Smith v Repatriation Commission

Case [2012] FCA 1043

FEDERAL COURT OF AUSTRALIA

Smith v Repatriation Commission [2012] FCA 1043

Citation: Smith v Repatriation Commission [2012] FCA 1043
Appeal from: Kenneth Smith v Repatriation Commission [2012] AATA 94
Parties: KENNETH ALLAN SMITH v REPATRIATION COMMISSION
File number: VID 238 of 2012
Judge: GORDON J
Date of judgment: 19 September 2012
Catchwords: DEFENCE AND WAR – veterans – application for increase to special rate of pension – under 65 veteran – consideration of remunerative work previously undertaken – whether war-caused injuries sole cause of inability to obtain remunerative work ‑ consideration of treatment for non-war caused injuries – where veteran genuinely seeking to obtain remunerative work – when attempts to obtain remunerative work must occur – Veterans Entitlements Act 1986 (Cth), ss 19, 24
Legislation: Administrative Appeals Tribunal Act 1975 (Cth)
Australian Soldiers Repatriation Act 1920 (Cth)
Repatriation Legislation Amendment Bill 1985 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
Veterans’ Entitlements Bill 1985 (Cth)
Cases cited: Baljas v Repatriation Commission [2009] FCA 171
Banovich v Repatriation Commission (1986) 69 ALR 395
Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (NSW) (1980) 3 ALD 30
Byrne v Repatriation Commission (2001) 33 AAR 410
Cavell v Repatriation Commission (1988) 9 AAR 534
Federal Commissioner of Taxation v Swift (1989) 18 ALD 679
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Giesen v Repatriation Commission (2005) 87 ALD 347
Hall v Repatriation Commission (1994) 33 ALD 454
Hendy v Repatriation Commission (2002) 72 ALD 112
Leane v Repatriation Commission [2004] FCAFC 83
Magill v Repatriation Commission [2002] FCA 244
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Politis v Federal Commissioner of Taxation (1988) 16 ALD 707
Repatriation Commission v Butcher (2007) 94 ALD 364
Repatriation Commission vConnell (2011) 197 FCR 228
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Smith (1987) 15 FCR 327
Starvcevich v Repatriation Commission (1987) 18 FCR 221
Willis v Repatriation Commission (2012) 202 FCR 323
Date of hearing: 13 September 2012
Date of last submissions: 13 September 2012
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 71
Counsel for the Applicant: Ms F A L Ryan
Solicitor for the Applicant: Williams Winter Solicitors
Counsel for the Respondent: Ms C M Dowsett
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 238 of 2012
BETWEEN:

KENNETH ALLAN SMITH
Applicant
AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

GORDON J

DATE OF ORDER:

19 SEPTEMBER 2012

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The proceeding is dismissed.

2.The Applicant pay the Respondent’s costs of the proceeding, such costs to be taxed in default of agreement.

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


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 238 of 2012
BETWEEN:

KENNETH ALLAN SMITH
Applicant
AND:

REPATRIATION…

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Details
AGLC
Smith v Repatriation Commission [2012] FCA 1043
Case
[2012] FCA 1043
Decision Date

CaseChat Overview and Summary

In the matter of Smith v Repatriation Commission, the applicant, Mr Smith, appealed the decision of the Administrative Appeals Tribunal (AAT) affirming the Repatriation Commission’s refusal to increase his special rate of pension. Mr Smith, a veteran, had applied for an increase in his pension rate on the grounds of increased incapacity due to war-related injuries. The AAT had considered various factors, including Mr Smith’s previous employment as a qualified electrician, his physical injuries sustained during service, and his subsequent medical treatments for both war-related and non-war-related ailments. The appeal centred on whether the AAT erred in its consideration of the relevant "remunerative work" Mr Smith had undertaken and whether it appropriately considered evidence of non-war-caused injuries when determining his capacity for work.

The court had to decide two primary issues: first, whether the AAT erred in its assessment of the type of remunerative work Mr Smith previously undertook and in considering evidence related to non-war-caused injuries; and second, whether the AAT restricted its consideration of Mr Smith’s genuine attempts to obtain work to only those attempts made after he applied for an increased pension rate. The resolution of these issues depended on the proper interpretation of sections 24(1)(c) and 24(2)(b) of the Veterans Entitlements Act 1986 (Cth).

The Court found that the AAT did not err in its consideration of the relevant remunerative work Mr Smith had undertaken. It concluded that the AAT's hypothetical exercise, considering what Mr Smith would have done without his war-caused Post Traumatic Stress Disorder (PTSD), was appropriate and aligned with the statutory requirements. The Court also held that the AAT did not err in considering evidence of Mr Smith’s non-war-caused injuries, as these were relevant to the hypothetical scenario. Furthermore, the Court determined that the AAT did not improperly restrict its consideration of Mr Smith’s genuine attempts to obtain work to only those attempts made after his pension application. The Court reasoned that the AAT's approach was consistent with the statutory framework and the established case law.

The appeal was dismissed, and Mr Smith was ordered to pay the Repatriation Commission’s costs of the proceeding, to be taxed in default of agreement. The decision underscores the importance of a comprehensive hypothetical analysis in pension entitlement cases and affirms the AAT’s broad discretion in considering relevant medical evidence.

Orders

Orders of the court

1. The proceeding is dismissed.

2. The Applicant pay the Respondent’s costs of the proceeding, such costs to be taxed in default of agreement.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 31 March 2009, Mr Smith applied, pursuant to s 15(1) of the VE Act, for an increase in the rate of pension to the special rate. On 28 May 2010, the Respondent rejected that application. On 13 July 2010, the Veterans’ Review Board (VRB) affirmed the Respondent’s decision. On 16 February 2012, the Administrative Appeals Tribunal (AAT) affirmed the VRB’s decision (AAT Decision). Mr Smith appeals from the AAT Decision. This appeal concerns the construction of s 24 of the VE Act and, in particular, ss 24(1)(c) and 24(2)(b). There are two issues. First, under s 24(1)(c), whether the AAT fell into error:1.in its consideration of what was the relevant “remunerative work” that Mr Smith previously undertook; and/or 2.by considering evidence of the medical treatment of Mr Smith’s non-war caused injuries. Second, for the purposes of s 24(2)(b), whether the AAT fell into error by restricting its consideration of Mr Smith’s genuine attempts to obtain work to only those attempts he made after applying for an increased pension rate. For the reasons below, the answer to each of those questions is “No”. The appeal is dismissed with costs.RELEVANT LEGISLATIVE CONTEXT The VE Act provides for the payment of benefits to veterans and their dependants in certain circumstances. The VE Act is complex. For present purposes, it is sufficient to commence consideration of the VE Act with s 15, which entitles a veteran already in receipt of a pension to make an application for an increased pension on the ground that his or her incapacity has increased since the rate of pension was last assessed. Once an application has been made, the Secretary is compelled to undertake an investigation: s 17(1). Once the investigation is complete, the Secretary must submit the application to the Respondent: s 17(2). Section 18(1) provides that the Respondent must “satisfy itself with respect to, or to determine, as the case requires, all matters relevant to the determination of the claim or application”. The matters which the Respondent must “satisfy itself with respect to, or … determine” are set out in s 19. Section 19 is a complex provision with multiple sub-sections which cross-reference to each other is a somewhat circular manner. For present purposes, it is sufficient to note that, in the case of an application under s 15(1) for an increase in the rate of a pension “[t]he Commission must deal with an application under subsection 15(1) in accordance with subsections (5A), (5B) and (5C) and determine the application under subsection (5D)”: s 19(4A). Section 19(5A) is straight forward and does not relevantly add anything to s 19(4A). Section 19(5B) provides that the Respondent must assess the matters set out in subsection (5C) in accordance with whichever of ss 22, 23, 24, 25, 27 and 30 are applicable in the particular case. Section 19(5C) then provides that:The matters that the Commission must assess are: (a)the rate or rates at which the pension would have been payable from time to time during the assessment period; and (b)subject to subsection (6), the rate at which the pension is payable. (Emphasis added.)

Ratio Decidendi

Legal Principle Established

The AAT’s consideration of the medical evidence related to Mr Smith’s non-war related ailments was said by Mr Smith to be found at [26], [27], [28], [29], [30], [31], [32], [33], [34], [35], [38], [41], [42], [43] and [44] of the AAT Decision (the Hypothetical Considerations). The AAT adopted the questions identified by Branson J in Flentjar: see [48] above. The Hypothetical Considerations are contained in the part of the AAT Decision which addresses the third question posed by Branson J. Section 24(1)(c) requires, in part, that the AAT undertake a hypothetical exercise. What would the veteran have done but for the war-caused incapacity?: Repatriation Commission v Smith (1987) 15 FCR 327 at 337 and Byrne v Repatriation Commission (2001) 33 AAR 410 at [10]-[11]. If the answer is the same, then that war-caused incapacity cannot be said to have been “the reason, rather than merely a reason, for the veteran’s inability to engage in the remunerative work which the veteran had previously done”: Willis v Repatriation Commission (2012) 202 FCR 323 at [24]. That hypothetical exercise necessarily requires a consideration of the other circumstances which might affect the veteran’s ability to obtain remunerative work. The AAT will only have fallen into error in considering what have been identified as the Hypothetical Considerations, if it can be shown that the AAT was prohibited from considering one or more of them: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. The considerations to be taken into account, and not to be taken into account, by a decision-maker are determined by reference to any consideration expressly referred to in the statute or, if none are stated, by implication from the subject-matter, scope and purpose of the statute: Peko-Wallsend at 39-42; Abebe v Commonwealth (1999) 197 CLR 510 at [195] and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [74]. What would Mr Smith have done without the war-caused PTSD? The Respondent submitted that on the material before the AAT and having removed the war-caused PTSD, the hypothetical Mr Smith:1.was at the date of the application for a special rate of pension, a 60 year old who was a qualified electrician with experience running farming enterprises (AAT Decision at [5] to [8]);2.sustained physical injuries in 1982, resulting in the amputation of his left leg and serious injury to his right knee and ankle (AAT Decision at [6]) but who returned to remunerative work five years later (AAT Decision at [7]);3.from 1997, experienced difficulties with mobility and balance and became tired quickly (AAT Decision at [24]);4.in 2000, had been prescribed various medications for his leg problems including Endone and anti-inflammatories (AAT Decision at [35] and [43]);5.as at 2002, was having increasing difficulty getting to work for reasons including his leg injuries (AAT Decision at [28]);6.as at 2003, found that his leg was getting sorer and sorer (AAT Decision at [29]) and that his physical disabilities impacted upon his mobility (AAT Decision at [31]);7.as at 2005, reported problems with walking due to the above knee amputation of his left leg and limited mobility of his right leg (AAT Decision at [32]);8.as at 2007, had been referred to a specialist for right groin and upper thigh pain (AAT Decision at [38]);9.as at 2008, had osteoarthritis of the right knee and chronic pain requiring physiotherapy (AAT Decision at [38]);10.as at 2009, was referred for occupational therapy assessment for a wheel chair and possible bathroom rails in his home (AAT Decision at [38]).