DEFENCE AND WAR – application for increase to rate of pension – whether efforts to obtain work before the assessment period were relevant – whether entitlement to intermediate rate of pension should also have been considered
2.The orders made by the primary judge on 19 September 2012 be set aside and in lieu thereof it be ordered that:
(1)the decision of the Administrative Appeals Tribunal made on 16 February 2012 be set aside and the matter be remitted to the Administrative Appeals Tribunal to hear and consider the matter according to law;
(2)the respondent pay the applicant’s costs.
3.By consent, the respondent pay the appellant’s costs.
Note:Entry of orders is dealt with in Rule 32 of the Federal Court Rules 2011 (Cth).
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 782 of 2012
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
KENNETH ALLAN SMITH Appellant
AND:
REPATRIATION COMMISSION Respondent
JUDGES:
RARES, BUCHANAN, FOSTER JJ
DATE:
1 MAY…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Smith v Repatriation Commission [2014] FCAFC 53
Case
[2014] FCAFC 53
Decision Date
CaseChat Overview and Summary
In the case of Smith v Repatriation Commission, the central issue was the assessment of a veteran's pension rate and whether the Repatriation Commission properly considered the veteran's efforts to find work before the assessment period. The court had to determine if the Commission was correct in its assessment that the veteran had not genuinely sought remunerative work, and if it should have also considered the entitlement to an intermediate rate of pension.
The legal issues centred on the interpretation and application of sections 23 and 24 of the relevant legislation concerning the assessment of pension rates for war veterans. Specifically, the court had to interpret the meaning of "genuinely seeking to engage in remunerative work" as required by section 24(2)(b) and whether the Commission appropriately considered factors such as the veteran's efforts to find work before the assessment period. The court also needed to clarify whether the Commission should have considered the possibility of an intermediate rate of pension.
The court found that the Repatriation Commission had erred in its assessment. It was established that the Commission should have considered the veteran's efforts to find work prior to the assessment period, which were relevant under section 24(1)(c) of the Act. The court held that the Commission must consider any factor that contributes to a veteran's inability to engage in remunerative work, and the Commission's failure to do so in this case constituted an error. Furthermore, the court found that the Commission should have considered whether an intermediate rate of pension was applicable.
The court concluded that the appeal should be allowed, and the decision of the Administrative Appeals Tribunal was set aside. The matter was remitted to the Tribunal to be reconsidered according to law, with the respondent to pay the applicant’s costs. Additionally, by consent, the respondent was ordered to pay the appellant's costs.
Orders
Orders of the court
1. The appeal be allowed.
2. The orders made by the primary judge on 19 September 2012 be set aside and in lieu thereof it be ordered that:
(1) the decision of the Administrative Appeals Tribunal made on 16 February 2012 be set aside and the matter be remitted to the Administrative Appeals Tribunal to hear and consider the matter according to law;
(2) the respondent pay the applicant’s costs.
3. By consent, the respondent pay the appellant’s costs.
Note: Entry of orders is dealt with in Rule 32 of the Federal Court Rules 2011 (Cth).
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
The veteran can make an application under s 15 if he or she has already tried to seek and failed to obtain remunerative work within the meaning of s 24(2). If that were his or her position on the day the application was received, the Commission could make an assessment that the pension under ss 23 or 24 was payable. The first day of a period is a time “during the assessment period”, just as is any other day after that one, for the purposes of s 19(6) and (9). The ground for the application under s 15(1) for an increase in pension is that since the rate of the veteran’s pension was last assessed “the incapacity of the veteran has increased”. As Whitlam, Emmett and Stone JJ said in Repatriation Commission v Hendy (2002) 76 ALD 47 at 54-55 [37]:“The consideration of what a veteran would probably have done, absent the service disabilities, is a hypothetical exercise. The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran's being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. So long as the tribunal performs this exercise, the conclusions drawn from the assignment of the relative impact the various factors on the ability of the veteran to continue in remunerative work is not reviewable, except in exceptional circumstances. Moreover, having considered any or all of the factors which may have contributed to a veteran's incapacity, the tribunal is then required to determine whether it is the veteran's war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work. Error on the part of the tribunal in determining whether the veteran's war-caused injury or war-caused disease is the sole determinant in the prevention of continued remunerative work is, similarly, not open to review.” (italic emphasis in original, bold emphasis added) The veteran must sincerely or honestly do something to attempt or try to engage in remunerative work: Leane v Repatriation Commission (2004) 81 ALD 625 at 632 [28] per Emmett, Conti and Selway JJ. Their Honours held that the word “genuinely” in s 24(2)(b) referred to the subjective intention of the veteran. They said that the way in which a veteran might establish his or her case to satisfy the requirement in s 24(2)(b), that “he or she has been genuinely seeking to engage in remunerative work”, was a practical issue. Their Honours held that it was not essential that there be objective signs of active pursuit of remunerative work, although, in the ordinary course, it may be difficult for the veteran to establish the requirement in the absence of such objective material. They gave an example of a veteran who honestly wished to engage in remunerative work, had made a reasonable assessment of his or her disabilities, had reasonably concluded that he or she could only be employed in a particular type of work, was checking employment advertisements on the look-out for such work, but had not yet identified any such employment prospects (81 ALD at 632-633 [29]).
Ratio Decidendi
Legal Principle Established
Section 25, which is referred to in both ss 23(1)(d) and 24(1)(d), deals with situations of temporary incapacity. Remunerative work is defined in s 5Q as including any remunerative activity. When determining whether a veteran is incapable of undertaking remunerative work for the purposes of ss 23(1)(b) and 24(1)(b), the Commission must have regard only to the three matters prescribed by s 28, relevantly:·the veteran’s vocational, trade and professional skills, qualifications and experience (s 28(a));·the kinds of remunerative work which a person with those skills, qualifications and experience “might reasonably undertake” (s 28(b));·the degree to which the veteran’s impairment as a result of the injury has reduced his or her capacity to undertake those kinds of work (s 28(c)).Consideration – statutory interpretation It is necessary to consider s 24(1) before turning to s 23(1). That is because s 23(1)(d) provides that s 23(1) applies to the veteran only if s 24 does not. The evident intention of s 24(1)(b) is to define when a veteran is totally and permanently incapacitated for the purposes of determining whether he or she can qualify for an increase in the rate of pension. The effect of the veteran’s war-caused incapacity must have rendered the veteran – i.e. caused him or her to be or become (Macquarie Dictionary online) – to be incapable or unable of undertaking remunerative work for more than a total of 8 hours per week. Accordingly, the veteran need not be completely unable to perform such work. He or she may be able to perform such work but is limited to doing so for no more than 8 hours per week. Once the effect of the war-caused injury on the veteran suffices to satisfy s 24(1)(b), the effect of his or her incapacity must then be assessed under s 24(1)(c). The latter section has these elements:·the veteran is prevented by reason only of the effect of his or her injury found under s 24(1)(b) from continuing to undertake remunerative work;·that preventative effect alone causes him or her to suffer a loss of income; and·the veteran would not be suffering from that loss if he or she was not affected by the war-caused injury. As explained above, ss 24(1)(b) and (c) address similar, but distinct, scenarios produced by the effect of the war-caused injury on the veteran’s ability to undertake remunerative work. First, the effect of the injury will have brought about the inability of the veteran to engage in remunerative work for more than 8 hours per week (s 24(1)(b)). Secondly, he or she is prevented by reason of that effect alone from undertaking remunerative work that he or she had previously undertaken. Thirdly, that sole cause of the veteran being prevented from undertaking that work has resulted in a loss of income that the veteran would not have sustained if he or she were not affected by the injury. So, if the effect of the war-caused injury has actually caused that loss (i.e. a loss) of income, the veteran will qualify for a special rate of pension.