Stadoliukas and Repatriation Commission

[2003] AATA 565

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 565

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/57

VETERANS' APPEALS  DIVISION		)
Re		ANTANAS JANIS STADOLIUKAS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms S M Bullock,  Senior Member
Dr J D Campbell, Member

Date17 June 2003

PlaceSydney

Decision The decision under review is affirmed.

...............................................

Ms S M Bullock  Presiding Member

CATCHWORDS

VETERANS' AFFAIRS - Special Rate

LEGISLATION

Veterans' Entitlements Act 1986 ss 23, 24, 28

AUTHORITIES

Briginshaw v Briginshawand Another (1938) 60 CLR 336

Carter v Repatriation Commission (2001) 113 FCR 314

REASONS FOR DECISION

17 June 2003   Ms S M Bullock,  Senior Member
  Dr J D Campbell, Member                 

1.      This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by the Applicant, Mr Antanas Janis Stadoliukas, of a decision of the Veterans' Review Board  ("the Board") which on 5 December 2000 (T78), set aside the decision of the Respondent, the Repatriation Commission ("the Commission") dated 24 March 2000 (T63), substituting its decision that pension be assessed at 90 per cent of the General Rate to operate from and including 25 March 1996 and at 100 per cent of the General Rate to operate from and including 24 March 2000.  The Commission's decision was that Mr Stadoliukas' pension be reduced from the Special Rate to 90 per cent of the General Rate with effect from and including 25 March 1996.

2. A Hearing was held in Sydney on 17 April 2002 and 18 April 2002 and resumed on 28 November 2002. Mr Stadoliukas was represented by Mr N Dawson of Counsel and the Respondent was represented by Miss R Henderson of Counsel. Oral evidence was provided by Mr Stadoliukas, Mrs Stadoliukas, Mr SG Powell and Detective Senior Constable B Parker. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“T Documents”, T1-T82) and the following exhibits:

Exhibit	Description	Date
A1	Report by Dr M Burns, Occupational Physician	25 March 2002
A2	Statement by Mr Antanas Stadoliukas Letter to Ms Stadoliukas  from Mr Antanas Stadoliukas	15 March 2001 Undated
A3	Letter to Ms Stadoliukas from Mrs Sonja Stadoliukas	Undated
A4	Statutory Declaration from Mr Antanas Stadoliukas	Undated
A5	Statutory Declaration from Mr Barry McKay	Undated
A6	Letter to Mr Stadoliukas from the Vietnam Veterans’ Counselling Service and attachment	7 June 2000
A7	Letter to Mr Stadoliukas from Dr RE Rae	16 May 2000
A8	Letter from Auto Group Commercial NSW	3 May 2000
A9	Summary of programs attended by Mr Stadoliukas	Undated
A10	Two Certificates of attendance from Vietnam Veterans’ Counselling Service for Mr Antanas and Mrs Sonja Stadoliukas	7-11 December 1998
A11	Report from Lyonswood Investigation Service	28 September 2001
A12	Document entitled "Unfair dismissal – Summary of Outcome"	Undated
A13	Copy of wage records for Mr Stadoliukas and letter	13 September 2000
A14	Minute from the Department of Veterans’ Affairs and Attachment	18 April 2002
A15	Documents from Raine & Horne Real Estate, Fairfield	Various
A16	Documents in regard to the sale of 49 Goodacre Avenue, Fairfield	Various
A17	Letter from Plain Clothes Senior Constable M Ryan	7 August 2002
A18	Letter from Mr A Stadoliukas to Senior Constable Ryan	Undated
R1	Report by Dr J Chen, Consultant in Occupational Medicine	12 July 2001
R2	Report by Dr R  D Lewin, Consultant Psychiatrist	2 July 2001
R3	Statement by Mr Antanas J Stadoliukas	5 September 1995
R4	Copy of Bank Statements for the Joint Account of Mr and Mrs Stadoliukas	14 October 1997 - 7 November 2000
R5	Bank Statements and Commonwealth Bank letter	Various
R6	Letter from Auto Group Ltd to J Seccombe, Department of Veterans’ Affairs	21 January  2000
R7	Letter from the Australian Government Solicitor to M R Lupton, Auto Group Ltd	21 August 2002
R8	Letter from Mr S Powell,  Auto Group Ltd to  Ms  A Nanson	29 August 2002

THE ISSUES

3.      The issue in this matter is whether or not Mr Stadoliukas is qualified to receive a pension at either the Special Rate or at the Intermediate Rate and specifically:

(a)Whether or not Mr Stadoliukas' accepted disabilities alone render him incapable of undertaking remunerative for work for periods aggregating less than eight hours per week or less than 20 hours per week.

(b)Whether or not Mr Stadoliukas' accepted disabilities alone prevented him from undertaking the remunerative work he was undertaking and whether or not he has suffered a loss of earnings.

(c) When did Mr Stadoliukas cease working either eight hours per week   or working less than eight hours per week or less than 20 hours per week.

LEGISLATION

4.      A determination in this matter requires consideration of the Veterans' Entitlements Act 1986 ("the Act").

5. Section 23 of the Act deals with the Intermediate Rate of pension and as relevant states:

“23 Intermediate rate of pension

(1)       This section applies to a veteran if:

(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and

(aab)the veteran had not yet turned 65 when the claim or application was made; and

(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; and

(b)the veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and

(c)the veteran is, by reason of incapacity from 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 from that incapacity; and

(d)section 24 or 25 does not apply to the veteran.

(2)Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:

(a)if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or

(b)in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.

(3)       For the purpose of paragraph (1)(c):

(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) 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:

(i) if 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;

(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or

(iii) if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; 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.

...”

6. Section 24 of the Act deals with the Special Rate of pension and as relevant provides:

“24 Special rate of pension

(1)       This section applies to a Veteran if:

(aa)the Veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and

(aab)the Veteran had not yet turned 65 when the claim or application was   made; and

(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; and

(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; and

(d)section 25 does not apply to the.

(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.

... “

7. Section 28 of the Act deals with the capacity to undertake remunerative work and as relevant states:

“28 Capacity to undertake remunerative work

In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a Veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a Veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:

(a)the vocational, trade and professional skills, qualifications and experience of the Veteran;

(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and

(c)the degree to which the physical or mental impairment of the Veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

... “

BACKGROUND

8.      The following information is provided by way of background and is not disputed.

9. On 15 December 1998, following agreement having been reached between Mr Stadoliukas and the Repatriation Commission, the Tribunal issued a decision pursuant to section 42C of the Administrative Appeals Tribunal Act 1975, that Mr Stadoliukas was qualified to receive pension at the Special Rate with effect from and including 25 March 1996 (T49). This decision was based on Mr Stadoliukas having ceased employment on 28 August 1995 (T19, p76; T20,p80).

10. On 24 March 2000, pursuant to subsection 31(6) of the Act, the Commission reviewed the decision to grant Special Rate and a Senior Delegate reduced the rate of pension from the Special Rate to 90 per cent of the General Rate with effect from 25 March 1996 (T63). It was noted by the Commission that investigations had revealed that at the time the Tribunal made the decision pursuant to section 42C of the Administrative Appeals Tribunal Act 1975 to grant Mr Stadoliukas pension at the Special Rate, Mr Stadoliukas was in fact working as a casual truck-driver from 21 September 1995 until 27 July 1999 and he was working 32 hours per week during that period. The reason for cessation of work on 27 July 1999 was unclear, the Senior Delegate noted, but it was concluded that there was no evidence that Mr Stadoliukas lost his capacity for work due to his war-caused disease. Thus, the Senior Delegate determined that the Special Rate of pension was not payable to Mr Stadoliukas nor was the Intermediate Rate, the Senior Delegate determined. The pension was accordingly reduced to 90 per cent of General Rate.

11.     On 4 April 2000, Mr Stadoliukas made an Application for Review to the Board (T66) and on 5 December 2000, the Board set aside the Commission's decision of 24 March 2000 and substituted its decision that Mr Stadoliukas be assessed at 90 per cent of the General Rate from and including 25 March 1996 and at 100 per cent of the General Rate from and including 24 March 2000 (T2, T78).

12.     On 16 January 2001, Mr Stadoliukas lodged an Application for Review to the Tribunal  (T1).

13.     Mr Stadoliukas has the following accepted war-caused disabilities:

Sensori-neural hearing loss with tinnitus;

Lumbar spondylosis;

Alcohol dependence; and

Post traumatic stress disorder

Mr Stadoliukas has three non-accepted war-caused conditions namely:

Urticaria pigmentosa;

Osteoarthritis of the right hip joint; and
           Bad nerves.

EVIDENCE OF MR ANTANAS JANIS STADOLIUKAS

14.     Mr Stadoliukas told the Tribunal that he had been a Petty Officer in the Royal Australian Navy ("the Navy"). He had lost that rank once, becoming a Leading Seaman and then became a Petty Officer once more just before leaving the Navy.  Mr Stadoliukas believed that he was a Petty Officer for five years initially and then subsequently for a further two years (Transcript, 17 April 2002, p24). Mr Stadoliukas' total service in the Navy spanned nearly 21 years. He had re-enlisted three or four times.

15.     After leaving the Navy, Mr Stadoliukas began his own trucking sub-contracting business. He owned his vehicle.  Mr Stadoliukas would be provided with Group Certificates from various employers and he would put his pay slips and Group Certificates into a box and then at the appropriate time, give these documents to his accountant, who assisted him since he left the Navy. Mr Stadoliukas stated he would not look at these documents, but just simply provide them to his accountant. Mr Stadoliukas stated that he did not recall signing any tax returns, only giving the accountant this box. Perhaps he may have later signed an authority, he stated. Mr Stadoliukas subsequently provided evidence that he did not read the declaration in the tax returns that he was required to tell the truth. When working as a sub-contractor, Mr Stadoliukas did not recall receiving any income tax refunds (Transcript, 17 April 2002, p26). Perhaps two or three years ago, Mr and Mrs Stadoliukas were looking at various financial documents and they were concerned that something was not correct. Mr and Mrs Stadoliukas then confronted Mr Stadoliukas' accountant with the allegation that he owed his client, Mr Stadoliukas, money. The accountant, “Mr Cassaniti”, took $3000.00 from his safe and gave it to Mr Stadoliukas. Mr Stadoliukas stated the accountant actually owed him $4500.00 and later Mr Stadoliukas went back to attempt to obtain the additional $1500.00 but the accountant refused.

16.     Mr Stadoliukas stated that Mrs Stadoliukas did not have anything to do with his finances, it was his own business. Mr and Mrs Stadoliukas were interviewed about Mr Cassaniti by officers from the Queensland Taxation Office some 18 months ago. Mr Stadoliukas stated that he has retained the services of a new accountant, Ms T Powell of Penrith.

17.     Mr Stadoliukas told the Tribunal that prior to meeting his present wife, he had his own property at Windston Hills over which there was a mortgage.  Mr Stadoliukas supported himself and his wife, as she did not work. Mr Stadoliukas has three sons and another son who is deceased, stillborn. He does not see his children often, he told the Tribunal. 

18.     Mr and Mrs Stadoliukas married in January 1995 having lived together for approximately 12 months. Initially, Mr and Mrs Stadoliukas lived in Fairfield at his wife's property in Goodacre Street, Fairfield, which was unencumbered.  Mr and Mrs Stadoliukas moved in about 1996 or 1997 to live in another property at Emu Plains over which there was a mortgage. The couple borrowed approximately $198,000.00. Mr Stadoliukas could not recall precise details but believed that the fortnightly mortgage repayments were $660.00 paid to the State Bank.

19.     Mr Stadoliukas stated that he was dismissed from his previous employment at Campbelltown City Car Carriers. He was employed there by Mr Cole.  Mr Stadoliukas believed the date suggested by Miss Henderson of 28 August 1995 was the date of his dismissal but noted that it was hard for him to remember such matters. A statement from Mr Cole in relation to Mr Stadoliukas' employment at Campbelltown City Car Carriers noted on 24 July 1995 that Mr Stadoliukas commenced employment with Campbelltown City Car Carriers on 15 November 1994 as a truck driver and that he had had three days off work from the commencement of employment until the date of completion of form on 24 July 1995 (T9). There were two days’ absence on 18 and 19 May 1995 and a further day on 20 January 1995. Mr Cole indicated that the nature of the illness or injury causing time off work was not known as no certificates were supplied. Mr Stadoliukas stated to the Tribunal that he was only off work a couple of days in 1995. He further explained that during that period, he would have taken time off work for medical appointments. All Mr Stadoliukas could say is that by the time Mr Cole was reporting that Mr Stadoliukas only had three days off, that covered a period when there was a great deal of difficulty between himself and Mr Cole.

20.     Mr Stadoliukas told the Tribunal that it was difficult for him to recall precisely what he might have been doing in May 1995 when he was working for Mr and Mrs Cole. He stated that he did not need help to drive the truck which carried cars as it had power brakes. This evidence differed to what he had written in a Lifestyle Questionnaire dated 13 May 1995 (T6) in which he noted at Question 11 that he needed someone to help him move around by driving him to appointments.

21.     Mr Stadoliukas was dismissed from Campbelltown City Car Carriers for the “official reason” that he was falsifying his work sheets.  The real reason Mr Stadoliukas believed lay behind his dismissal from Campbelltown City Car Carriers was that he had given advice to his boss, Mr Cole about Mrs Cole's alcohol consumption problems. At that time, Mr Stadoliukas was himself attending Alcoholics Anonymous and also the Al-Anon program and Mr Cole knew about that (Transcript, 17 April 2002, p28). Mrs Cole then accused Mr Stadoliukas of calling her an alcoholic.

22.     In the statement Mr Stadoliukas made on 5 September 1995 for the purpose of the Industrial Relations Commission proceedings, he noted that he was performing his driving duties diligently and had been offered a promotion to drive a six car carrier vehicle. He created an excellent working relationship with his customers. He carried out repairs on the vehicles and always refuelled the vehicles (Exhibit R3). When working at Campbelltown City Car Carriers, the employment involved five days per week, although some days would not be a full day. Mr Stadoliukas estimated that on average he would work approximately 20 hours per week. He was not a permanent employee towards the end of his period of work with this company. Mr Stadoliukas stated that Mr Cole would not give him the satisfaction of giving him full time work. Mr Stadoliukas wanted to undertake more driving jobs than were allocated to him. Mr Stadoliukas agreed that he had told the Industrial Relations Commission that he wished to be reinstated at Campbelltown City Car Carriers.  In his Lifestyle Questionnaire dated 13 May 1995 (T6) at Question 17, Mr Stadoliukas had recorded that he was unable to undertake house repairs, washing the car, lifting, or light or heavy gardening, Mr Stadoliukas disagreed that he had undertaken repairs on the Goodacre property stating that he employed someone to undertake such tasks.  At Question 29, Mr Stadoliukas noted that he had lost seven months from work during the previous 12 months because of his disabilities. Mr Stadoliukas explained the seeming inconsistency between him losing so much time because of his disabilities and his other statement that he wanted to obtain more work from Mr Cole by noting that some days he would be able to work and others it was difficult.

23.     Mr Stadoliukas stated that he did need his wife to drive him around to appointments and sometimes when he was employed and driving a truck, he would have an offsider. He reiterated that he had good days and bad days however.

24.     Mr Stadoliukas stated that at that period of his life he was "stuffed ". His memory about such matters is poor, he told the Tribunal. After his dismissal, Mr Stadoliukas found it very difficult to obtain work.  He told the Industrial Relations Commission of this difficulty.  He sought work driving vehicles and attested to this before the Industrial Relations Commission. He tried to obtain employment from Mr Shortland of "Advanced Carriers", but Mr Shortland would not employ Mr Stadoliukas because he had heard of him having a few problems including being too aggressive and consuming a great deal of alcohol. Mr Shortland wrote at 24 July 1997 that he had known Mr Stadoliukas for approximately six years when they worked together as owner-drivers for the same Prime Contractor for approximately five of those years. Mr Shortland wrote that he would not expose his customers to Mr Stadoliukas on the truck because Mr Stadoliukas was drinking more and more and becoming aggressive in his attitude towards everyone. It was for those reasons that Mr Shortland refused Mr Stadoliukas' request to drive for Mr Shortland (T33). He has told the Tribunal that he had a "work face and a private face". Mr Stadoliukas noted that in 1994 prior to his working with Campbelltown City Car Carriers, he had worked at K&S Freighters and was dismissed from that position because of fighting.

25.     On 3 June 1997, Mr Stadoliukas received $2500.00 into his account. This was payment, he stated, from the dismissal being changed to a redundancy as a result of the Industrial Relations Commission  proceedings.

26.     Mr Stadoliukas told the Tribunal that eventually he was successful in obtaining work initially being offered two days per week at Enfield Motor Auctions.  He could not recall when he commenced this employment but thought that it could have been on about 21 September 1995. The hours in Enfield Motors changed dramatically however. His evidence was that he commenced work at that organisation two days per week (Transcript, 17 April 2002, p32) and he then told his bosses that this was too much. Mr Stadoliukas subsequently worked, he told the Tribunal, only when he felt up to it. Mr Stadoliukas stated that his hours of work diminished to next to nothing and this was for the majority of the time he worked at Enfield Motor Auctions.  Mr Stadoliukas stated that he could not work for two or three months. When he did work, he would earn about $100.00 - $120.00 per week. He would pocket this money. Mr Stadoliukas stated that his financial situation was poor, he was on the "bones of my backside when you took my pension away from me..." (Transcript, 17 April 2002, p37). He had looked through his papers and found some superannuation documents noting that he had paid into one which he believed was a GIO fund and another one whose name he could not recall.  Mr Stadoliukas' evidence was that he would work five or six hours or up to nine or ten hours normally working on a Friday. There were also car auctions on Wednesday and Thursday. If the company needed him for extra work, he would be phoned the day before he was required.  It was rare, Mr Stadoliukas stated, that he would agree to extra work as he could only manage one day. He stated that some months he would not be able to work because of poor health.

27.     Mr Stadoliukas' duties at Enfield Motor Auctions included driving the cars around the auction grounds and also being the security guard on the auction floor in addition to sweeping the floor.  At the car yard, Mr Stadoliukas would chamois cars if required but later stated that he rarely drove the car. When he first commenced with Enfield Motors or Auto Group as it later became known, he would work on a Friday from about 3pm until 9pm to help out in the night auctions. When the company changed to Auto Group, he changed to a different section in the heavy equipment division which he thought was in about 1998 or early 1999.  Mr Stadoliukas stated that his payment was less than $100.00 per day. Mr Stadoliukas stated that later in his employment he worked one day per month on a Tuesday (Transcript, 17 April 2002, p34). By that stage, Mr Stadoliukas' duties involved him guiding people into parking positions on the heavy equipment auction days.

28.     Mr Stadoliukas stated that his wife would drive him to work. He would not be paid for his work on the same day but stated that he would usually be paid in cash sometime later. Mrs Stadoliukas would drive him to pick up his earnings. He stated that he did not receive pay slips but his Group Certificates were sent by Post which he placed in his financial document box with all his other receipts and eventually provided that to his accountant.

29.     Mr Stadoliukas was questioned about an application for a Service Pension (T15) signed on 29 January 1996. In the application, Mr Stadoliukas recorded that he had ceased work on 28 August 1995 (T15, p58). At the time of making the application for the Service Pension, that is on 29 January 1996, it was put to Mr Stadoliukas that had already commenced work at Enfield Motors. Mr Stadoliukas agreed that he had commenced employment as a casual worker yet he had recorded in the application for the Service Pension that he had ceased work on 28 August 1995 and had not worked since. As far as Mr Stadoliukas could recollect, he believed that he was between jobs as a casual worker with either Campbelltown City Car Carriers and Enfield Motors (Transcript, 17 April 2002, p52).  Correspondence from the Auto Group [Enfield Motors] indicated that he had commenced work with them on 21 September 1995 (T61).

30.     Between 1995 until the present, Mr Stadoliukas has received a pension from the Defence Force Retirement Benefits Fund (“the DFRB”) of over $400.00 per fortnight. He had also applied for a Disability Support Pension from Centrelink. Thus, during 1995 he was obtaining the pension from the DFRB, Centrelink, a Service Pension and a Disability Pension from the Department of Veterans' Affairs.  Mrs Stadoliukas was also renting out her Fairfield property for about half a year with the rental being $210.00 per week. Mr Stadoliukas did not know, when referred to relevant tax returns, that the rental property in fact made a loss.

31.     In September 1997, an amount of $6000.00 was deposited in his account but he had no idea what this related to (Transcript, 17 April 2002, p39).  He also had no idea about a deposit of $3,000.00 made on 9 October 1997 (Transcript, 17 April 2002, p39).  Mr Stadoliukas thought that a deposit made on 30 July 1998 of $510.00 related to a superannuation payment (Transcript, 17 April 2002, p39).  On 25 January 1999, there was a deposit made of $30,532.72 which he thought was related to the sale of a house or back payments from the Department of Veterans’ Affairs.  Deposits made in 1997 and 1998 could have related to the sale of goods such as metal detectors and furniture because Mr Stadoliukas needed the money.  He did not know about deposits of $793.77 on 3 June 1999 or $500.00 on 13 December 1999 (Transcript, 17 April 2002, p41).  A deposit of $853.60 could have related to superannuation. A deposit of $3751.94 in March 2000 was from superannuation, Mr Stadoliukas stated. On 3 November 2000, a deposit of $20,571.46 was a Defence Force Home Loan (Transcript, 17 April 2002, p42).  Mr Stadoliukas also noted that on 2 February 2001, a deposit of $1733.10 related to superannuation or a “Lotto” win (Transcript, 17 April 2002, p42).  On 26 February 2001, there was a deposit at Penrith Plaza of $28,875,39 which Mr Stadoliukas believed related to superannuation. A further sum of $1081.78 deposited on 3 May 2001 could not be identified by Mr Stadoliukas. Mr Stadoliukas told the Tribunal that he had his Department of Veterans' Affairs pension deposited into his own account. He also had a joint bank account with Mrs Stadoliukas at the State Bank, Fairfield branch and this was used to cover mortgage repayments. Mr Stadoliukas stated that his wife deposited funds into that account (Transcript, 17 April 2002, p43).

32.     Mr Stadoliukas was questioned about his evidence to a Veterans' Review Board Hearing on 5 December 2000, but he did not recall this occasion. He did not recall telling the Board that he was unable to obtain employment because he did not have any references from Campbelltown City Car Carriers. Mr Stadoliukas was asked if he could think of any reason why he did not tell the Board that in fact he was undertaking casual work for Enfield Motor Auctions. Mr Stadoliukas' answer to the question was that Enfield Motor Auctions only wanted him there so they could use him as a number, a tax file number. When pressed on why he had not disclosed to the Board that he was working with Enfield Motors or that he was running a chamois over a car and helping with security, Mr Stadoliukas replied that it was not a job, it was just “putting in a bit of time there. That's all it was." (Transcript, 17 April 2002, p62).  Mr Stadoliukas agreed that he was given a sum of money for going to Enfield Motor Auctions and putting in time there but again stated that he did not know why they wanted him because he had told them he was unable to work full time. When asked whether or not he considered it work, Mr Stadoliukas stated it was "putting in an appearance....". (Transcript, 17 April 2002, p63). Mr Stadoliukas was further asked why was it that when he completed forms for the Department of Veterans' Affairs, he did not disclose that he was undertaking the work at Enfield Motor Auctions.  Mr Stadoliukas replied:

"When I was working-when I filled out these forms-when I first started there I probably worked there two days a week for about a month or so and then after that my deterioration in my health, my wellbeing, my mind - I just, I got blown away. The thing that really killed me was the ... that I copped with Steve  Cole and that was the straw that broke the camel’s back.  From that day on my whole perception of outside the Navy was blown to  ….. .  There was (sic) people you cannot trust.  I can’t trust people.  I cannot trust.” (Transcript, 17 April 2002, p63).

33.     Mr Stadoliukas provided a statement dated 15 March 2001 (Exhibit A2) which he told the Tribunal was correct.  In that statement at paragraph 9, he noted that he was provided with pay slips and from those he was able to demonstrate that at the time covered by some of the pay slips, he was undergoing residential counselling through the Vietnam Veterans’ Association, Alcoholics Anonymous Meetings and Al-Anon Meetings.  Mr Stadoliukas was questioned about this because he noted in evidence to the Tribunal that he was paid cash in the hand (Transcript, 17 April 2002, p63).  Mr Stadoliukas explained that when the Department of Veterans’ Affairs ceased his Special Rate of pension, he phoned Enfield Motor Auctions and asked one of the payroll officers to check records and subsequently, she found some pay slips for him.  Mr Stadoliukas noted Exhibit A9 from the Vietnam Veterans’ Counselling Service recording his attendance at the Lifestyle Program from 7 to 11 December 1998; a follow-up course undertaken on an outpatient basis on March 9, 16, 23 and 30 and also on April 6, 13, 20, 27 and May 4 1999; a Parenting Course for two full days on 25 November 1998 and 2 December 1998; and a Stress and Anger Management Course conducted on Thursdays commencing on August 6, 13, 20, 27; September 3, 10, 17, 24; and, 1, 8, 15, 22 and 29 October 1998.  A further Stress and Anger Management course was undertaken from 30 March until 18 May 2000 from 4:30pm until 6:30pm and finally a Drug and Alcohol Program with an information day occurring between 9:30am and 4:30pm on 16 September 1999 with the program commencing on Tuesdays for eight weeks from 10:00am until 12 noon and from 7 October until 2 December 1999.

34.     Mr Stadoliukas consulted Dr M Dent, Psychiatrist, he thought in June 1998 [ it appears to be on 7 May 1998 (T44)] and told the Tribunal that he possibly did not inform Dr Dent that at that time he was working at Enfield Motors, probably because Dr Dent did not ask him.  Mr Stadoliukas stated that by the time he consulted Dr Dent, he was only “just working” at Enfield Motor Auctions, it was like “blinking”, it was  non-existent work (Transcript, 17 April 2002, p66).  He stated that all he was there for was to make up the numbers on a tax file.  He stated that towards the end of his time at Enfield Motor Auctions, he probably was only attending once every couple of months or once every three months at that particular time because he was in the middle of his rehabilitation programs.  Mr Stadoliukas stated that he had told Dr Dent about losing his job at Campbelltown City Car Carriers in 1995.  He subsequently told the Tribunal that he did not tell Dr Dent about the Enfield Motors or Auto Group because he was not working full time and he did not class his attendance there as a job but rather “just sort of like getting out of the house” (Transcript, 17 April 2002, pp66,67).  Mr Stadoliukas was further questioned as to why he would mention what he considered had become a part-time job at Campbelltown City Car Carriers in 1995 to Dr Dent if he did not consider, as he was asserting to the Tribunal in relation to the Enfield Motor Auctions or Auto Group as it later became known, that such part time work was in fact a job.  Mr Stadoliukas’ retort was that when he first started with Mr Cole at Campbelltown City Car Carriers, he was working in a full-time job.  Towards the end of that particular period of employment, it was a farce “working with Mr Cole”.  Furthermore, when he started out working for Enfield Motor Auctions, he commenced there as a casual and was only working there on a very limited time, he explained to the Tribunal.

35.     Mr Stadoliukas confirmed that he had also consulted Dr Law, Consultant Psychiatrist, on a number of occasions.  In April 1996, Mr Stadoliukas had not told Dr Law that he was working at the Auto Group because he did not see the need to given that he was not putting in the hours (Transcript, 17 April 2002, pp 67, 68).  Mr Stadoliukas explained that he was asked to go into work to put in an appearance so that they could use him.  He said that he would go into Auto Group and would sweep the floors, occasionally chamois a car, occasionally drive a car and then walk around during the auction as a security person (Transcript, 17 April 2002, p67).  He did not see any need to tell Dr Law that he was undertaking this activity doing many hours at all.  When questioned as to whether Mr Stadoliukas was hoping that he would obtain more money from the Department of Veterans’ Affairs if he did not mention that he was working, his answer was, “I was working hard.  My life was a shambles. My life even today is a ….. shambles.  I work hard for my recovery.  I have been trying hard with my recovery.”  (Transcript, 17 April 2002, p68).

36.     Mr Stadoliukas also recalled being examined by Dr Lewin, Psychiatrist in Bondi Junction on the second occasion but not on the first.  In his report of 18 September 1998 (T46), Dr Lewin reported that Mr Stadoliukas last worked four years ago, that is, in 1994.  Mr Stadoliukas stated that he did not recall seeing Dr Lewin in September 1998 let alone what he told Dr Lewin.

37.     Currently, Mr and Mrs Stadoliukas own their home in Emu Plains and own no other property.  Previously, Mrs Stadoliukas had sold her home and Mr Stadoliukas’ home was repossessed in about 1994 or 1995 because of money difficulties.  Mr Stadoliukas owns a 1988 Nissan Skyline motor vehicle and a trailer.  He still owns a number of metal detectors and has some jewellery.  Mr Stadoliukas informed the Tribunal that he spends most of his day watching television and will occasionally go to the Penrith RSL Club probably once per month.  When Mr Stadoliukas is feeling well, he will undertake some work around the house and occasionally paint.  He will also on occasion visit the local Leagues Club.  At the time of the Hearing, Mr Stadoliukas stated that he was still consuming alcohol and the night prior to the Hearing he had consumed four schooners of beer.  Dr Law had prescribed the medication “Caporal" to help Mr Stadoliukas cease his alcohol consumption.  Mr Stadoliukas stated that he did not drink and drive. Mr Stadoliukas estimated that he would spend between $75.00 and $100.00 per week on alcohol and he also gambles by playing lotto and poker machines.  Mrs Stadoliukas provides her husband with an allowance in the amount of $100.00, but sometimes he will be given more.  Mr Stadoliukas stated that he rarely goes out drinking alone and he sometimes goes out with his disabled stepson.

EVIDENCE OF SONJA  MAUREEN STADOLIUKAS

38.     Mrs Stadoliukas told the Tribunal that she and Mr Stadoliukas met at a “Parents without Partners” meeting and they married on 21 January 1995, having been engaged in 1994.  Mrs Stadoliukas noted that her memory was not very good as she is epileptic and this impairs her memory function. 

39.     Mrs Stadoliukas stated that initially the couple lived at her home in Fairfield.  Mr Stadoliukas had a “very casual job” driving vehicles and working for someone else.  Initially he was at “Enfield Auto Group”. Mrs Stadoliukas would drive her husband to work once per week or once per month when he could handle working, she stated.  Mrs Stadoliukas drove her husband to work because she was worried about him expressing road rage and perhaps hurting someone.  He was also stressed at the end of the day.  Mrs Stadoliukas stated that she does not work.

40.     Mrs Stadoliukas recalled attending the Industrial Relations Commission with her husband in 1995 and also remembered Mr and Mrs Cole.  Mrs Stadoliukas was referred to a statement made on 27 July 1997 (T34, p110) in which, amongst other matters, she noted that she was not surprised that her husband had lost his job due to his aggressive attitude towards others.  Mrs Stadoliukas told the Tribunal that she did not know what she had in mind when she wrote this.  The letter was written when Mrs Stadoliukas was receiving counselling she told the Tribunal.

41.     Mrs Stadoliukas recalled her husband attending a live-in counselling course, the “Lifestyle Program”, held by the Vietnam Veterans’ Association from 7 December until 11 December 1998 (Exhibit A10). 

42.     Turning to the issue of finances, Mrs Stadoliukas stated that since she has been married to Mr Stadoliukas, she is the financial manager.  Mrs Stadoliukas stated that she believed that her husband knew of her financial achievements prior to marrying him and hence allowed her to manage the finances because she was well able to do so. Mrs Stadoliukas stated that her husband has a tendency to over spend money and it is as if it burns a hole in his pocket.

43.     Mrs Stadoliukas considered the Commonwealth Bank Joint Account details (Exhibit R4) which, she stated, was the mortgage account.  A deposit on 14 November 1997 of $660.00 was the monthly mortgage repayment, she stated. Rent, which Mrs Stadoliukas received from her Fairfield home, was also deposited into this account, the house having been rented from about 8 November 1997 when the couple moved to their current home at Emu Plains.  The Fairfield home was sold in 1998 to service the loan on the Emu Plains home.  The Emu Plains residence had a mortgage of $198,000.00 and this was ultimately paid off using a Defence Service Loan of approximately $22,000.00.  Mrs Stadoliukas stated that she used a different bank account for the couple’s personal needs.  Mrs Stadoliukas informed the Tribunal that there is an agreement between herself and her husband that she provides him with an allowance of approximately $100.00 per week.  Mrs Stadoliukas stated that she is very careful with money.  Their budget has approximately $150.00 per week allocated for living expenses but has increased to about $250.00 per week.  When the couple were first married, they did not go out very much and they still do not.

44.      When Mr Stadoliukas worked, he did not give his wife his pay slips and she did not think, in any event, that he received pay slips.  Mrs Stadoliukas told the Tribunal that she did not attend her husband’s first accountant’s office with Mr Stadoliukas but that she was suspicious about the accountant’s handling of their financial affairs.

45.     Mrs Stadoliukas described her husband spending his day, perhaps going to the movies or going to the local markets.  He is a “video freak", she stated.  Occasionally, Mrs Stadoliukas would drop her husband at the Penrith Panthers Club on Wednesday at about 9.00am and then she will pick him up at about 4:00pm or 5:00pm.  Mrs Stadoliukas stated that her husband has a gambling problem. Mr Stadoliukas plays the poker machines and lotto.

46.     Mrs Stadoliukas described her husband as coping all right for two or three weeks and then for no apparent reason he would become depressed.  These mood swings can be very violent, Mrs Stadoliukas stated.  She has previously called the police on three occasions because she was so frightened. Mrs Stadoliukas’ believes that her husband is depressed.  She noted that Mr Stadoliukas consults his General Practitioner on a regular basis and attends many Alcoholics Anonymous meetings.

47.     In about 1997, Mrs Stadoliukas commenced counselling herself and has also attended many courses with Mr Stadoliukas.  Initially, her husband was not able to accept help but eventually Mrs Stadoliukas’ own counsellor encouraged her husband to attend Mrs Stadoliukas' meetings two or three times per week.

EVIDENCE OF DETECTIVE SENIOR CONSTABLE BRIAN PARKER

48.     Detective Senior Constable Parker provided evidence by telephone.  He stated that he works in the New South Wales Government Crime Investigation Unit of the New South Wales Police Service.  Detective Senior Constable Parker stated that as far as he is aware, there was an investigation being undertaken regarding the payroll of the Auto Group.  He was not involved with this investigation but knew that Plain Clothes Senior Constable Matthew Ryan was conducting this investigation.  Senior Constable Ryan was on long service leave, returning, Detective Senior Constable Parker believed, in July 2002 to the Commercial Crime Unit.  Detective Senior Constable Parker could not confirm nor deny whether Mr Stadoliukas was a suspect or a victim of payroll fraud.

DOCUMENTARY EVIDENCE

evidence of plain clothes senior constable matthew ryan

49.     Senior Constable Ryan provided a letter to the Legal Aid Commission (Exhibit A17) dated 7 August 2002, stating that on 30 May 2000, he had received a complaint of suspected employee payroll fraud occurring in the Detailing Section of Auto Group Limited.  The matter was still being investigated at the time of Senior Constable Ryan’s statement.  The complainant had also made an inquiry with Senior Constable Ryan about an employee, who worked in a different section, but he had not received any complaint from the Auto Group Limited or any employee of the Auto Group Limited “relating to the matter of the veteran’s pension ….”  (Exhibit A17).

dr m burns, occupational physician

50.     Dr Burns provided a report dated 25 March 2002 (Exhibit A1) having examined Mr Stadoliukas on 25 March 2002.  Dr Burns noted that Mr Stadoliukas’ major problem is his alcohol dependence and post traumatic stress disorder with significant symptoms going back to the early 1990s.  Dr Burns’ opinion is that the decision to grant Mr Stadoliukas pension at the Special Rate in 1996 was correct.  While noting the issue of possible “fraud within his [Mr Stadoliukas’] previous employer”, Dr Burns concluded that on Mr Stadoliukas’ presentation and from the documentation, it was highly unlikely that Mr Stadoliukas was able to work full time throughout the years he was in receipt of the Special Rate.  Dr Burns further opined that he did not believe Mr Stadoliukas’ psychiatric condition would have allowed him to work.  Dr Burns concluded that Mr Stadoliukas would be unable to work even eight hours per week due to his alcohol dependence and post traumatic stress disorder.  Furthermore, it is highly likely that Mr Stadoliukas would have to enter hospital for a detoxification program in the near to middle term.  Mr Stadoliukas continues to drink at dangerous levels and has little insight into his problem, Dr Burns opined.

dr s k law, consultant psychiatrist

51.     Dr Law is Mr Stadoliukas’ treating psychiatrist.  He has provided a number of reports dated: 26 April 1996 (T21); 29 April 1997 (T32); 6 August 1997 (T37); 14 August 1997 (T38). In his report of 14 August 1997, Dr Law noted that on 19 April 1996, Mr Stadoliukas had reported drinking seven days per week, consuming six beers per day in addition to a bottle of wine.  Drinking relaxed Mr Stadoliukas, Dr Law noted.  A mental examination revealed he was nervous, dejected and frustrated and he was counselled by Dr Law in relation to non-drug ways of achieving relaxation.  Dr Law concluded that Mr Stadoliukas has continued to suffer from significant symptoms of post traumatic stress disorder and alcohol dependence and that both conditions were directly causally related to his past adverse war experiences.  Dr Law opined that as at 14 August 1997, Mr Stadoliukas’ chances of being able to improve and return to gainful employment were bleak.

dr j chen, consultant in occupational medicine, occupational health, safety and rehabilitation

52.     Dr Chen provided a report dated 12 July 2001 (Exhibit R1) having examined Mr Stadoliukas on that same day.

53.     Dr Chen considered that Mr Stadoliukas has an impairment rating of 22 points for his psychiatric condition from Chapter 4 of the “Guide to the Assessment of the Rate of Veterans’ Pensions” (“the Guide”).  Dr Chen opined that Mr  Stadoliukas’ accepted disabilities would not prevent him from undertaking remunerative work of eight hours per week or more.  Furthermore, Dr Chen opined that Mr Stadoliukas’ accepted conditions would prevent him from undertaking remunerative work of 20 hours per week or more. Dr Chen believes that Mr Stadoliukas’ lower back condition did not prevent him from driving a car carrier up to at least 1996 and it was not a limiting condition in his employment previously.  Furthermore, it was not evident to Dr Chen that post traumatic stress disorder interfered with Mr Stadoliukas’ ability to work.  It is Dr Chen’s impression that Mr Stadoliukas’ alcohol dependence may have limited his capacity, this latter condition however would not have prevented part-time work such as work as a yard hand for up to 19 hours per week.  Dr Chen concluded that Mr Stadoliukas was capable of continuing with his work with Auto Group Auctions in July 1999 and thereafter.  Dr Chen noted that Mr Stadoliukas told her that he had ceased working for Enfield Motor Auctions in June or July 1999 when management informed him that he was no longer required.  Dr Chen concluded that the reason why Mr Stadoliukas ceased work therefore did not relate to his accepted disabilities.

mr barry mckay

54.     Mr McKay provided an undated Statutory Declaration (Exhibit A5).  Mr McKay noted that in about 1994, when he was working for Enfield Motor Auctions, an error was made in the Group Certificate which showed Mr McKay as having more earnings than he had actually received.  Mr McKay’s boss told him not to worry about it as it would be fixed up.

auto group commercial new south wales 

55.     In a statement from the Auto Group by K Macdonald (Payroll Department) dated 21 January 2000, it was noted that Mr Stadoliukas was employed by Auto Group on 21 September 1995 ceasing employment on 27 July 1999 (T61).  He was noted to work 32 hours per week on average for the entire period.  It was not possible to say from the records whether or not he was at work on 4 August 1997.

56.     In a further statement made on behalf of Auto Group Commercial, it was confirmed that Mr Stadoliukas was an employee of the company for six months to 27 July 1999.  It was noted that he worked as a General Yard Hand and as a Carpark Attendant on auction day, the last Tuesday of the month (Exhibit A8).

statement from mr s powell, group administratior, auto group limited

57.     Mr Powell wrote to the AGS on 29 August 2002 (Exhibit R8), stating that Mr Stadoliukas was not employed in the car detailing business.  Mr Stadoliukas had worked at the Enfield site of Motor Auctions Pty Ltd now known as Auto Group Auctions Pty Ltd.  There has been no fraud complaint lodged about payroll fraud in the Auto Group Auctions Pty Ltd.

SUBMISSIONS

58.     Mr Dawson submitted that it was understandable that on the face of it, it looked as though Mr Stadoliukas had been working far more than he should have been and earning considerable amounts of money.  Mr Dawson also submitted that the Tribunal had a difficult task knowing that there had been general complaints and an investigation by the police about possible payroll fraud at Mr Stadoliukas’ place of employment at the Auto Group. Mr Stadoliukas’ claim is that his wages were being inflated for someone else’s gain.  Mr Dawson referred the Tribunal to Mr McKay’s Statutory Declaration that a similar thing had occurred to him (Exhibit A5).  Mr Dawson submitted that the Tribunal should apply the test arising out of the High Court decision in Briginshaw v Briginshaw and Another  (1938) 60 CLR 336 and specifically Dixon J comments at page 362:

“…But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.  The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.  In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.  Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.”

59.     The Applicant contended that given the gravity of the likely outcome in these proceedings the Tribunal has to be comfortable that reducing Mr Stadoliukas’ pension from Special Rate to 100 per cent of the General Rate has been proved and not by indirect inferences.  The Tribunal, knowing that there is an allegation of payroll fraud and knowing that those allegations are enough for the police to be investigating and knowing also that it is allegedly occurred to someone else, the Respondent is then asking the Tribunal to put all of that aside and accept Mr Stadoliukas’ timesheets and payroll records are correct, Mr Dawson submitted.  Mr Dawson contended that the payroll records show that even during many of the weeks when Mr  Stadoliukas was at least on one day that week attending medical appointments or courses, his pay does not change. 

60.     Mr Dawson referred the Tribunal to one particularly significant example which indicated the incorrect nature of the payroll records (Exhibit A13). An Attendance Certificate (Exhibit A10) indicated that from 7 to 11 November 1998, Mr Stadoliukas and his wife completed a Lifestyle Program. In contrast however, Exhibit A13, p105 showed that Mr Stadoliukas had worked 35 hours that week being paid as a casual.  There is no suggestion on this payroll record, Mr Dawson submitted, that Mr Stadoliukas was paid sick leave for that week or annual leave and it is the Applicant’s contention that this pattern of recording earnings was being repeated for periods when Mr Stadoliukas was not working and was somewhere else. With those two pieces of evidence, Mr Dawson submitted that it was an impossibility that Mr Stadoliukas and his wife could have been at a five day live-in Lifestyle Program and managed to work 35 hours as is depicted by the records. When Mr Stadoliukas is recorded as working 35 hours it is clear that on 7 and 8 November he was on the course (Exhibit A13, pp 109, 110). These discrepancies should raise enough doubt in the Tribunal’s mind, Mr Dawson submitted, to enable it to find that as Mr Stadoliukas was not working the 35 hours in that week, he was not working 35 hours in other weeks.  Mr Dawson further submitted that he did not refer the Tribunal to any other evidence as the discrepancies in Exhibit A13 are enough to show that there is something wrong.. In any event, there were other weeks where it is also evident, Mr Dawson submitted, that Mr Stadoliukas was undertaking counselling courses when in fact he is recorded as working.

61.     Turning to the medical evidence before the Tribunal, the most recent report of Dr Mark Burns (Exhibit A1) indicated that Mr Stadoliukas would not be able to work even eight hours per week due to his alcohol dependence and post traumatic stress disorder.  Mr Dawson submitted that with that conclusion, Mr Stadoliukas would be qualified for pension at the Special Rate. If Dr Burns’ opinion was not accepted, Mr Dawson referred the Tribunal to the reports of Dr Chen and Dr Lewin whose opinions indicated that Mr Stadoliukas is qualified for pension at the Intermediate Rate.  In this regard, Dr Chen concluded Mr Stadoliukas was able to work eight to 20 hours per week.  Dr Lewin was not quite so clear because he stated that Mr Stadoliukas would be capable of working between two and three days per week.  Three days per week might push him over the range required for Intermediate Rate, Mr Dawson noted.  The Auto Group Commercial New South Wales records noted that Mr Stadoliukas worked as a general yard hand and car park attendant on auction day which was the last Tuesday of each month (Exhibit A8).  That document indicated that Mr Stadoliukas was working hours lower than that stated by Dr Chen or Dr Lewin. 

62.     Referring to the Tax Returns for the 1998/1999 years, Mr Dawson noted that there is no doubt that these forms would have been signed and it is not an issue that Mr Stadoliukas turned his mind to.  Mr Dawson asked the Tribunal to bear in mind that Mr Stadoliukas is not a well person and while he obviously would have had a Group Certificate, whether he came to any realisation from the Group Certificate that it did not equate with his actual hours worked, was not surprising when considering Mr Stadoliukas’ level of psychiatric disorder and alcohol abuse.  Mr Stadoliukas had in fact provided evidence that his accountant had unlawfully kept his income tax refunds.  Eventually however, Mr and Mrs Stadoliukas had confronted the accountant and prevailed upon him to release $3,000.00, they believed was part of the money owed to them by that accountant.

63.     Mr Dawson contended that the issue before the Tribunal is what rate of pension Mr Stadoliukas currently is entitled to at this point in the assessment period.  Referring to the Respondent’s submissions that the doctors' reports are not reliable because the Veteran provided unreliable information, Mr Dawson submitted that Dr Lewin in his report indicated quite clearly that he knew Mr Stadoliukas’ Special Rate pension had been discontinued and he was being paid at a lower rate (Exhibit R2, p3).  Mr Dawson submitted that the Tribunal should consider that the doctors and in particular Dr Lewin, make it quite clear that he treats people who come to him with the appropriate professional degree of scepticism because he understands that these people are Applicants who are seeking an increase in their pension.  Dr Lewin examined Mr Stadoliukas on two occasions and had the T Documents, that is, he had most of the material that is before the Tribunal in relation to allegations made against Mr Stadoliukas.  The issue is that even if Miss Henderson’s submissions are accepted that in 1993 Mr Stadoliukas was not truthful or in 1997 he was not truthful, does that mean, Mr Dawson submitted, that because that finding is made, then the Veteran is forever more not entitled to an earnings–related pension because the Tribunal finds he is an unreliable witness.

64.     Mr Dawson submitted that the Tribunal may well find that Mr Stadoliukas is not as reliable as he should have been about his ability to work and that is what might have led to the reduction from the Special Rate because that might have been more than he was entitled to.  Miss Henderson’s suggestion that the Tribunal could be comfortably satisfied that Mr Stadoliukas was overpaid and then some weeks later when his pay went down in a pay period that that included public holidays or that that could explain his being recorded as working when in fact he was attending a live-in Lifestyle Program is not explained and relates quite simply to a conflict of evidence.

65.     The evidence from Mr Powell is quite clear that there were bundy cards for records and that those were kept. The computer printout dockets make it clear that it is the end of a pay period for work carried out in that pay period. Mr Dawson submitted that the Tribunal’s job is to consider Mr Stadoliukas’ entitlement from here on and to properly consider what was his last paid work.  If Miss Henderson’s submissions are accepted then there is a suggestion, Mr Dawson submitted, that Mr Stadoliukas’ last paid work on Miss Henderson’s contention was 32 hours per week at the car yard.  From that point on he has still lost paid work.  Thus, in 2002, Mr Stadoliukas is not able to work more than 20 hours per week or more than eight hours per week if Dr Burns’ opinion is accepted.  Mr Dawson asked the Tribunal to consider Mr Stadoliukas’ demeanour in the witness box and to apply its own expert knowledge and understanding of the degree of illness of a person which, Mr Dawson submitted, Mr Stadoliukas clearly showed.  He evidenced very clear symptoms of a person who suffers from a psychiatric disorder and alcohol abuse when he was providing evidence. The Tribunal must consider whether Mr Stadoliukas was a person who would be able to work more than 20 hours a week taking account of Mr Stadoliukas’ manner and behaviour.

66.     Miss Henderson, for the Respondent, submitted that Mr Stadoliukas is a man who applied at one stage for a Service Pension successfully and that is an income-related pension which is affected if one earns income.  In monitoring this Service Pension, a pensioner’s tax records are cross-checked by the Department of Veterans’ Affairs and the Australian Tax Office with the Australian Tax Office reporting any discrepancies.  Miss Henderson submitted that when such a check was undertaken, it became apparent that Mr Stadoliukas was earning in excess of what was appropriate income for qualification for the Service Pension and that is how Mr Stadoliukas’ matter came to the attention of the Department of Veterans’ Affairs.  It is also part of the history of this matter noted by Miss Henderson, that on 15 December 1998, in a consent decision before the Tribunal, Mr Stadoliukas was provided with a Special Rate of pension from and including 25 March 1996 and in early 1999, was provided with back pay of the Special Rate in the amount approximately $30,000.00.

67. The issue for the Tribunal, Miss Henderson submitted, is to decide to its reasonable satisfaction that Mr Stadoliukas was qualified to receive pension at the Special Rate from and including 25 March 1996 and continuing. It would seem from Mr Stadoliukas’ understanding that he assumed that the Special Rate is intended for a pensioner who is still working but in the Respondent’s submission, this is not the case. Subsection 24(1)(b) of the Act restricts work to eight hours or less per week. Miss Henderson referred the Tribunal to the decision in Carter v Repatriation Commission (2001) 113 FCR 314 which was a case dealing with a veteran who was wanting a Special Rate and who was over 65 years of age, hence subsection 24(2A) of the Act applied. Branson J was having to consider in that case subsection 24(1)(c) of the Act or its equivalent, which must be applied to veterans over 65 years of age. Miss Henderson submitted that Branson J, in Carter v Repatriation Commission (supra) rejected the argument that subsection 24(1)(b) of the Act has an impact on subsection 24(1)(c) of the Act. Miss Henderson submitted that subsection 24(1)(b) of the Act considers the seriousness of the incapacity from war-caused injury or disease. It uses remunerative work in the general sense and when read with section 28 of the Act, it is shown that remunerative work is that which is undertaken by someone with the person’s vocational trade and professional skills and which might reasonably be expected to be undertaken. Miss Henderson submitted that subsection 24(1)(b) of the Act takes a decision-maker out of the realm of what the veteran has actually done for a living to look at what could be reasonably expected and not whether the veteran has ever done such a job. In deciding such matters one would look at a person’s background and decide what type of remunerative work could be reasonably expected to be undertaken. In short, it does not require a consideration of the particular work that the veteran was doing. In Carter v Repatriation Commission (supra), Branson J noted at 320:

“I am unable to accept the contention of the applicant that the definition of 'totally and permanently incapacitated' contained in s 24(1)(b) indicates that s 24(2A)(d) and (g) must be concerned with work which employs the veteran’s capacity for periods aggregating more than eight hours per week on average.  The paragraphs are, in my view, intended to deal with distinct issues.  Paragraph 24(1)(b) is concerned with degree of incapacity, s 24(2A)(d) with the reason which prevented the veteran from continuing to undertake his or her last paid work and s 24(2A)(g) with the demonstration of a long-term intention to undertake a particular type of work beyond the age of 65 years.

The construction of s 24(2A)(d) and (g) for which the applicant contends would involve a significant rewriting of the paragraphs.  I am not persuaded that the context in which the paragraphs are found provides justification for such an exercise.”

68.     Miss Henderson submitted that during the period from 25 March 1996 onwards, the Tribunal could not be satisfied that Mr Stadoliukas was prevented from continuing to undertake remunerative work that he was undertaking.  The burden of evidence before the Tribunal, in Miss Henderson’s submission, is that Mr Stadoliukas was probably undertaking work for an average of 32 hours per week during the period.  The employment records provided in evidence establishes the working pattern of Mr Stadoliukas.  Unfortunately, there is no possibility of finding any more detail about Mr Stadoliukas’ employment history because his employment file has been lost.  The evidence of Mr McKay (Exhibit A5) does not cast any doubt upon the records of Mr Stadoliukas’ employment records.  Mr McKay refers to his employment in 1994 by the Enfield Motor Auctions.  This is not the Auto Group as it became and it is also not referrable to the years when Mr Stadoliukas was working there.  What Mr McKay’s evidence shows is that an organisation other than Auto Group made a mistake in 1994 on Mr McKay’s Group Certificate.  It is not the corporation that Mr Stadoliukas worked for and it is not the period under review by the Tribunal. 

69.     Furthermore, in relation to Mr Dawson’s submission concerning Mr Stadoliukas being in a live-in seminar in December 1998, during a period when the employment records indicate Mr Stadoliukas was being paid for working, Miss Henderson submitted that, that particular week’s income is not of itself sufficient to persuade the Tribunal that all the other records are correct.  In this regard, Miss Henderson referred the Tribunal to records in the first week of January 1999 which indicate that Mr Stadoliukas had quite a low wage that week.  Miss Henderson submitted that it is not outside the normal course of events in the payroll office for an employee who has been overpaid on a particular week to have the hours taken back in subsequent weeks.  Miss Henderson submitted that it would not be outside ordinary human experience to appreciate that there can be wage payments inadvertently made to people which then result in corrected or reduced wages for example in Mr Stadoliukas’ case, in the January 1999 period after he attended the live-in course.  In any event, Miss Henderson submitted that even if the Tribunal accepted that the Applicant was credited with 35 hours during a week when he was doing a live-in course at Menangle, that was only one week.

70.     Miss Henderson referred to the police investigation currently on foot in relation to possible payroll fraud in the Auto Group.  Miss Henderson referred to the evidence that the investigation involves the “Detailing Division” of the Auto Group company.  It is clear from the records of Auto Group that Mr Stadoliukas was not employed in the Car Detailing Section and hence, the police investigation is not being undertaken in the area where Mr Stadoliukas was actually employed (Exhibit R8).

71. The Respondent’s primary submission is that records indicating Mr Stadoliukas’ work at the rate of 32 hours per week is not undermined by the evidence before the Tribunal in relation to the police investigation nor is it brought into any doubt by the evidence of Mr McKay. Furthermore, if the Tribunal was persuaded to have some doubt about the 32 hours per week, the Respondent’s fundamental submission is that the Applicant was continuing to work during the period from March 1996 when he was considered entitled to Special Rate and that he is not a person who is prevented from continuing to undertake remunerative work as is required by section 24 of the Act.

72.     The Tribunal’s conclusions in this matter, Miss Henderson submitted, will depend on its evaluation of the truthfulness of Mr Stadoliukas.  Miss Henderson submitted that Mr Stadoliukas’ credibility is very fragile and probably non-existent.  In this regard, Miss Henderson noted that on many occasions Mr Stadoliukas had made claims to the Department of Veterans’ Affairs, to medical examiners and to the Board that he was not a person who was employed during times when it is quite clear that he was working for either Auto Group or its predecessors.  In this regard, Miss Henderson noted that on 29 January 1996, Mr Stadoliukas claimed that he had ceased work on 28 August 1995 (T15, p58).  Some seven months later on 19 March 1996, Mr Stadoliukas sought an increase in his Disability Pension and in his Application for an increase in his Disability Pension, Mr Stadoliukas wrote that he worked nil hours per week ceasing work on 28 August 1995 (T19, p76).  On 12 April 1996, in response to an Employment Questionnaire for the Department of Veterans' Affairs, Mr Stadoliukas notes that he last worked on 28 August 1995, having been dismissed from his position (T20, p80).  On 28 July 1997, Mr Stadoliukas appeared before the Board and provided evidence.  He told the Board that he was unable to obtain work because he was unable to obtain a reference from his last employer, references being vital to secure new jobs (T35, p116).  One month later on 4 August 1997, Mr Stadoliukas made a claim for post traumatic stress disorder and at Question 21 of the claim form, noted that he was not currently employed noting that he could not cope with work in the work force because he was not able to get on with his co-workers and because of his drinking problem (T36, p124).

73.     Mr Stadoliukas was first examined by Dr Lewin on 16 September 1998.  He told Dr Lewin that he had last worked four years ago, that is, in 1994 (T46, p168).  Furthermore, during 1996 and 1997 Mr Stadoliukas was providing reports from his treating psychiatrist Dr Law and in five reports provided by Dr Law, the first dated 9 February 1996, in each of those reports, Dr Law assured the Department that there was little hope of Mr Stadoliukas being able to undertake remunerative work.

74.     It is abundantly clear, Miss Henderson submitted, that Mr Stadoliukas has been misrepresenting himself to the Department of Veterans' Affairs, to the Board and to medical practitioners who have examined and/or treated him.  Furthermore, the financial records available to the Tribunal also do not support Mr Stadoliukas’ proposition of infrequent work.  Miss Henderson submitted that there is an important period in late 1997, when Mr Stadoliukas and his wife decided that the property owned by Mrs Stadoliukas should be rented out and that Mr and Mrs Stadoliukas would acquire a new home, entering into a mortgage commitment of $198,000.00.  The joint bank account records indicate that from November 1997, when the records commenced, that Mr and Mrs Stadoliukas had undertaken an obligation of a fortnightly mortgage repayment of $660.00.  Corresponding personal bank accounts of Mr Stadoliukas (Exhibit R5) indicate in November 1997, how much he was actually obtaining by way of income at that stage because his pensions were going directly into that account..  Thus, Comsuper which was administering Mr Stadoliukas’ Defence Retirement and Death Benefits Pension was paying $395.57 per fortnight.  Mr Stadoliukas’ Service Pension from the Department of Veterans’ Affairs was $442.94 thus totalling $838.51.  Miss Henderson submitted that if one took out the mortgage repayment there was $178.51 remaining.  Mrs Stadoliukas had provided evidence that when the couple were first married the food bill was about $150.00 per week.  It would be a greater bill these days, but using that figure, of $150.00 per week, the couple is left with $28.51 with which to pay for expenses such as clothing, insurance, rates and all the other domestic expenses of running a household.  The rent from the Mrs Stadoliukas’  property was not supporting the mortgage or the couple because reference to the tax return for the 1997/1998 year is that the property first went up for rent on 8 November 1997 and was producing a loss.  Mr and Mrs Stadoliukas had undertaken extensive repairs on the property and ultimately lost $152.00 on that.  Thus, Miss Henderson submitted, Mr and Mrs Stadoliukas did not make money which they could enjoy by way of rent.

75.     Furthermore, Miss Henderson submitted that Mrs Stadoliukas had provided evidence that she would pay Mr Stadoliukas an allowance of approximately $100.00 per week depending on what she had at the time.  Mrs Stadoliukas was very firm in her evidence that she never bought alcohol for her husband, he would have to buy this for himself.  When Mr Stadoliukas was examined by Dr Baz on 23 July 1998, he told her that he was spending a minimum of $100.00 on alcohol per week (T45, p157), continuing to drink at least one bottle of wine with the evening meal and a number of beers in addition to three schooners of beer at lunch time.  In his report of 9 June 1998, Dr M Dent, Consultant Psychiatrist, noted that Mr Stadoliukas had told him that he was drinking four to 12 cans of beer per day and three or four bottles of wine, which is a very substantial intake of alcohol (T44, p144).

76.     Miss Henderson contended that there is a huge question mark arising out of the analysis of all of the evidence as to how Mr and Mrs Stadoliukas could possibly have been living on an amount of $28.51 per week.  Being provided with only income from the Service Pension and the Defence Retirement Benefits, given the loss on the rental property, the fact that Mrs Stadoliukas was not working and the massive alcohol habit Mr Stadoliukas had at that stage.  Miss Henderson submitted that it is quite clear that Mr and Mrs Stadoliukas must have had access to substantial income other than the rental property, the Service Pension and the Defence Retirement Benefits payments at that stage.  Mrs Stadoliukas was quite clear in her evidence that at no time during her marriage was she bringing in any income into the arrangements.  Reference to the documentary evidence indicates that Mrs Stadoliukas had ceased work in about 1993, two years before they married in June 1995.   Thus, where it is possible to make a detailed analysis of the financial affairs of Mr and Mrs Stadoliukas, Miss Henderson submitted that the burden of evidence is clearly that the couple could not have been dependent on, as is alleged, Mr Stadoliukas working perhaps eight hours once a fortnight or once a month.  Mr Stadoliukas has had to have been earning sums which enabled them to live through that particular period.  Thus, the objective data further undermines Mr Stadoliukas’ firm claims made before the Tribunal that he was not working 32 hours per week. When one considers the financial data and tries to understand what was happening at that time, Miss Henderson submitted that the Tribunal should be compelled to the conclusion that there must have been substantially more income than Mr Stadoliukas is prepared to admit.

77.     Stepping away from Mr Stadoliukas’ preparedness to talk about his income and considering Mr Stadoliukas more generally, Miss Henderson submitted that the Tribunal would be very dissatisfied with the reliability of his statements.  The documentary evidence indicates for example in a Lifestyle Questionnaire dated 3 March 1993 (T4, p7) where Mr Stadoliukas wrote that he could only sit behind the wheel of a car for approximately half an hour and then needed to have a break (T4, p7), he noted that he cannot wash the car (T4, p8) and at T4, p9, claimed that he could not drive the car for long periods.  This documentary evidence is contrasted with the statement Mr Stadoliukas made to the Industrial Relations Commission in support of his application to be reinstated to his job as a driver of heavy vehicles over long distances.  That application was made in 1995 and involved Mr Stadoliukas asserting that he was unfairly accused of having falsified his job sheets and time records and was therefore unfairly dismissed.  Miss Henderson invited the Tribunal to contrast Mr Stadoliukas’ claims on 3 March 1993 that he could not sit behind the wheel for more than half an hour before needing a break and his inability to drive for long periods with the fact that in August 1995, before the Industrial Relations Commission, he was stating that he was able to undertake his driving activities well, was not being provided with enough driving assignments and that he was also able to undertake such duties as washing the cars which, in his Lifestyle Questionnaire of March 1993, he indicated he was unable to do.  Thus, the documentary evidence and evidence provided by Mr Stadoliukas to the Tribunal that Mr Cole was not providing him with as many assignments as he wished, and other documents indicating the impact of his disabilities at work, is contradictory. 

78.     Miss Henderson contended that Mr Stadoliukas’ evidence on the one hand is that in August 1995 he was capable of working five days in a driving job which in his Lifestyle Questionnaire in 1993 he asserts he was unable to undertake such activities.  On 13 May 1995, in a further Lifestyle Questionnaire, which is closer to the time of the Industrial Relations Commission proceedings (T6, p18), Mr Stadoliukas notes that he needed someone to drive him to appointments and he noted that he was unable to wash the car.  Question 29 asked, did Mr Stadoliukas have time off work in the past 12 months, that is between 1994 and 1995 because of his disability and Mr Stadoliukas answered that he had taken seven months off work during that period (T6, p21).  This contrasts with the evidence provided by the employer, Mr Cole, in a response he provided to the Department of Veterans' Affairs on 24 July 1995 (T9, p36) in which Mr Cole notes that as at July 1995, Mr Stadoliukas had only taken three days off work for unknown reasons, those days being 18 and 19 May 1995 and 20 January 1995.  Furthermore, in an application for an increase in a Disability Pension dated 21 June 1995 (T7, p24), Mr Stadoliukas noted that he had reduced his hours of work to a part-time position.  That statement, Miss Henderson submitted, conflicted with Mr Stadoliukas’ evidence to the Tribunal that his job with Mr Cole which he was still undertaking at that time as a five days per week job and that he was in fact able to undertake more than the tasks which Mr Cole actually allocated to him. 

79.     Referring again to the Industrial Relations Commission proceedings and statements Mr Stadoliukas made (Exhibit R3), Mr Stadoliukas noted that he had provided faithful service to his employer and had always carried out the repairs of the vehicles he was driving without difficulty and that he always refuelled the vehicles.  This once again contrasts with Mr Stadoliukas’ evidence to the Department in writing that he could not drive long distances and had to stop after half an hour.  Thus, if one moved away from the Applicant’s time at Auto Group and examines Mr Stadoliukas’ claims about his earlier period of work with Mr and Mrs Cole driving car delivery vehicles, there is discrepancy between the position the Applicant presented to the Industrial Relations Commission and what he was providing in written applications and Lifestyle Questionnaires to the Department of Veterans’ Affairs.  Such varying evidence adds force to the Respondent’s contention of the unreliability of Mr Stadoliukas’ evidence. 

80.     Miss Henderson submitted that there is nothing before the Tribunal which could cause the Tribunal to consider that Mr Stadoliukas’ departure from his employment at the Auto Group in 1999 was related to his incapacity.  In the Respondent’s submission, it is related to no other matter than him having been challenged by the Department of Veterans’ Affairs for his ability to earn an income during a period when he was in receipt of pension at the Special Rate.

81.     Referring to Mr Dawson’s submissions that on the medical evidence, Mr Stadoliukas has limited capacity for work, Miss Henderson submitted that all of those opinions turn on the reliability of Mr Stadoliukas’ statements to the examining doctors.  Miss Henderson reminded the Tribunal that Mr Stadoliukas depicted himself as being a drinker of enormous quantities of alcohol during times when he also asserts and it is known that he was working as a driver of heavy vehicles and driving over long distances.  In this regard, Miss Henderson again referred the Tribunal to the information provided by Mr Stadoliukas to Dr Dent in 1998 of a long history of heavy drinking, including that he was drinking four to 12 cans of beer per day in addition to three or four bottles of wine.  That heavy alcohol intake was also being achieved during a time when the financial records simply do not seem to support the ability to finance such an alcohol consumption habit.  Miss Henderson strongly contended that the Tribunal should consider Mr Stadoliukas’ self-reporting about his alcohol abuse and his level of distress caused by his accepted disabilities with the same degree of caution as it should bring to a consideration of the rest of his evidence.

82. In conclusion, Miss Henderson submitted that Mr Stadoliukas was working and was not therefore able to satisfy subsection 24(1)(c) of the Act during a period up to 1999 when he left Auto Group and there is sufficient material for a further conclusion that it was not Mr Stadoliukas’ war-caused disabilities which caused him to give up work from Auto Group in 1999 and onwards.

FINDINGS

83.     The Tribunal has come to a decision in this matter taking to account the oral and documentary evidence, the submissions, the legislation and case law. 

84.     Mr Stadoliukas was in receipt of a pension at the Special Rate with effect from 25 March 1996 but following a review on 24 March 2000, a Senior Delegate of the Commission reduced the pension to 90 per cent of the General Rate with effect from 25 March 1996 (T63) because it was found that Mr Stadoliukas had been employed as a casual truck driver by the Auto Group Limited from 21 September 1995 through to 27 July 1999, allegedly being employed for 32 hours per week.

85.     The criteria for eligibility for the Special Rate require that a veteran be totally and permanently incapacitated, that is, unable to undertake remunerative work for periods aggregating greater than eight hours.  The Intermediate Rate requirement includes that the veteran is incapable of working for 50 per cent or more of the time ordinarily worked by persons engaged on a full time basis or if this is inapplicable, for 20 hours or more per week.

86.     At the time of a previous Tribunal’s decision on 15 December 1998 granting the Special Rate, it would appear that Mr Stadoliukas was in fact working. 

87.     In deciding this matter, the Tribunal must consider when Mr Stadoliukas gave up work, why he gave up work and obviously the impact of his war-caused conditions or any other factor impacting on his inability to work.  Central to any findings in these matters is the credibility of Mr Stadoliukas.

88.     The Tribunal notes that a number of documents signed by Mr Stadoliukas in the material indicate cessation of work on a variety of dates.  In this regard, the Tribunal notes an “Application by a Veteran or Mariner for Increase in Disability Pension” dated 19 March 1996 (T19) which indicated that Mr Stadoliukas ceased work at Campbelltown City Car Carriers on 28 August 1995 (T19, p76).  An Employee Questionnaire completed by Mr Stadoliukas on 12 April 1996 indicated that he was dismissed from work on 28 August 1995 and he was not at the time of completion of that questionnaire currently employed (T20, p80).  Dr Law commented in his first report of 26 April 1996 that Mr Stadoliukas was unable to work (T21).  Subsequently, in a report dated 29 April 1997 (T32) following consultations on 11 February 1997, 10 March 1997 and 28 April 1997, Dr Law wrote that Mr Stadoliukas “…is, and will be, unable to work, for a long time to come. ….” (T32, p108).   Similarly, in a report dated 6 August 1997 (T37), Dr Law noted that Mr Stadoliukas’ chances of being able to return to gainful employment were bleak.

89.     Mr Stadoliukas made a claim for post traumatic stress disorder on 4 August 1997 (T36), in which he wrote that he was last employed in 1995 by “Campbelltown Car Carriers”.  Mr Stadoliukas had appeared before the Board on 28 July 1997 and in its decision of that same day (T35), Mr Stadoliukas was noted to have provided evidence that he lost his job with “Campbelltown City Car Carriers” in 1995.  He noted that he had been terminated because he had not recorded the times taken off work during a long haulage trip to the South Coast and Mr Stadoliukas was accordingly accused of falsifying his work records.  Mr Stadoliukas lodged a claim for unfair dismissal to the Industrial Relations Commission and as result, the termination was altered to that of a redundancy.  Mr Stadoliukas' statement to the Industrial Relations Commission noted that he was well able to drive and to have continued his job (Exhibit R3).

90.     In a further report dated 14 August 1997, Dr Law noted that Mr Stadoliukas'

"...chances of being able to improve and to return to gainful employment are bleak, in my view " (T38, p128).

91.     What is apparent from the documents is that Mr Stadoliukas reported to the Commission and to his psychiatrist, Dr Law, that he had ceased work all together on 28 August 1995, yet, in fact, he was working as a casual at the Enfield Motor Auctions and later the same organisation but differently named Auto Group Limited from 21 September 1995 ceasing employment on 27 July 1999 (T61). Clearly, Mr Stadoliukas was working beyond August 1995 and 25 March 1996. The Tribunal finds that Mr Stadoliukas was clearly untruthful about the status of his employment. Mr Stadoliukas' explanation is that while he was employed, he did not work many hours reported of him nor earned the income also reported. He was just making up the numbers at work in what was not “a real job”.. Mr Stadoliukas stated that he, along with others, was the subject of payroll fraud in that his working hours were inflated and the benefit of that went to others. It is true that investigation is being conducted by the New South Wales Police Service into such matters, however, not at the section where Mr Stadoliukas was employed.

92.     The Tribunal also examined Mr Stadoliukas’ statement about his capabilities in his Lifestyle Questionnaire dated 13 May 1995 (T6), that he needed help in having someone to drive him around, yet in his statement to the Industrial Relations Commission about his dismissal by Mr Cole, he noted how capable he was of driving at that time and furthermore, in evidence to the Tribunal, Mr Stadoliukas stated that he was not being given as many driving assignments from Mr Cole as he would have liked. Mr Stadoliukas also stated in this Lifestyle Questionnaire that he could not wash cars (T6, p19), yet in the written statement to the Industrial Relations Commission, he stated that his duties, of which he was capable, included washing cars, repairing vehicles and driving. The Tribunal finds that Mr Stadoliukas is prepared to make different statements to suit his particular purposes at the time. The impression from the documentary material and Mr Stadoliukas' oral evidence, when reviewed as a whole, provides a picture of inconsistency and at times complete contradiction.  Continuing on this analysis, Mr Stadoliukas had stated in the Lifestyle Questionnaire dated 13 May 1995, that he had lost seven months of work because of his disabilities (T6, p21) and yet Mr Cole reported on 24 July 1995 when Mr Stadoliukas was still employed with Campbelltown City Car Carriers, that from the commencement of his employment of 15 November 1994, Mr Stadoliukas had lost only three days of work because of the illness (T9). Furthermore, in an application for an increase in Disability Pension dated 21 June 1995 (T7, p24), Mr Stadoliukas stated that he had reduced his hours to a part-time position which directly contradicts Mr Stadoliukas' evidence to the Tribunal that he was undertaking a five day job with Mr Cole.

93.     Considering Mr Stadoliukas' statements about his financial affairs also does not support his assertions of the level of his remuneration or how he managed financially. Mr Stadoliukas asserted he was not working the hours depicted in the employer's records and that is because of a payroll fraud. The difficulty is that for Mr and Mrs Stadoliukas to have managed financially on the eight hours work per fortnight or even less, per month, which Mr Stadoliukas claims, does not appear possible when considering that Mrs Stadoliukas on her evidence was not working and the couple were living on the Service Pension and the Defence Service Retirement Benefits. While Mrs Stadoliukas' property was rented, it required substantial repairs and from the consideration of the tax returns available to the Tribunal, it ran at a loss in the 1998 financial year. Furthermore, Mr Stadoliukas had, on his evidence and the reports of doctors such as Dr Dent, Dr Baz and Dr Law, a long history of consuming large amounts of alcohol and he had an allowance only of $100.00 provided to him by his wife. Consideration of Mr and Mrs Stadoliukas' joint bank accounts indicate that from November 1997, there were mortgage repayments being made of $660.00 per fortnight but Mr Stadoliukas' records (Exhibits R5) indicate he was receiving $395.57 per fortnight for the Defence Retirement Benefit  and a Service Pension of $442..94 per fortnight totalling $838.51.  From this, with the deduction of the mortgage repayment, an amount of $178.51 remained which would, when allowance for grocery needs of $150.00 per week was made, would leave an amount of $28.51 with which to pay for the other costs of running a household such as rates, electricity, insurance and the like. It seems incomprehensible that Mr and Mrs Stadoliukas would have been able to manage on that amount of $28.51 per fortnight. The Tribunal finds that the inevitable conclusion must be as Miss Henderson contended, that there must have been other funds available to this couple in order for them to survive.

94.     In the face of the evidence particularly of Plain Clothes Senior Constable Ryan, the Tribunal is not reasonably satisfied that Mr Stadoliukas' assertions about payroll fraud in relation to his circumstances are true.  While there is one week when Mr Stadoliukas was at a Vietnam Veterans' live-in counselling course in Menangle, this variation does not outweigh the serious doubts the Tribunal has as to the veracity of Mr Stadoliukas' assertions that he was working less then eight hours per week. There may well be payroll fraud found in the Detailing Section of the Auto Group, but as far as this Tribunal's knowledge of such matters is concerned, there are no investigations being undertaken in relation to payroll fraud in the section where Mr Stadoliukas was employed.

95.     While Mr Dawson acknowledges that Mr Stadoliukas was less than accurate in his detail about his work history, there is nothing put before the Tribunal to suggest that his war-caused conditions caused him to be unable to distinguish the truth. A consideration of the evidence concerning the employment records detailing Mr Stadoliukas' working on average of 32 hours per week, in combination with the Tribunal's view that Mr and Mrs Stadoliukas would not have managed financially on the funds available to them unless there was work in excess of eight hours per week, leads the Tribunal to the conclusion that from 28 August 1995 until 27 July 1999, Mr Stadoliukas was working in excess of both eight hours per week and 20 hours per week. To conclude otherwise, given the force of the evidence, the inconsistency in Mr Stadoliukas' evidence and the evidence related to the NSW Police Service Investigation is not possible in the Tribunal’s view.  In relation to the one week live-in course for which Mr Stadoliukas seemed to receive remuneration from work, the Tribunal considers that this discrepancy is most likely explained, as Miss Henderson put, by the reduction in the January 1999 wage record. Even if that were not the case, the evidence is overwhelmingly persuasive that Mr Stadoliukas continued to work beyond 28 August 1995 for periods in excess of that allowable for either the Special Rate or Intermediate Rate of pension. 

96.     The Tribunal accepts that Mr Stadoliukas' war-caused conditions are severe and these impact on his ability to conduct his life. The difficulty for Mr Stadoliukas however in asserting his case that he is now unable to work because of his war-caused conditions alone and that the reason he ceased work related to those war-caused conditions from 27 July 1999, is Mr Stadoliukas' propensity for inaccurate assertions about his health conditions and his employment history. These assertions and statements by Mr Stadoliukas have been made not only to the Department of Veterans' Affairs, the Board and this Tribunal but also to medical practitioners who have come to opinions about his capacity for work. It is clear to the Tribunal that Mr Stadoliukas has at best been inaccurate and at worst untruthful to various medical examiners with whom he has had contact. While Dr Law and Dr Burns have provided their professional opinions, the Tribunal cannot be reasonably satisfied that those opinions are based on a full and accurate appreciation of Mr Stadoliukas' circumstances. While Dr Burns was aware of the reason for Mr Stadoliukas having lost his special benefit, Dr Burns was not aware of much of the material which came before this Tribunal such as wage records, work records, financial records, Mr Stadoliukas’ statement to the Industrial Relations Commission of New South Wales and information from the New South Wales Police Service. The Tribunal has little confidence given Mr Stadoliukas' continuing propensity from 1994 until the present to provide inconsistent, inaccurate or untruthful evidence, that the history he has provided to various medical examiners is accurate. Thus, the Tribunal, while greatly respecting the professionalism of the medical practitioners who have expressed opinions in this case about Mr Stadoliukas' inability to work and this being related to his war-caused conditions, the Tribunal cannot accept the accuracy of such opinion given the inaccuracy of Mr Stadoliukas' evidence.

97.     As Mr Dawson noted, it is a serious matter to have a Veterans' pension entitlement reduced and serious consequences flow from a finding that an Applicant's credibility is in question. It is also a serious matter for persons appearing before a Tribunal, a Board, a Medical Practitioner, the Industrial Relations Commission and Department of Veterans' Affairs to provide inaccurate and untruthful statements.  Such actions have serious consequences.

98. On all of the material, the Tribunal finds that Mr Stadoliukas did not cease work on 28 August 1995. The Tribunal finds that Mr Stadoliukas ceased work on 27 July 1999. Turning to section 24 of the Act, the Tribunal cannot be satisfied, given Mr Stadoliukas' poor credibility, that the reason he ceased employment was as a result of his war-caused conditions alone. There was loss of remuneration as a result of his cessation of work, but the Tribunal is not reasonably satisfied that this is related to his war-caused conditions. The Tribunal has reached this decision because it cannot be reasonably satisfied that what Mr Stadoliukas has reported to medical examiners or to the Tribunal is accurate. Any reliance that the Tribunal would place on medical opinion that Mr Stadoliukas was incapable of working either eight hours or 20 hours per week because of his war-caused conditions is diminished because of the repeated propensity of Mr Stadoliukas to represent inaccurately his situation financially, in terms of his employment and his work capacity. Even if the Tribunal were incorrect in its findings that it could not be reasonably satisfied that Mr Stadoliukas could work less than eight or 20 hours per week, considering subsection 24(1)(c) of the Act, the Tribunal cannot be satisfied that it is Mr Stadoliukas' accepted conditions alone which caused him to cease work. Mr Dawson asked the question, having acknowledged that Mr Stadoliukas has been less than truthful in his detailing of his work history, does this then disentitle Mr Stadoliukas to the Special Rate given his level of disability and doctors’ opinions. A decision-maker, such as this Tribunal in deciding such matters cannot disregard the force of evidence indicating Mr Stadoliukas' propensity to provide information to suit his particular purpose at a particular time. The force of evidence does not allow the Tribunal to be reasonably satisfied that the information provided in 1999 through to 2002 is any more accurate and truthful given a consideration of all of the evidence to that provided in 1995, 1997, 1998.

99. Accordingly the Tribunal finds that Mr Stadoliukas does not meet the requirements of section 24 of the Act either as at 28 August 1995 or as at 27 July 1999 and continuing. Therefore, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed.

I certify that the 99 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member and Dr J D Campbell, Member

Signed:         .......................................................................................
  Associate

Dates of Hearing  17,18 April 2002, 28 November 2002
Date of Decision  17 June 2003
Counsel for the Applicant         Mr N Dawson
Solicitor for the Applicant          Ms A Toliopoulos, NSW Legal Aid Commission 
Counsel for the Respondent     Miss R Henderson
Solicitor for the Respondent     Ms A Nanson, Australian Government Solicitor