Saxton v Repatriation Commission

Case [2017] FCA 904

FEDERAL COURT OF AUSTRALIA

Saxton v Repatriation Commission [2017] FCA 904

Appeal from: Saxton and Repatriation Commission (Veterans’ entitlements) [2015] AATA 836
File number: NSD 1509 of 2015
Judge: PERRY J
Date of judgment: 7 August 2017
Catchwords: DEFENCE – Veterans’ entitlements – appeal on questions of law from decision of Administrative Appeals Tribunal - where Tribunal found no entitlement to special or intermediate rate under s 24 or s 23, Veterans Entitlements Act 1986 (Cth) – where Tribunal found applicant’s “last paid work” comprised two remunerative activities for the purposes of ss 24(2A)(d) and (g) –whether only one remunerative activity can comprise “last paid work” for the purposes of s 24(2A)(d) - whether applicant undertaking “remunerative activity” when gap in paid work - whether breach of procedural fairness - whether sufficient for one of two remunerative activities comprising last paid work to satisfy s 24(2A)(g) – appeal allowed
Legislation:

Acts Interpretation Act 1903 (Cth), ss 15AA

Administrative Appeals Tribunal Act 1975 (Cth), s 44

Repatriation Act 1920 (Cth), Schedule 2

Veterans’ Entitlement Act 1986 (Cth), ss 5Q, 15, 19, 21A, 22, 23, 24, 25, 25A, 26, 27, 29, 73

Cases cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27

Banovich v Repatriation Commission (1986) 69 ALR 395;

Carter v Repatriation Commission [2001] FCA 992; (2001) 113 FCR 314

Certain Lloyd’s Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576

Counsel v Repatriation Commission [2002] FCAFC 201; (2002) 122 FCR 476

Danagher v Child Support Registrar [2014] FCA 1408

Grant v Repatriation Commission [1999] FCA 1629; (1999) 57 ALD 1

Hill v Repatriation Commission [2004] FCA 832; (2004) 82 ALD 60

Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Smith v Repatriation Commission [2014] FCAFC 53; (2014) 220 FCR 452

Somaghi Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100

Taylor v Owners – Strata Plan No.11564 [2014] HCA 9; (2014) 253 CLR 531

Thomson v Repatriation Commission [2000] FCA 204; (2000) 96 FCR 550

White v Repatriation Commission [2001] FCA 1585; (2001) 114 FCR 494

Date of hearing: 16 June 2016
Date of last submissions: 24 June 2016
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 71
Counsel for the Applicant: Mr Buterin
Solicitor for the Applicant: Legal Aid Commission of NSW
Counsel for the Respondent: Ms Dowsett
Solicitor for the Respondent: Mills Oakley Lawyers

ORDERS

NSD 1509 of 2015
BETWEEN:

PETER SAXTON

Applicant
AND:

REPATRIATION COMMISSION

Respondent

JUDGE:

PERRY J

DATE OF ORDER:

7 AUGUST 2017

THE COURT ORDERS THAT:

1.The appeal under section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) is…

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AGLC
Saxton v Repatriation Commission [2017] FCA 904
Case
[2017] FCA 904
Decision Date

CaseChat Overview and Summary

The case of Saxton v Repatriation Commission involved an appeal by the applicant, who sought a review of the decision of the Administrative Appeals Tribunal (AAT). The central issue was whether the applicant was entitled to a special or intermediate rate of pension under sections 24 and 23 of the Veterans Entitlements Act 1986. The applicant argued that his last paid work consisted of two separate remunerative activities, while the AAT found that it comprised only one activity. The appeal hinged on interpreting the statutory criteria for "last paid work" and whether procedural fairness was upheld during the AAT's decision-making process.

The court was required to determine if the AAT correctly interpreted the statutory requirement that "last paid work" could only comprise one remunerative activity. Additionally, the court needed to assess whether the applicant was engaged in a remunerative activity during a gap in paid work and whether there was a breach of procedural fairness. A further issue was whether it was sufficient for one of the two remunerative activities to satisfy the statutory requirement under section 24(2A)(g).

The court found that the AAT's interpretation of the statutory requirement for "last paid work" was incorrect. It ruled that the applicant's last paid work could comprise two separate remunerative activities. The court also found that the applicant was engaged in a remunerative activity during a gap in paid work, and there was no breach of procedural fairness. Finally, the court determined that it was sufficient for one of the two remunerative activities to satisfy the statutory requirement under section 24(2A)(g). Consequently, the appeal was allowed, the AAT's decision was set aside, and the matter was remitted for reconsideration.

The final orders included allowing the appeal, setting aside the AAT's decision, and directing the parties to file written submissions on costs. The court also noted that it would award the applicant his costs unless the respondent filed written submissions on costs, in which case the issue of costs would be determined on the papers.

Orders

Orders of the court

1. The appeal under section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) is allowed.

2. The decision of the Administrative Appeals Tribunal given on 29 October 2015 is set aside.

3. On or before 4pm on 14 August 2017, the respondent is to file and serve short written submissions as to costs if so advised.

4. In the event that written submissions are filed and served pursuant to order 3 above, the applicant is to file and serve short written submissions in response on or before 4pm on 21 August 2017.

5. The issue of costs will be determined on the papers.

THE COURT NOTES THAT:

6. The Court will make an order awarding the applicant his costs as agreed or assessed unless the respondent files and serves written submissions pursuant to order 3 above.

7. The parties are to file and serve draft minutes of order otherwise to give effect to these reasons as agreed or, if not agreed, as proposed by each party accompanied by short submissions.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 5 February 2013, the applicant requested a transfer to the retirement list, and subsequently retired from the Navy on 16 May 2013, the day after his 67th birthday. After retiring from the Navy, the Tribunal found that:17. In January 2014 he secured yet another project with the developer for work not exceeding 7 hours per week, according to his employment contract. His project manager role was to ‘resurrect’ a stalled development. He worked in a large dilapidated building with no one else on his floor. He could work in solitude; he could listen to music, exercise and even take his dog to work. He had little contact with his employer until there was a verbal altercation in December 2014 and he resigned. He has not worked since that time.3.2 The Tribunal’s decision First, it was not in dispute before the Tribunal that the degree of incapacity resulting from the applicant’s accepted war-caused conditions was at least 70% and that the applicant therefore met the test in s 24(1)(a) of the VE Act: Tribunal’s reasons at [34]. Secondly, the Tribunal found that of itself alone, the applicant’s PTSD rendered him incapable of undertaking remunerative work for more than 8 hours a week and accordingly that he met the criterion in s 24(1)(b): Tribunal’s reasons at [44]. Thirdly, the Tribunal considered that it was necessary for the applicant to demonstrate that his “incapacity from war-caused conditions alone is preventing him from continuing to undertake his last remunerative work that he was undertaking and is therefore suffering a loss of salary or wages or earnings that he would not be suffering if he were free from that incapacity: s 24(2A)(e)”: Tribunal’s reasons at [45] (emphasis in the original). As to the applicant’s last remunerative work, the Tribunal considered that “[o]n a plain reading it is clear that s24(2A)(d) is concerned with any paid work the applicant was undertaking before he lodged his application for an increase in the rate of his pension” (Tribunal’s reasons at [49]). After summarising the parties’ respective submissions on the issue, the Tribunal then found that:52. The history of CMDR Saxton’s property project work appeared to be on the basis that he was engaged to undertake projects as they arose. Evidence he gave to the VRB and his accounts of his civilian work in Dr Altman’s clinical notes suggest he had averaged around 10 hours per week from March 2012 with the developer. Prior to June 2013 he also wrote that he was working between 10 and 15 hours per week for the developer. He wrote that he had resigned from his significant Navy role and was working in a low key home-based support role for about 13 hours per week. It appears then that before he left the Navy he was working virtually equally in his Navy and civilian roles. It is therefore appropriate to consider his ‘last paid work’ was both the Navy and civilian work. Having so found, the Tribunal was satisfied that the applicant was prevented from continuing his last paid work by virtue of his PTSD from mid-December 2014 and that he suffered a loss of wages or salary of his own account that he would not be suffering if he were free of his incapacity from PTSD. Accordingly the effect of the Tribunal’s decision is that it found that the criteria in ss 24(2A)(d), (e) and (f) were satisfied (at [54] and [58]).

Ratio Decidendi

Legal Principle Established

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