ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
LESLIE ARTHUR HENDY APPLICANT
AND:
REPATRIATION COMMISSION RESPONDENT
JUDGE:
MADGWICK J
DATE:
10 MAY 2002
PLACE:
SYDNEY
CORRIGENDUM
In the Orders and Reasons for Judgment of the Honourable Justice Madgwick dated 10 May 2002 please amend the following:
1.In Order 4, at the end of the Order insert the words “, other than for attending to receive judgment”.
2.In paragraph numbered 19, on the seventh line delete “[38]” and insert “[39] and [40]”.
3.In paragraph numbered 62, on the eighth line delete “[18]” and insert “[19]” and on the tenth line delete “[40]” and insert “[41]”.
I certify that the preceding paragraph is a true copy of the Corrigendum herein of the Honourable Justice Madgwick
Associate:
Dated: 13 May 2002
FEDERAL COURT OF AUSTRALIA
Hendy v Repatriation Commission [2002] FCA 602
VETERANS AFFAIRS – application for review of decision of the Administrative Appeals Tribunal (“the Tribunal”) – applicant suffered from a number of war-caused and non war-caused diseases and illnesses – applicant ceased employment – whether in assessing applicant’s eligibility for a Special Rate pension Tribunal erred in not looking at why applicant ceased last employment – whether evidence before Tribunal that applicant was seeking employment – whether evidence before Tribunal that applicant not able to do remunerative work of the type he had previously been engaged in – failure to give proper, genuine and realistic consideration to issue may be an error of law – need for Tribunal to explain reasoning process.
WORDS & PHRASES – “remunerative work that the veteran was undertaking”
Veterans’ Entitlements Act 1986 (Cth), ss 15, 24(1)(c), 24(2)(b)
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Hendy v Repatriation Commission [2002] FCA 602
Case
[2002] FCA 602
Decision Date
CaseChat Overview and Summary
The case of Hendy v Repatriation Commission involved the applicant, who was appealing a decision made by the Administrative Appeals Tribunal (AAT) regarding his eligibility for a pension under the Veterans' Entitlements Act 1986. The Tribunal had rejected the applicant's claim for the Special Rate pension, which is applicable for veterans who are incapacitated from war-caused injury or disease, and unable to undertake remunerative work. The applicant argued that the Tribunal had erred in its findings and that there was insufficient evidence to support its decision. The legal issues that the court had to address were whether the Tribunal correctly interpreted and applied the relevant sections of the Act and whether the Tribunal's findings were supported by evidence and were reasonable.
The court examined the statutory provisions and noted the distinct concepts of being "incapable of undertaking remunerative work" and being "prevented from continuing to undertake remunerative work." It found that the Tribunal had correctly identified the two concepts but had incorrectly applied them. The court also found that the Tribunal's findings were not supported by evidence and were unreasonable. The court highlighted that the Tribunal had failed to consider the applicant's vocational, trade, and professional skills and qualifications, as well as the types of work a person with such skills and experience could perform. Additionally, the Tribunal had not considered the impact of labour market forces, age, and lack of experience on the applicant's ability to find employment. The court concluded that the Tribunal had erred in law and that its decision was unreasonable.
As a result of the court's findings, the appeal was allowed, and the decision of the AAT was set aside. The matter was remitted to the AAT, differently constituted, for determination according to law. The respondent was ordered to pay the applicant's costs up to and including 30 March 2001, while the applicant was ordered to pay the respondent's costs after that date.
Orders
Orders of the court
1. The appeal be allowed.
2. The decision of the Administrative Appeals Tribunal of 28 November 2000 be set aside and the matter be remitted to the Administrative Appeals Tribunal, differently constituted, for determination according to law.
3. The respondent pay the applicant’s costs up to and including 30 March 2001.
4. The applicant pay the respondent’s costs after 30 March 2001.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
As to this second ground of appeal, the respondent submitted that the applicant gave no evidence of having made any attempt to engage in remunerative work after August 1996. In the circumstances the Tribunal could not have erred in failing to apply s 24(2)(b) as there was no material which would support a contention that s 24(2)(b) had any application to the case before the Tribunal.(iii) lack of evidence/unreasonableness The third ground for review was that the Tribunal erred in finding that it was not the applicant’s accepted psychiatric disabilities alone which prevented him from continuing to engage in the relevant remunerative work. It was submitted for the applicant that the Tribunal had incorrectly reproduced Dr Hession’s evidence as to the applicant’s capacity to work as a truck driver and that there was no evidence before the Tribunal capable of supporting the Tribunal’s finding that labour market forces would prevent the applicant from working as a truck driver. Secondly, the Tribunal misdirected itself as to what was the relevant period of time for determining whether absence from the workforce was an operative cause by adopting Dr Hession’s figure of four to five years. It was unreasonable to take into account the time that had passed since the applicant last performed a cellarman’s duties as the applicant had been in alternative employment for the succeeding nine and a half years. Thirdly, it was claimed that there was no evidence to support the Tribunal’s conclusion that the applicant’s knee problem prevented him from working. Finally, the Tribunal purported to agree with Dr Hession that labour market forces would operate to prevent the applicant from gaining employment, yet only adopted the time that had passed since he last performed cellarman duties and ignored questions of age and lack of experience, the other two factors said by Dr Hession to constitute labour market forces. In response, the respondent submitted that there was evidence to support all the findings made by the Tribunal or that they were findings of fact open to the Tribunal which could not be said to be findings that no rational person, properly understanding his or her duty, could make.Scope of remunerative work to be considered It is a preliminary and elementary observation that, by using the phrase “prevented from continuing to undertake remunerative work that the veteran was undertaking” in s 24(1)(c), the framers of the Act meant something quite different from the phrase “incapable of undertaking remunerative work” s 24(1)(b) and the statutory exegesis of that latter phrase in s 28 This point, though elementary, seems worth making both because it is not easy to bear in mind that the decision-maker needs to consider two quite distinct concepts in relation to remunerative work, and because the distinction between the two concepts sharpens an appreciation of the features of each. It seems to me that if:(1)the veteran satisfies s 24(1)(b), that is, the veteran is, as it were, intrinsically totally and permanently incapacitated for significant amounts of work;(2)the veteran can fairly be said to have been actually undertaking remunerative work;(3)the veteran is prevented from continuing to undertake that work by incapacity from war-caused injury and/or disease; and(4)there is no other factor preventing the veteran from continuing to undertake that work;then, subject to proof of a loss of earnings thereby (proof affected by s 24(2)(a)), the veteran has satisfied s 24(1)(c) and established a right to the Special Rate of pension. In such a case, the Flentjar questions (see [23] above) are capable of ready and appropriate answers.
Decision
Reasons for decision
MADGWICK J
Section 28 provides:“In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b) [they are, except for the number of hours per week, in the same terms], whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only: (a)the vocational, trade and professional skills, qualifications and experience of the veteran; (b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and (c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).”The Tribunal’s decision The substantial factual issues debated before the Tribunal by the parties were: ·whether the applicant’s alcoholism was comprehended within the accepted disability of PTSD; ·whether that condition was “the only cause” of his inability to undertake remunerative work (this appears to indicate some misunderstanding of ss 23(1)(b) and 24(1)(b) – see [19], [21], [34] and [35] below), and·whether the s 24(1)(c) (or s 23(1)(c)) requirements were met. The Tribunal set out the criteria involved in determining a person’s eligibility for the Intermediate Rate (under s 23(1)) or Special Rate (under s 24(1)). For present purposes, the issues are identical under the two sections. It will be convenient only to deal with s 24. Noting that the applicant satisfied most of those criteria, the Tribunal set out the live issues which it needed to address as being:“1.Are Mr Hendy’s accepted disabilities of such a nature as, of themselves alone, to render him incapable of undertaking remunerative work for at least [technically, the test should be “for more than …”, but the misstatement is quite immaterial] either eight or twenty (s 23(2)(b)) hours a week?5.Do Mr Hendy’s accepted disabilities alone prevent him from continuing to undertake remunerative work that he was undertaking causing a loss of income he would otherwise be receiving?” In relation to the first issue, after noting that it needed to refer to s 28 for a “statutory methodology” in addressing the issue, the Tribunal found that the applicant’s relevant vocational, trade and professional skills and qualifications and experience were in clerical work, administration, labouring and driving. The Tribunal then considered what kind of work a person with such skills, qualifications and experience could perform. The Tribunal accepted the evidence of Drs Baz (an occupational physician qualified by the applicant’s solicitors) and Hession (a medico-legal consultant engaged by the respondent) that the applicant would be suitable to engaging in courier work, cellarman duties and light storeman duties.