Repatriation Commission v Flentjar
[1997] FCA 371
•13 May 1997
CATCHWORDS
VETERAN’S AFFAIRS - eligibility to be paid pension at Special Rate - appeal from decision of Administrative Appeal Tribunal (‘the AAT’) - whether veteran satisfies s 24(1)(c) of the Veterans’ Entitlement Act 1986 (‘the Act’) - whether AAT failed to give proper, genuine and realistic consideration to whether veteran would have worked as a taxi-driver had he been free of war-caused incapacity - failure by AAT to consider prospect of working in the assessment period had the veteran been free of his war-caused incapacities - s 119 of the Act does not permit the AAT to disregard the statutory criteria for the grant of a pension at the Special Rate.
Veteran’s Entitlement Act 1986 s 24(1)(c), s 119
Thanh v Billings (1997) 142 ALR 158 applied
REPATRIATION COMMISSION v JOHN JOSEPH FLENTJAR
No VG 827 of 1995
SPENDER J
BRISBANE (heard in Melbourne)
13 MAY 1997
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY No VG 827 OF 1995
GENERAL DIVISION
BETWEEN:REPATRIATION COMMISSION
Applicant
AND:JOHN JOSEPH FLENTJAR
Respondent
CORAM: SPENDER J
PLACE: BRISBANE (heard in Melbourne)
DATE: 13 MAY 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The appeal be allowed and the decision of the Administrative Appeals Tribunal dated 20 September 1995 be set aside.
The matter be remitted to the Administrative Appeals Tribunal to be heard and decided in accordance with law.
There be no order as to costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY No VG 827 of 1995
GENERAL DIVISION
BETWEEN:REPATRIATION COMMISSION
Applicant
AND:JOHN JOSEPH FLENTJAR
Respondent
CORAM: SPENDER J
PLACE: BRISBANE (heard in Melbourne)
DATE: 13 MAY 1997
REASONS FOR JUDGMENT
This application by the Repatriation Commission (‘the Commission’) is an appeal pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) from part of a decision of the Administrative Appeals Tribunal (‘the AAT’) made on 20 September 1995. The AAT ordered that pursuant to s 24 of the Veterans’ Entitlements Act 1986 (‘the Act’), the respondent, John Joseph Flentjar (‘Mr Flentjar’), was eligible to be paid a pension at the Special Rate under s 24 of the Act from 15 September 1992.
By consent, the AAT also decided to set aside the decision of the Commission dated 28 April 1992 and it substituted the decision that adenocarcinoma of the colon was “war-caused” within the meaning in s 9 of the Act. In respect of that incapacity, the AAT found that the Commonwealth was liable to pay a pension in accordance with Division II of Part 2 of the Act from 15 September 1992.
This appeal is confined to the question of whether the decision to grant Mr Flentjar a pension at the Special Rate was affected by legal error. It was common ground before the AAT that Mr Flentjar satisfied paras 24(1)(a) and 24(1)(b) of the Act: his degree of incapacity had been determined under s 21A at 100% and his incapacity from war-caused injury and disease was sufficient to prevent him from undertaking remunerative work for more than 8 hours per week. The issue on the appeal therefore concerns solely the question of whether Mr Flentjar satisfied para 24(1)(c) of the Act.
The reasons for judgment of the AAT make reference to the provisions of s 24 of the Act as they were after amendments came into operation on 1 June 1994. That version is not the legislation which applies to Mr Flentjar’s application, although the differences are not presently relevant.
Section 24 of the Act, as it then was, relevantly provided as follows:
“ 24. (1) This section applies to a veteran if:
(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)...
(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
...”
Two grounds of appeal were advanced by the Commission:
(a) The AAT failed to consider and take into account a range of relevant matters when determining whether Mr Flentjar satisfied the requirements of para 24(1)(c) of the Act.
(b) the AAT concluded that Mr Flentjar satisfied the requirements of para 24(1)(c) of the Act from 15 September 1992, despite its finding that, until February 1994, Mr Flentjar was prevented from undertaking remunerative work by a factor other than his incapacity from war-caused injury or disease.
Implicit in the first ground is a complaint that the AAT failed to give proper, genuine and realistic consideration to the question posed by para 24(1)(c), namely, the answer to the hypothetical question whether Mr Flentjar would have worked as a taxi driver in the relevant period had he been free of war-caused incapacity.
Mr Flentjar was born on 4 September 1916. On 7 August 1991, the day when he claimed pension for adenocarcinoma of the colon, he was aged 74 years and 11 months. Mr Flentjar saw extensive service in the navy and his service included six years service during the second World War. He has a number of disabilities which are accepted as war-caused, including chronic bronchitis, anxiety state with irritable bowel, ischaemic heart disease and adenocarcinoma of the colon. He has several non-war-caused disabilities, including cervical and lumbar spondylosis.
Following his discharge from the Royal Australian Navy, Mr Flentjar worked as a signwriter. At some time between 1950 and 1959 Mr Flentjar purchased a licence to operate a taxi, which he himself drove. He worked as a taxi owner-driver from that time until about 1970 when his war-caused disability of irritable bowel prevented him from continuing to drive the taxi. The AAT said:
“ ...Mr Flentjar sold his taxi licence in about 1970 because of his bowel problems. When asked why he did not lease the licence instead, he stated that the licencing authority was concerned that there were insufficient taxis operating at that particular time and pressure was brought upon him to either get his taxi on the road or surrender his taxi licence. While this in itself would not have precluded him from leasing the taxi licence, Mr Flentjar said that the length of time that it would have taken him to do so was not acceptable to the licencing authority.”
He then worked for Courage Breweries and as a painter with the Tramways Board. It is likely that the AAT mistook the age of Mr Flentjar when he retired from that job. Mr Flentjar said he did not have to retire from that job until aged 65, but on medical advice he retired aged 62.
The AAT accepted medical evidence that Mr Flentjar’s non-accepted disabilities would not prevent him from being issued a taxi driver’s certificate in February 1994. Dr Stone’s evidence, which was accepted by the AAT, was that “but for his war-caused injuries alone, Mr Flentjar could drive a taxi on the basis of an eight hour shift”.
The uncontradicted evidence before the AAT was that Mr Flentjar sold his taxi owner’s licence in 1970, when he was aged 54, because bowel problems prevented him from driving. He said that the licensing authority would not allow him time to lease the licence to another operator. Further, Mr Flentjar would have been obliged to surrender any taxi driver’s certificate but not a taxi owner’s licence that he held, on reaching the age of 70, that is, in September 1986. It was also uncontradicted evidence that there was a change in policy by the Victorian taxi directorate in February 1994 so as to permit a person aged over 70 years to obtain a taxi driver’s certificate subject to medical fitness to drive.
In February 1994, Mr Flentjar was 77 years and 5 months old.
The AAT had to consider whether Mr Flentjar met the requirements of s 24 of the Act at some time during the assessment period, (that is, the period commencing on 7 August 1991), the application day, and concluding on the day the AAT made its decision, which was 20 September 1995. That, in turn, required the AAT to consider the issue of whether Mr Flentjar satisfied para 24(1)(c) of the Act. Paragraph 24(1)(c) poses a hypothetical question. The AAT was required to make an assessment of what Mr Flentjar probably would have done during the assessment period if he had none of his service disabilities.
In Repatriation Commission v Smith (1957) 15 FCR 327, Beaumont J said at 337:
“ As has been said, the question posed by s 24(1)(c) is one of hypothetical fact. The Tribunal must attempt an assessment of what the respondent probably would have done if he had none of his service disabilities.”
This observation was referred to by the AAT in its reasons for judgment.
In my opinion, however, the AAT failed to make that assessment. Its decision on a fair reading of the reasons for judgment, concluded that although in February 1994 Mr Flentjar was almost 77½ years of age, the medical evidence and Mr Flentjar’s evidence led it to conclude that he had the capacity at that time to be issued a taxi driving licence. There was no finding that, had Mr Flentjar none of his service disabilities he probably would have engaged in remunerative employment as a taxi owner-driver.
It is unclear from the AAT’s reasons whether “Mr Flentjar’s taxi business” was the business of a taxi owner-driver, whether it was the business of a lessor of a taxi licence, or whether it was the business of using the taxi licence by means of employed drivers. Having regard to the reasoning of the AAT it seems that it focused on the question of Mr Flentjar’s capacity to be a taxi owner-driver.
The AAT’s conclusion that from the medical point of view there was no bar to Mr Flentjar being issued with a taxi driver’s certificate does not, in my opinion, answer the question that it was obliged to answer, namely, absent his service disabilities, would Mr Flentjar on the probabilities have worked at some time during the assessment period as a taxi owner-driver.
In its reasons, the AAT referred to observations to be found in Cavell v Repatriation Commission (1988) 9 AAR 534; Starcevich v Repatriation Commission (1987) 76 ALR 449; and Repatriation Commission v Strickland (1990) 22 ALD 10, which bore on the task before it. It is relevant to refer to those observations:
“ In Cavell v Repatriation Commission (1988) 9 AAR 534, Burchett J said at page 539 that the true task of the Tribunal 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 on nice philosophical distinctions, but with an eye to reality, and as a matter in which common sense is the proper guide.’
In Starcevich v Repatriation Commission (1987) 76 ALR 449, Fox J said at pages 454 and 455 as follows:
‘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.’
In Repatriation Commission v Strickland (1990) 22 ALD 10 the Full Court of the Federal Court (Davies and Ryan JJ) at page 17 said as follows:
‘Age 65 was not an irrelevant matter. It is a common retiring age for employees and can be taken to reflect somewhat arbitrarily the community’s general understanding of the effect of age upon ability to undertake gainful employment. Thus, as the Tribunal said, 65 years is the age at which a male person qualifies for the grant of an age pension. It follows that, if nothing more were known of an applicant for a pension than that he was over the age of 65 years when the application was lodged, a tribunal would not be likely to be satisfied that the veteran was then suffering a loss of earnings by reason only of his war-caused incapacity. Of course, that is only a hypothetical case and, invariably, more is known about the matter than that, as it was in the present case. But the point is that a tribunal, especially a tribunal which deals with issues of this nature regularly, might reasonably proceed from the premise that applications for pension made after that age would fail, unless facts were disclosed which tended to the conclusion that the veteran would then still be continuing to undertake remunerative work, but for his war-caused incapacity.’ “
The crucial findings of the Tribunal are here set out:
“ Applying Starcevich, it is our view that Mr Flentjar’s taxi business may properly be treated as the relevant remunerative work for the purposes of section 24(1)(c). We are of the further view that the reason he sold his taxi licence in about 1970 was because he was incapacitated within the terms of section 24(1)(b) of the Act. We acknowledge that in February 1994, Mr Flentjar was almost 77½ years of age. However while over the assessment period he has suffered from several disabilities that are not war-caused, the evidence of Dr Stone was clearly that, notwithstanding Mr Flentjar’s age, none of these would act as a bar to the issuing of a taxi driving licence to him. After giving careful consideration to Mr Flentjar’s evidence and other material relevant to his non war-caused disabilities, we accept the evidence of Dr Stone.
During the hearing it was submitted by Mr Rudge that because Mr Flentjar elected to sell his licence, rather than to lease it to another person, meant that the ‘alone’ qualification in section 24(1)(c) was not met. We do not agree with that proposition. It is clear from Mr Flentjar’s evidence, which has not been contradicted, that while given sufficient time the leasing of his licence would have been an option, he elected instead to sell the licence and that he did so because of incapacity from his war-caused disabilities, alone.
Mr Flentjar gave evidence that through being prevented from continuing to operate his taxi he is suffering a loss of earnings that he would not be suffering if he was free of incapacity from his war-caused disabilities alone. Although taxation returns over the relevant period are apparently no longer in existence we accept Mr Flentjar’s evidence and find accordingly.
...
The Tribunal will...decide that Mr Flentjar is incapacitated from that disease and that, pursuant to s 24 of the Act he is eligible for payment of pension at the Special Rate with effect from 15 September 1992.”
In Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1, Sheppard J referred at 13 to the observation of Gummow J in Khan v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 11 December 1987 ), where Gummow J noted that in the context of a review under the Administrative Decisions (Judicial Review) Act 1977 (‘the ADJR Act’), a decision-maker was required to give “proper, genuine and realistic consideration upon the merits [of the case]”. Sheppard J also referred to the observations of Wilcox J in Brelin v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Wilcox J, 14 May 1987) where his Honour said that the question was whether the application had received “proper and adequate consideration.”
In my opinion the AAT failed to consider the prospect of Mr Flentjar working as a taxi driver in the assessment period if he had been free of his war-caused incapacities, as opposed to whether he had the capacity to work as a taxi driver from a medical viewpoint during that period. The former question, which is what the AAT is obliged to consider, would involve considerations of what opportunities there were for taxi drivers between February 1994 and September 1995. The impact of Mr Flentjar’s age on his obtaining such employment and the effect which thirteen years’ absence from the workforce and at least 21 years’ absence from the taxi business would have had all those prospects.
If the prospective employment was not only as a taxi driver but as taxi owner-driver, it would, in addition, have had to have been an assessment of either the financial capacity of Mr Flentjar to re-enter the industry as a taxi licence owner, or a consideration of what Mr Flentjar would have done when he turned 70 years if he had not sold his taxi licence in 1970.
Mr Flentjar’s age prevented him working as a taxi driver between the application day and February 1994. The evidence shows that medically, he had a capacity to have a taxi driver’s licence after February 1994. The AAT did not consider whether it was likely that he would have engaged in remunerative employment as a taxi driver after February 1974.
Having regard to all the circumstances, including the fact that he would, at that time, be aged more than 77 years, (a time when almost all workers have retired from remunerative employment), there is nothing in the reasons of the decision to lend any support for a conclusion that the circumstances of Mr Flentjar were so remarkable that he would, but for his war-caused disabilities, be engaged in remunerative work, unlike almost everybody else in the community. The same may be said concerning Mr Flentjar during the whole of the assessment period..
For the above reasons, I am satisfied that the AAT erred in law in reaching its conclusion that Mr Flentjar was entitled to payment of pension at the Special Rate with effect from 15 September 1992.
It was suggested by Mr De Marchi, who appeared for Mr Flentjar, that s 119 of the Act, which directs that the Commission is not bound by any technicalities and is required to act according to substantial justice and the substantial merits of the case without regard to legal form and legal technicalities, required a benevolent view of whether the requirements of s 24(1)(c) of the Act were met.
In Thanh v Billings (1997) 142 ALR 158, Drummond J was considering s 420 of the Migration Act 1958 which required the Refugee Review Tribunal to comply with the rules of natural justice. His Honour said at 164:
“ There is authority that the obligation cast by s 420(2)(b) on the tribunal to act, in reviewing a decision, according to substantial justice and the merits of the case, does not entitle the tribunal, in the exercise of the decision-making power conferred on it by s 415(1), to grant a visa to an applicant who is unable to satisfy the relevant statutory criteria: see Kumar v Immigration Review Tribunal (1992) 36 FCR 544. Fisher J reached a similar conclusion as to the significance of a provision to the same effect in s 107VG of the Repatriation Act 1920 (Cth) in Collins v Repatriation Commission (1980) 32 ALR 581; 48 FLR 198. That s 420(2)(b) has this operation is, I think, made clear by s 415(4), which prohibits the tribunal from making a decision that is not authorised by the Act or the regulations. Section 420(2)(b) is thus directed to procedural, not substantive, matters. In Collins, Fisher J commented, at FLR 210, that the view of Evatt J, in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228, was that a statutory injunction to an administrative tribunal to act according to substantial justice and the merits of the case required the tribunal to comply with the principles of natural justice. While not attempting to identify precisely what was required by such a statutory direction to an administrative decision-maker, Lee J, in Courtney v Peters (1990) 27 FCR 404 at 411; 98 ALR 645, said that: ‘It is arguable that it requires at least that the standards of procedural fairness be met. Certainly it could not be said to be expressly excluding those requirements.’
Once it is accepted, as I think it must be, that, in the context of s 420 of the Migration Act, the obligation imposed on the tribunal to act in reviewing decisions in accordance with substantial justice and the merits of the case does not permit the tribunal to disregard the statutory criteria governing the grant of visas, it is difficult to see how that statutory requirement can involve anything other than an obligation governing the kind of procedure the tribunal must follow in applying the statutory criteria in the course of reviewing the decision.”
Section 119 of the Act does not permit the AAT to disregard the statutory criteria for the grant of a pension at the Special Rate.
The applicant’s appeal is allowed and the decision of the AAT dated 20 September 1995 is set aside. The case is remitted to the AAT to be heard and decided in accordance with law.
The Commission sought no order for costs in the event that it be successful. Thus no order will be made as to costs.
I certify that this and the preceding eleven (11) pages are a true copy of the reasons for judgment herein of the Honourable Justice Spender.
Associate
Date: 13 May 1997
Appearances: Mr P Hanks (instructed by the Australian Government Solicitor) appeared for the applicant.
Mr D De Marchi (instructed by De Marchi & Associates) appeared for the respondent.
Date of hearing: 30 April 1997
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