Repatriation Commission v Case
[2003] FMCA 153
•29 April 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| REPATRIATION COMMISSION v CASE | [2003] FMCA 153 |
| ADMINISTRATIVE LAW – Appeal from AAT – entitlement to special rate pension under s.24 of the Veterans’ Entitlements Act 1986 – failure to apply proper test – order of AAT set aside and remitted to AAT for rehearing. Administrative Appeals Tribunal Act 1975, s.44 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 |
| Applicant: | REPATRIATION COMMISSION |
| Respondent: | NEVILLE JOHN CASE |
| File No: | BRM307 of 2001 |
| Delivered on: | 29 April 2003 |
| Delivered at: | Brisbane |
| Hearing Date: | 6 December 2001 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Counsel for the Applicant: | R.M. Henderson |
| Solicitors for the Applicant: | Australian Government Solicitor |
| Counsel for the Respondent: | D.W. Honchin |
| Solicitors for the Respondent: | Purcell Taylor |
FEDERAL MAGISTRATES |
BRM307 of 2001
| REPATRIATION COMMISSION |
Applicant
And
| NEVILLE JOHN CASE |
Respondent
REASONS FOR JUDGMENT
Introduction
The Repatriation Commission (“The Applicant”) by amended notice of the appeal dated 15 June 2001, seeks to set aside a decision of the Administrative Appeals Tribunal made 24 April 2001 (“the decision”). The appeal is opposed by Neville John Case (“the respondent”). The decision effectively granted the respondent a special pension under the Veterans Entitlements Act 1986 (VE Act).
The decision
Mr KL Beddoe (Senior Member) determined that the decision of the Veteran’s Review Board (affirming earlier decisions of the Applicant) be set aside and ordered that the respondent –
“qualified for payment of pension in accordance with section 24 of the Veterans Entitlements Act 1986 with effect from 6 September 1999”.
The 6th September 1999 is the date of the Respondent’s application for a special rate of pension.
Grounds of appeal
The amended Notice of Appeal sets out the following grounds of appeal:-
a)The Administrative Appeals Tribunal failed to properly construe and apply the word “alone” in its context where it appears in s.24(1)(c) of the Veterans’ Entitlement act 1986;
b)The Administrative Appeals Tribunal incorrectly construed the word “alone” in s.24(1)(c) of the Veterans’ Entitlement Act 1986 to mean that if the service related injury was sufficient to satisfy the requirements of the section even if the Veteran suffered from other non-service related injuries that also caused a loss of the Veteran’s remunerative work;
c)In the application of s.24(1) of the Veterans’ Entitlement Act 1986 the Administrative Appeals Tribunal failed to ascertain whether or not there were other non-service related factors which prevented the Veteran from undertaking remunerative work;
d)In the application of s.24(1) of the Veterans’ Entitlement Act 1986 the Administrative Appeals Tribunal failed to determine whether or not the Veteran’s non-service related incapacities either by themselves or in combination with the service related incapacities prevented the Veteran from undertaking remunerative work;
e)The Administrative Appeals Tribunal failed to determine that the circumstances the Veteran did not satisfy the requirements of s.24(1) of the Veterans’ Entitlement Act 1986;
f)The conclusion arrived at by the Administrative Appeals Tribunal that the Veteran satisfied s.24(1) of the Veteran’s Entitlement Act 1986 was so unreasonable that no tribunal acting reasonably could have reached it;
g)In the application of s.24(1) of the Veterans’ Entitlement Act 1986 the Administrative Appeals Tribunal failed to take into account a relevant fact, namely the report Mr. Lewis (Orthopaedic Surgeon) and, in particular that Mr. Lewis had determined that the Veteran was not capable of working more than twenty hours a week and unlikely to be able to work eight hours per week as a result of spondylitis changes in the Veteran’s lumbar and thoracic spine;
h)In the application of s.24(1) of the Veterans’ Entitlement Act 1986 the Administrative Appeals Tribunal failed to take into account relevant facts, namely the Applicant’s uncontested evidence that:-
(i)he was unable to perform his some of his duties at Bowen
Coke Pty Ltd as the result of a deteriorating bank condition; and(ii)his employers at Bowen Coke Pty Ltd were aware of the Applicant’s inability and sought to make him redundant because of it.
(i)In the application of s.24(2)(b) of the s.24(1) of the Veterans’
Entitlement Act 1986, the Administrative Appeals Tribunal failed to give any reasons for the conclusion that the Veteran “did genuinely seek to engage in remunerative work”.(j)In the application of s.24(2)(b) of the s.24(1) of the Veterans’ Entitlement Act 1986, the Administrative Appeals Tribunal failed to take into account a relevant fact, namely the report of Mr. Lewis (Orthopaedic Surgeon) and, in particular, that Mr. Lewis had determined that the Veteran was not capable of working more than twenty hours a week and unlikely to be able to work eight hours per week as the result of spondylitis changes in the Veteran’s lumbar and thoracic spine;
(k)The conclusion arrived at by the Administrative Appeals Tribunal
that the Veteran satisfied s.24(2)(b) of the Veterans’ Entitlement Act 1986 was so unreasonable that no tribunal acting reasonably could have reached it;(l)In making its determination of the applicability of s.24 of the Veterans’ Entitlement Act 1986, the Administrative Appeals Tribunal failed to examine the circumstances of the Veteran as at the date of the making of his application.
Principles of appeal
This is an appeal on a question of law, brought pursuant to s.44 of the Administrative Appeals Tribunal Act 1975. It is worth re-stating that there is no error of law simply in making our error of fact (See Australian Broadcasting Tribunal & Bond (1990) 170CLR 321 at 356.
The statutory provisions
Section 13 of the Veteran’s Entitlement Act imposes liability on the Commonwealth to pay such pensions to eligible persons. Section14 deals with the making of claims for pensions, while s.15 deals with applications for increases in the rate of pension. Section 17 requires the Secretary of the Department of Veterans’ Affairs to investigate claims and applications. Section.19 requires the Repatriation Commission to determine claims and applications and to assess the rate at which the pension is payable.
The requirements for special rate pensions are conceded to be complex and the current case does not require me to explore all of them. The focus of this case is essentially the extent of the reasons for the respondent’s incapacity for work.
The relevant statutory provisions in this matter are:
Section 24(1)(c) which provides:-
This section applies to a veteran if:-
(aa)……
(aab)…..
(a)……
(b)……
(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 on wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d)……
Certain Veterans including the respondent in this case, as conceded by the applicant, enjoy the benefit of an ameliorating provision, s.24 (2)(b), which provides relevantly that:-
For the purpose of paragraph (1)(c):-
(a)……..
(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.”
Because of the grounds of appeal relied upon, and the applicant’s submissions, it is also appropriate to refer to s.24A (as far as is relevant), namely:-
“Where the Commonwealth is or becomes liable to pay a pension to a Veteran at the rate applicable under s23 or 24, that rate continues, while a pension continues to be payable to the veteran, to apply to the veteran unless:-
(a)……..
(b)……..
(c)In the case of a veteran to whom s24 applies – the veteran is undertaking or is capable of undertaking remunerative work for periods aggregating more than 8 hours per week”
Counsel for the applicant relied upon s.19(5) and s.19(9) of the VE Act in support of the submission that the Tribunal was therefore required to consider whether the various requirements for a special rate pension were satisfied during the period which commenced on 6 September 1999 and ended when it made its decision.
Such an issue arose for determination by Pincus J in Repatriation Commission v Braund (1991) 23 ALD 591 where, at 594 he said that:-
“In my opinion, the Tribunal was not obliged, on the facts presented to it to consider eligibility over the whole assessment period but only eligibility at the incompletion of the period – there being no question of the applicants having become disentitled under s24a.
The submissions of counsel for the applicant seem to be the accepted position (see also Nicholson J in Forbes v Repatriation Commission (101) FCR 50 at 53).The real question in this case is whether the Tribunal properly considered entitlement as at 6 September 1999 and during the assessment period. The relevant time is not the date of retrenchment in July 1998.”
Factual background
The respondent served with the Royal Australian Army from 3 December 1958 to 16 December 1967, including a period constituting operative services in South Vietnam from 8 May 1966 to 12 May 1967. Although much of the evidence before the Tribunal related to conditions of lumbar and thoracic spondylitis (which were found not to be a war-caused disease within the terms of the Act), it is not contested that at the time of the AAT appeal the respondent was receiving a disability pension at 100% of the general rate. In particular as a result of the respondent being involved in engagements with the enemy and duties on the battlefield, he suffered a service related post-traumatic stress disorder (PTSD) with psychosomatic symptoms. The respondent was 60 years old at trial before the Tribunal and 58 at the time of his application.
The respondent told the Tribunal that he thought he began work with Bowen Coke in 1978 and he was retrenched, effective 31 July 1998, and a couple of weeks after being made redundant he –
“went and chased work and from then on I have just been looking all the time”.
In support of his efforts to find employment he tendered documents from various potential employers (at pages 132–136 of the Appeal Book) and said he disclosed all his accepted war disabilities and has been unsuccessful in finding remunerative work.
Findings of Tribunal
The Senior Member accepted that the respondent suffers degenerative spinal conditions but made a finding that he was satisified –
“beyond reasonable doubt that the applicant’s service in South Vietnam being operational service, did not make a material contribution to the applicants back condition”.
The learned senior member then considered the evidence (including the cross examination of the respondent) and expressed his consideration and conclusions in the following way:-
“33. Based on the evidence of the applicant and the report of Dr Rogers I am satisfied that the overwhelming factor in the applicant being made redundant by Bowen Coke Pty Ltd and his subsequent unsuccessful attempts to obtain employment is the accepted disability Post Traumatic Stress Disorder.
34.The material before me satisfies me that it was the PTSD which prevented the applicant from maintaining his employment at Bowen Coke. Nothing else was relevant. In particular the back conditions had not prevented the applicant from working until the time of redundancy and I am satisfied that the applicant could have continued working with the assistance of analgesics as needed.”
35.The redundancy was in effect dismissal and I am satisfied that the applicant was so dismissed because of personality factors and not physical limitations.
36.Having come to that view I am satisfied that it was the PTSD alone which caused the loss of the applicant’s remunerative work, which prevented him from obtaining other remunerative work and that the applicant did genuinely seek to engage in remunerative work but was unsuccessful because of his PTSD.
37.I am satisfied that section 24 of the Act was satisfied at the date of the application. The decision of the Tribunal will be to set aside the decision under review and substitute the following decision:
(a the condition lumbar spondylitis is not a war caused disease within the terms of the Act;
(b)the condition thoracic spondylitis is not a war caused disease within the terms of the Act; and
(c)the applicant qualified for payment of pension in accordance with section 24 of the Veterans’ Entitlements Act 1986 with effect from 6 September 1999.”
Save for paragraphs 3 and 37, the Senior Member does not specially refer in his reasons to the statutory requirements of s.24 and the test to be applied.
Failure to have regard to the assessment period and taking into account irrelevant consideration
The applicant says the tribunal erroneously assumed that it was required to make findings regarding the reasons for the respondent’s retrenchment. That this was an irrelevant consideration, which tainted its findings.
I cannot agree. The retrenchment, occurring just over 12 months previous to the application, coupled with the medical evidence gave some context to the testimony of the respondent and the documents tendered. Some of the evidence refers to events during the assessment period, and the statement by the tribunal as paragraph 37 that it was –
“satisfied s.24 of the Act was satisfied at the date of the application”
albeit brief, confirms the Tribunal turned its mind to the relevant date of commencement.
Because, in my view, s.24(2)(b) applies findings about the extent of the respondent’s attempts to seek remunerative work after the 6 September 1999 relate to events in the assessment period. This ground of Appeal is not made out.
Failure to address the correct test and failure to take into account relevant considerations
At paragraph 36, the Tribunal (after being satisfied that the applicant was dismissed “because of personality factors and not physical limitations”) made a finding that:-
(a)The PTSD alone caused the loss of the respondents remunerative
Work.
(b)The PTSD alone prevented the respondent from obtaining other
Remunerative work; and
(c)The respondent did genuinely seek to engage in remunerative
work but was unsuccessful because of his PTSD.
The applicant submits that test enunciated by the Full Court in Flentjar v Repatriation Commission (1997) 48 ALD at 4 was not completely or effectively answered. The applicant says essentially that:-
“The Tribunal was required to give proper, genuine and realistic consideration to the statutory requirements. It should have asked itself “…. What (the respondent) would have done if he had none of his service disabilities”. Had the Tribunal posed that question, and had it given proper attention to the evidence before it relevant to the assessment period it would have taken into account in its considerations:-
(a)The report of Dr Lewis, orthopaedic surgeon, and the doctors view that because of his non-war caused spinal injuries the respondent is not capable of working more than 20 hours a week, in any occupation and most unlikely able to work more than 8 hours per week.
(b)The impact of the respondent’s age and the depressed labour market in Bowen.”
Implicit in the submission on this point, and on alternative ground of an appeal, is an allegation that the Tribunal has failed to give adequate reasons.
A substantial failure to comply with requirements to give reasons can amount to an error of law on the part of a tribunal: Dornan v Riordan (1990) 24 FCR 564 at 573; 21 ALD 255; Muralidharan v Minister for Immigration and Ethnic Affairs; (1996) 62 FCR 402 at 414; 41 ALD 361. The duty to provide reasons must however be sensibly interpreted; Dornan v Riordan; Muralidharan at 414. The reasons of a tribunal are to be read fairly, as a whole, and not overzealously; Politis v FCT (1988) 16 ALD 707 at 708. What needs to be conveyed for the purpose of those having an interest in the decision was referred to in detail in Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 at 507 (cited with approval in Dorman v Riordan at 568). It is not necessary for a tribunal to refer specifically to all findings of fact made by it, so long as such findings could be reasonably inferred from the tribunals statements of reasons in the context in which they are given: FCT v Cainero (1988) 15 ALD 368 at 369: see also McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616-7).
Although it was a ground of Appeal, it is not ultimately submitted by the applicant that the decision of the tribunal, when looked at objectively, is –
“so devoid of plausible justification that no reasonable body of persons could have reached it” (see Conyngham v Minister of Immigration and Ethnic Affairs (1986) 68 ALR 423 at 437).
The findings of fact set out above, as expressed, were in my view open to the Tribunal. The Tribunal expressly rejected the view of Dr Lewis about work capabilities by finding –
“that the applicant could have continued working with the assistance of analgesics as needed.”
Whilst it is true that the Tribunal did not refer to the test in Flentjar (supra), I have formed the view that some of the findings referred to in this Tribunal decision reflect the observations of Burchett J, Cavell v Repatriation Commission (1988) 9 AAR 539 to –
“make a practical decision whether the veteran’s loss of remunerative work is attributable to the 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.”
The reasons show that the Tribunal found:-
(a)the nature of the respondent’s remunerative work undertaken with Bowen Coke up to 31 July 1998;
(b)the respondent by reason of his PTSD was prevented from continuing to undertake that work;
(c)the PTSD was the only factor preventing the respondent from continuing to undertake that work.
As a result of these findings, the Tribunal was required to give proper, genuine and realistic consideration to the fourth question posed by the decision in Flentjar, namely:-
“Is the Veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary wages, or earnings on his own account that he would not be suffering if he were free of that incapacity?”
The applicant simply says this question was not addressed by the Tribunal, and this amounts to an error of law.
The respondent says the Tribunal –
“has addressed all the necessary material questions of fact.”
Again in Flentjar (supra), it is recorded that the Tribunal in that case made a specific finding on the issue of the loss of earnings –
“that he would not be suffering if he was free of incapacity from the war-caused disabilities alone.”
The Full Court found that the evidence was not so self-evident.
In this case I can find no self evident evidence (either in the evidence in chief or cross examination) and no specific finding to that effect.
I have formed the view that I cannot be satisfied the Tribunal turned its mind to this issue – an issue, on the authorities, which is fundamental to the relief sought. The Tribunal must consider the question which the Statute poses. In view of the long history of this matter, including my delay in delivering these reasons, for which I must accept responsibility, it is regrettable that I am compelled to set aside paragraph (c) of the Tribunal’s order because of the Tribunal’s failure to apply the full test.
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.
It will be ordered that paragraph (c) of the Tribunal’s decision dated
24 April 2001 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, according to law, with the parties being at liberty to place further material before the Tribunal and to examine and cross-examine the respondent, N.J. Case, further. There will be no order as to costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
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