Ralph v Repatriation Commission

Case [2015] FCA 165

FEDERAL COURT OF AUSTRALIA

Ralph v Repatriation Commission [2015] FCA 165

Citation: Ralph v Repatriation Commission [2015] FCA 165
Appeal from: Desmond Francis Ralph v Repatriation Commission [2013] AATA 948
Parties: DESMOND FRANCIS RALPH v REPATRIATION COMMISSION and ADMINISTRATIVE APPEALS TRIBUNAL
File number: VID 23 of 2014
Judge: MURPHY J
Date of judgment: 4 March 2015
Catchwords:

 DEFENCE AND WAR – Veterans’ entitlements — application for special rate of pension under the Veterans’ Entitlements Act 1986 (Cth) – date of lodgement - whether application lodged prior to applicant turning 65 – application of s 29 of the Acts Interpretation Act 1901 (Cth) and s 160 of the Evidence Act 1995 (Cth) to lodgement at an approved place under s 5T(2) of the Act

DEFENCE AND WAR – Veterans’ entitlements – application for special rate of pension under s 24(2A) of the Act – whether the applicant was engaged in “remunerative work” – whether the Tribunal misconstrued “working…for a continuous period of at least 10 years” under s 24(2A)(g) of the Act – whether the Tribunal misconstrued “suffering a loss” in s 24(2A)(g) of the Act
Legislation: Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Evidence Act 1995 (Cth)
Fair Work Act 2009 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
Cases cited: Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) (1988) 19 FCR 477
Collins v Administrative Appeals Tribunal and Another (2007) 163 FCR 35
Counsel v Repatriation Commission [2001] FCA 1032
Danagher v Child Support Registrar [2014] FCA 1408
Desmond Francis Ralph v Repatriation Commission [2011] AATA 881
Desmond Francis Ralph v Repatriation Commission [2013] AATA 948
Director-General of Social Services v Chaney (1980) 31 ALR 571
Federal Commissioner of Taxation v Trail Brothers Steel & Plastics Pty Ltd (2010) 186 FCR 410
Grant v Repatriation Commission (1999) 57 ALD 1
Hill v Repatriation Commission (2004) 82 ALD 60
Hill v Repatriation Commission [2000] FCA 929
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Nilant v Macchia (2000) 104 FCR 238
Repatriation Commission v Buckingham [1996] FCA 37
Repatriation Commission v Gordon and Others (1990) 26 FCR 569
Sheehy v Repatriation Commission (1996) 66 FCR 569
Thomson v Repatriation Commission (2000) 96 FCR 550
Date of hearing: 28 October 2014
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 97
Solicitor for the Applicant: Mr D De Marchi of De Marchi & Associates
Counsel for the First Respondent: Ms C Dowsett
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent: The Second Respondent filed a submitting notice

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 23 of 2014
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

DESMOND FRANCIS RALPH
Applicant
AND:

REPATRIATION COMMISSION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:

MURPHY J

DATE OF ORDER:

4 MARCH 2015

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The Applicant pay the First Respondent’s costs.

Note:Entry of orders is dealt…

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AGLC
Ralph v Repatriation Commission [2015] FCA 165
Case
[2015] FCA 165
Decision Date

CaseChat Overview and Summary

In the case of Ralph v Repatriation Commission, Desmond Francis Ralph appeals against a decision of the Administrative Appeals Tribunal, which in turn had affirmed a decision of the Repatriation Commission. Mr Ralph, a returned serviceman, applied for a special rate of pension under the Veterans’ Entitlements Act 1986, on the basis of war-caused disabilities that prevented him from continuing his employment. The crux of the dispute is the date of lodgement of Mr Ralph's application, which is pivotal as it determines the statutory requirements for eligibility. Mr Ralph contends that his application was posted on 16 April 2009 and was therefore deemed lodged on 22 April 2009, one day before his 65th birthday, by virtue of s 29 of the Acts Interpretation Act 1901 and s 160 of the Evidence Act 1995. The Commission, however, argues that the application was received on 1 May 2009, based on the Departmental date stamp.

The primary legal issues before the court were whether the application was effectively lodged prior to Mr Ralph turning 65, and whether the Tribunal correctly interpreted the statutory provisions concerning the eligibility for a special rate of pension. The court was required to assess the application of s 160 of the Evidence Act to the lodgement of the application and to determine whether the Tribunal had correctly applied s 24(2A) of the Veterans’ Entitlements Act 1986 in assessing Mr Ralph's eligibility. Specifically, the court had to consider whether Mr Ralph had been engaged in remunerative work for a continuous period of at least 10 years prior to lodging his claim, and if he was suffering a loss due to his incapacity.

The court found that s 160 of the Evidence Act did not apply to the lodgement of an application under s 5T(2) of the Veterans’ Entitlements Act 1986. It held that the application was received on 1 May 2009, as evidenced by the Department’s date stamp. Furthermore, the court determined that Mr Ralph had not continuously worked as a self-employed transport consultant for 10 years, thus failing to satisfy s 24(2A)(g) of the Act. Consequently, the appeal was dismissed, and Mr Ralph was ordered to pay the respondent's costs.

Orders

Orders of the court

1. The appeal is dismissed.

2. The Applicant pay the First Respondent’s costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The applicant, Desmond Francis Ralph, applies by way of an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) from a decision of the Administrative Appeals Tribunal (“the Tribunal”) of 24 December 2013 (Desmond Francis Ralph v Repatriation Commission [2013] AATA 948) (“the 2013 decision”). The Tribunal determined that he was not eligible for a special rate of pension under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”).BACKGROUND Mr Ralph is a returned serviceman having served in the Australian Army from 1966 to 1971, including operational service in Vietnam. He is in receipt of a pension under the Act at 100% of the general rate for his accepted war-caused conditions of post-traumatic stress disorder (“PTSD”), non-Hodgkin’s lymphoma, alcohol dependence, hypertension and ischaemic heart disease. It is uncontroversial that Mr Ralph applied for the special rate of pension in 2009 by posting an application to the office of the Department of Veterans’ Affairs (“Department”), but the date that his application was lodged is in dispute. The date of lodgement is crucial because there are different statutory requirements for veterans who are no longer working depending upon whether the application for an increased pension is lodged before or after the veteran reaches the age of 65. Applications made after a veteran turns 65 are decided under s 24(2A) of the Act and the requirements of that provision pose difficulties for Mr Ralph’s claim. On 28 July 2009 the Commission decided that Mr Ralph was not eligible for the special rate of pension. Mr Ralph applied for review by the Veterans’ Review Board (“VRB”), but on 27 May 2010 the VRB affirmed the Commission’s decision. On 26 August 2010 Mr Ralph appealed to the Tribunal. The Tribunal decided to treat the issue regarding the date of lodgement of Mr Ralph’s application as a preliminary issue. Mr Ralph stated that his application was posted on 16 April 2009 and he argued that, by operation of s 29 of the Acts Interpretation Act 1901 (Cth) (“Acts Interpretation Act”) and s 160 of the Evidence Act 1995 (Cth) (“Evidence Act”), the application is deemed to have been lodged four business days after it was posted, being 22 April 2009. This was one day before his 65th birthday on 23 April 2009. The respondent, the Repatriation Commission (“Commission”), argued that the application was lodged with the Department on 1 May 2009, as shown by the Departmental date stamp on the application. On 14 November 2011 the Tribunal decided that the application was lodged on 1 May 2009 and delivered ex tempore reasons. Subsequently at Mr Ralph’s request the Tribunal provided written reasons (Desmond Francis Ralph v Repatriation Commission [2011] AATA 881) (“the 2011 decision”). Mr Ralph then applied to the Federal Court by way of an appeal under s 44 of the AAT Act. The Commission objected to the competency of the appeal, contending that the Tribunal’s determination of the preliminary issue should not be understood as the effective determination of the application from which an appeal could lie: see Director-General of Social Services v Chaney (1980) 31 ALR 571 per Deane and Fisher JJ. On 8 February 2012 Marshall J upheld the objection to competency and dismissed the proceeding.

Evidence

Evidence Before The Court

Section 160 of the Evidence Act provides:(1)It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted.(Emphasis added)Section 24(2A) of the Act Section 24(2A) of the Act provides: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.THE TRIBUNAL DECISIONThe decision on the Lodgement Date Issue The Tribunal found in the 2011 decision (at [2]):Desmond Ralph celebrated his 65th birthday on 23 April 2009. A few weeks before his birthday, he decided to lodge an application for a special rate pension on the basis that his war-caused disabilities, for which the respondent had accepted liability, had prevented him from continuing his employment. He sought the assistance of a Returned and Services League (RSL) advocate, Mr John Meehan, in completing the form. Mr Ralph took the form to his doctor for the completion of a relevant part of a form [sic] and returned the form to the RSL. Mr Ralph and the RSL advocate believed that the form was posted to the Department of Veterans’ Affairs (DVA) in sufficient time for it to reach DVA before his birthday. Unfortunately, DVA’s records indicate that the application arrived on 1 May 2009. The Tribunal noted the evidence adduced on behalf of Mr Ralph (at [4]):Mr Ralph and Mr Meehan gave oral and written evidence. Mr Michael North, a volunteer who assists with administrative tasks including the mail at the Noble Park RSL, also gave oral evidence. All three of them firmly believed that the application was posted on 16 April 2009.

Decision

Reasons for decision

Question nine of the appeal must to be dismissed. I note also that nothing turns on this question. The Tribunal found that Mr Ralph had not continuously worked as a self-employed transport consultant for 10 years and he therefore failed to satisfy s 24(2A)(g). It was unnecessary for the Tribunal to decide whether he was suffering a loss, and even if this question was answered in Mr Ralph’s favour his appeal must be dismissed.CONCLUSION For the reasons I have set out I have ordered that the appeal be dismissed and the applicant pay the respondent’s costs.

Ratio Decidendi

Legal Principle Established

The Tribunal also said that s 160 of the Evidence Act did not apply to lodgement of an application under s 5T(2). It decided that the application was received on 1 May 2009, as recorded by the Department’s date stamp.The decision on the operation of s 24(2A) Because the application was lodged after Mr Ralph turned 65 the Tribunal dealt with it under s 24(2A) of the Act. The Tribunal explained its task in the following terms (at [7]):In deciding whether Mr Ralph is eligible for [a] 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?It is convenient to summarise the Tribunal’s decision under the same headings.Is Mr Ralph unable to engage in remunerative work for more than eight hours per week? Based on the evidence of Mr Ralph, two consultant psychiatrists and an occupational physician the Tribunal was satisfied that he was unable to undertake remunerative work for more than eight hours per week (at [15]). When and why did Mr Ralph stop working? The evidence relating to Mr Ralph’s employment history is set out in the Tribunal’s decision (at [16]-[38]) and may be broadly summarised as follows:(a)before his army service began in 1966 Mr Ralph worked at various jobs including as a labourer and truck driver (at [16]);(b)after he left the army in 1971 Mr Ralph commenced working in the transport industry and he was employed by Brambles for 19 years as a transport manager until 1990 (at [16] and [27]);(c)Mr Ralph was then employed by Westgate Logistics for 17 years including for three years in Sydney where he was NSW State manager (at [27]). He said that in 2005 he needed help because of his alcohol use and PTSD symptoms and he took annual leave and went to a psychiatric clinic in Richmond, New South Wales, subsequently continuing with outpatient treatment (at [34]); (d)he resigned from Westgate Logistics in February 2007. In his 2010 statement he said that he resigned because of increasing irritability and conflict with authority which had been impacting on his work and restricting his career opportunities (at [17]);(e)he said that he had a break from work for one month (at [34]) and then he commenced as a transport consultant in March 2007 working on his own account through JMR Management Consultancy Services (“JMR”);(f)he continued as a self-employed transport consultant through JMR until 9 April 2009 when he was forced to give up that work due to the deterioration in his accepted war-caused disabilities and their effect on his lifestyle and employment (at [18] and [20]);(g)in May 2009 Mr Ralph was referred to the Repatriation Hospital and he had further treatment including a three-week course on how to handle PTSD and alcohol dependence. He attended the hospital regularly over the next six months and he stopped drinking for about 90 days, but then gradually resumed doing so (at [36]); and(h)in the short period between February and March 2012 Mr Ralph returned to work on his own account as a self-employed transport consultant through JMR (at [13]).