O'Sullivan and Repatriation Commission

[2002] AATA 1307

DECISION AND REASONS FOR DECISION [2002] AATA 1307

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No  N2001/1506

VETERANS' APPEALS DIVISION          )          

Re      LAWRENCE O'SULLIVAN           

Applicant

And    REPATRIATION COMMISSION  

Respondent

DECISION

Tribunal       Senior Member M D Allen Dr M E C Thorpe, Member

Date21 November 2002

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL  )         No N2001/1506
  )  
VETERANS' APPEALS DIVISION                )

Re:     LAWRENCE O'SULLIVAN

Applicant

And:     REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal              Senior Member M D Allen
  Dr M E C Thorpe, Member

Date  21 November 2002

Place                   Sydney

DecisionFor the reasons given orally at the conclusion of the hearing in this matter the decision under review is AFFIRMED.

(Sgd)  M.D. ALLEN

................................

Presiding Member
CATCHWORDS

VETERANS' ENTITLEMENTS – application for Special Rate Pension – requirement that work which Applicant ceased to undertake be substantial remunerative work – Barrister's retirement from practice because of inability to obtain work.

Veterans' Entitlements Act 1986 – s24, s28, ss120(4) and (6)

Starcevich v Repatriation Commission 18 FCR 221
Re Davis and Repatriation Commission (unrep AAT 3285)
Forbes v Repatriation Commission 101 FCR 50
Counsel v Repatriation Commission [2002] FCAFC 201

REASONS FOR DECISION

Senior Member M D Allen
  Dr M E C Thorpe, Member

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen and
  Dr MEC Thorpe, Member

Signed:         
          ..................................................................................……………………………….

Associate

Date of Hearing  21 November 2002
Date of Decision  21 November 2002

Solicitor for Applicant                  Applicant self-represented
Solicitor for Respondent            Australian Government Solicitor
Counsel for Respondent            Miss R Henderson

JUDGMENT
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N01/1506
By MR M.D. ALLEN, Senior Member and DR. M.E.C. THORPE, Member
O'SULLIVAN and REPATRIATION COMMISSION
SYDNEY, 21 NOVEMBER 2002

MR ALLEN: By application made the second day of October 2001, the applicant sought review of a decision by the respondent as affirmed by a Veterans' Review Board that continued his pension at 100 per cent of the general rate. In these proceedings the applicant contended that the pension should be payable to him at the special rate or at the intermediate rate of pension. The criteria for the grant of the special rate pension so far as relates to the applicant is set forth in section 24(2A) of the Veterans' Entitlements Act 1986 as amended. The particular subsection reads:

(2A)       This section applies to a veteran if:

(a)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

(b)the veteran had turned 65 before the claim or application was made;

And that is clearly the case here, as the applicant's date of birth was the 9th of May 1923, and:

(c)       paragraphs (1) (a) and (1) (b) apply to the veteran;

That is that the veteran is receiving pension in excess of 70 per cent of the general rate and that the veteran is totally and permanently incapacitated.  That is to say the veteran's incapacity from war-caused injury or 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

(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 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.

We would simply say in relation to that particular provision that the applicant met the criteria having been in actual practice as a barrister since 1967.  So far as any occupation by the applicant is concerned, section 28 in referring to a capacity to undertake remunerative work refers to:

(a)the vocational, trade and professional skills, qualifications and experience of the veteran;

(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and

(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

Section 28 was so simply summed up by the Honourable Sir William Prentice, Senior Member, in the matter of Davis v Repatriation Commission unreported AAT 3285, as follows:

"I do not understand the Act to contemplate for example as a rational decision, that a veteran doctor rendered voiceless might reasonably be thought capable of undertaking a job as a window cleaner and therefore disentitled to pension or that a veteran barrister rendered voiceless that of a gate keeper."

In other words, it is clear in this matter that when considering the remunerative work which the applicant might reasonably undertake there is but one calling and that is of a barrister in actual practice.  As stated the applicant first commenced actual practice at the bar in 1967, originally in Sydney with also a practice in Canberra but of his later years, he gave up chambers in Sydney and practiced at Canberra, although certainly from his evidence he did circuit work in the towns surrounding Canberra.

He ceased his practice in effect on 30 June 2000.  He states that because of his war-caused disabilities it became impossible for him to carry out work in country Courts and that was because of physical inability.  He found he had difficulty walking, he found difficulty getting into the Courts.  What is interesting is, he said in evidence that his condition did not prevent him from cross-examining or giving opinions, it was simply the physical ability to enter the particular Court Houses. He said too; that overt signs of disability discouraged solicitors from briefing him.

Cross examined, he said although he did find difficulty in getting around; he found he could attend the Canberra Courts.  He was asked if his leg problem stopped him writing advices and he replied that it did not.  In other words he could still do opinion work.  What he did state was that he had a "loner status" at the bar and that as a result of undertaking work for unpopular causes, various firms of solicitors declined to brief him.  He tended to suggest that this may have had something to do with his anxiety status but we reject that, we think it fanciful to say that because of his anxiety state he undertook the advocacy of otherwise unpopular causes.  Indeed it seems it is something from which he achieved a degree of satisfaction.

He did refer with some approbation to a report by Dr Harvey Sutton, Consultant Occupational Physician, which is exhibit R2 in these proceedings.  In that report, Dr Harvey Sutton states and quote:

"He said that there was nothing wrong with his mind and from that point of view he could continue to keep practising but it was because of his legs that he had increasing difficulties both getting to Court, moving around during adjournments and particularly lunch times and difficulties standing at the bar table."

We refer to his earlier evidence where he did say that his condition didn't prevent him cross-examining or doing opinions.  Interestingly enough, considering what the applicant said regarding his loner status, and anxiety state.  Dr Harvey Sutton said, he said:

"He tries to get on with most people and has a number of professional friends."

The only other comment we would make is that we consider Dr Harvey Sutton completely incorrect where she said that based on his appearance, particularly the solar keratosis and disfigurement from treatment of such, his capacity to serve in the public arena is significantly diminished. We would simply state that that it is a paragraph which is particularly pertinent at the moment to me. At document T2 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 is a copy of a letter dated 28 April 1997 written by the applicant to the Department of Veterans' Affairs.

In that letter the applicant says:

"In the last 4 months I have not received any new briefs and I do not expect to be paid now for my last brief, that is I have not been given any work by solicitors in 4 months therefore I have announced that I am no longer practising at the bar."

In evidence the applicant said that that in fact did not happen and that he continued to practice until his retirement on 30 June 2000.  What does appear apparent is that over his last few years at the bar the applicant suffered a diminution of income.  He applied for and was granted a service pension on the grounds of old age in 1992; we note at that time he was aged some 69 years.  He was asked by the Tribunal whether his income as a barrister was such that he needed to inform the Department of Veterans' Affairs of any income earned and he originally stated that he did not although later he resiled from that and said that he did have adjustments of pension but no particular evidence was forthcoming.

Exhibit R3 is a copy of a tax return for the tax year 1998/1999, there is no income shown in that tax return as being income from practice of the law.  We draw the inference and we understand the applicant to have conceded as much that during that particular year of income any receipt of moneys from his practice as a barrister were less than his outgoings, the outgoings being the rent of his chambers, profession indemnity insurance, practising certificate.

It is true to say the applicant submitted that the Full Court of the Federal Court in Counsel v Repatriation Commission [2002] FCAFC 201 pointed out that when the Tribunal is looking at remunerative work, the remuneration referred to is gross remuneration and not net, so that he was in receipt of remuneration even though his outgoings were in excess of the income received. At page 59 of the section 37 documents there is a copy of a document presented by the applicant to the Veterans' Review Board in which he states that in the 1999/2000 tax year, he earned the sum of $4810 from his work as a barrister.

Paragraph (d) of subsection (2)(a) of section 24, refers to an applicant being prevented from continuing to undertake remunerative work from incapacity from war-caused injury or disease or both alone.  The so-called alone test was discussed by His Honour Burchett J, in Cavell v Repatriation Commission, 9 AAR 534 in a passage which was adopted with approval by His Honour Nicholson J in Forbes v Repatriation Commission 101 FCR 50. At paragraph 32 of this judgment Nicholson J said:

"In Cavell v Repatriation Commission Burchett J agreed with Davies J in re Easton v Repatriation Commission, the word "alone" should not have substituted for it other words in the absence of ambiguity."

He saw the requirement of the word "alone" as it appears in section 24(1)(c) as requiring a practical decision whether the veteran's loss of remunerative work is attributable to his or her service related capacities and not to something else as well.  He regarded that as a decision not to be made upon nice philosophical distinctions but with an eye to reality and as a matter in respect of which common sense is the proper guide.  It seems to us that is the test which must be applied in this particular matter.

In applying that test we must also keep in mind that the standard of proof as set out in subsection (4) of section 120 of the Veterans' Entitlement Act is that of to the Tribunal's reasonable satisfaction; as was pointed out by the Full Court of - the Federal Court in Repatriation Commission v Smith 15 FCR 327, that equates to proof on the balance of probabilities. Subsection (6) in section 120 points out however, that neither party to this review has any onus of proof. In approaching this matter, the Tribunal must ask itself the question, on what basis did the applicant cease practice as a barrister.

It seems at the outset that the applicant conceded that he could have continued in practice giving advices, writing opinions.  In other words carrying out chamber work.  He also conceded that it was still possible for him, albeit with difficulty to attend to the Courts in Canberra.  It is clear from his letter dated 28 April 1997 referred to earlier and from what he said in evidence today, that he had reached a stage where solicitors for various reasons no doubt, were declining to offer him briefs.  That it seems to us, is a natural progression as barristers like any other professional have used by dates.

It would appear that he found the practice of the law without going to Court and being on his feet to be something which did not altogether appeal to him albeit he could still do chamber work.  He had continued his practice for some time because he felt he had an obligation to the other member of his chambers, but it is clear that for the last few years at least, indeed we would say since 1992, his income from his practice as a barrister was steadily declining as evidenced by his reliance upon a service pension.

In Starcevich v Repatriation Commission 18 FCR 221 Fox J referred to the applicant for a Special Rate Pension as having to show that he suffered a substantial loss of remuneration. His honour added:

"the loss must be real, in the sense that the Applicant cannot rely upon any remunerative work that he has undertaken in the past ..."

In this case at the time he applied for pension the applicant was a brief-less barrister who had abandoned his practice because he was no longer receiving work from solicitors.

It seems to us therefore, that we cannot in these circumstances be reasonably satisfied that it was the applicant's incapacity from war-caused incapacity alone which led to him giving up practice but it was a combination of circumstances including the fact that his practice was no longer a viable practice and his outgoings were exceeding his income. That his practice was no longer viable was not solely due to war caused incapacity. For these reasons therefore the decision under review is affirmed.