Hill v Repatriation Commission

Case [2000] FCA 929

FEDERAL COURT OF AUSTRALIA
Hill v Repatriation Commission [2000] FCA 929

ADMINISTRATIVE LAW – Application for review of decision of Administrative Appeals Tribunal – Veterans’ entitlements – Veteran left civilian employment in 1989 allegedly because of war-caused disabilities - Repatriation Commission later accepted that veteran suffered some war-caused disabilities – 1993 decision of AAT awarding veteran pension at Intermediate Rate - Application now made for Special Rate pension – In 2000 AAT found total and permanent incapacity (that is, inability to work more than eight hours per week) but refused application because it was not satisfied that veteran suffered economic loss – Whether Tribunal erred in law in considering only whether the veterans’ position, in relation to economic loss, had deteriorated since 1993 – Whether the Tribunal erred in law in regarding a dog breeding activity of the veteran as a mere hobby and irrelevant in relation to economic loss.

Veterans Entitlements Act 1986, ss23(1)(c) and 24.

ALLAN CLAUDE HILL v REPATRIATION COMMISSION

N166 of 2000

WILCOX J
SYDNEY

11 JULY 2000


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N166 of 2000

BETWEEN:

ALLAN CLAUDE HILL
Applicant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

WILCOX J

DATE OF ORDER:

11 JULY 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be granted and the decision of the Administrative Appeals Tribunal dated 3 February 2000 be set aside.

2.The matter be remitted to the Administrative Appeals Tribunal for redetermination according to law.

3.The respondent, Repatriation Commission, pay the costs of the proceeding incurred by the applicant, Allan Claude Hill.

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

N166 of 2000

BETWEEN:

ALLAN CLAUDE HILL
Applicant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

WILCOX J

DATE:

11 JULY 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. WILCOX J:  This application is brought to the Court by Allan Claude Hill, by way of appeal against a decision of the Administrative Appeals Tribunal. The right of appeal is limited to appeal on a question of law: see s44 of the Administrative Appeals Tribunal Act1975. Mr Hill argues that the Tribunal  made two errors of law in considering an application made by him under the Veterans’ Entitlements Act 1986.  The Repatriation Commission appears to support the Tribunal’s decision.

    The background facts

  2. Mr Hill was born on 10 February 1936.  He served in the Royal Australian Air Force for some 20 years (1958 to 1978).  Following his discharge he was employed for 11 years in a civilian capacity by the Department of Defence.  He worked at the Guided Weapons and Electronic Support Facility at St Marys near Sydney.  He was retrenched from that employment on 28 March 1989.  Mr Hill claims that he accepted the Department’s offer of retrenchment because of various physical disabilities, which he describes as “war-caused”.

  3. Immediately after leaving the Department of Defence, Mr Hill applied for a pension under the

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AGLC
Hill v Repatriation Commission [2000] FCA 929
Case
[2000] FCA 929
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Hill v Repatriation Commission concerned a veteran's application for a Special Rate pension based on total and permanent incapacity due to war-caused disabilities. The Administrative Appeals Tribunal (AAT) had previously awarded the veteran a pension at the Intermediate Rate in 1993 and denied the Special Rate pension in 2000, finding that the veteran had not suffered economic loss. The veteran appealed to the Federal Court to challenge the AAT's decision, arguing that the Tribunal had erred in its consideration of economic loss and its characterisation of his dog breeding activities as a mere hobby.

The key legal issues before the court were whether the AAT erred in law by considering only whether the veteran's position in relation to economic loss had deteriorated since 1993, and whether the AAT erred in law by regarding the veteran's dog breeding activity as a mere hobby and irrelevant in relation to economic loss. The court was required to determine whether the AAT's approach to assessing economic loss and its interpretation of the veteran's dog breeding activities as non-remunerative work were in accordance with the applicable legislation and judicial precedents.

The court held that the AAT did not err in its consideration of economic loss, as the focus should be on whether the veteran's position had deteriorated since the 1993 decision. Regarding the dog breeding activities, the court found that the AAT was not bound by any rigid "test" for determining what constitutes remunerative work, and its findings that the activity was merely a hobby were supported by the evidence. The court concluded that the AAT's decision was not affected by any error and was open to the Tribunal based on the evidence presented.

The court ordered that the application be granted, the AAT's decision dated 3 February 2000 be set aside, and the matter be remitted to the AAT for redetermination according to law. Additionally, the Repatriation Commission was ordered to pay the costs of the proceeding incurred by the applicant, Allan Claude Hill.

Orders

Orders of the court

1. The application be granted and the decision of the Administrative Appeals Tribunal dated 3 February 2000 be set aside.

2. The matter be remitted to the Administrative Appeals Tribunal for redetermination according to law.

3. The respondent, Repatriation Commission, pay the costs of the proceeding incurred by the applicant, Allan Claude Hill.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WILCOX J
In relation to the dog breeding activity, Ms Henderson submitted it was open to the Tribunal , on the evidence, to regard this activity as a mere hobby and not “remunerative work” within the meaning of s24(1)(c) of the Act. She contended that it is inaccurate to see Sheehy, either at first instance or on appeal, as laying down a “test” for determination of what constitutes remunerative work. In any event, Ms Henderson said, adoption of the words used in the Full Court in Sheehy would have produced the same conclusion as that reached by the Tribunal.Conclusions: the dog breeding activities It is convenient to deal first with the contentions regarding the Tribunal’s treatment of the evidence about Mr Hill’s dog breeding activities. It is unfortunate that the Tribunal was apparently unaware that the decision of Sackville J in Sheehy had been considered by a Full Court and the Full Court had expressed itself in somewhat different language. However, I agree with Ms Henderson that neither Sackville J nor the Full Court intended to lay down an immutable “test” as to what might constitute “remunerative work” within the meaning of s24(1)(c) of the Act. I also agree with her that, even if the Full Court did prescribe a test that must be applied to this case (namely, the formula “the ‘remunerative work …’ must have been ‘performed’ or ‘successfully undertaken’ or ‘effectively undertaken’”), the Tribunal’s findings dispose of the notion that the dog breeding activity undertaken by Mr Hill passed that test, and was “remunerative work” within the meaning of s24(1)(c). The Tribunal found the dog breeding plan “did not properly commence operation” and was “merely a hobby that produced some very limited income for him”. On the evidence, it was clearly open to the Tribunal to make these findings. If the finding were affected by any error, it was that they stated the effect of the evidence in a manner unduly favourable to Mr Hill; although the dog breeding brought in some income, this was outweighed by the attendant costs. Far from being remunerative, the activity was costly to Mr Hill. There may be cases where an activity in which a veteran engaged failed to return a net profit to the veteran, but may nonetheless be regarded as “remunerative work” for the purposes of s24(1)(c). One example may be a case where the veteran attempted to establish himself or herself in a particular activity, being a continuation of remunerative work previously undertaken by the veteran, but was denied success by his or her war-caused disability. If the decision maker was satisfied that the attempt would have been successful, in the sense of providing “earnings on his or her own account” – that is, net earnings after deduction of expenses – but for the war-caused disability, I see no difficulty about concluding that the veteran has been prevented, by the war-caused disability, “from continuing to undertake remunerative work that the veteran was undertaking” and, by reason thereof, has suffered a loss of earnings on his or her own account.

Ratio Decidendi

Legal Principle Established

Established by: WILCOX J

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