Repatriation Commission v Fox, William Henry
[1997] FCA 737
•8 August 1997
FEDERAL COURT OF AUSTRALIA
VETERANS’ AFFAIRS - appeal from decision of Administrative Appeals Tribunal (“AAT”) that respondent entitled to a special rate of pension - whether error of law - whether the respondent’s war-caused injuries alone prevented him from undertaking remunerative work - where respondent 68 years of age at date of application - whether AAT failed to take into account relevant considerations - whether evidence justified decision.
Veterans’ Entitlements Act 1986 (Cth), ss 24(1), 120(4)
Repatriation Commission v Brand (1991) 23 ALD 591, cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, cited
Cavell v Repatriation Commission (1988) 9 AAR 534, cited
Starcevich v Repatriation Commission (1987) 18 FCR 221, cited
Repatriation Commission v Strickland (1990) 22 ALD 10, cited
Jackman v Repatriation Commission (unreported, 30 June 1997), distinguished
REPATRIATION COMMISSION v WILLIAM HENRY FOX
NO NG 878 of 1996
TAMBERLIN J
SYDNEY
8 AUGUST 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 878 of 1996 ) GENERAL DIVISION )
ON APPEAL FROM THE VETERAN’S APPEALS DIVISION OF THE
ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY
MS G ETTINGER (SENIOR MEMBER) and
BRIGADIER J A HOOPER (MEMBER)
BETWEEN: REPATRIATION COMMISSION
ApplicantAND: WILLIAM HENRY FOX
Respondent
JUDGE: TAMBERLIN J PLACE: SYDNEY DATED: 8 AUGUST 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application be dismissed with costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 878 of 1996 ) GENERAL DIVISION )
ON APPEAL FROM THE VETERAN’S APPEALS DIVISION OF THE
ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY
MS G ETTINGER (SENIOR MEMBER) and
BRIGADIER J A HOOPER (MEMBER)
BETWEEN: REPATRIATION COMMISSION
ApplicantAND: WILLIAM HENRY FOX
Respondent
JUDGE: TAMBERLIN J PLACE: SYDNEY DATED: 8 AUGUST 1997
REASONS FOR JUDGMENT
Mr Fox was born in December 1923. He left school at 15 years of age and worked as a clerk for two years. He joined the Australian Imperial Force on his eighteenth birthday, initially serving in an Infantry Battalion. He then volunteered for the Commandos. He remained with 2/12 Commando Squadron until his discharge in 1946, seeing service in Borneo. At the relevant date, which is the date of application for the special rate of pension under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), Mr Fox was 68 years of age.
Mr Fox suffers from war-caused hypertension, anxiety and back problems. He says that by reason of his incapacity from war-caused injuries he is prevented from undertaking remunerative work that he had previously undertaken. Therefore, he has suffered a loss of income that he would not be suffering if he were not subject to the injuries. He says that, as at the application date in 1991, war-caused injury was the only matter which prevented him from continuing to undertake substantive remunerative work in the concrete business.
The above claims are disputed by the Commission. The Commission says there was evidence that other significant matters probably contributed to his inability to undertake remunerative work and that these matters were ignored. These included, for example, the importance of the fact that he was 68 years of age; the physical difficulties in carrying out work as a concreter; the time he had been out of the work force; the “insubstantial” period of his self-employment as a concreter; and the apparent lack of financial success which resulted from his period of self-employment during 1971 through to 1974.
Statutory Framework
The relevant provisions are found in the Act as it stood at the time of Mr Fox’s application in 1991. The central provision is s 24(1) which provides:
“24. (1) This section applies to a veteran, other than a veteran to whom section 25 applies, 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.” (Emphasis added)
The standard of proof required is set out in s 120(4) of the Act which provides:
“s 120
.....
(4).... the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations .... decide the matter to its reasonable satisfaction.” (Emphasis added)
Background
This appeal is from a decision of the Administrative Appeals Tribunal (“the AAT”) on an application by Mr Fox for an increase in his pension. The AAT decision was given on 19 October 1996. It set aside a decision of the Veterans’ Review Board of 26 September 1995, finding that Mr Fox was eligible for a special rate of pension on and from 14 April 1992.
After discharge from the Army in 1946 Mr Fox returned to clerical work, but having been involved in outdoor work he did not find that satisfactory. He sought work at the Pioneer Concrete Company and rose to be manager of its first concrete depot in about 1952. He later joined Dee Why Ready-Mix in about 1956 and described the work in both places as “pretty fast - lots of work”. After five or six years he was asked to set up a depot at Thornleigh and then again at Hornsby in the mid-sixties. These were also “fast operations”, where the manager was required to make and receive telephone calls, arrange dispatches and carry out all aspects of the work, even to the extent of shovelling sand.
Mr Fox ran successful depots and liked working in the concrete industry. However, after a take-over of the company and having to deal with new and younger people reorganising the company he found things difficult to cope with. As a result he felt stressed and resigned in 1971. He said that he had observed younger contractors working and considered that he would like to try concreting on his own account, so he started his own business. He undertook small concreting jobs such as “little front paths and little decks”. He would spread the concrete and then level it off. He said he had anticipated being successful because he would be in charge and had good contacts in the industry.
The results of the business did not live up to his expectations. He said that it would have been lucrative if he had been able to devote sufficient time to it. But, his war-caused back injury prevented him from working full time at the business. He said that his back “seized up” and that he eventually had to close the business in 1975. He emphasised he was not under stress in this business and it was because of his back that he left it.
As to his financial position, Mr Fox said that he did not have superannuation and would have continued in the business but for his back problems. He had married and had his wife and three sons to support. He saw the concrete industry as his chosen occupation. However, as he could not continue he found a handyman/courier position at the National Standards Commission in 1975, where he stayed until 1987. He found this change of employment “down-grading and humiliating”. He said that he had wanted to stay on after age 65 but left because “... once again these problems that I have experienced got at me and I just couldn’t stand the pace any more.”
His superannuation payout of $13,000 was invested with advice from stockbrokers. He said that his financial circumstances were such that he was not in a position to retire having to support a family with a superannuation payout of $13,000 after working for 30 years. The exact means and resources of Mr and Mrs Fox are not clear. It is said that Mr Fox and his wife had a house and other assets and income, it also appears that Mrs Fox inherited some money. Reference was made to a caravan which was purchased in 1986 and used by Mr Fox on holidays. However, I am satisfied that the material indicates that his financial resources were quite modest. He was accepted by the AAT as a witness of truth. There is no reason to doubt that the prospect of working on a small domestic scale as a concreter would have been financially attractive to him.
Alleged Error of Law by the AAT
The errors of law alleged are in substance said to be contained in the penultimate paragraph of the AAT decision which reads:
“57. In summary, the Tribunal was on the balance of probabilities reasonably satisfied that Mr Fox was forced out of his lifelong career by disabilities that took years to be accepted as war-caused. Taking into account all the evidence regarding Mr Fox’s intentions and his financial situation, the Tribunal is reasonably satisfied within the terms of section 120(4) of the Act that but for his war-caused disabilities of anxiety state and back condition alone (section 24(1)(b) and (c) of the Act), the Applicant would have been working in his chosen profession of concreting in his own small business at the date of his application for pension, that is at the age of 68 years. He therefore not only satisfies the requirements of sections 24(1)(a) and (b) but also section 24(1)(c). As to section 24(1)(a) of the Act, based on Dr Baz’ findings, General Rate of pension is assessed at 80% on and from 14 April 1992.” (Emphasis added)
Specifically, the errors of law are said to be that the AAT:
· only took into account evidence regarding the respondent’s intentions and his financial situation;
· did not take into account the importance of the fact that he was 68 years of age at the relevant date;
· did not take into account that work as a concreter was heavy and difficult and would be too arduous for Mr Fox;
· did not take into account evidence that it was very rare to find a person over the age of 65 years engaged in concreting;
· did not take into account that 16 or 17 years had elapsed from the time he ceased work as a concreter on his own account;
· was wrong in considering that the brief period of work as a self-employed contactor was sufficiently substantial remunerative work when considered against the background of a 42 year working career;
· was wrong in determining that the war-caused injuries alone prevented Mr Fox from undertaking remunerative work;
· made findings in respect of which there was no evidence to justify making the decision.
Case Law
The relevant date for determination of the question posed by s 24(1)(c) is the date of the application: Repatriation Commission v Braund (1991) 23 ALD 591.
At the outset, it is necessary to bear in mind the observations of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 that:
“... the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”
More immediately pertinent to the approach which ought to be taken in relation to s 24 of the Act, which is under consideration in the present case, are the observations of Burchett J in Cavell v RepatriationCommission (1988) 9 AAR 534 at 539 that the task of the AAT is:
“ .... 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.”
The alone test requires that the applicant must have suffered substantial loss of remuneration solely as the result of the war-caused incapacity or disease: Starcevich vRepatriation Commission (1987) 18 FCR 221 at 225 per Fox J.
The Full Court in Starcevich held that entitlement to a pension may be based on the veteran being prevented from continuing to undertake substantial remunerative work that he had undertaken in the past, even if that is followed by work of a different type before the veteran ceased work altogether.
This means, in the present case, that although the work undertaken by Mr Fox as a self-employed concreter occurred in the period 1971 to 1974, it was relevant in deciding eligibility under s 24. The claimant is not limited to reliance on the line of work last undertaken prior to leaving the work force. It is interesting to note, in passing, that Mr Starcevich was 68 years of age at the time of his application, although of course age was not an issue in that case.
It is apparent on the face of the AAT reasons that the relevant principles and authorities were adverted to by the AAT. These include a specific quotation from the Full Federal Court decision in Repatriation v Strickland (1990) 22 ALD 10, where it was said at 17:
“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 the 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.”
These remarks show that the question of age and its significance was squarely raised before the AAT. Of course, the proposition as stated above can have no universal application because in every such case involving a person over the age of 65 years, other matters will be known. Age is not to be considered in a vacuum. Every applicant will have different financial needs or resources; health and vitality; motivation; experience; and skills, training and education which will bear on the question.
This point was made by their Honours, Davies and Ryan JJ in Strickland, when discussing the significance of an applicant being over 65 years of age:
“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.
Of course, age 65 is not an age which is directly applicable to a person who is running his own business or who controls the affairs of a company which conducts the business in which he is engaged.” (22 ALD at 17)
In the present case there are other considerations, in addition to the age of Mr Fox, which are relevant. These are his modest financial means and resources; his motivation; experience; skills, and training. Each of these matters will bear on the issue. Whilst age is important, it is always open, if the AAT considers that the circumstances so warrant, to determine that a particular applicant would have engaged in substantial remunerative work but for the war-caused injuries alone.
Paragraph 57
I now turn to a consideration of par 57 and the paragraphs leading up to it in which the errors of law are said to reside.
The following observations can be made about that paragraph. First, it appears in that part of the reasons under the heading “Submissions and Conclusions”. Second, it purports to be a summary. No doubt this is intended to mean a summary of the preceding thirty-three paragraphs under the heading “Submissions and Conclusion”.
Those paragraphs include references to Mr Fox being 68 years old when the application was made on 5 November 1991. The AAT states that this was a factor to be considered. Reference is then made to the age of the applicant at the time of his medical examination, namely 70 years. The reasons advert to the decision in Strickland (supra). Specific reference is then again made to the importance of age. The reasons refer to a submission to the effect that Mr Fox gave evidence that he would not have continued working at 71 years. That is to say, three years after the relevant date. In relation to this submission the AAT considered that the statement of Mr Fox had been taken out of context and therefore should not be given the weight attributed to it on behalf of the Commission. There is further reference to the evidence of Dr Baz and Dr Burns to the effect that there were some people who were self-employed in industry beyond the age of 65 but that this was rare. Reference is also made to the “small business” of concreting between 1971 to 1975.
The AAT refers to the $13,000 superannuation and considers, in a broad and general way, the financial position of Mr and Mrs Fox. The AAT accepted the evidence that Mr Fox’s back problems had prevented him from pursuing his self-employed business as a concreter in such a way as to make it a profitable venture. It referred to evidence that this led to him quitting that business in 1975.
In par 57 itself, the AAT specifically refers to the age of Mr Fox as being 68 at the relevant time. The paragraph refers to working in concreting in his small business. It seems unlikely that the AAT would have closed its mind to the physical demands of this work. Moreover, it is evident from the reasons that the concreting work referred to was modest in scale and involved taking on small domestic concreting jobs such as paths, terraces and such like. Leaving aside the war-caused injury, in my view, it was open to the AAT, on the evidence, to find that a man of 68 years, otherwise healthy, would be physically capable of undertaking a small concrete business. After all, that is only three years after the normal retiring age for males in this country.
In summary, on a fair reading of par 57, considered in context, it is not correct to suggest that the AAT only had regard to Mr Fox’s intentions and financial situation and excluded proper consideration of the matters discussed above, such as age; time out of the work force; nature of the work, and the like.
There was ample material on which the AAT could come to the conclusion which it reached. It does not appear to me that the AAT failed to take into account the views of the medical experts or give proper weight to those considerations.
The circumstances of this case are readily distinguishable from my earlier decision in Jackman v Repatriation Commission (unreported, 30 June 1997). In that case the applicant would have been 71 years of age at the relevant date and he had evinced a firm intention to retire to the Central Coast and to be near his children. These circumstances were of central importance to the decision of the AAT in that case.
Accordingly, my conclusion is that the Commission has not shown any error of law in the reasons for decision of the AAT. I therefore dismiss the application with costs.
I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin
Associate:
Dated: 8 August 1997
Counsel for the Applicant: Ms E A Wilkins Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr M Vincent Solicitor for the Respondent: Legal Aid Commission of New South Wales Date of Hearing: 16 July 1997 Date of Judgment: 8 August 1997
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