VETERAN’S AFFAIRS – appeal from single judge affirming decision of Administrative Appeals Tribunal that veteran entitled to pension at special rate – whether primary judge erred in defining the duties that constituted past remunerative work undertaken by the veteran – whether primary judge erred in deciding factual question for himself rather than remitting matter to the Tribunal - costs - appeal allowed.
REPATRIATION COMMISSION v GREGORY MICHAEL BUTCHER SAD 136 OF 2006
TAMBERLIN, NICHOLSON AND TRACEY JJ 22 MARCH 2007 SYDNEY (HEARD IN ADELAIDE)
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 136 OF 2006
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
REPATRIATION COMMISSION Appellant
AND:
GREGORY MICHAEL BUTCHER Respondent
JUDGES:
TAMBERLIN, NICHOLSON AND TRACEY JJ
DATE OF ORDER:
22 MARCH 2007
WHERE MADE:
SYDNEY (HEARD IN ADELAIDE)
THE COURT ORDERS THAT:
1.The appeal be allowed with costs.
2.The orders made by His Honour be set aside.
3.The decision of the Administrative Appeals Tribunal be set aside.
4.The matter be remitted to the Administrative Appeals Tribunal for determination in accordance with these reasons. The Court considers that this is an appropriate case in which to certify that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 (Cth) pursuant to s 6(3).
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 136 OF 2006
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
REPATRIATION COMMISSION Appellant
AND:
GREGORY MICHAEL BUTCHER Respondent
JUDGES:
TAMBERLIN, NICHOLSON AND TRACEY JJ
DATE:
22 MARCH 2007
PLACE:
SYDNEY (HEARD IN ADELAIDE)
REASONS FOR JUDGMENT
THE COURT:
This is an appeal from a decision of a single judge of this Court affirming a decision of the Administrative Appeals Tribunal (“the Tribunal”) in relation to an appeal made under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). The Tribunal set aside a decision by the Repatriation Commission (“the Commission”) and determined that Mr Butcher, the veteran and respondent in this case, was entitled to a pension at the ‘special rate’ provided for in s 24 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) as from 1 August 2004.
Qualification for the special rate pension under s 24(1)(c) of the Act requires a finding that the veteran is, by reason of incapacity from a war-caused injury or war-caused disease, or both,
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Repatriation Commission v Butcher [2007] FCAFC 36
Case
[2007] FCAFC 36
Decision Date
CaseChat Overview and Summary
In the case of Repatriation Commission v Butcher, the dispute involved the determination of the extent to which a veteran's service-related disabilities affected his ability to undertake remunerative work. The matter was heard by the Administrative Appeals Tribunal and subsequently appealed to the Federal Court of Australia. The central issue before the court was whether the veteran's war-caused injuries alone prevented him from continuing his previous employment, or if other factors, such as his degenerative cervical spine condition, also contributed to his inability to work.
The court addressed the legal issues surrounding the interpretation and application of section 24(1)(c) of the relevant Act. It was required to determine the scope of the tribunal's task in assessing the veteran's capacity to engage in remunerative work, considering both service-related disabilities and other contributing factors. The court referenced previous judgments to clarify that the tribunal must consider the veteran's hypothetical ability to work without service disabilities and any other factors that might affect his employability. The tribunal's exercise in assigning relative impact to these factors and determining the primary cause of incapacity was deemed to be within its discretion and generally not reviewable, except in exceptional circumstances.
The court found that the tribunal had not properly considered the veteran's degenerative cervical spine condition as a contributing factor to his inability to work, and had instead focused solely on his war-caused injuries. This misapplication of the law led to an incorrect conclusion that the veteran's war-caused injuries alone prevented him from undertaking remunerative work. Consequently, the court allowed the appeal, set aside the orders made by the tribunal, and remitted the matter back for reconsideration in line with the court's reasons. Additionally, the court indicated that it would be appropriate for the Attorney-General to consider authorising a payment under the Federal Proceedings (Costs) Act 1981 (Cth) given the circumstances of the case.
Orders
Orders of the court
1. The appeal be allowed with costs.
2. The orders made by His Honour be set aside.
3. The decision of the Administrative Appeals Tribunal be set aside.
4. The matter be remitted to the Administrative Appeals Tribunal for determination in accordance with these reasons. The Court considers that this is an appropriate case in which to certify that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 (Cth) pursuant to s 6(3).
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
TAMBERLIN, NICHOLSON AND TRACEY JJ
The Tribunal also referred to the observations of Burchett J in Cavell v Repatriation Commission (1988) 9 AAR 534 at 539 to the effect that the true task of the decision-maker was:‘… to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions but with an eye to reality, and as a matter in respect of which common sense is the proper guide.’ (Emphasis added) The Tribunal accepted that the problems which the veteran had experienced with his left shoulder were the result of degenerative changes in the condition of the cervical spine and that this condition was not war-caused. The Tribunal also accepted that the degenerative condition of the cervical spine would be a factor in preventing the veteran from undertaking certain types of remunerative work which he had undertaken in the past. By way of example, the Tribunal referred to the fact that the veteran would not be able to undertake work such as a labourer in tasks that entailed working above his head and looking up, such as fixing ceilings or cornices, or painting. The Tribunal also noted that the veteran would have difficulty with tasks such as concrete laying or flooring work, where he would be looking down for long periods of time. Taking into account the veteran’s description of his work as a forklift driver, the Tribunal accepted that his cervical condition would be a factor preventing him from doing that work because it frequently entailed stacking shelves at heights which would involve a forklift operator looking upwards for significant periods. However, the Tribunal found that the veteran’s cervical condition would not be a factor that would prevent him from undertaking work as a storeman or general farm labourer. It further found that his cervical spine condition would not be a factor that would prevent him from working as a truck driver. In light of these findings, the Tribunal concluded that the veteran had been prevented by his war-caused injuries alone from carrying out remunerative work that he was previously undertaking. The task for the Tribunal in considering the application of s 24(1)(c) was summarised by the Full Court in Repatriation Commission v Hendy (2002) 76 ALD 47 at [35]-[37] as follows:‘36 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.37 The consideration of what a veteran would probably have done, absent the service disabilities, is a hypothetical exercise. The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran's being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. So long as the tribunal performs this exercise, the conclusions drawn from the assignment of the relative impact of the various factors on the ability of the veteran to continue in remunerative work is not reviewable, except in exceptional circumstances. Moreover, having considered any or all of the factors which may have contributed to a veteran's incapacity, the tribunal is then required to determine whether it is the veteran's war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work. Error on the part of the tribunal in determining whether the veteran's war-caused injury or war-caused disease is the sole determinant in the prevention of continued remunerative work is, similarly, not open to review.’ (Emphasis added)
Ratio Decidendi
Legal Principle Established
Established by:
TAMBERLIN, NICHOLSON AND TRACEY JJ