REPATRIATION COMMISSION and THORPE - [2011] AATA 491

CATCHWORDS – VETERANS’ ENTITLEMENTS – intermediate rate of pension – whether veteran must have ceased undertaking all remunerative work – identifying “remunerative work” under 23(1)(b) – may not be same as “remunerative work that the veteran was undertaking” under s 23(1)(c) – identification of incapacity for “undertaking remunerative work otherwise than on a part-time basis or intermittently” should be decided separately from issues under s 23(2) in relation to capacity and remunerative work undertaken - assessment of whether incapacity arising from war-caused condition alone prevents continuance of remunerative work under s 23(1(c) separate issue from assessment of whether veteran’s being so prevented has led to a loss of salary or wages or of earnings.

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297; 35 ALR 151; 11 ATR 949; 55 ALJR 434
Counsel v Repatriation Commission [2002] FCAFC 201; (2002) 122 FCR 476; 72 ALD 204; 35 AAR 163
Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1; 26 AAR 93
Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214; 91 ALR 16; 64 ALJR 190
Re Connell and Repatriation Commission [2010] AATA 911
Re Shatzman and Repatriation Commission [2009] AATA 823; (2009) 113 ALD 168
Repatriation Commission v Graham [2004] FCA 1287
Repatriation Commission v Haskard [2002] FCA 1493; (2002) 126 FCR 1; (2002) 71 ALD 29; 36 AAR 257
Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47
Servos v Repatriation Commission [1995] FCA 1137; (1995) 56 FCR 377; 129 ALR 509; 37 ALD 489
Starcevich v Repatriation Commission (1987) 18 FCR 221; 76 ALR 449; 7 AAR 296
Wright v Repatriation Commission [2005] FCA 7; (2005) 144 FCR 302; 213 ALR 536

Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

Military Rehabilitation and Compensation Act 2004, s 2(1), item 2
Repatriation Legislation Amendment Bill 1985

Veterans’ Entitlements Act 1986 ss 5Q(1), 13(b) and (d), 13(6A), 14, 14(1) and (4), 17(1), (2) and (3), 18(1), 19(1)(a) and (b), (3) and (5A)(a), 19(5C), 19(5C)(a) and (b), 19(5F), 19(6), 20(1) and (2), 21A(1), (2) and (3), 22, 22(2), 23(1), 23(1)(aa), (aab), (b), (c) and (d), 23(2), (3A), (3B) and (6), 24, 24(1)(a), (b) and (c), 24(2) and (6), 24(2A) and (2B), 25, 25A, 28, 28(a), (b) and (c), 115D and 115D(1) and (7)
Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994

Guide to the Assessment of Rates of Veterans’ Pensions

Second Reading Speech to Veterans’ Entitlements Bill 1985 Hansard, House of Representatives, 16 October 1985 at 2180
Repatriation Legislation Amendment Bill 1985 Hansard, House of Representatives, 17 May 1985 at 2646-2647

DECISION AND REASONS FOR DECISION [2011] AATA 491

ADMINISTRATIVE APPEALS TRIBUNAL )

) 2009/5772

VETERANS’ APPEALS DIVISION )

Re:REPATRIATION COMMISSION

Applicant

And:PETER THORPE

Respondent

DECISION

Tribunal: Deputy President S A Forgie

Place: Melbourne

Date: 15 July 2011

Decision:The Tribunal:
1.sets aside the decision of the Veterans’ Review Board dated 26 August 2009 which:
(1)set aside the decision of the respondent dated 20 November 2008; and
(2)substituted for that decision a decision that the pension paid to the applicant be assessed at the intermediate rate with effect from and including 5 November 2008; and

2.substitutes for that decision a decision that the decision of the respondent dated 20 November 2008 be affirmed.

S A Forgie
Deputy President

REASONS FOR DECISION

The Repatriation Commission (Commission) applied for review of a decision of the Veterans’ Review Board (VRB) that Mr Thorpe is entitled to be paid pension at the intermediate rate under s 23 of the Veterans’ Entitlements Act 1986 (VE Act). By the time of the hearing in this Tribunal, either the Commission or the VRB had accepted the following conditions as war-caused injuries or war-caused diseases under the VE Act:
(1)chronic solar skin damage (with effect from 9 December 1998);
(2)Post Traumatic Stress Disorder (PTSD) (with effect from 20 June 2002);
(3)tinea (with effect from 20 June 2002);
(4)bilateral tinnitus (with effect from 20 June 2002);
(5)bruxism (with effect from 16 November 2005);
(6)erectile dysfunction (with effect from 16 November 2005);
(7)alcohol abuse (with effect from 20 July 2009); and
(8)depressive disorder (dysthymia) (with effect from 20 July 2010).

On 18 May 2004, the Commission granted Mr Thorpe a pension under Part II of the VE Act at 60% of the general rate and, on 28 September 2006, it increased the rate of pension to 100% of the general rate. It refused his application for an increase in the rate on two occasions. The first was on 10 September 2007 and the second on 5 November 2008. On 26 August 2009, the VRB set aside the Commission’s latest decision and substituted a decision that Mr Thorpe was entitled to be paid pension at the intermediate rate under s 23 of the VE Act.

In seeking review of the VRB’s decision, the Commission conceded that Mr Thorpe satisfies the criteria in:
(1)s 23(1)(aa) – Mr Thorpe had “… made … an application under section 15 for an increase in the rate of pension that he … is receiving”;
(2)s 23(1)(aab) – Mr Thorpe “… had not yet turned 65 when the claim or application was made”; and
(3)s 23(1)(a)(i) – “the degree of the 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 determined by a determination that is in force”.

The remaining criteria in s 23 for the payment of pension at the intermediate rate remain in issue between the Commission and Mr Thorpe. They are:
(1)s 23(1)(b) – Mr Thorpe’s “… incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render … [him] incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; …”; and
(2)s 23(1)(c) – Mr Thorpe “… is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that … [he] was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that … [he] would not be suffering if … [he] were free from that incapacity”.

On behalf of the Commission, Ms James of counsel developed the following propositions:
(1)Mr Thorpe’s incapacity from war-caused conditions alone does not render him incapable of continuing to undertake remunerative work other than on a part time or intermittent basis within the meaning of s 23(1)(b);
(a)Mr Thorpe’s non-accepted conditions and other factors all contribute to his incapacity to perform full-time work;
(2)Mr Thorpe has not ceased to undertake remunerative work and so does not satisfy the first limb of s 24(1)(c); and
(3)Mr Thorpe’s loss of earnings are not due to his war-caused conditions alone but are due also to his personal circumstances, the condition of the labour market, age-related factors and lifestyle decisions.

Mr Moore of counsel, appearing for Mr Thorpe, resisted these submissions. In so far as Ms James’ submissions suggest that Mr Thorpe cannot satisfy the criterion in s 23(1)(c) unless he ceases all remunerative work, I do not accept them. I have decided that
Mr Thorpe’s incapacity from his war-caused conditions is, of itself, of such a nature as to render him incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently within the meaning of s 23(1)(b). I have, however, decided that Mr Thorpe has, during the assessment period, in fact been undertaking remunerative work for 20 or more hours each week. As a result of my making that finding, s 23(2)(b) requires me to conclude that Mr Thorpe does not satisfy s 23(1)(b). I have also decided that I am not satisfied that his incapacity from his war-caused conditions is, of itself alone, renders him incapable of rendering remunerative work otherwise than on a part-time basis or intermittently.

BACKGROUND

I have made a number of findings of fact relating to matters in the past. I have based my findings on the statements prepared by Mr and Mrs Thorpe and on their oral evidence.

Mr Thorpe grew up on his parent’s dairy farm in northern Victoria. He saw his future as working on that dairy farm and left school at the end of Year 8 to do so. He bred and showed Friesian cattle and won over 20 ribbons. As well as his passion for the dairy farm, Mr Thorpe had a passion for sport. He played football, tennis and golf competitively. At the age of 16, he was selected in the district’s senior football team and, by the time he was 20, had twice represented the Murray League. He met his wife when he was approximately 19 years of age. At that time, she found him to be a very happy, sociable and energetic person.

At the age of 20, he was called up for National Service but knew of no-one else in the District who had been. After completing basic training, Mr Thorpe attended the Balcombe Army Camp to undertake a signals course. It was while he was there that he became engaged to Mrs Thorpe. He went to Vietnam where he felt that he struggled with Army life. What he saw and came into contact with scared him and he remains scared. From his point of view, he was thrown into life in Vietnam at the deep end without a life jacket. He became withdrawn and, although he attended to his duties, he longed for the day when he would return home.

When he returned home, Mrs Thorpe found him much changed and she was shocked by his appearance. He had become extremely thin and could not keep any food down. Although she tried to get him to go to the doctor about his health, he refused to do so. He told her that all that he wanted to do was to be discharged from the Army and return home to run the family farm. They married two months after his return from Vietnam.

Once back on the farm, he found life was not as it had been. From his point of view, he felt that those in his community held an underlying animosity towards Vietnam veterans. From Mrs Thorpe’s point of view, her husband could not settle. He was moody and aggressive and continued to vomit. His friends taunted him about having been in Vietnam so that he never talked about his experiences. From Mr Thorpe’s point of view, his friends no longer included him in their social functions and he felt that he was being treated like an outsider. From Mrs Thorpe’s point of view, he did not mix and became socially withdrawn. She encouraged her husband to take up football again. He did so and felt that he was playing the best football he had ever played. Despite that, he was dropped from the team after five games and told that he could not be fitted in the team. At the end of the season, he found that he had scored nine points in those five games towards the best and fairest award. He was at a loss to know why he had been dropped from the team and then lost his temper and hit the coach. Mrs Thorpe encouraged him to play with a smaller club in the District and to mix with new company but that only worked for a short period.

Mr and Mrs Thorpe decided that the best thing to do was to move to another location. Together with Mr Thorpe’s parents, they sold the dairy farm in 1974 and bought a licensed supermarket in Blairgowrie. Mr Thorpe ran the bottle shop. As a lot of storeroom work was involved in that, he could keep in the background while the other three members of the family ran the rest of the business. Although he had not been drinking immediately after his return from Vietnam, he started to do so and would consume a bottle of red wine or, if he felt very bad, two bottles each night. He drank for comfort. Mr Thorpe currently consumes about ten bottles of wine each week.

Mr and Mrs Thorpe had two children while they were there but Mr Thorpe still found that he could not settle. While he and his wife continued to run the supermarket with his parents, they moved from house to house in an attempt to make a fresh start. Mrs Thorpe found moving an easier proposition than living next door to neighbours with whom her husband would have heated arguments. Mr Thorpe felt that he was not accepted because he was a Vietnam veteran. He would become “aggro” as a result and would feel that things were unjust and not sitting well with him.

In 1978, they moved again and bought a smaller licensed supermarket in Creswick. They ran it by themselves. At first, Mr Thorpe felt that things went well but then he found things became just the same. He would get upset over any little thing. His world was crushing down on him. He became very withdrawn and lethargic and found himself not sleeping at night. Mrs Thorpe seemed to be forever in the shop, which was attached to the house in which they lived.

Looking for another fresh start, Mr and Mrs Thorpe bought another dairy farm in 1980 after Mr Thorpe had spent a short time working for Campbell Soups. Mr Thorpe felt that going back to a farm would be the answer to his problems. Their third child was born while they were there. Mr Thorpe started well and started to breed cattle. His efforts were short-lived and he found himself struggling to leave the house. He took to the couch for three months. Mrs Thorpe had to employ others to milk the cows and run the farm as she could not do it herself and care for three children. At his wife’s insistence, Mr Thorpe went to the doctor who diagnosed that he was suffering from depression. The doctor prescribed Prozac but Mr Thorpe “never seemed to be 100%”.[1]
[1] Exhibit 3 at 1

They sold the farm in 1982. Mr Thorpe’s father and brother were running a newsagency in Melbourne and thought that they could help him and his wife to run their own newsagency. Mr and Mrs Thorpe needed income to support the family. In 1983, they purchased a newsagency at Essendon. Although they had family support, the major burden of running the business fell on Mrs Thorpe. Mr Thorpe sorted and delivered newspapers in the morning when he was able. The children did them when he could not. Mrs Thorpe engaged staff and worked in the business during the rest of the day. She tried to keep her husband in the background while he struggled to sleep and became moody and aggressive over the slightest problem. He had altercations with most people and was charged with assault. Mrs Thorpe encouraged him to take up squash and to jog. They sold the business in 1987.

In 1988, Mr Thorpe began working for Regency Showers and Wardrobes (Regency) as a sub-contractor fitting showers. He remained there for two years but felt that he did not get along with his fellow workers. Mrs Thorpe would go with him sometimes to “cool the situation with other sub-contractors”.[2] Despite her efforts, Mr Thorpe left Regency.
[2] Exhibit 3 at 2

In 1990, Mr and Mrs Thorpe purchased a small Tattslotto business, which the two of them could run together. At a pinch, Mrs Thorpe could run it on her own with part-time assistance and this is what she did for the next two years. During that time, she noticed a marked increase in her husband’s drinking habits and she was much concerned. The longer he was left on his own, the more he drank.

In 1993, they sold the Tattslotto business and bought a larger Tattslotto agency in Geelong. They sold the business in 2001. Mrs Thorpe semi-retired but, as they still needed an income, Mr Thorpe started work with Premium Showers and Wardrobes (Premium) on 17 November 2001[3] to fit wardrobes rather than showers. His work is carried on in the name of the partnership he and his wife have formed: PE and JA Thorpe (the Thorpe Partnership).

LEGISLATIVE FRAMEWORK

[3] Exhibit F at [5] and T documents at 21

Initial claim for a pension under Part II of the VE Act

Where a veteran is incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is, subject to the VE Act, liable to pay a pension by way of compensation to that veteran in accordance with the legislation.[4] Entitlement to a pension of that sort is determined under Part II of the VE Act. As he was entitled to do under s 14,
[4] VE Act, ss 13(b) and (d). These provisions apply rather than those of the Military Rehabilitation and Compensation Act 2004 (MRCA) as the occurrence resulting in any incapacity did not happen after the MRCA commencement date (1 July 2004) and nor did Mr Thorpe contract any war-caused disease after that date: VE Act, ss 5Q(1) and 13(6A) and see also MRCA, s 2(1), item 2.
[5] VE Act, s 14(4)
Mr Thorpe has made a claim for a pension. The fact that he is required to make that claim in writing and to include any evidence available to him and considered by him to be relevant does not impose any onus of proof on him or require him to submit further evidence.[5]

Once a claim has been made under s 14(1), it is lodged at an office of the Department of Veterans’ Affairs (Department).[6] The Secretary of the Department must investigate the matters to which the claim relates[7] and then submit the claim to the Commission for investigation and determination under s 17(2) together with all relevant evidence and documents under the Department’s control.[8]
[6] VE Act, s 14(3)(c)
[7] VE Act, s 17(1)
[8] VE Act, s 17(3)

The Commission must consider the claim in order to determine all matters relevant to the determination of that claim.[9] It must first determine whether the veteran is entitled to be granted a pension in respect of incapacity from a war-caused injury or war-caused disease. If the Commission determines that the veteran is so entitled, it proceeds in accordance with s 19(5C).[10]
[9] VE Act, s 18(1)
[10] VE Act, ss 19(1)(a) and (b), (3) and (5A)(a)

Section 19(5C) is concerned with assessment of the rate or rates at which the pension would have been payable from time to time during the assessment period. The “assessment period” is the “… period starting on the application day [the day on which the claim was received at an office of the Department …[11]] and ending when the claim … is determined.”[12] The Commission must assess that rate or those rates.[13] Having done that and subject to s 19(6), the Commission must assess the rate at which the pension is payable.[14] Where, at some time during the assessment period, the Commission has assessed that the pension was payable at a rate provided by ss 23 or 24, 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.”[15]
[11] VE Act, s 19(9)
[12] VE Act, s 19(9)
[13] VE Act, s 19(5C)(a)
[14] VE Act, s 19(5C)(b)
[15] VE Act, s 19(6)

A determination takes effect from the date on which the Commission makes its determination or an earlier or later date specified in the determination.[16] In certain circumstances, the date specified can be a date not earlier than three months before the claim for pension.[17]

The general rate of pension and extreme disablement adjustment payable to a veteran under Part II of the VE Act

[16] V E Act, s 19(5F)

[17] VE Act, ss 20(1) and (2)

Subject to ss 21A(2) and (3), the Commission determines the degree of incapacity of a veteran from a war-caused disease or war-caused injury, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans’ Pensions (Guide).[18] The degree of incapacity must be determined as 10% or multiples of 10%. That is the effect of s 21A(2). The Commission may determine that the degree of incapacity is less than 10% including 0%.[19] Where it does so, it may not assess a rate of pension. Instead, it must refuse a pension “… on the ground that the extent of the incapacity of the veteran from that war-caused injury or war-caused disease, or both, is insufficient to justify the grant of a pension.”[20]
[18] VE Act, s 21A(1)
[19] VE Act, s 21A(3). See also, VE Act, s 29(5)
[20] VE Act, s 21A(3)

Putting aside pensions paid under ss 23, 24 and 25, the rate at which a veteran is paid a pension under Part II of the VE Act is determined under s 22. The maximum rate of pension is set by s 22(3) and is known as the general rate.[21] The rate at which pension is payable in respect of incapacity from a war-caused disease or war-caused injury or both:
“… is the rate per fortnight that constitutes the same percentage of the general rate as the percentage determined by the Commission in accordance with section 21A to the degree of incapacity of the veteran from that war-caused injury or war-caused disease, or both, as the case may be.”[22]
[21] VE Act, ss 5Q(1) and 22(3)
[22] VE Act, s 22(2)

Section 22(4) provides for an increase in the rate of pension payable to a veteran whose degree of incapacity has been assessed to be 100%,[23] has attained the age of 65 years and has an impairment rating of 70 points and does not receive a pension provided for by ss 23, 24 or 25. This is the extreme disablement adjustment to the general rate of pension.
[23] In the alternative, a veteran qualifies if suffering from, or having suffered from, pulmonary tuberculosis and entitled to receive pension at the maximum rate: VE Act, s 22(4)(b)

The intermediate rate of pension payable to a veteran under Part II of the VE Act

Before regard may had to the rate of pension payable under s 23 – the intermediate rate – the veteran must have made a claim for a pension under s 14 before he or she turned 65 years of age.[24] Sections 24 (special rate) and 25 (temporary payment at the special rate) cannot apply to the veteran.[25] Finally, but putting to one side the provisions relating to pulmonary tuberculosis, the veteran must satisfy four criteria.
[24] VE Act, ss 23(1)(aa) and (aab)
[25] VE Act, s 23(1)(d)

The first is set out in s 23(1)(a):
“(a) either:
(i)the degree of the 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 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; …”

I have summarised s 21A above but, as reference is also made to it in
s 23(1)(a)(i), it is important to set out its specific terms. Section 21A provides:
“(1) The Commission shall, subject to subsections (2) and (3), determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans Pensions.
(2)Subject to subsection (3), the degree of incapacity shall be determined as 10% or a multiple of 10%, but not exceeding 100%.
(3)The Commission may determine that the degree of incapacity of a veteran from a war-caused injury or war-caused disease, or both, is less than 10% (including 0%), and, where it does so, it shall not assess a rate of pension, but shall refuse to grant a pension to the veteran on the ground that the extent of the incapacity of the veteran from that war-caused injury or war-caused disease, or both, is insufficient to justify the grant of a pension.”

The second criterion for payment of pension at the intermediate rate is set out in s 23(1)(b):
“the veteran’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; …”.

Section 5Q(1) provides that the expression “remunerative work includes any remunerative activity.”

Section 23(2) qualifies s 23(1)(b) by providing:
“Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a)if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b)in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking – if the veteran is undertaking, or is capable of undertaking that work for 20 or more hours per week.”

The third criterion, set out in s 23(1)(c), is that:
“the veteran is, by reason of incapacity from 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 from that incapacity; …”.

Section 23(3) qualifies s 23(1)(c) by providing:
“For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) 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:
(i)if 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;
(ii)if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii)if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; 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.”

The fourth criterion is that neither s 24 nor s 25 applies to the veteran.[26] Section 24 is concerned with pension at the special rate and s 25 with the temporary payment of pension at the special rate.[27]
[26] VE Act, s 23(1)(d)
[27] See [38]-[46] below

Section 23(3A) is a provision that varies the criteria in relation to a veteran who has turned 65 years of age before making a claim for a pension or an application for an

increase and who has continued in remunerative work after that age. It provides that:

“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) (as affected by subsection (2)) 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 24 or 25 do not apply to the veteran.”

Section 23(3B) qualifies the operation of s 23(3A)(e) by providing that, for its:
“… purposes …, a veteran who is incapacitated from war-caused injury or war-caused disease or both, to the extent set out in paragraph (1)(b) is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(b)the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason; or
(c)the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both.”

The special rate of pension payable to a veteran under Part II of the VE Act

Mr Thorpe has not claimed pension at the special rate. Even so, the provisions relating to special rate have been interpreted by the Federal Court and it is said that its interpretation is equally applicable to s 23. For that reason, I have set out the provisions of
s 24.

Before regard may had to the rate of pension payable under s 24 – the special rate – the veteran must have made a claim for a pension under s 14 before he or she turned
[28] VE Act, ss 24(1)(aa) and (aab)
[29] VE Act, s 24(1)(d)
65 years of age.[28] Section 25 (temporary payment at the special rate) cannot apply to the veteran.[29] Finally, but putting to one side the provisions relating to pulmonary tuberculosis, the veteran must satisfy four criteria.

The first is set out in s 24(1)(a):
“(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 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; …”

As to the provisions of s 21A, see [30] above.

The second criterion for payment of pension at the special rate is set out in
s 24(1)(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; …”.

The third criterion, set out in 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 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; …”.

Section 24(2) qualifies s 24(1)(c) by providing:
“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; or
(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 the 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.”

The fourth criterion is that s 25 does not apply to the veteran.[30] Section 25 is concerned with temporary payment of pension at the special rate.
[30] VE Act, s 24(1)(d)

Section 24(2A) is a provision that varies the criteria in relation to a veteran who has turned 65 years of age before making a claim for a pension or an application for an increase and who has continued in remunerative work after that age. It provides that:
“This section applies to a veteran if:
(b)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.”

Section 24(2B) qualifies the operation of s 24(2A)(e) by providing that, for its:
“… purposes …, a veteran who is incapacitated from war-caused injury or war-caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(b)the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.”

Application to increase rate of pension payable to a veteran under Part II of the VE Act

Once a veteran is in receipt of a pension under Part II in respect of his or her incapacity, that veteran may apply for an increase in the rate of that pension. The ground on which he or she does so is that his or her incapacity has increased since the rate of pension was assessed or last assessed.[31]

[31] VE Act, s 15(1)

Decrease in rate of pension payable to a veteran under Part II of the VE Act

As a general rule, once the Commonwealth becomes liable to pay a pension at the rate provided for in either ss 23 or 24, that liability continues. There are exceptions, though. One relates to a decision to apply a particular rate of pension that would not have been made but for a false statement or misrepresentation.[32] The other relates to the veteran’s undertaking remunerative work or the capacity to do so and relates to pensions paid at rates under both ss 23 and 24. It is found in ss 24A(1)(b) and (c):
[32] VE Act, s 24A(1)(a)
“Subject to subsections (1A) and (2), if the Commonwealth is or becomes liable to pay a pension to a veteran at the rate applicable under section 23 or 24, that rate continues, while a pension continues to be payable to the veteran, to apply to the veteran unless:
(a)…
(b)in the case of a veteran to whom section 23 applies:
(i)the veteran is undertaking or is capable of undertaking remunerative work of a particular kind for 50% or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full time basis; or
(ii)in a case where subparagraph (i) is inapplicable to the work which the veteran is undertaking or is capable of undertaking – the veteran is undertaking or is capable of undertaking that work for 20 or more hours per week; or
(c) in the case of a veteran to whom section 24 applies – the veteran is undertaking or is capable of undertaking remunerative work for periods aggregating more than 8 hours per week.”

The provisions in ss 24A(1)(b) and (c) do not apply to a veteran undertaking a rehabilitation program under the Veterans’ Vocational Rehabilitation Scheme or if s 115D of the VE Act applies to him or her.[33]

[33] VE Act, s 24A(2)

The rate may also be reduced to take account of certain payments of compensation. This is provided for in s 25A, in relation to an amount of compensation received under ss 24, 25 or 27 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for some injury or disease other than the war-caused injury or war-caused disease.[34] It is provided for also in s 26 in relation to periodical payments or lump-sum payments in respect of incapacity under the law of a foreign country or under the law of a State.
[34] See also VE Act, ss 23(6) and 24(6)

Both a pension payable at the intermediate rate and a pension payable at the special rate may be reduced if an amount is payable to a veteran under s 115D of the VE Act. The amount by which it is reduced is calculated according to the formula set out in ss 23(5) or 24(5) as appropriate. In broad terms, an amount is payable to a veteran under s 115D if:
“… a veteran who is engaged in remunerative work of more than 8 hours per week as a result of undertaking a vocational rehabilitation program under the Veterans’ Vocational Rehabilitation Program. …”[35]
[35] VE Act, s 115D(1)

A veteran’s reduced daily pension amount for a pension period occurring within the initial period, is calculated by using the formula set out in s 115D(2):

Veteran’s daily

above general rate

X

(1 + Veteran’s taper amount)

2

The veteran’s daily above general rate refers to the rate worked out according to the formula set out in s 115D(7):

Veteran’s pension rate on commencement – General rate

14

The veteran’s taper amount, also defined in s 115D(7), means:

“(a) if the veteran’s average weekly hours are 40 hours or more – nil; and

(c) otherwise – the amount worked out using the following formula:

40 - Veteran’s average weekly hours

32

The initial period extends for two years from the day after the veteran first commenced remunerative work as a result of undertaking a vocational rehabilitation program.[36] The second period runs for a further five years after the initial period.[37]

DISCUSSION OF ASPECTS OF THE LEGISLATIVE PROVISIONS

[36] VE Act, s 115D(7)

[37] VE Act, s 115D(7)

Second Reading Speech

Reference was made during the submissions to the Second Reading Speech accompanying the Veterans’ Entitlements Bill 1985 (VE Bill) when it was said of the negotiations leading up to its introduction:
“ While some significant further concessions are to be made in the VEB [Veterans’ Entitlements Bill], I make no secret of the fact that the Government has had to make some hard decisions about how generous particular entitlements available to veterans and their dependants should be, having regard to expenditure implications. The Government must take into account not just the special interest of veterans but also the broader interest of the community in ensuring responsible economic management. …”[38]
[38] Hansard, House of Representatives, 16 October 1985 at 2179

I note that, a little later in the Second Reading Speech, the Minister said:
“ Part II of the VEB will also continue the effect of the recent legislative amendments to clarify eligibility for payment of pension at the intermediate or special – TPI [Totally and Permanently Incapacitated Rate] – rate. The TPI rate pension was designed for severely disabled veterans of a relatively young age who could never go back to work and could never hope to support themselves or their families or put away money for their old age. It was never intended that the TPI rate would become payable to a veteran who, having enjoyed a full working life after war service, then retires from work possibly with whatever superannuation or other retirement benefits are available to the Australian work force.”[39]
[39] Hansard, House of Representatives, 16 October 1985 at 2180

This passage relates to the special rate of pension but is equally applicable to the intermediate rate. Four things have to be kept in mind when referring to this passage. The first is that this passage is qualified by the paragraph that comes immediately after it. In that paragraph, the Minister acknowledges that some veterans may have enjoyed a full working life after service and yet still qualify for a TPI pension i.e. a pension at the special rate. As the Minister said:
“ Under the TPI criteria in the VEB, a pension is not payable at that rate unless at the time of determination that the veteran is receiving a 100 per cent general rate pension, is totally and permanently incapacitated, and would be continuing in remunerative work but for a war-caused disability and thereby suffers economic loss. I would not expect many veterans over the normal retirement age to qualify for payment of pension at this rate as there would usually be reasons other than the effect of a war-caused incapacity which precluded continuing in employment. If a person has had the usual span of a working life or has retired voluntarily or has left employment for reasons other than accepted disabilities, a TPI pension is not payable. Nonetheless, there is no strict age limit on entitlement to the special rate pension, although it must be clear that not many veterans over the age of 65 years will qualify. Special provision is made by the Bill to cover veterans who are under
[40] Hansard, House of Representatives, 16 October 1985 at 2180. In their book,
65 years of age, are unemployed, and are genuinely seeking to engage in remunerative work.”[40]

The second thing to keep in mind is that the Second Reading Speech necessarily predated a judgment by the Full Court of the Federal Court interpreting s 24. That judgment was in Starcevich v Repatriation Commission[41] (Starcevich) and I refer to this below.[42] The Court considered an application for pension at the special rate by a veteran who was 68 years of age when he applied. For the purposes of s 24(1)(c), it looked to all substantial remunerative work in which the veteran had previously undertaken.
[41] (1987) 18 FCR 221; 76 ALR 449; 7 AAR 296; Fox and Jenkinson JJ; Neaves J dissenting
[42] See [86] below

Much later and after a series of cases following Starcevich, Parliament decided that it wanted to impose stricter criteria on those veterans who applied after the age of
65 years than on those who applied at a younger age. It amended the VE Act when it enacted the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Amendment Act). In explaining the initiatives it was introducing, the Explanatory Memorandum to that Amendment Bill stated:
“The second initiative, which relates to changes to the eligibility criteria for special and intermediate rate pension, will mean that these pensions will not normally be granted to veterans who are over the age of 65. An exception to this rule will apply if the veteran was engaged in remunerative work after the age of 65 and that work was in the same business or employment in which the veteran had been working for ten continuous years. This would include, for example, many in the farming community …
This measure applies only to veterans who, after 1 June 1994, claim special or intermediate rate pension after they have turned 65. Existing pensions will not be affected by the change. Similarly, a pension granted to a veteran before the age of
[43] Explanatory Memorandum to Amendment Bill at ii
65 will continue to be paid after the veteran turns 65.”[43]

The way in which it achieved its initiative was through ss 16 and 17 of the Amendment Act. Section 17 amended s 24 in relation to the special rate by adding ss 24(2A) and (2B) and s 16 amended s 23 by adding ss 23(3A) and (3B) in relation to the intermediate rate. These, as well as consequential amendments to ss 23(1) and 24(1), were intended to impose different eligibility criteria on those veterans who had turned 65 years of age before making their claim or application under ss 23 or 24 from those who had not. The eligibility criteria are more difficult to meet when a veteran is older but he or she may still do so. Among other criteria, they require a veteran who had turned 65 years to have been undertaking his or her last paid work after turning that age and to have done so continuously for the previous ten years. Clearly, the earlier policy, as reflected in the Second Reading Speech reproduced above, had been superseded for, while it might well have represented Parliament’s intention at the time, it did not necessarily accord with the way in which s 24 had been interpreted.

That brings me to the third thing that has to be kept in mind in reading the Second Reading Speech. It is that:
“ It is an elementary and fundamental principle that the object of the court, in interpreting a statute, ‘is to see what is the intention expressed by the words used’: River Wear Commissioners v Adamson (1877) 2 App Cas 743, at p 763. It is only by considering the meaning of the words used by the legislature that the court can ascertain its intention. And it is not unduly pedantic to begin with the assumption that words mean what they say: cf Cody v J H Nelson Pty Ltd (1947) 74 CLR 629, at
[44] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297; 35 ALR 151; 11 ATR 949; 55 ALJR 434 at 304; 156; 955; 437 per Gibbs CJ
(1980) 147 CLR 297 at 304
p 648. Of course, no part of a statute can be considered in isolation from its context-the whole must be considered. If, when the section in question is read as part of the whole instrument, its meaning is clear and unambiguous, generally speaking ‘nothing remains but to give effect to the unqualified, words’: Metropolitan Gas Co v Federated Gas Employees’ Industrial Union (1925) 35 CLR 449, at p 455. …”[44]

This passage is taken from the judgment of Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation. It is clear from a reading of the whole of the judgment that, where the meaning is not clear and for limited purposes, regard may be had to legitimate aids to construction. What is equally clear is that what might be thought to be Parliament’s intention cannot be used to rewrite the words used by Parliament in a particular enactment. In Mills v Meeking,[45] Dawson J wrote of the Victorian equivalent to s 15A(1) of the Acts Interpretation Act 1901:
“…The approach required by s 35 [of the Interpretation of Legislation Act 1984 (Vic)] needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done. However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. Section 35 requires a court to construe an Act, not to rewrite it, in the light of its purposes.”[46]
[45] [1990] HCA 6; (1990) 169 CLR 214; 91 ALR 16; 64 ALJR 190; Mason CJ, Brennan and Toohey JJ, Dawson and McHugh JJ dissenting
[46] [1990] HCA 6; (1990) 169 CLR 214; 91 ALR 16; 64 ALJR 190 at 235; 30-31; 199

The final thing to remember is that the VE Act has been the subject of interpretation by the Federal Court and the High Court. Once a court has been required to interpret a provision in reaching its judgment, it is that interpretation that the Tribunal must apply. The Tribunal no longer has the luxury of looking at the VE Act and interpreting as it might if it were uninstructed by the courts. The role of the Tribunal is to apply the legislation as interpreted by the courts. Quite apart from the fact that this is its role and place in the hierarchy of judicial and quasi-judicial decision-making, it is essential that it follow this path. It is an important factor in ensuring consistency across the range of factual situations that present themselves for decision.

Approach to the task under ss 23 and 24

In Flentjar v Repatriation Commission[47] (Flentjar), Branson J, with whom Beaumont and Merkel JJ agreed, set out the steps that the Tribunal must take in determining whether a veteran is entitled to pension at the Special Rate under s 24. I have taken the liberty of adding, in square brackets, the particular paragraph of s 24(1) to which her Honour was referring when she said:
“In my view the issues before the tribunal in this case were as follows:
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? [s 24(1)(b)]
3.If the answer to question 2 is yes, is the war-caused injury or the war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work? [first sub-criterion in s 24(1)(c)]
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 or her own account that he would not be suffering if he were free of that incapacity?” [48] [second sub-criterion in s 24(1)(c)]
[47] [1997] FCA 1200; (1997) 48 ALD 1; 26 AAR 93; Beaumont, Branson and Merkel JJ
[48] [1997] FCA 1200; (1997) 48 ALD 1; 26 AAR 93 at 4-5; 96

These four steps are necessarily preceded by the Tribunal’s being satisfied that the veteran has made a claim under s 14 or an application under s 15[49] before he attained the age of 65 years[50] and either has a degree of incapacity from war-caused injury or war-caused disease, or both, of at least 70%[51] or is entitled to receive pension at the General Rate because he or she suffered, or is suffering from, pulmonary tuberculosis.[52]
[49] VE Act, s 24(1)(aa)
[50] VE Act, s 24(1)(aab)
[51] VE Act, s 24(1)(a)(i)
[52] VE Act, s 24(1)(a)(ii)

I will begin with my understanding of the provisions before I turn to the meaning of the expression “remunerative work” as it is used in ss 23(1)(b) and 24(1)(b) and the authorities. Although I recognise that Flentjar sets out an order that begins with
[53] VE Act, s 24(1)(aab)
s 24(1)(c), I think that the difference is only one of order and not of substance. I have not dealt with the procedural matters of a veteran’s having made a claim or application as required by s 24(1)(aa) and, unless shown otherwise, have assumed that the veteran is under the age of 65 years when making the claim or application.[53] I have also assumed that the veteran has a degree of incapacity from war-caused injury or war-caused disease, or both, to be at least 70% as assessed under the Guide.

Section 23(1)(a): incapacity

Incapacity from war-caused injury or war-caused disease, or both, is ascertained for the purposes of s 23(1)(a) is assessed according to the Guide. The assessment is not determined by reference to a veteran’s incapacity to work. Instead, and speaking only in broad terms, it is assessed by reference to the functional loss of the veteran as a consequence of the war-caused conditions and the effect of that functional loss on the veteran’s lifestyle. The functional loss is combined with the lifestyle effect to assess the degree of incapacity. The functional loss is measured by reference to the veteran’s “… performance efficiency compared with that of an average, healthy person of the same age and sex, in a set of defined vital functions. …”[54]
[54] Guide at 5

Section 23(1)(b): two parts to the criterion

When read with s 23(2), it appears that s 23(1)(b) has two distinct parts. The first part relates to the veteran’s incapacity to undertake remunerative work and the second to remunerative work that the veteran is undertaking. Section 23(2) has two distinct parts with one relating to incapacity and the other to the remunerative work that a veteran is actually undertaking. Inherent in s 23(2) is the notion that a person’s incapacity may be a very different thing from what a person is actually undertaking. The first part of s 23(2) focuses on incapacity by providing a measure, as it were, of the degree of incapacity that a veteran must suffer before meeting the criterion in s 23(1)(b). If the veteran’s capacity meets or exceeds that measure, he or she cannot fulfil the criterion in s 23(1)(b). The second part of
s 23(2) relates to remunerative work actually undertaken. It excludes a veteran from being able to fulfil the criterion in s 23(1)(b) if that veteran is undertaking remunerative work at a level that meets or exceeds an amount of work that is set by s 23(2). That amount of work is measured by the same measure as is prescribed for measuring the veteran’s degree of incapacity i.e. 50% or more of full-time hours ordinarily worked or work for 20 hours or more each week.

Putting ss 23(1)(b) and (2) together, they require the following questions to be asked and answered:
(1)What is the veteran’s incapacity from war-caused injury or war-caused disease, or both, alone?[55]
[55] VE Act, s 23(1)(b)
(a)The veteran’s incapacity (as well as degree of incapacity) from war-caused injury or war-caused disease, or both, will have been identified in determining the degree of that incapacity under s 23(1)(a).
(2)Determine whether the veteran’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature to render him or her incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently by having regard only to the answers from the following questions:
(a)What are the veteran’s vocational, trade and professional skills qualifications and experience?[56]
[56] VE Act, ss 23(1)(b) and 28(a)
(b)What are the kinds of remunerative work which a person with the veteran’s skills, qualifications and experience might reasonably undertake?[57]
[57] VE Act, ss 23(1)(b) and 28(b)
(c)What is the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work identified in step (2)(b)?[58]
[58] VE Act, ss 23(1)(b) and 28(c) If the veteran’s capacity for remunerative work is not reduced by reason of his or her physical or mental impairment from war-caused disease or war-caused injury, or both, alone, he or she does not meet the criterion in s 37(1)(b).
(i)Section 28(c) focuses on the degree to which the veteran’s “physical or mental impairment” as a result of the war-caused conditions has reduced his or her capacity to undertake the specified kinds of work. It does not focus on the veteran’s incapacity which is the subject of s 23(1)(a) and which is assessed by reference both to functional loss (i.e. impairment[59]) and lifestyle effects.
[59] “…impairment … the fact of being impaired.” “… impair … Become less effective or weaker; deteriorate; suffer injury or loss. …”: Shorter Oxford English Dictionary, 5th edition, 2002, Oxford University Press
(3) If the question in (2) is answered in the affirmative, the next question is:
(a)is the veteran capable of undertaking remunerative work of a particular kind for 50% or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis;[60] or
(b)if the question asked in (a) is inapplicable to the remunerative work of a particular kind that the veteran is capable of undertaking, is the veteran capable of undertaking it for 20 hours or more?[61]
(4)If the answer to the relevant question in (3) is in negative, the final question to ask is whether the veteran is undertaking work of a particular kind for either:
(a)50% or more of the time (excluding overtime) ordinarily worked by persons engaged in remunerative work of that kind on a full-time basis; or
(b)if the question asked in (a) is inapplicable to the remunerative work the veteran is undertaking, is the veteran undertaking it for 20 hours or more?[62]
[60] VE Act, s 23(2)(a) and see Footnote following.
[61]
[62] If, despite the conclusion that the veteran has an incapacity from war-caused injury or war-caused disease, or both, alone is incapable of undertaking remunerative work of a kind identified under s 28, the veteran is undertaking remunerative work at a level identified in ss 23(2)(a) or (b), the veteran does not meet the criterion in s 23(1)(b).

I have separated the question in [66(2)] above, which is based on s 23(1)(b), from those in [66(3) and (4)], which are based on s 23(2). My reasons are twofold but they are interrelated. My first is that the separation reflects the manner in which the provisions are drafted. While it is clear that s 23(1)(b) cannot be fulfilled if a veteran comes within either
ss 23(2)(a) or (b), s 23(1)(b) does not provide that what amounts to work on a part-time or intermittent basis is assessed by reference to the criteria set out in ss 23(2)(a) and (b). It is drafted on the basis that a veteran must first meet the general criterion set out in s 23(1)(b), having regard only to the matters set out in s 28. He or she must do so without reference to
s 23(2), and based on the extent to which his or her incapacity has rendered him or her incapable of undertaking remunerative work. That general criterion assumes that the veteran’s incapacity may have left him or her with capacity to work on a full-time or intermittent basis. Having met that criterion, s 23(2) sets an additional barrier the veteran must meet before the veteran may be said to have satisfied the criterion in s 23(1)(b). It may be that a veteran would have incapacity as described in s 23(1)(b) but actually be working. It may be that the veteran has that incapacity but Parliament has, in s 23(2), stipulated the extent of the incapacity required to meet s 23(1)(b).

My second reason is related to the first. It stems from the fact that Parliament has dealt solely with the veteran’s incapacity in s 23(1)(b) whereas, in s 23(2), it has dealt both with incapacity and with remunerative work actually being undertaken. In dealing with incapacity under s 23(1)(b), regard must be had to the matters set out in s 28. As I will come to later in these reasons,[63] that task will involve an exercise that may identify remunerative work in which the veteran has never been engaged. To the extent that it is concerned with incapacity, s 23(2)(b) also involves an exercise that requires consideration of remunerative work in which the veteran may never have engaged. To the extent that it is concerned with remunerative work that the veteran is undertaking, s 23(2)(b) involves consideration of the work he or she is actually undertaking regardless of the conclusion relating to his or her incapacity or otherwise for remunerative work.

Section 23(1)(b): what is the “remunerative work” that the veteran is “incapable of undertaking” otherwise than on a part-time basis or intermittently?

[63] See [69]-[72] below

The expression “remunerative work” is defined in s 5Q(1): “remunerative work includes any remunerative activity”. A remunerative activity is something that people do for remuneration. It may be undertaken in a formal arrangement leading to a formal relationship such as that between an employer and an employee or between parties to a formal contract such as would be the case for a contractor or sub-contractor but, equally, it may not. It may be undertaken on a full-time basis. It may be undertaken on a part-time basis with regular hours, with a consistent number of hours over a period or with no regular pattern of either the number of hours undertaken over a period or of their being undertaken. Provided there is an activity for which the veteran receives payment or reward, it is a remunerative activity and so remunerative work.

Remunerative work referred to in ss 23(1)(b) and 24(1)(b) is not a reference to remunerative work that the veteran has necessarily undertaken in the past. That becomes apparent when reference is made to s 28 of the VE Act. It tells the Commission the matters to which it may have regard when determining, for the purposes of ss 23(1)(b) and 24(1)(b), whether a veteran incapacitated from war-caused injury or war-caused disease, or both, is capable of undertaking remunerative work. The matters to which the Commission may have regard do not include the specific work undertaken or positions held by the veteran in the past. Regard must be had instead to the vocational, trade and professional skills, qualifications and experience of the veteran. Having identified them, the Commission must have regard to the kinds of remunerative work that a person with those skills, qualifications and experience might reasonably undertake. The degree of incapacity is assessed by reference to the way in which the veteran’s physical or mental impairment as a result of war-caused injury or war-caused disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work that a person with the veteran’s skills qualifications and experience might reasonably undertake.

That remunerative work referred to in ss 23(1)(b) and 24(1)(b) is not a reference to remunerative work that the veteran has undertaken in the past or is undertaking also becomes apparent when regard is had to ss 23(1)(c) and 24(1)(c) as well as to ss 23(3A)(d) and 24(2A)(d) in relation to veterans whose claim or application for pension or an increase in pension is made after they are 65 years of age. Unlike ss 23(1)(b) and 24(1)(b), these provisions focus on the remunerative work that the veteran “was undertaking” and “prevented from continuing to undertake” or, in the case of ss 23(3A)(d) and 24(2A)(d), on the “remunerative work … that the veteran was last undertaking …” before he or she made the claim or application.

To illustrate the difference between the remunerative work identified for the purposes of ss 23(1)(b) and 24(1)(b) on the one hand and ss 23(1)(c) and 24(1)(c) on the other, I have considered the situation of a veteran who holds a statutory office as a judicial officer. In that position, the veteran chooses or, because of lack of administrative support staff, has no other choice but to undertake the preparation of his or her own judgments and power-point presentations. In doing so, the veteran develops considerable skill in those tasks. The veteran has never undertaken remunerative work in which he or she was rewarded for his or her keyboard skills. For the purposes of s 28, though, the veteran’s keyboard skills would be among the matters taken into account in identifying particular kinds of remunerative work that he or she might reasonably undertake having regard to his or her incapacity as a result of the war-caused injury or war-caused disease or both. Depending on other skills, qualifications and experience, it might or might not extend to secretarial or administrative work more generally.

Section 23(1)(b): what is remunerative work on a part-time basis or intermittently?

For the reasons I have given earlier, I do not think that it is appropriate to answer this question simply by saying that it means remunerative work at a level described in s 23(2). Section 23(1)(b) is concerned with incapacity that is a consequence of the veteran’s war-caused injury or war-caused disease, or both, without regard for any other incapacity brought about by some other injury or disease. It is assessed by reference to the broad range of remunerative work identified as a result of the exercise required by s 28. Incapacity is not assessed by reference to work of a particular kind. In contrast, s 23(2) is focused on work of a particular kind. When it refers to incapacity, s 23(2) is not referring to work of a particular kind that the veteran was or is undertaking but to the kinds of remunerative work which that veteran might reasonably undertake as described in s 28(b) having regard to s 28(a). When
s 23(2) is focused on work of a particular kind that the veteran is undertaking, it is clearly focusing on remunerative work of a kind that the veteran is undertaking.

I will refer only to the ordinary meanings of “part-time” and of “intermittent” for they seem to be the sense in which they are used in s 23(1)(b):
“part-time”: “… done, attended, etc during only part of the full working day …”[64]
“intermittent”: “… happening occasionally; stopping for a while and then starting again; not continuous. …”[65]

Section 23(1)(b): does incapacity for remunerative work rendering the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently mean that the veteran may not undertake remunerative work?

[64] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[65] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

The answer to the question that I have asked in the heading must be “no”. All the s 23(1)(b) requires is a finding that the veteran has incapacity from war-caused injury or war-caused disease, or both, that is of itself alone of such a nature to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently. The necessary corollary of that proposition is that the veteran has capacity for undertaking work on a part-time basis or intermittently. Section 23(1)(b) is concerned only with capacity to undertake remunerative work and not with whether the veteran is actually undertaking remunerative work or not.[66]
[66] Section 23(1)(b) mirrors s 24(1)(b), which is concerned with pension payable at the special rate. The difference between the two lies in the fact that, unlike s 23(1)(b), the VE Act does not impose an additional barrier to compliance of the sort found in s 23(2). That is to say, like s 23(1)(b), the criterion in s 24(1)(b) requires that the veteran’s incapacity from war-caused conditions alone renders the veteran incapable of undertaking remunerative work for the periods stated (i.e. otherwise than on a part-time basis or intermittently (s 23(1)(b)) or for periods aggregating more than eight hours (s 24(1)(b)). Unlike s 23(1)(b), s 24(1)(b) is not further qualified by remunerative work that the veteran is actually undertaking beyond the periods stated.

Whether the veteran is actually undertaking remunerative work is left to
[67] See [67] above
s 23(2), which adds an extra hurdle, as it were, to s 23(1)(b). I have already dealt with the extra hurdle it adds in relation to incapacity.[67] In so far as remunerative work is concerned, it is clear from the terms of s 23(2) that it clearly contemplates that there are situations in which a veteran is engaged in remunerative work. The barrier erected by s 23(2) excludes from compliance with s 23(1)(b) only those veterans who are engaged in remunerative work for to the extent stipulated in its provisions or to some greater extent. When ss 23(1)(b) and 23(2) are read together, it becomes clear that a veteran may satisfy s 23(1)(b) and still be undertaking remunerative work on a part-time basis or intermittently.

That this is so is supported by the provisions of s 24A(1)(b) in relation to pension at the intermediate rate. Those provisions, are to the effect that a pension paid at the rate applicable under s 23 continues to be paid at that rate unless either the veteran’s capacity to undertake remunerative work changes so that he or she is capable of undertaking remunerative work at or beyond the hours stipulated in s 23(2) or the veteran is undertaking remunerative work at or beyond those hours i.e at or beyond 50% of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis or 20 hours or more per week.[68]
[68] Section 24A(1)(c) leads to the same outcome when pension is paid at the rate applicable under s 24. Where the veteran is capable of undertaking, or is undertaking, remunerative work for periods aggregating more than eight hours per week, the pension ceases to be payable at that rate.

The conclusion that a veteran may still be engaged in remunerative work and yet satisfy s 23(1)(b) is also supported by reference to s 115D of the VE Act. Section 115D requires a pension payable at either rate above the general rate to be adjusted for amounts received by a veteran while engaged in remunerative work of more than 8 hours per week as a result of undertaking a vocational rehabilitation program under the Veterans’ Vocational Rehabilitation Program.

Section 23(1)(c): what is the “remunerative work that the veteran was undertaking”?

Again, I will begin with the words of the provisions themselves before turning to the authorities for direction. There is a difference between identifying remunerative work that a person is “capable of undertaking” having regard to the matters set out in s 28 and for the purposes of assessing capacity for remunerative work and “remunerative work that the veteran was undertaking” within the meaning of ss 23(1)(c) and 24(1)(c).

To return to my example of the veteran who holds a statutory office as a judicial officer, it is one thing to say that he or she might reasonably undertake keyboard work for the purposes of the assessment of capacity to undertake remunerative work under s 28 and for the purposes of ss 23(1)(b) or 24(1)(b) and quite another to say that keyboard work was “remunerative work that the veteran was undertaking” for the purposes of ss 23(1)(c) and 24(1)(c). As a judicial officer, the veteran was not being remunerated for his or her activity as a keyboard operator or for his or her typing skills. He or she was being remunerated for work associated with research, analysis and decision-making in a legal framework. Care must be taken to distinguish the identification of the work which a person was undertaking and for which he or she was remunerated from identification of the remunerative work for which his or her skills, qualifications and experience suit him or her. Care must also be taken not to tie that remunerative work to a particular job, position or employment.

This interpretation is consistent with the conclusion reached by Branson J in Flentjar when she considered Mr Flentjar’s circumstances. Between 1991 and 1994, his age had prevented him from driving a taxi but, in February 1994, the Victorian Taxi Directorate had allowed a person, who was over the age of 70 and who had a medical certificate as to fitness to drive, to obtain a licence to drive a taxi. In 1994, Mr Flentjar was 77 years of age and held the relevant medical certificate. On appeal, Spender J had found that the Tribunal had not considered whether it was likely, war-caused incapacity aside, that Mr Flentjar would have engaged in remunerative employment as a taxi driver after February 1994. Branson J noted this in her judgment on appeal from his Honour and continued:
“ The submissions of Mr Flentjar on appeal to this Court include the following contention:
‘Having heard the Appellant’s uncontradicted evidence that he had sustained a loss of income from the operation of a taxi licence because of his service related incapacities, the Tribunal had to apply common sense to the proposition that he might still be working at the age of 77. It said; “it was his view, (Dr Stone), that but for his war-caused disabilities alone, the Appellant could drive a taxi on the basis of an eight hour shift”. Even if strictly required the point made by his Honour had been met.’
Even if the difference between Mr Flentjar’s capacity to drive at the age of 77 and the likelihood that he would have chosen to do so to produce income is put to one side, the difficulty, in my view, with the above submission is its failure to identify the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act. As the Full Court of this Court pointed out in Banovich v Repatriation Commission (1986) 69 ALR 395, at 402, when considering the provision analogous of section 24(1)(c) in the Repatriation Act 1920 (Cth), ‘remunerative work’ in this context refers to a type of work which the veteran previously undertook and not to any particular job (see also Doig v Repatriation Commission (Lindgren J,
18 December 1996, unreported).
The evidence before the Tribunal reveals that, sometime between 1950 and 1959, Mr Flentjar purchased a licence to operate a taxi, and that thereafter, until about 1970, he earned an income by driving such taxi. In about 1970, by reason of war-caused bowel problems, Mr Flentjar was unable to continue working as a taxi driver. He then sold his taxi with its licence, as the Tribunal found, because of his bowel problems. It would thus appear that the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act was the work of taxi driving, or possibly the work of being a taxi owner-driver. 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. The finding of the Tribunal that ‘through being prevented from continuing to operate his taxi [Mr Flentjar ] is suffering a loss of earnings that he would not be suffering if he was free of incapacity from his war-caused disabilities alone’ obscures, rather than elucidates, the issue of the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act.”[69]
[69] [1997] FCA 1200; (1997) 48 ALD 1; 26 AAR 93 at 3-4; 95-96

It is also an interpretation consistent with the judgment of Tamberlin J in Wright v Repatriation Commission[70] (Wright). Tamberlin J found that the Tribunal had correctly identified Mr Wright’s remunerative work when it identified it as associated with the maintenance of particular kinds of machinery, general labouring, art teacher and artist. The Tribunal had found that Mr Wright was prevented from engaging in remunerative work, in general, for reasons partly associated with his war-caused injuries and diseases and partly with conditions that were not.
[70] [2005] FCA 7; (2005) 144 FCR 302; 213 ALR 536

Tamberlin J began by considering the meaning of “remunerative work” saying of the definition of “remunerative work” in s 5Q(1):
“… The language, innocent of any gloss, denotes any activity which provides remuneration. The applicant submits, and correctly so in my opinion, that the definition is not restricted to an action that is carried out with the intention of gaining one’s livelihood. …”[71]

The Tribunal had found that Mr Wright had sold some of his artistic works in the assessment period. It concluded that, as Mr Wright’s financial return from the sale of some of his artistic works met only his costs and was consistent with a hobby. In light of his interpretation of the expression “remunerative work”, Tamberlin J concluded that the Tribunal had been incorrect in its conclusion. Mr Wright was engaged in remunerative work. Its error was not, Tamberlin J concluded, an error that had a significant impact on the outcome and did not provide a reason for setting aside its decision.

[71] [2005] FCA 7; (2005) 144 FCR 302; 213 ALR 536 at [16]; 309; 541-542

Neither ss 23(1)(c) nor 24(1)(c) identifies “remunerative work that the veteran was undertaking” by reference to a time frame. This is to be contrasted with ss 23(3A)(d) and 24(2A)(d), both of which do so and do so by reference to the work that the “veteran was last undertaking before he or she made the claim or application”. In the absence of a timeframe, it is to be concluded that regard is to be had to all remunerative work undertaken by a veteran.

This interpretation accords with that adopted by the Full Court of the Federal Court in Repatriation Commission v Hendy[72] when it described the Tribunal’s task:
“ The Tribunal’s task was to assess what the Veteran probably would have done, if he had none of his service disabilities during the assessment period. The requirement to consider ‘remunerative work that the veteran was undertaking’ does not mean a particular job with a particular employer but the substantive remunerative work that the Veteran had undertaken in the past. That is the exercise that the Tribunal undertook. The Tribunal was not bound to limit its consideration to the last employment that the Veteran actually undertook.”[73]
[72] [2002] FCAFC 424; (2002) 76 ALD 47; Whitlam, Emmett and Stone JJ
[73] [2002] FCAFC 424; (2002) 76 ALD 47 at [36]; 54

Some years earlier, this had been considered by the Full Court of the Federal Court in Starcevich. It was considered in light of s 24 of the VE Act before its amendment by the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 to add
s 24(2A) Fox J expanded upon the nature of the remunerative work to which regard may be had:
“ Banovich v. Repatriation Commission (1986) 69 ALR 395 (‘Banovich’) was a case decided by the Full Court of this Court under Schedule 2 of the Repatriation Act 1920, which set out the entitlement to a TPI pension and was in terms very similar to s.24. It was there held that the ‘work’ need not be the last employment, or work generally, but related to a ‘type’ of work previously undertaken. It was also said that ‘the loss referred to in subs(1)(b)(iii) may be caused either by a loss of existing employment or by an inability to obtain new employment’.
It is my opinion that the submissions made on behalf of the applicant are to be preferred. It is hardly necessary to say so, but the legislation should in my view be given a reasonably liberal interpretation. It has often been pointed out that it is a matter of great public importance to provide adequately for incapacitated ex-servicemen. The reasons need not be explored here. It can however be pointed out that the combined operation of pars (a) and (b) of s 24(1) is itself already very restrictive of a right to a pension.
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. In such circumstances, the passage of time from the cessation of the work upon which reliance is placed to the veteran’s complete retirement may mean that the other requirement of s 24(1)(c), namely that the veteran’s war-caused injury or disease alone prevents him from undertaking the remunerative work upon which his claim is based, is not satisfied, but this is a different matter, and one which does not arise here.”[74]
[74] (1987) 18 FCR 221; 76 ALR 449; 7 AAR 296 at 225-226; 454-455; 300-301

That conclusion means that I must decide that Mr Thorpe is not entitled to pension at the intermediate rate under s 23. If he otherwise met the criteria for that pension, I would have adjourned the matter to enable the applicant to decide whether to seek evidence on the point. As I have decided that Mr Thorpe does not meet the criteria in s 23(1) for other reasons, I have decided not to adjourn the matter. I have decided instead to consider the matters in s 23(2) as they would affect a finding under 23(1)(b).

The qualification to s 23(1)(b) in s 23(2)

On the basis of the evidence of Mr Pir and Mr Beveridge, I find that there is no particular time that is ordinarily worked by persons engaged in wardrobe fitting of the type actually undertaken by Mr Thorpe. There would be time that is ordinarily worked by those who engage in remunerative work such as that of a shop assistant, farm or agricultural worker or stock manager. If this case turned on Mr Thorpe’s capacity for that kind of remunerative work, I would look to evidence in order to decide whether I could decide the time ordinarily worked by persons engaged in work of that kind on a full-time basis. I would do that under s 23(2)(a). I do not, however, think that it turns on that issue but turns instead on the remunerative work that Mr Thorpe was undertaking. That is the subject of s 23(2)(b). If that provision applies to him, he cannot satisfy s 23(1)(b) and it makes no difference whether he satisfies s 23(2)(a) or not.

I have set out the basis on which Mr Thorpe calculated his hours of work for Premium to be an average of 14.65 hours per week. I have set out the basis on which he reached that figure and note that he took account of the period from 1 February 2008 to 1 November 2008. At Appendix A to these reasons, I have set out information that can be found in the Fitting Sheets for the financial year ending on 30 June 2009. Further explanation of the basis on which the Appendix is compiled is at [172] above.

On the basis of those Fitting Sheets, I find that Mr Thorpe completed 219 jobs for Orbit and 106 for other builders such as Metricon, Henley, Burbank and Porter Davis. That means that, for every two jobs that he completed for Orbit, he completed one for another builder. This presents a somewhat different picture from Mr Thorpe’s understanding that he is asked “once in a blue moon” to complete work for builders other than Orbit.

Mr Thorpe’s evidence that he has a special arrangement with Premium that he would do all of Orbit’s work is supported by the evidence of Mr Brown but inconsistent with Mr Thorpe’s earlier statement that he does only some 30% of the work that Orbit has available. His earlier statement, though, is consistent with Mr Brown’s statement that, if he thought that Mr Thorpe were in the frame of mind to handle more work, he would give him more work. Mr Brown’s statements that he would give Mr Thorpe more work, that
Mr Thorpe runs Orbit’s account and that Mr Thorpe comes and goes from the warehouse at all times of the day are, at first sight, hard to reconcile with the evidence of Mr Pir and
Mr Beveridge. Mr Pir is the Dispatch Manager responsible for ensuring that orders obtained by sales representatives are allocated to sub-contractors and that the work is completed on time. He is managing all of the orders and drew no distinction between the work of Orbit and the work of other builders. He knew of no special arrangement that Mr Thorpe had with Mr Brown and, although he speaks with Mr Brown every day, had never had a discussion with Mr Brown about Mr Thorpe. How I think the evidence of Mr Pir can, to a certain extent at least, be reconciled with that of Mr Brown lies in the fact that Mr Pir was aware that
Mr Thorpe was doing Orbit’s work when he started as the Dispatch Manager. He has continued the practice of giving him Orbit work. Where their evidence cannot be reconciled is in relation to the allocation of work. Mr Pir was the Dispatch Manager with responsibility for allocation and, in allocating it, he took into account a range of factors, none of which related to any special arrangement that Mr Thorpe had to do all Orbit’s work or Orbit’s work exclusively. His evidence is supported by the spread of work shown on the Fitting Sheets for it shows an allocation of work relating to both Orbit and other builders.

That brings me to the hours that Mr Thorpe has said he worked. His representative at an earlier stage in his application for an increase of pension, Mr Michael Bellamy,[143] calculated Mr Thorpe’s average weekly hours based on work sheets he had been given by Mr Thorpe. His calculations were dependent upon further information given by
[143] Mr Bellamy is a Pensions Officer at the Watsonia RSL Pensions Office
Mr Thorpe. It related to the number of hours that Mr Thorpe requires to complete an average installation. That figure was 2.75 hours. Mr Bellamy’s calculations would seem to be correct if it is assumed that Mr Thorpe’s assessment of the average time for an installation is correct. No basis is given for the assessment but I note that the calculation assumes that an average installation in an average house takes 22.5 metres of board, ten rods and eight doors. The assessment of 2.75 hours for the completion of an installation involving 22.5 lineal metres of board is inconsistent with that of Mr Pir. His assessment is that an experienced fitter takes a day to install wardrobes involving 20 to 25 lineal metres of wardrobe fittings. Each job takes approximately six to eight hours to complete.

I acknowledge that Mr Thorpe is a very experienced fitter but his experience does not explain why he can complete an installation involving 22.5 lineal metres in 2.75 hours. The length of board referred to in the Fitting Sheets must reflect the length of wardrobe fittings to which Mr Pir refers. The length is reflective of the size of the job and one of the factors to which Mr Pir has regard in allocating work to sub-contractors.

I also note that Mr Thorpe’s memory of events is a little variable and that, at times, he seems not to have provided all relevant information. I have already referred to his varying accounts of his children and of his drinking as well as to the basis on which he has worked for Orbit. I refer also to his account of the number of hours he has worked. In his application dated 7 November 2000, Mr Thorpe wrote that he worked as a Tattslotto representative, that it was a full-time position and that he normally worked for 70 hours each week. In cross-examination, he explained that this was the time that he spent at the agency and he was only there because his wife was there; she and the staff did most of the work and he only did a few jobs.

Inaccuracies and omissions in Mr Thorpe’s evidence of this sort lead me to conclude that I cannot accept his assessment of the time it took him to complete an average installation without supporting evidence. As there is none, I prefer the evidence of Mr Pir, whose job it is to coordinate all of Premium’s wardrobe installation work and who must have a good knowledge of the time it will take so that all work can be completed within the timeframe required by the builders. Therefore, I accept that an experienced fitter installing 20 to 25 lineal metres of wardrobe fittings will take six to eight hours to complete the job rather than 2.75 hours.

With those figures in mind, I have calculated the time taken to complete the work undertaken by Mr Thorpe in the year ending 30 June 2009. I have added together the metres of board shown on the Fitting Sheets for which Mr Thorpe was paid in any one week and shown the figure in the second column of the table at Appendix A. In the fourth column, I have set out three figures in square brackets. The first is the number of jobs completed taking Mr Thorpe’s average of 22.5 lineal metres as the average length or wardrobe fittings for an average job. The second figure is the number of hours of work these jobs would take on the basis that each takes eight hours to complete. The third figure is the number of hours the jobs would take on the basis each takes six hours to complete. I think that this is a fair way to calculate the hours actually worked by Mr Thorpe in the period. I have tried to calculate the hours or time on the basis of payments made as Mr Bellamy did but it has to be remembered that some of the payments, although not many, relate to matters other than wardrobe installation e.g. shower installation, travel and accommodation and lost time.

Using Mr Thorpe’s average of 22.5 lineal metres for each job and Mr Pir’s fastest installation time of six hours, the figures in Appendix A show that Mr Thorpe undertook considerably more work than 14.65 hours each week. The figure of 14.65 was the figure arrived at for the period from 1 February 2008 to 3 October 2008. As my figures have been calculated for the financial year ending 30 June 2009, they cover a little over three months of that period. Using Mr Thorpe’s figure of 22.5 for the average lineal metres of board used in an average installation for an average house and Mr Pir’s lower estimate of six hours for the time taken to complete an average installation, I have found the fewest hours completed by Mr Thorpe to be 37.62 hours. That occurred in the week ending 30 September 2008. If I take eight hours to be the average time taken, the lowest figure would be 50.17 hours to complete 6.27 hours. The most time taken on the basis of six hours for each job appears the week before in the week ending 23 September 2009. The relevant hourly figures for that week are 80.76 hours for six hour jobs and 107.68 for eight hour jobs. Neither figure is precise but I do regard them as indicative of the work that Mr Thorpe was actually undertaking. Some jobs will take more or less time than the range put forward by Mr Pir and others will fall somewhere in between. Some jobs will be completed in the course of two or more days. For all that, they are indicative of the amount of work that Mr Thorpe was undertaking at the time referred to by Mr Bellamy on behalf of Mr Thorpe. The figures in Appendix A show that the pattern does not change over the remainder of the year.

I do not have all of the Fitting Sheets for the financial year ending 30 June 2010 but do have them for the previous financial year. I have not set out the same analysis of the figures in those Fitting Sheets as I have set out in Appendix A for the year ending 30 June 2009. An examination of the Fitting Sheets for the year ending 30 June 2009 shows a pattern of board lengths and payments similar to that in the previous year. That this is so is supported by the fact that, on Mr Beveridge’s evidence,[144] the number of weeks worked is the same and the difference in income only marginal. The difference is only $1,587.55 with the greater income being earned in the year ending 30 June 2010. I have looked to the individual items to see whether the difference is explicable by reference to a variation in the rate of payment for each task involved in installing a wardrobe. At [174] above I have set out a sample of the sums paid for the period from 5 May 2008 to 17 February 2010. They show a variation only in relation to lineal metres of board and doors. In relation to board, the cost per metre was reduced by 50 cents per metre from approximately 20 January 2009 to
[144] See Table at [157] above
13 August 2009 but then returned to $5.50 per metre. That brief period of reduction might be expected to have a marginal reduction in income if all other variables, such as the number and size of the jobs, remained constant. The only other variable is that of the doors and they increased by 30 cents per door from 19 August 2009.

Despite these variations and having regard to the work in the Fitting Sheets to 17 February 2010, I find that the income received by the Thorpe Partnership in the year ending 30 June 2010 reflects a similar work load and work mix as Mr Thorpe undertook in the year ending 30 June 2009. It reflects a similar number of hours spent in completing the jobs that comprise that workload.

I do not have the Fitting Sheets for the financial year ending 30 June 2011 and have only the income of the Thorpe Partnership for the year to 14 June 2011. That is a period of 46 weeks. There is nothing in the evidence which suggests to me that the profile of the work had changed. Mr Thorpe continued to install wardrobes. I can draw from the information in the Fitting Sheets that I do have for the period 5 May 2008 to 17 February 2010 that the materials used, the tasks required of an installer and the amounts paid to an installer for those tasks remained constant. Although there were occasionally sums for amounts other than wardrobe installation, they were few and far between. I think it safe to estimate the number of jobs undertaken in each of the 46 weeks of the financial year ending 30 June 2011 by reference to the average number of lineal metres installed in each of the 49 weeks of the financial year ending 30 June 2009, for which I do have information.

The total number of lineal metres installed by Mr Thorpe in the year ending 30 June 2009 was 8,807.97 metres. As he worked for 49 weeks of that year, he installed, on average, 179.75 lineal metres of wardrobes each week. His average weekly earnings were $1,845.67.[145] Therefore, each lineal metre of wardrobe completed represented approximately $10.26 of his average weekly income. On the basis that the costs have varied little in the years from 2008 to 2010 and I have no evidence to suggest an increase in more recent times, I have divided Mr Thorpe’s average weekly income of $1,544.34 by 10.26 in order to estimate the average number of lineal metres he has completed each week in the financial year to 14 June 2011. The answer is 150.52 lineal metres. I have then divided this number of lineal metres by 22.5 being the average length of wardrobe in an average house to come to the average number of installations completed in an average week. I have come to the figure of 6.68 installations. If each takes eight hours to complete, this would represent 53.5 hours of work. If each takes six hours, it would represent 40.13 hours each week.
[145] See [157] above

I have considered whether the evidence that Mrs Thorpe assists Mr Thorpe to do the work should be taken into account in some way. I have decided that it should not. The evidence is to the effect that she helps him when he is cutting any of the boards at home, puts the caps on and holds them on site on occasion. She also provides moral support and encouragement. These are all important tasks but, at the end of it all, Premier is paying for the completed installation. There is no evidence that Mrs Thorpe, rather than Mr Thorpe, is installing the wardrobes. It is for his work in installing them that Premier is remunerating the Thorpe Partnership. Certainly, that requires cutting on occasion but the evidence is that
Mr Thorpe is also engaged in that task while Mrs Thorpe assists. I am not satisfied that her assistance diminishes the amount of remunerative work that he is undertaking.

In view of my conclusion, I am satisfied that Mr Thorpe is undertaking remunerative work that exceeds 20 hours per week. As required by s 23(2)(b) of the VE Act, I must find that he has not fulfilled s 23(1)(b). This conclusion requires me to decide that
Mr Thorpe is not entitled to pension at the intermediate rate under s 23 of the VE Act. Despite that, I will consider s 23(1)(c).

Section 23(1)(c)

I am not satisfied that he meets the first part of the criterion specified in
s 23(1)(c). While I am satisfied that he has undertaken less remunerative work in the financial year to 14 June 2011 than he has in previous years, I am not satisfied that it is his incapacity from his war-caused conditions alone that is preventing him from doing so. Incapacity from those war-caused conditions is a relevant factor but so too is Mr Pir’s perception of his age and fitness. It does not matter that Mr Thorpe is fitter than most people for his age or that he regards himself as equal to the physical nature of the task. What matters is Mr Pir’s perception for he is the Dispatch Manager who distributes Premium’s wardrobe fitting work to its sub-contractors. His perception of a sub-contractor’s age and physical fitness is relevant for they are two of the criteria I find he takes into account. He is of the view that he cannot allocate Mr Thorpe as many jobs as some other sub-contractors because of his age and because he could not complete as many jobs as others in a working day. That is despite his view that Mr Thorpe is an experienced fitter. He is choosing jobs for
Mr Thorpe that can fit into a day because he wants Mr Thorpe to be able to fit in with the supervisor at the building site. As I accept Mr Pir’s evidence that he had no knowledge of any difficulties that Mr Thorpe suffers as a result of his accepted conditions, I find that, as far as he was concerned, any difficulties of that sort played no part in his decisions regarding the allocation of work.

Therefore, on the evidence that I have, I am not satisfied that Mr Thorpe’s incapacity from his war-caused conditions alone has prevented him from engaging in remunerative work. He does not satisfy the first part of the criterion in s 23(1)(c).

I am not satisfied that he meets the second part of that criterion. He has experienced a reduction in his income in the financial year to 14 June 2011 but that reduction is directly related to his engaging in less remunerative work. As I am not satisfied that he meets the first part of the criterion, I am not satisfied in this case that it can be said that he has suffered a loss of remuneration that he would not be suffering if he were free from his incapacity from his war-caused conditions.

DECISION

For the reasons that I have given, I am not satisfied that Mr Thorpe satisfies the criteria required by s 23 of the VE Act for payment of a disability pension at the intermediate rate. His disability pension should be paid at 100% of the General Rate. Therefore, I:
(1)set aside the decision of the Veterans’ Review Board dated 26 August 2009 which:
(a)set aside the decision of the respondent dated 20 November 2008; and
(b)substituted for that decision a decision that the pension paid to the applicant be assessed at the intermediate rate with effect from and including 5 November 2008; and
(2)substitute for that decision a decision that the decision of the respondent dated 20 November 2008 be affirmed.

APPENDIX A

FITTING SHEETS AND PURCHASES [SUPPLY SUMMARIES]
2008/2009

WEEK ENDING	NUMBER OF JOBS (METRES OF BOARD)	NUMBER OF JOBS FOR ORBIT AND OTHER BUILDERS	NUMBER OF FITTING SHEETS [AVERAGE JOBS; HOURS]	NUMBER OF TRIPS	ACTUAL WEEKLY EARNINGS[146]
01/07/08[147]	10 (1) (228.45)	Orbit 3 Others 7	4 [10.15 jobs; 81.23 or 60.92 hrs]	1 (Lancefield)	$2,165.10 ($2,180.10)
08/07/08[148]	6 (171.35)	Orbit 4 Others 2	2 [7.61 jobs; 60.92 or 45.69 hrs]	$1,450.79 ($1,465.80)
15/07/08[149]	8 (2) (190.98)	Orbit 6 Others 2	3 [8.48 jobs; 67.90 50.92 hrs]	$1,583.49 ($1,598.50)
22/07/08[150]	6 (2) (177.04)	Orbit 5 Others 1	3 [7.86 jobs; 62.94 or 47.21 hours]	$1,500.79 ($1,515.80)
29/07/08[151]	6 (1) (188.93)	Orbit 6 Others 0	2 [8.4 jobs; 67.88 or 50.38 hrs]	$1,656.60 ($1,671.60)
05/08/08	No payment made by Premium
12/08/08[152]	7 (1) (141.89)	Orbit 3 Others 4	2 [6.30 jobs; 50.44 or 37.83 hrs]	$1,331.49 ($1,346.50)
19/08/08[153]	6 (198.23)	Orbit 5 Others 1	2 [8.81 jobs; 70.48 or 52.86 hrs]	1 (Cranbourne) 1 (Cranbourne)	$1,761.80 ($1,776.80)
26/08/08[154]	10 (325.12)	Orbit 8 Others 2	5 [14.44 jobs; 115.59 or 86.69 hrs]	1 (Pakenham) 1 (Nagambie) 1 (Nagambie)	$2,893.89 ($2,908.90)
02/09/08[155]	5 (212.42)	Orbit 5 Others 0	2 [9.4 jobs; 75.52 or 56.64 hrs]	$1,826.73 ($1,841.73)
09/09/08[156]	7 (incl. one lost time etc claim re a builder) (161.31)	Orbit 1 Others 6	4 [7.16 jobs; 57.35 or 43.01 hrs]	$1,428.65 ($1,443.65)
16/09/08[157]	3 (144.02)	Orbit 3 Others 0	2 [6.40 jobs; 51.20 or 38.40 hrs]	$1,214.65 ($1,229.65)
23/09/08[158]	7 (302.85)	Orbit 5 Others 2	3 [13.46 jobs; 107.68 or 80.76 hrs]	$2,298.79 ($2,313.80)
30/09/08[159]	5 (141.11)	Orbit 3 Others 2	2 [6.27 jobs; 50.17 or 37.62 hrs]	$1,479.59 ($1,494.60
07/10/08[160]	6 (206.84)	Orbit 6 Others 0	3 [9.19 jobs; 73.54 or 55.15 hrs]	$1,761.14 (1,775.55)
14/10/08[161]	8 (226.29)	Orbit 8 Others 0	2 [10.05 jobs; 80.45 or 60.34 hrs]	$1,890.84 ($1,905.85)
21/10/08[162]	7 (186.01)	Orbit 3 Others 4	2 [8.26 jobs; 66.13 or 49.60 hrs]	$1,577.85 ($1,592.85)
29/10/08[163]	6 (174.36)	Orbit 1 Others 5	3 [7.74 jobs; 61.99 or 46.49 hrs]	1 (Lancefield)	$1,311.55 ($1,326.55)
05/11/08[164]	4 (150.58)	Orbit 1 Others 3	2 [6.69 jobs; 53.53 or 40.15 hrs]	1 (Wallen)	$1,182.39 ($1,197.74)
11/11/08[165]	6 (183.27)	Orbit 2 Others 4	2 [8.14 jobs; 65.16 or 48.87 hrs]	$1,239.00 ($1,521.75)
18/11/08[166]	5 (140.06)	Orbit 1 Others 4	3 [6.22 jobs; 49.79 or 37.34 hrs]	1 (Ocean Grove)	$1,239.00 ($1,254.00)
25/11/08[167]	12 (294.03)	Orbit 4 Others 8	3 [13.06 jobs; 104.54 or 78.40 hrs]	$3,082.35 ($3,150.35)
02/12/08[168]	14 (1) (156.15)	Orbit 13 Others 1	3 [6.94 jobs; 55.52 or 41.64 hrs]	1 (unnamed destination and accommodation)	$2,064.25 ($2,079.25)
09/12/08[169]	13 (161.33)	Orbit 8 Others 5	4 [7.17 jobs; 57.36 or 43.02 hrs]	$1,620.85 ($1,635.85)
16/12/08[170]	10 (278.98)	Orbit 10 Others 0	4 [12.39 jobs; 99.19 or 74.39 hrs]	$2,304.61 ($2,320.10)
22/12/08[171]	6 (205.18)	Orbit 6 Others 0	2 [9.11 jobs; 72.95 or 54.71 hrs]	$1,735.55 ($1,750.55)
31/12/08[172]	6 (138.75)	Orbit 3 Others 3	2 [6.16 jobs; 49.33 or 36.99 hrs]	$1,300 ($1,246.50)
CHRISTMAS BREAK 08/09
13/01/09	Payment made by Premium but no supporting Fitting Sheets in material	$1,231.50
27/01/09[173]	5 (100.47)	Orbit 0 Others 5	3 [4.46 jobs; 35.72 or 26.79 hrs]	$1,066.05 ($1,081.05)
03/02/09[174]	2 (67.26)	Orbit 0 Others 2	1 [2.98 jobs; 23.91 or 17.93 hrs]	$517.80 ($532.80)
10/02/09[175]	11 (319.36)	Orbit 11 Others 0	3 [14.19 jobs; 113.55 or 85.16 hrs]	$3,411.15 (3,426.15)
17/02/09[176]	12 (366.30)	Orbit 8 Others 4	4 [16.28 jobs; 130.24 or 97.68 hrs]	$2,854.25 ($2,869.25)
24/02/09[177]	10 (175.51)	Orbit 5 Others 5	3 [7.80 jobs; 62.40 or 46.80 hrs]	1 (Eildon)	$1,976.70 ($1,991.70)
03/03/09[178]	7 (144.01)	Orbit 3 Others 4	2 [6.40 jobs; 51.20 or 38.40 hrs]	1 (Foster)	$1,458.00 ($1,473.00)
10/03/09[179]	11 (224.10)	Orbit 2 Others 9	3 [9.96 jobs; 79.68 or 59.76 hrs]	$1,866.55 ($1,881.55)
17/03/09[180]	4 (112.48)	Orbit 2 Others 2	1 [5 jobs; 40 or 30 hrs]	$969.60 ($984.60)
24/03/09[181]	11 (343.26)	Orbit 10 Others 1	3 [15.26 jobs; 122.05 or 91.56 hrs]	1 (Morwell, Sale and Wodonga and accommodation)	$3,227.05 ($3,278.60)
31/03/09[182]	7 (170.54)	Orbit 5 Others 2	3 [7.58 jobs; 60.64 or 45.48 hrs]	$1,438.55 ($1,453.55)
07/04/09[183]	8 (1) (268.31)	Orbit 7 Others 1	4 [11.92 jobs; 95.4 or 71.52 hrs]	$2,239.19 ($2,257.20)
14/04/09	Payment made by Premium but no supporting Fitting Sheets in material	$2,829.55
20/04/09	Payment made by Premium but no supporting Fitting Sheets in material	$1,500.6
28/04/09	Payment made by Premium but no supporting Fitting Sheets in material	$1,821.85
05/05/09[184]	7 (221.29)	Orbit 4 Others 3	3 [9.84 jobs; 78.68 or 59.01 hrs]	1 (Highton) 1 (Berwick)	$1,877.29 ($1,892.30)
12/05/09[185]	10 (230.69)	Orbit 10 Others 0	3 [10.25 jobs; 82.02 or 61.50 hrs]	1 (Nyora)	$2,337.69 ($2,351.19)
19/05/09[186]	4 (153.53)	Orbit 3 Others 1	2 [6.82 jobs; 54.59 or 40.92 hrs]	$1,228.79 ($1,243.80)
26/05/09[187]	6 (226.23)	Orbit 6 Others 0	3 [10.05 jobs; 80.44 or 60.32 hrs]	$1,881.65 ($1,896.65)
02/06/09[188]	11 (317.62)	Orbit 11 Others 0	4 [14.12 jobs; 112.93 or 84.72 hrs]	$2,959.19 ($2,974.20)
09/06/09[189]	7 (178.67)	Orbit 2 Others 5	3 [7.94 jobs; 63.53 or 47.65 hrs]	1 (Drysdale)	$1,276.33 ($1,473.15)[190]
16/06/09[191]	7 (172.67)	Orbit 6 Others 1	2 [7.67 jobs; 61.39 or 46.02 hrs]	$1,450.85 ($1,464.85)
23/06/09	Payment made by Premium but no supporting Fitting Sheets in material	$2,384.55
30/06/09	Payment made by Premium but no supporting Fitting Sheets in material	$1,463.70

WEEK ENDING

NUMBER OF JOBS

(METRES OF BOARD)

NUMBER OF JOBS FOR ORBIT AND OTHER BUILDERS

NUMBER OF FITTING SHEETS

[AVERAGE JOBS; HOURS]

NUMBER OF TRIPS

ACTUAL WEEKLY EARNINGS[146]

01/07/08[147]

10 (1)

(228.45)

Orbit 3

Others 7

[10.15 jobs; 81.23 or 60.92 hrs]

1 (Lancefield)

$2,165.10

($2,180.10)

08/07/08[148]

(171.35)

Orbit 4

Others 2

[7.61 jobs; 60.92 or 45.69 hrs]

$1,450.79

($1,465.80)

15/07/08[149]

8 (2)

(190.98)

Orbit 6

Others 2

[8.48 jobs; 67.90 50.92 hrs]

$1,583.49

($1,598.50)

22/07/08[150]

6 (2)

(177.04)

Orbit 5

Others 1

[7.86 jobs; 62.94 or 47.21 hours]

$1,500.79

($1,515.80)

29/07/08[151]

6 (1)

(188.93)

Orbit 6

Others 0

[8.4 jobs; 67.88 or 50.38 hrs]

$1,656.60

($1,671.60)

05/08/08

No payment made by Premium

12/08/08[152]

7 (1)

(141.89)

Orbit 3

Others 4

[6.30 jobs; 50.44 or 37.83 hrs]

$1,331.49

($1,346.50)

19/08/08[153]

(198.23)

Orbit 5

Others 1

[8.81 jobs; 70.48 or 52.86 hrs]

1 (Cranbourne)

$1,761.80

($1,776.80)

26/08/08[154]

(325.12)

Orbit 8

Others 2

[14.44 jobs; 115.59 or 86.69 hrs]

1 (Pakenham)

1 (Nagambie)

$2,893.89

($2,908.90)

02/09/08[155]

(212.42)

Orbit 5

Others 0

[9.4 jobs; 75.52 or 56.64 hrs]

$1,826.73

($1,841.73)

09/09/08[156]

7 (incl. one lost time etc claim re a builder)

(161.31)

Orbit 1

Others 6

[7.16 jobs; 57.35 or 43.01 hrs]

$1,428.65

($1,443.65)

16/09/08[157]

(144.02)

Orbit 3

Others 0

[6.40 jobs; 51.20 or 38.40 hrs]

$1,214.65

($1,229.65)

23/09/08[158]

(302.85)

Orbit 5

Others 2

[13.46 jobs; 107.68 or 80.76 hrs]

$2,298.79

($2,313.80)

30/09/08[159]

(141.11)

Orbit 3

Others 2

[6.27 jobs; 50.17 or 37.62 hrs]

$1,479.59

($1,494.60

07/10/08[160]

(206.84)

Orbit 6

Others 0

[9.19 jobs; 73.54 or 55.15 hrs]

$1,761.14

(1,775.55)

14/10/08[161]

(226.29)

Orbit 8

Others 0

[10.05 jobs; 80.45 or 60.34 hrs]

$1,890.84

($1,905.85)

21/10/08[162]

(186.01)

Orbit 3

Others 4

[8.26 jobs; 66.13 or 49.60 hrs]

$1,577.85

($1,592.85)

29/10/08[163]

(174.36)

Orbit 1

Others 5

[7.74 jobs; 61.99 or 46.49 hrs]

1 (Lancefield)

$1,311.55

($1,326.55)

05/11/08[164]

(150.58)

Orbit 1

Others 3

[6.69 jobs; 53.53 or 40.15 hrs]

1 (Wallen)

$1,182.39

($1,197.74)

11/11/08[165]

(183.27)

Orbit 2

Others 4

[8.14 jobs; 65.16 or 48.87 hrs]

$1,239.00

($1,521.75)

18/11/08[166]

(140.06)

Orbit 1

Others 4

[6.22 jobs; 49.79 or 37.34 hrs]

1 (Ocean Grove)

$1,239.00

($1,254.00)

25/11/08[167]

(294.03)

Orbit 4

Others 8

[13.06 jobs; 104.54 or 78.40 hrs]

$3,082.35

($3,150.35)

02/12/08[168]

14 (1)

(156.15)

Orbit 13

Others 1

[6.94 jobs; 55.52 or 41.64 hrs]

1 (unnamed destination and accommodation)

$2,064.25

($2,079.25)

09/12/08[169]

(161.33)

Orbit 8

Others 5

[7.17 jobs; 57.36 or 43.02 hrs]

$1,620.85

($1,635.85)

16/12/08[170]

(278.98)

Orbit 10

Others 0

[12.39 jobs; 99.19 or 74.39 hrs]

$2,304.61

($2,320.10)

22/12/08[171]

(205.18)

Orbit 6

Others 0

[9.11 jobs; 72.95 or 54.71 hrs]

$1,735.55

($1,750.55)

31/12/08[172]

(138.75)

Orbit 3

Others 3

[6.16 jobs; 49.33 or 36.99 hrs]

$1,300

($1,246.50)

CHRISTMAS BREAK 08/09

13/01/09

Payment made by Premium but no supporting Fitting Sheets in material

$1,231.50

27/01/09[173]

(100.47)

Orbit 0

Others 5

[4.46 jobs; 35.72 or 26.79 hrs]

$1,066.05

($1,081.05)

03/02/09[174]

(67.26)

Orbit 0

Others 2

[2.98 jobs; 23.91 or 17.93 hrs]

$517.80

($532.80)

10/02/09[175]

(319.36)

Orbit 11

Others 0

[14.19 jobs; 113.55 or 85.16 hrs]

$3,411.15

(3,426.15)

17/02/09[176]

(366.30)

Orbit 8

Others 4

[16.28 jobs; 130.24 or 97.68 hrs]

$2,854.25

($2,869.25)

24/02/09[177]

(175.51)

Orbit 5

Others 5

[7.80 jobs; 62.40 or 46.80 hrs]

1 (Eildon)

$1,976.70

($1,991.70)

03/03/09[178]

(144.01)

Orbit 3

Others 4

[6.40 jobs; 51.20 or 38.40 hrs]

1 (Foster)

$1,458.00

($1,473.00)

10/03/09[179]

(224.10)

Orbit 2

Others 9

[9.96 jobs; 79.68 or 59.76 hrs]

$1,866.55

($1,881.55)

17/03/09[180]

(112.48)

Orbit 2

Others 2

[5 jobs; 40 or 30 hrs]

$969.60

($984.60)

24/03/09[181]

(343.26)

Orbit 10

Others 1

[15.26 jobs; 122.05 or 91.56 hrs]

1 (Morwell, Sale and Wodonga and accommodation)

$3,227.05

($3,278.60)

31/03/09[182]

(170.54)

Orbit 5

Others 2

[7.58 jobs; 60.64 or 45.48 hrs]

$1,438.55

($1,453.55)

07/04/09[183]

8 (1)

(268.31)

Orbit 7

Others 1

[11.92 jobs; 95.4 or 71.52 hrs]

$2,239.19

($2,257.20)

14/04/09

Payment made by Premium but no supporting Fitting Sheets in material

$2,829.55

20/04/09

Payment made by Premium but no supporting Fitting Sheets in material

$1,500.6

28/04/09

Payment made by Premium but no supporting Fitting Sheets in material

$1,821.85

05/05/09[184]

(221.29)

Orbit 4

Others 3

[9.84 jobs; 78.68 or 59.01 hrs]

1 (Highton)

1 (Berwick)

$1,877.29

($1,892.30)

12/05/09[185]

(230.69)

Orbit 10

Others 0

[10.25 jobs; 82.02 or 61.50 hrs]

1 (Nyora)

$2,337.69

($2,351.19)

19/05/09[186]

(153.53)

Orbit 3

Others 1

[6.82 jobs; 54.59 or 40.92 hrs]

$1,228.79

($1,243.80)

26/05/09[187]

(226.23)

Orbit 6

Others 0

[10.05 jobs; 80.44 or 60.32 hrs]

$1,881.65

($1,896.65)

02/06/09[188]

(317.62)

Orbit 11

Others 0

[14.12 jobs; 112.93 or 84.72 hrs]

$2,959.19

($2,974.20)

09/06/09[189]

(178.67)

Orbit 2

Others 5

[7.94 jobs; 63.53 or 47.65 hrs]

1 (Drysdale)

$1,276.33

($1,473.15)[190]

16/06/09[191]

(172.67)

Orbit 6

Others 1

[7.67 jobs; 61.39 or 46.02 hrs]

$1,450.85

($1,464.85)

23/06/09

Payment made by Premium but no supporting Fitting Sheets in material

$2,384.55

30/06/09

Payment made by Premium but no supporting Fitting Sheets in material

$1,463.70

[146] The figures shown in brackets represent the total of the Fitting Sheets submitted by Mr Thorpe for payment and paid in the relevant week. The figures are slightly higher than those actually paid in the relevant week. Both exclude GST but I am unable to find a reason for the discrepancy. The differences between are always small and always favour Premium. I draw nothing from them.

[147] Fitting Sheets Nos. 64604, 42700, 42699, 42698

[148] Fitting Sheets Nos. 64605, 64606

[149] Fitting Sheets Nos, 64607, 64608, 64609

[150] Fitting Sheets Nos. 64610, 64611, 64612

[151] Fitting Sheets Nos. 64613, 64614

[152] Fitting Sheets Nos. 66801, 66802

[153] Fitting Sheets Nos. 66803, 66804

[154] Fitting Sheets Nos. 66805, 66806, 66807, 66808, 66809

[155] Fitting Sheets Nos. 64615, 66810

[156] Fitting Sheets Nos. 66811, 55801, 66812, 66813

[157] Fitting Sheets Nos. 66814, 66815

[158] Fitting Sheets Nos. 66816, 66817, 66818

[159] Fitting Sheets Nos. 66819, 66788

[160] Fitting Sheets Nos. 66820, 66821, 66822

[161] Fitting Sheets Nos. 66823, 66824, 66825

[162] Fitting Sheets Nos. 66826, 66827

[163] Fitting Sheets Nos. 66828, 66829, 66830

[164] Fitting Sheets Nos. 66831, 66832

[165] Fitting Sheets Nos. 66833, 66834

[166] Fitting Sheets Nos. 66835, 66836, 66837

[167] Fitting Sheets Nos. 66838, 66839, 66840

[168] Fitting Sheets Nos. 66841, 66842, 71756

[169] Fitting Sheets Nos. 66843, 66844, 66845, 66846

[170] Fitting Sheets Nos. 66847, 66848, 66849, 66850

[171] Fitting Sheets Nos. 71757, 71758

[172] Fitting Sheets Nos. 71759, 71760

[173] Fitting Sheets Nos. 71761, 71762, 71763

[174] Fitting Sheets Nos. 64616

[175] Fitting Sheets Nos. 64617, 64618, 64619

[176] Fitting Sheets Nos. 64621, 64620, 64622, 64623

[177] Fitting Sheets Nos. 64624, 64625, 83951

[178] Fitting Sheets Nos. 64626, 64627

[179] Fitting Sheets Nos. 64628, 64629, 64630

[180] Fitting Sheets Nos. 64631

[181] Fitting Sheets Nos. 64632, 64633, 64634

[182] Fitting Sheets Nos. 64635, 64636, 64637

[183] Fitting Sheets Nos. 64638, 64639, 64640, 64641

[184] Fitting Sheets Nos. 71764, 71765, 71766

[185] Fitting Sheets Nos. 71767, 71768, 71769

[186] Fitting Sheets Nos. 71770, 71771

[187] Fitting Sheets Nos. 71772, 71773, 71774

[188] Fitting Sheets Nos. 71775, 71776, 71777, 71778

[189] Fitting Sheets Nos 71779, 71780, 71781

[190] This represents a difference of approximately $200 between the Purchase Amount shown on the Purchases [Supply Summary] and the Fitting Sheets that would seem to relate to that period.

[191] Fitting Sheets Nos 71782, 71783

I certify that the two hundred and twenty six preceding paragraphs and one Appendix are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed: .......................................................................

Leah Berardi, Associate

Date of Hearing  7 and 8 June 2011
Date of Decision  15 July 2011
Counsel for the Applicant             Ms Esther James
Solicitor for the Applicant            Mr Andrew Blunt
Australian Government Solicitor

Counsel for the Respondent Mr Garry Moore
Solicitor for the Respondent Mr Peter Liefman
Peter J Liefman

Veterans’ Entitlements Law
(2^nd edition, 2008, The Federation Press and Software Community Projects, Sydney, NSW), Professor Robin Creyke and Mr Peter Sutherland referred to the provisions relating to TPI pensions that had previously been set out in Schedules 1 and 2 to the Repatriation Act 1920. They then wrote at 283-284:
“… The purpose of the above general rate pension as set out in the Minister’s Second Reading Speech is to compensate persons whose war-caused injuries or diseases prevent them from having the normal span of a working life.
The Minister’s Second Reading Speech for the Veterans’ Entitlements Bill 1985 described the new provision as follows:

Since 1920, there has been a special rate of disability pension payable in circumstances where, because of total and permanent incapacity resulting from war service, a veteran has been unable to resume or to continue in civil employment. The special or TPI rate pension was designed for severely disabled veterans of a relatively young age who could never go back to work and could never hope to support themselves or their families or put away money for their old age. It was never intended that the TPI rate would become payable to a veteran who, having enjoyed a full working life after war service, then retires from work possibly with whatever superannuation or other retirement benefits are available to the Australian work force.

Determining authorities have found the application of the present legislative provisions very difficult because the provisions, unchanged since 1920, contain outmoded and imprecise terms. The amendments clarify the eligibility and make it clear that to qualify for a TPI pension a veteran must be eligible for the 100 per cent general rate pension. In addition, the TPI rate pension can become payable only when a veteran is totally and permanently disabled by accepted disabilities and is thereby precluded from continuing to engage in remunerative work. If a person has had the usual span of a working life or has retired voluntarily or has left employment for reasons other than accepted disabilities, a TPI pension is not payable. It would be in only very rare cases that any veteran beyond the normal retirement age could be eligible for this pension. Special provision is made by the bill to cover veterans who are under 65 years of age, are unemployed, and are genuinely seeking to engage in remunerative work. (Hansard, HR Debates, Vol 142, 17 May 1985, 2646-2647)”

I respectfully suggest that this passage should be treated with care. The passage is taken from a Second Reading Speech and the citation is correct but it was not a speech delivered in relation to the Veterans’ Entitlements Bill 1985. That was to come later, on 16 October 1985, and I have set out passages from that in the text of these reasons at [52] and [53].
The passage which Professor Creyke and Mr Sutherland set out is from the earlier Second Reading Speech made on 17 May 1985. It was delivered in relation to the Repatriation Legislation Amendment Bill 1985 (Repatriation Bill) whose purpose was to amend the Repatriation Act 1920, the Interim Forces Benefits Act 1947, the Repatriation (Special Overseas) Act 1956, the Repatriation (Special Overseas Service) Act 1956 and the Seamen’s War Pensions and Allowances Act 1940. The amendments were made, at least in part, in response to the judgment of the majority in Repatriation Commission v O’Brien [1985] HCA 10; (1985) 155 CLR 422; Gibbs CJ, Wilson and Dawson JJ; Murphy and Brennan JJ dissenting. The majority High Court had held that, in determining a claim for a pension due to incapacity or death, there was only one question for the Commission and the Tribunal to answer i.e. whether it was satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim. The amendments effected by the Repatriation Bill came into operation on 6 June 1985.
After the Repatriation Bill had been introduced and before the amendments had come into operation, the Veterans’ Entitlements Bill 1985 had been drafted having regard to recommendations made by the Advisory Committee on Repatriation Legislation Review. An exposure draft had been tabled in Parliament on 30 May 1985. A broad ranging consultative process followed its tabling and submissions were received on both it and the amendments made to the earlier legislation with regard to the standard of proof issue raised by the High Court’s judgment in Repatriation Commission v O’Brien with effect from 6 June 1985. This is the history to which the Minister referred in his Second Reading Speech to the VE Bill before he came to the passage to which I was referred by counsel and which I have set out at [52] and [53] above.

VE Act, s 23(2)(b) If, despite the conclusion that the veteran has an incapacity from war-caused injury or war-caused disease, or both, alone is incapable of undertaking remunerative work of a kind identified under
s 28, the veteran has the capacity to undertake it at a level identified in ss 23(2)(a) or (b), the veteran does not meet the criterion in s 23(1)(b).