Stephen George Redden and Repatriation Commission

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[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

  1. 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

  2. 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.

  3. 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…

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Details
Case
[2015] AATA 273
Decision Date

CaseChat Overview and Summary

In this case, Stephen George Redden, an ex-serviceman, applied for a review of the Repatriation Commission’s decision to deny him a special rate of pension under section 24 of the Veterans’ Entitlements Act 1986. The primary issue before the Tribunal was whether section 24(1)(c) was satisfied at any relevant time, considering the provisions of section 24(2). The dispute centred on whether Redden's employment termination was genuinely related to his employer's restructuring or was instead motivated by his alleged aggressive behaviour and unsatisfactory performance, which were argued to be consequences of his war-caused conditions, particularly those of a psychological nature.

The court meticulously examined Redden’s submissions and evidence, including his and his partner's testimonies, and various medical reports. Redden claimed that his redundancy was not genuine and was instead due to his aggressive behaviour and poor work performance, both linked to his psychological conditions. The Tribunal concluded that while the events surrounding Redden’s employment termination were relevant, they were not determinative of the statutory questions posed. It found that Redden was eligible for a special rate of pension during the assessment period, and thus, his entitlement to the pension was upheld.

Consequently, the Tribunal varied the decision under review to ensure that Redden’s pension was payable at the special rate of pension pursuant to section 24 of the Veterans’ Entitlements Act 1986, effective from 14 January 2011. This decision underscores the importance of considering the broader context and statutory provisions when determining eligibility for veterans' pensions.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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).

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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”.