Smith v Repatriation Commission

Case [2004] FCA 743

FEDERAL COURT OF AUSTRALIA

Smith v Repatriation Commission [2004] FCA 743

DEFENCE AND WAR – Veterans’ entitlements – appeal from Administrative Appeals Tribunal – disability pension – special rate of pension under s 24 of the Veterans’ Entitlements Act 1986 (Cth) – whether enough evidence to conclude that veteran had ceased to engage in remunerative work

Veterans’ Entitlements Act 1986 (Cth) s 24
Administrative Appeals Tribunal Act 1975 (Cth) s 44

Sheehy v Repatriation Commission (1996) 66 FCR 569 cited
Flentjar v Repatriation Commission (1997) 48 ALD 1 referred to

GRAHAM JOHN SMITH v REPATRIATION COMMISSION

Q 193 OF 2003

DOWSETT J
11 JUNE 2004
BRISBANE (HEARD IN TOWNSVILLE)

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 193 OF 2003

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY A PRESIDENTIAL MEMBER

BETWEEN:

GRAHAM JOHN SMITH
APPELLANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

DOWSETT J

DATE OF ORDER:

11 JUNE 2004

WHERE MADE:

BRISBANE (HEARD IN TOWNSVILLE)

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent’s costs of and incidental to the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 193 OF 2003

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY A PRESIDENTIAL MEMBER

BETWEEN:

GRAHAM JOHN SMITH
APPELLANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

DOWSETT J

DATE:

11 JUNE 2004

PLACE:

BRISBANE (HEARD IN TOWNSVILLE)

REASONS FOR JUDGMENT

THE APPEAL

  1. Since 29 October 2000 the appellant has received a disability pension pursuant to the Veterans’ Entitlements Act 1986 (Cth) (the “Act”). On 29 January 2001 he applied to the respondent for a special rate disability pension but was unsuccessful. On 19 June 2001 he applied to the Veterans’ Review Board for review of that decision. The Board upheld the respondent’s decision. On 15 February 2002 the appellant unsuccessfully applied to the Administrative Appeals Tribunal (the “AAT”) for review. This is an appeal from the AAT’s decision. Pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), such an appeal is limited to questions of law.

    APPELLANT’S SERVICE HISTORY AND MEDICAL CONDITIONS

  2. The appellant was born on 23 April 1938 and joined the Royal Australian Air Force (the “RAAF”) in 1956, at the age of 18.  He served in Vietnam for eight months from 1 July 1965 to 3 March 1966.  He became ‘stressed out’, and was sent to Butterworth hospital for two weeks before being sent back to Australia.  He was discharged from the RAAF on 4 May 1973.  The AAT accepted that the applicant now suffers from the following service-related disabilities:

    ·bilateral sensori-neural hearing loss with tinnitus;

    ·squamous cell carcinoma;

    ·other specified gastritis;

    ·post-traumatic stress disorder;

    ·alcohol dependence or alcohol abuse;

    ·gastro-oesophageal reflux disease; and

    ·depressive disorder.

    WORK HISTORY

  3. Between his discharge from the RAAF and 1995 the appellant owned and managed various squash centres in the Townsville region.  He sold his squash business in 1995 and bought…

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Details
AGLC
Smith v Repatriation Commission [2004] FCA 743
Case
[2004] FCA 743
Decision Date

CaseChat Overview and Summary

The case of Smith v Repatriation Commission involves an appeal by the appellant, Mr. Smith, against a decision of the Administrative Appeals Tribunal (AAT) which upheld the decision of the Repatriation Commission to deny him a disability pension at a rate above 100% of the General Rate. The appellant contends that the AAT erred in its findings and conclusions, particularly regarding his intention to return to remunerative work and his eligibility under the Act. The legal issues before the court include whether the AAT properly considered the evidence and whether its findings were unreasonable or based on irrelevant considerations.

The court examined the AAT's findings and its reasoning process. The AAT determined that the appellant's cessation of remunerative work was not due to his service-related disabilities but rather due to strategic decisions related to his children's activities and compliance issues with council regulations. The AAT also found that upon returning to Townsville in October 2000, the appellant had no intention of seeking remunerative work and had instead focused on home improvements and hobbies. The court found that the AAT's reasons, while sparse, were clear and adequately addressed the appellant's submissions. The court dismissed the appellant's claims that the AAT failed to consider relevant matters or based its decision on irrelevant considerations. The court also found no merit in the appellant's assertion that the AAT's decision was unreasonable.

The court concluded that the appeal must be dismissed and ordered that the appellant pay the respondent's costs of and incidental to the appeal. This order reflects the court's finding that the AAT's decision was well-reasoned and based on the evidence presented.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of and incidental to the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Paragraph 24(2)(a) relates to the second requirement while par 24(2)(b) relates to the first.MEDICAL EVIDENCE The AAT considered the evidence of two psychiatrists, Dr Rogers and Dr Mulholland. Dr Rogers had treated the appellant since 19 March 2001. Dr Mulholland saw the appellant on 28 August 2002. The AAT summarized Dr Rogers’ evidence at par 8 of its reasons as follows:‘In his report dated 11 April 2001, Dr. Rogers said that the [appellant] told him that he retired in June 2000 due to a build up of work related stress and irritability which was affecting his relationship with his clientele. He also suffered chest pains and an acute cardio-vascular episode which required admission to intensive care in Brisbane, immediately prior to his retirement. Dr. Rogers does not believe that the [appellant] is capable of working more than eight hours per week. In a report dated 26 September 2001, Dr. Rogers said, “The deterioration in his mental state was the sole reason for him deciding to sell the business and retire from work.” ’ Dr Mulholland reported:‘Upon reviewing the total situation I consider that Mr. Graham Smith probably does suffer from a chronic major depressive disorder and chronic PTSD [post-traumatic stress disorder]. He formally suffered from chronic alcohol abuse/dependence but fortunately he has now got that under control. The genesis of his conditions appear to be his service in Vietnam when he was flying as assistant loadmaster in Caribou transports. His description was that chronic fear was the main psychological issue for him at that time and this led to problematical drinking. The problematical drinking continued for 30 + years however fortunately and wisely he ceased same in 1991.The reason this man stopped work is not due to psychiatric factors and the reason he is not working now is not due to psychiatric factors. It is likely that psychiatric factors did to some extent impair his working effectiveness but are not the fundamental reason for his not working. If suitable work was available there is no reason why this man could not work 20 hours + per week at the present time.’ The AAT said, concerning Dr Rogers’ evidence:‘10. Although Dr. Rogers appears to have misunderstood the reasons for the [appellant’s] cessation of his interests in the limousine business in 1998 and the squash business at Capalaba in June 2000, the Respondent and the Tribunal accept his evidence that the [appellant’s] service-related disabilities are of such a nature as, of themselves alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.’ The AAT did not make specific findings concerning Dr Mulholland’s evidence. FINDINGS The AAT found that the appellant satisfied pars 24(1)(a) and 24(1)(b) of the Act. The remaining matter for determination was whether the appellant satisfied par 24(1)(c). Concerning that matter, the AAT found:‘12. There is no doubt that the last remunerative work undertaken by the [appellant] was his limousine business which he sold in late 1998. He treated the Capalaba period as a holiday and he took no drawings from the business. He has not worked for remuneration since he returned to Townsville in October 2000.13. The sale of the limousine business in 1998 had nothing to do with any service-related disabilities. It was part of a strategic plan to give his son Marcus a chance at becoming professional squash player.14. The closure of the squash business at Capalaba was also not due to service-related disabilities. It was due to non-compliance with council regulations which culminated in the Council closing down the business.15. The Tribunal finds that the [appellant] ceased to engage in remunerative work in late 1998 for reasons other than his incapacity from war-caused injury or war-caused disease, or both.16. On his return to Townsville in October 2000, the [appellant] worked on his house and surroundings and built a shed. He did not look for work. By then he was receiving the Service Pension plus Disability Pension at 70% of the General Rate (later increased to 100% from 29 October 2000). At the same time he also significantly reduced his capital resources by spending $30,000 to $40,000 on his house and by buying two cars.17. The Tribunal finds that when the [appellant] returned to Townsville in October 2000 he had no intention of getting back into business.18. At the date of this application for an increase in pension to the Special Rate, 29 January 2001, the [appellant] had not sought remunerative work for over two years and he had just completed major refurbishment of his house in the previous four months.19. The Tribunal is satisfied that the main reason for the failure of the [appellant] to engage in remunerative work since November 1998 is the fact that he retired. He now drives limousines for a few hours per week as an interest, a hobby.20. The [appellant] does not satisfy subsection 24(1)(c) of the Act and is not entitled to disability pension at a rate above 100% of the General Rate.21. The decision to reject his claim is affirmed.’

Decision

Reasons for decision

DOWSETT J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: DOWSETT J

It is a little difficult to understand this ground. After summarizing (in a very general way) the material upon which the Tribunal relied, the appellant submitted that ‘[t]he Tribunal also received submissions based on s. 24(2)(b) of the Act, by way of Facts & Contentions and submissions by Counsel. It is submitted the Tribunal failed to have regard to these matters.’ This submission is said to be based upon the alleged absence from the AAT’s reasons of any consideration of such matters or of an explanation of the way in which the Tribunal reached the conclusion that the appellant had not intended to go back into business after returning to Townsville. As to the suggestion that certain matters were not referred to in the reasons, one might have expected the applicant to identify such matters with rather more precision. As to the Tribunal’s reasons, I consider them to be relatively clear, if somewhat sparse. I am unable to see any merit in this submission.Irrelevant considerations It is said that the Tribunal ‘focussed upon the [appellant’s] last remunerative work ... and the work the [appellant] had undertaken on his home in October 2000.’ It is further submitted that these matters were irrelevant ‘as to whether or not the [appellant] was prevent [sic] by reason of his war-caused disabilities alone, from undertaking remunerative employment as at the application day.’ These matters do not address the appellant’s inability to satisfy the second requirement of par 24(1)(c). It was also submitted that the appellant’s inability to obtain employment could not be seen ‘in any realistic or sensible way to be attributed to any motivation concern [sic] the [appellant’s] work in doing up his house, purchasing new vehicles or ceasing work in his limousine business in 1998 – or prior to the application day’. I cannot pretend to understand this submission.Unreasonableness In light of the findings above, this ground adds nothing to the appellant’s other submissions.Grounds in the notice of appeal As to the grounds specified in the notice of appeal, I do not consider that any of them adds anything to the grounds which appear in the outline. ORDERS The appeal must be dismissed with costs.