Sherman, J.C. v Repatriation Commission
[1991] FCA 304
•06 JUNE 1991
Re: JOHN CHEYNE SHERMAN
And: REPATRIATION COMMISSION
No. V G152 of 1990
FED No. 304
Veterans' Entitlements
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Gray J.(1)
CATCHWORDS
Veterans' Entitlements - special rate pension - applicant over sixty-five at date of application - whether Administrative Appeals Tribunal applied arbitrary criterion that applicant would not have worked beyond sixty-five - whether evidence to justify tribunal's findings - whether state legislation on preference for discharged servicemen relevant - whether "substantial justice" provision of Act assisted applicant to qualify.
Words and phrases - "substantial justice".
Administrative Appeals Tribunal Act 1975 s. 44.
Veterans' Entitlements Act 1986 ss. 15, 21, 23, 24, 28, 138.
Discharged Servicemen's Preference Act 1943 (Vic.) ss. 2, 9.
HEARING
MELBOURNE
#DATE 6:6:1991
Solicitor for the applicant: R.F.M. Hollow
Counsel for the respondent: Mr N. Green
Solicitor for the respondent: Australian Government Solicitor
ORDER
The Court orders that the appeal is dismissed.
Note: Settlement and entry of orders is dealt with by O.36 of the Federal Court Rules.
JUDGE1
This appeal from the Administrative Appeals Tribunal ("the Tribunal") was instituted without any real prospect of success. The real grievances of the applicant could not be fitted into a proceeding which, by virtue of s.44(1) of the Administrative Appeals Tribunal Act 1975, is limited to a question of law. Indeed, some of the points which the solicitor who appeared for the applicant attempted to make bore no relationship to the jurisdiction or function of the Tribunal, or of the Court. The result was a confused and erratic discourse from that solicitor, which involved numerous digressions, even from its own broad path.
The applicant was born on 25th June 1918. He served an apprenticeship as a tailor and became qualified as a master tailor, to make both men's and women's clothing. After the death of his father, he took over his father's tailoring business and worked as an "order tailor" in Capitol House, Melbourne, from 1933 until he joined the army in 1941. He was discharged from the army in March 1945 and returned to his tailoring business. On 18th November 1949, he was first granted a pension by the Repatriation Board, for pleural hydatids, which necessitated an operation. The pension was at the rate of ten per cent.
In 1968, the applicant went to work as an "order cutter" for Myer Melbourne. He worked there until late 1971. In 1972, he was employed as a technical assistant by the Department of Defence, where he worked in the quality assurance division. On 6th June 1977, the Repatriation Commission changed the rate of the applicant's pension to forty per cent, because of the applicant's war-caused hypertension.
On 19th March 1979, when the applicant was aged sixty, he retired on medical grounds. There is no dispute that the applicant was forced to retire by his war-caused diseases.
On 6th March 1980, the Repatriation Commission increased the applicant's rate of pension to fifty per cent.
On 20th February 1986, the applicant lodged a further application for a pension increase. It was this application which led to the present proceeding. The date of its lodgement is the date from which any increase can operate, pursuant to s.21 of the Veterans' Entitlements Act 1986 ("the Act"). On 29th April 1986, the Repatriation Commission decided to increase the rate of pension to eighty per cent of the general rate, as a result of the applicant's hypertension with cerebral vascular disease.
The applicant sought review of that decision by the Veterans' Review Board ("the Board"). The Board gave its decision on 24th February 1988, granting the applicant a pension at one hundred per cent of the general rate. The applicant sought review of that decision, contending that he should have been granted a special rate pension, pursuant to s.24 of the Act. The relevant provisions of that section are as follows:
"(1) This section applies to a veteran, other than a veteran to whom section 25 applies, if -
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate;
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(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 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.
(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."
The Tribunal affirmed the decision of the Board. The Tribunal found that the applicant fell within s.24(1)(a)(i). It also found that the applicant was totally and permanently incapacitated, in that his war-caused disease rendered him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. He therefore satisfied s.24(1)(b). It was in respect of the requirements of s.24(1)(c) that the applicant's claim fell down. After hearing a substantial quantity of evidence, directed to the issue whether the war-caused disease was the sole factor preventing the applicant from continuing to undertake remunerative work, the Tribunal reached the conclusion that other factors so prevented him. In doing so, the Tribunal followed the decision of the Full Court of this Court in Starcevich v. Repatriation Commission (1987) 76 ALR 449, in which it was held that a veteran might fall within s.24(1)(c) if, but for the war-caused injury or disease, he or she would be able to resume remunerative work formerly carried on by him or her, but which was not the last form of remunerative work carried on by him or her. Although the last form of remunerative work undertaken by the applicant had been with the Department of Defence, the Tribunal investigated the question whether the applicant would have done other tailoring work, had he not suffered from his war-caused disease.
The major point on which the applicant's solicitor relied was the suggestion that the Tribunal had applied an arbitrary rule that, because the applicant was over sixty-five years old at the date of his application, he would not have been able to obtain work. The Tribunal applied no such principle. Indeed, the Tribunal devoted no less than six pages of its reasons for decision to analysing the evidence and determining the question whether, notwithstanding his age, the applicant would have continued to work as a tailor. It found that he would not have so continued.
The argument seemed to be an attempt to regain what was lost in Repatriation Commission v. Strickland (Full Court, Federal Court of Australia, 21st September 1990, not yet reported). In that case, a single judge of this Court had allowed an appeal from the Tribunal, on the basis that the Tribunal had elevated the age of sixty-five to the status of a cut-off point, or at least a balancing point, and had wrongly treated the veteran as being required to displace an assumption that a person over sixty-five would not normally be gainfully employed. The Full Court reversed the decision of the single judge. At pp 11-12 of their joint judgment, Davies and Ryan JJ. said:
"Age 65 was not an irrelevant matter. It is a common retiring age for employees and can be taken to reflect somewhat arbitrarily the community's general understanding of the effect of age upon ability to undertake gainful
employment. Thus, as the Tribunal said, 65 years is the age at which a male person
qualifies for the grant of an age pension. It follows that, if nothing more were known of an applicant for a pension than that he was over the age of 65 years when the application was lodged, a tribunal would not be likely to be satisfied that the veteran was then suffering a loss of earnings by reason only of his war-caused incapacity. Of course, that is only a
hypothetical case and, invariably, more is known about the matter than that, as it was in the present case. But the point is that a tribunal, especially a tribunal which deals with issues of this nature regularly, might reasonably proceed from the premise that applications for pension made after that age would fail, unless facts were disclosed which tended to the conclusion that the veteran would then still be continuing to undertake remunerative work, but for his war-caused incapacity. Of course, age 65 is not an age which is directly applicable to a person who is running his own business or who controls the affairs of a company which conducts the business in which he is engaged. But that is not to say age is irrelevant to such a person."
At p 4 of his judgment, Jenkinson J. said:
"The Tribunal expressed its willingness to accept the suggestion by the respondent's counsel that many "self-employed" persons work beyond the age of 65 years, but indicated, in my opinion, by its references to the absence of evidence about the proportion of such persons who work beyond that age, its unwillingness in the particular instance to use in its reasoning to a finding any belief the members of the Tribunal may have held about the incidence of that behaviour in the Australian community. This in my opinion they were legally free to do."
It might be added that the age of sixty-five years is mentioned in s.24(2)(b) of the Act as a criterion for one aspect of the operation of the section. This mention accords with the general acceptance of sixty-five as a retiring age for men.
In the present case, the applicant's last employment, in the Australian Public Service, carried a retiring age of sixty-five. He would not therefore have continued in that employment beyond that age. The Tribunal examined in detail evidence as to the likelihood of his return to some form of self-employed tailoring, or to his undertaking of work as an employed tailor. In so doing, the Tribunal seems to have accepted the concession of the advocate who appeared for the Repatriation Commission, that it had to consider whether work of the type for which the applicant had the skills was available. I am by no means convinced that any work for which a veteran has skills or qualifications has to be regarded as "remunerative work that the veteran was undertaking", within the meaning of s.24(1)(c) of the Act. To take an extreme example, if it had been shown that there was a job available to the respondent as an employee, operating a sewing machine in a factory making casual clothes, it could hardly be said that work of that kind was "remunerative work that the veteran was undertaking". Such work would have been far removed from any kind of work which the applicant had performed, whether as master tailor in his own tailoring business, order cutter for Myer Melbourne, or in quality assurance with the Defence Department. The test which the Tribunal seems to have adopted was more favourable to the applicant than appears to me to be appropriate, but the Tribunal did not find in his favour on this point. It is therefore unnecessary to determine in the present proceeding what the true test is.
The Tribunal found that the applicant gave up his tailoring business in 1968 because of its declining profitability and because of health problems not associated with his war-caused disease. It followed that he would not have continued with that business if he had not suffered his war-caused disease. An attempt was made to show by evidence that it was common for persons over sixty-five to continue work as tailors. The Tribunal found that that attempt failed. An attempt was also made to show that, but for his war-caused disease, the applicant would have undertaken repair work for a dry cleaner near his home. The Tribunal considered it unlikely that he would have been happy with this sort of work.
In making each of these findings, the Tribunal analysed the evidence before it. There was evidence on which each of its positive findings could be based. Where it found against the applicant, it cannot be said that the evidence compelled it to make a finding in his favour. Its rejection of the evidence is not perverse. It was clearly conscious of the provisions relating to the standard of proof, contained in s.120 of the Act. In those circumstances, no error of law is disclosed. The applicant's real complaint is that he lost on the facts.
The applicant's solicitor contended that the Tribunal had applied a wrong test by asking itself whether the applicant's "preferred occupation" was tailoring. What the Tribunal said was, "On the evidence we cannot be satisfied that Mr Sherman's preferred occupation was tailoring". The phrase came from the judgment of Fox J. in Starcevich's case, at p 452, where his Honour said, "There is no doubt that the applicant's preferred occupation was that of farming and that he would have returned to it and continued with it, had not his war-caused disabilities made this impossible." It is clear from a reading of the Tribunal's reasons for decision in the present case that it did not substitute any test of "preferred occupation" for the tests laid down in s.24(1)(c) of the Act. Rather, in referring to that phrase, it was distinguishing the present case from Starcevich's case. It was indicating that the applicant, having abandoned tailoring for reasons not connected with his war-caused disease, would have been unlikely to return to it if he had not suffered the war-caused disease.
The applicant's solicitor also criticised the Tribunal for making a finding that the applicant had great pride in his work as a tailor, and that this pride would have been a factor making it unlikely that he would have undertaken repair work for a dry cleaner. The finding was based on evidence from the applicant's wife, and it was open to the Tribunal to reach the conclusion which it reached on that evidence.
The applicant's solicitor put before the Tribunal the Discharged Servicemen's Preference Act 1943 (Vic.). He relied on that legislation as part of his argument that the applicant would have engaged in remunerative work after the age of sixty-five, but for his war-caused disease. The Tribunal did not refer to the legislation in its reasons for decision. It is not necessary that the Tribunal should refer to every link in the chain of reasoning which leads to it making a finding of fact. As Fox J. said, delivering the judgment of the Full Court, in Steed v. Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620, at p 621:
"It is a mistake to conclude simply from the fact that a judge or Tribunal does not refer, or does not refer in detail, to some particular aspect of the case that it has escaped his attention. It is not in anyone's interests that the judge or Tribunal be expected to set out every consideration which passes through his mind, although some, and usually the most significant, will be expressly dealt with."
In the present case, the Tribunal could not have been assisted significantly by reference to the Victorian legislation. The operative section is s.9. Sub-section (1) requires an employer who invites applications for employment by public advertisement to give preference to a suitable and competent discharged serviceman who applies. Sub-section (2) requires preference to be given to a suitable and competent discharged serviceman who applies after an employer has made an appointment without advertisement. Leaving aside the question whether a job as an employee would be regarded as remunerative work that the applicant was undertaking, the difficulty which faced the applicant was that the Tribunal found that there existed a dearth of positions for which the applicant could have applied. In addition, it should be noted that s.2(1) of the Victorian legislation contains a definition of "suitable and competent" which, among other things, refers to an applicant for employment as being of "a suitable age". It is difficult to see the Victorian legislation as assisting the applicant to overcome the difficulties inherent in a generally accepted retiring age.
The applicant's solicitor also sought to tender to the Court legislation from two states other than Victoria, concerned with discrimination on the ground of age. The Court was informed that the state of New South Wales has abolished the compulsory retiring age of sixty-five in its own public service. Just what this legislation had to do with the case before the Tribunal is not at all apparent. At the time when the Tribunal made its decision, the legislation had not been passed. It cannot be relied on to show that the Tribunal erred in law.
The applicant's solicitor attempted to make much of the applicant's past circumstances. He pointed to records which disclosed that the applicant had been posted for service in New Guinea during World War II, when he was classified "D" (for "discharge"). He referred to evidence that the ten per cent increase in pension, which was granted to the applicant on 6th March 1980, came after the applicant had attended for a medical examination. He had been seen after normal hours, in a darkened building, and he regarded the examination as peremptory. The doctor had told him that, because he was over sixty, he would not work again. At the time, the applicant was distressed because his first wife was seriously ill and likely to die.
Attempts were made to squeeze these earlier circumstances, particularly those concerning the medical examination, into a number of arguments. Thus, it was contended that the Tribunal, like the Board, was obliged by s.138 of the Act to "act according to substantial justice and the merits and all the circumstances of the case". It was also suggested that the case was somehow analogous to Commonwealth of Australia v. Verwayen (1990) 170 CLR 394. Reference was also made to the existence of a "duty of care", supposedly owed by the Commonwealth to someone in the applicant's position.
The "substantial justice" argument rested on the proposition that the applicant was one of a class of persons intended to be benefited by the Act, and that his past hardships should have produced a decision in his favour. The flaw in this argument is that it overlooks the terms of the Act itself. The extent to which the class of veterans is intended to be benefited is to be gleaned only from the terms of the Act. It is not possible for the Tribunal, or the Court, to ignore a provision of the Act in favour of a veteran, simply because of hardship. It is unnecessary to explore the meaning of "substantial justice". That task can be left to the future, and to full and proper argument on the point. Whatever "substantial justice" means, it clearly does not mean setting aside a provision of the Act, so as to favour one party, because of circumstances external to the facts which fall within the scope of the matter to be determined.
The applicant's solicitor stated that it should be assumed that, at the time when he had the medical examination of which he complained, the applicant had a current application for an increase of pension. He asserted that no record of that application can now be found. His conclusion was that the application should be assumed to be still on foot, and to be imported in some way into the current proceeding. Assuming that there was an application, it was dealt with by the Repatriation Commission, by its decision of 6th March 1980 to increase the applicant's pension by ten per cent. Any time for review of that decision has long since passed. The device of attempting to rely on an earlier application appears to have been adopted for the purpose of overcoming the provisions of s.15 of the Act, under which the applicant's rights must be determined as at the date on which he made the application which is the subject of this proceeding, namely 20th February 1986. Even if there were an earlier application, and even if it remained current at that date, at no time prior to that date did the applicant satisfy the requirement which then existed that he be entitled to a pension at one hundred per cent of the general rate, before being eligible for a special rate pension. It is only in respect of his current application that he has been adjudged to have satisfied the requirement of s.24(1)(a)(i). The only application which was before the Tribunal, and therefore the only application which is before the Court, is the one made on 20th February 1986. The notion of "substantial justice" does not permit the Tribunal to step outside of the proceeding before it, and to determine the rights of any party on the basis of an assumed set of facts, not part of the material placed before it.
The decision of the High Court of Australia in Commonwealth of Australia v. Verwayen concerned the question whether the Commonwealth should be permitted to plead a statute of limitations in answer to the claim of an injured serviceman. Because it had announced that it would not rely on the limitation defence, the Commonwealth was not permitted to rely on that defence. Some members of the High Court held that the Commonwealth was estopped from relying on the statute. Others held that it had waived its right to take the defence. On no view could the principles discussed in that case assist the applicant. Even if it were the case that the applicant was told by a doctor, in the course of the medical examination of which he complained, that he would not work again because he was over sixty, it is difficult to see how any liability could arise from that. If such liability did arise, it is impossible to see how it could be pursued in the course of an appeal on a question of law from the Tribunal's decision under s.24 of the Act.
What was described as a "duty of care" turned out to be a suggestion that a special duty was owed by someone ("the Commonwealth") to ensure that service personnel received their full entitlements, where those entitlements were given by statute, in substitution for common law rights. Such a duty is said to exist in the United States. No authority suggests its existence in Australia. The occasion for determining whether such a duty exists does not arise in the present case. If there were such a duty, and if what the applicant was told or not told constituted a breach of it, he would be required to pursue a cause of action for damages in the appropriate court. The question whether such a duty exists must await another proceeding.
Aside from these arcane arguments, the applicant's solicitor attempted a couple of ineffective exercises in statutory interpretation. He tried to contend that the criteria in s.28 of the Act should be applied in determining the meaning of the phrase "remunerative work" in s.24(1)(c). This was despite the fact that s.28, by its own terms, is limited to s.23(1)(b) and s.24(1)(b) and that its application to s.24(1)(c) would render that provision ineffective. He attempted to argue that the phrase "salary or wages" in s.24(1)(c) includes superannuation. This question was referred to by the Tribunal at the end of its reasons for decision, as a question on which argument had not been submitted to the Tribunal. The applicant's solicitor seemed to take this as an invitation to submit to the Court the argument which he apparently did not submit to the Tribunal. He drew attention to some authorities which he said made it clear that payments received under a superannuation scheme could be regarded as salary or wages. In the context of s.24(1)(c), it is plain that the salary or wages referred to are those lost by reason of a veteran being prevented from continuing to undertake remunerative work. It is unlikely that the phrase is intended to include superannuation. The question need not be determined, because the Tribunal found that the applicant was prevented by factors other than his war-caused disease from undertaking remunerative work that he had been undertaking. The question whether he was suffering a loss of salary or wages, or of earnings on his own account, as a result of being prevented from working only by a war-caused injury or disease, did not arise.
Counsel for the Repatriation Commission announced that his client would not seek an order for costs against the applicant, in the event that the applicant's appeal failed. There are sound reasons why the Repatriation Commission should enter into agreements with veterans not to seek costs against them if they exercise their rights of appeal. Nevertheless, it is appropriate to record that, in the present case, had the Repatriation Commission not refrained from asking for costs, I should have been disposed to award them against the applicant. The appeal was ill-conceived. It had no prospect of success. Instead of occupying less than a day, as it ought to have done, it extended over almost two full hearing days, because of the manner in which the applicant's argument was put. The Court's resources were not well used in this proceeding.
The order of the Court will be that the appeal is dismissed.
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