Starcevich, J.F. v Repatriation Commission

Re: JOSEPH FREDERICK STARCEVICH
And: REPATRIATION COMMISSION
No. WAG94 of 1986
Social Security Benefits

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Fox(1), Jenkinson(2) and Neaves(3) JJ.

CATCHWORDS

Social Security Benefits - veterans' Entitlements Act 1986 - entitlement to special rate of pension - incapacity from war-caused injury or war-caused disease - consequent inability to undertake substantial remunerative work - consequent loss of salary or wages - whether "remunerative work" in s.24(1)(c) of the Veterans' Entitlements Act 1986 refers only to last remunerative work undertaken.

Veterans' Entitlements Act 1986 ss.24(1),24(2).

Banovich v. Repatriation Commission (1986) 69 ALR 395

Repatriation Commission v. Smith (unreported, judgment 10 August 1987)

Repatriation Commission v. Wright (unreported, judgment 10 August 1987)

McGuire v. Repatriation Commission (unreported, judgment 10 August 1987)

Re Repatriation Commission & McCartney (1986) 9 ALD 441

HEARING

SYDNEY

#DATE 6:10:1987

Counsel for the applicant: Mr P.G. Foss

Solicitors for the applicant: Mallesons Stephen Jaques

Counsel for the respondent: Mrs P. Flemming, Q.C. and Mr A. Robertson

Solicitor for the respondent: Australian Government Solicitor

ORDER

The appeal be allowed with costs.

The decision of the Administrative Appeals Tribunal (Veterans' Affairs Division) and the decision under review by it be set aside and in lieu thereof order that the respondent increase the applicant's pension to the special rate of pension.

The parties bring in short minutes dealing with the date of commencement of the pension and any other relevant matters. If agreed, these can be presented, duly signed, to the associate of the presiding judge and if concurred in by the judges, and subject to any formal amendments they may wish to make, they shall become part of the orders of the Court, without the need for further attendance.

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

JUDGE1

This is an appeal from a decision of the Administrative Appeal Tribunal (Veterans' Affairs Division) the effect of which was to refuse an application for an increase in the applicant's war pension to what is known as the "special" or "TPI" rate of pension. The application was originally made to a Repatriation Board. The Repatriation Board rejected the application, and this decision was affirmed by the Veterans' Review Board and by the Tribunal.

The application was originally made under the Repatriation Act 1920, but pursuant to sub-secns.19(2) and (4) of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 the applicable provisions are now to be found in the Veterans' Entitlements Act 1986 ("the Act").
The special rate of pension is provided for in s.24 of the Act. Sub-section (1) of that section provides:-

"(1) This section applies to a veteran, other than a veteran to whom section 25 applies, if -

(a) there is in force in respect of the veteran a determination under this Act that the degree of incapacity of the veteran from the war-caused injury or war-caused disease, or both, is 100 per centum;

(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."

It is agreed that the applicant is not a veteran to whom s.25 applies and that he satisfies the conditions in paras. (a) and (b). The issue is whether, at the appropriate time or times, he satisfied the conditions of para. (c).

Sub-section (2) provides:-

"(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 the incapacity is the substantial cause of his or her inabililty to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking."

The applicant was born on 20 August 1915. Before the Second World War 1939-1945, he worked continuously on farms owned by his father or himself. He enlisted. He became a prisoner of the Japanese. While working in that capacity he sustained a serious knee injury. On his return to Australia, on advice that he was not fit enough to farm again, he became a wood machinist . Nonetheless, despite another illness caused by his service, which affected him in 1956, he returned to farming, working at first on his brother's farm, and from 1967 farming a separate block of land with his brother's help. A serious war-caused illness in 1970-1 forced him to give up farming again, and in June 1971 he started work for the Postmaster-General's Department ("P.M.G."). In 1974 the P.M.G. branch for which he worked moved its location and he was unable, due to his injury, to work at its new site. He then tried to work in a furniture factory, but after only a day he found that his war-caused injury made it impossible, and since 1974 he has not worked.
There is no doubt that the applicant's preferred occupation was that of farming and that he would have returned to it and continued with it, had not his war-caused disabilities made this impossible. The Tribunal found, and there is no challenge to this finding, that the applicant "would still be farming were it not for his war injury".
The Tribunal considered that it should assess the applicant's entitlement to a special rate of pension on the footing of the facts as they existed as at the date of his application, namely 6 March 1984. It was also of the view that the two "limbs" of para. 24(1)(c) impose two tests, namely whether at the time of the veteran's application he is:-

(i) prevented from continuing to undertake remunerative work that he was undertaking by reason of incapacity from war-caused injury or war caused disease or both, alone; and

(ii) suffering a loss of salary or wages or of earnings on his own account that he would not be suffering if he were free of his incapacity.

Turning to the first limb of para.24(1)(c), the Tribunal treated the words "remunerative work that (he) was undertaking" as relating to the last engagement in remunerative work undertaken by the applicant (leaving aside the one day), namely work for the P.M.G. The Tribunal held that it was irrelevant for the purposes of the first limb of para.(c) that the applicant was prevented from farming by reason of incapacity from his war-caused injury.
The Tribunal found that the applicant would have satisfied the first limb of para. (c) until he attained the age of 65, but that thereafter, because of the compulsory retirement policy of the Australian Telecommunications Commission, which had taken over the relevant functions of the P.M.G., his age would have been conclusive in preventing him from continuing to undertake the P.M.G. work. Hence, as at 6 March 1984, when the applicant was 68, his incapacity alone did not prevent him continuing to undertake the P.M.G. work, and accordingly the first limb of para.(c) was not satisfied. This conclusion flowed from the selection of what was "remunerative work he was undertaking", and the retirement conditions affecting it.
The Tribunal did decide that the "loss of salary or wages or of earnings" referred to in the second limb of para.24(1)(c) could be attributed to the loss of any remunerative work, not just the loss of the P.M.G. work. It found that the applicant was suffering such a loss of earnings attributable to his inability to farm, and therefore that he satisfied the second limb of the paragraph. In the result however, because he did not satisfy the first limb, the application was refused.
On appeal, neither party supported the separate construction of the two limbs of para. 24(1)(c) adopted by the Tribunal. The respondent had filed a notice of contention to this effect. It is clear that the words "by reason thereof" link the limbs together and that para.(c), read with sub-s.(2), imposes a test which so far as here relevant requires three conditions to be satisfied:-

(i) The veteran being prevented from continuing to undertake remunerative work that he was undertaking;

(ii) Condition (i) (above) being by reason alone of the incapacity, from war-caused injury or war-caused disease (to which para.24(1)(b) relates).

(iii) By reason of condition (i) above, the veteran suffering a loss of salary or wages or earnings on his or her own account.

In this case, it has been the combination of two interpretations by the Tribunal which have operated to deny the applicant a TPI pension. These interpretations are that:-

(a) The "remunerative work" in para.(c) is the last remunerative work undertaken; and

(b) The relevant circumstances in assessing compliance with para.(c) are to be those existing at the date of the application.

It was the first interpretation which was challenged by the applicant, and with which I will deal.

Where a veteran has undertaken different types of work, the meaning of "remunerative work" in para.(c) is ambiguous. The use of the phrase "prevented from continuing to undertake" in relation to "remunerative work" does suggest the last remunerative work undertaken, but this is not necessarily so. The use of the indefinite "remunerative work" simpliciter, rather than "the remunerative work", tends against this construction, and "continuing" can also mean resuming after a suspension or interruption. Furthermore, both paragraphs of sub-s. (2) look to a wider concept of "remunerative work": this is especially so of para.(b).
It was submitted for the applicant that the reference to "remunerative work" in para.24(1)(c) includes the main or chosen, rather than the last, remunerative work undertaken by a veteran, and that in the case of the applicant it was or included farming work. It was submitted that if remunerative work to be considered under the paragraph is farming, the applicant comes within the terms of the paragraph.
Counsel for the respondent contended that the construction placed upon "remunerative work" in the first limb of para. 24(1)(c) by the Tribunal, namely the last remunerative work, applied to the whole paragraph. She supported her submission by pointing to the legislative history of the TPI pension, as summarised in the Acting Minister's Second Reading Speech in introducing the Repatriation Legislation Amendment Bill 1985 as follows:

"Since 1920, there has been a special rate of disabililty pension payable in circumstances where, because of total and permanent incapacity resulting from war service, a veteran has been unable to resume or to continue in civil employment. The special or TPI rate pension was designed for severely disabled veterans of a relatively young age who could never go back to work and could never hope to support themselves or their families or put away money for their old age. It was never intended that the TPI rate would become payable to a veteran who, having enjoyed a full working life after war service, then retires from work possibly with whatever superannuation or other retirement benefits are available to the Australian work force."

Later in the speech, the Acting Minister said:-

"...the TPI rate pension can become payable only when a veteran is totally and permanently disabled by accepted disabilities and is thereby precluded from continuing to engage in remunerative work. If a person has had the usual span of a working life or has retired voluntarily or has left employment for reasons other than accepted disabilities, a TPI pension is not payable. It would be in only very rare cases that any veteran beyond the normal retirement age could be eligible for this pension."

The Second Reading Speech is, however, of no assistance in resolving the ambiguity to which I have referred. It is clear that the intention was that the TPI pension should only be payable to veterans forced (sooner or later) into retirement by their war injuries, but the Speech is silent as to how premature retirement is to be assessed in a case such as the present, where the veteran has been forced out of his preferred occupation into other remunerative work, and then into retirement from that work, by his war injuries.
Banovich v. Repatriation Commission (1986) 69 ALR 395 ("Banovich") was a case decided by the Full Court of this Court under Schedule 2 of the Repatriation Act 1920, which set out the entitlement to a TPI pension and was in terms very similar to s.24. It was there held that the "work" need not be the last employment, or work generally, but related to a "type" of work previously undertaken. It was also said that "the loss referred to in para.(1)(b)(iii) may be caused either by a loss of existing employment or by an inability to obtain new employment".
It is my opinion that the submissions made on behalf of the applicant are to be preferred. It is hardly necessary to say so, but the legislation should in my view be given a reasonably liberal interpretation; it has often been pointed out that it is a matter of great public importance to provide adequately for incapacitated ex-servicemen. The reasons need not be explored here. It can however be pointed out that the combined operation of paras.(a) and (b) of s.24(1) is itself already very restrictive of a right to a pension.
It seems to me that the intention of para. 24(1)(c) is that the applicant must have suffered substantial loss of remuneration consequent alone upon the incapacity referred to in paras. 24(1)(a) and (b). The loss must be real, in the sense that the applicant cannot rely upon any remunerative work that he has undertaken in the past, but it would be unnecessarily restrictive to assess the loss by reference only to the last remunerative work undertaken before the applicant's inability to work became complete. In my opinion, a veteran's entitlement to a pension under s.24 may be based on his being prevented from continuing to undertake substantial remunerative work that he has undertaken in the past, even if that work was followed by work of a different type before the veteran ceased work altogether. In such circumstances, the passage of time from the cessation of the work upon which reliance is placed to the veteran's complete retirement may mean that the other requirement of para. 24(1)(c), namely that the veteran's war-caused injury or disease alone prevents him from undertaking the remunerative work upon which his claim is based, is not satisfied, but this is a different matter, and one which does not arise here.
Once the first of the Tribunal's interpretations which have been referred to is unsustainable, the whole decision fails. There remains a question of fact, but in this case the Tribunal has expressed its view on the matter - one might say an inevitable conclusion on the evidence - and a reference back to it is unnecessary.
The Tribunal was in my view wrong in its construction of para. 24(1)(c). The fact that the applicant was prevented from continuing to farm by reason alone of his war-caused injury, as found by the Tribunal, entitled him to a special rate of pension.
In my opinion, the appeal should be allowed with costs, the decision of the Tribunal and the decision under review by it should be set aside, and in lieu thereof it should be ordered that the respondent increase the applicant's pension to the special rate of pension. I agree however with Jenkinson J. that short minutes of the exact orders to be made, dealing if possible with the commencement date of the increased pension should be brought in.

JUDGE2

The questions which the appeal raises, and the circumstances relevant to the determination of those questions, are revealed in the reasons of Fox J. for his judgment, which I have had the advantage of reading.

A critical question is whether paragraph 24(1)(c) of the Veterans' Entitlement Act 1986 comprehends any "type of work" (other than a type of work which might, perhaps, be put out of consideration on the ground that it had been undertaken for only a very short period) which the veteran had at any time undertaken and which otherwise satisfies the criteria ordained by that paragraph, or comprehends only that particular "type of work" (to adopt the term used by the Full Court in Banovich v. Repatriation Commission (1986) 69 CLR 395 at 402) which, of those types of work otherwise satisfying those criteria, was the last to be undertaken before the veteran made application for increase in the rate of pension to that prescribed by section 24. The imperfect past tense of the adjective-clause, "that the veteran was undertaking", suggests that a particular time or period of time will have been indicated in a preceding clause as the time or the period when the undertaking of work postulated by that clause occurred. No such an indication is clearly to be discerned. It might perhaps be thought that the time indicated is the time which immediately preceded the time when the prevention, which is postulated for the purposes of paragraph 24(1)(c) as in effect at the time when the application of the section to the veteran is being determined, supervened. But that would not be consonant with the opinion of the Full Court in Banovich v. Repatriation Commission (1986) 69 ALR 395 at 402 that "a member's loss of particular employment for a reason unrelated to a war disability would never destroy a member's subsequent entitlement to claim a special rate pension; the question would remain, at the relevant date for determination of a claim, whether the member was prevented by his or her war-related incapacity - and by that incapacity alone - from continuing in that field of remunerative activity." That opinion seems to contemplate that the provision now contained in paragraph 24(1)(c) may be satisfied notwithstanding the intermission of a substantial period between the last time when the relevant type of work was undertaken and the time when incapacity from war-caused injury or disease prevented the veteran from continuing to undertake that type of work. However, the terms of section 24 in its statutory context do not in my opinion suggest any other particular time or period of time. Nor do I find anything in the language of the section to justify confinement of the application of paragraph 24(1)(c) to that type of remunerative work which was the last of several types of remunerative work to satisfy the criteria literally expressed in that paragraph. Counsel for the respondent sought to rely on Parliamentary observations, which Fox J. has set out, to indicate a legislative intention to confine the application of the paragraph in that way, but I agree with his Honour that those observations do not assist the respondent.

My conclusion is that the farming work that the veteran was undertaking for some years before 1971 is within the contemplation of the expression "remunerative work that the veteran was undertaking" in paragraph 24(1)(c), notwithstanding that after 1971 and before he made the application for an increase in the rate of his pension he was undertaking remunerative work, different in kind from farming, which he was when he applied for the increase and is still prevented from continuing to undertake.
Once that conclusion is reached, the unchallenged findings of the Administrative Appeals Tribunal require that an order be made allowing the appeal. I respectfully agree, for the reasons his Honour gives, that paragraph 24(1)(c) requires that the three conditions which Fox J. states must be satisfied. The findings were that as at the date when the applicant made application for increase of the rate of his pension to that prescribed by section 24, 6 March 1984, those conditions were satisfied. Neither party submitted that some other date was that as at which satisfaction of those three conditions was required. But, not having had the benefit of argument, I would wish, if it be possible, to refrain from expressing a concluded opinion as to what the time is, to which the present tense of each verb of the principal clauses in sub-section 24(1) refers.
There are also other questions, concerning the terms of orders to be substituted by this Court for the order of the Administrative Appeals Tribunal, on which this Court has not heard submissions on behalf of the parties. One matter to be determined is whether this Court should by its order fix the date from which payment at the rate prescribed by section 24 shall be paid. Since the hearing of this appeal concluded another Full Court of this Court has given judgment in three appeals in which s.24(1)(c) was considered : Repatriation Commission v. Smith (unreported; judgment 10 August 1987), Repatriation Commission v. Wright; (unreported; judgment 10 August 1987); McGuire v. Repatriation Commission (unreported; judgment 10 August 1987). I would propose that, upon publication of the reasons of the members of the Court on the question whether the appeal should be allowed or dismissed, further consideration of the appeal be adjourned to a date to be fixed. If the parties are able to agree on terms of orders disposing of the appeal which are acceptable to the members of the Court, no further argument will be required. Otherwise I should prefer to hear further submissions as to the orders which should be pronounced.

JUDGE3

Pursuant to sub-s.44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), Joseph Federick Starcevich ("the applicant") has appealed to this Court from a decision of the Administrative Appeals Tribunal ("the Tribunal") made on 19 August 1986 affirming a decision made by a Repatriation Board on 11 July 1984 (and affirmed by the Veterans' Review Board on 7 October 1985) refusing an application to increase the rate of war pension payable to the applicant under the Repatriation Act 1920 (Cth) beyond the maximum under the General Rate provided for in Schedule 1 to that Act.

Between the date of the decision of the Veterans' Review Board and the matter coming before the Administrative Appeals Tribunal, the Repatriation Act 1920 (Cth) was repealed by the Veterans' Entitlements Act 1986 (Cth). That Act came into operation on 22 May 1986 as did relevant provisions of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 (Cth). As the application to the Tribunal had not been determined by 22 May 1986, the application was, in accordance with sub-s.19(2) of the latter Act, treated as if it were an application that had been made to the Tribunal under s.175 of the Veterans' Entitlements Act and was heard and determined accordingly. The Tribunal was required by sub-s.19(4) of the Transitional Provisions Act to give such decision upon the application as it considered to be, in all the circumstances of the particular case, in accordance with the provisions of the Veterans' Entitlements Act and the Transitional Provisions Act.
It is accepted by the parties that the question for decision by the Tribunal was whether, at the date upon which the applicant applied for an increase in the rate of his war pension, viz. 6 March 1984, he was a person who satisfied the requirements for the payment of a pension at the special rate set out in s.24 of the Veterans' Entitlements Act. It was unnecessary for the Tribunal to consider the requirements for the payment of a pension at the intermediate rate (s.23 of that Act) as those requirements, so far as they are relevant to the particular circumstances of this case, do not materially differ from those applicable to the special rate pension.
Section 24 of the Veterans' Entitlements Act, so far as material, provides:

"24. (1) This section applies to a veteran, other than a veteran to whom section 25 applies, if -

(a) there is in force in respect of the veteran a determination under this Act determining that the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is 100 per centum;

(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and

(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity.

(2) For the purpose of paragraph (1)(c) -

(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if -

(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or

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

(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking."

The reference in sub-s.24(1) to a veteran to whom s.25 applies is a reference to a veteran who in the opinion of the Repatriation Commission, is temporarily incapacitated from war-caused injury or war-caused disease, or both, and would, if he were so incapacitated permanently, be a veteran to whom s.24 applies. It is common ground that the applicant was not, as at 6 March 1984, such a veteran.
There is no dispute that, on 6 March 1984, there was in force in respect of the applicant a determination that his degree of incapacity from war-caused injury or war-caused disease, or both, was 100 per centum. There is also no dispute that, as at 6 March 1984, the applicant was totally and permanently incapacitated in the sense that his incapacity from war-caused injury or war-caused disease, or both, was of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. Thus, on 6 March 1984, the applicant satisfied the requirements set out in pars (a) and (b) of sub-s.24(1). The contest before the Tribunal was whether the applicant, on 6 March 1984, satisfied the requirements of par.(c) of that sub-section.
In the reasons for its decision the Tribunal set out the applicant's history in considerable detail. It is sufficient for the purposes of this appeal to refer only to some aspects of that history. The applicant was born on 20 August 1915 so that at the date of his application for an increase in his pension he was 68 years of age. Prior to his enlistment in the Army in 1940 he had been engaged in farming pursuits. On his return from war service in 1945 with severe war-caused disabilities he was advised that he was not fit enough to resume farming. He took up wood machining and pursued that occupation from 1947 to 1957. He then chose to return to farming but in 1971 his war-caused disabilities caused him to give up that occupation. After hospital treatment, he commenced employment with the Postmaster-General's Department repairing telephone dials. That employment continued from June 1971 to March 1974 when his war-caused disabilities compelled him to retire. He was then aged 58 years. Since that date he has not engaged in any remunerative employment.
The applicant has, since 1946, been in receipt of a war pension at a percentage of the General Rate, that percentage varying from time to time. In October 1970 an increase in the pension to 100 per centum of the General Rate was granted. In September 1974 he applied for the grant of a service pension and in the following month for an increase in the rate of his war pension. The first application was granted but the second refused. No appeal was lodged from that refusal and no further application for an increase in the rate of war pension was made until the making of the application the subject of this proceeding.
A veteran will not satisfy the requirements of par.(c) of sub-s.24(1) of the Veterans' Entitlements Act unless it can be said of him, as at the date of his application, that he is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that he was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free of that incapacity. The question which this appeal presents is whether the reference to "remunerative work that the veteran was undertaking" is, on the proper construction of the provision, a reference to remunerative work of the kind in which the veteran was most recently engaged prior to the date of his application, or whether the reference is wide enough to encompass remunerative work of a kind in which the veteran has engaged at some earlier point of time.
The Tribunal adopted the former construction and identified the applicant's employment with the Postmaster-General's Department as the remunerative work that the applicant was undertaking. It concluded that, as at 6 March 1984, the applicant was prevented from "continuing" to undertake that kind of employment notwithstanding that the applicant's employment with the Postmaster-General's Department had, in fact, ceased in March 1974 and the applicant had not, since that date, undertaken any remunerative work. In so doing the Tribunal adopted the approach taken by the Tribunal, differently constituted, in Re Repatriation Commission and McCartney (1986) 9 ALD 441 at p 452 (par.32). The Tribunal further concluded that, although the sole reason for the applicant ceasing to be employed by the Postmaster-General's Department in March 1974 was his incapacity from war-caused injury or war-caused disease, or both, that was not the sole reason for his being prevented on 6 March 1984 from continuing to engage in that kind of employment, his age having in the meantime become a relevant and decisive factor. In those circumstances the Tribunal concluded that the applicant had not satisfied the requirements of par.(c) of sub-s.24(1) of the Veterans' Entitlements Act.
The applicant's principal contention is that the requirements of par.(c) of sub-s.24(1) are satisfied if the veteran is able to point to any kind of remunerative work (in this case, farming) in which he has at any time previously engaged provided it is remunerative work of a kind which, at the date of his application, he is prevented from pursuing by reason of his war-caused disabilities alone and provided, further, that he is, at the date of his application, suffering a loss of salary or wages, or of earnings on his own account, by reason that his war-caused disabilities prevent him from engaging in remunerative work of that kind, such loss being a loss that he would not be suffering if he were free of that incapacity. On this approach, it is irrelevant whether the veteran's war-caused disabilities were the reason, or the sole reason, why he ceased to engage in that kind of remunerative work: it would not matter that the veteran had ceased to engage in that work by choice or for family or other reasons.
If the provision has the meaning contended for by the applicant it would follow that, if the applicant had not been prevented by his war-caused incapacity from continuing his employment with the Postmaster-General's Department but had continued his employment in that Department (and later with the Australian Telecommunications Commission) until he reached the compulsory retiring age, he would still have satisfied the prescribed requirements on 6 March 1984 because, having ceased that employment, he could still assert that he was, at the date of his application, prevented, by his war-caused disabilities alone, from resuming his farming pursuits. I am unable to accept that such a construction of the provision accords with the legislative intention as discerned from the statute itself, supplemented by reference to the Minister's second reading speech on the Bill which became the Veterans' Entitlements Act.
As an alternative to his principal contention, the applicant put a submission which, if accepted, would encompass within the expression "remunerative work that the veteran was undertaking" remunerative work which satisfied two requirements. Those requirements are, first, that it was remunerative work which the veteran had undertaken at some time in his working life and, secondly, that it was remunerative work which he had ceased to undertake solely because of his war-caused disabilities. It was submitted that, on this construction of the section, the applicant was entitled to a pension at the special rate because the appropriate remunerative work of the applicant was farming and he had ceased to engage in that kind of work in 1974 solely by reason of his war-caused disabilities with resultant economic loss. Such a result would seem surprising when one has regard to the circumstance that the applicant was not entitled to a pension at the special rate when he ceased to engage in farming for the reason that his taking up employment with the Postmaster-General's Department meant that he did not satisfy the requirement of par.(b) of sub-s.24(1).
I am unable to accept this alternative submission. In my opinion, to give the paragraph the meaning suggested would require the redrafting of its provisions. That is not a permissible approach.
I think it is fair to assume that the draftsman of sub-s.24(1) did not have in contemplation a case such as the present where a period of ten years elapsed between the date when the veteran ceased to be engaged in remunerative work of any kind and the making of the application for an increase in the rate of his war pension. I have no doubt that the expectation was that a veteran who ceased, by reason of incapacity from war-caused injury or war-caused disease, or both, to undertake remunerative work in which he was engaged would thereupon apply for an increase in the pension rate. The language of the provision seems to be to reflect that expectation for in such circumstances it would be natural to focus attention upon the remunerative work on which the veteran had then recently been engaged, not on remunerative work that he may have undertaken at some earlier point in his working life.
I am also of opinion that the requirement that the veteran be one who is prevented from "continuing" to undertake remunerative work that he was undertaking points in the same direction. The context, I think, suggests a state of affairs which has been continuing and which is interrupted by incapacity attributable to war-caused injury or disease. The expression is not, so it seems to me, apt to describe a state of affairs which existed at some time in the past but which the veteran is prevented from taking up afresh after having in the intervening period undertaken other remunerative work.
In my opinion, it accords with the legislative intention to construe the reference in par.(c) to "remunerative work that the veteran was undertaking" as meaning, in a case where a veteran has engaged successively in different kinds of remunerative work, the remunerative work which the veteran was most recently undertaking.
Reference was made during argument to what was said by a Full Court of this Court in Banovich v. Repatriation Commission (1986) 69 ALR 395 particularly at p 402. I have not myself found what was there said as providing any assistance in resolving the issue that arises in the present proceeding. Different issues arose in that case and what was there said must be read in that context.
If the Tribunal were correct, as I think it was, in looking to the applicant's employment with the Postmaster-General's Department and not to his earlier farming pursuits as the remunerative work which the applicant was undertaking, it follows that, as at 6 March 1984 when the applicant was 68 years of age, it was not his war-caused disabilities alone but those disabilities together with his age which prevented him from continuing with employment of that kind. Indeed, I did not understand the contrary to be suggested.
It follows that, in my opinion, the Tribunal was correct in concluding that the applicant did not, as at 6 March 1984, satisfy the requirements of par.(c) of sub-s.24(1) of the Veterans' Entitlements Act.
In these circumstances, it is unnecessary to discuss the further requirement of that paragraph that there be an economic loss arising by reason of the veteran being prevented by incapacity from the war-caused injury or war-caused disease, or both, alone, from continuing to undertake remunerative work that he was undertaking. However, I am inclined to the view that this requirement would be satisfied in the circumstances of this case only if the applicant suffered economic loss by reason of being prevented from continuing in the kind of employment in which he was engaged with the Postmaster-General's Department. In other words, the latter part of the paragraph is referring to loss arising from the inability to engage in the same kind of remunerative work as is referred to in the earlier part of the paragraph.

For these reasons, I would dismiss the appeal with costs.

[1987] FCA 527

06 OCTOBER 1987