Richmond v Repatriation Commission

Case [2014] FCA 272

FEDERAL COURT OF AUSTRALIA

Richmond v Repatriation Commission [2014] FCA 272

Citation: Richmond v Repatriation Commission [2014] FCA 272
Appeal from: Richmond and Repatriation Commission [2013] AATA 421
Parties: GEOFFREY RICHMOND v REPATRIATION COMMISSION
File number: VID 700 of 2013
Judge: DODDS-STREETON J
Date of judgment: 25 March 2014
Catchwords:

DEFENCE AND WAR – veterans’ entitlements – appeal from Administrative Appeals Tribunal – special rate of pension under s 24(1)(c) of the Veterans Entitlements Act 1986 (Cth) – whether applicant was prevented from working by war-caused injuries alone – whether Tribunal misconstrued s 24(1)(c) and the questions identified in Flentjar v Repatriation Commission (1997) 48 ALD 1

PRACTICE AND PROCEDURE – whether Tribunal provided adequate reasons

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 43, 44(1)
Veterans’ Entitlements Act 1986 (Cth) ss 15, 19, 24
Cases cited: Byrne v Repatriation Commission [2001] FCA 1134
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50; [2000] FCA 328
Moorcroft v Repatriation Commission (1999) 58 ALD 143; [1999] FCA 862
Peacock v Repatriation Commission [2004] FCA 1449
Repatriation Commission v Alexander (2003) 75 ALD 329; [2003] FCA 399
Repatriation Commission v Hendy (2002) 76 ALD 47; [2002] FCAFC 424
Repatriation Commission v Smith (1987) 15 FCR 327
Smith v Repatriation Commission (2012) 131 ALD 63; [2012] FCA 1043
Tomlin v Repatriation Commission (unreported, Federal Court of Australia, Whitlam J, NG 950 of 1995, 1 August 1997)
Turnbull v Repatriation Commission (unreported, Federal Court of Australia, Merkel J, VG 7 of 1996, 21 May 1997)
Willis v Repatriation Commission  (2012) 202 FCR 323; [2012] FCA 399
Date of hearing: 12 December 2013
Date of last submissions: 12 December 2013
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 192
Counsel for the Applicant: Ms F C Spencer
Solicitor for the Applicant: Williams Winter
Counsel for the Respondent: Ms E James
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 700 of 2013
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

GEOFFREY RICHMOND
Applicant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

DODDS-STREETON J

DATE OF ORDER:

25 MARCH 2014

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The decision of the Tribunal be set aside and the matter be remitted to the Tribunal, differently constituted, for determination according to law.

3.The respondent pay the applicant’s costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 700 of 2013
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

GEOFFREY RICHMOND
Applicant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

DODDS-STREETON J

DATE:

25 MARCH 2014

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

  1. The principal issue in this appeal is whether the Administrative Appeals Tribunal (“the Tribunal”) erred in holding that the applicant, a veteran, was not eligible for a pension at a higher rate because it misconstrued s 24(1)(c) of the

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AGLC
Richmond v Repatriation Commission [2014] FCA 272
Case
[2014] FCA 272
Decision Date

CaseChat Overview and Summary

The matter before the court was an appeal by the applicant, Richmond, against a decision of the Administrative Appeals Tribunal (AAT). The applicant sought to receive a special rate of pension under section 24(1)(c) of the Veterans Entitlements Act 1986 (Cth), on the basis that he was prevented from working by war-caused injuries alone. The AAT had found that the applicant's war-caused conditions did not solely prevent him from working, and therefore, he was not eligible for the special rate of pension. The central legal issues before the court were whether the AAT had correctly applied section 24(1)(c) of the Act and the questions identified in Flentjar v Repatriation Commission (1997) 48 ALD 1. The applicant argued that the AAT had misconstrued the statutory provisions and failed to provide adequate reasons for its decision.

The court found that the AAT had not adequately addressed the questions set out in Flentjar, particularly the fourth question concerning the applicant's loss of earnings due to his incapacity. The court held that the AAT had not sufficiently considered the evidence of the applicant's work history and the impact of his war-caused conditions on his ability to work. The court also found that the AAT had failed to properly address the applicant's claim that his war-caused conditions alone prevented him from working. The court was of the view that the AAT's decision was flawed due to these errors and remitted the matter to the AAT, differently constituted, for redetermination according to law.

The court further held that the AAT's failure to address the relevant statutory provisions and the questions set out in Flentjar amounted to a failure to provide adequate reasons for its decision. The court noted that the AAT had not expressly referred to the factors relevant to the assessment period, which the court found to be a material error. The court allowed the appeal, set aside the decision of the AAT, and ordered that the matter be remitted to the AAT for redetermination. The court also ordered that the respondent pay the applicant's costs.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of the Tribunal be set aside and the matter be remitted to the Tribunal, differently constituted, for determination according to law.

3. The respondent pay the applicant’s costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

In Flentjar, Branson J (with whom Beaumont and Merkel JJ agreed) set out four questions which a decision‑maker should consider and address in applying s 24(1)(c) of the Act (at 4-5):1.What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?2.Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?3.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?4.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?BACKGROUND The applicant’s employment history, as set out by the Tribunal, is as follows: (1)After leaving school, the applicant completed a five-year apprenticeship, qualifying as a boilermaker/structural steel tradesperson. (2)After two years of national service, the applicant worked in his trade for approximately 11 years, including nine years at Alcoa. (3)In the late 1970s, the applicant became a trade teacher, obtaining a Certificate of Technical Teaching followed by a Diploma in Technical Teaching four years later.(4)From approximately 1979 until 1989, the applicant taught at technical schools in the Geelong region. (5)From 1989 to 1994, the applicant was Curriculum Development Officer at the Gordon Institute. (6)From 1995 to 1996, the applicant was self-employed as an industry-training consultant. (7)From 1996 to 1997, the applicant moved to New South Wales where he ran his own business as a cruise boat operator. He returned to Victoria because he and his wife’s parents were unwell, his children were living in Victoria and he did not like the humidity during summer in New South Wales.(8)From April 1997 to 21 January 2005, the applicant worked as a teacher at Goulburn Ovens Institute of TAFE (“Goulburn Ovens TAFE”) teaching metal fabrication and welding to apprentices generally 16 to 20 years of age and, in the last year of his employment, undertaking online work.(9)On about 19 December 2004, the applicant tendered his resignation which was accepted on 24 December 2004. He informed the Tribunal that he changed the word “resignation” to “retirement” on advice from the human resources section of the Goulburn Ovens TAFE in order to secure pro-rata long service leave. He ceased work on 21 January 2005, his 60th birthday and obtained an age service pension with effect from 23 February 2005. (10)Between 26 June and 9 July 2005, the applicant worked for approximately three weeks as a casual teacher at the Gordon Institute. (11)In late 2005, the applicant visited the office of Melbourne River Cruises in relation to an advertisement for the position of coxswain, Marine Engineer driver, but apparently did not apply for, and was not offered, the position. The applicant informed the Tribunal that he continued to look in the newspapers for available positions but had not applied for any job.(12)The applicant had not worked since his casual work at the Gordon Institute in mid-2005.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 11 July 2013, the applicant appealed to the Federal Court of Australia. The applicant filed an amended notice of appeal by consent on 22 November 2013. THE TRIBUNAL’S DECISIONThe evidence before the Tribunal The Tribunal set out background to the application and noted the applicant’s accepted war‑caused medical conditions, including alcohol dependency and generalised anxiety disorder. The Tribunal stated: 5.In deciding whether Mr Richmond is eligible for pension at the special rate, the Tribunal needs to consider:•Is Mr Richmond unable to undertake remunerative work for more than 8 hours per week?•When and why did Mr Richmond stop working?•Do Mr Richmond's accepted war-caused conditions alone prevent him from working? The Tribunal set out the applicant’s employment history. The Tribunal referred to the applicant’s written statement dated 1 December 2011, which stated that, while teaching at Goulburn Ovens TAFE, where he taught metal fabricating and welding to apprentices between 1997 and early 2005, he had experienced “friction with the students, management and colleagues” and “ceased employment with Goulburn Ovens TAFE because of an inability to cope with [his] duties due to [his] emotional state”. The Tribunal referred to the applicant’s oral evidence that whilst working at Goulburn Ovens TAFE he was “100 per cent on tenterhooks, always anxious, uptight, tense”. The Tribunal referred to the applicant’s evidence that he experienced chest pains, palpitations and shaking hands related to anxiety, was prescribed medication after experiencing a panic attack in 2001 and again experienced palpitations in 2002. The applicant stated that towards the end of his teaching he was unable to undertake certain welding processes because his hands shook. The Tribunal noted that while working at Goulburn Ovens TAFE, the applicant lived at properties about 300 kilometres away and drove to Shepparton during the week to teach, returning home at weekends. Towards the end of his employment at Goulburn Ovens TAFE he did some online work but did not particularly enjoy it. The applicant testified that he first considered ceasing work in around early 2000. The Tribunal observed that, in his exit survey when he left Goulburn Ovens TAFE, the applicant did not mention any threats or other difficulties he had experienced. The Tribunal further noted that the applicant had taken very little sick leave while at Goulburn Ovens TAFE although he did not concede that this was because he was coping well with the work. The Tribunal observed that when it asked the applicant how he felt about his teaching career the applicant responded: Before I ... left teaching at Geelong and I thought it was good, and then I experienced difficult times with students early in the piece when I started at Goulburn Ovens, so much so I just walked out on a class, probably not the student, but anyway I walked out, I just walked out on the class and left them without telling anyone. You know, of that period of eight years that I was there, I just found it more difficult to get on with students and staff, management. I’m sure, you know, I’m aware that things have to change, but I don’t know whether I could adapt....I just seem to have problems with students, dealing with students. I don’t know whether it was their attitude or mine. Staff, I had trouble with my own staff. I don’t know why I got into trouble with them, and management, I had trouble accepting management’s policies and practices. I was just a bit grumpy, I suppose maybe I was a grumpy old bear or something ...

Ratio Decidendi

Legal Principle Established

The respondent also submitted that the Tribunal’s failure expressly to refer to factors in the assessment period itself was not material. The Tribunal considered the applicant’s work history at length and it could be assumed that the factors which the Tribunal found caused the applicant to cease work prior to the assessment period were the same factors that continued to be relevant during and throughout the assessment period, “because he didn’t resume work”.Consideration Section 24(1)(c) may be divided into limbs, each of which are qualified or amplified by other provisions of s 24 (see Forbes at [12]-[16]). The first limb of s 24(1)(c) is: (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 ... That limb is read subject to the application of s 24(2)(b), which states:For the purposes of paragraph (1)(c):…(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. Section 24(2)(b) is ameliorative, as a veteran who has not been engaged in remunerative work may still satisfy the alone criterion in s 24(1)(c) if he or she satisfies s 24(2)(b). In Smith v Repatriation Commission (2012) 131 ALD 63; [2012] FCA 1043 (“Smith v Repatriation Commission”), Gordon J described s 24(2)(b) as follows: [18]Before turning to its ameliorative effect, some aspects of the section should be noted. It operates when the veteran has not been engaged in remunerative work. Next, if the conditions are satisfied, it operates as a deeming provision. It creates a fiction -- it treats a veteran not engaged in remunerative work as “having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking”.[19]Section 24(2)(b) operates to ameliorate the effect of s 24(1)(c) in two important ways:(1)it extends the class of veterans entitled to make an application for a pension at the special rate to include veterans who have not been engaged in remunerative work; and(2)it provides that the veteran’s war-caused injury or war-caused disease need not be the sole cause but must be a “substantial cause” of his or her inability to obtain remunerative work. In Smith v Repatriation Commission, Gordon J did not accept that s 24(2)(b) was intended to extend to a veteran with a work history (at [41]). The second limb of s 24(1)(c) is:(c) the veteran ... 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; …