Reardon and Repatriation Commission
[2008] AATA 609
•14 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 609
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W200702524
GENERAL ADMINISTRATIVE DIVISION ) Re DAVID ARTHUR REARDON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms L R Tovey, Member
Dr D Weerasooriya, Member
Date 14 July 2008
PlacePerth
Decision The Tribunal sets aside the decision of the Veterans' Review Board made on 15 March 2007 and the decision of the Respondent dated 18 July 2006 and substitutes a decision that the Applicant is entitled to a special rate of pension with effect from 28 December 2005. ….....(sgd) Ms L R Tovey.........................
Member
CATCHWORDS
VETERANS' ENTITLEMENTS – whether Applicant qualifies for special rate of pension
Veterans' Entitlements Act 1986 (Cth), ss 13(1), 15(1), 17, 19, 21, 22, 24(1), 24(2), 24(4), 25, 120(4).
Banovich v Repatriation Commission (1986) 69 ALR 395
Re Bonner and Repatriation Commission (1989) 17 ALD 680
Re Bucknall and Repatriation Commission (2008) 99 ALD 623
Cavell v Repatriation Commission (1988) 9 AAR 534
Doig v Repatriation Commission (Unreported Federal Court 18 December 1996)
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Leane v Repatriation Commission [2003] FCA 889
Leane v Repatriation Commission (2004) 81 ALD 625
Repatriation Commission v Butcher [2006] FCA 811
Repatriation Commission v Butcher (2007) 94 ALD 364
Repatriation Commission v Flentjar (1997) 47 ALD 67
Repatriation Commission v Graham (2004) 85 ALD 572
Repatriation Commission v Hendy (2002) 76 ALD 47
Sheehy v Repatriation Commission (1996) 137 ALR 223
Starcevich v Repatriation Commission (1987) 18 FCR 221
REASONS FOR DECISION
14 July 2008 Ms LR Tovey, Member Dr D Weerasooriya, Member 1. This is an application by Mr David Arthur Reardon for review of a decision of the Veterans' Review Board ("the Board") made on 15 March 2007. The Board decided to affirm a decision of the Repatriation Commission ("the Commission") dated 18 July 2006, that Mr Reardon was not entitled to a pension at the special rate.
LEGISLATIVE BACKGROUND
2. Provision for payment of Mr Reardon's pension is made by the Veterans' Entitlement Act 1986 (Cth) ("the Act"). It is not in dispute that Mr Reardon is entitled to a pension, by way of compensation, under s. 13(1)(b) and (d) of the Act on the basis that he is incapacitated from war-caused disease.
3. Section 15(1) of the Act provides that a veteran who is in receipt of a pension may apply for an increase in the rate of the pension on the ground that the incapacity of the veteran has increased since the rate of the pension was assessed or last assessed. Mr Reardon made such an application on 28 March 2006.
4. Section 17 of the Act provides for an application to be investigated by the Secretary of the Department and submitted to the Commission. Section 18 of the Act provides for the duty of the Commission to deal with the application. Section 19(1)(c), (4A), (5C) and (5D) of the Act require the Commission to determine:
(a)the rate or rates at which the pension would have been payable from time to time during the assessment period, which in this case is the period commencing on 28 March 2006 and ending on the date of this decision; and
(b)the date at which the pension is payable.
5. The Commission must then determine that a pension is payable at the rate assessed. A pension is payable from the date of effect of the determination. A determination takes effect from the date on which the determination is made or on such later or earlier date as is specified in the determination: see s. 19(5E) and (5F) of the Act. Section 21 of the Act provides for the manner in which the Commission may specify a date on which a determination takes effect. The representative of the Commission indicated that, if we found Mr Reardon's pension to be payable at a special rate, the appropriate date of effect of the determination is 28 December 2005.
6. Section 22 of the Act provides for the general rate of pension. Section 24, which is the principal provision at issue in this case, deals with the circumstances in which a special rate of pension is payable to a veteran. Section 24 relevantly provides:
"24 Special rate of pension
(1) This section applies to a veteran if:
(aa)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
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(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; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(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
(c)the veteran is, by reason of incapacity from that war‑caused injury or war‑caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d)section 25 does not apply to the veteran.
(2)For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)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
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking. …
(4)Subject to subsections (5) and (6), the rate at which pension is payable to a veteran to whom this section applies is $919.40 per fortnight."
7. Section 25 of the Act deals with payments to veterans who are temporarily incapacitated from war‑caused injury or war‑caused disease, or both.
8. Section 19(6) of the Act provides:
"Where the Commission has, pursuant to subsection (5C), assessed that the pension was payable at some time during the assessment period at the rate provided by section 23 or 24 then, subject to section 24A, the rate at which the pension is payable shall not be lower than the rate provided by whichever of those sections applied, or applied most recently, during the assessment period."
9. Section 120(4) of the Act required the Commission to determine the application to its reasonable satisfaction, and therefore also requires that we determine the application to our reasonable satisfaction.
FACTS
10. The principal primary facts relevant to our determination are not in dispute. We find the following facts from the evidence of Mr Reardon and his wife, Mrs Judith Reardon, who we found, subject to one qualification, to be generally credible witnesses, and the Section 37 Statement and Documents produced by the Commission. The qualification to that conclusion is that Mr Reardon did not on the evidence before us appear to fully appreciate the impact of the post-traumatic stress syndrome which is one of his accepted disabilities. In particular, it appears that in the past Mr Reardon has been in denial as to the existence and extent of that condition. In light of that, we have treated statements made by Mr Reardon, both in his evidence before us and in documents produced to us, as to the reasons for his ceasing employment in 1996 and 1997 with caution.
11. Mr Reardon was born in June 1947 and is currently 61 years of age. He left school at age 14 and had what he described as "various employment ranging from shop assistant, assistant auctioneer, bricklayer and winding armatures".
12. Mr Reardon began serving in the Australian army in June 1967, completing service just over two years later in July 1969. He completed operational service in Vietnam from June 1968 to June 1969. He worked as a truck driver during his period in the army.
13. After leaving the Australian Army in 1969, Mr Reardon was employed as a truck driver and a painter and docker.
14. At one point, in around 1970, Mr Reardon admitted himself into Royal Perth Hospital suffering from anxiety related symptoms. However, he was able to discharge himself within a few days, and did not receive any continuing treatment at this time.
15. Between around 1972 and 1984 Mr Reardon worked as a farm manager for a farm in Badgingarra. Between 1984 and 1996 Mr Reardon worked as a farm worker and manager for a Mr John Cook in Dandaragan, Western Australia. We were given no detail of the activities involved in performing that work in Mr Reardon's evidence before us. However, that work was described by Mr Reardon to the Board in the following terms:
"He did all of the physical work on the farms, and made decisions relating to farming, including what to crop, where to crop it and what sprays were appropriate".
16. A letter from Mr Cook dated 16 May 2004 was produced to us, which relevantly states:
"He [Mr Reardon] carried out his duties responsibly and conscientiously until the latter part of his employment, when I observed distinct attitudinal changes. His attitude to work changed to working at minimal standard and there were frequent bouts of impatience, often leading to temper flare ups, when there was pressure in the workplace
I believe these changes were responsible for him tendering his resignation as he felt he could not keep up the high standard he had created in earlier years"
17. In his statement to us, Mr Reardon said that he resigned from his position as a farm manager in 1996 "due to my accepted disability of Post Traumatic Stress Disorder, which at that stage was not accepted".
18. Mr Reardon then worked as a casual store attendant at Badgingarra Rural Traders from 1996 to 1997. This work involved using a forklift, stacking shelves, dealing with the public and undertaking the general duties of a store attendant in a hardware store. He worked in the store for about 6-12 months, and told us that he left because he got "angry, frustrated" and that "public relations fell down". He told us that:
"Again, due to my accepted disability of Post Traumatic Stress Disorder, which at that stage was still not accepted, in 1997 I resigned from my position as shop assistant at Badgingarra Rural Traders."
19. Included in the documents produced to us was a form entitled "Service Pension Claim - Invalidity Details", which was signed by Mr Reardon on 18 April 1997. That form described the illness or injury for which Mr Reardon was claiming invalidity as "Fibrosing Alveolitis & lupus". In answer to the question of how his injury or illness affected his capacity to undertake work, Mr Reardon responded:
"Due to shortness of breath, lack of strength; plus back & chest pains".
In response to a question as to how his illness or injury would affect his ability to undertake work for which he was not currently skilled Mr Reardon responded "have not got the stamina". He described the reason why he stopped his job as a farm hand as "health", and his response to the question of why he stopped work as a store attendant was "casual".
20. Also on 18 April 1997 Mr Reardon signed a form entitled "Service Pension Claim – Earnings". He said that he was employed by Badgingarra Rural Traders on a casual basis, and had earned $12,500 from July 1996 to March 1997. The form indicated that it was uncertain if that reflected his likely rate of earning over the next 3 months "because of health unknown if he will be able to continue". It estimated his likely earnings over the next 3 months as approximately $1,600.
21. Claimed disabilities of idiopathic Fibrosing Alveolitis and contact dermatitis and other eczema were rejected by the Commission on 18 May 1999.
22. Mr Reardon has not engaged in any remunerative work since 1997, when he was approximately 50 years of age.
23. In the late 1990's Mr Reardon began to gain some insight into his psychiatric issues after attending a Vietnam veterans' reunion in Sydney. He also saw some psychiatrists at that time. He visited a Dr Woodall in 1998, and a Dr Fellows-Smith in 1999. Mr Reardon told us that he found it difficult to deal with these doctors, and was in denial as to the existence of a psychiatric condition at that time. Mr Reardon told us that Dr Woodall did make a diagnosis that, when Mr Reardon returned from Vietnam, he had post-traumatic stress disorder.
24. In February 1999 and February 2000 Mr Reardon completed a "Lifestyle Questionnaire" for the Department of Veterans' Affairs. In both the 1999 and 2000 forms Mr Reardon indicated that he stopped work in 1996 due to "ill-health". In the 1999 form he said "lack of stamina & shortness of breath made working impossible". In the 2000 form Mr Reardon added a comment "stress and health – chest problems". In both forms Mr Reardon described symptoms which might be consistent with a chest complaint, such as shortness of breath and lack of stamina. He also described symptoms which might be consistent with a stress disorder, such as personality changes, mood swings, irritability and sleeplessness. In the 1999 form Mr Reardon said:
"Because of my health I am unable to work. I don’t like this as I feel I am too young to be doing nothing, but find my health makes this impossible. The medications have made my lifestyle change, my personality has changed also. I am now quite forgetful, get upset easily. Some days my breathing is worse than others. There are nights when I cannot sleep and will either have to walk around the block or watch TV. …"
25. On 4 August 2000 the Commission accepted the disabilities of post-traumatic stress disorder, irritable bowel syndrome and tinea as war-caused diseases. Mr Reardon was then granted a pension at 80% of the general rate with effect from 22 November 1999. The details of the reasons for those decisions, and medical reports relating to Mr Reardon at that time, have not been provided to us.
26. In 2004 Mr Reardon obtained some occasional voluntary work as a store attendant at the Jurien Bay Hardware Store. He told us, and we accept, that he did this in the hope of securing a remunerative position. However, he was not successful in working in that position. In a letter dated 31 January 2006 the director of the company which operated the store wrote:
"With reference to Mr David Reardon who has attempted to work with us several times in the last two years, we make the following findings:
1.Mr Reardon was unsuitable for work in a retail environment due to not having the ability to even manage minor levels of pressure when dealing with the general public.
2.Mr Reardon was also found unsuitable for work in a storeperson position due inability (sic) to work with other staff whilst suffering severe mood movements."
In his evidence before us Mr Reardon accepted that he had difficulty in dealing with people at the hardware store.
27. We have been provided with a report of Dr LC Risbey, a consultant psychiatrist, dated 22 November 2005. In that report Dr Risbey agreed with the previous diagnosis of post-traumatic stress disorder, war-caused. After referring to Mr Reardon's personal and medical history, Dr Risbey said:
"I am cognisant of his medical history including … most significantly, Fibrosing Alveolitis (referred to as 'rheumatoid lung'). I gather this presented with breathlessness walking up hills, and was diagnosed by respiratory physician Dr Quentin Summers, in 1996. Mr Reardon portrayed this condition as the cause of his retirement from being a farm manager.
It is consistent with his level of denial about the severity of his psychiatric disorder that he attributed his retirement entirely to his lung condition when, according to his sister's observations, he was exhibiting marked symptomatology from post-traumatic stress disorder and associated alcohol dependence. Indeed, in my survey of his symptoms he revealed that his concentration difficulties and hypervigilance had been present while still working, and it is difficult to see how these were not also a significant contribution to his being unable to continue working. Of course with his jobs having been oriented to physical exertion, continuing in these particular jobs would have been precluded by the development of his lung condition, although he did admit that his retirement was due to 'lung problems and stress.'"
28. Later in that report Dr Risbey said:
"This man suffers from war-caused post-traumatic stress disorder associated with Irritable Bowel Syndrome and alcohol dependence. He also suffers from a lung condition, namely Fibrosing Alveolitis, which apparently was regarded as the main reason he had to cease farm work. However, there is ample evidence that symptoms of post-traumatic stress disorder, such as irritability and intolerance, also were contributing significantly.
Whilst there is no doubt that his lung condition was a significant contributing factor to his cessation of working in the farming area, I have seen no evidence that his lung condition precludes him from working per se. He was not breathless in sedentary positions, but only after climbing stairs, and if he did not suffer from post-traumatic stress disorder it appears that he would be able to work in sedentary jobs. I would be interested in Dr Summers' opinion on this matter, ie on what forms of occupation would still be possible for Mr Reardon with his present lung condition (but no post-traumatic stress disorder).
From the evidence as I have examined it, his post-traumatic stress disorder, of itself and alone, precludes him from re-entering the workforce (although of course it did not, alone, cause him to cease work in January 1997). Whilst his lung condition precludes him from tasks involving significant exertion, it is his post-traumatic stress disorder alone which precludes him from working per se, due to increased irritability; intolerance; social isolation; impairment in concentration and short-term memory; and chronic fatigue arising from poor sleep."
29. Dr Risbey concluded:
"In summary, this man's post-traumatic stress disorder is more severe than he has acknowledged to himself, and is totally disabling such that this condition alone prevents him from re-entering the workforce per se. His lung condition undoubtedly contributed significantly to his cessation from farming, will continue to preclude him from any occupations which involve heavy exertion, but does not, in my opinion, preclude him from working in sedentary occupations. It is his post-traumatic stress disorder, and only his post-traumatic stress disorder, which disables him in such a general and universal manner."
30. On 20 January 2006 Dr Quentin Summers prepared a very short report which stated:
"I have been looking after Mr Reardon since 1997 when he presented with breathlessness. This has been found due to rheumatoid-interstitial lung disease. He has been treated both with Prednisolone and Cyclophosphamide since the diagnosis was confirmed by lung biopsy in 1997 and his disease has progressed only very slightly.
However lung function shows ongoing moderate restriction, and he is disabled to an extent where he can do no physical work, but he is capable of performing light office duties"
31. On 28 March 2006 Mr Reardon lodged an application for increased disability pension. He claimed a new disability of "diabetes mellitus type 2", which he said he believed was acquired during his time in South Vietnam. That claim was accepted by a delegate of the Commission on 17 July 2006.
32. On 18 July 2006 a delegate of the Commission decided to increase Mr Reardon's pension to 90% of the general rate, with effect from 28 December 2005. He made that decision after assessing Mr Reardon's degree of medical impairment resulting from his accepted disabilities as 90%. There is no challenge to that assessment of Mr Reardon's medical impairment. The Commission's delegate decided that Mr Reardon was not eligible for pension at the special rate because "the evidence is that the veteran took early retirement in 1996 due to the effects of non-service related lung disease and has not sought work since".
33. On 13 October 2006 Mr Reardon sought a review of the decision not to award him a special rate of pension. On 18 October 2006 a Departmental Review Officer confirmed that decision. He did so on the basis that he was not satisfied that Mr Reardon was totally and permanently incapacitated for paid work of 8 hours or more, or more than 20 hours per week, solely due to service related incapacity, and that he was not satisfied that there had been any genuine attempt to re-enter the workforce.
34. Mr Reardon sought a further review by the Board of the decision refusing him a special rate of pension. On 15 March 2007 the Board affirmed the decision under its review.
35. On 19 October 2007 Dr Summers provided a further report to the Commission's representative, which described the diagnosis of pulmonary fibrosis (UIP), secondary to rheumatoid arthritis, which resulted in moderate restriction in lung function. He concluded:
"It has not progressed over time, but has the effect of limiting his ability to work.
His lung disease does not prevent him from working by any means, but prevents him undertaking any occupation that requires anything other than light physical effort."
36. In his evidence before us Mr Reardon's subjective assessment was that his lungs had gotten better over time. He said that he could walk for kilometres on a flat surface without difficulty, so long as nobody was talking to him. He said that if he tried talking while walking he would run out of breath, and that he could have problems carrying something even when on a flat surface. He told us:
"Like I can’t dig a trench or nothing, but I can .. do odd sort type of things, but you know, nothing that's overexertion"
37. Mr Reardon told us that he could carry light parcels and was getting better with stairs. He said that his difficulty with tasks, such as performing as a driver or store attendant, he had performed in the past was emotional rather than physical. Mr Reardon said that medications which he was receiving for post-traumatic stress disorder had improved things but that his memory was poor, and he still got angry with other people and himself and still suffered from flashbacks.
38. In about March 2008 Mr Reardon attempted some voluntary work operating a front-end loader in a quarry, which seems to have been arranged by a friend. He said this lasted for a couple of days and then he found "you'd get cranky with yourself and you'd make more mistakes". He told us that it was too big a machine and too much responsibility for him to be driving the machine.
ISSUES
39. Mr Reardon does not challenge the Commission's conclusion that the degree of his incapacity caused by war-caused injury or war-caused disease, or both, is 90%. The only question before us is whether Mr Reardon is entitled to be paid at the special rate of pension provided for by s. 24 of the Act.
40. It is common ground between the parties, and the evidence adduced before us satisfies us, that the following elements of s. 24(1) of the Act were satisfied:
(a)Mr Reardon has made an application under s. 15 for an increase in the rate of the pension that he is receiving: s. 24(1)(aa);
(b)Mr Reardon has not turned 65: s. 24(1)(aab);
(c)The degree of incapacity from war-caused injury or war-caused disease, or both, has been determined to be 90%: s. 24(1)(a);
(d)Mr Reardon is totally and permanently incapacitated, that is to say Mr Reardon's incapacity from war-caused post-traumatic stress disorder is of such nature as, of itself alone, to render Mr Reardon incapable of undertaking remunerative work for periods aggregating more than 8 hours per week: s. 24(1)(b); and
(e)Section 25 of the Act does not apply to Mr Reardon, as his incapacity is not temporary.
41. We note in particular that the Commission conceded that, in light of Dr Risbey's report, the requirements of s. 24(1)(b) of the Act were satisfied. Having regard to that evidence, we consider that concession to have been correctly made.
42. The only question for us is then whether the requirements of s. 24(1)(c) of the Act have been satisfied. Mr Reardon and Commission both identified this as the relevant issue in their Statements of Issues.
43. Mr Reardon puts his case on two alternative bases:
(a)Firstly, he says that he is, by reason of the relevant incapacity, prevented from continuing to undertake remunerative work that he was undertaking. In that regard Mr Reardon relies on the primary operation of s. 24(1)(c) of the Act;
(b)Secondly, and in the alternative, Mr Reardon relies on the extended operation given to s. 24(1)(c) by s. 24(2)(b) of the Act, so that he is to be treated as having been prevented, by reason of the relevant incapacity, from continuing to undertake remunerative work that he was undertaking.
APPLICABLE PRINCIPLES
44. Before coming to consider the alternative bases upon which Mr Reardon's case has been framed, we note the following general principles in relation to s. 24(1)(c) of the Act, as it has been interpreted by the Federal Court.
45. As Nicholson J noted in Forbes v Repatriation Commission (2000) 101 FCR 50 at 52-3, [14]-[15], s. 24(1)(c) of the Act is best understood by dividing it into its two limbs and relating those limbs to what follows in s. 24(2) of the Act.
46. The first limb of s. 24(1)(c) is that:
"the veteran is, by reason of incapacity from that war‑caused injury or war‑caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking …"
That limb must be read subject to the application of s. 24(2)(b) of the Act.
47.The second limb of s. 24(1)(c) is that Mr Reardon:
"… is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity".
That second limb is to be read in conjunction with s. 24(2)(a) of the Act.
48. Leaving aside the extended operation given to s. 24(1)(c) by s. 24(2)(b) of the Act, the relevant questions to be addressed by the Tribunal were identified by the Full Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5 in the following terms:
"1. What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?"
49. As the Court in Flentjar noted, at 4, the "remunerative work that the veteran was undertaking" is a reference to the type of work in which the veteran previously undertook and not to any particular job.
50. In Flentjar the Court rejected a submission based on Mr Flentjar's loss, prior to the assessment period, of a taxi licence for a cab he operated. The Court said, in relation to the first two questions which it had identified, at 5:
"Assuming a finding of fact that the relative remunerative work which Mr Flentjar had undertaken was work which involved the driving of taxis, issue 2 above would involve consideration being given to possible impediments in the way of Mr Flentjar's re-entering the workplace as a taxi driver during the assessment period relevant to this proceeding."
51. In concluding that the relevant remunerative work was the type of work in which the veteran had engaged, rather than a particular job, the Court in Flentjar referred to the previous decision of the Full Federal Court in Banovich v Repatriation Commission (1986) 69 ALR 395 at 402 and the unreported decision of Lindgren J in Doig v Repatriation Commission (Unreported Federal Court 18 December 1996). In Banovich the Court said, at 402-3:
"…the phrase 'remunerative work which the respondent was undertaking' should be read as a reference to the type of work which the member previously undertook and not to any particular job. It follows that a member's loss of particular employment for a reason unrelated to a war disability would never destroy a member's subsequent entitlement to claim a special rate pension; the question would remain, at the relevant date for determination of a claim, whether the member was prevented by his or her war-related incapacity — and by that incapacity alone — from continuing in that field of remunerative activity."
52. As the majority of the Full Federal Court noted in Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225 and 226-7, the relevant remunerative work which the veteran was undertaking need not be the last type of work which was undertaken.
53. The reference to "remunerative work that the veteran was undertaking" requires that the work must have been "performed" or "successfully undertaken" or "effectively undertaken": Sheehy v Repatriation Commission (1996) 137 ALR 223 at 228-9.
54. It also appears from the above authorities that the point in time at which the incapacity must prevent the veteran from undertaking the relevant remunerative work must be within the assessment period, which in this case commenced when the application was made on 28 March 2006. However, the type of "remunerative work that the veteran was undertaking" may have been undertaken prior to the commencement of the assessment period. In view of s. 19(6) of the Act, is it unnecessary for the relevant incapacity to have existed throughout the assessment period.
55. The requirement that war-caused injury or disease alone prevents the veteran from continuing to undertake remunerative work he was undertaking is not satisfied merely if the war-caused injury or disease alone were sufficient to prevent the veteran from engaging in work irrespective of other causes. Nor does s. 24(1)(c) contemplate that other factors are only to be taken into account if they, of themselves, prevent the veteran from working. It is sufficient to exclude a veteran's entitlement to pension at the special rate if one or more other factors restrict the veteran's capacity to engage in relevant remunerative work. Those propositions are, in our view, established by Repatriation Commission v Hendy (2002) 76 ALD 47 at 54, [37], Leane v Repatriation Commission [2003] FCA 889 at [27] (a passage reproduced in Leane v Repatriation Commission (2004) 81 ALD 625 at 631, [20]) and Repatriation Commission v Graham (2004) 85 ALD 572 at 583, [31].
56. Where there is a significant gap between the last occasion on which the veteran engaged in the relevant type of employment and the beginning of the assessment period, it will be necessary to take account of that period in considering the veteran's prospects of obtaining that kind of employment during the assessment period. In Hendy at 54-5, [37] the Full Federal Court stated:
"The decision-maker is required to take into account any factor that plays a part or contributes to a veteran's being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period."
57. It is also appropriate to note the comment of Burchett J in Cavell v Repatriation Commission (1988) 9 AAR 534 at 539, that the task of the decision-maker is:
"… to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not 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."
58. Counsel for Mr Reardon referred us to the decision of Besanko J in Repatriation Commission v Butcher [2006] FCA 811. In that case the Tribunal had referred to the remunerative work which Mr Butcher had undertaken by reference to a number of jobs which he had held in the past. The Tribunal had found that Mr Butcher's war-caused injuries were the sole cause of his incapacity to undertake some, but not all, of those jobs. The Commission appealed on the ground that the Tribunal must have reasoned that if the war-caused injuries alone prevented Mr Butcher from undertaking certain types of remunerative work which he had undertaken, then that was sufficient to satisfy the requirements of s 24(1)(c). It submitted that that reasoning involved an error of law because, to succeed, a veteran had to show that the war-caused injuries alone prevented him from carrying out all types of remunerative work which he was undertaking.
59. In response to that ground Besanko J said at [33]:
"In my respectful opinion, the Tribunal has erred in law. It committed either one of two errors of law. The Tribunal either characterised the remunerative work the respondent was undertaking as all six forms of employment previously referred to, but then applied the requirements of s 24(1)(c) to some only of these forms of employment, or it incorrectly approached the characterisation of the remunerative work the respondent was undertaking for the purposes of s 24(1)(c). The first possible error requires no elaboration other than to say that the error lies in selecting without explanation some only of six specific forms of employment as the remunerative work the respondent was undertaking for the purposes of the subsection. As far as the second possible error is concerned, for reasons I will give, a more general description of the remunerative work the respondent was undertaking was called for in this case. It is not possible to identify from the Tribunal’s reasons which error it made, but either error warrants the intervention of this Court."
60. In so finding, in our view Besanko J did not accept the Commission's submission that, to succeed, a veteran has to show that war-caused injuries alone prevented him from carrying out all kinds of remunerative work which he was undertaking. Rather, he has recognised that a veteran has to show that war-caused injuries alone prevented him from carrying out all aspects of the relevant remunerative work.
61. We do not regard that conclusion as inconsistent with what Besanko J later said about the task of characterisation of the remunerative work at [42]-[43]:
"It seems to me that the determination of the type of work the veteran was undertaking, or his or her field of remunerative activity, involves a consideration of the veteran’s qualifications and the work which he or she has in fact undertaken in the past. On occasions, the decision will be a relatively straightforward one, where, for example, the veteran has specialised qualifications and has only ever worked in one field of employment. In other cases, of which this is one, the decision will involve a process of characterisation and is not necessarily resolved by simply characterising the field of remunerative activity as involving all of the particular types of employment which the veteran has undertaken. Nor will it necessarily be appropriate to include in the field of remunerative activity a particular type of employment performed some time in the past for a short period of time.
The decision as to the characterisation of the type of remunerative work the veteran was undertaking is, like the decision as to causation, a decision which must be made with an eye to reality, and as a matter in respect of which common sense is the proper guide. An unduly narrow definition may result in veterans receiving the pension at the special rate in circumstances not contemplated by the legislature. An unduly wide definition may result in veterans being refused the pension at the special rate in circumstances in which, in reality, they are not working (and thereby not receiving wages) solely because of war-caused injuries or diseases. In other words, the danger in the case of an unduly wide definition is that a veteran will be denied the pension at the special rate in circumstances where, in reality, it is very unlikely that even without any injuries or diseases, the veteran would ever have undertaken a particular form of employment which happens to fall within the wide definition."
An unduly wide definition may result in a veteran being refused a pension at the special rate if it is necessary to show that war-caused injuries alone prevented the veteran from carrying out all aspects of the relevant remunerative work.
62. In Butcher at [44] Besanko J characterised the remunerative work which Mr Butcher was undertaking as general labouring duties involving unskilled work, process work and general driving duties, but excluding forklift driving and certain kinds of activities. The excluded driving and labouring activities were excluded on the basis that they were not "substantive" or "substantial" remunerative work which Mr Butcher had undertaken. The significance of the exclusion for the case was that the Tribunal had found that Mr Butcher's back condition, which was not war-caused, would have prevented him from undertaking those excluded activities. Having characterised the remunerative work in a manner confined to activities which Mr Butcher was unable to undertake only because of his war-caused injuries, Besanko J dismissed the Commission's appeal and upheld the Tribunal's decision in the result.
63. Justice Besanko's decision in Butcher was subject to appeal to the Full Federal Court in Repatriation Commission v Butcher (2007) 94 ALD 364. The point on which the Court, at 369, [19], overturned Besanko J was that he erred in not referring the matter back to the Tribunal for further consideration. However, before doing so the Full Court found, at 368, [17], that the approach of Besanko J in identifying the kind of remunerative work which Mr Butcher was undertaking was correct. The Full Court expressed the relevant principal in the following terms at 366, [7]:
"It is settled law that the subsection requires consideration of “remunerative work” by having regard not to particular tasks and duties involved in specific jobs, but rather to the type of substantive work undertaken by the veteran considered at a higher level of generality: see Banovich v Repatriation Commission (1986) 69 ALR 395 at 402; Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225 and Repatriation Commission v Hendy (2002) 76 ALD 47 at 54 (Hendy)."
64. As to the decision of the Tribunal in Butcher, the Full Court said, at 367, [13]:
"On a fair reading of its reasons in this matter, the tribunal paid regard not to the substantive remunerative work that the veteran had undertaken in the past, but to particular tasks performed by the veteran during the course of his employment. The tribunal did not consider, in the general sense required by the subsection, the type of employment undertaken by the veteran but rather the particular duties in which he had been engaged. In so doing, the tribunal has fallen into error. In our opinion, the primary judge was correct in finding that there had been an error of law in the approach taken by the tribunal due to its overly narrow description of the remunerative work previously undertaken by the veteran." (emphasis added).
65. It may be noted that the Full Court did not endorse the identification by Besanko J of other possible error which he perceived the Tribunal made, namely applying the requirements of s. 24(1)(c) to only some of the work involved in the remunerative work that he found Mr Butcher to have undertaken.
66. The particular jobs in which Mr Butcher had engaged – process worker, yard hand, truck driver, forklift driver and general hand – may have been regarded as species of the same genus of "general labouring work". In that context, it was appropriate to characterise all of the jobs in which the veteran had engaged as one kind of remunerative work.
67. However, it does not follow that it will be appropriate to characterise a veteran's working history as involving only one kind of remunerative work in all cases. In our view where a veteran has a career which involves substantive work of significantly different kinds there may be more than one kind of remunerative work which the veteran was undertaking for the purposes of s. 24(1)(c) of the Act. If incapacity from a war-cause injury or disease is of such a nature as, of itself alone, to render the veteran incapable of undertaking one of those distinct kinds of remunerative work, the requirements of the first limb of s. 24(1)(c) of the Act will be satisfied.
68. The decision of the Full Federal Court in Starcevich provides an illustration of that approach. In that case the veteran had engaged in farming, which he had to give up due to war-caused injury. He subsequently worked in the Postmaster-General's Department, until it moved to a new site at which the veteran's injury prevented him from working. The Tribunal found that, at the assessment date, the veteran would still have been farming but for the war-caused injury but that his age (then 68) would have prevented him from working in the Postmaster-General's Department. The approach of the majority of the Full Federal Court was reflected in the following passage of Fox J at 225:
"It seems to me that the intention of s 24(1)(c) is that the applicant must have suffered substantial loss of remuneration consequent alone upon the incapacity referred to in s 24(1)(a) and (b). The loss must be real, in the sense that the applicant cannot rely upon any remunerative work that he has undertaken in the past, but it would be unnecessarily restrictive to assess the loss by reference only to the last remunerative work undertaken before the applicant's inability to work became complete. In my opinion, a veteran's entitlement to a pension under s 24 may be based on his being prevented from continuing to undertake substantial remunerative work that he has undertaken in the past, even if that work was followed by work of a different type before the veteran ceased work altogether."
69. The majority of the Full Federal Court found that the fact that the veteran in that case was prevented from continuing to farm by reason alone of his war-caused injury entitled him to a special rate of pension.
70. The approach of the majority of the Court in Starcevich indicates that a veteran may have engaged in more than one kind of remunerative work and that it will be sufficient to engage s. 24(1)(c) if the veteran's war-caused injury or disease prevents him from engaging in one of those distinct kinds of remunerative work.
71. That approach is also reflected in the decision of the Full Federal Court in Flentjar. In that case the veteran had worked as a taxi owner-driver until prevented from driving a taxi by a war-caused condition at the age of 54. At that time he had sold his taxi licence, and worked for a brewery and as a painter until he retired at age 62: see the decision of Spender J at first instance in Repatriation Commission v Flentjar (1997) 47 ALD 67 at 69. In the Full Court Branson J, with whom other members of the Full Federal Court agreed, identified the remunerative work that the veteran was undertaking as "taxi driving, or possibly the work of being a taxi owner-driver". She then noted at 4:
"If it were shown that the leasing of a taxi licence for reward involved appreciable administrative or management tasks, it would presumably be open to a decision maker to find that such leasing amounted to remunerative work for the purpose of s 24(1)(c) of the Act. However, Mr Flentjar has never earned remuneration in this way. If he had, it would, in my view, be a different category of remunerative work from the work of taxi driving or working as a taxi owner-driver." (emphasis added)
72. Thus in Flentjar the Full Federal Court recognised that there may be different categories of remunerative work to be considered, and addressed the questions it identified by reference to only one of the categories of remunerative work in which the veteran in that case had engaged.
73. Similarly in Graham the Court found that the Tribunal had not erred in law in finding that a veteran was entitled to a special rate of pension on the ground that he was prevented by his war-caused disease alone from undertaking only certain kinds of the remunerative work which he was undertaking.
74. Consistently with the approach of the Federal Court in Butcher, the question of the identification of the relevant kind or kinds of remunerative work that the veteran was undertaking, and whether there were one or more distinct kinds of remunerative work, is to be approached as a matter of common sense with a focus not "upon nice philosophical distinctions but with an eye to reality".
CONSIDERATION OF THE ISSUES – APPLICANT'S PRIMARY ARGUMENT
1. What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?
75. The Commission did not make any submission to us as to the manner in which the relevant remunerative work in which Mr Reardon was undertaking should be identified. The Applicant's Statement of Facts, Issues and Contentions submitted that the relevant remunerative work that Mr Reardon was undertaking should be described as general driving duties, general labouring duties, general customer services duties and general administrative duties. It was submitted that the relevant remunerative work that Mr Reardon was undertaking should not be described as usually involving "physical activity" and "heavy exertion".
76. That characterisation of the relevant remunerative work that Mr Reardon was undertaking appears to assume that all of the work which he undertook as a farm manager, driver and store attendant was remunerative work of the same kind.
77. However, the nature of the activities in which Mr Reardon engaged as a farm manager were quite different to those involved as a store attendant. His work as a farm manager involved working mostly outdoors doing work which did involve physical activity and heavy exertion. He was engaged in farming work associated with cropping, and engaging with the farm owner and farm workers. His work as a store attendant involved driving a forklift, stacking shelves, dealing with the public and undertaking the general duties of a store attendant in a hardware store. In our view the two kinds of work were so different as to be properly characterised, as a matter of common sense, as two distinct kinds of remunerative work.
78. His work as a farm manager was clearly "substantive" work which Mr Reardon had successfully undertaken from 1972 to 1996. We are also satisfied that work as a store attendant was "substantive" work that Mr Reardon had successfully undertaken. He had worked as a store attendant both prior to joining the army and, after leaving Mr Cook's farm, in 1996-7. We take account of the fact that Mr Reardon's employment in 1996-7 was casual, however he undertook that work for a number of months and earned a not insignificant income. His Service Pension Claim form shows that he was still working at the Badgingarra store in April 1997, although at that time his future was uncertain.
79. It may also be that the work in which Mr Reardon engaged as a truck driver in the army is to be regarded as a distinct kind of work. It was certainly distinct from his work as a store attendant. We doubt that it could be regarded as relevant work in the assessment period, as there is no evidence of Mr Reardon having engaged in remunerative work of this kind since 1972. However, in view of the conclusion which we reach below in relation to Mr Reardon's work as a store attendant, it is unnecessary to pursue this issue further.
80. We therefore find that there were two distinct kinds of relevant remunerative work that Mr Reardon was undertaking. The first may be described as a farm worker and manager, involving general labour and management activities. The second may be described as a store attendant, involving the duties we have described.
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
81. We find, on the basis of Dr Risbey's report, that Mr Reardon's war-caused post-traumatic stress disorder did, throughout the assessment period, prevent Mr Reardon from continuing to undertake work both as both a farm worker and manager and as a store attendant. This point was conceded by the Commission.
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
82. In our view, Mr Reardon's war-caused injuries and disease, or both, were not the only factor preventing him from continuing to undertake work as a farm worker and manager during the assessment period. At least one other factor preventing him from continuing to undertake that work was his lung condition, which limited his capacity to undertake physical work of a kind required of a farm worker and manager. We make that finding on the basis of Mr Reardon's description of the continuing physical symptoms of his lung condition in his evidence before us, and the reports of Dr Summers and Dr Risbey. His breathlessness as a consequence of that lung condition would, on its own, have prevented Mr Reardon from working as a farm worker and manager at any time during the assessment period.
83. However, we are also of the view that Mr Reardon's war-caused injuries and disease, or both, were the only factor preventing him from continuing to undertake work as a store attendant during the assessment period. Mr Reardon's evidence before us was that he was able to physically cope with the work both when employed at the store in Badgingarra and when undertaking voluntary work at the store in Jurien Bay. He was also able to undertake physical activities such as walking and carrying light packages.
84. Dr Summers' first report of January 2006 indicated that Mr Reardon could do "no physical work, but he is capable of performing light office duties". The report does not explain what Dr Summers meant by "physical work". Dr Summers' first report seems to have been taken by the Commission and Board, when they made their decisions, as indicating that Mr Reardon's lung condition prevented him from undertaking any work other than light office duties. Since light office work was not a kind of remunerative work which Mr Reardon has ever undertaken, that understanding of Dr Summers' report led the Commission and Board to answer this third question in the negative.
85. It appears, however, from the second report of October 2007 that Dr Summers' view of Mr Reardon's capacity was not so limited. He says in that report that Mr Reardon's lung disease "does not prevent him from working by any means, but prevents him from undertaking any activity that requires anything other than light physical effort". While the report does not explain what Dr Summers means by "light physical effort", it does not appear that he regarded Mr Reardon's lung condition as limiting him to office work.
86. Neither of Dr Summers' reports directly address the question of whether Mr Reardon's lung condition would, during the assessment period, either prevent him from working as a store attendant or limit his capacity to perform that work. Dr Risbey expresses the view that Mr Reardon would be able to work in "sedentary jobs" but for his post-traumatic stress disorder, but that his lung condition precludes him from tasks involving "significant exertion". However, he does not explain what he regards as a "sedentary" job or "significant" exertion, or express any view as to extent, if any, to which the lung condition limits Mr Reardon's capacity to work as a store attendant. In any event, the expression of that view would seem to be outside the area of Dr Risbey's expertise as a consultant psychiatrist.
87. In a case such as the present we would have expected one of the parties to adduce medical evidence as to the extent, if any, that Mr Reardon's lung condition affected his capacity to do the relevant work that he was undertaking. Both parties had the capacity to do so, and both chose not to lead evidence of that kind. On the limited evidence available, we are satisfied on the balance of probabilities that Mr Reardon's lung condition did not prevent him from undertaking work as a store attendant during the assessment period. That is the view which appears to us from Mr Reardon's description of his symptoms and his physical ability to cope with the demands of work as a store attendant. We accept that evidence in the absence of any expert medical evidence to the contrary.
88. In reaching that conclusion we do not overlook the fact that in some of the documents noted above Mr Reardon attributed his ceasing remunerative work as a store attendant to his, then only recently diagnosed, lung condition. However, the evidence which we have noted also demonstrates that Mr Reardon was in denial about his, then undiagnosed, post-traumatic stress disorder. That would explain why he would tend to use his lung condition as an excuse for ceasing remunerative work.
89. We have also had regard to the fact that, at the beginning of the assessment period in March 2006, Mr Reardon had not undertaken remunerative work as a store attendant, or any other remunerative work, since around mid-1997. We do not consider that this time out of the workforce would have precluded Mr Reardon from obtaining work as a store attendant. The work does not involve the possession of any special knowledge or skill, with which Mr Reardon would need to have reacquainted himself. His age at the beginning of the assessment period, of 58 years, would not have been such as to preclude him from working as a store attendant. While neither party adduced any evidence as to the demand for store attendants during the assessment period, we are prepared to take notice of the economic conditions in Western Australia during that period, characterised by very low unemployment rates and a general shortage of labour.
90. For the reasons we explained in Re Bucknall and Repatriation Commission (2008) 99 ALD 623 at 633-4, [59], we would, if not constrained by the authority of the decision in Hendy and cases that have followed it, have disregarded the time which Mr Reardon has spent out of the workforce in addressing this third question. However, in light of that authority, we have in this case, as in Bucknall, addressed this third question by taking that time into account.
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
91. Mr Reardon has not, during the assessment period, engaged in any remunerative work. As we have found, the only thing preventing him from doing so at the commencement of the assessment period was his accepted disabilities. Mr Reardon had not reached the ordinary retirement age of 65 at the commencement of the assessment period. He had expressed frustration at feeling "too young to be doing nothing” in 1999. He had attempted to work in the Jurien Bay Hardware Store in order to get back into the workforce. We are satisfied that Mr Reardon would have worked to the ordinary retirement age of 65 but for his post-traumatic stress disorder.
92. Subject to the effect of s. 24(2)(a) of the Act, we are therefore satisfied that Mr Reardon has, by reason of being prevented from continuing to undertake the work of a store attendant, suffered a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity.
93. It is then necessary, however, to consider the effect of s. 24(2)(a) of the Act, which provides that a veteran shall not be taken to have suffered a loss of salary or wages, or of earnings on his own account, by reason of the war-caused incapacity if:
“(i) the veteran has ceased to engage in remunerative work for reasons other than his … incapacity from that … war-caused disease …; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason.”
94. We have already found that the only reason why Mr Reardon has been incapacitated, or prevented, from engaging in remunerative work as a store attendant during the assessment period is his post-traumatic stress disorder. We do not consider s. 24(2)(a)(ii) of the Act to operate in those circumstances.
95. It is, however, necessary to consider whether Mr Reardon ceased to engage in remunerative work for reasons other than his incapacity. It seems to us that the reference to remunerative work in s. 24(2)(a) of the Act must be in reference to the remunerative work considered in s. 24(1)(c), the operation of which the former sub-section qualifies. Further, consistently with the approach referred to in the Federal Court decisions set out above, the reference to remunerative work is not to a particular job undertaken by the veteran.
96. As a matter of fact we find that both Mr Reardon's post-traumatic stress disorder and his lung condition contributed to his ceasing employment as a farm worker and manager in 1996. We make that finding based on the oral evidence of Mr Reardon and the report of Dr Risbey quoted above.
97. Dr Risbey's report does not provide as much direct assistance in considering the causes of Mr Reardon ceasing work for Badgingarra Rural Traders. This is because Dr Risbey was apparently unaware that Mr Reardon undertook work as a store attendant at that shop in 1996 and 1997. The first page of Dr Risbey's report incorrectly refers to Mr Reardon retiring from work as a farm manager in January 1997. Subsequently he refers to what caused Mr Reardon to cease work in January 1997, and twice refers to Mr Reardon’s lung condition being a contributing factor to his ceasing farm work.
98. As we have indicated, we do not regard as significant the statements which Mr Reardon made at or about the time of his ceasing to work for Badgingarra Rural Traders as to the cause of his ending work. While there are statements which refer to his lung condition as a cause or a contributing factor, those statements may well simply be a reflection of Mr Reardon's denial of his post-traumatic stress disorder at the time. Mr Reardon's evidence before us, which we have accepted, was that he was physically able to cope with his duties as a storeman in 1996 and 1997.
99. Ultimately, however, the question is not what caused Mr Reardon to cease working at Badgingarra Rural Traders in 1997, but what caused him to cease to engage in remunerative work as a store attendant. We have found that Mr Reardon had both the physical capacity and the willingness to work as a store attendant at least by the time of the commencement of the assessment period. The only reason he did not continue to undertake that remunerative work was the incapacity resulting from his post-traumatic stress disorder. In those circumstances we do not consider that it can be said that Mr Reardon ceased to engage in that remunerative work for reasons other than his incapacity from that war-caused disease.
Conclusion as to Applicant's Primary Argument
100. For the above reasons we are satisfied that the application meets the requirements of s. 24(1)(c) of the Act, without there being any need for recourse to s. 24(2)(b) of the Act. It follows that Mr Reardon was qualified for the special rate of pension when he made his application under s. 15(1) of the Act on 28 March 2006. Section 19(6) of the Act then provides that the rate of the pension shall not be lower than the special rate.
CONSIDERATION OF THE ISSUES – APPLICANT'S ALTERNATIVE ARGUMENT
101. The above conclusion makes it strictly unnecessary for us to address the effect of s. 24(2)(b) of the Act. However, in case there is a review of this decision, it is appropriate for us to state our conclusions in relation to Mr Reardon's alternative argument based on that provision.
102. In light of the findings above, we make the following factual findings in relation to the following elements of s. 24(2)(b) of the Act which we regard as satisfied:
(a)Mr Reardon has not attained the age of 65 years.
(b)Mr Reardon has not been engaged in remunerative work after 1997.
(c)Mr Reardon would, but for his post-traumatic stress disorder, have sought to engage in remunerative work during the assessment period if he had not obtained employment at that time. That finding assumes that he did not have remunerative work at that time, and our finding is that Mr Reardon would have obtained remunerative work by that time, but for his post-traumatic stress disorder.
(d)Mr Reardon's post-traumatic stress disorder is the substantial cause of his inability to obtain remunerative work since 1997.
103. However, in our view, Mr Reardon has failed to satisfy another of the conditions for the application of s. 24(2)(b) of the Act. That condition is that the veteran has been genuinely seeking to engage in remunerative work. As to this condition, the Full Court in Leane said at 632, [28]:
"The primary judge interpreted the word “seeking” to mean “attempting to” or “trying to”. This may be accepted. Such a meaning involves something more than a mere wish or hope. It requires that a claimant “do” something. On the other hand the word “genuinely” is used in the sense of “sincerely” or “honestly”. It involves an assessment of the subjective intention or purpose of a claimant. What is required is that the claimant honestly be trying to engage in remunerative work."
104. For reasons we explained in Bucknall at 636, [71]-[74], it is necessary for a veteran to show that he has been genuinely seeking remunerative work at some point during the assessment period, although it is not necessary that the veteran has being doing so for the whole of the assessment period.
105. In the present case the Board referred to the decision of the Tribunal in Re Bonner and Repatriation Commission (1989) 17 ALD 680 at 681 as indicating that the use of the word "genuinely" in the paragraph indicated the necessity of some objective signs of active pursuit of remunerative work. Such an approach is, in our view, inconsistent with the subsequent decision of the Full Federal Court in Leane where at 632-3, [29] the Court said that, while in the ordinary course a veteran would have difficulty in establishing that he satisfied the condition unless there were some “objective signs of active pursuit of remunerative work", it would be wrong to turn that practical issue into some legal pre-condition. The question for the Tribunal is whether Mr Reardon was “genuinely seeking to engage in remunerative work” at some time during the assessment period, rather than whether there were objective signs of his doing so.
106. Further, the Full Federal in Leane noted at 634, [35] that the mere fact that a veteran accepts remunerative work does not mean that he is seeking it, much less "genuinely seeking" it.
107. In the present case the evidence relied on by Mr Reardon to show that he had been genuinely seeking remunerative work was the evidence of the occasional work in the Jurien Bay Hardware Store between 2004 and 2006, and the few days work as a driver about a month prior to the hearing of this matter. We are not satisfied that this amounted to Mr Reardon genuinely seeking to engage in remunerative work, for the following reasons:
(a)The work he was undertaking was not remunerative in either case.
(b)In relation to work at the Hardware Store, there is no evidence that Mr Reardon continued to engage in this work at or after the commencement of the assessment period on 28 March 2006. In any event, by the beginning of that period he must have recognised that his post-traumatic stress disorder made that work unsuitable for him, as on or about 31 January 2006 he had obtained the letter from the proprietors indicating his unsuitability.
(c)In relation to the work at the mine, the timing of undertaking that work, a month prior to the hearing of this application, is suggestive of the activity being engaged in to attempt to meet the requirements of s. 24(2)(b) of the Act, rather than genuinely seeking work.
(d)There is no evidence of Mr Reardon taking any steps, objective or otherwise, to look for remunerative work which may have been available during the assessment period.
108. For the above reasons, we do not consider that s. 24(2)(b) of the Act applies to Mr Reardon. However, as we have noted, his application succeeds without recourse to s. 24(2)(b) of the Act.
DECISION
109. The Tribunal sets aside the decision of the Board made on 15 March 2007 and the decision of the Commission dated 18 July 2006 and substitutes a decision that Mr Reardon is entitled to a special rate of pension with effect from 28 December 2005.
I certify that the 109 preceding paragraphs are a true copy of the reasons for the decision herein of Ms LR Tovey, Member and Dr D Weerasooriya, Member
Signed: ..(sgd) T Freeman..........
AssociateDates of Hearing: 4 April 2008
Date of Decision 14 July 2008
Representative for the Applicant Mr B Soactar
Representative for the Respondent Mr C Ponnuthurai
Solicitors for the Applicant Hammond Worthington
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