Ralph and Repatriation Commission
[2013] AATA 948
•24 December 2013
[2013] AATA 948
Division VETERANS' APPEALS DIVISION File Numbers
2010/3627
Re
Desmond Francis Ralph
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 24 December 2013 Place Melbourne The Tribunal affirms the decision under review.
...........................[sgd].............................................
Regina Perton, Member
VETERANS’ APPEALS - pension at special rate – whether war caused conditions alone cause of inability to work – claim lodged shortly after applicant’s 65th birthday – whether applicant still working after 65th birthday – whether 10 years of work in same field as employee or contractor - decision under review affirmed
Veterans’ Entitlements Act 1986 sections 24(1)(a), (b), 24 (2A)
Grant v Repatriation Commission [1999] FCA 1629
Ralph and Repatriation Commission [2011] AATA 881REASONS FOR DECISION
Regina Perton, Member
24 December 2013
Desmond Francis Ralph, who is now 69 years old, served with the Australian Army (the Army) from 1966 to 1971. His service included operational service in Vietnam. Mr Ralph currently receives a service disability pension at 100 per cent of the general rate. He suffers from multiple medical conditions, of which post traumatic stress disorder (PTSD), non-Hodgkin’s lymphoma, alcohol dependence, hypertension and ischaemic heart disease have been accepted by the Repatriation Commission (the Commission) as having been war-caused.
Mr Ralph has applied for a special rate pension, which is a higher rate of pension paid to a person who is unable to work due to his accepted war caused disabilities alone. Mr Ralph, with the help of an RSL advocate, commenced preparing his claim some weeks before his 65th birthday. The Commission received the claim for an increase in pension on 1 May 2009. This was eight days after Mr Ralph’s 65th birthday. Mr Ralph, through his solicitor, contended that his claim should have been deemed to have been received prior to his 65th birthday.
There are differences in the statutory requirements depending on whether a claim is lodged before or after a veteran’s 65th birthday. In his claim, Mr Ralph stated that he had stopped working before his 65th birthday due solely to his accepted war-caused conditions.
The Commission rejected Mr Ralph’s application for special rate on 28 July 2009 because it determined that his application was lodged on 1 May 2009 after his 65th birthday. This impacted on his eligibility given Mr Ralph’s evidence that he had stopped working before that crucial birthday. The Veterans’ Review Board (VRB) affirmed the decision on 27 May 2010 on the same basis as the Commission. Mr Ralph applied to this Tribunal on 26 August 2010.
The Tribunal decided to make a finding on the date of lodgement of the claim prior to considering the other relevant provisions about special rate. On 14 November 2011 the Tribunal heard evidence and argument about the date of the claim. The Tribunal gave oral reasons setting out the reasons for its finding that the claim was lodged on 1 May 2009. Written reasons for decision were subsequently provided at Mr Ralph’s request (Ralph and Repatriation Commission [2011] AATA 881). Mr Ralph filed an application in the Federal Court seeking judicial review of the Tribunal’s finding concerning the date of lodgement of the claim. On 31 January 2012 Marshall J decided that the application for judicial review was not competent and the application was dismissed. The matter subsequently resumed before the Tribunal.
On 2 March 2012 the Tribunal made directions that Mr Ralph provide an amended Statement of Facts and Contentions. On 30 May 2012 Mr De Marchi, on behalf of Mr Ralph, maintained his earlier submissions that the claim should be deemed to have been received by the Commission before Mr Ralph’s 65th birthday. However, he also submitted that Mr Ralph was still entitled to the special rate pension:
…on the basis that his last paid work was as a consultant or sub-contractor, and is still working as such, albeit at 8 hours or less, and that he is unable to work more than 8 hours or less, and that he is unable to work more than 8 hours per work [sic] in that capacity due to his war-caused disabilities alone…
In deciding whether Mr Ralph is eligible for pension at the special rate, the Tribunal needs to consider:
·Is Mr Ralph unable to undertake remunerative work for more than eight hours per week?
·When and why did Mr Ralph stop working?
·Was Mr Ralph still working after his 65th birthday?
·Did Mr Ralph work for 10 continuous years prior to lodgement of his claim solely as an employee or contractor in the same field?
IS MR RALPH UNABLE TO WORK FOR MORE THAN EIGHT HOURS PER WEEK?
In his written and oral evidence, Mr Ralph stated that he has been unable to work for more than 8 hours per week since before his 65th birthday. He described the impact of PTSD and alcohol dependence on his work performance.
Dr Karin Reinhardt, Consultant Psychiatrist in Richmond NSW, provided a report on 31 May 2005 to the Department of Veterans Affairs (DVA) concerning Mr Ralph. She summarised his condition at that time as follows:
Mr Ralph satisfies DSMIV criteria for Chronic war-caused Post Traumatic Stress Disorder and Alcohol Dependence.
Social and recreational functioning are significantly impaired.
He is currently still working full time but with marked loss of time and productivity.
On 8 April 2009 Dr Reinhardt reported as follows:
This is to certify that Mr Desmond Ralph suffers from severe chronic post-traumatic stress disorder and alcohol abuse.
His symptoms are now of such severity that due to this alone he cannot work and is not suitable for retraining.
On 23 February 2011 Dr Robyn Horsley, occupational physician, provided a report to Mr Ralph’s solicitors. Dr Horsley provided both a work history and a history of his treatment for his accepted disabilities. She deferred to her psychiatrist colleagues for expert opinion about his capacity to work from the psychiatric perspective. She reported that his physical disabilities had not been the reason for him ceasing work but rather because of his alcohol abuse and chronic PTSD.
On 5 April 2011 Dr Nigel Strauss, consultant psychiatrist, provided a report to Mr Ralph’s solicitors. In giving his opinion concerning Mr Ralph, Dr Strauss stated:
This man suffers from a chronic post-traumatic stress disorder and alcohol abuse and dependence.
I believe that these psychiatric problems are as a consequence of his alleged experiences in Vietnam some years ago. No other factors are relevant.
…
He has had some treatment in recent years which is helped to a certain extent but he still has those psychiatric problems and they are permanent….
He has worked very hard over the years possibly as a way of dealing with his psychiatric distress and I note that he self medicated for many years with alcohol.
There have been significant interpersonal relationship problems for this man over the years both at work and at home but I note that he is no longer working and his anger with others has subsided. He has become withdrawn and prefers to be alone. His wife is obviously very supportive. He seems to be getting on well with his sons. He does not seem to have any personal or close friends.
He lives a very isolated and restricted life.
This man had difficulty relating to me at interview but he did his best and I feel that I made a reasonable assessment of his situation.
This man has to be considered to be totally and permanently incapacitated.
…
I believe that his decision to cease work and his inability to continue to work and earn remuneration is entirely the result of his accepted psychiatric disabilities alone.
…
Mr Ralph resumed some consultancy work in 2012 but indicated that it was for less than 8 hours per week. In a letter to his solicitor dated 1 March 2013, Mr Ralph provided the following details:
Hours worked – 2012 per week
Feb 2nd – 7 hours
Feb 13th – 7 hours
Feb 20th – 6 hours
Feb 27th – 6 hours
Mar 13th – 5 hours
Mar 18th – 3 hours
Average 5.66 hours per week.
He also provided details of possible assignments between March 2012 and March 2013. Only one of four possible consultancies came to fruition and that was for approximately 4 hours.
Based on Mr Ralph’s evidence and that of the medical specialists, including those above, the Tribunal is satisfied that Mr Ralph is unable to work for more than eight hours per week.
WHEN AND WHY DID MR RALPH STOP WORKING?
Before his army service which began in 1966, Mr Ralph worked at various jobs including as a labourer and truck driver. After he left the army in 1971, Mr Ralph commenced working in the transport industry. Mr Ralph worked for Brambles for 19 years before joining Westgate Logistics where he was employed for 17 years until he resigned in February 2007.
In an employment history which he signed on 22 November 2010 (the 2010 employment history), Mr Ralph stated that he resigned from Westgate Logistics due to:
…My increasing irritability and conflict with authority had been impacting on my work and restricting my career opportunities…
In the 2010 employment history, Mr Ralph stated that he commenced as a consultant to the logistics industry through JMR Management Consultancy Services (JMR) in March 2007, doing so until March 2009. He invoiced his clients through JMR. His clients included Laverton Transport, Mitre 10 Hardware and Linfox Logistics.
In early March 2009, the Group General Manager Logistics Operations Planning for National Foods, Tim Ford, sought Mr Ralph’s services for two years as a part-time consultant in its logistics area. Mr Ralph stated that he declined the position:
…Having sought this position, I then had to decline as I was no longer capable of performing the duties involved as a result of my accepted disabilities. However, although this was due to the embarrassment caused by my condition (post traumatic stress disorder), I advised Tim Ford that my reason were for “Family Commitments”.
In his claim form for pension increase, Mr Ralph stated that he had been forced to give up employment on 9 April 2009 primarily due to deterioration in his accepted conditions and the impact of that on his lifestyle, including his employment.
In a letter dated 9 April 2009, R McDonald, Financial Controller of JMR stated:
Dear Des,
JMR Management Consultancy Services acknowledges your resignation as a consultant, effective from Thursday, April 9, 2009, on medical grounds.
Aware of your lessening ability to concentrate, meet deadlines, and deteriorating relationship management, with clients and staff, we respect your decision to resign, and wish you well for the future.
In a later employment history dated 26 July 2012 (2012 employment history), Mr Ralph stated that while he was working with Westgate Logistics, he was concurrently a director and consultant to Jet Couriers Pty Ltd (Jet Couriers) and Metrans Pty Ltd (Metrans). Those companies were run by two of his four sons. Mr Ralph stated that he had use of a motor car by way of remuneration from Jet Couriers and Metrans. Mr Ralph estimated the value of the car to be around $23,000 although he stated that he did not include any mention of the cars in his tax returns. Mr Ralph went on to state that in the financial years 2008/2009, 2009/2010 and 2010/2011, he consulted for his sons’ companies for not more than six hours per week. He stated that:
10. By way of explanation, my consulting work for JMR was for external clients whereas for JETCOURIERS and METRANS it was internal consulting work for the companies.
Mr Brett Ralph, Managing Director of Jet Couriers provided a statement dated 13 August 2012:
Re: Request, Remuneration and Consulting Details for D. F. Ralph
Established in 1996, Jet Couriers Pty Ltd and Metrans Pty Ltd operate transport and couriers businesses in all Australian state capital cities, and some regional areas.
With fifteen (15) operating depots, the businesses are highly reliant on the performance of branch managers and their staff. As a director and more particularly a consultant, Mr Ralph was an integral contributor to the performance of the businesses. Having over forty (40) years experience in most facets of transportation, his contacts, knowledge, and insights, are used in supporting staff development and decision-making.
Mr Ralph’s unique position within Westgate Logistics enabled him the flexibility to provide consultation to Jet Couriers and Metrans, as, and when required. With an arms length approach, he was able to guide sales staff when to offer transport solutions to Westgate and their Blue Chip clients. This situation would occur when the task was beyond the scope of Westgate. (Courier and light truck supply)
The hours worked by Mr Ralph between 1996 and 2007 were the equivalent of one and a half to two days per week, with his remuneration being the supply of a motor vehicle, usually a Holden Statesman.
In a statement dated 18 February 2013, Mr Brett Ralph stated:
Re: Employment Details Regarding D. F. Ralph
Further to my letter dated August 12, 2012, I have been asked to provide detail for specific period years 2008 to 2012, regarding work performed by Des Ralph.
While a Director and Secretary of Jet Couriers, Des also provided contract consultancy to the various branches of the business. This included Occupational Health and Safety Compliance, advising on staff remuneration, mentoring, and sales initiatives. Consultancy provided by Mr Ralph was from 2008 – 2012 inclusive.
...
Des also liaised with Pellacano Construction in the design and construction of a new Head Office facility, located at South Dandenong.
Remuneration for this work was the provision of a motor vehicle.
In a letter dated 19 February 2013 addressed to his solicitor, Mr Ralph stated:
Re: Clarification Operators of Jet Couriers / Metrans
Brett Ralph is the Managing Director and Shaun Ralph is the Operations Director of Jet Couriers and Metrans Pty Ltd.
They are two of my four sons, and have held their positions since they started the companies.
Apart from being the Chairman and Secretary, my involvement has been to provide the start-up funds in the form of a line-of-credit, for the businesses. Since re-paid in full with the deeds from the family home returned from the bank.
My consultancy has always been to the management as distinct from client involvement.
In a letter dated 18 June 2013, Mr Bogumil Zaleski, Div Manager Procurement & Supply Chain of Associated Retailers Ltd, stated that:
During the period August 2011 and June 2012 I held the position of Operations Manager, Westgate Ports, located at Victoria Dock, Melbourne.
Cube Logistics acquired Westgate Ports in late March 2012 and I remained with the business until June, 2012.
Prior to the acquisition, during February and March, I took direction on Industrial and Key contractual matters from Mr Des Ralph, who was consulting to Westgate Ports.
In his oral evidence Mr Ralph described his occupation as transport manager and consultant to the transport industry. He confirmed the details given in his employment histories namely that he worked with Brambles as a transport manager for 19 years from 1971 until he left in 1990. He then worked with Westgate Logistics for 17 years mainly in Melbourne but then for three years in Sydney where he was state manager of the company. He said that when he was managing NSW, he would spend Monday in Melbourne and usually spend part of Monday with Jet Couriers. His boss at Westgate Logistics knew about it and accepted the situation.
Mr Ralph said that Jet Couriers and Metrans commenced in 1996. Mr Ralph was initially the Secretary/Director of the company. He and his wife gave a start-up loan for the business which quickly became profitable. He said there was no conflict of interest between his work for Westgate Logistics and Jet Couriers because that involved semi-trailers not couriers. When Westgate’s clients wanted to use couriers, the owner of Westgate was happy for him to pass it on to Jet Couriers.
Mr Ralph said that from 1996, he assisted Jet Couriers in recruitment, was a mentor for the young managers and would provide leads. There were no invoices prepared in relation to his work. His role was advisory and counselling. He had knowledge of the industry and business opportunities that might arise. Mr Ralph said they started with one depot and now had 15 operating depots.
Mr Ralph said that between 1996 and 2007 he worked up to 16 hours per week for Jet Couriers and Metrans, its sister company. Much of his work for those companies was done in the evenings or on the weekend. Mr Ralph said that he often worked 60 to 80 hours per week between his work as an employee of Westgate and his work for Jet Couriers. Mr Ralph said that he has always had a motor vehicle provided to him through Jet Couriers.
Mr Ralph said that more recently, Jet Couriers had built a new head office in Dandenong. Mr Ralph’s role was to liaise with the builder. He was also involved in helping to supervise the construction of another building that Jet Couriers built in Bayswater. Mr Ralph said that the hours he worked for Jet Couriers and Metrans in the years 2008 to 2012 were probably about 4 to 6 hours per week. When asked why he did not work more hours, Mr Ralph said that if the work involved decision-making as opposed to repetitious work, he now struggled.
In relation to his work for JMR, Mr Ralph said that the monies were paid into his superannuation fund. He described the work he had done in 2012 through JMR. Mr Ralph said he would still be doing consultancies were it not for the impact of the PTSD. Mr Ralph said he was in poor shape at the time he lodged his claim and was advised by the RSL to provide a letter of resignation.
Mr Ralph said that when he lodged his claim, he did not consider that what he did for Jet Couriers would be considered as work for which he was paid as it was “internal” work. He did not consider he was being paid to do that work for Jet Couriers which was different to the consultancies he did through JMR.
Mr Ralph said that in 2005 he realised he needed help because of his alcohol use and PTSD symptoms. He took annual leave and went to a psychiatric clinic in Richmond NSW and subsequently continued with outpatient treatment. Only his wife knew about that admission for assistance. He said he stopped drinking for a time. Mr Ralph said that eventually the owner of Westgate Logistics realised he had a drinking and psychiatric problem but he was grateful for the huge amount of business Mr Ralph had built up and was prepared to give him a token position as a thank you. However Mr Ralph decided to resign. He had a break for about a month and then started doing consulting work for JMR. He described what he did in each consultancy between 2007 and 2009.
Mr Ralph said that he had begun drinking again by 2008. That combined with the PTSD resulted in an inability to get on with people. He would sometimes miss deadlines and this damaged his reputation.
In May 2009 Mr Ralph was referred to the Repatriation Hospital where he undertook further treatment. He undertook a three week course, being taught skills on how to handle PTSD and alcohol. He then attended regularly over the following six months and went 90 days without a drink. But then he gradually started drinking again. He said that he was still assisting at Jet Couriers during that period.
Asked under cross-examination as to what he was doing around September 2009, Mr Ralph said that he spent some time assisting at Jet Couriers, spent time gardening in the two acre garden at his home and walked a lot to try and make himself tired. He repeated that he had not mentioned his work with Jet Couriers at an earlier stage as he did not consider it to be work at the time he lodged his claim.
Mr Ralph described in detail the work he did for Jet Couriers which has now expanded to the United States as well as Australia. He also described the nature of the advice he provided which has contributed to the company’s success. Mr Ralph said it was decided that he would be provided with a car by way of remuneration for the work he did for the company. He said he had not claimed it as personal income. Mr Ralph said that when he was working for Westgate Logistics he had use of a car through that company as well as one from Jet Couriers. He said that at one stage he had four vehicles, two in Sydney and two in Melbourne.
Mr Ralph said that he cannot remember what he signed when he filled in the claim form for special rate. An RSL advocate asked him questions which he responded to and then he signed the claim form.
Mr Brett Ralph gave oral evidence. Asked what his father’s role was in establishing the company in 1996 Mr Brett Ralph said that he established the company for him and was his advisor and mentor. He gave examples of the nature of advice that his father had given him. His father was involved in strategic planning and still helps out a little now. However he has noticed a loss of confidence in his father and a gradual decline in his father’s performance. He said his father can still contribute to the company but not to the extent he did in the past. He described his father’s activities in relation to supervising the projects for the new buildings, by regularly visiting and keeping an eye on things.
Mr Brett Ralph said his father was a very private person and he had not been aware of the extent of his father’s alcohol and psychiatric problems until relatively recently. He described the family as close.
Mr Brett Ralph said that his father’s remuneration was a vehicle. The decision to provide him with a car was his and his brother’s. He could not recall why they decided on a car but it was as a gesture of appreciation. Their mother does not get a vehicle through Jet Couriers. He cannot recall when the provision of the car commenced saying that the company has over 100 vehicles. He said his father is responsible for the FBT on the car and for the registration and running costs.
The Tribunal is satisfied that Mr Ralph was a truthful witness. It appears that it was only after the Tribunal made its finding about his age at the time of lodgement of the claim that it was suggested to Mr Ralph that his role at Jet Couriers might be classified as employment. It may well be that the time this matter has taken to get to its final hearing due to delays as a result of the Federal Court action and in the Commission seeking financial details from him has allowed Mr Ralph to provide a different slant on when he stopped working. The Tribunal is satisfied that Mr Ralph is no longer able to work for more than eight hours per week. It is also satisfied that he has undertaken work after his 65th birthday.
DOES MR RALPH MEET THE REQUIREMENTS FOR SPECIAL RATE?
The provisions concerning qualification for special rate set out in section 24 of the Veterans' Entitlements Act 1986 (the Act) for someone whose claim was lodged after his 65th birthday are set out below:
24(1) This section applies to a veteran if:
…
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force…
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused 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…
…
(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
(c) paragraphs (1)(a) and (1)(b) apply to the veteran; 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.
(2B) For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war caused injury or war caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war caused injury or war caused disease, or both; or
(b) the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.
Remunerative work is defined in section 5Q(1) of the Act as follows:
remunerative work includes any remunerative activity
Mr Ralph is receiving a pension at 100 per cent rate and the Tribunal therefore finds that he meets the requirements of section 24(1)(a) of the Act.
In relation to section 24(1)(b) of the Act, the Tribunal is satisfied, based on the evidence of the psychiatrists and Mr Ralph himself, that Mr Ralph is incapable of undertaking remunerative work for more than eight hours per week due to his accepted disabilities and has been unable to do so since before his 65th birthday. The evidence he has provided after the Tribunal’s finding concerning the date of lodgement, was that he continued to do some work after his 65th birthday but it was always for less than eight hours per week.
The Tribunal has already determined that Mr Ralph lodged his claim after his 65th birthday so he meets sections 24(2A)(a), (b) and (c).
Mr De Marchi, appearing for Mr Ralph, discussed the role played by Mr Ralph in the establishment of the companies now managed by Mr Brett Ralph. He had taken out a line of credit and had initially been the 100% shareholder but that had now changed. He emphasized that Mr Ralph had been providing advice and guidance since 1996 in his capacity as a consultant in the transport logistics field.
In relation to whether Mr Ralph had been working as a consultant for a continuous period of at least 10 years that began before Mr Ralph turned 65, Mr De Marchi submitted that Mr Ralph had worked for JMR for more than 2 years before his claim and was still effectively involved in transport logistics consulting through his work for Jet Couriers and Metrans.
Mr De Marchi cited the Full Federal Court decision of Grant v Repatriation Commission [1999] FCA 1629 as supporting his client’s case. In Grant, the Court stated:
…
7 Section 5Q defines "remunerative work" as including any remunerative activity. Sections 19(5), 19(9) and 24A operate to entitle a veteran, who satisfies the requirements of s 24 at any time during the assessment period (being the period starting on the day the application or claim for a pension is made and ending when the claim or application is determined) to a pension at the special rate until, inter alia, the veteran is undertaking or is capable of undertaking remunerative work for periods aggregating more than eight hours per week (s 24A(1)(c)).
8 In order for a decision maker to be satisfied that the criterion in s 24(2A)(d) has been met the decision maker must determine:
* the "remunerative work" that the veteran was last undertaking before he or she made the claim or application;
* whether the veteran is, at any time during the assessment period, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake that remunerative work.
9 Determination of the "remunerative work" referred to in s 24(2A)(d) requires the characterisation of the specific remunerative activity or activities that the veteran was last undertaking before making the claim or application rather than of the capacity in which that work was undertaken. The particular capacity in which the work was undertaken is dealt with as a separate criterion in s 24(2A)(g). Thus, whether or not the work was undertaken as an employee or as a self employed person is irrelevant to the characterisation to be given to that work under s 24(2A)(d). That conclusion follows from the definition of "remunerative work" in s 5Q, the recognition in s 24(2A)(g) that the capacity in which work is undertaken is to be treated as a matter separate from the work that was undertaken for the purposes of s 24 and is consistent with the purpose of s 24(2A) of providing for payment at the special rate where a person is prevented solely by war-caused incapacity from continuing to undertake the work that the veteran was last undertaking before making the claim or application. In our view it would be inconsistent with that purpose for the characterisation of that work to include, or to be made to depend upon, the capacity in which that work was undertaken.
10 Section 24(2A)(d) can be contrasted with s 24(1)(c) which provides for a pension at the special rate for veterans under the age of s 65 who are prevented by war-caused injury or disease from undertaking "remunerative work that the veteran was undertaking"; a term which has been construed as referring to the type of work that the veteran previously undertook: see Banovich v Repatriation Commission (1987) 69 ALR 395 at 402. Although by focusing upon the last paid work s 24(2A)(d) may be more restrictive than s 24(1)(c), which focuses upon remunerative work of the type the veteran previously undertook, neither sub-section is concerned with the capacity in which that work is undertaken.
11 Having identified the last paid work for the purposes of s 24(2A)(d) the decision maker is then required to determine whether at any time during the assessment period because of incapacity from war caused injury or disease or both, alone, the veteran was prevented from continuing to undertake that remunerative work. Thus, the reason why the veteran may have ceased to undertake the last paid work prior to the date of the claim is relevant to, but not determinative of, the inquiry required by s 24(2A)(d).
12 A veteran who has satisfied the requirements of s 24(2A)(d) must also satisfy the criterion in s 24(2A)(e) that, because the veteran was 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 account, that he or she would not be suffering if he or she were free from the incapacity.
Mr De Marchi submitted that Mr Ralph has been forced to curtail his work with JMR, which he resumed for a brief period in 2012, because of his accepted war caused conditions alone. He also submitted that the requirement for working for 10 years as a transport consultant was met through a combination of his work for JMR and for Jet Couriers and Metrans.
Mr Brown, appearing for the Commission, stated that Mr Ralph had ceased working for JMR prior to his 65th birthday, which was evidenced by his letter of resignation. He submitted that his return to working for JMR for a short period three years later does not result in him meeting the requirement of a ten year period as a consultant as set out in section 24(2A)(g) of the Act.
Mr Brown characterised Mr Ralph’s work for Jet Couriers and Metrans as being involved in a family business. He noted that Mr Ralph had played an important role in its development and was still making a contribution when asked to do so. He pointed out that Mr Ralph was still receiving remuneration in terms of having a car provided by the companies. He was not receiving any other remuneration beyond the car from Jet Couriers prior to his claim being lodged nor during the assessment period. Nothing has changed over the years as far as provision of the car is concerned. Mr Brett Ralph was unable to say why he and his brother had originally decided on providing the car beyond expressing his and his brother’s gratitude for their father’s role in creating and supporting the companies and his ongoing advice to them. Mr Brown pointed out that Mr Ralph is no worse off now than he was before the claim was lodged as far as recompense from Jet Couriers and Metrans is concerned.
The Tribunal is satisfied that Mr Ralph was working as a transport logistics consultant through JMR prior to making his claim and did so again for a short time some three years later. The Tribunal accepts that he was unable to continue the role through JMR after resuming it for a short time and that his accepted war-caused conditions were again the cause as they were when he ceased in April 2009. He therefore meets section 24(2A)(d) of the Act.
The Tribunal is also satisfied that Mr Ralph meets the criteria in sections 24(2A)(e) of the Act on account of the work he did for JMR for a relatively short period in 2012. That work was after Mr Ralph had turned 65 so he meets section 24(2A)(f) of the Act.
In terms of section 24(2A)(g) of the Act, the question arises as to whether Mr Ralph had been working on his own account as a transport logistics consultant for a continuous period of 10 years when guiding his sons in relation to the activities of Jet Couriers and Metrans and with JMR. Was he helping them out as a wise and caring father or doing so as a consultant? If he submits that he was working as a consultant, where does the provision of the car as remuneration fit in given he still has a car provided through Jet Couriers.
In his oral evidence, Mr Ralph told the Tribunal that at the time he made his 2010 employment statement, he did not classify his activities for Jet Couriers and Metrans as work. He changed his perspective when presenting his 2012 employment history and related statements.
In terms of Mr Ralph’s activities helping his sons’ companies, the Tribunal prefers Mr Brown’s submissions that he was not working on his own account in his profession, trade, employment, vocation or calling but rather advising and guiding his sons as a father with a pertinent background. Furthermore, if he has now ceased assisting them, which was not clear from the evidence before the Tribunal, Mr Ralph has not suffered any loss as he still maintains use of a car of the same standard as before he stopped working and has not suffered a loss. The Tribunal finds that Mr Ralph has been assisting his sons in their family business as a wise family member rather than as a paid consultant.
In terms of ceasing work with JMR, Mr Ralph did so prior to his claim in April 2009 after two years as a consultant. He then resumed three years later for a short period. He earned remuneration and it has now ceased. However, his work with JMR as a consultant has not been for a continuous period of 10 years before ceasing work. That consulting work began before Mr Ralph turned 65 but it stopped for some three years. The Tribunal finds that Mr Ralph did not work as a consultant for the requisite period set out in the legislation, namely for a continuous period of 10 years before he turned 65.
The Tribunal finds that Mr Ralph does not meet the criteria section 24(2A)(g) of the Act. He is therefore not eligible for payment of a pension at a special rate.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member.........................[sgd]...............................................
Associate
Dated 24 December 2013
Dates of hearing 14 November 2011, 29 July 2013, 22 August 2013 Counsel for the Applicant Mr D De Marchi Solicitors for the Applicant De Marchi & Associates Counsel for the Respondent Mr G Purcell (14 November 2011) Advocate for the Respondent Mr D Brown (29 July 2013, 22 August 2013) Solicitors for the Respondent Australian Government Solicitor
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