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, 24Cases 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 399Date 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
ApplicantAND: 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
ApplicantAND: REPATRIATION COMMISSION
Respondent
JUDGE:
DODDS-STREETON J
DATE:
25 MARCH 2014
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
INTRODUCTION
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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CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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; …