McGuire, W.G. v Repatriation Commission

[1987] FCA 431

Re: WILLIAM GORDON McGUIRE
And: REPATRIATION COMMISSION
No. TG6 of 1987
Veterans' Affairs

COURT

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY
GENERAL DIVISION
Northrop(1), Beaumont(2) and Spender(3) JJ.

CATCHWORDS

Veterans' Affairs - disability pension - application for special rate - veteran suffered from disabilities accepted as war-caused - veteran retired in 1978 from employment with Australia Post (at age 56) on invalidity grounds - s.20 Veterans' Entitlements Act 1986 ("the Act") - s.24(1)(c) of the Act in issue - whether criteria set out in s.24 of the Act to be considered as at date of application rather than as at date of retirement - application made before attainment of retirement age - presumption of continuance of employment until attainment of retirement age applicable to criteria in s.24(1)(c) of the Act - veteran's position from date of attainment of 65 years to present date to be considered separately - whether eligibility for special rate depends upon existence of continuing economic loss - interpretation of s.120(4) of the Act (standard of proof) - ss.33(1)(c), 44(1) Administrative Appeals Tribunal Act 1975.

HEARING

SYDNEY

#DATE 10:8:1987

Counsel and Solicitors for Applicant: Mr J. Blow instructed by Messrs O'Rourke and Blow

Counsel and Solicitors for Respondent: Mr Proctor instructed by Australian Government Solicitor

ORDER

The appeal is allowed with costs.

The claim for a pension at the special rate be remitted to the Tribunal for a further hearing with evidence.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

I would make the orders proposed by Beaumont J. and I concur with his reasons for judgment.

JUDGE2

The legislative background to this appeal appears in the matter of Smith (No. T5 of 1987).

1. The applicant was born on 7 November 1921. Prior to his service with the R.A.A.F. between 1942 and 1946, he had been employed by the Postmaster General in a clerical capacity. On demobilisation from the R.A.A.F., he resumed that employment and was subsequently transferred to the Australia Post Commission when it was created in 1975. He remained in that employment until 1978 when at age 56 years, he retired on invalidity grounds.

2. On 28 March 1984, then aged 62 years, the applicant applied to have hypertension accepted as a war-related disability. On 22 August 1984 the Repatriation Board assessed the applicant's incapacity from service-related disabilities at 50 per cent of the general rate. This decision was affirmed by the Veterans' Review Board on 9 July 1985. On 19 December 1985, the applicant made a claim in respect of "mixed deafness with tinnitus". The Commission, on 20 February 1986, increased the applicant's general rate from 50 to 70 per cent. The applicant applied to the Administrative Appeals Tribunal for review, seeking a decision that he was eligible for pension at the special or intermediate rates from either 30 December 1983 or 19 September 1985. On 8 May 1987, the Tribunal refused the claim for a pension at the special or intermediate rates but set aside the decision of the Veterans' Review Board and in lieu thereof decided that the applicant be paid pension at 100 per cent of the general rate with effect from 30 December 1983.

3. The Tribunal found that the applicant satisfied the requirements of s.24(1)(b). It also found, in the terms of s.24(1)(c), that the applicant was, by reason of his war-caused incapacity alone, prevented from continuing to undertake the remunerative work that he was undertaking as a postmaster; but found him ineligible for the special rate for the reasons that, given his age (62 years) at the relevant date, there was a lack of demand in the labour market for a person of his skills, viz., retired postmaster. These were held to be reasons, other than his war disabilities, which prevented him from undertaking remunerative work.

4. Before the Tribunal, the applicant gave evidence that, but for his war-related disabilities, he would have continued to work for Australia Post until he attained the age of 65. This evidence was not challenged. In those circumstances, the applicant submits, the Tribunal should have held that because, apart from his war disabilities, the applicant would have continued in employment with Australia Post, the provisions of s.24(1)(c) were satisfied.

5. Confining one's attention for the moment to the period until the applicant attained 65 years, i.e. his assumed continuing employment with Australia Post, the applicant's argument should, I think, be accepted. In other words, in respect of the period between December 1983 (three months before his application) and November 1986 (his sixty-fifth birthday), it is inappropriate to consider the applicant's prospects of employment outside of Australia Post. Assuming good health, there is no reason to suppose that the ordinary presumption of continuance did not apply. It follows that the applicant was eligible for the special rate in that period. To this extent, the case may be distinguished from Smith and Wright.

6. The next question which arises is whether the applicant is also eligible at the special rate in respect of the period after his sixty-fifth birthday. In this regard, the case raises questions similar to those in Smith and Wright. To this extent, the appropriate course is to remit the matter to the Tribunal for a further hearing on this question. It is true that, before the Tribunal and in this Court, the applicant's argument proceeded on the footing that if he satisfied the provisions of s.24(1)(c) at the date of his claim for pension, he would be eligible for the special rate indefinitely. However, as was said in Smith, his eligibility for this pension on an ongoing basis depended upon whether, on the facts of the case, it was probable, in any event, that he would have undertaken remunerative work after he had retired as a postal officer upon attaining 65 years. It is possible that this explains the approach taken by the applicant before the Tribunal, that is to say, it explains why no attempt was made on his behalf to make out a case that, after attaining 65 years, he would nonetheless have undertaken remunerative work. It may be that, in any event, the applicant could not make out any such case. But it is appropriate that he be given the opportunity to do so, if so advised.

7. As has been noted, the Tribunal, as an independent matter, increased the general rate. This finding should not be disturbed at this stage although it will be necessary for the Tribunal to deal with this question later. As has been said, the applicant is eligible for the special rate at least in respect of the closed period mentioned. However, rather than fragment his claim for the special rate at this stage, it is preferable to remit to the Tribunal the whole claim for that rate. In the interim, he will receive 100 per cent of the general rate.

8. I would propose that the appeal be allowed with costs, and that the claim for a pension at the special rate be remitted to the Tribunal for a further hearing with evidence.

JUDGE3

I agree with the reasons of Beaumont J. and with the orders that he proposes.