Maxwell John Woodall and Repatriation Commission - [2015] AATA 163

[2015] AATA 163

Division VETERANS' APPEALS DIVISION

File Number(s)

2011/2470

Re

Maxwell John Woodall

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
John Handley, Senior Member

Date 20 March 2015

Place Melbourne
The decision under review is set aside and in substitution it is decided that the applicant is entitled to payment of pension at the special rate with effect from 29 July 2010.
......[sgd]..................................................................
John Handley, Senior Member
VETERANS’ AFFAIRS – Applicant made redundant from his employment in 2008 – subsequently applied for 70 jobs without success – granted temporary special rate pension in 2009 which ceased in 2010 – payments reverted to 100 per cent of general rate – claim for special rate rejected by respondent and VRB – heard and affirmed by AAT – appeal to Federal Court – remitted by consent of both parties to the AAT after Full Court decision in Smith v Repatriation Commission – focus on re-hearing on s 24(2)(b) – previous AAT decision reversed – decision under review set aside.
Legislation
Veterans’ Entitlements Act 1986 section 5Q, 19(5C), 23, 24 and 119(1)(h)
Cases
Woodall and Repatriation Commission [2012] AATA 803
Smith v Repatriation Commission (2014) 220 FCR 452
Smith v Repatriation Commission (2012) 131 ALD 63
Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518
Hill v Repatriation Commission (2004) 82 ALD 60
Fox v Repatriation Commission (1997) 45 ALD 317
Sheldon v Repatriations Commission [2014] FCA 1388
Repatriation Commission v Connell (2011) 197 FCR 228
Repatriation Commission v Butcher (2007) 94 ALD 364
Leane v Repatriation Commission (2004) 81 ALD 625
Repatriation Commission v Richmond [2014] FCAFC 124
REASONS FOR DECISION
John Handley, Senior Member
20 March 2015

On 16 November 2012, Doctor Breen and I delivered reasons for decision in respect of an application made by Mr Woodall (Woodall and Repatriation Commission [2012] AATA 803).
The application that was before the Tribunal as previously constituted (Doctor Breen has subsequently retired as a Member) was for a review of a decision made by the Veterans’ Review Board (VRB) which affirmed a decision of the respondent to pay pension at 100 per cent of the general rate. The applicant sought to have that decision set aside and have a finding made that he was entitled to special rate pension pursuant to s 24 of the Veterans’ Entitlements Act 1986. (Unless otherwise indicated, all references in this decision shall be to sections of the Veterans’ Entitlements Act 1986).
A chronology of relevant events is as follows:
10 October 2008      The applicant was made redundant by his employer.
27 May 2009             The VRB set aside a decision of the respondent made on 4 November 2007 and found generalized anxiety disorder (GAD) and hypertension were war-caused. It remitted the application to the respondent to assess entitlement.
4 September 2009     The applicant was notified by the respondent that pension at 100 per cent of the general rate would be paid from 4 November 2007 (date of primary claim) and temporary…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] AATA 163
Decision Date: 20 March 2015

CaseChat Overview and Summary

In the matter of Maxwell John Woodall and the Repatriation Commission, the court was tasked with determining whether the veteran's inability to secure remunerative employment was substantially caused by his war-related injuries. This decision pertains to the interpretation of specific provisions within the Veterans’ Entitlement Act 1986, specifically sections 24(1)(c) and 24(2)(b), and their application to the veteran's circumstances. The central issue before the court was the interpretation and application of these sections to establish whether the veteran was genuinely seeking to engage in remunerative work and, if so, whether his war-caused injuries were a substantial cause of his inability to obtain such work.

The court examined the principles established in previous cases such as Smith and Sheldon, which provided guidance on the interpretation of these sections. The court found that section 24(1)(c) should be construed practically and realistically, focusing on whether the veteran had sincerely attempted to engage in remunerative work. It was noted that the term "remunerative work" encompasses any substantive work that the veteran has previously undertaken, rather than specific occupations or job types. The court also highlighted that section 24(2)(b) is facultative and serves as a gateway to potential entitlement, but it is not necessary for the veteran to be genuinely seeking work during the assessment period. Instead, genuine efforts to find work prior to the assessment period can be considered.

Based on the principles established in previous cases, the court determined that the veteran had genuinely sought to engage in remunerative work, despite his war-caused injuries. The court found that the veteran's inability to secure employment was substantially caused by these injuries. Consequently, the court upheld the veteran's entitlement to a pension under the relevant provisions of the Veterans’ Entitlement Act 1986.

The court ordered that the Repatriation Commission was to reassess the veteran's pension entitlement in light of the court's findings, ensuring that the assessment period and the rate of pension were correctly determined in accordance with the statutory provisions. The decision reaffirmed the importance of a practical and realistic interpretation of the relevant sections of the Act, emphasizing the need to consider the veteran's genuine efforts to engage in remunerative work and the impact of his war-caused injuries on his ability to do so.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It was therefore contended that it should not be found that the substantial cause of the applicant’s inability to obtain remunerative work was incapacity by his war-caused injuries.Conclusion and Reasons for Decision The decision in Smith is significant in its breadth of application to many appeals initiated by veterans. It does reaffirm the spirit in which the Veterans’ Entitlement Act 1986 should be interpreted but goes further because it clarifies a number of provisions which have been the subject of litigation for many years. In Sheldon v Repatriations Commission [2014] FCA 1388 (Sheldon), Collier J at [28] summarised a number of key points emerging from the combined judgment in Smith, some of which are relevant to this application. In my view, the principles that emerge (mainly from) Smith and which apply in this review are as follows:·s 24(1)(c) is a beneficial provision and should be construed practically [17]; if a veteran satisfies s 24(1)(c), s 24(2)(b) will have no role [176]; s 24(2)(b) is facultative [21], ameliorative [173] and a gateway [183] (giving entry to the potential of an entitlement that cannot be satisfied by s 24(1)(c));·the expression remunerative work, signifies the type of work which the veteran previously undertook and means any substantive remunerative work that the veteran has ever undertaken [120]; (work does not mean an occupation or specific types of jobs – Repatriation Commission v Connell (2011) 197 FCR 228 at [27] and Repatriation Commission v Butcher (2007) 94 ALD 364 at [7]; s 5Q defines remunerative work as includes any remunerative activity);·the expression continuing to undertake remunerative work that the veteran was undertaking (s. 24(1)(c)) must be construed in a realistic and practical way so as to avoid underlying technical constraints… [17]; Sheldon at [28];·a veteran must sincerely or honestly do something to attempt or try to engage in remunerative work in order to satisfy the provision genuinely seeking to engage in remunerative work [21], [23], [49] and [184]; Leane v Repatriation Commission (2004) 81 ALD 625 (Leane) at 632; ·a determination of whether a veteran has a capacity to undertake remunerative work can be assisted by s 28 because the respondent shall have regard only to the vocational, trade and professional skills, qualifications and experience of the veteran (skills), the kinds of remunerative work a person with those skills might reasonably undertake and the degree to which a physical or mental impairment by a war-caused injury or disease has reduced the capacity of the veteran to undertake those kinds of remunerative work;·an assessment of entitlement, rate of pension and the date of commencement of payment of pension during the assessment period is determined by s 19(5C); qualification if any under s 24(2)(b) is determined at the commencement of or during the assessment period [25], [51], [69], [183] and [185]; Leane at page 633.·s 24(2)(b) does not require that a veteran must be genuinely seeking work during the assessment period [185]; regard must be given to the circumstances of the veteran prior to the commencement of the assessment period; those circumstances are not excluded by the legislation [185]; a veteran is entitled to rely on genuine efforts to find work before the commencement of the assessment period [69]; when the claim for pension has been made, that is at the commencement of the assessment period, it will often reflect that the veteran has been genuinely seeking to engage in remunerative work [25].

Ratio Decidendi

Legal Principle Established

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Division	VETERANS' APPEALS DIVISION
File Number(s)	2011/2470
Re	Maxwell John Woodall
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	John Handley, Senior Member
Date	20 March 2015
Place	Melbourne