James v Repatriation Commission - [2004] FMCA 548

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JAMES v REPATRIATION COMMISSION

[2004] FMCA 548

ADMINISTRATIVE LAW – VETERANS’ AFFAIRS – Appeal from Administrative Appeals Tribunal – applicant entitled to pension by reason of operational service – whether applicant entitled to Special Rate pension – meaning of predecessor of employer – meaning of "continuous period of at least 10 years" – nature of employment which constitutes "continuous period".

Administrative Appeals Tribunal Act 1975, s.44
Veterans Entitlements Act 1986, ss.24, 119

Veteran’s Affairs (1994-1995 Budget Measures) Legislation Amendment Act 1994

Carter v Repatriation Commission [2001] FCA 992
Thomson v Repatriation Commission [2000] FCA 204
White v Repatriation Commission [2001] FCA 1585

Applicant:

IAN GILLIS JAMES

Respondent:

REPATRIATION COMMISSION

File No:

MZ 1242 of 2003

Delivered on:

03/09/2004

Delivered at:

Melbourne

Hearing date:

17/08/2004

Judgment of:

Phipps FM

REPRESENTATION

Counsel for the Applicant:

Mr DeMarchi

Solicitors for the Applicant:

De Marchi & Associates

Counsel for the Respondent:

Ms MacDonnell

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the application is dismissed.
That the applicant pay the respondent’s costs to be agreed and if not agreed to be taxed in accordance with the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 1242 of 2003

IAN GILLIS JAMES

Applicant

And

REPATRIATION COMMISSION

Respondent

REASONS FOR JUDGMENT

The applicant appeals under s.44(1) of the Administrative Appeals Tribunal Act 1975 from a decision of the Administrative Appeals Tribunal given on 8 August 2003.
The tribunal affirmed a decision of the respondent that the applicant’s rate of pension under the Veterans Entitlements Act 1986 (the Act) from 9 March 2000 was 50% of the general rate, and varied the decision to the extent that the rate of pension was 80% of the general rate from 28 September 2001 until 28 October 2001, and 100% of the general rate from 29 October 2001. The tribunal found that the applicant did not satisfy the requirements for Special Rate Pension.
The applicant had operational service, as defined in the Act, in Korea during the period 11 December 1955 to 19 April 1956. He remained a member of the Australian Armed Forces until 1961, following which he worked in government employment until February 1992 when he retired at the age of 58. In or about mid 1992 he commenced working for Inhouse Security as a Security Officer, working some 32 hours per week and also obtained part-time employment with a training academy as an instructor. He continued to work for both of those companies until January 2001, at which time he was aged 66 years and three months. A claim for a disability pension was lodged on 18 June 2000, when the applicant was 65 years and seven months of age.
The applicant suffers from Chronic Post Traumatic Stress Disorder directly attributable to his operational service in Korea. His evidence was that having left government employment in February 1992, he had taken a break in employment which he described as being like a sabbatical, until he was employed by the training academy and Inhouse Security in approximately mid 1992. He was paid a regular wage with Inhouse Security. His payment with the training academy had been based on an hourly rate of $35.00 plus expenses. He estimated he had worked as an instructor for the training academy for approximately 24 days per year and up to 35 hours per week with Inhouse Security.
While working for Inhouse Security he had been appointed supervisor of security at Steggles Poultry Factory in Geelong. In 2001, he had been informed by his employer that other workers had noted he was becoming insular and isolated and would not talk to people, either his co-workers or customers. In May 2001, his employer asked him to sign a new form required by government regulation in the security industry. One of the questions on the form asked "do you, or have you suffered from a mental illness?". The applicant's evidence was that he obviously had to answer this question in the affirmative because he suffered from Post Traumatic Stress Disorder. This meant that he was unable to maintain his Security Officer license and so was unable to continue with his employment. His evidence was that he would have been able to continue his employment indefinitely if it have not been for the Post Traumatic Stress Disorder.
The applicant appeals against the tribunal's decision that the applicant did not satisfy the requirements for Special Rate Pension. To do so the applicant had to satisfy the requirements of s.24(2A) of the Act. It provides:
This section applies to a veteran if:
(a) the veteran has made a claim under s.14 for a pension, or an application under s.15 for an increase in the rate of the pension that he or she is receiving; and
(b) the veteran had turned 65 before the claim or application was made; and
(c) paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d) the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g) when the veteran stopped undertaking his or her last paid work, the veteran:
(i) if he or she was then working as an employee of another person—had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii) if he or she was then working on his or her own account for in any profession, trade, employment, vocation or calling—had been so working in that profession, trade, employment, vocation or calling;
for a continuous period of at least 10 years that began before the veteran turned 65; and
(h) section 25 does not apply to the veteran.
The tribunal found that the applicant met all the requirements of s.24 (2A) except for sub-s.(g). The tribunal considered dictionary definitions of “predecessor” and cases concerned with self-employed professionals undertaking locum work. The tribunal said that the applicant was in the employ of the Commonwealth of Australia from 1952 until 1992. He retired in January 1992, and did not perform any remunerative work until he obtained employment in the private sector in mid-1992. He remained in continuous remunerative work with the two companies for approximately eight years and seven months.
The tribunal then said at [25]:
25. But for the requirements of s.24(2A)(g)(i), the Tribunal would have found on the balance of probabilities, that the applicant qualified for Special Rate of Pension, there being no doubt that he satisfied the requirements of the s.24(2A) in all other respects.
Consequently, the tribunal determined that the applicant was not entitled to a Special Rate Pension.
An appeal under s.44 (1) of the Administrative Appeals Tribunal Act is limited to "a question of law". The errors of law as argued concern the way in which the tribunal dealt with s.24(2A)(g) . They are:
i)the tribunal did not give adequate reasons in dealing with the subsection;
ii)the tribunal did not consider whether s.24(2A)(g)(ii) applied;
iii)the tribunal should have found that the applicant satisfied s.24(2A)(g).
The applicant's evidence before the tribunal that his payment with the training academy had been based on an hourly rate of $35.00 plus expenses suggests that he was working as a contractor rather than an employee and so working on his own account. If that was the case, then s.24(2A)(g)(ii) might apply. The tribunal said that but for the requirements of s.24(2A)(g)(i), it would have found on the balance of probabilities, that the applicant qualified for Special Rate of Pension. This suggests that it did not consider whether s.24(2A)(g)(ii) might apply. This might be because the argument before the tribunal concentrated on s.24(2A)(g)(i). The tribunal said at [17] of its reasons, the meaning of the word "predecessor" was argued at some length. The tribunal's consideration of the subsection concentrated on the meaning of "predecessor". However, I consider the essential question is whether on the evidence of the applicant's work and employment history, which is undisputed, either s.24(2A)(g)(i) or s.24(2A)(g)(ii) can apply, or whether there can be a combination of both.
Before the tribunal, the applicant argued that, in general terms, he was engaged in the same type of work over a period of 39 years, initially in the employ of the Federal Government, and subsequently in the sphere of private enterprise. The argument was that that was sufficient to satisfy the disputed requirement.
The respondent argued that the applicant's employment with the Federal government was irrelevant. It argued that the applicant had to be working as an employee of another person or any predecessor or predecessors of that person and that the Commonwealth of Australia could not have been a predecessor of either Inhouse Security or the training academy. Even if they could be predecessors, it argued that the break in employment between the applicant leaving government employment in February 1992 and commencing private employment in approximately mid 1992 meant that he could not have been employed for "a continuous period of at least 10 years that began before [he] turned 65".
Section 24(2A) was introduced by the Veteran’s Affairs (1994-1995 Budget Measures) Legislation Amendment Act 1994. The explanatory memorandum said in reference to “predecessor":
Where the veteran was an employee in his or her last paid work, he or she must have been employed by the same person or a predecessor or predecessors of the person for a continuous period of at least 10 years that began before the veteran turned 65 years of age. In this context, a predecessor of the person means the person who was previously the veteran's employer and whose position as employer of the veteran was taken over by a legal successor to the position as the veteran's employer, for example, by a takeover or sale of the business enterprise in which the veteran was employed.
In Carter v Repatriation Commission [2001] FCA 992 at [22] Branson J. said:
Moreover, it is to be observed that par 24(2A)(g) is not concerned with whether a veteran had at the crucial time been undertaking the same remunerative work for a continuous period of at least ten years, but merely with whether the veteran, if employed, had been working with the same employer or, if self employed, in the same profession, trade etc, for a continuous period of at least ten years.
In Thomson v Repatriation Commission [2000] FCA 204 a Full Court of the Federal Court (Ryan, North and Merkel (JJ) said at [10];
As was pointed out by the Full Court, sub-section (g) of s 24(2A) is concerned with the capacity in which the last paid work was undertaken. A veteran meets the requirements of the sub-section if the last paid work has been undertaken in the relevant capacity for a continuous period of at least 10 years. If the capacity is as an employee, the veteran must have been employed by the same employer (or its predecessor) continuously for the 10 year period. If the veteran is self-employed, then the last paid work must have been undertaken in that capacity continuously for the 10 year period. When sub-clause (ii) refers to the requirement that the self-employed veteran must have been "so working" continuously for the 10 year period, the reference is to the capacity in which the veteran worked.
In White v Repatriation Commission [2001] FCA 1585 at [24], Conti J. said;
24 It may be observed that the sub-paragraph (i) continuity test focuses upon the need to identify one employer during the statutory ten year period, subject only to exceptions in the case of a predecessor or predecessors of that employer, irrespective (implicitly) of what changes might have occurred in the nature of the business of that employer or its predecessor or predecessors during that period of time, whereas the sub-paragraph (ii) continuity test focuses upon the nature or description of the profession, trade, employment, vocation or calling in which the veteran was engaged during such period. Incidentally, the expression "employment", as used in sub-paragraph (ii), connotes self-employment only, given the preceding words "working on his or her own account" which control the subsequent words "in any profession, trade, employment, vocation or calling...".
The explanatory memorandum and the decisions referred to make it clear that for a veteran to meet the requirements of s.24(2A)(g) he must have been employed by the same employer (or its predecessor) continuously for the 10 year period, or must have been self-employed for a continuous period of 10 years. A period of 10 years with different employers or comprised partly of self-employment and partly of employment will not satisfy s.24(2A)(g). The argument for the applicant that employment in similar occupations will satisfy the subsection is contrary to the explanation in the explanatory memorandum and to the authorities. The applicant's employment with the Federal Government cannot be taken into account.
The respondent’s second argument provides a further reason why the applicant does not come within s.24(2A)(g). Over the 10 year period prior to the applicant's cessation of work in January 2001, the applicant was employed by the Federal Government until February 1992. He then had a period of no employment until approximately mid-1992 followed by a period of employment until January 2001. He was then either working as an employee of the training academy and Inhouse Security or partly working as an employee and partly working on his own account. The period of approximately five months when he had no employment meant that he did not have a "continuous period" of 10 year's employment.
Whether the tribunal should have specifically considered s.24(2A)(g)(ii) makes no difference. The applicant cannot satisfy the requirements of s.24(2A)(g). Before he turned 65 he had neither a continuous period of at least 10 years working as an employee of another person, or for that person and a predecessor, nor a continuous period of at least 10 years working on his own account.
In the applicant’s argument, reference was made to the beneficial nature of the legislation and to s.119 of the Act. Neither can assist the applicant. Any finding of fact which could have been made in his favour was made. On those findings of fact, he could not satisfy the requirements of sub-s.24 (2A) (g).
The application is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: Sherryn Kwong

Date: 3^rd September 2004