Sheldon v Repatriation Commission

The matter before the court is an appeal from a decision of the Administrative Appeals Tribunal affirming a decision of the Veterans Review Board. The veteran, Mr John Sheldon, applied for a pension at a rate higher than the “general rate” under the Veterans’ Entitlements Act 1986 (Cth). Mr Sheldon suffers from lumbar spondylosis, a war-caused condition. After his military service, he operated a backhoe business until he sold the backhoe in 2009. He then worked as an employee for a company controlled by Mr Moar, a plumber, until he claimed to be unable to continue due to pain in his back and knees in November 2011. The Tribunal found that Mr Sheldon was capable of working at least 10 hours per week as a backhoe driver and not permanently incapacitated, and that his inability to continue work was caused by selling the backhoe and not his war-caused injury alone.

The court was required to decide whether the Tribunal failed to consider whether Mr Sheldon satisfied the criteria for an “intermediate rate” of pension under the Act, and whether the Tribunal misconstrued the phrase “remunerative work that the veteran was undertaking” in s 24(1)(c) or the phrase “remunerative work” in s 24(1)(b). The court was also required to decide whether the Tribunal adopted an unduly narrow approach to the phrase “remunerative work” by considering the particular duties in which Mr Sheldon was engaged rather than the type of employment undertaken.

The court found that the reasoning of the Tribunal in construing “remunerative work” in this context evinced an error of law. The court held that the Tribunal had adopted an unduly narrow approach by considering the particular duties in which Mr Sheldon was engaged rather than the type of employment undertaken. The court held that the expression “continuing to undertake remunerative work that the veteran was undertaking” must be construed in a realistic and practical way, and that the Tribunal had failed to do so in this case. The court held that the appeal should be upheld, and the matter remitted to the Tribunal for rehearing. Costs should follow the event.

The court ordered that the Tribunal’s decision dated 17 April 2014 be set aside, that the case be remitted to the Tribunal to be heard and decided again, and that the respondent pay the applicant’s costs of and incidental to the appeal.