Repatriation Commission v Sheehy
[1995] FCA 999
•7 DECEMBER 1995
CATCHWORDS
DEFENCE AND WAR - Veterans' entitlements - Disability pension - Eligibility for Special (Totally and Permanently Incapacitated) Rate - Whether the veteran was "prevented from continuing to undertake remunerative work which the veteran was undertaking" - Work for a short period, in a new field, undertaken after the age of 65 - the work must be of a kind that the veteran was able to perform during working life.
ADMINISTRATIVE APPEALS TRIBUNAL - Error of law - Failure to give adequate reasons.
Administrative Appeals Tribunal Act 1975 (Cth), ss 44, 43(2B)
Veterans' Entitlements Act 1986 (Cth), s 24(1)(c), (2)
Starcevich v Repatriation Commission (1987) 18 FCR 221
Banovich v Repatriation Commission (1986) 69 ALR 395
Birtles v Repatriation Commission (1991) 33 FCR 290
Telescourt v Commonwealth (1991) 29 FCR 227
McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609.
REPATRIATION COMMISSION v MICHAEL BRIAN SHEEHY
NG 352 of 1995
Sackville J.
Sydney
7 December, 1995
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 352 of 1995
GENERAL DIVISION )
ON APPEAL FROM THE VETERANS' APPEALS DIVISION OF THE
ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
REPATRIATION COMMISSION
Applicant
AND:
MICHAEL BRIAN SHEEHY
Respondent
Coram: Sackville J.
Place: Sydney
Date: 7 December, 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
The decision of the Administrative Appeals Tribunal, made on 21 April 1995, be set aside.
These proceedings be remitted to the Administrative Appeals Tribunal to be determined according to law.
The respondent pay the applicant's 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 ) No. NG 352 of 1995
GENERAL DIVISION )
ON APPEAL FROM THE VETERANS' APPEALS DIVISION OF THE
ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
REPATRIATION COMMISSION
Applicant
AND:
MICHAEL BRIAN SHEEHY
Respondent
Coram: Sackville J.
Place: Sydney
Date: 7 December, 1995
REASONS FOR JUDGMENT
The Proceedings
This is an appeal by the Repatriation Commission ("the Commission"), pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975 (the "AAT Act"), against a decision of the Veterans Appeals Division of the Administrative Appeals Tribunal (the "AAT"), given on 21 April 1995. Among other issues determined by the AAT, it decided that the present respondent ("the veteran") was entitled to payment of pension at the Special (Totally and Permanently Incapacitated) Rate, pursuant to s.24 of the Veterans' Entitlements Act 1986 (Cth) (the "Veterans' Act"), with effect from 14 September 1992. The Commission contends that the AAT failed to give adequate reasons or, alternatively, erred in its construction of
s.24(1)(c) of the Veterans' Act.
The Legislation
The parties agreed that the legislation governing the veteran's claims was the Veterans' Act as it stood at the time the veteran lodged his claim for a pension, namely, 14 December 1992. References are to the legislation in that form.
Section 19(1)(a) of the Act requires the Commission to determine the claim on the basis of all matters it considers relevant to the claim. The Commission is to assess, in accordance with the relevant section (s.24 in this case), the rate or rates at which the pension would have been payable during the "assessment period": s.19(5)(a). The assessment period is the period starting on the "application day" (in this case, 14 December 1992) and ending when the claim is determined (in this case, 21 April 1995, the day of the AAT's decision): s.19(9). The Commission is also to assess the rate at which the pension is payable from the date of the determination: s.19(5)(b). Under s.19(6) the rate of pension payable from the date of the determination is not to be lower than the rate provided by s.24 during the assessment period. The effect of s.19(6), as the parties agreed, is that the claim of the veteran in the present case is to be assessed as at 14 December 1992.
Section 24 of the Veterans' Act provides for a special rate of pension for a veteran who satisfies the criteria laid down in each of s.24(1)(a),(b) and (c). There is no dispute that the veteran satisfied the criteria in s.24(1)(a) and (b). The degree of his incapacity from war-caused injury or disease has been determined to be at least 70%, thereby satisfying s.24(1)(a)(i). The Commission also accepts that the veteran is totally and permanently incapacitated: that is, that the veteran's incapacity from war-caused injury or disease is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than eight hours per week within the meaning of s.24(1)(b). The third criterion, about which the parties are in dispute, is contained in s.24(1)(c) of the Veteran's Act:
"(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."
Section 24(2) provides that, for the purposes of s.24(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 phrase "remunerative work" includes "any remunerative activity": s.5Q.
The Facts
The veteran was born on 18 June 1917, and was aged 75 at the application date (14 December 1992). He was educated to primary school level and worked on a farm until he joined the RAAF in 1940, at the age of 22. The veteran was trained as a fitter while serving with the RAAF.
The veteran served in the RAAF from 1940 until February 1970. His period of service included operational service in World War II, Korea and Malaysia. In March 1970 he was certified as a fitter under the Tradesmen's Rights Regulations Act 1956 (Cth).
Following his discharge from the RAAF, the veteran received a Defence Forces pension. In 1970 he commenced work as a fitter with the State Dockyards at Newcastle. From about 1977 he carried out relatively light work on a drilling machine. Although he could have retired from his employment in 1977, at age 60, he chose to continue to work until he reached the compulsory retiring age of 65 in 1982. When he left the Dockyards the veteran received a small lump sum superannuation payment. He also applied for and received a service pension.
Within a month of leaving the Dockyards, the veteran obtained work as a storeman with Hawker Noyes Pty Ltd ("Hawker Noyes") in Newcastle. This position was obtained through Mr Brice, a friend of the veteran, who at the time was the manager of the Metals Division of Hawker Noyes. Mr Brice was aware that the veteran had back problems. As the AAT found, the veteran worked in this position for about a week, but left because the work was too heavy.
Later in 1982, the veteran sought and obtained work with Nylex Corporation Ltd as a casual storeman clerk. In evidence he described this work as "lighter" than that at Hawker Noyes, but as still involving lifting. Nonetheless, as he said, it was more than he could manage and the job lasted for only "roughly two weeks". A letter from the Northern Regional Manager of Nylex Corporation Ltd, written in 1994, stated that the veteran was unable to fulfil his duties of loading and unloading consignments because of a previously injured back, and for that reason his employment was terminated.
Thereafter, the veteran did not seek any further employment. As he said in evidence, he appreciated that he could not physically carry out what was required.
In December 1992, ten years after his last employment, the veteran lodged a claim for a disability pension. He claimed that he suffered from spondylosis, hearing loss, alcohol abuse and solar keratoses, all of which he attributed to his war service.
On 25 June 1993, the Commission accepted the veteran's claim in respect of bilateral sensori-neutral deafness as war-caused within the meaning of the Veterans Act. It assessed pension at 20% of the General Rate. The Commission refused the other claims made by the veteran. Subsequently the veteran applied to the Veterans Review Board for a review of the Commission's decision. The Board affirmed the Commission's decision and, on 31 March 1994, the veteran applied to the AAT for review of the Board's decision.
The AAT's Decision
When the matter came before the AAT for hearing, the Commission conceded that the ankylosing spondylosis and solar keratoses were war-caused. The Commission accepted that pension was payable at 70% of the General Rate from 14 September 1992 (three months prior to the application date). The Commission also conceded that, as at the application date, the veteran satisfied the provisions of s.24(1)(a) and (b) of the Veterans' Act and that there was no new war-caused medical condition preventing him from working.
The AAT's reasons record the veteran's submission that, but for his back condition, he would have continued in the work provided by Mr Brice for a lengthy period of time, even up to the date of the hearing. The veteran further submitted that the Veterans' Act does not require a person to seek work continually, once it is apparent that he or she cannot perform work.
The AAT's reasons also record the submissions made by the Commission. The Commission disputed that the veteran would have continued to work with Mr Brice, but for his war-caused disabilities. It also "questioned" whether three weeks work as a storeman was "substantial work" within the meaning of Starcevich v Repatriation Commission (1987) 18 FCR 221 (FCA/FC), a case which construed s.24(1)(c) of the Veterans' Act.
The AAT found that the veteran was a truthful witness and that he was motivated to continue work beyond the age of 65 years. The substance of the AAT's reasoning on the veteran's claim was contained in the following paragraphs:
"19.The Tribunal finds on the evidence that prior to the Applicant's retirement he was not fit to undertake the full duties as a fitter because of his back condition, and from about the age of 60 years he was doing light work. We find that at the time of his retirement he was unfit to work as a fitter, and his motivation to continue to work was such that he sought alternative work as a storeman, which we find he was unable to perform because of his back condition. We also find that except for his back condition on the balance of probabilities the applicant would have been employed as a storeman by Mr Brice at the application date.
20.Although the Applicant has been in receipt of DFRDB pension since 1970 this did not affect his motivation to work at the Newcastle dockyard until the compulsory retirement age of 65, even though he would have been entitled to part Service Pension at the age of 60 years. His receipt of DFRDB pension also did not interfere with his attempts to obtain work as a storeman.
21.The Veteran is, by reason of his war-caused disabilities alone, prevented from continuing to undertake remunerative work that he would have been undertaking and is, by reason thereof, suffering a loss of earnings that he would not have been suffering but for his war-caused disabilities."
The Issues
Miss Henderson, who appeared for the Commission, contended that the AAT had erred in three respects:
lthe AAT had failed to make any finding or give any reasons supporting a conclusion that the veteran had undertaken remunerative work, within the meaning of s.24(1)(c) of the Veterans' Act and had therefore failed to comply with its statutory obligation to make findings on material questions of fact (AAT Act, s.43(2B)); alternatively, the AAT had failed to apply the correct construction of s.24(1)(c) in making its findings;
lthere was no evidence to support the AAT's finding that,
on the balance of probabilities, the veteran "would have been employed as a storeman by Mr Brice" at the application date; and
lin determining that the veteran was prevented from continuing to undertake remunerative work by reason of war-caused incapacity alone, the AAT had failed to take account of the veteran's age (75) at the application date and thus had failed to take into account a relevant consideration.
Mr Smith, who appeared for the veteran, argued that the AAT had implicitly found that the veteran had undertaken remunerative work and had sufficiently given reasons by reciting the facts on which its implicit finding was based. He contended that the finding challenged by Ms Henderson was supported by some evidence which, although "skimpy", was sufficient to prevent a no evidence submission succeeding. Finally, Mr Smith argued that the AAT was clearly aware of the veteran's age and, as its discussion of his motivation demonstrated, had taken his age into account in reaching its conclusion.
The Legislative Scheme
In order to qualify for the special rate of pension under s.24(1), the veteran must satisfy the requirements specified in s.24(1)(a), (b) and (c). As I have noted, there is no dispute that the veteran in the present case satisfied the criteria specified in s.24(1)(a) and (b).
As Fox J. said in Starcevich v Repatriation Commission, at 224, s.24(1)(c) requires the veteran to satisfy three further criteria:
"(i)the veteran [must be] prevented from continuing to undertake remunerative work that he was undertaking;
(ii)condition (i) above [must be] by reason alone of the incapacity, from war-caused injury or war-caused disease (to which s.24(1)(b) relates);
(iii)by reason of condition (i) above, the veteran [suffers] a loss of salary or wages or earnings on his or her own account."
Jenkinson J. agreed with this statement (at 227). In my view, the first of these three criteria can be further divided into two: first, that the veteran was undertaking remunerative work and, secondly, that he or she has been prevented from continuing to undertake that remunerative work.
Section 24(1)(c) has been said to impose a requirement that the veteran demonstrate "economic loss": Banovich v Repatriation Commission (1986) 69 ALR 395 (FCA/FC), at 400. While this is accurate enough as a general description, the criteria in s.24(1)(c) are not necessarily the same, for example, as the principles applied by a court in assessing damages for economic loss in a personal injury case. The fact that a veteran has suffered economic loss by reason of a war-caused incapacity does not necessarily mean that he or she
satisfies s.24(1)(c). For example, it is not enough for a veteran over the age of 65, who has never been engaged in a particular kind of remunerative work, to show that, but for the incapacity, he or she would have obtained that kind of remunerative work. An illustration is a veteran over the age of 65, who has never worked as a farmer because of war-related injury. That veteran could not successfully claim to come within s.24(1)(c) merely by showing that, but for the injury, he or she would have taken up employment as a farmer for the first time at age 66.
If, however, the veteran is under the age of 65, the fact that he or she has not engaged in a particular kind of remunerative work does not necessarily prevent that veteran from satisfying s.24(1)(c). Section 24(2)(b) specifies three criteria applicable to a veteran under the age of 65:
that the veteran has been genuinely seeking to engage in remunerative work;
that the veteran, but for the incapacity, would be continuing to seek to engage in remunerative work; and
that the incapacity is the "substantial cause" of the veteran's inability to obtain remunerative work in which to engage.
The distinction drawn by the legislation between veterans over the age of 65 and those under that age reflects objectives stated in the Acting Minister's Second Reading Speech, when introducing the Repatriation Legislation Amendment Bill 1985 (Cth). That Bill introduced a new paragraph (b) into what was then Schedule 2 to the Repatriation Act 1920 (Cth). The new paragraph included provisions equivalent to the present s.24(1) and (2) of the Veterans' Act. (The earlier provisions and the Second Reading Speech are extracted in Banovich v Repatriation Commission, at 399-400, 404-405. The Second Reading Speech is also extracted in Starcevich v Repatriation Commission, at 224-225. See also Chambers v Repatriation Commission (1995) 55 FCR 9 (FCA/FC), at 14-15, per Moore and Sackville JJ.). The Minister's speech included the following:
"Since 1920, there has been a special rate of disability pension payable in circumstances where, because of total and permanent incapacity resulting from war service, a veteran has been unable to resume or to continue in civil employment. The special or TPI rate pension was designed for severely disabled veterans of a relatively young age who could never go back to work and could never hope to support themselves or their families or put away money for their old age. It was never intended that the TPI rate would become payable to a veteran who, having enjoyed a full working life after war service, then retires from work possibly with whatever superannuation or other retirement benefits are available to the Australian work force.
Determining authorities have found the application of the present legislative provisions difficult because the provisions, unchanged since 1920, contain outmoded and imprecise terms. The amendments clarify the eligibility criteria and make it clear that to qualify for a TPI pension a veteran must be eligible for the 100 per cent general rate pension. In addition, the TPI rate pension can become payable only when a veteran is totally and permanently disabled by accepted disabilities and is thereby precluded from continuing to engage in remunerative work. If a person has had the usual span of a working life or has retired voluntarily or has left employment for reasons other than accepted disabilities, a TPI pension is not payable. It would be in only very rare cases that any veteran beyond the normal retirement age could be eligible for this pension. Special provision is made by the Bill to cover veterans who are under 65 years of age, are unemployed, and are genuinely seeking to engage in remunerative work."
See Parliamentary Debates, House of Representatives, 17 May 1985, at 2646-2647.
The Authorities
The Full Court has twice had occasion to consider the phrase "remunerative work that the veteran was undertaking" as used in s.24(1)(c), or in its predecessor, paragraph (b)(iii) of Schedule 2 to the Repatriation Act 1920. In Banovich v Repatriation Commission, the veteran applied for a special rate of pension in 1983, when he was 73 years of age. When discharged from the defence forces in 1944 he had a number of significant war-caused physical disabilities. From 1964 he was employed by the Commissioner for Railways as a fitter's assistant and depot man. He was retired from his employment on medical grounds in 1977. These were (so it was found) unrelated to his war-caused disabilities. The veteran had not worked since that time.
The veteran's claim for a special rate of pension ultimately failed, inter alia, because he had a non-war caused incapacity that prevented him from working. However, the Full Court
addressed the circumstances in which a veteran could be "prevented from continuing to undertake" remunerative work (at 402-403):
"Counsel for the applicant submit that a member may be 'prevented from continuing to undertake' remunerative work in two disparate ways: the member may lose his or her employment or he or she may be unable to obtain employment. They submit that, in either case - but in the second case only where the member has previously had employment - it is accurate to speak of the incapacity preventing the member "from continuing to undertake remunerative work that the member was undertaking". The "loss of salary or wages" referred to in [s.24(1)(c)], they say, is the financial loss suffered because of the loss of existing employment or the loss caused by the inability of the member to obtain employment.
...
We accept that the loss referred to in [s.24(1)(c)] may be caused either by a loss of existing employment or by an inability to obtain new employment. There is no difficulty in regarding either circumstances as preventing the member "continuing to undertake" remunerative work. But it is, in our opinion, erroneous to read the phrase "remunerative work that the member was undertaking" as referring to a particular job with a particular employer. The term "remunerative work" is used in the Schedule in a context which indicates an intention to refer to work generally: see, for example [s.24(1)(b), s.24(2)(b), s.28]. Consistently with that use, 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. It follows that a member's loss of particular employment for a reason unrelated to a war disability would never destroy a member's subsequent entitlement to claim a special rate pension; the question would remain, at the relevant date for determination of a claim, whether the member was prevented by his or her war-related incapacity - and by that incapacity alone - from continuing in that field of remunerative activity."
In Starcevich v Repatriation Commission, the veteran had been forced to give up farming in 1971, by a war-caused illness.
In the same year he took up other work, but had to give that up in 1974. In 1984, when he was 68, he applied for the special rate of pension under s.24 of the Veterans' Act. The AAT found that the veteran's preferred occupation was that of farming and he would have returned to it, had his war-caused disabilities not made this impossible. The AAT treated the words "remunerative work that the veteran was undertaking" as relating to his last engagement in remunerative work. Since the compulsory retirement age for that kind of work was 65 it could not be said, at age 68, that he was prevented from undertaking remunerative work because of his war-caused disabilities alone.
By a majority (Fox and Jenkinson JJ., Neaves J. dissenting), the Full Court held that "remunerative work", as used in s.24(1)(c), is not confined to the last remunerative work undertaken by the veteran. Fox J. pointed out that the phrase "remunerative work", as used in s.24(1)(c), is ambiguous. His Honour referred (at 224) to the veteran's submission that the phrase
"includes the main or chosen, rather than the last, remunerative work undertaken by a veteran, and that [in the particular case] it included farming."
Fox J. continued (at 225-226):
"The Second-Reading Speech is, however, of no assistance in resolving the ambiguity to which I have referred. It is clear that the intention was that the TPI pension should only be payable to veterans forced (sooner or later) into retirement by their war injuries, but the Speech is silent as to
how premature retirement is to be assessed in a case such as the present, where the veteran has been forced out of his preferred occupation into other remunerative work, and then into retirement from that work, by his war injuries.
...
It is my opinion that the submissions made on behalf of the applicant are to be preferred. It is hardly necessary to say so, but the legislation should in my view be given a reasonably liberal interpretation; it has often been pointed out that it is a matter of great public importance to provide adequately for incapacitated ex-servicemen. The reasons need not be explored here. It can however he pointed out that the combined operation of pars (a) and (b) of s.24(1) is itself already very restrictive of a right to a pension.
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."
Jenkinson J. pointed to another ambiguity in s.24(1)(a) (at 226-227):
"A critical question is whether s.24(1)(c) of the Veterans' Entitlements Act 1986 (Cth) comprehends any "type of work" (other than a type of work which might, perhaps, be put out of consideration on the ground that it had been undertaken for only a very short period) which the veteran had at any time undertaken and which otherwise satisfies the criteria ordained by that paragraph, or comprehends only that particular "type of work" (to adopt the term used by the Full Court in Banovich v Repatriation Commission) which, of those types of work otherwise satisfying those criteria, was the last to be undertaken before the veteran made application for increase in the rate of pension to that prescribed by s.24. The imperfect past tense of the adjective-clause, "that the veteran was undertaking", suggest that a particular time or period of time will have been indicated in a preceding clause as the time or the period when the undertaking of work postulated by that clause occurred. No such an indication is clearly to be discerned. It might perhaps be thought that the time indicated is the time which immediately preceded the time when the prevention, which is postulated for the purposes of s.24(1)(c) as in effect at the time when the application of the section to the veteran is being determined, supervened. But that would not be consonant with the opinion of the Full Court in Banovich v Repatriation Commission (at 402) that 'a member's loss of particular employment for a reason unrelated to a war disability would never destroy a member's subsequent entitlement to claim a special rate pension; the question would remain, at the relevant date for determination of a claim, whether the member was prevented by his or her war-related incapacity - and by that incapacity alone - from continuing in that field of remunerative activity'. That opinion seems to contemplate that the provision now contained in s.24(1)(c) may be satisfied notwithstanding the intermission of a substantial period between the last time when the relevant type of work was undertaken and the time when incapacity from war-caused injury or disease prevented the veteran from continuing to undertake that type of work."
The Present Case
The present case is not governed by Banovich or Starcevich. In Banovich, the veteran failed for reasons that have no
bearing on this case. In Starcevich, the veteran relied not on his last period of employment, but on an earlier occupation, which Fox J. referred to as his "preferred occupation", in order to establish that he had undertaken remunerative work that he was prevented from continuing. Moreover, there was no issue raised in Starcevich as to the duration of the veteran's period of work as a farmer.
Nonetheless, the reasoning of Fox and Jenkinson JJ. in Starcevich provides some guidance in the present case. Fox J. stated that the loss sustained by the veteran had to be "real", indicating that his Honour had in mind remunerative work that had continued for more than a very short period. This interpretation of the judgment is reinforced by his Honour's reference to "substantial remunerative work...undertaken in the past" (emphasis added). Jenkinson J.'s formulation also suggests, albeit tentatively, that past remunerative work does not satisfy s.24(1)(c) unless it continues for more than a very short period.
In Birtles v Repatriation Commission (1991) 33 FCR 290 (FCA/Hill J.), Hill J. interpreted Starcevich as excluding from consideration work undertaken by the veteran only for a short period. His Honour (at 299) identified the question as follows:
"has the veteran by reason of his war incapacity been prevented from 'continuing' a type of remunerative work which he previously undertook (not being work undertaken only for a short period)?"
Birtles was not a case which involved a short period of employment nor, for that matter, the veteran's last period of employment. Nonetheless, Hill J.'s formulation of the question supports the contention that very short periods of employment should be excluded from consideration, for the purposes of applying s.24(1)(c) of the Veteran's Act. See also Thomas v Repatriation Commission (1994) 50 FCR 112, (FCA/Beazley J.), at 123.
The statutory context supports the view that a very short period of work in a new field, undertaken by a veteran over the age of 65, will not necessarily constitute "remunerative work that the veteran was undertaking" for the purposes of s.24(1)(c). Section 24(1)(c) is satisfied only if the veteran is prevented from continuing to undertake "remunerative work". When the veteran is under the age of 65, it is enough if he or she is prevented from obtaining remunerative work by reason of the war-caused incapacity: s.24(2)(b). But a veteran over the age of 65 cannot rely on s.24(2)(b) in order to show that he or she has complied with s.24(1)(c). Section 24(1)(c) does not say that it is enough for a veteran simply to show that the war-caused incapacity prevented that veteran from undertaking remunerative work. The veteran must show that he or she is prevented from continuing to undertake remunerative work.
The legislative intent seems to me to be that a veteran over the age of 65 is to receive a special rate of pension only if the veteran is prevented from engaging in a field of remunerative activity that he or she was able to perform at some stage during his or her working life. If the veteran could never perform the duties for which he or she was employed, it may be accurate to say the war-caused incapacity prevented the veteran from undertaking the work. It is much more difficult to say that the veteran has been prevented from continuing to undertake the remunerative activity.
Even so, depending on the circumstances, a relatively short period of employment might satisfy the legislative requirement. For example, if the veteran was qualified for a particular position, and physically able to undertake the work, but was prevented from continuing in that position by reason of the sudden recurrence or onset of a war-caused disability, s.24(1)(c) might well be satisfied even if the employment lasted only for a short period. Ordinarily, however, the veteran must show that he or she was capable of performing the remunerative work that is relied on as the basis for establishing a loss of salary or wages resulting from war-caused incapacity. The contrary view, in my opinion, fails to give sufficient weight to the statutory language and to the legislative policy of applying different eligibility criteria to veterans who have attained the age of 65 and to those who have not attained that age. Unless the veteran's capacity to undertake the employment is taken into account, a veteran over the age of 65 could satisfy s.24(1)(c) by a period of employment, no matter how short, and regardless of his or her capacity to carry out the duties assigned by the employer. If a short period of employment of this kind was sufficient of itself to satisfy the requirement in s.24(1)(c) that remunerative work be undertaken, the distinction implicit in s.24(2)(b), between veterans under and over the age of 65, would be substantially eroded.
It is perhaps appropriate to add that I have construed s.24(1)(c) of the Veterans' Act by considering the statutory language and the scheme of the legislation. I have not found it necessary to resort to the Second Reading Speech cited earlier in this judgment for this purpose. The result is, however, consistent with the intention expressed by the Minister in that speech.
An Error of Law
The AAT's reasons record a submission by the Commission that questioned whether the veteran's employment for a total of three weeks as a storeman satisfied the requirements of s.24(1)(c) of the Veterans' Act. The AAT did not expressly address that submission. In particular, it did not make a finding that the veteran's periods of employment as a storeman constituted remunerative work undertaken by him within the meaning of s.24(1)(c).
If it did intend to make such a finding, the AAT's reasons give no indication as to the criteria it applied in order to reach that conclusion. Nor did the AAT consider and make findings on factual issues relevant to the question of whether the veteran had undertaken remunerative work. More specifically, it did not consider whether the veteran had been capable, at any time during his periods of employment as a storeman, of carrying out the duties associated with that position.
Section 43(2B) of the AAT Act requires the AAT to include in its reasons findings on material questions of fact and a reference to the evidence or other material on which those findings were based. A failure by the AAT substantially to comply with this requirement constitutes an error of law: Telescourt v Commonwealth (1991) 29 FCR 227 (FCA/von Doussa J.), at 234; Anderson v Australian Postal Corporation (1993) 32 ALD 138 (FCA/Beazley J.), at 145; Dornan v Riordan (1990) 24 FCR 564. I am conscious that the reasons given by the AAT must be read fairly as a whole and not over-zealously: McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 (FCA/FC), at 616-617. The standard required is not one of perfection and regard must be paid to the composition of the AAT, which does not necessarily include trained lawyers: Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132 (FCA/FC), at 157, per Sheppard J.
Nonetheless, in my view, it is not possible to discern from the AAT's reasons why it reached the conclusion (if it did) that the veteran's periods of employment as a storeman brought
him within s.24(1)(c). Without this information it is impossible to tell if the AAT reached its conclusion by the application of correct or erroneous legal principles. For this reason the AAT erred in law: Telescourt v Commonwealth, at 234.
Mr Smith contended that it was implicit in the AAT's brief reasons that it had found that the veteran had satisfied s.24(1)(c) on the ground that the concept of "remunerative work" must include the work of someone "genuinely" employed in a position of full time storeman, even if that employment continued only for a short time. In the absence of any analysis by the AAT on this issue I do not think that it can be assumed that this was the process of reasoning.
But even if, contrary to my view, the AAT's reasons can be construed in this way, it nonetheless fell into error. For the reasons I have given, a short period of employment, even if "genuinely" entered into, is not necessarily enough to show that a veteran over the age of 65 had undertaken "remunerative work" within the meaning of s.24(1)(c). It would not be enough, for example, if the veteran at no stage during a short period of employment was capable of performing the duties of that position, notwithstanding that the veteran acted in good faith in accepting the position and thought that he or she could discharge the duties. The AAT must consider the circumstances to ascertain whether the employment was of a kind that satisfies the statutory criterion. Thus a finding that a veteran over the age of 65 was employed as a storeman for periods totalling three weeks is not enough, of itself, to establish that the veteran undertook "remunerative work", as that phrase is used in s.24(1)(c) of the Veterans' Act. Accordingly, if the AAT's reasons are to be construed as Mr Smith suggested, the AAT adopted an erroneous construction of s.24(1)(c) and thereby fell into error.
Other Issues
In view of the conclusion I have reached, it is unnecessary to deal with the Commission's other arguments. It is, perhaps, worth observing that merely because a finding of fact is based on meagre material, or appears to give relatively little weight to particular evidence, it does not mean that the decision-maker has committed an error of law for the purposes of s.44 of the AAT Act: cf Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, at 355-366, per Mason CJ.
Conclusion
The AAT erred in law in determining that the veteran satisfied the requirements of s.24(1)(c) of the Veterans' Act. Its decision should be set aside and the matter should be remitted to the AAT, to be dealt with according to law. The veteran should pay the Commission's costs.
I certify that this and the preceding 23 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.
Associate:
Dated: 7 December, 1995
Heard:24 November, 1995
Place: Sydney
Decision:7 December, 1995
Appearances: Miss R. Henderson, instructed by the Australian Government Solicitor, appeared for the applicant.
Mr M. Smith, instructed by Vardanega Roberts, Solicitors, appeared for the respondent.
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