Stephen George Redden and Repatriation Commission - [2015] AATA 273

[2015] AATA 273

Division VETERANS' APPEALS DIVISION

File Number

2013/2878

Re

Stephen George Redden

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Deputy President F J Alpins

Date 29 April 2015

Place Melbourne
The decision under review is varied so that the applicant’s pension is payable at the special rate of pension pursuant to s 24 of the Veterans’ Entitlements Act 1986 (Cth) from 14 January 2011.

[sgd]..............................................
Deputy President F J Alpins
VETERANS’ ENTITLEMENTS – application for increase in pension – special rate of pension – ss 24(1)(c) and 24(2) of Veterans’ Entitlements Act 1986 (Cth) – whether veteran prevented by incapacity from war-caused conditions alone from continuing to undertake remunerative work – whether veteran suffering a financial loss he would not be suffering if free of that incapacity
Legislation
Veterans’ Entitlements Act 1986 (Cth) ss 5D, 15, 19, 22, 23, 24, 120, 175
Cases
Amaca Pty Ltd v Frost [2006] NSWCA 173
Banovich v Repatriation Commission (1986) 69 ALR 395
Bell IXL v Life Therapeutics (2008) 68 ACSR 154
Brennan v Comcare (1994) 50 FCR 555
Burton v Repatriation Commission [2015] AATA 105
Byrne v Repatriation Commission [2001] FCA 1134
Cadd v Repatriation Commission [2008] FCA 1024
Comcare v Dunstan (2014) 221 FCR 274
Flentjar v Repatriation Commission (1997) 48 ALD 1
Fox v Repatriation Commission (1997) 45 ALD 317
Hendy v Repatriation Commission (2002) 72 ALD 112
Magill v Repatriation Commission [2002] FCA 744
Owen v Repatriation Commission (1995) 59 FCR 93
Rawson Finances Pty Ltd v Commissioner of Taxation (2013) 133 ALD 39
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Richmond [2014] FCAFC 124
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Strickland (1990) 22 ALD 10
Repatriation Commission v Van Heteren [2003] FCA 888
Repatriation Commission v Watkins [2015] FCAFC 10
Richmond v Repatriation Commission (2014) 140 ALD 380
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
Smith v Repatriation Commission (2014) 220 FCR 452
Summers v Repatriation Commission [2015] FCAFC 36

REASONS FOR DECISION
Deputy President F J Alpins
29 April 2015
INTRODUCTION

This application for review concerns the entitlement of the applicant, Mr Stephen Redden, to a special rate of pension pursuant to s 24 of the Veterans’ Entitlements Act 1986 (Cth) (the “Act”). The essential issue before the Tribunal is whether s 24(1)(c) is or was satisfied at any relevant time, given the operation of the provisions of s 24(2).
BACKGROUND
Mr Redden was born on 8 November 1946. He served in the Royal Australian Air Force (“RAAF”) from 7 September 1966 to 10 July 1987, having attained the rank of Sergeant at the time of his discharge. He gave operational service in Vietnam from 28 October 1968 to 22 October 1969.
Mr Redden suffers from various medical conditions which have been accepted as being “war-caused” for the purposes of the Act (see s 9), relevantly being a depressive disorder, anxiety disorder, alcohol abuse, peptic ulcer disease with chronic anaemia, a personality disorder (not otherwise specified), lumbar spondylosis, osteoarthritis affecting both knees and post traumatic stress disorder (“PTSD”).
At all material times, Mr Redden has been in receipt of a pension at 100% of the general rate under s 22 of the Act. On 14 April 2011, when he was 64 years old, Mr Redden applied in accordance with s 15 of the Act for an increase in the rate of his pension, then making his claim with respect to his PTSD.
In a decision made on 28 July 2011, the respondent accepted Mr Redden’s PTSD as a war-caused condition, with effect from 14 January 2011, but determined that he was not eligible for the special rate of pension (under s 24 of the Act) or the intermediate rate of pension (under s23 of the Act) and that his pension would remain at 100% of the general rate (s 22 of the Act). On 29 May 2013, the Veterans’ Review Board affirmed the respondent’s decision. Accordingly, the respondent’s decision is the decision under review (s 175 of the Act).
RELEVANT LEGISLATION
A pension under the Act may be paid at the general rate, the intermediate rate, or the special rate. As Mr Redden applied for an increase in the rate of his pension, s 19(4A) of the Act directs that his application be dealt with in accordance with sub-ss (5A), (5B) and (5C) and determined under sub-s (5D).
As the Full Federal Court recently stated in Repatriation Commission v Richmond [2014] FCAFC 124 at [18], “[t]he effect of these provisions is that the Commission was required to assess whether at any time during the assessment period [the veteran] was entitled to an increase to the special rate of pension pursuant to s 24” (see also Smith v Repatriation Commission (2014) 220 FCR 452 at [5], [40], [185]). The assessment period starts when the application was made and ends when it is determined; it therefore continues to run until the Tribunal makes its decision (see Richmond at [19]). It follows that ceasing particular employment for reasons unrelated to a war-caused condition prior to the assessment period does not destroy a veteran’s subsequent entitlement to an increased pension (see Banovich v Repatriation Commission (1986) 69 ALR 395 at 402-403, 404; Smith at [70] per Buchanan J).
I note in passing that it is also necessary for the reasons expressed by the Full Federal Court in Smith to consider whether the veteran was entitled to an increase to the intermediate rate of pension at any time during the assessment period, given the provisions of s 19(5C) and (6) of the Act.
Section 24 relevantly 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
… 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;
(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.”
A reference to the incapacity of a veteran from a war-caused injury or a war-caused disease, such as that made in s 24(1)(c), refers to the effects of that injury or disease, not the injury or disease itself (s 5D(2) of the Act; see also Smith at [2]).
Section 120(4) of the Act requires that a veteran’s entitlement to an increased rate of pension be decided to the respondent’s, and therefore the Tribunal’s, “reasonable satisfaction”, which involves a civil standard of proof (Repatriation Commission v Smith (1987) 15 FCR 327). No onus of proof is imposed on the applicant or the respondent (see s 120(6)).
RELEVANT AUTHORITIES
I have reiterated principles above which I set out recently in Burton v Repatriation Commission [2015] AATA 105. In that decision (at [13] – [48]), I also set out in some detail other relevant principles and references to authorities governing s 24 of the Act. I do not propose to set out that material in these reasons verbatim, but I nevertheless rely upon it as if it was set out herein. Those principles are shortly stated here for convenience.
First, with respect to the first limb of s 24(1)(c):
(a)the first limb “requires a causal connection between the veteran’s war-caused incapacity, alone, and the veteran’s inability to undertake the remunerative work he or she previously engaged in” (Richmond at [52]);
(b)the “requirement to consider ‘remunerative work that the veteran was undertaking’ does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past” (Repatriation Commission v Hendy (2002) 76 ALD 47 at [36]);
(c)the first limb involves a “question of fact, informed by common sense” (Smith at [16]) and gives the Tribunal the task of assessing “what the veteran probably would have done, if he had none of his service disabilities during the assessment period”, which is “a hypothetical exercise” (Hendy at [36], [37]);
(d)if “other non-war-caused factors contribute to the preventative effect for the purposes of the first limb, even if they are only of secondary importance and not of themselves sufficient to prevent the veteran from engaging in remunerative work, their presence will deny the veteran eligibility for the special rate” (Richmond at [58]);
(e)if a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under the first limb, as they may have a preventative effect for the purposes of the first limb; “[t]he decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period” (Hendy at [37]);
(f)the first limb is concerned only with factors that prevent the veteran from engaging in remunerative work and accordingly is not concerned with factors which induce or provide the veteran an incentive to cease the remunerative work in question, which instead fall for consideration under the second limb of s 24(1)(c); it is therefore necessary to determine whether a decision to cease work was in fact voluntary or rather was a consequence of incapacity from a war-caused condition (Richmond);
(g)the first limb of s 24(1)(c) is capable of being informed by the ameliorative provision in s 24(2)(b).
It is convenient to note at this point that the Full Federal Court’s interpretation of the “alone” test in the first limb of s 24(1)(c) in Richmond has now been approved by the Full Court on two occasions, in Repatriation Commission v Watkins [2015] FCAFC 10 (see at [57]-[61], esp. at [61]) and, most recently, in Summers v Repatriation Commission [2015] FCAFC 36 at [194]).
I note with respect to s 24(2)(b):
(a)the provision has residual operation and applies where the veteran has not been engaged in remunerative work and requires that the veteran satisfy the respondent of three matters, demonstrating “genuine efforts to obtain work which are made fruitless by the incapacity” (Smith espec. at [49] per Buchanan J; Richmond);
(b)efforts made by a veteran to obtain work prior to the assessment period are to be taken into account in applying s 24(2)(b) (Smith);
(c)the application of s 24(2)(b) is not limited to circumstances where a veteran has not been engaged in remunerative work at all since leaving military service or becoming incapacitated (ibid);
(d)for the purposes of s 24(2)(b), “[c]easing to work at a particular time for reasons other than war-caused injury or disease, including for reasons which might be entirely beyond the control of a veteran (such as redundancy for example), is not a permanently disentitling circumstance” (ibid at [70] per Buchanan J);
(e)s 24(2)(b), like s 24(1)(c), requires that a hypothetical comparative exercise be undertaken, so that “the true effect of war-caused incapacity upon the ability of the applicant to obtain work to be assessed” (Byrne v Repatriation Commission [2001] FCA 1134 (at [8]-[9]));
(f)the expression “the substantial cause” in s 24(2)(b) “requires that, if the incapacity is not of itself productive of the inability to obtain work, it is nevertheless the operative factor which, more than any other, explains it” (Fox v Repatriation Commission (1997) 45 ALD 317 at 319-320 per Kiefel J).
Shortly stated, the relevant principles governing the second limb of s 24(1)(c), which I have set out in detail in Burton, are:
(a)the second limb requires a causal connection between the veteran’s inability to undertake the remunerative work he or she previously engaged in and the veteran’s suffering of financial loss (Richmond at [53]);
(b)the financial loss referred to in the second limb of s 24(1)(c) may be caused by a loss of existing employment or by an inability to obtain new employment (Magill v Repatriation Commission [2002] FCA 744 at [10], citing Banovich at 402);
(c)the second limb raises the question of what the veteran probably would have done in the absence of the relevant war-caused incapacity (Flentjar v Repatriation Commission (1997) 48 ALD 1 at 5) - “the importance of the words ‘remunerative work that the veteran was undertaking’ in s 24(1)(c) is to connect the incapacity to the relevant loss of income by creating a before and after test or frame of reference.” (Smith at [20]);
(d)the second limb is amplified by s 24(2)(a), which “supplements the requirements of s 24(1)(c) by identifying specific circumstances which will cause it not to be satisfied” being “in effect ... the opposite to the conditions in s 24(1)(c) itself” (Smith at [48]; Richmond);
(e)the “cessation of work and the financial loss caused by that circumstances must be the consequence of the war-caused incapacity not the result of an independent decision to stop work or the consequence of incapacity brought about by some incident or other matter which is not war-caused” (Smith at [172], Richmond at [82], [83]);
(f)the expression “has ceased to engaged in remunerative work” in s 24(2)(a)(i) “entails that the veteran has left the workforce, and not that he or she is merely unemployed” (Smith at [10]).
In addition to the principles I have reiterated and summarised above, I consider it to be appropriate for the purposes of this case to elaborate upon the nature of the “hypothetical exercise” to be undertaken in applying ss 24(1)(c) and 24(2)(b) and also upon a further principle to which I adverted in Burton, particularly that it is necessary to take into account the consequences of a veteran’s incapacity from their war-caused condition in applying s 24(1)(c) and s 24(2).
The Full Court in Richmond, save for in a respect immaterial for present purposes, endorsed the construction of s 24(1)(c) reached by the primary judge, in Richmond v Repatriation Commission (2014) 140 ALD 380. At first instance, Dodds-Streeton J (at [145]-[171]) made observations for the sake of completeness about an aspect of the interpretation of the first limb of that provision. Those observations concerned whether the hypothetical exercise of assessing what the veteran probably would have done during the assessment period if he or she did not suffer from any war-caused conditions was confined to the second limb of s 24(1)(c), or rather, as her Honour concluded, was also to be undertaken in applying the first limb of that provision. Her Honour’s observations were not discussed by the Full Court, presumably because it was considered unnecessary to do so in the context of the issues considered on appeal. In any event, those observations accord with the Full Court’s reasoning in Repatriation Commission v Smith (1987) 15 FCR 327 (“Smith 1987”) (see Richmond at first instance at [147]-[151]) and, particularly, later in Hendy.
In Hendy, the Full Court (at [23]) summarised relevant reasoning of the judge at first instance:
“[H]is Honour considered that it is not within the intendment of the Act that a decision-maker might resort, under the rubric of ‘labour market factors’, to the mere consequences of a veteran’s service-related disability for the purposes of defeating a claim. If a service-related condition incapacitates a veteran for particular work, as time goes by, the veteran’s ability to re-enter the work force would tend to be impaired on account of lack of recent experience of that work, coupled with the absence from the workplace generally and increasing age. While his Honour accepted that it was correct to say that labour market factors may be a disentitling, concurrent source of prevention of a veteran from undertaking remunerative work, his Honour construed the tribunal’s reasons as a finding that labour market forces operated to prevent the veteran from obtaining work simply because of his service-related disabilities.”
I note that the trial judge, Madgwick J, succinctly encapsulated the point he was making as follows (Hendy v Repatriation Commission (2002) 72 ALD 112 at [40]):
“There would have been little point in providing for a work incapacity pension if the direct consequences of the incapacity could defeat the right to the pension.”
However, the Full Court did not agree with the trial judge’s interpretation of the Tribunal’s reasoning (and consequentially, allowed the appeal), stating (at [35]-[37]):
“On a fair reading of the reasons of the tribunal did not treat labour market forces as preventing the veteran from obtaining work simply by reason of his PTSD or absence of the workforce by reason of that condition. .....
The tribunal’s task was to assess what the veteran probably would have done, if he had none of his service disability during the assessment period. ..... That is the exercise that the tribunal undertook. ...
The consideration of what a veteran would probably have done, absent the service disabilities, is a hypothetical exercise. ...”
As Dodds-Streeton J observed in Richmond at first instance (at [146]-[158]), the reasoning in Smith and Hendy envisages the hypothetical exercise being undertaken in applying the first limb of s 24(1)(c) in relevant circumstances, not merely the second limb.
Her Honour considered that the requisite “hypothetical exercise” described by the Full Court in Hendy has the following significance in terms of prima facie preventative factors for the purposes of the first limb which might, in any given case, in fact have their genesis in the veteran’s war-caused incapacity:
“Hendy thus recognises that where, at the commencement of the assessment period, the veteran has already been out of the workforce for some time, whether factors such as lack of recent experience or advanced age during the assessment period should be treated as defeating the alone test may depend on an assessment of what the veteran would have done prior to the assessment period but for his war-caused illness, which is necessarily hypothetical. If for example, the veteran would not have left the workforce or moved to a different area but for the war-caused condition, such factors would be a consequence of the condition rather than an independent preventative factor.” (At [159]; emphasis added.)

It is thus apparent that her Honour considered the reasoning of Madgwick J at first instance about the significance of labour market forces which are in fact consequences of a veteran’s incapacity to have remained intact, even though the appeal from his decision was allowed on the particular facts of that case. On one view, it might be said that the Full Court’s treatment of Madgwick J’s reasoning is rather elliptical, in that the Court did not go so far as to expressly endorse that reasoning according to its terms.
Nevertheless, as her Honour indicated, that reasoning is necessarily encompassed within the hypothetical exercise prescribed by the Full Court in Hendy. If a veteran would not have left the workforce but for their incapacity from a war-caused condition, then the consideration of what they “probably would have done, absent the” war-caused condition might in a particular case lead to the conclusion that they would have continued to work, and would therefore not have been absent from the work force nor lacking work experience. It might also lead to the conclusion that their age, although of course a factor that will come into play in an inevitable manner, nevertheless bears less weight as a factor in the circumstances. Of course, that depends upon the particular inclinations, skills and characteristics of the veteran concerned, the nature of the remunerative work they undertook and their prospects for employment in other respects.
As Beaumont J stated in Smith 1987 at 337, which concerned a 71 year old veteran who has retired as a plumber at the age of 63 and had applied for a special rate of pension at the age of 69:
“As has been said, the question posed by s 24(1)(c) is one of hypothetical fact. The Tribunal must attempt an assessment of what the [veteran] probably would have done if he had none of his service disabilities. The starting point is an examination of the prospects of employment, including self-employment, in south Tasmania in early 1985 for a healthy sixty-nine-year-old plumber.
...
It may be accepted that it was open to the Tribunal to find that on retirement from employment at sixty-five years, some plumbers seek casual work elsewhere. But it does not, of course, necessarily follow that the [veteran] would have done so.”
Analogous reasoning was employed by Gyles J in Byrne at [8]-[10] with respect to the ameliorative provision in s 24(2)(b), when addressing a submission that a factor in the veteran’s inability to obtain work during the assessment period was the high rate of unemployment in the area he had moved to because of his PTSD:
“I agree ... that a consequence of incapacity resulting from the war-caused injury or disease can hardly be counted as a factor against the applicant under s 24(2)(b) when considering the effect of that incapacity upon obtaining employment.
The same may be said of the applicant’s time out of the workplace. ..... There is a certain circularity in saying that failure to work as a consequence of war-caused incapacity destroys the causal connection between the incapacity and a later failure to obtain work.
...
In order to judge the effect of the relevant incapacity, it is necessary to compare the position of the applicant as he is with the position he would be in without the relevant incapacity. In the present case, that requires the formation of an assessment of the work prospects of the applicant as a fifty-one year old man with his characteristics and abilities, who had never suffered from PTSD, bilateral sensorineural hearing loss, osteoarthritis of right and left knees or sleep apnoea and who is probably not living in Kempsey [where the veteran had moved to]. That process enables the true effect of war-caused incapacity upon the ability of the applicant to obtain work to be assessed.” (Emphasis added.)
In Richmond at first instance, after considering the analogous reasoning of Gyles J in Byrne (with respect to s 24(2)(b)) and other authorities, her Honour concluded (at [169]) that:
“Analysis of the relevant authorities ... in my view, indicates that the hypothetical question is not limited to the ... second limb of s 24(1)(c). The hypothetical question may be less consistently relevant to the [first limb], but will clearly be so where factors such as having been long out of the workforce prior to the assessment period could play a causal role in preventing the veteran from working during the assessment period. If the veteran would not have been out of the workforce but for the war-caused illness, that factor should not be treated as an independent preventative factor to defeat the ‘alone’ requirement.” (Emphasis added.)
Although the Full Court in Richmond enumerated factors which “may contribute to preventing a veteran from continuing in or obtaining remunerative employment” (at [98]), including time out of the workforce and lack of recent work experience, without any qualification in terms of their nexus to the war-caused incapacity, that is explicable by the fact that the Full Court was adverting to those factors in a different context on appeal, particularly as to the meaning of the term “prevented” in the first limb and whether it encompassed voluntary or elective decisions to cease remunerative work. The Full Court was not engaged in analysing the hypothetical exercise prescribed in Hendy. As I have said, early in its reasons the Full Court relevantly endorsed the interpretation of s 24(1)(c) reached by the trial judge without comment or qualification.
It might perhaps be said against that reasoning that the circumstances of veterans who have ceased work prior to the assessment period are intended instead to fall for consideration under the ameliorative provision in s 24(2)(b); in other words, a long period out of the workforce might preclude the satisfaction of the “alone” test in the first limb of s 24(1)(c) but would be encompassed by the residual provision.
However, in my view such a construction would be incorrect – there is nothing in the text of the ss 24(1)(c) and 24(2)(b), read in context, to suggest a dichotomy in treatment between veterans who have been engaged in remunerative work and those who have not. The first limb of s 24(1)(c) and s 24(2)(b) are not alternative provisions with discrete application – rather, the latter provision is concerned with a further basis upon which certain veterans might satisfy the first limb and is essentially a deeming provision.
Furthermore, the ameliorative provision, which is concerned with the obtaining of work, not prevention from continuing work, does not cover all circumstances and, particularly, will not assist where the veteran’s inability to obtain remunerative work is not sufficiently attributable to their incapacity. In any event, Hendy stands as authority for the proposition that s 24(1)(c) is also concerned with veterans who have ceased work prior to the application date, including those who have done so well beforehand.
In summary, the hypothetical exercise to be undertaken in applying the “alone” test in the first limb of s 24(1)(c), as prescribed by the Full Court in Hendy, necessarily requires consideration of the extent to which labour market factors would have affected the veteran during the assessment period in the absence of their war-caused incapacity and requires consideration of the weight to be given to age, in the context that the veteran had not suffered their war-caused incapacity. The Tribunal must therefore consider, in that hypothetical inquiry, based on the evidence, what the consequences of that incapacity have probably been.
Put in terms of the statutory text of the first limb of s 24(1)(c), if labour market factors prevent or contribute to preventing the veteran from continuing to undertake remunerative work but those factors are a consequence of the veteran’s war-caused incapacity, it follows that the veteran is, with respect to those factors, nevertheless prevented from working “by reason of” war-caused incapacity, and so the satisfaction of the “alone” test is not thereby precluded.
Lastly, I note that, for the reasons I expressed in Burton (at [46]-[48]), I have addressed the construction and application of s 24(1)(c) by reference to the statutory words (as construed in relevant case law: see Brennan v Comcare (1994) 50 FCR 555 at 572), not by reference to the questions distilled from its provisions in Flentjar (at 4-5).
I have adverted to other relevant principles later in these reasons, as they arise for consideration.
EVIDENCE
Mr Redden gave evidence by way of witness statement and also gave oral evidence. He was cross-examined. His partner, Ms Mary McGuire, also gave oral evidence and was cross-examined. Each party relied upon various documents, including medical reports, which were tendered and accepted into evidence by consent.
Mr Redden’s evidence
Mr Redden completed secondary schooling to the Intermediate level, the current equivalent being Year 9. Upon leaving school, he worked as a postal clerk, from 1961 to 1964. He then worked as a railway station hand, doing the work of a porter and then did general farm labouring work, followed by his enlistment in the RAAF.
During his service in the RAAF, Mr Redden obtained an Associate Diploma of Aeronautical Engineering, thus qualifying as an airframe fitter. Mr Redden was an airframe fitter for 15 years. When asked under cross-examination whether he considered his career at the RAAF (where, as I have indicated, he achieved the rank of sergeant) to be a successful one, Mr Redden said that it “could have been a lot more successful but I put it down to my brain problems from Vietnam”. He accepted that that view was merely held in retrospect but explained that that was “because there was nothing wrong with me, everyone else had the problem”.
Upon his discharge from the RAAF in 1987, Mr Redden was employed by Hawker de Havilland as a logistics analyst, where he worked for about seven years, as clarified under cross-examination. Mr Redden’s duties first involved assessing the service and maintenance requirements of the Pilatus PC-9 aircraft, for its inception into the RAAF, and later involved “hands-on” managerial work on the Boeing 707 aircraft, which was being modified so that it could refuel the F-18 aircraft. He was retrenched from that position when his employer’s contract with the RAAF relating to the PC-9 ended. Mr Redden was then employed by Serco as a logistics analyst, where he rewrote technical maintenance plans for RAAF’s aircraft fleet.
While working for Serco, Mr Redden received an offer from Transfield Technical Services to work as a logistics analyst and technical writer for its contract with the Royal Australian Navy (“RAN”) involving the ANZAC ships which were being built by Tenix, which he accepted. Accordingly, he only worked at Sirco for about 11 months. Mr Redden started working at Transfield in 1995; his employment there came to an end on 14 August 1998, in circumstances which are disputed in this proceeding. Mr Redden was 51 years old at that time and has not engaged in remunerative work since.
Mr Redden’s work at Transfield involved formulating a methodology for removing, overhauling and then reinstalling ship components. He used computers in his work, to work out the logistics and to standardise relevant information for future updates. He also used technical manuals to assist in working out how to safely remove components. Mr Redden also used technical manuals in his previous work as a logistics analyst at Hawker de Havilland and rewrote them by converting them to the RAAF format. Mr Redden said that using and updating such technical manuals required considerable organisation and planning and “extreme” concentration and memory.
In addition to using a computer in his work at Transfield, Mr Redden was also required to work physically on the ANZAC ships, examining components, working out a route for their removal, simulating their removal for that purpose and explaining that route. Mr Redden said that he struggled with that aspect of the job, because it required him to work in confined spaces on the ship and that he therefore suffered pain in his back and knees; he nevertheless tolerated the pain and did the job.
Mr Redden gave oral evidence that he “loved going to work”, that he believes that he “was good at my job and I enjoyed the challenge”. He said that he “enjoyed winning”, by which he meant he sense of achievement he felt in meeting the challenge of working things out.
However, Mr Redden gave evidence that, about six months prior to the end of his employment at Transfield, he was involved in an incident with a work colleague when they argued, he lost his temper and consequently pushed that colleague back against a wall and held him there. That altercation led to Mr Redden being counselled by his boss – he was told that he should be more accepting of other people’s ideas and should not repeat the incident. Nevertheless, about two months later he had a further argument with the same colleague, who reported him, and was again counselled by his boss, who said that he “should temper [his] whole demeanour” and warned him that “I might have to let you go”. Mr Redden took that as meaning that he might have to fire him if such instances continued. That was followed by a third argument with the same colleague, who again reported him. Mr Redden gave evidence that, on that occasion, his boss told him “you’re sailing very close to the line”.
I come now to Mr Redden’s evidence about the circumstances in which his employment at Transfield ended. It is convenient to note at this point that the gist of Mr Redden’s evidence was that he was made redundant, but that he later came to believe, and now maintains, that his redundancy was not genuine, despite the fact that Transfield was being restructured at the time, as that was used as a pretext to end his employment, because of his pattern of aggressive conduct and, to perhaps a lesser extent, the deterioration of his work performance. He had received warnings about his behaviour towards work colleagues shortly before he was made redundant.
Accordingly, one of the issues in dispute was whether or not that redundancy was a genuine one or rather, as Mr Redden contended, came about because of the effects of his psychological war-caused conditions. The Tribunal was invited to draw inferences from certain evidence, including particularly that of Mr Redden, so as to conclude that Mr Redden’s redundancy was contrived to end his employment as a result of his behaviour and, perhaps more faintly, also his reduced work performance.
That factual issue was made more complicated by the fact that Mr Redden’s oral evidence suggested that his redundancy had been a voluntary one – that is to say that he had been offered a redundancy package and had decided to accept it. That evidence was at odds with the documentary evidence before the Tribunal, including his own witness statement, in which he stated “I was given no choice about the termination of my employment; I was simply told that my position was being made redundant”. I note in passing that there were no documents in evidence before the Tribunal directly relating to his redundancy. Bearing in mind that, on his own frank admission, Mr Redden has a poor recollection of events I have, as a general matter, tended to prefer contemporaneous documents where Mr Redden’s evidence has been inconsistent, contradictory or vague.
It is convenient to note at this point that I have concluded that the redundancy was not voluntary; his employment was simply terminated on the grounds of redundancy. The issue nevertheless remains as to whether the redundancy was genuine; indeed the issue remains, in my view, more relevant given my conclusion that the redundancy was not voluntary than it would otherwise have done. I address that issue later in these reasons.
I now return to Mr Redden’s oral evidence. He said that the issue of his redundancy was first raised about two weeks after he received his third warning about his behaviour from his boss. He was told that “they were running out of money in the contract” and that therefore “they were cutting down the squad” and therefore he was asked whether he wanted to “take a redundancy package”.
The precise nature of the restructuring to which Mr Redden referred was somewhat unclear. Mr Redden gave evidence that, at the time of his redundancy, Transfield was being restructured. He explained that, as part of that restructuring, Transfield handed over its defence activities at the dockyards, including with respect to the ANZAC ships, to its subsidiary, Tenix. However, he said that he nevertheless remained employed by Transfield, doing the same job as before, but now being paid by Transfield Technical Services rather than Transfield Shipping Services. That was because those activities were categorised as “civil” activities, which Transfield retained. In his witness statement, Mr Redden said that Transfield’s contracting with the RAN to write its “Technical Repairs Scheme” for the ANZAC ships being built by Tenix continued, despite the restructuring. Under cross-examination, Mr Redden said that the restructuring of Transfield, particularly its division into Transfield and Tenix, occurred in about 1997 and 1998. He said that it was stated “on my retrenchment” that it had arisen out of that restructuring.
Mr Redden was cross-examined about his evidence that he believed that his redundancy had, in reality arisen out of his own conduct rather than, as presented, out of the restructuring.It was put to him that the histories taken by Dr Benjamin, in his report dated 15 September 1998 and by Dr Walton, in his report dated 6 May 2002, both of which I refer to later in these reasons, merely recorded that he had ceased work as a result of retrenchment. Furthermore, Dr Benjamin’s report recorded that he had the expectation of being re-employed by Transfield; Dr Walton’s report recorded that the retrenchment had occurred as a result of the company restructuring, neither making any mention of any ulterior reason underlying the ending of his employment. Mr Redden explained with respect to the 1998 report in effect that he did not consider at the time that he was retrenched that there was anything wrong with him. He also said that “I was fat, dumb and happy .... I was just there and I got a package and I was going to go out and get another job”. I note in passing that Mr Redden referred to his state of mind in almost identical terms in giving evidence before the Veterans’ Review Board.
Mr Redden’s evidence concerning the recounting of his history in Dr Benjamin’s report was rather confusing and contradictory, although it was ultimately clarified by his acceptance of a summary of his evidence, as put to him by the Tribunal. In summary, his evidence was that he was asked whether he would like a redundancy package, and had assumed at that time that it was offered merely in the context of the company restructure. Mr Redden said in substance that he “deliberated over it” and was happy to accept the offer, because of the altercations he had been having with work colleagues and resultant warnings and because of his expectation that he would easily find other employment in the aerospace industry. As I explain later in these reasons, that expectation turned out to be false.
It was not until later that Mr Redden formed the view that his redundancy was not genuine and was instead motivated by a desire to end his employment brought about by those altercations. In his witness statement and in his oral evidence, Mr Redden said that he formed that view in about late 2001 when he discovered that he had been replaced at Transfield by two contractors. He said that a former work colleague who worked at Tenix and therefore in a different section from his with whom he played golf said as a “running joke ... [t]hey needed two blokes to replace you, Redden”.

Mr Redden also gave more detailed evidence that a fellow member of his golf club whom he knew fairly well, who also worked in the field of logistics and with whom he had worked at Sirco, told him while they were playing golf that the reason for his failure to obtain further employment was because “everyone knows I’m a thug”.
When it was put to him under cross-examination that such a statement could merely form part of the typical “macho” conversation and teasing during a day out on the golf course, Mr Redden said that the statement had been made in the context of him asking that former colleague as to whether he knew of any available jobs, to which he had responded “I don’t think anyone wants to employ you because you’re a thug”. Mr Redden said that, despite the fact that the statement had been made during a game of golf, he had taken it literally – “I just took it that he must have seen one of my job applications go through there or something”. Under re-examination, Mr Redden said that he did not have the impression that that former colleague was trying to joke with him or tease him and “thought he was serious”.
I note that the context in which Mr Redden said that he was described as a “thug” varied. In his witness statement, he said that “I was told that Transfield had effectively described me as being ‘a thug’ and I believe that this is the reason why I was not given interviews” as “I was told (at around the time that I was making the applications) that Transfield had given poor references”. However, in his oral evidence he did not go so far as to say that his golfing colleague or anyone else had actually told him that Transfield had given poor references – under cross-examination, it was apparent that he accepted that he merely took his former colleague’s statement literally, without further inquiry.
In cross-examination, Mr Redden was asked about statement in Dr Benjamin’s report that at that time he had the expectation of being re-employed by Transfield. Mr Redden accepted that the statement must have been made in the context of his understanding that company was bringing in short term contractors to replace permanent employees in order to cut costs and that he would be re-employed on a short-term contract, although he explained that his expectation was that it “would be on a different project but apparently they didn’t like me”.
With respect to the recording of his history in Dr Watson’s report, Mr Redden said in substance that “I was in no fit state to be quoted”, earlier explaining that the year 2000 was his “bed time”, by which he meant that “I found the solitude of my bed and stayed there”. I also note that Dr Fraser’s notes for early 2001 record that at that time Mr Redden was spending about 14 hours per day in bed because of tiredness. I note also that Dr Farnbach’s report prepared in November 2013, to which I refer below, records that “Mr Redden told me that for approximately two years after the loss of his job he became increasing depressed and largely took to his bed”.
Mr Redden also gave evidence that, although he was happy at the time with his work performance during the period leading up to his redundancy (albeit he later said merely that he considered it to be “adequate” at the time), in retrospect he considers that it had deteriorated. Shortly stated, he explained that his work, given its nature, required a “100 per cent job” but that in hindsight he believes that he was only doing a “50 per cent job”, which he would then have to spend extra time rectifying in order to “bring it up to a 75 per cent job”.
Mr Redden believes that his work was detrimentally affected by his lack of concentration, fatigue, which he attributes to his anaemia, and paranoid feelings about people. He said that he had collapsed at work in early 1997 and that he had two or three iron infusions. It is convenient to note at this point that the contemporaneous medical records, particularly notes taken by his general practitioner, support the conclusion that Mr Redden suffered from anaemia and fatigue and had iron infusions at relevant times.
However, Mr Redden also gave evidence that his boss was “generally pretty happy” with his work. In response to questions posed by the Tribunal, Mr Redden said that neither his boss nor anyone else at Transfield ever criticised the quality of his work, nor the extra time he believes it was taking. Mr Redden said that he had formed the view that that was because “they had given up counselling me ... because they’d planned to terminate me”. I note that Mr Redden also gave oral evidence that the quality of his work, whether “50 per cent” or “75 per cent” according to his standards, would have been considered acceptable by the RAN according to contractual requirements.
I turn now to Mr Redden’s evidence about his search for work after he was made redundant. He said that he looked for work in the newspapers and on the Internet and also based on word of mouth. He applied for work at the army base at Oakey and made applications to companies tendering for contracts. Mr Redden said that he made “more than 10” applications, although he remembered little about them.
However, Mr Redden did recall that none of his applications received any response. He said that “I have no real idea” why that was so, but that on one occasion he had complained as to why he had received no acknowledgment of his application and was told that “they never responded to all the applications that they get”, given their high quantity.
Under cross-examination, Mr Redden accepted that, given the size of the defence industry in Australia and the number of defence contracts on foot at any time, it was unlikely that all potential employees relating to such contracts would be known to everybody, as there would be thousands of them. He also accepted that competition was fierce for the positions for the kinds of positions for which he applied following his redundancy and that all he in fact knew was that he had received no response to his applications.
Under re-examination, Mr Redden said that his skills as a logistics analyst were “quite high”, guessing them to be “sort of in the top 75 per cent of all logistic [sic] analysts”. He said that, at a guess, there would have been around 50 to 100 people in Australia with his skills at the time he was made redundant, although he admitted that he did not actually know how many there were. He said that, despite the fierce competition for jobs such as those he applied for, he would have expected to at least obtain an interview, given his experience and work record. He said that, although his mental problems had caused his work to deteriorate over time, it was “still regarded as acceptable, if not exceptional”.
When asked about his evidence that he was not aware of any other contemporaneous redundancies which had occurred in the context of the Transfield restructuring, he said in effect that he was not aware of any others in his area but “I don’t know if there was [sic] any others in Transfield or Tenix because I wasn’t privy to it”. He described the restructuring as “a huge change” and thus accepted that it would not be surprising if that change involved a number of changes in employment, but said “I didn’t hear of any”.
It appears that Mr Redden stopped looking for work after a few months, either in late 1998 or perhaps, according to Ms McGuire, in early 1999. He said in oral evidence that he did so “[w]hen they told me I was a nuffy .. [t]hat I was unemployable”; although at another point he said he stopped putting in job applications because he was “[t]ired of belting me head against the wall and if someone tells me I’m unemployable, I’m unemployable.” In substance, his evidence reveals that he was referring to Dr Benjamin, whose report prepared in 1998 I refer later in these reasons, his general practitioner, Dr Fraser and some unspecified person at Health Services Australia. In the latter regard, I note that a letter dated 12 October 1998 establishes that Mr Redden was required to attend a medical examination by a doctor at that organisation in order to receive a disability support pension, which he was subsequently granted. I note that Mr Redden had initially applied to receive a Newstart Allowance upon his redundancy.
Although Mr Redden did not recall what Dr Benjamin had said to him, Mr Redden said of Dr Fraser, “I specifically remember him saying you may never work again” because of his psychological problems. I note that before the Tribunal was a medical certificate dated 10 September 1998 given by Dr Fraser for social security purposes where he diagnosed Mr Redden as suffering from depression and alcohol abuse, said that he could not work for more than 8 hours per week and answered affirmatively that there were likely to be long term limitations on his ability to work, given his “poor concentration”.
Also in evidence was a medical report prepared by Dr Fraser dated 14 October 1998 required to determine eligibility for permanent incapacity submitted to the respondent. In that report, Dr Fraser stated that Mr Redden was permanently incapacitated by depression and alcohol dependence. He also noted that Mr Redden had recently been banned from his golf club because of his aggressive behaviour to other members. I mention that here because Ms McGuire’s evidence about incidents at his golf club to which I refer below tended to suggest that they occurred later than I infer they did, given Dr Fraser’s report. In his report, Dr Fraser described the effects of Mr Redden’s incapacity on his ability to undertake employment as being “[i]rritable [and] short tempered with colleagues” and “poor concentration”.
Mr Redden said that he did not “feel there was anything wrong with me” and that, had he not been told that told that he could no longer work, his intention was that he “would have kept working until I dropped .. because I enjoyed the challenge” and that he would not have retired before reaching the age of 65. In answer to a question posed by the Tribunal, Mr Redden said that he had not given thought to retiring prior to the events which caused him to stop looking for work.
Mr Redden said that, when he worked at Transfield, many of the employees there doing logistics work were older than 51, being his age when he ceased work. He said others were in their early 60s and he knew of one who was 71 or so. He said that the only reason that there were not more was because they tended to be promoted to management.
Mr Redden said that after his redundancy, “I lost all motivation, I lost the will to go on”; he said that he had had suicidal thoughts after that time, although they were not related to his redundancy. The documentary evidence indicates that some time later he was admitted to Austin Health’s Veteran Psychiatry Inpatient Unit Services for a few weeks in 2008 for that reason. At or around that time, Mr Redden undertook a PTSD course, over a few weeks, an alcohol program (the documentary evidence indicates that occurred from August 2008 to May 2009, and an anger management course.
He said that he had had been involved in physical and verbal altercations with other people at the RAAF golf club, to which he belonged – on one occasion he had picked up a man and hung him on a coat hook. As a consequence, he was banned from the club for six months, and subsequently for two months. He could not recall when those altercations had occurred; as I have indicated, Dr Fraser’s notes indicate that they at least began around the time of his redundancy, in September 1998.
By August 2000, Mr Redden had attended a welding course, but he was unable to complete it, given, as stated in Dr Fraser’s contemporaneous notes, his “poor motor skills and concentration”. Although it was not mentioned by Mr Redden, it is apt to interpolate at this point that Ms McGuire gave evidence that Mr Redden made inquiries about obtaining a truck driving licence but, as he disclosed that he was taking medication, he was required to obtain a certificate from his general practitioner, but Dr Fraser refused to provide one.
Mr Redden stopped playing golf a few years ago because of pain from “not being very proficient at it with my arms”, and eye problems resulting from cataracts and strabismus and problems with his hands. Mr Redden has had surgery for his cataracts and strabismus, although he was unable to say when that occurred. Under cross-examination, Mr Redden elaborated that the problem with his hands was that he had cut off the ends of fingers, which had contributed to his decline in dexterity. I note that Mr Redden also accepted under cross-examination that he had noticed that his motor skills had deteriorated as he aged.
He also accepted under cross-examination that the injuries to his hands would restrict his ability to undertake some of his previous work duties, particularly his ability to type and to use his hands on ships. However, under re-examination, he said that his typing skills have always been poor, as he is a “hunt and peck typist”, as in every place he worked there was always a typing pool available. He said that he did not believe that his finger injuries on his left hand would have any real impact on his ability to type. He also said under re-examination that his work did not required minimal gripping with both hands and that he would not be required to lift heavy objects. He said that at home if he needed to lift something heavy with his left hand, he used a little hook and that he saw no reason why he could not use such a hook at work. He said that had surgery on his hand recently and had been told that he will therefore regain more ability to grip his left hand.
Mr Redden gave evidence that he has been seeing a psychiatrist, Dr Jerome Gelb, for about five years and sees him about every six weeks. He believes that he began to see psychiatrists following his admission to Austin Health. Mr Redden said that he currently is currently prescribed Zoloft, Valium and Temaze and takes 200 mgs of Zoloft each day, 10 mg of Valium about twice per week and Temaze about once or twice per week. I note that Dr Fraser’s notes indicate that he was first prescribed Zoloft in September 1998, shortly after his redundancy. Mr Redden said that he had stopped taking Zoloft a couple of times about nine months after it was first prescribed for him, for a couple of weeks, but that he had resumed taking it after Ms McGuire had commented that he “wasn’t as cranky” when he took it.
Mr Redden gave evidence that, over the last few years, he has experienced difficulty undertaking handyman jobs around his house, particularly in organising things and because of his lack of motor skills. He has also suffered injuries as a result of accidents undertaking such jobs. In the early 2000s or so, he put a rod through his sinuses into his brain cavity while fixing a roller door. Later, as I have indicated, he cut the tips of two fingers off, while using a table saw. He also “flattened” his thumb with a 10 pound hammer. He explained that he was wearing a brace around his arms and on his fingers at the hearing before the Tribunal because he had cut tendons on a plastic pipe while cleaning out a drain.
When asked by the Tribunal why, given his propensity to injure himself in such ways doing handyman work at home, he had not arranged for someone else to do such work instead, Mr Redden said that “[e]veryone suggests that to me but I’m too bull-headed, I’m too mean” and that “I’m not a person that can sit down and watch TV”. Mr Redden attributed those accidents to a “lack of motor skills and a lack of common sense, ... being able to nut out a problem”. He said that those problems had occurred after his redundancy. He said that, apart from his accidents at home, “I get cranky with myself” and that his relationship with his partner had been “very rocky to say the least”, for at least 10 to 15 years, but that “[s]he’s an absolute brick” and that “if she wasn’t around I would have been dead 10 years ago” as “she’s my brain power”.
Mr Redden also recounted an incident at his daughter’s wedding in 2013 in Perth, when he had an altercation with a wedding guest with whom he was acquainted. Mr Redden said that the altercation occurred because he was interacting with his own grandson and the man told him to “[j]ust leave the kid alone”. Mr Redden said that he “just went outside and removed myself from the situation” by returning immediately to Melbourne with his partner. He explained that he found it necessary to return to Melbourne in the circumstances because it was a “safe haven”.
Mr Redden said that he now drinks three stubbies a night, and had done so for the last 18 months to two years; before that he had drunk “a slab” of beer per week. He said that he finds solace when he is in bed, because he can relax, because “I don’t have to talk to anyone, I don’t have to answer to anyone”, but that his mind soon starts “whirring”. He said that his “energy levels are not what they used to be but I put that down to being older”. He said in effect that he has a very limited social life.
Mr Redden had a knee reconstruction operation about four years ago. The condition of his knee has therefore improved, although he still suffers knee pain. He tries to avoid using ladders but “I still use them in the same bull-headed” manner.
Ms McGuire’s evidence
As I have said, Mr Redden’s partner, Ms Mary McGuire, also gave oral evidence. She said that she had met Mr Redden in 1986 or 1987 and said that they had lived together since 29 April 1990. She said that during the months leading up to Mr Redden’s redundancy, he had ‘[l]ow annoyance levels”, by which she meant that “[y]ou didn’t have to say much to get him annoyed” and that he was “short-tempered and irritable”. His energy was low given his anaemia. Because of his knee problems, he had trouble climbing ladders, which he was required to do at Transfield. She said that during the period February to August 1998 he was drinking “about six stubbies” and then “moving onto scotch and soda or whatever” each night. Under cross-examination, she said that he drank one to three scotches each night; furthermore, she confirmed that he has been a “substantial drinker” for most of the time she has known him. She said that during that period his concentration and memory were “getting worse” as he was forgetting where he put things, like his glasses.
Ms McGuire said that after he was made redundant, Mr Redden was looking for work – he was “working a lot on his resume and doing letters”. As I have indicated, she also gave evidence about his attempt to obtain a truck driving licence. She said that Mr Redden bought a computer program to “keep his skills up”, but his computer was not powerful enough to run it. He tried to get a Newstart Allowance and was sent for an interview but as she understood it did not give a good impression. He was consequently told by Centrelink staff that he should seek a disability support pension. He then obtained his veterans’ pension.
Under cross-examination, Ms McGuire said, when taken to the transcript of her evidence before the Veterans’ Review Board, that although he “formally” stopped looking for work in late 1998 or early 1999, he was “informally” still seeking work, in that he was looking at job advertisements in the paper but not applying for jobs – she described his activities as “looking but not seeking”.
Ms McGuire confirmed that she understood that Mr Redden had been involved in altercations at his golf club, during the period 2003 to 2005, resulting in suspensions. As I have said, Dr Fraser’s notes indicate that those altercations in fact started around the time of Mr Redden’s redundancy. She said that she believed that he had stopped playing golf in 2007.
Ms Redden said she thought that Mr Redden was “a lot different” when she first met him and that he “started going downhill around about early ‘90s”, becoming angry and “short, over least important things ... irritated” and that he remains so. However, she acknowledged that she “might have just had rose-coloured glasses on” when she met him. Under cross-examination, she accepted that she meant that he might have already had such traits when she met him but that they became more apparent when she began to live with him. She spoke highly of the first few years of their relationship; however she accepted that he was in fact impatient with other people when they first began their relationship. She said that Mr Redden had never had any altercations with the former work colleague at the golf club to whom he had referred. Under re-examination, she said that Mr Redden’s impatience and irritability had worsened significantly since “[e]arly in the 2000s”; I do not consider that the re-examination of Ms McGuire on the extent of Mr Redden’s irritability and anger over time to otherwise be of any probative value.

Ms McGuire said that living with him is “like walking on eggshells” and that his concentration and memory are bad. She said that he has no social life as he prefers to stay at home and does not want to go out. He has nightmares, lacks energy and sleeps during the day. Sometimes he does not rise until midday. She agreed that she is his carer, which I note is how Mr Redden also referred to her in his oral evidence – amongst other things, she looks after his medications. His medications include tablets for gout and stomach ulcers, both of which he started to take in 2014, although he has had gout for “a long time”. . He also takes medication for urinary problems, which he has had for about four or five years. She described his accidents around the house as being caused by him having “butter fingers” and that they mainly occur late in the day, when he is tired.
Medical evidence
As I have indicated shortly after Mr Redden ceased work, Dr Marcus Benjamin, apparently a psychiatrist, prepared a report dated 15 September 1998. In recording Mr Redden’s history, he said:
“This 51 year old man has been unemployed since August the 14^th 1998. He got retrenched felt that he would be re-employed by Transfield but was told that there was no work for him. He is a logistical analyst and a technical writer. At the present time because of his psychological symptoms he feels that he is not capable of putting forward a good resume or present [sic] appropriately in an interview and I would agree with this.
...
This fellow presents with what appears to be a longstanding personality pattern disturbance associated with impatience and explosiveness.
...
Specifically he has no evidence of post traumatic stress disorder.
...
I think he would benefit from counselling ... with regard to acceptance that he is not going to work again.
...
In summary then this man presents with a depressive state with anxiety associated with alcohol dependence. This is superimposed on a longstanding personality pattern of impatience and irritability.
...
His psychiatric state is not in my opinion attributable to war or RAAF service.”
In a report dated 4 August 2000, Dr Rob Peterson, consultant psychiatrist, was of the view that Dr Benjamin might have come to a different conclusion if he had had further information about Mr Redden’s experiences in Vietnam. Dr Peterson allocated an impairment rating of 8 with respect to the effect of Mr Redden’s psychiatric conditions on his ability to work, according to the “Guide to the Assessment of Rates of Veterans’ Pensions” (“GARP”). As was common ground between the parties, that is the highest possible rating in relation to occupation under the GARP; it means that “[t]he veteran cannot work”. In that regard Dr Peterson said:
“Mr. Redden cannot work. The principles [sic] reasons for this are a relative to absolute inability to work with others and a greatly diminished ability to concentrate.”
In a subsequent report dated 12 March 2001, Dr Peterson addressed the “appropriate diagnosis for the emotional problems that Mr. Redden experiences” by opining that his symptoms, which included “difficulty in falling asleep, irritability and outbursts of anger, difficulty in concentrating, hyper-vigilance and a markedly exaggerated startle response” were consistent with a diagnosis of PTSD with associated alcohol dependence.
The respondent relied upon a report dated 6 May 2002 prepared by Dr Lester Walton, also a consultant psychiatrist. Dr Walton, in recording Mr Redden’s history, noted that “Mr. Redden reports that not only had his psychological symptoms improved but they are continuing to improve, especially over the past three months since he relocated residence”. Dr Walton, in recording Mr Redden’s history, stated that:
“Mr. Redden was retrenched from work in 1998 in a context of the company restructuring. He has undertaken no remunerated work thereafter.”
Dr Walton then opined that:
“The striking features in this case are this man’s irritability, parallel anxiety and depress mood on a background of excessive alcohol consumption. Clinically the picture is that of a mixed anxiety/depressive disorder and substance abuse.
...
I believe his symptoms are properly described as causing significant distress and some impairment of social but not occupational areas of functioning.
... [A]ccording to the veteran, while he remained at work, time off was not a feature and his employment was terminated by retrenchment in a context of company restructuring rather than any obvious problem with mental disturbance or alcohol abuse, an occupational impairment of nil.
...
I believe the veteran realistically identifies his irritability as a problem in terms of he [sic] retrieving gainful employment but he was able to sustain lengthy responsible reemployment in the face of his symptoms previously and he provides a history of recent and continuing improvement. In my view he is suffering from minimal occupational incapacity on psychiatric grounds.”
Other reports before the Tribunal were prepared more recently.Dr Norbert Pomorin, consultant psychiatrist, prepared a report dated 17 March 2009, in which he noted:
“After Mr. Redden left the Air Force in 1987 he worked as a Technical Writer for the Transfield later known as Tenix Corporation. He had trouble with aggression at work and he claimed that they said he ‘was a big bastard’. He was retrenched in August 1998 and became ‘totally despondent’.”
Dr Pomorin diagnosed Mr Redden as having a personality disorder, and concluded:
“Mr Reddens’ [sic] ability to undertake remunerative employment has been affected by the above-mentioned psychiatric condition.
He is unable to work because of his explosive temper and severely impaired ability to concentrate.
This limitation on his ability to work is permanent.
The veteran is prevented from undertaking employment solely because of the psychiatric problems as outlined above.
...
I am not aware of any medical condition which impacts on his capacity for work.”
In a letter dated 14 September 2010, Dr David Kruse, a consultant psychiatrist at the Austin Health veterans’ Psychiatry Unit attended by Mr Redden, assessed Mr Redden’s symptoms from his PTSD as being of moderate severity, with co-morbidities including major depression and alcohol abuse/dependence, stating that those conditions required treatment.
In the report of Dr Colin Seabridge, consultant psychiatrist, dated 10 June 2011, Mr Redden’s belief that the restructuring of Transfield had been “used ... as a pretext to terminate him” was noted. Dr Seabridge opined in conclusion that Mr Redden suffers from PTSD, noting that Mr Redden’s response to test questions gave “a strong indication of genuineness”. For occupation, gave a GARP rating of 6, commenting that “[h]as been forced to discontinue work because of his disorder”.
Also before the Tribunal was a report prepared by Dr Jerome Gelb, consultant psychiatrist, dated 18 June 2012. I consider Dr Gelb’s report to be of little probative value, as his conclusion that Mr Redden “was in fact unemployable as a result of his accepted psychiatric conditions alone” and that he “remains totally and permanently incapacitated for remunerative employment as a result of his accepted service related disabilities alone” appears to be founded significantly, if not wholly, on what purports to be a legal opinion he seems to have formed that the circumstances of Mr Redden’s employment at Transfield “represented a constructive dismissal”, rather than on clinical examination, as one would properly expect of a psychiatrist. In my view, the lack of rigour in his approach, expanding beyond the nature of his expertise, makes his report otherwise unreliable. I note in passing that he gave Mr Redden a GARP rating of 8 for occupation, commenting “cannot work”.
Dr Russell Ferguson (who on Mr Redden’s evidence was his general practitioner for a period he was not seeing Dr Fraser) in a report dated 16 August 2013, said with respect to Mr Redden:
“His personality disorder has with the passage of time become more apparent. He has difficulty controlling his aggression towards people whom he regards as irritants. He has a tendency to react with aggression of a verbal and physical nature ...
His post traumatic stress disorder renders him unable to concentrate, organize or co-ordinate hand eye tasks.
...
“He is a large man physically who presents with an intimidating person and this impression is reinforced by a combative mode of address. I can understand why he has difficulty seeking employment, subsequent to his retrenchment which was almost certainly attributable to his impaired interpersonal relationships.
I have no hesitation in coming to the conclusion that [he] is incapacitated, almost certainly permanently. I’m of the opinion that this situation is attributable to his post traumatic stress disorder ...”
In a report dated 3 September 2013, Dr Albert Kaplan, consultant psychiatrist, noted in recounting Mr Redden’s history that Mr Redden believed the ending of his employment at Transfield to have not been a genuine redundancy. He concluded that “Mr Redden’s accepted war-caused psychiatric injuries are themselves alone preventing him from undertaking remunerative work for periods aggregating more than eight hours per week”.
Also before the Tribunal was a report dated 26 November 2013, prepared by Dr Peter Farnbach, a consultant psychiatrist. Dr Farnbach opined that Mr Redden had no work capacity, “by virtue of his psychiatric conditions”. He noted that Mr Redden’s chronic knee pain and disability might also represent “an incapacity or partial incapacity with respect to work”. In recording Mr Redden’s history, Dr Farnbach said:
“Mr Redden told me that after he lost his job in 1998 he applied for further jobs but was unsuccessful. He said this was because of the very poor reference that his previous employer provided him with. He said that he lost his job ultimately because of his irritability and belligerence at work.
Mr Redden told me that for approximately two years after the loss of his job he became increasingly depressed and largely took to his bed. He said that his condition gradually improved, however, he never returned to work and has become increasingly withdrawn.
...
The history that Mr Redden presents is consistent with the view that he developed psychiatric symptomatology in Vietnam which became exacerbated when he lost his job in 1998 – he has a two-year period of severe mood and anxiety symptomatology, heavy alcohol use and behavioural withdrawal. As is often the case, it appears that this exacerbation of his symptomatology only partially remitted and he has never returned to his previous baseline level of functioning. He now has a chronic symptomatology that falls in the moderate to moderately-sever category.”
In her report dated 4 February 2014, Dr Robyn Horsley, an occupational physician, concluded that Mr Redden “has no realistic capacity for work” and that he “is totally and permanently disabled”. With respect to Mr Redden’s conditions which had been accepted as being war-caused, Dr Horsley opined that Mr Redden’s arthritis in his knees alone significantly affected his employability and that his bilateral knee conditions alone would prevent him from returning to work and “presenting as a reliable and sustainable employee”. She noted however that his Mr Redden’s primary disability arose from his depressive disorder, alcohol abuse, anxiety disorder and PTSD, as diagnosed in the psychiatric reports.
Dr Horsley noted that Mr Redden had severed and amputated the tips of the middle and fourth fingers of his left hand in June 2002. She also noted that “[h]e can still use the hand, but has difficulty because the left middle and index finger disability”. With respect to her clinical examination, she said that “there was evidence of the traumatic amputation of the left middle and fourth fingers with deformity” but that he “was however able to make a fist”. With respect to his hand injuries, she opined:
“On history, he has had several significant injuries that have affected his bilateral hands, but these did not prevent him from undertaking further handyman activities at home. I do not believe that these disabilities specifically impact upon his ability to work 8 or 20 hours per week.”
PARTIES’ SUBMISSIONS
As I have indicated, the only issue in dispute with respect to Mr Redden’s entitlement to the special rate of pension under s 24 of the Act was whether s 24(1)(c) was satisfied, whether on its own account or by operation of s 24(2). It was not in dispute that the preceding provisions of s 24(1) were satisfied. In particular, the respondent conceded that Mr Redden was totally and permanently incapacitated for the purposes of s 24(1)(b) during the assessment period.
I note also that it was also not in dispute that the assessment period commenced on 14 April 2011 and that the relevant date of effect for the purpose of a determination increasing his rate of pension under the Act would be 14 January 2011.
There seemed to be no dispute with respect to the remunerative work Mr Redden undertook but, in any event, I find that work to be work as an airframe fitter, logistics analyst and technical writer.
Given that, unsurprisingly, Mr Redden contended that s 24(1)(c) was satisfied during the assessment period, I turn first to the respondent’s submissions. The respondent contended, relying upon the Full Federal Court’s decisions in Hendy and Richmond, that the “alone” test in the first limb of s 24(1)(c) was not satisfied, as other factors, particularly Mr Redden’s age, time out of the workforce and lack of recent work experience, were at least contributory preventative factors precluding its satisfaction.
With respect to age, the respondent particularly relied upon Mr Redden’s evidence that the industry in which he worked was a competitive one in terms of gaining employment, that he had been retrenched when he worked for Hawker de Havilland and then been made redundant at Transfield. The respondent submitted that in view of his inability to obtain employment when he was made redundant, at the age of 51, although Mr Redden might have hoped to work to at least the age of 65, it was unlikely he would succeed in gaining remunerative employment at the age he had reached at the commencement of the assessment period (64), nor at his current age, particularly given his time out of the workforce and lack of recent work experience. The respondent referred in that regard to Mr Redden’s reference to having always used typing pools in his work, which would be unlikely to be available in the modern workplace.
The applicant submitted that there was no evidence in this case that the applicant’s age during the assessment period was a factor preventing him from continuing to undertake remunerative work for the purposes of the first limb of s 24(1)(c). With respect to the significance of his time out of the workforce and lack of recent work experience, the applicant submitted that those factors were merely consequences of his incapacity from his psychological war-caused conditions and thus were not additional preventative factors for the purposes of the “alone” test.
That submission was put first on bases pertaining to the ending of his employment at Transfield – if his redundancy was found to be involuntary, it was submitted in effect that it was in fact motivated by effects of his psychological war-caused conditions, particularly his belligerent behaviour and resultant altercations with work colleagues. The applicant invited the Tribunal to infer from the evidence that the redundancy was not a genuine redundancy but rather manufactured to remove Mr Redden from the workplace. If it was found to be voluntary, it was submitted that his acceptance of the redundancy package offered to him was similarly motivated by his altercations with work colleagues and was on that account a consequence of the effects of his psychological war-caused conditions.
The applicant submitted in the alternative that, if the Tribunal was not satisfied that the ending of Mr Redden’s last employment was a consequence of his incapacity from his psychological war-caused conditions, then it should nevertheless be satisfied that his time out of the workforce and lack of recent work experience during the assessment period were a consequence of his incapacity from his psychological war-caused conditions as, but for that incapacity, Mr Redden would, following his redundancy, have found suitable remunerative work in which to engage prior to the assessment period.
The respondent also submitted, albeit more faintly, that another factor precluding the satisfaction of the “alone” test was the contributory preventative factor of Mr Redden’s poor motor skills (which as it noted was referred to in Ms McGuire’s evidence as his “butter fingers”), alternatively injuries he suffered as a result, particularly his partial amputation of fingers, neither of which could be said to arise from Mr Redden’s war-caused conditions. In that regard, the respondent relied on the decision of Finn J in Owen v Repatriation Commission (1995) 59 FCR 93. The applicant submitted that there was no evidence that Mr Redden’s poor motor skills nor his injuries to his fingers were in fact a preventative factor for the purposes of the “alone” test. Furthermore, the applicant submitted that the evidence established that Mr Redden’s poor motor skills did not constitute an injury as such and were in fact a consequence of his psychiatric war-caused conditions.
The respondent contended that the ameliorative provision in s 24(2)(b) was also not satisfied, as Mr Redden had not been “genuinely seeking” to engage in remunerative work for the purposes of that provision given the hiatus between when Mr Redden ceased looking for work (in early 1999), and the assessment period (which commenced on 14 April 2011), the absence of a causal connection between Mr Redden’s lack of success in obtaining employment following his redundancy and his war-caused incapacity and also the facts at the commencement of the assessment period. Furthermore, the respondent submitted that Mr Redden’s war-caused incapacity was not the substantial cause of his inability to obtain remunerative work in which to engage given, inter alia, labour market conditions during his job seeking efforts following his redundancy. The applicant maintained that the respondent’s submissions about the ameliorative provision were contrary to the Full Court’s decision in Smith and that the evidence established that the applicant’s incapacity was the substantial cause of his inability to obtain remunerative work.
The respondent also contended that the second limb of s 24(1)(c), as amplified by s 24(2)(a)(i), was not satisfied. The respondent submitted in substance that Mr Redden had ceased to engage in remunerative work for reasons other than his war-caused incapacity as the evidence established that he had ceased his last job because he had been made redundant (whether voluntarily or not) as a result of the restructuring of his employer and then, contrary to his expectation, had been unable to find further employment for reasons which, on the evidence, were not related to his war-caused incapacity. The respondent submitted in substance that the Tribunal should find that the ceasing of Mr Redden’s employment at his last job was not a consequence of his incapacity, as his redundancy occurred as a consequence of his employer’s restructuring and was not contrived in order to end his employment because of his conduct at work. In that regard, the respondent relied upon the reports of Dr Benjamin and Dr Walton. Essentially by way of analogy, the respondent relied on further decisions of Finn J – Repatriation Commission v Van Heteren [2003] FCA 888 and Cadd v Repatriation Commissioner [2008] FCA 1024. The respondent also pointed, correctly, to the fact that the two limbs of s 24(1)(c) are conjunctive requirements, which must therefore both be satisfied for the applicant to be entitled to a special rate of pension.

The applicant’s primary contention with respect to the second limb of s 24(1)(c) that, while an inquiry as to why Mr Redden left his last employment was potentially relevant to the inquiry for the purposes of s 24(2)(a)(i), the requisite inquiry was far broader as the question to be answered, during the assessment period, was why the veteran had ceased to engage in remunerative work per se. In that regard, he submitted in substance that the evidence established that the only reason he had done so was because of his war-caused incapacity.
The applicant’s submissions about the reason why Mr Redden had left his last employment, to the extent that was relevant to the second limb of s 24(1)(c), were essentially consonant with his submissions in that regard relating to the first limb.
CONSIDERATION
Given the nature and interrelationship of the parties’ submissions and the factual issues in dispute between the parties, I consider it to be particularly helpful in this case to make certain factual findings before embarking on any consideration of the relevant provisions.
Much of the parties’ attention with respect to the evidence and submissions was centred upon the factual issue of the circumstances in which Mr Redden’s last employment came to an end. As the applicant submitted and as, I think, the respondent impliedly accepted, it would be erroneous, given the statutory text under consideration, for the Tribunal in considering whether s 24(1)(c) was satisfied at any time during the assessment period to confine its attention to that time and those events. In my view those events are certainly relevant but not determinative of the statutory questions posed. Ultimately, I have decided that, as a factual matter, they are not quite as significant as the parties supposed. Nevertheless, it is appropriate to deal with them first.
As I have indicated, Mr Redden’s case was, to some extent, founded upon an assumed factual finding that his redundancy was not in fact a genuine redundancy, in that although it purportedly occurred in the context of his employer’s restructuring, it was in fact motivated by a desire to end his employment because of his aggressive behaviour and, perhaps, his unsatisfactory work performance, both of which were said to be consequences of his war-caused conditions, particularly those of a psychological nature.
Mr Redden submitted in the alternative that if the Tribunal were to find that the redundancy was genuinely related to the company restructuring, it should nevertheless find that Mr Redden had been selected for such redundancy given his poor behaviour. As I have also said/indicated, Mr Redden’s oral evidence also raised a question as to whether his redundancy had been voluntary or involuntary.
Mr Redden invited the Tribunal to infer from his evidence, that of Ms McGuire and certain documentary evidence that his redundancy was not genuine – that evidence included:
(a)his and Ms McGuire’s evidence and medical evidence about his problems relating to his psychiatric conditions and anaemia, which he was experiencing during the period leading up to his redundancy in August 1998;
(b)his evidence about the three incidents involving altercations with work colleagues and the consequent warnings he was given by his boss and their proximity to his redundancy;
(c)his evidence that he was told he was being made redundant because there was no work for him yet was later informed that he had been replaced by two contractors who were doing his former work;
(d)his evidence that he knew of no other employee in his division who had been made redundant; and
(e)his evidence about the conversation on the golf course concerning him being thought a “thug”.
I turn now to relevant principles governing the proper drawing of inferences from the evidence before the Tribunal. In Bell IXL v Life Therapeutics (2008) 68 ACSR 154 at [14], Middleton J explained, in an often-quoted passage:
“In considering the material before the court, the trier of fact must be careful to distinguish between inference and conjecture. A conjecture may be plausible, but it is effectively still a mere guess. An inference is a deduction from the evidence, and if reasonable can be treated as part of the legal proof to be considered in making a factual determination in any particular proceeding. While sometimes it may be difficult to distinguish between conjecture and inference, nevertheless the distinction is an important one. In this proceeding, some contentions made by [the plaintiff] were mere conjecture, and were either otherwise explicable or could not be a basis for a determination in favour of finding an improper purpose.”
In my view, his Honour’s observations are also germane to the Tribunal’s fact-finding function in this proceeding. As Jessup J pointed out in Rawson Finances Pty Ltd v Commissioner of Taxation (2013) 133 ALD 39 at [62]:
“The Tribunal is not a court, and is not bound by the rules of evidence: AAT Act, s 33(1)(c). It must, however, proceed by reference to ‘rationally probative evidence’ rather than on mere ‘suspicion or speculation’”
I note however that “permissible inference may be based on direct evidence or circumstantial evidence” (Rawson Finances at [88]) and that “[c]ausation, like any other fact can be established by a process of inference which combines primary facts like ‘strands in a cable’ rather than ‘links in a chain’” (Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at [91]).
However, it is germane to this case to note that “the common law test of balance of probabilities is not satisfied by evidence which fails to do more than establish a possibility” (ibid at [80], cited in Rawson Finances at [88]); in my view the same principle is of equal application in the context of the statutory standard of proof prescribed in s 120(4) of the Act, as interpreted in Smith 1987.
Consonantly, where the inference the Tribunal is invited to draw concerns a person’s intention or state of mind, as the Full Federal Court observed in Comcare v Dunstan (2014) 221 FCR 274 at [39]:
“While intention may be inferred by conduct ... the evidence must be sufficient to support the drawing of the inference. .... If an inference of an employee’s intention, or his or her state of mind, is to be drawn, there must be sufficient evidence to support it. An inference of this kind cannot properly be drawn on the basis of conjecture or mere possibilities.”
The evidence relied upon by Mr Redden as founding the inference for which he contended must properly be weighed against other evidence, including:
(a)Mr Redden’s evidence that his employer was being restructured and that cost reductions were being implemented;
(b)His evidence that his altercations with work colleagues were dealt with by means of counselling and warnings, that is to say in the customary way;
(c)his evidence that he was never told that his work performance was unsatisfactory despite his own belief that it was (which might be expected if his employer were seeking grounds to terminate his employment);
(d)his oral evidence before the Tribunal, which suggested, contrary to his own witness statement and the preponderance of documentary evidence, that his redundancy was voluntary;
(e)his admission that, while he was the only employee in his division to be made redundant, he did not know what had occurred in that context more widely in the company;
(f)his evidence that he had merely assumed that his colleague’s comments about him being seen as a “thug” were made seriously, without further inquiry.
When one weighs those matters against the evidence upon which Mr Redden relied, none of which I consider to be explicable, whether considered in isolation or together, merely in the context that his redundancy was contrived, in my view the evidence merely establishes a possibility that Mr Redden’s redundancy was not genuine. As I have indicated that is insufficient to permit the Tribunal to draw the inference sought. I note in passing, given that the inference sought by Mr Redden involved an allegation of impropriety against his former employer, that the Tribunal is not bound to apply the principle in Briginshaw v Briginshaw (1938) 60 CLR 336 when coming to a decision (Sullivan v Civil Aviation Safety Authority (2014) 141 ALD 540) but, in any event, as Middleton J said in IXL at [22] with respect to that principle, “the essential task always remains of looking at the evidence in its totality” and according to the balance of probabilities.
Consonantly, I consider that the evidence concerning the redundancy and its wider circumstances is insufficient to give rise to a proper inference that Mr Redden was selected for genuine redundancy in preference to other employees because of his past aggressive conduct.
As I said earlier in these reasons, I have concluded that the redundancy was not voluntary; his employment was simply terminated. The preponderance, if not all, of the relevant documentary evidence (both Mr Redden’s various claim documents and medical reports and notes recording his history), supports that conclusion, contrary to Mr Redden’s oral evidence, which was somewhat ambiguous in that regard in any event.
Accordingly, considering the evidence before the Tribunal in its totality, I am not satisfied that Mr Redden’s last employment ceased as a consequence of his incapacity from his psychiatric war-caused conditions – his redundancy essentially supervened. However, the reason why Mr Redden’s last employment ceased, and the reason why his participation in the workforce ceased, were very different, given my conclusion in the former regard. But what matters more, both as a matter of fact in this case and as a matter of law, is why he left the workforce. As I have indicated, the Full Court stated in Banovich (at 402-403) with respect to the predecessor provisions:
“[T]he phrase ‘remunerative work which the respondent was undertaking’ should be read as a reference to the type of work which the member previously undertook and not to any particular job. It follows that a [veteran’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 [veteran] was prevented by his or her war-related incapacity – and by that incapacity alone – from continuing in that field of remunerative activity.”
It is true that the ending of Mr Redden’s employment left him confronted by labour market forces, unsuccessfully seeking work in a competitive marketplace. After a relatively short period, Mr Redden ended his efforts to find further work. I find that it is at that point, in either late 1998 or at least in early 1999, that he left the workforce.
However, it seems to me that there is a critical lacuna in the logic of the respondent’s argument in that regard; alternatively it is predicated on a factual assumption which does not withstand scrutiny. Essentially the respondent says that, as Mr Redden was made redundant, then could not find further employment and then stopped seeking it, ergo he stopped his search and thus left the workforce because he could not find further employment. But that is not what the evidence shows. Nor does it give rise to an inference that Mr Redden voluntarily decided to cease work.
Based on the evidence before the Tribunal, considered in its totality, I am satisfied that in fact the only reason why Mr Redden left the workforce was because he was incapacitated by his war-caused conditions, particularly those of a psychiatric nature. Put simply, his working life was cut short by them. The fact that he had been made redundant and was consequently was seeking work at that time does not alter that fact. It is merely part of the factual matrix and might perhaps explain how or why it was that his working life was cut short at that particular time. But ultimately, that is not to the point.
As I have said, Dr Benjamin’s report was prepared about a month after Mr Redden was made redundant. As I have indicated, Dr Benjamin assessed Mr Redden as having a “longstanding personality pattern disturbance” and as having been a heavy drinker for a number of years. He recommended, amongst other things, that Mr Redden undergo “counselling with regard to acceptance that he is not going to work again”. I do not give lesser weight to his report merely because he did not diagnose Mr Redden’s psychiatric state as war-caused as I do not consider that relevantly alters the substance of his opinion. As I have indicated, Dr Fraser certified that Mr Redden was unfit for work in October 1998 and his contemporaneous notes also corroborate Mr Redden’s conditions suffered at that time. Mr Redden initially sought a Newstart Allowance but was instead assessed as being eligible for a disability pension. I accept Ms McGuire’s evidence that Mr Redden was prevented from obtaining a truck driving licence and therefore from that alternative employment because Dr Fraser refused to provide the necessary certificate.
I note also that, although his report was written two years after Mr Redden’s redundancy, Dr Peterson gave Mr Redden the highest impairment rating for occupation, explaining why “Mr. Redden cannot work”. I accept Mr Redden’s submission that Dr Walton’s report should be given little weight with respect to his view that he “is suffering from minimal occupational incapacity on psychiatric grounds”, given that it was not primarily directed to his work capacity and, perhaps for that reason, made no mention of the difficulties Mr Redden had encountered at work prior to his redundancy.
I have taken into account Mr Redden’s oral evidence given at one point that he stopped looking for work following his redundancy in effect not only because he was told he was not fit for work but also because he was frustrated by his failure to find further employment. On one view, that remark might suggest that that there was a further reason for him leaving the work force. However, read in the context of his other relevant evidence, and given that I consider on the basis of the medical evidence that that reaction was consistent with the effects of his psychological conditions, it does not alter my view that the sole reason for Mr Redden leaving the workforce was that he was incapacitated and thus no longer able to work.
I turn now to the first limb of s 24(1)(c). For the reasons that follow I have found, according to the standard of proof prescribed by s 120(4) of the Act, that the first limb of s 24(1)(c) is satisfied; it is therefore unnecessary for me to consider s 24(2)(b), given its residual operation.
I am reasonably satisfied that, during the assessment period, at least at the commencement thereof, Mr Redden was, by reason of incapacity from his war-caused conditions “alone” prevented from continuing to undertake remunerative work. I find that neither Mr Redden’s age, time out of the workforce and lack of recent work experience prevented him or contributed to preventing him from continuing to undertake remunerative work for the purposes of that provision (see Hendy at [37]; Richmond). Nor did his poor motor skills or related hand injuries constitute a preventative factor.
Put another way, in undertaking the hypothetical exercise required by the first limb (see Hendy at [36]-[37], Smith 1987 at 337), I find on the balance of probabilities that, in the absence of his incapacity from his war-caused conditions, as from the commencement of the assessment period, Mr Redden would have been in a very different position. Although it follows from my findings about the circumstances of his redundancy that he nevertheless would have encountered the competitive labour market forces he did in fact encounter, just as any other worker in the aerospace industry would, I do not place as much weight on that as the respondent effectively did. That is to say, that I am not prepare to extrapolate from the fact that Mr Redden was not successful in gaining any employment (or even a response to his applications) during his relatively brief efforts that he would, in the absence of his war-caused incapacities, nevertheless have failed to gain remunerative employment again. I infer from the evidence, considered in its totality, that he would have done so.
Although Mr Redden did not secure any interviews as a result of his job applications, which would suggest that his incapacities could not have affected job seeking on that account, I note also that Dr Benjamin’s report suggests that Mr Redden’s applications might have been so affected.
I accept Mr Redden’s evidence that he had intended to work until at least the age of 65, that he enjoyed his work and was good at it. His concern that his work performance had deteriorated prior to his redundancy, in the absence of any complaint being made about it, demonstrates earnestness in that regard. The fact that he continued working up to the time he was made redundant despite the effects of his war-caused conditions he was suffering at the time, indicates his genuine desire to work. Mr Redden was qualified and experienced in skilled work of practical utility which remains useful in current times. Based on the evidence before the Tribunal, I consider that, but for his war-caused incapacities, Mr Redden would, perhaps allowing for occasional periods of unemployment (as he had experienced once prior to his redundancy), have remained in the workforce and would have still been working at the commencement of the assessment period.
Although the respondent sought to distinguish between Mr Redden’s desire to work to or past the age of 65 and the likelihood that desire would be met, I am satisfied that Mr Redden, given his particular skills and the experience he would have gained, would have had good prospects for employment at the commencement of the assessment period. I do not consider that his failure to obtain further employment during the short period following his redundancy reduces those prospects. Furthermore, but for his war-caused incapacities the evidence indicates that he would have had the inclination and opportunity for retraining for other remunerative work.
I therefore give little weight to age as a preventative factor for the purposes of the “alone” test, given Mr Redden’s evidence, which I accept, that people of at least his age at the commencement of the assessment period worked at his last employer, whether in managerial positions or otherwise. Although it is relevant that at the commencement of the assessment period Mr Redden was 64 years old, Mr Redden’s imminent 65^th birthday did not signal the arrival of some automatic “cut-off” point constituting a preventative factor for the purposes of the first limb of s 24(1)(c) (see Repatriation Commission v Strickland (1990) 22 ALD 10 at 17 per Davies, Jenkinson and Ryan JJ),
Furthermore, I accept Mr Redden’s submission that his time out of the workforce and lack of recent work experience are not preventative factors, whether on their own account or in a contributory way, as they were a consequence of his incapacity from his war-caused conditions, which caused him to cease work.
I do not accept the respondent’s submission that either Mr Redden’s poor motor skills or his resultant shortened fingers are factors precluding the satisfaction of the “alone” test. As I have said, the respondent relied on Owen, in which Finn J held, inter alia, that the wording of s 24(1)(c), which is concerned with an effect of the incapacity resulting from an injury which has been determined to be war-caused, does not permit the effects of an injury which is not determined to be war-caused to be attributed wholly to an injury that is so determined merely because the two injuries could be shown to be causally related. In my view that authority does not assist the respondent with respect to the question of Mr Redden’s poor motor skills, as on the evidence that is an effect of one of his war-caused conditions; according to the report of Dr Ferguson, Mr Redden’s inability to co-ordinate hand-eye tasks is an effect of his PTSD.

It is true, according to the principles set out in Owen, that Mr Redden’s resultant partial amputations of his fingers would need to be determined to be a war-caused injury to be removed from consideration as an independent preventative factor for the purposes of the first limb of s 24(1)(c). I note in passing that this might be said on one view to sit somewhat at odds with the hypothetical test posed in Hendy. However, I have concluded in any event on the basis of the evidence before the Tribunal that Mr Redden’s injury to his fingers did not constitute a preventative factor during the assessment period.
Although Mr Redden’s evidence on that point, as to how he might “work around” that injury in doing his customary remunerative work did have some air of unreality about it, I prefer the expert evidence on the point. In her report dated 4 February 2014, which was therefore prepared after the commencement of the assessment period, Dr Horsley, an occupational physician, opined with respect to the “several significant injuries” to Mr Redden’s hands, enumerated earlier to include the partial amputation of fingers of his left hand in June 2002, that “I do not believe that these disabilities specifically impact upon his ability to work 8 or 20 hours per week”.
I turn now to the further requirement expressed in the second limb of s 24(1)(c), as amplified in s 24(2)(a)(i). I am satisfied according to the standard prescribed in s 120(4) of the Act that, during the assessment period, Mr Redden was, by reason of incapacity from his war-caused conditions, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity. For the reasons I have indicated, I consider that the amplifying provision in s 24(2)(a)(i) is satisfied, as there are no reasons why Mr Redden has ceased to engage in remunerative work other than his war-caused incapacity. Given my conclusion that Mr Redden would have continued his working life up until the commencement of the assessment period but for incapacity from his war-caused conditions, his financial loss lies in the fact that his working life was truncated by those conditions.
Although Finn J’s decision in Van Heteren is useful in that it confirms that s 24(2)(a)(i) “requires an examination of the reasons why the veteran ceased work”, neither that decision nor Finn J’s decision in Cadd otherwise assist the Tribunal or alter my conclusion with respect to the second limb of s 24(1)(c). As counsel for Mr Redden submitted, relying on Amaca Pty Ltd v Frost [2006] NSWCA 173 at [20] per Spigelman CJ, Santow and McColl JJA agreeing, “[e]ach case turns on its facts and it will rarely be appropriate to try to reason on the basis of factual analogies”. In my view, this case is not one of those rare cases.
As I have concluded that Mr Redden was eligible for a special rate of pension pursuant to s 24 of the Act during the assessment period, it is unnecessary for me to consider his eligibility for the intermediate rate of pension under s 23.
CONCLUSION
For the above reasons, the Tribunal varies the decision under review so that Mr Redden’s pension is payable at the special rate of pension pursuant to s 24 of the Veterans’ Entitlements Act 1986 (Cth), with effect from 14 January 2011.

I certify that the preceding one hundred and fifty-one (151) paragraphs are a true copy of the reasons for the decision herein of Deputy President F J Alpins.
[sgd].................................................................
Associate
Dated 29 April 2015

Dates of hearings 24 & 25 November 2014

Date final submissions received 11 December 2014

Counsel for the Applicant Ms F Spencer

Solicitors for the Applicant Mr Michael Jorgensen, Williams Winter

Advocate for the Respondent Mr K Rudge, Department of Veterans’ Affairs, Review Section

Division	VETERANS' APPEALS DIVISION
File Number	2013/2878
Re	Stephen George Redden
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Deputy President F J Alpins
Date	29 April 2015
Place	Melbourne

Dates of hearings	24 & 25 November 2014
Date final submissions received	11 December 2014
Counsel for the Applicant	Ms F Spencer
Solicitors for the Applicant	Mr Michael Jorgensen, Williams Winter
Advocate for the Respondent	Mr K Rudge, Department of Veterans’ Affairs, Review Section