone” requirement, if I may

call it that, did not arise.  The reason that neither of the majority judges, Justice Fox and Justice Jenkinson, had to deal with “alone” was because there was an unchallenged finding reproduced back at page 223 at about point 4 by the Tribunal that if the proper view of “remunerative work” was that Mr Starcevich was a farmer, the “alone” test was satisfied.

GLEESON CJ:   What was the point of departure between the majority and Justice Neaves?

MS HENDERSON:   His Honour accepted the arguments of the Repatriation Commission that the remunerative work a veteran was undertaking was the last work done by the veteran.  That means the last type of work, not the specific job.  He had worked as a farmer, your Honours, and then been obliged to give up that occupation by reason of war‑caused problems and had moved into a salaried position which then forced him into retirement on a fixed retirement date.  That meant the “alone” test was not satisfied in respect to the second job.

GLEESON CJ:   Thank you, Ms Henderson.  Yes, Dr Flick.

MR FLICK:   Your Honours, only two short points if I may.  One is that the fact that special leave has previously been refused in Flentjar, we say, is of no obstacle to us in that a very cursory reading of the transcript behind tab 3 indicates that the issue which we now wish to advance was not an issue either pursued by the applicant on that application or addressed by the Court.

Secondly, to go back to a question raised by Justice Gummow, if the Court looks at pages 23 and 24 of the application book, at the bottom of page 23 the Tribunal was addressing the facts and the evidence, including the medical evidence, before it and concludes in paragraph 82:

The Tribunal therefore answers the question posed as issue 1 in the affirmative and finds that Mr Hendy satisfied s 24(2)(b) of the Act in that his accepted disabilities alone prevent him from undertaking any remunerative work for eight or more hours a week.

There is the finding which we say is the correct construction of the word “alone”.  It looks exclusively to the war‑caused injuries and asks:  do they alone prevent the work?  The answer to that question is yes.

The Tribunal then on page 24 goes into the Flentjar test and, even though the same form of words appears in paragraphs (b) and (c), namely “alone”, they answer the question by reference to different criteria, namely, is it the only factor?  We say there is no self‑evident reason why the word “alone” in paragraph (b) means to look at the injuries alone in their own

right and why the word “alone” in paragraph (c) invites a different factual inquiry.  We are grateful to your Honours.

GLEESON CJ:   We think that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this matter and the application is refused with costs.

AT 10.13 AM THE MATTER WAS CONCLUDED