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 550Date 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
ApplicantAND: REPATRIATION COMMISSION
First RespondentADMINISTRATIVE 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
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
Evidence
Evidence Before The Court
Decision
Reasons for decision
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]).