Rose v Repatriation Commission
[2001] FCA 245
•15 MARCH 2001
FEDERAL COURT OF AUSTRALIA
Rose v Repatriation Commission [2001] FCA 245
VETERANS’ AFFAIRS – veterans’ entitlements – appeal from decision of Administrative Appeals Tribunal - application for pension to be paid at special rate pursuant to s 24 of Veterans’ Entitlements Act 1986 (Cth) – amendments to Act in 1994 restrict availability of special rate – whether claims for special rate based upon lumbar spondylosis made and determined prior to amendments render restrictive conditions inapplicable – whether restrictive conditions to be applied to claim for special rate made in May 1995 based upon same condition – whether AAT gave adequate reasons for decision.
Administrative Appeals Act 1975 (Cth) s 44
Veterans’ Entitlements Act 1986 (Cth) ss 19(5), (7), (9), 23(2A), 24(1), (2), (2A)Clements v Repatriation Commission (1997) 49 ALD 798 followed
Repatriation Commission v Keeley (2000) 98 FCR 108 referred toIAN GORDON ROSE v REPATRIATION COMMISSION
V 138 of 1999
WEINBERG J
15 MARCH 2001
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
V 138 OF 1999
BETWEEN:
IAN GORDON ROSE
APPLICANTAND:
REPATRIATION COMMISSION
RESPONDENTJUDGE:
WEINBERG J
DATE OF ORDER:
15 MARCH 2001
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’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
V 138 OF 1999
BETWEEN:
IAN GORDON ROSE
APPLICANTAND:
REPATRIATION COMMISSION
RESPONDENTJUDGE:
WEINBERG J
DATE OF ORDER:
15 MARCH 2001
WHERE MADE:
MELBOURNE
REASONS FOR JUDGMENT
This is an appeal under s 44(1) of the Administrative Appeals Act 1975 (Cth) (“the AAT Act”) from part of the decision of Deputy President McDonald of the Administrative Appeals Tribunal (“the AAT”) given on 26 February 1999.
By that decision, the AAT set aside a decision of the respondent (“the Commission”) and decided that the applicant’s lumbar spondylosis was war-caused, but that he was not entitled to be paid pension at the intermediate or special rate.
Background facts
The applicant, Mr Rose, was born on 26 February 1922. He served in the Royal Australian Navy on board Corvettes from 29 July 1941 to 5 June 1946. He has been accepted as having operational service for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”).
Mr Rose lodged a series of claims for lumbar spondylosis:
· On 29 August 1991 the Commission rejected a claim for a disability diagnosed as lumbar spondylosis lodged on 7 June 1991.
· On 16 July 1993 Mr Rose lodged a further claim for various disabilities, including lumbar spondylosis. The Commission rejected the claim for lumbar spondylosis on 5 October 1993.
· On 29 May 1995, Mr Rose lodged a third claim for lumbar spondylosis. He was 73 years old at that date. The Commission rejected that claim on 31 July 1995. The Veterans’ Review Board (“VRB”) affirmed the Commission’s decision on 31 May 1996.
· Mr Rose then applied to the AAT for a review of a decision described as “the decision of the Veterans’ Review Board dated 31/05/96”. That review was heard on 14 October 1997, but somewhat surprisingly was not determined until 26 February 1999.
· Mr Rose also lodged a claim for aortic stenosis on 16 July 1993. The Commission rejected that claim on 28 March 1994. On 7 October 1994, the VRB affirmed the Commission’s decision that aortic stenosis was not war-caused.
· On 19 December 1994 Mr Rose applied to the AAT for review of the decision that aortic stenosis was not war-caused. The AAT affirmed the Commission’s decision but, on appeal to the Federal Court, the decision of the AAT was set aside by consent and the matter remitted to the AAT to be heard again. That review was also to be heard on 14 October 1997. The matter was resolved by agreement between the parties, with the AAT making a decision under s 42C of the AAT Act to the effect that aortic stenosis was war-caused with effect from 16 April 1993.
By the time the matter came to be decided by the AAT on 14 October 1997, there were two issues to be resolved. The AAT had to decide firstly whether Mr Rose’s lumbar spondylosis was war-caused. Secondly, it had to assess the rate of pension to be paid to Mr Rose from time to time during the assessment period and thereafter.
The assessment period, in respect of aortic stenosis, commenced on 16 July 1993 (when Mr Rose lodged that claim) and ended on 26 February 1999 (when the AAT gave its decision). At the commencement of the assessment period, Mr Rose was recognised as having the following war-caused injuries or diseases: chronic obstructive airways disease, sensori neural hearing loss, peripheral vascular disease, coronary artery disease, osteoarthritis hip and knee joints and aortic stenosis. The assessment of the rate of pension was to be based on all of these accepted disabilities together with lumbar spondylosis, if it were accepted as war-caused.
On 26 February 1999 the AAT decided that Mr Rose’s lumbar spondylosis was war-caused but that he was not eligible for the intermediate or special rate of pension, either in relation to the claim for aortic stenosis, or in relation to the claim for lumbar spondylosis. At the time of the AAT decision Mr Rose was in receipt of the maximum rate of pension, apart from the earnings-related, intermediate and special, rate of pension.
Since 7 May 1996 (effective from 16 April 1993) Mr Rose has been receiving 150% of the rate of pension, which is called the “extreme disablement adjustment” and is provided for in s 22(4) of the VE Act. If he were to succeed in the present application, and establish an entitlement to the special rate, he would receive 200% of the rate of pension. The intermediate rate is 150% of the rate of pension, but it would be of no greater benefit, in practical terms, to Mr Rose than the rate which he is currently receiving.
The legislative framework
Section 19(5) of the VE Act directs the AAT, standing in the shoes of the Commission, to assess the rate or rates of pension payable to Mr Rose “from time to time during the assessment period”. In the present case that period commenced on 29 May 1995 (the date of the claim for lumbar spondylosis) and ended on 26 February 1999 (the date of determination of that claim): s 19(9) of the VE Act.
Section 19(7) of the Act requires the AAT to reassess the rate of Mr Rose’s pension, taking into account the previously accepted war-caused injuries and diseases and the recently accepted aortic stenosis and lumbar spondylosis.
Pension is payable to a veteran at the intermediate rate where s 23 applies and at the special rate where s 24 applies.
At the time of Mr Rose’s claim for aortic stenosis (16 July 1993) ss 23 and 24 did not distinguish between claimants under the age of 65 years and claimants who had reached that age at the time of their claim. The legislation was amended by s 17 of Act No 98 of 1994: the Veterans’ Affairs (1994-1995 Budget Measures) Legislation Amendment Act 1994 (Cth) (“the 1994 Act”). The effect of the 1994 amendments is that from 1 June 1994 ss 23(1) and 24(1) of the VE Act apply to applicants who are under 65 years on the application date, while ss 23(2A) and 24(2A) apply to applicants who are 65 years or more on the application date.
Section 3 of the 1994 Act states that the amendments made to s 24 of the VE Act apply to claims for pension under s 14 of the VE Act that are made on or after 1 June 1994. Section 24 of the VE Act now relevantly states:
“Special rate of pension
(1)This section applies to a veteran if:
…
(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 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
…
(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
(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.
(2A) This section applies to a veteran if:
(a) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(b) …; and
(c) …; and
(d) …; and
(e) …; and
(f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g) when the veteran stopped undertaking his or her last paid work, the veteran:
(i)if he or she was then working as an employee of another person—had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii)if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling - had been so working in that profession, trade, employment, vocation or calling;
for a continuous period of at least 10 years that began before the veteran turned 65; and
(h) ….
…” (emphasis added)
It can be seen that the requirements of s 24(2A) of the VE Act are cumulative. In order to be eligible for the special rate of pension it was necessary for Mr Rose to meet the requirements in each of the paragraphs in s 24(2A), including that prescribed by s 24(2A)(f) that “the veteran was undertaking his or her last paid work after the veteran had turned 65”.
Section 23 makes provision for payment of the intermediate rate of pension, with precisely the same cumulative requirements.
The evidence before the AAT
Mr Rose’s evidence was that he worked “selling fruit and vegetables” until 1982, when he could not continue because of his back, hip and knee. He said that he gave up his work “because I was getting too sore… My back was getting crook”; “The back was a recurring problem”; apart from age, “the other major thing was Mr Rose’s back”. The evidence was that Mr Rose’s heart condition did not begin to affect him until 1989 or 1990.
On 20 March 1997, Mr Rose signed a statement to the effect that his “reason for leaving work was constant pain in my back, hearing loss, osteoarthritis of hip and knee joint and what later developed into coronary artery disease”. (Coronary artery disease was accepted as war-caused on 7 December 1994, with effect from 15 March 1994.)
The AAT’s reasoning
After summarising the evidence the AAT assessed whether Mr Rose’s lumbar spondylosis was war-caused and determined that it was. It then noted that Mr Rose was receiving a pension with the extreme disablement adjustment and that he was claiming to be paid at the intermediate or special rate under ss 23 and 24 of the VE Act respectively. The AAT referred to s 24(2A)(f) and said that it was undisputed that Mr Rose ceased work at the age of 60 years. Accordingly, the AAT said that if the current s 24 was applicable, Mr Rose could not qualify for the special rate of pension.
The AAT then addressed the question of whether the current s 24 of the VE Act was applicable. It noted the submission of Mr De Marchi, the solicitor for Mr Rose, that Mr Rose’s claim pre-dated the 1994 amendments to the VE Act and that his application for the special rate of pension should succeed because of “…the ongoing nature of the application before the Tribunal”. In response to this submission, the AAT said:
“If this were the case, then there would be no requirement for the veteran to continue to work beyond the age of 65 years before he was entitled to be considered for payment of the pension at the special rate.”
The AAT went on to note the history of the claims for lumbar spondylosis, but said that it was “concerned with the particular claim which could, or would, give rise to a veteran qualifying to receive payment of the pension at the special rate”, which was the claim lodged on 29 May 1995.
The AAT referred to the judgment of Mathews J in Clements v Repatriation Commission (1997) 49 ALD 798 to support the proposition that “it is the application lodged after 1994 which must be determinative”.
The AAT concluded that because the amended versions of ss 23 and 24 applied to Mr Rose’s matter, he could not succeed in his claim either for the intermediate or special rates.
Grounds of appeal
The applicant contended that the AAT was wrong in law in determining that he was not entitled to receive the special rate of pension. The grounds proceeded with are:
(a)That the AAT failed to consider the effect of Mr Rose’s war related disability upon his capacity for employment during the period to be assessed pursuant to s 24 of the VE Act.
(b)That the AAT was wrong in law when it determined a claim that was commenced prior to 1 June 1994 by reference to legislation that came into force following the application to the Commission.
(c)That the AAT was wrong in law in failing to give adequate and proper reasons and failing to include findings of material questions of fact and reference to evidence or other material on which those findings were based.
The applicant’s submissions
As I understood his submissions, Mr De Marchi contended that in considering the applicant’s claim for the special rate of pension under s 24 of the VE Act, the AAT erred in failing to assess all of the accepted disabilities from the earlier assessment period. Mr De Marchi contended that it was open to the AAT to find that Mr Rose may have been eligible for the special rate of pension up to 1 June 1994, without taking into account lumbar spondylosis, under the previous s 24, which, he contended, was the applicable provision. On the basis of the aggregation of his other accepted illnesses he may have satisfied the requirements of that section. Mr De Marchi conceded, however, that he had not put this submission to the AAT. He further conceded that the evidence indicated that the major factor in preventing Mr Rose from continuing his employment was the lumbar spondylosis. Consequently, it would have been difficult for him to satisfy the requirements, even under the previous s 24, without the acceptance of lumbar spondylosis as war-caused.
Mr De Marchi also submitted that the amended s 24 was not applicable to Mr Rose’s claim because there had been an earlier challenge brought by him in 1991 in respect of the claim for aortic stenosis which was ongoing. The fact that this claim remained in contention after 1994 meant that the claim must be assessed in the light of the old s 24 of the VE Act. The only matter that did not predate 1 June 1994 was the claim for lumbar spondylosis that was lodged on 29 May 1995. That condition had been claimed before, prior to 1 June 1994, but had been rejected. Mr De Marchi submitted that once a claim has been brought, and whether or not the claim had been determined adversely prior to that date, it still relevantly counts as a claim for the purpose of considering the cut-off date.
Mr De Marchi sought to distinguish the present case, on the facts, from Clements. In the alternative, he invited me not to follow Mathews J’s decision regarding the construction of s 24. He submitted that her Honour had not taken into account the theory of accrued rights which found favour with the Full Court in Repatriation Commission v Keeley (2000) 98 FCR 108. Furthermore, her Honour’s interpretation of s 24 ignored any existing rights being conferred by the legislation. In support of this submission Mr De Marchi sought to rely on s 15 of the Acts Interpretation Act 1901 (Cth).
Mr De Marchi further submitted that in determining whether Mr Rose met the requirements of s 24, the Commission was required to keep in mind the provisions of s 119. Section 119(1) provides, inter alia, that in hearing or determining a claim or application made under the VE Act, the Commission “is not bound to act in a formal manner” and is obliged to act “according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities”. Mr De Marchi contended that the AAT had failed to give effect to this provision in making its determination.
Finally, Mr De Marchi submitted that the AAT had failed to provide adequate and sufficient reasons for its decision to reject Mr Rose’s application for a special rate of pension. More specifically, he submitted that the AAT’s reasons failed to disclose any consideration by it of the earlier assessment period in determining whether the special rate of pension was payable.
The Commission’s submissions
Counsel for the Commission, Mr Hanks QC, submitted that the purpose of the 1994 amendments to the VE Act was to limit the payment of the special rate of pension to persons who had either not turned 65 when they lodged their claim or, if they had turned 65, were able to meet the stringent restrictions set out in subsection 24(2A). Mr Rose’s application for the special rate of pension based on his claim for lumbar spondylosis must inevitably fail as that claim was lodged after 1 June 1994, meaning that s 24(2A) must apply. The uncontroverted evidence was that Mr Rose had ceased working in 1982 at the age of 60.
Mr Hanks submitted that consequent upon Mr Rose’s claim lodged on 29 May 1995, lumbar spondylosis was accepted as war-caused by the AAT. Pursuant to s 20(1) of the VE Act, that acceptance could take effect from 29 February 1995.
Mr Rose having claimed aortic stenosis before 1 June 1994, his eligibility for the intermediate or special rate of pension (to the extent that the eligibility did not depend on lumbar spondylosis) would be determined by reference to ss 23 and 24 as they stood prior to the 1994 amendments. It follows that if Mr Rose could have qualified for the intermediate or special rate on account of the disabilities accepted as war-caused before he lodged his claim for lumbar spondylosis, it would be unnecessary to consider the claim lodged on 29 May 1995 and the amendments made to ss 23 and 24.
However, it was submitted, the evidence was unequivocal that Mr Rose could not meet either s 23(1) or s 24(1) as they stood before 1 June 1994, unless lumbar spondylosis was a war-caused injury. Mr Rose said that lumbar spondylosis was a recurring problem and “the major thing” apart from age, which caused him to stop work. Sections 24(1)(c) and 24(2)(a)(i) and (ii) of the VE Act would prevent Mr Rose qualifying for the special rate of pension until lumbar spondylosis was accepted as war-caused. Once lumbar spondylosis became an accepted disability (by reason of the AAT’s decision), it could be taken into account. However, lumbar spondylosis was accepted only because of the claim lodged on 29 May 1995. Consequently, ss 23(2A) and 24(2A) controlled Mr Rose’s application for the special rate and he could not qualify for that rate as he ceased undertaking his last paid work before he turned 65.
In response to the submission that the decision of Mathews J in Clements should not be followed, and that it was distinguishable on its facts from the present case, Mr Hanks submitted that the common thread that ran through both cases was that without the condition accepted as a result of the later claim, the veteran could not qualify for the special rate.
Mr Hanks submitted that the approach taken by Mathews J by which her Honour applied the 1994 amendments to a claim which was lodged after 1 June 1994 was correct. He submitted that this approach was consistent with the requirements of s 19 of the VE Act, which makes provision for the determination of claims and applications, and s 13 which sets out the criteria for eligibility for pension. Section 19(5) requires the decision-maker to assess the rate at which pension is payable “from time to time during the assessment period”. Not only do the disabilities regarded as war-caused differ at each “time” during the assessment period, but the statutory provisions relevant to assessment are different at each time, with the 1994 amendments providing new criteria for the assessment of the pension in the later period.
Mr Hanks submitted that the approach of using two distinct periods enables both the old law and the new law to be applied in the manner envisaged by the amending legislation, with different (and more rigorous) criteria applicable to claims and applications made on and after 1 June 1994.
In response to Mr De Marchi’s submission that the AAT erred in law in failing to provide adequate reasons for its decision, Mr Hanks submitted that the applicant would know, from reading those reasons, precisely why he was ineligible for a special rate of pension. Mr De Marchi had submitted to the AAT that s 24(2A) was not applicable to Mr Rose’s situation. The AAT had determined, correctly, that it was.
Mr Hanks further submitted that Mr Rose’s case had not been presented to the AAT in any way other than that lumbar spondylosis was the principal cause for his having ceased to work. Mr De Marchi had always contended, until now, that Mr Rose’s entitlement to the special rate depended upon his lumbar spondylosis being accepted as a war-caused injury. However, Mr De Marchi had sought to change the entire basis upon which he put Mr Rose’s case. He could hardly complain about the failure of the AAT in its reasons for decision to address a contention which had never been advanced before it. The AAT’s reasons for decision, though brief, were clear, and responsive to the case made before it.
Findings
It is clear that the intention of the 1994 amendments was to restrict the number of veterans eligible for the intermediate or special rate of pension. It seems to me that the construction for which Mr De Marchi contended in the present case does not accord with that intention. He submitted that Mr Rose’s prior claim for lumbar spondylosis created a continuum with the later, post-June 1994, claim, despite the fact that the earlier claim had been rejected, and no application had been brought to review that decision. He contended that having lodged this earlier claim, the legislation to be applied when assessing his application for the special rate was the pre-June 1994 version of s 24. In my view this contention cannot be sustained. In order to do so one would need to read into the legislation words which simply are not there, and which would be at odds with the intention of the 1994 amendments.
I am not persuaded that the approach by Mathews J in Clements is incorrect. Indeed, I am firmly of the opinion that her Honour’s reasoning was entirely sound. Her Honour concluded:
“The situation, very simply, is this. When the applicant made his first claim in December 1992 he was not able to fulfil the requirements of s 23. It was not until his generalised anxiety state was added to his accepted disabilities that he became eligible for consideration under s 23. This arose only as a result of his claim made on 11 November 1995, well after the amendments came into force. Accordingly I must find that his claim for the intermediate rate of pension falls to be determined under the 1994 amendments. It is acknowledged that he cannot meet the requirements of para (3A)(g) and therefore cannot qualify for a pension at the intermediate rate.”
I am of the opinion that her Honour’s judgment represents the proper and correct construction of the current ss 23 and 24 of the VE Act. In that respect, I would follow her Honour’s approach and find that the 1994 amendments applied to the claim made by Mr Rose in May 1995, that being the relevant and operative claim for consideration of the intermediate or special rate of pension. Mr Rose is unable to satisfy the cumulative requirements of s 23(3A) (in respect of the intermediate rate of pension) or s 24(2A) (in respect of the special rate of pension), given that he ceased employment before the age of 65.
Accordingly, I find that the AAT did not err in law in finding that Mr Rose was ineligible for the intermediate or special rate of pension.
I turn next to Mr De Marchi’s submission that the AAT failed to provide adequate reasons in its judgment for rejecting the claim for special or intermediate rate of pension. The reasons given on that issue were as follows:
“Section 24 was amended, with effect from 1 June 1994, which provides that a veteran is not qualified to receive payment of the pension at the special rate if he/she was not undertaking paid work after turning 65 years of age (S 24(2A)(f)). It is undisputed in this case that Mr Rose ceased work at the age of 60 years. Accordingly, if the current s 24 is applicable, Mr Rose is not able to qualify to receive payment of pension at the special rate.
A fresh application, being the matter before the Tribunal, was lodged on 25 May 1995, ie the application was lodged after the commencement of the amendments introduced in 1994. Whilst acknowledging the history of the matter, the Tribunal is, in this case, concerned with the particular claim which could, or would, give rise to a veteran qualifying to receive payment of the pension at the special rate. It is the application lodged after 1994 which must be determinative (Clements v Repatriation Commission (1997) 49 ALD 798). In those circumstances it is the Tribunal’s view that Mr Rose is not able to succeed in his application for payment of the pension at the special rate.”
Mr Rose put his case on one basis only before the AAT. That basis was that he should be eligible for the intermediate or special rate of pension because of the finding that lumbar spondylosis was war-caused. It is clear that the AAT considered the matter on this basis and correctly determined that the relevant claim having been lodged after 1 June 1994, meant that the amended s 24 was the applicable provision. The AAT stated that it was not satisfied that Mr Rose could meet the requirement of s 24(2A)(f) and that as a result he was not eligible for the special rate. I do not think the AAT needed to go any further than that. The reasons are clear and one can readily ascertain why the AAT arrived at the conclusion it did.
Accordingly, the application must be dismissed. In my opinion the applicant must pay the respondent’s costs.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate:
Dated: 15 March 2001
Counsel for the Applicant: Mr D De Marchi Solicitor for the Applicant: De Marchi & Associates Counsel for the Respondent: Mr PJ Hanks QC Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 19 February 2001 Date of Judgment: 15 March 2001
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