Repatriation Commission v Edmonds
[2008] FMCA 13
•29 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| REPATRIATION COMMISSION v EDMONDS | [2008] FMCA 13 |
| ADMINISTRATIVE LAW – Veteran’s entitlements – entitlement to special rate pension – characterisation of the remunerative work the veteran is unable to undertake. |
| Veterans’ Entitlements Act 1986 (Cwth) ss. 5Q, 24 Administrative Appeals Tribunal Act1975 ss. 44 |
| Repatriation Commission v Van Heteren (2003) 75 ALD 703 Flentjar v Repatriation Commission (1997) 48 ALD 1 Banovich v Repatriation Commission (1986) 69 ALR 395 Sheehy v Repatriation Commission (1996)137 ALR 223 Starcevich v Repatriation Commission (1987) 18 FCR 221 Repatriation Commission v Hendy (2002) 76 ALD 47 Repatriation Commission v Butcher [2006] FCA 811 Cavell v Repatriation Commission (1988) 9 AAR 534 |
| Applicant: | REPATRIATION COMMISSION |
| Respondent: | DENNIS EDMONDS |
| File Number: | BRG 728 of 2006 |
| Judgment of: | Wilson FM |
| Hearing date: | 22 November 2006 |
| Date of Last Submission: | 22 November 2006 |
| Delivered at: | Brisbane |
| Delivered on: | 29 January 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Ford |
| Solicitors for the Applicant: | Australian Government Solicitor |
| Counsel for the Respondent: | Mr Harding |
| Solicitors for the Respondent: | Terrence O’Connor |
ORDERS
That the appeal be dismissed.
That the appellant pay the respondent’s costs of and incidental to the appeal to be taxed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 728 of 2006
| REPATRIATION COMMISSION |
Applicant
And
| DENNIS EDMONDS |
Respondent
REASONS FOR JUDGMENT
This appeal concerns the proper interpretation of s.24(1)(c) Veterans’ Entitlements Act 1986 (Cwth) (“the Act”). The appeal is limited to matters of law: s.44 Administrative Appeals Tribunal Act1975. As Finn J said in Repatriation Commission v Van Heteren (2003) 75 ALD 703 at [15] there is now very considerable judicial exegesis of the proper approach to be taken to the application of the subsection.
The appeal, by the Commission, is against the decision of the Administrative Appeals Tribunal, constituted by Dr KS Levy, to set aside the decision of the Veterans’ Review Board of 29 November 2005, and to substitute in its place the decision that the respondent is entitled to be paid disability pension at the Special Rate under s.24 of the Act, with effect from 23 June 2004.
Section 24 of the Act provides for the circumstances in which a veteran is entitled to a special rate of pension. It provides:
“24 Special rate of pension
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.”
The appellant contends that the Tribunal erred in law in concluding that the respondent was entitled to a pension at the special rate pursuant to s.24 of the Act. Broadly stated, the issue on appeal is whether the Tribunal erred in law in its approach to the question of characterizing remunerative work the respondent was undertaking for the purposes of s.24(1)(c) of the Act. As I understand the appellant’s submissions they all flow from the premise that the Tribunal has found that the respondent was undertaking remunerative work during two 2 week periods following his retirement from the Army. If that premise is undermined, the appellant’s attack on the judgment is substantially diminished.
The Tribunal approached its determination of the matter, correctly, by addressing the four questions posed by the Full Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5:
a)What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s.24(1)(c) of the Act?
b)Is the veteran, by reason of war-caused injury or war caused disease, or both, prevented from continuing to undertake that work?
c)If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
d)If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity.
There is an error at paragraph [34] of the reasons of the Tribunal insofar as it paraphrases s.24(1)(aab) of the Act, but I am satisfied that this has not had any adverse impact on the reasoning of the Tribunal nor on the result of the case. The appellant does not dispute that the respondent satisfied that part of s.24(1) of the Act.
It was common ground before the Tribunal, and on the appeal, that the respondent satisfied the requirements of s.24(1)(a) and (b) of the Act.
I should add that it is clear, from the Tribunal’s narrative of the relevant facts, that the requirements of s.24(1)(aa) and (ab) were also satisfied. No submissions were made to the contrary on the appeal.
The focus was on whether the respondent had satisfied the requirements of s.24(1)(c) of the Act. The way in which the Tribunal has framed the question at paragraph [35] of its reasons is as follows:
“ . . . the question arises as to what is “remunerative work” in the present case and whether the two brief periods of one week working in a warehouse can constitute “remunerative work” for the purposes of the Act.”
The appellant, at paragraph 1.4 of the Notice of Appeal identifies this very question as one of the questions of law said to arise on the appeal. It is helpful, however, to consider the phrase “remunerative work” in the context in which it appears in s.24(1)(c) of the Act: “prevented from continuing to undertake remunerative work that the veteran was undertaking”. Thus, it is not sufficient merely to ask whether the work that the veteran did following his discharge from the Army was “remunerative work”, it is necessary also to ask whether the veteran was undertaking that work. That is what the Tribunal has done at paragraph [37] of its reasons.
Contrary to paragraph [37] of the Tribunal’s reasons, “remunerative work” is a defined term in s.5Q of the Act, defined to include any remunerative activity. Looked at in isolation, therefore, the two jobs that the respondent held were plainly remunerative work, because he was paid for them.
Repatriation Commission v Van Heteren at [18] makes it clear that the remunerative work to which s.24(1)(c) refers is the remunerative work undertaken by the veteran before he or she was prevented from continuing to undertake that work. The term though, does not refer simply to a particular job with a particular employer, nor merely to the last remunerative work undertaken before the veteran’s inability to work became complete. It signifies the type of work which the veteran previously undertook but which because of war-caused incapacity alone he or she can no longer undertake. The Act requires identification of that type of work as part of the veteran’s demonstration that he or she has suffered a real and substantial loss consequent alone upon war-caused incapacity. It is that remunerative work and not remunerative work at large with which s.24(1)(c) is concerned. The Tribunal referred to this judgment at paragraph [37] of its reasons, and applied it at paragraph [38].
At paragraph [38] of the reasons, the Tribunal said:
“The Tribunal is satisfied that based on the above judicial reasoning [in Van Heteren] and the applicant’s military training and experience, that warehousing work is related to the logistical training and experience of the applicant. It may not have been of the same level and status of his work in the Army, that was his choice and also, it was the only employment available to him. The Tribunal therefore accepts his two short term periods of employment were “remunerative work” for the purposes of this question [question (1) in Fletjar].”
This paragraph of the reasons was the focus of the appellant’s attack. The appellant’s argument was:
a)The facts as found did not entitle the Tribunal to conclude that the respondent was ‘undertaking’ remunerative work, but should have resulted in a finding that the respondent was unable to carry out that work;
b)Further, the two periods of work were not substantial. As a result the Tribunal ought not to have been satisfied that the respondent was undertaking any remunerative work, that he was prevented from continuing in;
c)The Tribunal applied an incorrect test in asking whether the two short periods of employment were ‘related to’ work that the respondent had undertaken during his military service. Rather it should have asked whether the two periods of employment were in the same field of endeavour as work he had undertaken during his service. If it did so, the Tribunal ought to have concluded that the work attempted by the respondent post his military service was not in the same field of endeavour as work he had previously undertaken.
As I understand the authorities (particularly Banovich v Repatriation Commission (1986) 69 ALR 395) in the present case the respondent would be successful in his application for the pension at the special rate either if he was unable to continue to perform work of a type different to that which he had previously undertaken during his military service; or if he was unable to continue to undertake work in the same field of endeavour as he had performed during his military career. In the first category, to be successful, the respondent would necessarily have had to obtain and successfully carry out such employment before ceasing it. In the second category, the respondent would not necessarily have had to even obtain employment, but would in those circumstances also have to satisfy s.24(2)(b) of the Act.
It is here that I think some confusion has crept into the appellant’s arguments, and its understanding of the reasoning of the Tribunal. It is important not to intervolve the determination of, first, the characterisation of the work which it is said that the veteran has previously successfully undertaken; and, secondly, the determination of the work that the veteran is unable to undertake because of his war-caused injury. It is only if there is a correlation between the two that s.24(1)(c) of the Act is engaged.
It is therefore necessary to attempt to reconcile the last sentence of paragraph [38] of the Tribunal’s reasons with the last sentence of paragraph [40]. They seem inconsistent. At paragraph [38] the Tribunal accepts that the two short term jobs held by the respondent were remunerative work. They plainly were, as the term ‘remunerative work’ is defined in the Act. However, that phrase has been held to incorporate the concept of successful or effective performance of the work: Sheehy v Repatriation Commission (1996)137 ALR 223. At paragraph [40] the Tribunal finds that the respondent’s performance of the two jobs was not effective. It must follow from this finding, that the first category of case referred to in paragraph 14 of these reasons is not open to the respondent. That is, it is not open for the respondent to argue, and for the Tribunal to find, that work as a storeman was successfully undertaken for the first time by the respondent following his retirement from the Army, and that he is unable to continue to undertake that type of work. The appellant proceeds from the premise stated at paragraph 4 of these reasons, that the Tribunal has found that the two periods of one week as a storeman was remunerative work “undertaken” by the respondent.
I do not consider that such premise is a sound one. Rather, I consider that the Tribunal has found, at paragraph [40] of its reasons, that the two periods of one week working as a storeman was not remunerative work “undertaken by the respondent” because he did not effectively perform it. I think that paragraph [38] of the reasons is addressed to a different enquiry, namely the characterisation of the type of work that the respondent says he can no longer undertake. What the Tribunal is saying at paragraph [38] of its reasons is that the type of work sought to be undertaken by the respondent during the two short periods of one week, characterised as warehousing work, was in the same field of endeavour as work previously undertaken by the respondent during his military service. By cross-referring to the first question posed in Flentjar I consider that at paragraph [38] the Tribunal was engaged in the task of characterising the work that the respondent was seeking to do post retirement, rather than considering whether he was successful in undertaking it.
I consider that the Tribunal has correctly approached the construction question by addressing whether the type of work attempted by the respondent following his retirement from the Army was in the same field of endeavour or of the same type as he had previously successfully performed, in his case in the Army.
The appellant then argues that the Tribunal erred in adopting a test not supported by authority of asking whether the work sought to be carried out unsuccessfully because of a war related injury was “related to” work previously carried out successfully.
In my view, it is overly critical for the appellant to latch onto the use by the Tribunal of the words “related to”. I do not think that the Tribunal intended it to be used as a term of art. I adopt as correct the submission of counsel for the respondent at paragraph 6 of the Respondent’s Outline of Written Submissions. I think that, fairly read, the Tribunal concluded that warehousing work, or work as a storeman, was in the same field of endeavour as work that the respondent had previously undertaken in the Army. This is reinforced by the second sentence of paragraph [40] of the reasons of the Tribunal. I do not think the Tribunal was introducing a new concept as articulated by the Appellant at paragraph 40 of its written outline of submissions. I conclude that the Tribunal addressed itself to the correct enquiry. The question then becomes: was that finding reasonably open to the Tribunal?
Counsel for the appellant, in her submissions in reply, accepted that if there had been evidence of the respondent having undertaken warehousing work successfully in the Army, the appeal must fail.
Turning then to the facts upon which the Tribunal reached its decision. The following background is taken from the Tribunal’s reasons:
a)After leaving school the respondent worked for the post office in England, where he was born;
b)At the age of 20, the respondent joined the British Army and served as an infantry soldier for nine years;
c)Thereafter, the respondent joined the Australian Army, and retired after 27 years service, having risen to the rank of Major;
d)The respondent’s service was with the Royal Australian Infantry Corps in both regimental training and logistical postings. The respondent also saw active service in Vietnam. The respondent was compulsorily retired at the age of 57 years in 1997;
e)During his service, the respondent developed some experience in logistics and stores accounting;
f)The respondent has a number of accepted disabilities set out at paragraph [8] of the Tribunal’s reasons;
g)Following his discharge the respondent sought employment. He applied for and secured two positions as a storeman;
h)The first position lasted a week, and the respondent said that he became depressed very quickly, and was afflicted by osteoarthritis. His main difficulty was that he could not establish a relationship with the people with whom he worked;
i)The second position also only lasted a week and involved stores work, but the respondent said he was not challenged by it, and resigned;
j)The respondent gave evidence that in both positions he was tense and anxious and unable to concentrate;
k)The respondent has been accepted for 100% of the general rate of pension.
There was further evidence available to the Tribunal. In his letter, dated 17 June 2005 (AB14), the respondent said:
“When it came time to considering my own future options I decided that the only areas of expertise that I was qualified enough to pursue in the civilian field were Training Development Administration and Logistic/Warehouse Management, both were within my military employment specifications.”
In a further statement dated 30 June 2006 (AB 188) the respondent refers to using his Army-acquired stores management (logistic) skills in the civilian workforce. He gives a summary of his duties in the Army in the training and logistics field including spending a period in 1975-6 as quartermaster in PNG and in 1980-1 as Quartermaster (Logistics) in an army reserve unit. These were for a substantial period of time. As to the two jobs he obtained following his compulsory retirement from the Army he said:
“I applied for a position with Clarkson’s Cash & Carry” Warehouse out of sheer desperation and was quite surprised when I was offered the job. The job entailed manual work and minor stores accounting. My perception of the job responsibilities and the work environment seemed distorted and oppressive to the extent that job satisfaction was non existent and I found it impossible to establish any sort of rapport with other employees whose work ethic was unlike any I had ever come across or been used to. I was also unhappy right from the word go – due to the modern practice of playing – loud pop music all day long and this nearly drove me mad. I gave in my notice before a week was out, and was paid in cash for 5 days work.
Prior to the warehouse job (which was mid-1998) I also took up a job offer in a franchise of “Solomon’s Carpets” early in 1998. The owner was shortly “moving on” but job he offered would probably have remained with the new owners had I wished it. Regrettably this employment only lasted a week, due to the fact that I felt tense and anxious all the time and found it very difficult to concentrate and get interested in what I had to do. I was overwhelmed by the thought that I may have to accept this sort of job as a way of life from now on. I stayed for one week and gave in my notice on the Friday as I was leaving . . . I eventually received a cheque for my efforts. I had the vague impression with both ‘jobs’ that the people who had originally employed me were quite happy to see me go.”
In his evidence before the Tribunal, the respondent said (at T8) that his logistics work in the Army was mainly stores accounting, basically to maintain the records of account. He also maintained supervision of the quartermaster’s store. Although in the last 15 years of his service he was involved in high level training, he said that he did storeman work when he started in the Army (T23-4 and T28-9).
In Banovich v Repatriation Commission (1986) 69 ALR 395 at 402 (adopted in Van Heteren) the Full Federal Court accepted that the loss referred to in the statutory predecessor to s.24(1)(c) of the Act may be caused either by a loss of existing employment or by an inability to obtain new employment. Their Honours considered that the phrase “remunerative work which the respondent was undertaking” should be read as a reference to the type of work which the member previously undertook and not to any particular job.
In Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225-6 the Full Federal Court held that a veteran’s entitlement to a pension at the special rate might be based on his being prevented from continuing to undertake substantial remunerative work that he had undertaken in the past, even if that work was followed by work of a different type before the veteran ceased work altogether. In that case, the competing submissions were that the phrase meant (as contended by the veteran) the main or chosen, rather than the last, remunerative work undertaken by a veteran; or (as contended by the Department) that it meant the last remunerative work. Jenkinson J (at 226) was prepared to ignore a type of work which might be put out of consideration on the ground that it had been undertaken for only a very short period. Fox J, who delivered the leading judgment, said, at page 225 that the veteran is 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 Sheehy v Repatriation Commission (1996)137 ALR 223 the Full Federal Court cautioned against attempting to define a minimum period during which work of any kind must be performed for the purposes of undertaking remunerative work in s.24(1)(c) of the Act. This ameliorates the language used in Starcevich. However, in Repatriation Commission v Hendy (2002) 76 ALD 47 the Full Federal Court referred at [36] to “substantive remunerative work that the veteran had undertaken in the past”.
There was evidence available to the Tribunal that the respondent had undertaken stores work during his Army service, and that this was substantive work. In my view, the Tribunal considered the relevant test, and reached a conclusion that was open to it on the evidence. It is not sufficient for the appellant to show that the Tribunal’s conclusion was factually erroneous: Repatriation Commission v Hendy at [33].
In Repatriation Commission v Butcher [2006] FCA 811 Besanko J at [33] highlighted the importance of properly characterising the remunerative work that the veteran was undertaking, and was said to be unable to continue. At [37] his Honour applied to the term ‘remunerative work’ the description ‘the type of work the veteran was undertaking or his field of remunerative activity’. At paragraph [38] his Honour expanded on this and said the issue of characterisation required the decision maker to identify the ‘substantive remunerative work’ that the veteran had undertaken in the past. At [42] his Honour said:
“It seems to me that the determination of the type of work the veteran was undertaking, or his or her field of remunerative activity, involves a consideration of the veteran’s qualifications and the work which he or she has in fact undertaken in the past. On occasions, the decision will be a relatively straightforward one, where, for example, the veteran has specialised qualifications and has only ever worked in one field of employment. In other cases, of which this is one, the decision will involve a process of characterisation and it is not necessarily resolved by simply characterising the field of remunerative activity as involving all of the particular types of employment which the veteran has undertaken. Nor will it necessarily be appropriate to include in the field of remunerative activity a particular type of employment performed some time in the past for a short period of time.”
His Honour explained the rationale behind this process of characterisation at [43] as follows:
“The decision as to the characterisation of the type of remunerative work the veteran was undertaking is, like the decision as to causation, a decision which must be made with an eye to reality, and as a matter in respect of which common sense is the proper guide. An unduly narrow definition may result in veterans receiving the pension at the special rate in circumstances not contemplated by the legislature. An unduly wide definition may result in veterans being refused the pension at the special rate in circumstances in which, in reality, they are not working (and thereby not receiving wages) solely because of war-caused injuries or diseases. In other words, the danger in the case of an unduly wide definition is that a veteran will be denied the pension at the special rate in circumstances where, in reality, it is very unlikely that even without any injuries or diseases, the veteran would ever have undertaken a particular form of employment which happens to fall within the wide definition.”
Accordingly, Besanko J adopted a more general characterisation of the type of work, or field of remunerative activity, that the veteran was undertaking. In the present case, the Tribunal followed a similar path. It accepted that during his military service the respondent had acquired skills in logistics, which involved stores work. Although this work had occurred earlier in the respondent’s career, and he had advanced considerably in the military by the time of his retirement, there is nothing in the evidence before the Tribunal that suggests this part of the respondent’s work history should be ignored for the reasons advanced in Butcher, extracted at paragraph 30 of these reasons. Indeed the respondent’s military career revealed that much of his service was spent in the logistics area, albeit at a higher level than storeman, a position that the respondent said was assigned to a lower rank. This demonstrates that stores work was in the same field of endeavour as much of the respondent’s military service, albeit at the lowest rung on the ladder (or, to use the respondent’s language, the lowest in the pecking order), whereas by the time of his retirement the respondent had climbed many rungs of that ladder.
Although the respondent, at parts of his evidence, did say that he found the stores work demeaning, and said that it was nothing like he was used to, I think this was being said in comparison to the type of work he was doing most recently in his military career. I think it is being overly simplistic to say, as the appellant submitted, that in the military the respondent was a manager, and the work he attempted on his retirement was as a manual labourer. As the authorities make clear, it is not correct to focus on the most recent work of the veteran, but one can look to fields of endeavour that he has successfully undertaken in the past. As Besanko J said, in Butcher, the crux of the test is whether the veteran is now unable to carry out remunerative work that he has successfully performed in the past, because of his war-caused injury. Here, the respondent in the past has successfully performed the duties, inter alia, of a storeman, whilst in that section of the Army. He can no longer perform such duties because of his war-caused injury, particularly post traumatic stress disorder.
In my view, therefore, there was evidence that enabled the Tribunal to conclude that the type of work attempted by the respondent in the two jobs of very short duration was work of a kind that the respondent undertook previously in his military career. It was not necessary, in those circumstances, for the respondent to establish that he successfully undertook the work when he attempted to do so following his retirement from active service.
At paragraph [39] of its reasons, and in answer to question (2) posed in Flentjar, the Tribunal accepted that the respondent was prevented from continuing to undertake the work for which he regarded himself as being well qualified. It observed that “the main issue in this case” concerning that question is whether the respondent’s post traumatic stress disorder and general intolerance in interpersonal situations was of such a degree that prevents him form continuing to undertake “remunerative work that the veteran was undertaking”.
At paragraph [41] of its reasons, the Tribunal seems to have concluded that the respondent’s inability to pursue the employment in stores work was because of his personality. The Tribunal accepted that the respondent’s narrowness and intransigence had their origins largely in his post traumatic stress disorder condition, and it was this that prevented him from continuing to undertake relevant remunerative work.
These findings were plainly open on the evidence. As I understand the appellant’s submissions, and ground 3.5 of the Notice of Appeal, it is not gainsaid that the respondent cannot continue to carry out stores work because of his war-caused incapacity. Rather, the appellant’s submissions were that the respondent had not carried out this type of work during his military service, and had not effectively carried it out in the two short periods of employment that he had following his retirement.
As to question (3) posed in Flentjar, the Tribunal relied on Cavell v Repatriation Commission (1988) 9 AAR 534 at 539 to conclude that the overwhelming cause of the respondent’s inability to work was his war-caused injuries. There was no challenge to this finding.
As to question (4) posed in Flentjar, the Tribunal turned to s.24(2)(a) of the Act (as it was required to do in the second category of case identified by me at paragraph 14 of these reasons) and found that the respondent’s psychiatric disability was the principal cause of his inability to continue to engage in remunerative work. At paragraph [48] of its reasons, the Tribunal stated:
“The Tribunal finds that the other factual issues raised which resulted in the veteran’s inability to cope and satisfactorily integrate into the workforce since leaving the Army are integral with but subsidiary to the [respondent’s] psychiatric condition. Consequently, there are not other reasons referred to in section 24(2)(a)(i) which are relevant.”
No challenge was made to this finding. In relation to s.24(2)(a)(ii) of the Act the Tribunal accepted that the respondent’s psychiatric disability which has manifested in various personality and interpersonal characteristics, were the only factors which had been raised as being relevant in preventing the respondent’s employment.
The Tribunal did not consider s.24(2)(b) of the Act. It should have. That subsection deals with the situation where the veteran, despite attempts to do so, has not been successful in securing employment that he could undertake but for war-caused injuries. Whilst different language is used in s.24(1)(c) and s.24(2)(b) of the Act in that the former uses the phrase “undertake remunerative work” and the latter uses the phrase “engaged in remunerative work” in my view consistency should be given to the two provisions, so that in s.24(2)(b) of the Act the word “successfully” should be interposed before “engaged” as the authorities to which have referred have already determined that the same word should be interposed before “undertake” in s.24(1)(c) of the Act.
Having concluded that the respondent had not successfully undertaken remunerative work in the two short periods that he obtained work, the Tribunal necessarily concluded that the respondent had had been (successfully) engaged in remunerative work following his retirement from the Army. The respondent should therefore have satisfied the Tribunal that he had been genuinely seeking to engage in remunerative work.
The Tribunal did not address this, relevant, question. No attack was made on this absence of reasoning by the Tribunal. No ground of appeal was specifically directed to this omission. As the point was neither taken nor argued by the appellant, it would be unfair to the respondent to determine the appeal on that basis.
The grounds of appeal argued by the appellant are rejected. The appeal must, therefore be dismissed.
I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of Wilson FM
Associate: Lynnette Chin
Date: 29 January 2008
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