Repatriation Commission v Braund

[1991] FCA 544

Re: REPATRIATION COMMISSION
And: WILLIAM ALEXANDER BRAUND
No. Q G 39 of 1991
FED No. 544
Veterans' Affairs
(1991) 23 ALD 591

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.(1)

CATCHWORDS

Veterans' Affairs - whether veteran prevented from continuing work due to war-related incapacity - effect of veteran's age on assessment where age greater than normal retiring age - when assessment should be made - length of entitlement to pension, once granted.

Veterans' Entitlements Act 1986, ss.19, 24, 24A

HEARING

BRISBANE

#DATE 4:9:1991

Counsel for the applicant: Mr J.A. Logan

Solicitors for the applicant: Australian Government Solicitors

Counsel for the respondent: Mr M. Halliday

Solicitors for the respondent: Callaghan and Reidy as town agents for

Price and Roobottom

ORDER

The decision of the Administrative Appeals Tribunal dated 14 February 1991 be set aside.

The matter be remitted for hearing and determination by a member or members of the Administrative Appeals Tribunal other than the member who gave that decision.

The parties be at liberty to place further material before the Administrative Appeals Tribunal and to examine and cross-examine the respondent, Mr William Alexander Braund, further.

There be no order as to costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The Repatriation Commission appeals from a decision of the Administrative Appeals Tribunal given on 14 February 1991. The Tribunal then held the respondent to be entitled to a pension at a special rate under s.24 of the Veterans' Entitlements Act 1986 ("the V.E. Act"), because of the effect of war disabilities on his earning power. The Commission as applicant points to the fact that the respondent is now nearly 78 years of age and says that the Tribunal did not consider the entitlement of the respondent, Mr Braund, at the right dates; the applicant says that entitlement should have been considered over the period from 28 February 1984 to 14 February 1991, the former being the date of application and the latter the date of the Tribunal's determination.

1. In 1990 and 1991, many amendments have been made to the V.E. Act, but the argument was conducted before me on the assumption that these recent amendments do not affect the questions I have to consider; as far as I can tell, that assumption is correct.

2. The most relevant provision is s.24 of the V.E. Act which has three paragraphs. It is not in question that the respondent satisfies the first two of them, namely (a) and (b). The issue relates to s.24(1)(c):
   

"the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity".

1. The situation contemplated by para. (c) seems to be that in which the veteran is unable to work for pay and the sole cause of that inability is war-caused injury or disease. As I read the provision, it does not include within its scope a veteran who would, by reason of his age, not have worked at the relevant time, incapacity or no incapacity; such a veteran could not be described as one who is, by reason of incapacity, prevented from continuing to work. This view is consistent with the decisions of the Full Court referred to below.

2. Section 24(2)(a) of the V.E. Act reads as follows:
   

"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".

1. It is not as easy to see the reason for the presence of s.24(2)(a), as what it says seems to be necessarily implicit in s.24(1)(c) which I have quoted above.

2. The provisions just set out came into existence, in a rather different form, by an amendment to the then Schedule 2 to the Repatriation Act 1920; that amendment was made by s.34 of the Repatriation Legislation Amendment Act 1985, which came into effect on 6 June 1985. The two provisions just quoted from the V.E. Act have counterparts in the 1985 amendment which, although not exact, are in no relevant respect differently worded.

3. The importance of this is that the 1985 amendment was considered by the Full Court in a group of decisions all delivered on 17 November 1986, namely Banovich v Repatriation Commission, Delkou v Repatriation Commission and Lucas v Repatriation Commission, reported in 69 ALR pp 395, 406 and 415 respectively.

4. In Banovich, the Court held that the question whether an applicant is entitled to the special rate is to be considered at the time of application to the primary decision-maker (404); in the present case, that application was made on 28 February 1984. The Court also held that it was not in error for the Tribunal, which had decided against the veteran, to have reasoned from a finding that he would "in any event have been unlikely to continue in remunerative work after the date upon which he would have retired ..." (404). In support of that conclusion, the Court referred to the policy underlying the enactment of the legislation and to the relevant second reading speech, which included an assertion that:
   

"It would be in only very rare cases that any veteran beyond the normal retirement age could be eligible for this pension" (405).

1. In Delkou, the Court reaffirmed the law as set out in Banovich, as to the date at which eligibility should be considered. In Lucas, the Court returned to the question of an aged applicant:
   

"It is obviously relevant, in relation to that matter, to determine whether the applicant would, in any event, have been debarred from work because of a factor such as age" (422).

1. It is my opinion that the views of the Full Court with respect to the relevance of age, expressed in Banovich and in Lucas, are still material, and indeed binding, in applying s.24(1)(c). There is no mention of this consideration in the Tribunal's reasons.

2. In Repatriation Commission v Smith (M.J.) (1987) 74 ALR 537, the Full Court had to consider the special rate problem again, but there the governing provisions were those with which I am presently concerned, in s.24 of the V.E. Act. The Court said that eligibility for pension under the special rate should be determined at the earliest available date, namely three months before the date of application (545); this may not be easy to reconcile with the view expressed in the three cases discussed above, where the date of the application itself was treated as the material one. The Court also considered the question of continuation of the pension and held that a veteran is eligible for the special rate "only for so long as he is prevented from undertaking remunerative work by the service disability" (547).

3. The decision just mentioned was given on 10 August 1987. On 16 December 1987, assent was given to the Social Security and Veterans' Entitlements Amendment Act (No. 2) 1987 which, amongst other effects, retrospectively changed the law as to the point just mentioned. By s.65 of the 1987 Act, there was inserted in the principal Act a s.24A reading, so far as relevant, as follows:
   

"Where 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:

...

(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".

I have omitted the terms of paragraphs (a) and (b), both of which are irrelevant to the present problem. Section 24A has the result that if a totally disabled veteran becomes entitled to a special rate pension, then he continues to receive it as long as he remains so disabled; in particular, even extreme old age will not disentitle him.

1. The result is that if, at the date of application, the respondent Braund was entitled to a pension at the special rate, he would not have been disentitled if the Tribunal took the view that at, say, age 77 he would probably not have worked, disability or no.

2. It is necessary also to refer, in connection with this question of timing of entitlement, to the provisions of s.19 of the V.E. Act. If one examines the procedure for making a claim set out in ss.14 and 17, it can be seen that the function of s.19 is to prescribe, amongst other things, the way in which claims of the present sort shall be determined. Under s.19(5), in circumstances of this kind, the Commission must assess:
   

"(a) the rate or rates at which the pension would have been payable from time to time during the assessment period; and

(b) subject to subsection (6), the rate at which the pension is payable from the date of the determination;

and shall make a determination approving the payment of pension in accordance with that assessment".

1. The expression "assessment period" is defined in s.19(9) to mean -
   

"... in relation to a claim or application relating to a pension, ... the period starting on the application day and ending when the claim or application is determined".

1. Although counsel for the applicant Commission relied upon s.19(5) of the V.E. Act in support of the submission that the Tribunal should have considered eligibility over the whole period from 1984 to 1991, and it must be conceded that to do so would accord with s.19(5), it is my opinion that s.24A made consideration of the position after 28 February 1984 academic, so far as the respondent Braund is concerned. Once the Commonwealth became liable to pay the special rate pension, then the respondent's rights were not necessarily brought to an end by his ceasing to fulfil the requirements of s.24. In particular, once liability arose, it would not cease to exist on the ground that the respondent would have given up work altogether because of advancing age, even if he had not been incapacitated.

2. The Tribunal directed, by its decision dated 24 February 1991, that the applicant "is entitled to be paid a pension at the special rate with effect from 28 February 1984".

3. Insofar as the Tribunal fixed upon that date, it appears to me that it proceeded correctly, in view of the provisions of s.24A of the V.E. Act. That is, it was not necessary for the respondent to demonstrate entitlement over the whole of the period since 28 February 1984. If it had appeared that the respondent ceased, at some time after 28 February 1984, to fulfil the requirements of s.24 relating to a special rate pension, he would still have been entitled to receive it, unless he fell within one of the exceptions set out in s.24A; there was no suggestion that he did so fall. The Commission's submission appears to me to overlook the effect of s.24A, which altered the position as set out in the M.J. Smith case (above) substantially, in favour of veterans.

4. In my opinion, the Tribunal was not obliged, on the facts as presented to it, to consider eligibility over the whole assessment period, but only eligibility at the inception of the period - there being no question of the applicant's having become disentitled under s.24A. The real question is whether the Tribunal considered entitlement as at 28 February 1984; the applicant argued that the Tribunal had focused on the respondent's ability to work in 1975.

5. The Tribunal's reasons, insofar as they deal with the facts, principally set out the respondent's medical and working history. He was discharged from service in 1942 on the ground that he had anxiety neurosis and then followed various other occupations, with periods of hospitalisation. In 1964, he established a driving school, but gave it up on medical grounds in 1975. I can find nothing in the Tribunal's discussion of the respondent's history which deals with the question of whether at the relevant date (when the respondent was 70 years of age) he fulfilled the requirements of s.24(1)(c) of the V.E. Act. There is no express mention in the reasons of the respondent's employment position as at 28 February 1984. To decide the validity of the applicant's complaint that the Tribunal considered rather the date 1975 (when the respondent retired from work), it is necessary particularly to attend to the last paragraph of the reasons:
   

"I am satisfied on the evidence that the applicant was prevented from continuing to undertake remunerative work in 1975 because of his accepted war-caused disabilities and those disabilities alone were responsible for the sale of the business. I am also satisfied that the applicant suffered a loss of earnings because of the sale of the business and furthermore, although it is not necessary to so decide, I am satisfied that the applicant has been unable to replace those lost earnings by engaging in other remunerative work because of his accepted disabilities. I should add that the applicant's evidence before me was truthful, albeit confused, and that the evidence of Dr Grant, a Senior Medical Officer of the Department of Veterans Affairs, did not suggest otherwise. I have taken his confused mind into account when assessing what weight should be given to the prior inconsistent statements".

1. It was not enough to hold that in 1975 the applicant was prevented from continuing to work because of his war-caused disabilities. The critical question, on these facts, was whether, as at 28 February 1984, the respondent was within the description set out in s.24(1)(c) of the V.E. Act. He might well have retired because of war-caused incapacity in 1975, but nevertheless not have been able to show that his situation at the age of 70, nine years later, was that he was prevented from working by that incapacity alone. If the respondent's position in 1984 was that, incapacity or no, he would probably not have worked for a living, then in my opinion the Tribunal should not have held him entitled to the special rate pension.

2. I appreciate that in the case of an aged veteran it may be quite difficult to determine such a question, but it seems to me clear that it has to be determined, taking into account all the relevant circumstances.

3. Mr Halliday, who appeared for the respondent, said that there was some evidence in the record in the respondent's favour, on this point. No doubt that is so, but nevertheless the applicant was entitled to have the Tribunal consider that question which the statute posed. Although I must confess to some sympathy for the members of the Tribunal who have to construe this difficult legislation, I am compelled to accept the contention that here the member of the Tribunal does not appear to have directed his attention to the critical issue. It is not at all clear, indeed, that the parties' representatives had that issue in mind when questioning the respondent Mr Braund. The Tribunal's decision must be set aside.

4. It appears to me desirable that in a case of this sort the matter go back to another member of the Tribunal for rehearing; in so saying I intend no reflection upon the member whose decision led to this appeal.

5. It will be ordered that the decision of the Tribunal dated 14 February 1991 be set aside and the matter be remitted for hearing and determination by a member or members of the Tribunal other than the member who gave that decision, with the parties being at liberty to place further material before the Tribunal and to examine and cross-examine the respondent Mr W.A. Braund further. There will be no order for costs.