Peacock v Repatriation Commission

Case [2004] FCA 1449

FEDERAL COURT OF AUSTRALIA

Peacock v Repatriation Commission [2004] FCA 1449

DEFENCE AND WAR – veterans´ entitlements – appeal from the Administrative Appeals Tribunal – disability pension – special rate of pension under s 24 of the Veterans´ Entitlements Act 1986 (Cth) – whether medical evidence at time of retirement necessary to satisfy the test in Flentjar v Repatriation Commission (1997) 48 ALD 1 – whether applicant was prevented from working by war-caused injury or war-caused diseased alone – applicant entered contract designed to end when he could access his superannuation benefits – whether access to superannuation benefits could prevent the applicant from working.

Veterans’ Entitlements Act 1986 (Cth) s 24
Administrative Appeals Tribunal Act 1975 (Cth) s 44

Flentjar v Repatriation Commission (1997) 48 ALD 1 applied

GEOFFREY PEACOCK v REPATRIATION COMMISSION

Q 92 OF 2004

DOWSETT J
11 NOVEMBER 2004
SYDNEY (VIA VIDEO-LINK) HEARD IN BRISBANE


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 92 OF 2004

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

GEOFFREY PEACOCK
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

DOWSETT J

DATE OF ORDER:

11 NOVEMBER 2004

WHERE MADE:

SYDNEY (VIA VIDEO-LINK) HEARD IN BRISBANE

THE COURT ORDERS THAT:

1.The decision of the Administrative Appeals Tribunal made on 25 May 2004 be set aside;

2.The matter be remitted to the Tribunal for further consideration in accordance with law; and

3.        The respondent pay the applicant’s costs of this appeal.

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


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 92 OF 2004

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

GEOFFREY PEACOCK
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

DOWSETT J

DATE:

11 NOVEMBER 2004

PLACE:

SYDNEY (VIA VIDEO-LINK) HEARD IN BRISBANE

REASONS FOR JUDGMENT

INTRODUCTION

  1. This is an appeal from a decision of the Administrative Appeals Tribunal (the “Tribunal”), rejecting the applicant’s claim to a special rate of pension pursuant to s 24 of the Veterans’ Entitlements Act 1986 (Cth) (the “Act”).

    THE APPLICANT’S SERVICE AND WORK HISTORY

  2. The applicant was born on 29 March 1945.  He served with the Australian Army in Vietnam from 24 May 1966 to 6 May 1967.  Prior to that, he had worked in local government administration in Victoria.  After his discharge from the army, he returned to that industry, working in various capacities until he retired on 14 April 2000.  Prior to such retirement, he was the Council Support Executive Officer for the Shire of Yarra Ranges, which position he held pursuant to a fixed-term contract for a period of three years and three months from 15 January 1997.  He had previously been a permanent employee of the council.  From 1994 until November 1998, the Chief Executive Officer (the “CEO”) of the council was Mr Eric Howard.  Mr Howard, on behalf of the council, entered into the fixed-term contract with the applicant.  With reference to that contract, the Tribunal recorded in its reasons, at [16] that:

    ‘The applicant said…

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Details
AGLC
Peacock v Repatriation Commission [2004] FCA 1449
Case
[2004] FCA 1449
Decision Date

CaseChat Overview and Summary

In the case of Peacock v Repatriation Commission, the applicant sought a review of a decision made by the Administrative Appeals Tribunal (AAT) regarding his eligibility for a special rate pension under the Veterans' Entitlements Act 1986 (Cth). The applicant, who had served in the Australian military, contended that he was entitled to the special rate due to his war-caused disabilities, which included alcohol dependence, hypertension, chronic simple bronchitis, post-traumatic stress disorder, and others. The AAT had previously dismissed the applicant's appeal, finding that he did not meet the criteria for the special rate pension.

The primary legal issues before the court were whether the Tribunal correctly interpreted the provisions of the Veterans' Entitlements Act 1986 (Cth) and whether the applicant's cessation of employment was due to his incapacity rather than other reasons. Specifically, the court had to determine if the applicant satisfied the conditions set out in sections 24(1)(c) and 24(2)(a)(i) of the Act. The court also needed to consider whether the Tribunal properly assessed the applicant's disabilities and their impact on his ability to engage in remunerative employment.

The court found that the Tribunal had misunderstood the provisions of section 24(1)(c) and the decision in Flentjar v Commonwealth. The Tribunal had incorrectly focused on the applicant's access to superannuation benefits in its decision, rather than on the impact of his war-caused disabilities on his capacity to work. The court noted that the Tribunal did not address the specific issue of whether the applicant ceased work due to his incapacity, as required by section 24(2)(a)(i). Consequently, the court concluded that the Tribunal's decision must be set aside, and the matter should be remitted for further consideration in accordance with law.

The court ordered that the decision of the AAT be set aside, the matter be remitted to the Tribunal for reconsideration, and the respondent pay the applicant's costs of the appeal. This decision underscores the importance of correctly interpreting statutory provisions and thoroughly assessing the impact of disabilities on an individual's ability to work when determining eligibility for special rate pensions under the Veterans' Entitlements Act 1986 (Cth).

Orders

Orders of the court

1. The decision of the Administrative Appeals Tribunal made on 25 May 2004 be set aside;

2. The matter be remitted to the Tribunal for further consideration in accordance with law; and

3. The respondent pay the applicant’s costs of this appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The respondent accepts that the applicant suffers from alcohol dependence, hypertension, chronic simple bronchitis, post traumatic stress disorder (“PTSD”), haemorrhoids, gastro-oesophageal reflux disease, irritable bowel syndrome, bilateral sensori-neural hearing loss with tinnitus, and impotence. For present purposes his alcohol dependence and PTSD are of primary importance. The respondent accepts that all relevant conditions are war-caused.EVIDENCE AS TO THE APPLICANT’S DISABILITIES Mr Howard considered that the applicant had been an entirely satisfactory employee but that this had probably been at some cost to himself. Mr Hauser also considered that the applicant’s service had been satisfactory. The expiry of his contract coincided with a decision by Mr Hauser to abolish his position as part of a re-organization of the council’s workforce. The applicant said that whilst he was working, he felt as if he were “two people”. At work, he was thorough and methodical, although not good at dealing with people; at home he was moody, unsociable and inclined to consume excessive amounts of alcohol. His wife supported this account. In the mid-1980s the applicant had consulted Dr Tom Smythe, a general practitioner, for depression. He declined to see a psychiatrist and did not otherwise seek medical advice concerning depression, stress or any associated condition until after he moved to the Gold Coast. As I have said, in 1997 the applicant entered into a contract of employment which was to expire when he became entitled to his superannuation benefits at age 55. The thrust of his evidence was that he continued to work until that time in order to secure his financial position but did so with difficulty. Since mid-2001, he has been seeing a general practitioner, Dr Helen Bothwell. Dr Bothwell reported that:‘Geoffrey has suffered from significant Post Traumatic Stress Disorder since his discharge from the Armed Services in 1968.Prior to 1985 Geoffrey, had undergone random spasmodic assessment and treatment for this condition until he suffered a nervous breakdown in 1985. This required psychiatric assessment, medication and supportive services to assist his recovery. After this time and up til now Geoffrey has continued to internalise his emotions, he has suffered nightmares, flashbacks and has been socially withdrawn for years. This condition has deteriorated progressively over the past 5-10 years.’ In a later report Dr Bothwell said:‘I, Helen Bothwell, have reviewed Geoffrey on a regular basis over the past 12 months at the Renaissance Medical Centre. He presented with a long history of increased anxiety, insomnia, nightmares, flash back and social withdrawal since his discharge from the Armed Forces in 1967. There has been associated behavioural changes including regular excessive alcohol consumption during his time in the Army and subsequently alcohol abuse and occasional physical violence since his discharge. Geoffrey was originally, prior to his drafting, a non smoker, however post draft and then post discharge, Geoffrey has remained a 1-2 packet/day smoker.Geoffrey has also described a multitude of additional symptoms with the following diagnoses, including chronic tinnitus, sensorineual hearing loss, impotency, posttraumatic stress disorder, chronic bronchitis, irritable bowel syndrome and haemorrhoids. All of which are attributed to Geoffrey’s active time in the Armed Forces.Thus considering Geoffrey’s current physical and psychological conditions i.e. Post Traumatic Stress Disorder and Generalized Anxiety Disorder, plus those mentioned previously, he would be unable to undertake remunerative employment for less than 8 hours per week. As previously stated, Geoff’s precarious mental stability is a result of his active involvement in the Army during the Vietnam War, and this alone has contributed wholly and solely to his diminished mental capacity now. These conditions have been present and progressive over the past 35 years since Geoffrey’s discharge in 1967. Thus Geoffrey’s current medical conditions are considered permanently disabling. As Geoffrey still suffers from both physical and psychological conditions which will not be cured. Given the nature and extent of Geoffrey’s precious [sic] medical circumstances I would have to state that in my medical opinion Geoffrey is totally and permanently disabled and is unsuitable for present/future rehabilitation. This is due to his accepted disabilities as per the Department of Veteran Affairs assessment, there by rendering Geoffrey, again, unable to undertake remunerative employment for up to 8 hours per week…’

Decision

Reasons for decision

DOWSETT J
Favourable answers to the four Flentjar questions would not necessarily result in a favourable outcome for the applicant. It was also necessary to address subpar 24(2)(a)(i). Clearly, the applicant ceased to engage in remunerative work in 2000. If he ceased work for some reason other than his incapacity, he would be ineligible for the special rate. In the present case, the operation of par 24(1)(c) and subpar 24(2)(a)(i) may overlap, both focusing upon the role of the applicant’s access to superannuation benefits in his decision to retire. However there will be cases in which they do not do so. The latter sub-section seems to be directed at the situation in which a veteran has ceased to work in a particular area for reasons unconnected with his war-caused conditions and thereafter asserts that, but for such conditions, he would have again sought and obtained employment in the same area. Such a person might satisfy par 24(1)(c) but not satisfy subpar 24(2)(a). The Tribunal did not deal with this aspect. As I have observed, it considered the operation of par 24(2)(b), finding that it did not apply so as to benefit the applicant. There is no appeal from that decision. CONCLUSIONS I conclude that the Tribunal has misunderstood both par 24(1)(c) and the Flentjar decision. It follows that its decision must be set aside.ORDERS I order that:·the decision of the Administrative Appeals Tribunal made on 25 May 2004 be set aside;·the matter be remitted to the Tribunal for further consideration in accordance with law; and·the respondent pay the applicant’s costs of this appeal.

Ratio Decidendi

Legal Principle Established

Established by: DOWSETT J

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