Jackman v Repatriation Commission

[1997] FCA 564

CATCHWORDS

ADMINISTRATIVE LAW - appeal from decision of the Administrative Appeals Tribunal (“the AAT”) that applicant not eligible for special rate of pension - whether AAT failed to provide an adequate statement of reasons - whether AAT decision based on finding that there was an intervening event or condition - whether decision so unreasonable that no reasonable decision maker could have so decided - whether AAT applied the correct standard of proof

Veterans’ Entitlements Act 1986 (Cth), s 24(1)(c)
Administrative Appeals Tribunal Act 1975 (Cth), s 43(2B)

Repatriation Commission v Smith (1987) 15 FCR 327, cited
Banovich v Repatriation Commission (1986) 69 ALR 395, cited
Cavell v Repatriation Commission (1988) 9 AAR 534, applied
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, considered
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, cited
Repatriation Commission v Wilson (1996) 43 ALD 77, cited
Repatriation Commission v Braund (1991) 23 ALD 591, cited
Copperart Pty Ltd v Commissioner of Taxation (1993) 13 ATC 4779, cited
Commissioner of Taxation v Osbourne (1990) 26 FCR 63, cited

TERENCE WILLIAM JACKMAN - v - REPATRIATION COMMISSION

No NG 521 of 1996

Tamberlin J
Sydney
30 June 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)     No. NG 521 of 1996
)
GENERAL DIVISION	)

BETWEEN:		TERENCE WILLIAM JACKMAN Applicant
AND:		REPATRIATION COMMISSION Respondent
CORAM:	TAMBERLIN J
PLACE:	SYDNEY
DATED:	30 JUNE 1997

MINUTE OF ORDERS

The Court orders that the application be dismissed with costs.

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	)     No. NG 521 of 1996
)
GENERAL DIVISION	)

BETWEEN:		TERENCE WILLIAM JACKMAN Applicant
AND:		REPATRIATION COMMISSION Respondent
CORAM:	TAMBERLIN J
PLACE:	SYDNEY
DATED:	30 JUNE 1997

REASONS FOR JUDGMENT

TAMBERLIN J:

Introduction

This is an appeal, pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), from a decision of the Administrative Appeals Tribunal (“the AAT”) that the applicant does not satisfy s 24(1)(c) of the Veterans’ Entitlements Act 1986 (“the Act”) and is therefore not eligible for a special rate of pension.

Background

The applicant was born on 6 June 1922. He is a war veteran and suffers from a number of war-caused disabilities, these include ischaemic heart disease and an anxiety state. The applicant has been in receipt of a disability pension since 1967 and a service pension since he was 60 years of age.

In October 1981 the applicant suffered a severe heart attack and was on sick leave until early 1982. Prior to this he had been working full-time as a secretary of the Queensland Confederation of Industry. In April 1982, shortly after returning to work, he obtained employment as a full time Secretary Manager of the Queensland Nursery Industry Association. The applicant had been advised by his general practitioner, Dr Shepherd, and his cardiologist, Dr Wilkinson, that he should slow down at work and should seriously consider retiring. The applicant considered that the job with the Nursery Industry Association would be less stressful than his job with the Confederation of Industry. However, his hours of work soon increased and in March 1983, due to health concerns, he retired. The applicant has not worked since that time.

The applicant alleges that were it not for his war-caused disabilities he would have continued working and that there was no other reason for ceasing work in 1983.

Application for increase in disability pension

On 5 May 1994 the applicant lodged an application with the Department of Veteran’s Affairs for an increase in his disability pension from 90 per cent of the general rate. The respondent, the Repatriation Commission, refused the application on 21 October 1994. The decision of the respondent was set aside by the Veterans’ Review Board on 19 April 1995. The Board determined that the rate of his disability pension be assessed at 100 per cent of the general rate as from 5 May 1994. However, the Board found that the applicant did not qualify for the special rate of pension.

The applicant appealed from this decision on 21 June 1995 to the AAT. The only question before the AAT was whether the applicant was entitled to the special rate of pension. There is a significant difference between the two rates. At the time of the application the general rate of pension was $394.50 per fortnight: s 23(4); whilst the special rate was $571.70 per fortnight: s 24(4). The AAT affirmed the decision of the Veterans’ Review Board on 30 May 1996, finding that the applicant was not eligible for the special rate. The applicant appealed to this Court on 26 June 1996.

Relevant legislation

To be eligible for the special rate of pension an applicant must satisfy the criteria in s 24(1):

“24(1) This section applies to a veteran, other than a veteran to whom section 25 applies, if:

(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 per cent 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;

(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. (emphasis added)

(2) ...

It was accepted before the AAT that the applicant satisfied the criteria in s 24(1)(a) and (b). The only issue was whether he satisfied s 24(1)(c).

The AAT proceedings

Before the AAT it was submitted that the only reason the applicant retired was because of his war-related medical condition and that he had done so acting on medical advice. He stated that there was no other reason for retirement. The applicant had no superannuation and therefore would have preferred to continue working. His area of work did not have any policies or practices that required retirement at a specific age. It was submitted that the same circumstances regarding his health applied in 1994, the relevant date for assessment, as in 1983. It was said that when these factors were taken into consideration the applicant satisfied s 24(1)(c).

The respondent submitted that the applicant did not satisfy the “alone test” under s 24(1)(c). The respondent argued that the applicant had envinced an intention to retire to the Central Coast of New South Wales and a desire to be near his children who lived in Sydney. The applicant owned his own home; had no dependents (apart from his wife); had some savings in a bank account, and was in receipt of two pensions. Although the evidence supported a conclusion that the applicant, at the time of retirement, would have continued working but for his health, it did not justify a conclusion that the applicant would have continued working beyond 65 years of age. Moreover it did not justify a conclusion that the applicant would have continued working for another eleven years to 1994 at which time he would have been 71 years old.

In considering the application of s 24(1)(c) the AAT observed that, pursuant to s 120(4) of the Act, it must decide the matter to its reasonable satisfaction, a standard which equates with proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327. It also noted that the expression “remunerative work that the applicant was undertaking” is a reference to the type of work which the applicant previously undertook and not to a particular job: Banovich v Repatriation Commission (1986) 69 ALR 395 at 402.

The AAT identified the critical question as being whether the applicant met the “alone test” in s 24(1)(c). In addressing this question it expressly adopted the comments of Burchett J in Cavell v Repatriation Commission (1988) 9 AAR 534 at 539. That is, the task of the AAT is:

“... to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality and is a matter in respect of which common sense is the proper guide.”

The AAT found that the applicant retired in 1983 due to his war-caused disabilities. However, it was also necessary for the applicant to demonstrate that as at the date of application, namely 5 May 1994, his war-caused disabilities alone prevented him from continuing in remunerative employment.

In determining this issue the AAT considered the applicant’s sworn evidence that he would still be working but for his war-caused disabilities. It found that there was evidence to support the applicant’s contention that there were no age restrictions on employment in his field of remunerative work. The AAT then stated that it must also:

“consider the applicant’s evidence in regards to his retirement intentions, his financial position and his family needs and circumstances. The Tribunal notes that at the time of assessment, 5 May 1994, the applicant was one month short of his 72nd birthday and had, in fact, been absent from the work place since 1983.” (par. 28)

The AAT concluded that:

“it is speculative to say that but for his war-caused disability, the applicant would be still working in the type of remunerative activity he was undertaking when he retired. In particular the Tribunal notes the applicant’s evidence that he had always intended to retire and that he wished to be near his family. The Tribunal simply cannot be reasonably satisfied, that the applicant would still be engaged in remunerative work as at 5 May 1994.” (par. 29) (Emphasis added)

Accordingly the AAT found that it could not be satisfied, on the balance of probabilities, that the applicant’s war-caused disabilities, alone, were the reason for the applicant not being engaged in remunerative work.

Grounds of review

The applicant identified two questions of law in its Amended Notice of Appeal:

1. Whether the AAT failed to fulfil its duty under s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) to provide an adequate statement of reasons.

   The applicant submits that this ground of review can also be characterised as the making of an unreasonable decision in the Wednesbury sense.

2. Whether the AAT erred in its construction and application of s 24(1)(c) of the Act in concluding that it was not reasonably satisfied that the applicant met these requirements at the later date, when it found them to be met at the earlier date.

In essence this submission is that the AAT did not apply the correct standard of proof.

The applicant’s written submissions also raised a third issue, that there had been a constructive denial of jurisdiction. However, this was not pressed at the hearing.

Adequacy of reasons

Section 43(2B) of the AAT Act provides:

“Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based”.

The applicant’s principal submission under this ground is that:

“By concluding that the Applicant satisfied the ‘alone’ test at the date of retirement (1983) and also concluding that the Applicant did not satisfy the ‘alone’ test at the application date (1994) then the Tribunal  must have found that some non-war service event or condition had occurred between the two dates.

The Tribunal’s reasons do not specify whether any of the evidence it took into account was that event or condition. The reader is left wondering what was the event or events, condition or conditions. Hence the Tribunal has failed to discharge its duty under subsection 43(2B) of the Administrative Appeals Tribunal Act 1975.”

This submission cannot be accepted. It imposes a gloss which narrows, without any justification, the language of s 24(1)(c). That paragraph makes no reference to intervening events or conditions.

The applicant argues that the use of the word “speculative” in par. 29 of the AAT’s reasons can be interpreted as the AAT stating that is was practically certain, that is over 99 per cent certain, that a non war-caused event had intervened. Given this interpretation, the error is that the AAT then failed to identify this event.

In support of this submission the applicant referred to the High Court decision in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638. In relation to the assessment of damages for future or potential events Deane, Gaudron and McHugh JJ observed at 643:

“If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages.”

The applicant submits that the corollary of the AAT stating that it would be speculative to say that the applicant would still be in remunerative employment is that the AAT was practically certain that there was an intervening event.

The applicant’s submission misconstrues the AAT’s approach. When the AAT used the word “speculative” it did so merely in the sense that it was not reasonably satisfied, as it was required to be, that the applicant came within s 24(1)(c). There was no finding, implicit in the reasons, that the AAT was “practically certain” that another event did or would have intervened.

The AAT did not refer to the High Court decision in Malec in using the expression “speculative”. There is no indication that it was using the word to mean that there was a less than 1 per cent chance that the applicant would still be working. Further, it would not have been appropriate for the AAT to base its approach on Malec. Whilst Malec relates to the consideration of hypothetical events the task of a court making an assessment of damages is quite different from the task of the AAT in the present case. The AAT had to determine, to its reasonable satisfaction, whether the applicant’s war-caused disabilities were the only reason for him not being in remunerative employment. Burchett J in Cavell stated that this determination is not to be made upon “nice philosophical distinctions”, equally it is not to be made upon complex calculations of the probability that an intervening event may have occurred. The approach is to be guided by commonsense with an “eye to reality”. The applicant’s approach is contrary to these observations.

To adopt the interpretation suggested by Counsel on the AAT’s use of the word “speculative” is also contrary to the recent decision of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 which warned against “over-zealous judicial review” of administrative decisions by a narrow reading of the language used by the decision maker.

Implicit in the applicant’s submission, on this ground of review, is the argument that a presumption of continuance should apply. That is that there should be a presumption, in favour of the applicant, that since the applicant satisfied the “alone test” at the date of retirement he continues to do so unless the contrary is established. To prove otherwise would in effect impose a burden on and require the AAT to identify an intervening cause or event.

A presumption of continuance is not appropriate to the determination the AAT has to make under s 24(1)(c). It is well accepted that the relevant date of assessment is the date of application, not retirement: Banovich v Repatriation Commission (1986) 69 ALR 395. The AAT must make its determination as at the time of application, taking into account all considerations relevant to the specific case in question. Where the application date is close to the retirement date the weight to be given to the applicant’s circumstances at the time of retirement will be greater than in cases, such as the present, where there is a lengthy period of time between the dates. In such cases other significant factors such as age and time out of the work force can become important and relevant considerations: Repatriation Commission v Wilson (1996) 43 ALD 77; Repatriation Commission v Braund (1991) 23 ALD 591. It is not sufficient for the AAT to be satisfied that at the date of retirement the applicant satisfied s 24(1)(c): Braund at 595. This is not the question before the AAT.

In this case the AAT balanced the evidence in favour of the applicant satisfying the “alone test” with other relevant considerations. It identified these considerations as the applicant’s age, time out of the work force, retirement intentions, financial position and family circumstances. The AAT had earlier in its reasons briefly discussed these factors. They had also been the subject of oral evidence before the AAT in cross-examination of the applicant. On considering this evidence it determined that it could not be reasonably satisfied that the applicant satisfied s 24(1)(c).

Section 43(2B) of the AAT Act provides that parties are entitled to know what evidence the AAT accepted, rejected and took into account: Copperart Pty Ltd v Commissioner of Taxation (1993) 13 ATC 4779 at 4781 per Hill J. In the present case the AAT expressly indicated which evidence it was taking into consideration. The AAT’s reasons are concise, but not to the extent that it could be said that the applicant would not know the reason for the decision. In this regard the comments of Pincus J, with whom Spender and French JJ agreed, in Commissioner of Taxation v Osbourne (1990) 26 FCR 63 at 65 are pertinent:

“A breach of that provision [s 43(2B)] is not necessarily shown by pointing to matters which might, with advantage, have been the subject of fuller and more detailed discussion or to possible issues which have not been mentioned.”

Accordingly this submission does not succeed.

This ground of review was also framed in terms of Wednesbury unreasonableness. It was submitted that the emphasis placed by the AAT on the evidence amounted to an error of law because it was so unreasonable that no reasonable decision maker could have so decided. This is said to be because the AAT discounted the evidence in favour of the applicant as being practically uncertain, whilst it treated the evidence against the applicant as practically certain. As stated previously this is not a proper characterisation of the AAT’s reasoning. The AAT did not exclude any evidence. It took all evidence presented to it into consideration and made a determination on the basis of this evidence. The emphasis or weight to be attributed to the various competing factors was a matter for the AAT and not this Court.

The submission, framed in terms of Wednesbury unreasonableness, cannot succeed.

Standard of proof

The applicant’s second ground of review is based on an alternative reading of the AAT’s use of the term “speculative” in par. 29. The applicant submits that this paragraph indicates that the AAT reached its conclusion on a standard of proof less than the balance of probabilities, contrary to the requirement in s 120 of the Act. The AAT is said to have done this by reaching its conclusion on the basis of the possibility that a non-war related event would have intervened.

The AAT, in its reasons, identified the correct standard of proof to be applied. Under s 120(4) of the Act it must decide a matter to its reasonable satisfaction. This is a standard equivalent to the balance of probabilities. Thus in the present case the AAT adopted the approach that it had to be reasonably satisfied that the applicant’s war-caused disabilities alone would have prevented him from engaging in remunerative work.

The AAT concluded that, taking all the circumstances of the case into consideration, it could not be reasonably satisfied that the applicant’s war-caused disabilities alone precluded him from engaging in remunerative employment. This conclusion was not based on the possibility or impossibility of an intervening event. The use of the word “speculative” was merely to indicate that it was not reasonably satisfied. This was a conclusion that was available to the AAT on the evidence before it.

Conclusion

The AAT made no error of law in concluding that the applicant did not satisfy s 24(1)(c).

The application should be dismissed with costs.

I certify that this and the
preceding fifteen (15) pages
are a true copy of the Reasons
for Judgment herein of his Honour
Justice Tamberlin

Associate:

Dated:         30 June 1997

Counsel for the Applicant:

Mr J Fitzgerald

Solicitor for the Applicant:

Vardanega Roberts

Counsel for the Applicant:

Ms R Henderson

Solicitor for the Applicant:

Australian Government Solicitor

Date of Hearing:

Date Judgment Delivered: 

6 May 1997

30 June 1997