Jensen v Repatriation Commission

Case [2010] FCA 422

FEDERAL COURT OF AUSTRALIA

Jensen v Repatriation Commission [2010] FCA 422

Citation: Jensen v Repatriation Commission [2010] FCA 422
Appeal from: Ian Paul Jensen v Repatriation Commission [2009] AATA 353
Parties: IAN PAUL JENSEN v REPATRIATION COMMISSION
File number(s): VID 436 of 2009
Judge: GRAY J
Date of judgment: 5 May 2010
Catchwords: DEFENCE AND WAR – Veterans’ Entitlements – pension – special rate or intermediate rate – whether Administrative Appeals Tribunal failed to take into account relevant considerations – cumulative criteria – failure to satisfy any one criterion fatal to claim – unnecessary for Tribunal to examine every criterion – whether Tribunal failed to take into account applicant’s current employment – whether Tribunal’s description of similarities of two sections inadequate – whether applicant, who was still working, could have been found to be a person “who has not been engaged in remunerative work” – whether Tribunal’s reasons included findings on material questions of fact and referred to evidence or other material on which those findings were based
Legislation: Administrative Appeals Tribunal Act 1975 (Cth), ss 43(2), 43(2B), 44(1)
Veterans’ Entitlements Act 1986 (Cth), ss 13(1), 14, 15(1), 19, 22, 23, 23(1), 23(1)(a), 23(1)(a)(iii), 23(1)(b), 23(1)(c), 23(2), 23(2)(a), 23(2)(b), 23(3), 23(3)(a)(iii), 23(3)(b), 24, 24(1), 24(1)(b), 24(2)(a), 24(2)(b)
Cases cited: Baljas v Repatriation Commission [2009] FCA 171 cited
Giesen v Repatriation Commission [2005] FCA 846 (2005) 87 ALD 347 cited
Date of hearing: 15 December 2009
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 29
Counsel for the applicant: Mr D De Marchi
Solicitor for the applicant: De Marchi and Associates
Counsel for the respondent: Ms E James
Solicitor for the respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 436 of 2009
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

IAN PAUL JENSEN
Applicant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

GRAY J

DATE OF ORDER:

5 MAY 2010

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The applicant pay the respondent’s costs of the appeal.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 436 of 2009
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

IAN PAUL JENSEN
Applicant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

GRAY J

DATE:

5 MAY 2010

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The nature and history of the proceeding

  1. The principal question in this proceeding is whether the Administrative Appeals Tribunal (“the Tribunal”) took the correct approach in determining whether the applicant is entitled to an increase in the pension he receives pursuant to the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”). The proceeding is an appeal from the Tribunal’s decision refusing to increase the pension. The Tribunal affirmed a decision of the Veterans’ Review Board, dated 17 April 2007, which in turn affirmed a decision of the respondent to…

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Jensen v Repatriation Commission [2010] FCA 422
Case
[2010] FCA 422
Decision Date

CaseChat Overview and Summary

Jensen v Repatriation Commission involved a dispute regarding the eligibility of the applicant for a pension under the Veterans' Entitlements Act. The applicant, a veteran, contended that he was entitled to a disability pension at a higher rate due to his war-related disabilities. The Repatriation Commission had previously assessed the applicant's entitlements, leading to a decision that was appealed to the court. The central legal issues revolved around whether the applicant met the specific criteria outlined in sections 23(1) and 24(1) of the Veterans' Entitlements Act to qualify for a pension at the special or intermediate rate. These sections required the applicant to demonstrate total and permanent incapacity for remunerative work due to his war-caused conditions, among other things.

The court's reasoning focused on the interpretation and application of the statutory provisions to the facts of the case. The Tribunal had found that the applicant, while suffering from several war-related disabilities, was able to work at least 15 hours a week for his son, albeit not in open employment due to his alcohol abuse. This finding led to the conclusion that the applicant did not satisfy the criteria in section 24(1)(b), which required incapacity for more than 8 hours of work per week. However, the court found that the applicant did satisfy the criteria in section 23(1)(b) as he was incapable of undertaking remunerative work for more than 20 hours per week. The court also concluded that the applicant's cessation of full-time employment at the Commonwealth Bank was not due to his war-caused incapacity, thereby excluding him from the provisions of section 23(1)(c). Consequently, the applicant did not qualify for a pension at either the special or intermediate rate.

The court dismissed the appeal, affirming the Tribunal's decision. The reasoning highlighted that the applicant's capacity to work part-time for his son, despite his disabilities, meant he did not meet the stringent criteria for a higher rate pension. The court's decision underscored the necessity of strictly adhering to the statutory criteria when assessing eligibility for veterans' pensions.

Orders

Orders of the court

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Background

Background to the litigation

Section 24 provides relevantly:(1) This section applies to a veteran if:(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and(aab)the veteran had not yet turned 65 when the claim or application was made; and(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% 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; and(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; and(d)section 25 does not apply to the veteran.(2) For the purpose of paragraph (1)(c):(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.The facts The following is a summary of the facts found by the Tribunal in its reasons for decision. The applicant has war-caused disabilities of alcohol dependence or alcohol abuse, bilateral sensorineural hearing loss, gastro-oesophageal reflux disease, solar keratoses and asthma. He is entitled to a disability pension at 100% of the general rate. He was born on 7 June 1949. He served in the Australian Army and rendered operational service from 9 July 1970 to 8 July 1971.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

There was medical evidence from Dr Castle (an occupational physician) and from Mr Burge (a clinical psychologist). In Dr Castle’s initial report, dated 8 February 2008, he expressed the view that the applicant was unable to work for more than eight hours per week, but this was not solely due to his accepted disabilities. In part, it was due to the adoption by the applicant of a comfortable lifestyle that involved his drinking. Subsequently, having learned of the applicant’s employment with his son, Dr Castle expressed the opinion that the applicant was able to work 15 hours a week for his son, but would not be able to work any more than that and would not be able to work in open employment, because most workplaces would not tolerate alcohol abuse. At that stage, Dr Castle considered that the applicant’s inability to work was the consequence of his alcohol dependence or abuse and the cognitive decline this had caused. In a report dated 9 February 2008, Mr Burge expressed the opinion that, due to his alcohol abuse, the applicant was unlikely to be able to maintain employment. He referred to increasing difficulties with memory and concentration. He pointed out that a workplace accommodating drunken employees was highly unlikely. In his oral evidence, Mr Burge accepted that the applicant had not mentioned his work for his son, but said there was likely to be a higher tolerance of the alcohol problems by a son than by any independent employer. The Tribunal’s reasons for decision At [13] of his reasons for decision, the senior member constituting the Tribunal set out subss (1) and (2) of s 24 of the VE Act. At [14], he said that s 23 “is in virtually identical terms but applies where the veteran is incapable of undertaking work for more than 50 per cent of the time ordinarily worked by persons engaged in work of that time or more than 20 hours per week.” At [15], the senior member found that the applicant had been working at least 15 hours per week on a regular basis and continued to do so. He therefore failed to satisfy the criterion in s 24(1)(b), but met the requirement of s 23(1)(b), because he was incapable of undertaking remunerative work for more than 20 hours per week. At [16]-[17], the senior member said:Having arrived at that conclusion, it is necessary to consider s 23(1)(c) the wording of which is virtually identical to s 24(1)(4). Sub-section (1) of s 23 is virtually identical to sub-section (2) of s 24. It is clear that prior to 1984 he had been a full time employee of the Commonwealth Bank for some 23 years after his operational service. I am satisfied that he ceased to be engaged in that remunerative work that he was undertaking for reasons other than his incapacity from his war-caused injury or disease. The evidence of Mr Jensen was clear. He applied for and was offered a redundancy package together with many other employees in 1994. At the time he was in disagreement with some of the bank’s policies. While he may have been drinking excessively, this had not created any major problems with the bank. He said that, if not for the redundancy package, he believed that he could have continued with the bank, likely until retirement. At the time it is clear that the redundancy package suited Mr Jensen, providing him with a substantial lump sum with which the property adjoining his wife’s existing business could be purchased to expand that business.From the evidence of Mr Jensen it would seem more likely than not that Dr Castle was correct in his view that Mr Jensen then adopted what, for him, was a comfortable lifestyle. It was clear that there was both conflict with his wife in relation to the business and a failure by Mr Jensen to be able to carry out a role in the business which he had envisaged in 1994. This failure, in my view, was unlikely to have been the result of his alcohol problem alone. Subsequent to his ceasing direct involvement in the business, it could not be said that he was genuinely seeking to engage in remunerative work. Each of his abortive attempts resulted from meeting someone at the hotel and being offered either employment or commission for referring clients. Mr Jensen was clear that the commission opportunities failed because of his inability to provide instant loan approval. The two short term employment opportunities failed as much a result of his inability to perform the work required with no computer skills as his drinking problem.

Ratio Decidendi

Legal Principle Established

The grounds of appeal may be summarised as follows. In the ground designated as 4.1, it was alleged that the Tribunal failed to take into account relevant considerations. Those considerations were described as: relevant remunerative work that the applicant was undertaking within the meaning of s 23(1)(c) of the VE Act; whether by reason of his war-caused conditions, the applicant was prevented from continuing to undertake remunerative work; whether the war-caused conditions alone prevented the applicant from continuing to undertake that work; and whether the applicant therefore suffered a loss of wages or salary. It was said that all of these considerations should have been taken into account in relation to the assessment period. In ground 4.2, it was said that, by failing to take into account those relevant considerations, the Tribunal was precluded from considering properly the requirements of s 23(1)(b), s 23(2)(b), s 23(1)(c) and s 23(3)(a)(iii) of the VE Act. Ground 4.3 alleged that the Tribunal erred in extrapolating the criteria in s 24 and applying them to s 23 of the VE Act. This was explained as: a failure to take into account the applicant’s capacity for part-time or intermittent employment and whether there was a reduction in that capacity attributable to the war service, with a consequent loss of salary or wages; a failure to examine the impact of the applicant’s continuing employment in satisfaction of the requirements of s 23; and a failure to analyse the significance of the employment for the purposes of s 23(1)(c) and s 23(1)(a)(iii). Ground 4.4 alleged a failure to consider the “ameliorating provisions” of s 23(3)(b) “in circumstances where the applicant continued to seek to engage in remunerative work and was employed and prevented from continuing to undertake the full scope of the remunerative work because of the substantial impact of war related disabilities.” Ground 4.5 alleged a failure to give adequate reasons for the Tribunal’s decision, by failing to set out material findings on questions of fact in relation to the work the applicant was engaged in during the assessment period, or the evidence on which those findings were based. Relevant considerations and the provisions of the VE Act The task of the Tribunal was to apply the criteria in ss 23(1) and 24(1) of the VE Act to the facts of the applicant’s case as it found them. A failure to do so would amount to an error of law and would entitle the applicant to succeed in this appeal. The criteria laid down in each of s 23(1) and s 24(1) are cumulative, however. The Tribunal’s conclusion that the applicant did not satisfy any one of the criteria in s 24(1) led necessarily to the result that the applicant was not entitled to pension at the special rate. Similarly, the conclusion of the Tribunal that the applicant did not satisfy any one of the criteria in s 23(1) led necessarily to the result that the applicant was not entitled to pension at the intermediate rate.