John Beezley and Repatriation Commission

Case [2014] AATA 495

[2014] AATA 495

Division VETERANS' APPEALS DIVISION

File Number(s)

2013/1143

Re

John Beezley

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Mr John Handley, Senior Member
Date 18 July 2014
Place Melbourne

The Tribunal affirms the reviewable decision dated 11 September 2012.

..............................[sgd]..............................

John Handley, Senior Member

VETERANS’ ENTITLEMENTS – Special Rate – applicant engaged in electroplating initially as a sole trader from 1980 – business incorporated in 1991‑ Applicant and his wife were directors of the company until 11 May 2011 when it was placed into liquidation – applicant turned 65 on 23 May 2011 – claim for special rate pension made on 31 May 2011 – applicant paid income for month in advance from first week of May 2011 – the applicant completed orders between 11 and 19 May 2011, assisted the liquidator and attended the creditors meeting on 26 May 2011 – statutory responsibilities assisting the liquidator was not last paid work ‑ applicant not prevented from continuing to undertake last paid work by war-caused injuries alone after turning 65 – decision under review affirmed.

Legislation

Veterans’ Entitlements Act 1986 ss 24(2A) and 24(2B)

Cases

Cavell v Repatriation Commission (1989) 9 AAR 534
Grant v Repatriation Commission (1999) 57 ALD 1

REASONS FOR DECISION

Mr John Handley, Senior Member

  1. Mr Beezley, the applicant in this review, was engaged in operational service in Vietnam between November 1967 and July 1968.  He has a number of disabilities accepted by the respondent as war-caused, the most significant being post traumatic stress disorder (PTSD).

  2. Prior to enlistment, the applicant commenced an electroplating apprenticeship with a firm to which he ultimately became the manufacturing supervisor.  He returned to that employment, after he was discharged from service and remained in that position until 1977.

  3. He was then employed for about 2 ½ years as a sales executive with a chemical company until 1980 when he acquired an electroplating business – All-Brite Plating.  Thereafter, he has been in self-employment.

  4. In 1991, the business was incorporated and thereafter traded as All-Brite Plating Pty Ltd (All-Brite).  That entity conducted the electroplating operations and employed persons.  He also incorporated another company, All Bright Plating (Australia) Pty Ltd which was engaged only in research and development.  The applicant and his wife were the sole directors of both companies.

  5. A number of events occurred in May 2011 which were significant in the context of this review.  Those events were:

    (a)on 11 May 2011, All-Brite entered into a creditors voluntary winding up;

    (b)on 23 May 2011, the applicant turned 65 years; and

    (c)on 31 May 2011, the applicant made a claim for an increase in pension.

  6. At the date of this review, the applicant was receiving pension at 90% of the general rate.  His application was to seek pension at the special rate.

  7. The applicant had turned 65 before he applied for an increase in the rate of the pension he had been receiving. Therefore, he must satisfy s 24(2A) of the Veterans’ Entitlements Act1986 (the Act).  The relevant…

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John Beezley and Repatriation Commission [2014] AATA 495
Case
[2014] AATA 495
Decision Date

CaseChat Overview and Summary

In the case of Beezley v Repatriation Commission, the applicant, Mr John Beezley, sought an increase in his pension due to his war-related injury or disease under the relevant provisions of the Act. The primary issue before the court was whether Mr Beezley's injury or disease prevented him from continuing to undertake the remunerative work that he was last undertaking before he applied for the pension increase. The court had to determine if the applicant's work was remunerative, and if so, whether it was the last paid work that he was undertaking before making his application. Additionally, the court needed to ascertain the last date of Mr Beezley's employment and whether he continued to receive income beyond that date.

The court examined the evidence presented, which indicated inconsistencies regarding the last day Mr Beezley worked. The applicant claimed he last worked on 11 May 2011, while other evidence suggested he worked until 25 May 2011. The court concluded that the applicant did undertake work beyond 11 May 2011 but did not work for the company after 19 May 2011. The court found that despite receiving payment in anticipation of work until the first week of June, the applicant did not work for the company after 19 May 2011, and therefore, had no entitlement to remuneration for that period.

Ultimately, the court held that Mr Beezley did not satisfy the requirements in section 24(2A) of the Act for an increase in his pension. The court determined that the applicant's injury or disease did not prevent him from continuing to undertake the remunerative work he was last undertaking before making his application, as he did not work after 19 May 2011. The court's decision was based on the evidence presented and the ordinary construction of the relevant provisions of the Act. The court dismissed Mr Beezley's application for an increase in his pension.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The evidence concerning the date the applicant last worked was not consistent, for example:(a)in his evidence to the Veteran’s Review Board, the applicant said the last day he worked was 11 May 2011 (Exhibit R5, page 3);(b)a letter from the liquidator, Mr Howlett, recorded that All-Brite ceased trading upon his appointment on 11 May 2011; he assumed control of the company and its assets; the applicant was not employed by All-Brite after the date of his appointment nor was he paid salary after that date and he had no involvement with the company other than to assist him pursuant to his obligations under the Corporations Act2001 (Exhibit R3);(c)the applicant said in evidence that he was instructed by the liquidator to complete outstanding work which he commenced on 12 May 2011 and completed within 7 days. He then secured and stored chemicals as part of the closing down process over a period of half a day. He said that was the last work he undertook in the factory;(d)Dr Farnbach, a consulting psychiatrist provided a medico-legal report to the respondent dated 30 December 2013 and recorded a history Mr Beezley told me that he has not worked since May 2011 (Exhibit R2, page 3);(e)John Kaleske, a former employee of All-Brite provided a statement (Exhibit A4) and recorded that he and another employee continued working under John Beezley until the factory was closed on 25th May 2011;(f)the applicant recorded in a statement lodged in this review:I was still employed by the company and paid until 6 June 2011. My work after 11 May 2011 consisted of in (sic) completing the company’s outstanding orders and shutting down the factory. The factory officially closed down on 25 May 2011 (Exhibit A3, paragraph 9);(g)the minutes of the creditors meeting held on 26 May 2011, recorded:…The chairman advised that the company ceased trading immediately following the appointment of the Liquidators’ mainly due to the Occupational Health and Safety (OH&S) concerns identified by the Liquidators’ OH&S expert. The OH&S expert had advised that the general state of the business premises was unfit to continue trading operations (Exhibit R4 – Minutes of creditors meeting, page 5).THE EVIDENCEThe All-Brite business After he purchased the business in 1980, the applicant said he had 2 employees. Eventually the business grew and at one stage it was operating out of 6 factories, it had 35 employees and was operating 24 hours per day. However, the business slowly lost customers, resulting in a reduction of work and therefore income, because of his attitude towards customers which he understood was a consequence of PTSD. When the company was placed into liquidation on 11 May 2011 it had 2 employees, John Kaleske and Mark Tramontana. The applicant said the advice given by his accountant, Mr Allan, during the creditors meeting on 26 May 2011, of a turnover of between $80,000 and $120,000 per month in the 2010 income year, reducing to between $20,000 and $40,000 per month in the 2011 year, was accurate.

Decision

Reasons for decision

The applicant said that he was receiving income prior to All-Brite being liquidated and he has subsequently lost significant income.CONCLUSION AND REASONS FOR DECISION The applicant applied for an increase in his pension after he turned 65. Therefore, he must satisfy the requirements in s 24(2A) of the Act. Relevantly, paragraph (d) provides that his war-caused injury or disease, alone, must have prevented him from continuing to undertake the remunerative work (the last paid work) that he was last undertaking before he made his application. The words remunerative work, found within s 24(2A)(d) are succeeded by the words (last paid work). Those words (which are also found in subsections (e), (f) and (g)), are intended to give meaning to the words remunerative work which are defined at s 5Q as includes any remunerative activity. The Macquarie concise dictionary (5th edition) defines remunerate as to pay, recompense, or reward for work. On an ordinary construction of paragraph (d), it is clear that the provision is concerned with the paid work the applicant was undertaking before he lodged his application for an increase in the rate of his pension. Section 24(2A)(f) of Act requires that the applicant was undertaking his last paid work after he turned 65. The applicant contends that he did work beyond the date of his 65th birthday and was also remunerated beyond that date because:(a)the company paid him salary for one month in advance from the first week of May; and(b)he worked with the liquidator assisting in the winding up of the company. I am satisfied that the applicant was paid monies by the company for one month in advance from the first week of May 2011. Those monies were intended to be his recompense or reward for work that was anticipated that he would undertake by working for the company. On the evidence in this review, especially the evidence of the applicant, I am satisfied the applicant did undertake work beyond 11 May 2011 (when the company was placed into liquidation) but no later than 19 May 2011 (the date he completed outstanding orders for the company). I make that finding because the applicant said that he worked for up to 7 days from 11 May 2011 with his 2 employees, when they ceased working and then worked for half a day, alone, securing chemicals. I therefore, do not accept the second last paragraph of the statement of Mr Kaleske (who was not called to give evidence) who recorded that he and Mark Tramontana continued working under John Beezley until the factory was closed on 25th May 2011. The work undertaken after the date of liquidation was to complete orders and, on the applicant’s evidence, with the permission of Ms Palloure. Even if the work between 11 and 19 May 2011 was capable of entitling the applicant to remuneration, which I doubt, given that the company was in liquidation from 11 May, he did not work for the company after 19 May 2011. It follows, that despite being paid monies in anticipation of the applicant undertaking work until the first week of June, the component of the monthly payment representing the period 19 May 2011 to the first week of June was not a payment as recompense or reward for work. Put another way, the applicant did not work after 19 May 2011 and he thereafter, had no entitlement to remuneration.

Ratio Decidendi

Legal Principle Established

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