Summers v Repatriation Commission

Case [2015] FCAFC 36

FEDERAL COURT OF AUSTRALIA

Summers v Repatriation Commission [2015] FCAFC 36

Citation: Summers v Repatriation Commission [2015] FCAFC 36
Appeal from: Summers v Repatriation Commission [2014] FCA 608
Parties: RONALD JOHN SUMMERS v REPATRIATION COMMISSION
File number: VID 366 of 2014
Judges: KENNY, MURPHY AND BEACH JJ
Date of judgment: 17 March 2015
Catchwords:

DEFENCE AND WAR — Veterans’ entitlements — application for special rate of pension under the Veterans’ Entitlements Act 1986 (Cth) — whether applicant alone prevented from engaging in remunerative working by war-caused injuries – whether the Tribunal failed to consider the applicability of factor 6(a) of the Statement of Principles concerning Alcohol Dependence and Alcohol Abuse - whether the Tribunal misconstrued s 120 and/or the applicable Statement of Principles – whether the Tribunal adhered to the Deledio process for determining whether injury or disease war-caused under the Act – whether the Tribunal misconstrued the “alone” test under s 24(1)(c) of the Act - whether “loss” suffered – construction of “genuinely seeking to engage in remunerative work”

PRACTICE AND PROCEDURE – whether leave should be granted to further amend notice of appeal – whether appellant may argue issue on appeal that was not argued below
Legislation: Administrative Appeals Tribunal Act 1975 (Cth)
Age Discrimination Act 2004 (Cth)
Repatriation Legislation Amendment Act 1985 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
Workers’ Compensation and Injury Management Act 1981 (WA)
Cases cited: Bushell v Repatriation Commission (1992) 175 CLR 408
Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 179 FCR 554
Collins v Administrative Appeals Tribunal and Another (2007) 163 FCR 35
Coulton and Others v Holcombe and Others (1986) 162 CLR 1
Deledio v Repatriation Commission (1997) 47 ALD 261
Dixon v Repatriation Commission (1999) 59 ALD 315
Dornan and Others v Riordan and Others (1990) 24 FCR 564
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
East v Repatriation Commission (1987) 16 FCR 517
Flentjar v Repatriation Commission (1997) 48 ALD 1
Giesen v Repatriation Commission (2005) 216 FCR 435
Grant v Repatriation Commission (1999) 57 ALD 1
Hill v Repatriation Commission (2004) 207 ALR 470
Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2015] FCAFC 7
Keech v Metropolitan Health Service (WA) (2010) 215 FCR 393
Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186
Lansen and Others v Minister for Environment and Heritage and Another (2008) 174 FCR 14
Leane v Repatriation Commission (2004) 81 ALD 625
Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20
Metwally v University of Wollongong (1985) 60 ALR 68
O’Brien and Others v Komesaroff (1982) 150 CLR 310
Peacock v Human Rights and Equal Opportunity Commission and Another (2003) 73 ALD 341
Preston v Secretary, Department of Family and Community Services (2004) 39 AAR 177
Repatriation Commission v Alexander (2003) 75 ALD 329
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v O’Brien (1985) 155 CLR 422
Repatriation Commission v Watkins [2015] FCAFC 10
Richmond v Repatriation Commission

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AGLC
Summers v Repatriation Commission [2015] FCAFC 36
Case
[2015] FCAFC 36
Decision Date

CaseChat Overview and Summary

The case of Summers v Repatriation Commission involved Mr Summers, a veteran who had served in Vietnam, who sought a special rate of pension under the Veterans’ Entitlements Act 1986 (Cth). The central issue was whether Mr Summers was solely prevented from engaging in remunerative work by his war-caused injuries, specifically whether his alcohol dependence, which was not war-caused, played a role in preventing him from continuing to work. The Tribunal had affirmed the Veterans’ Review Board’s decision that Mr Summers’ alcohol dependence was not war-caused and that he did not qualify for the special rate pension because he did not meet the “alone” test under s 24(1)(c) of the Act. The primary judge of the Federal Circuit Court set aside the Tribunal’s decision, finding that the Tribunal had failed to properly consider whether Mr Summers was alone prevented from engaging in remunerative work by his war-caused injuries, and had misconstrued the applicable provisions of the Act and the Statement of Principles.

The legal issues before the court included whether the Tribunal failed to consider the applicability of factor 6(a) of the Statement of Principles concerning Alcohol Dependence and Alcohol Abuse, whether the Tribunal misconstrued s 120 and/or the applicable Statement of Principles, whether the Tribunal adhered to the Deledio process for determining whether injury or disease war-caused under the Act, and whether the Tribunal misconstrued the “alone” test under s 24(1)(c) of the Act. The court held that the Tribunal’s approach to the “alone” test was flawed and that it had failed to properly consider whether Mr Summers was alone prevented from engaging in remunerative work by his war-caused injuries. The court found that the Tribunal had not properly considered the evidence regarding Mr Summers’ age and other factors that may have contributed to his inability to find work.

The court allowed the appeal and remitted the matter to the Administrative Appeals Tribunal to be determined according to law and the reasons set out in the judgment. The court also granted leave for the Appellant to further amend the Amended Notice of Appeal by adding a new ground of appeal. The parties were directed to file and serve submissions on costs within fourteen days. The final orders included setting aside the Tribunal’s decision and remitting the matter to the Tribunal for further determination.

Orders

Orders of the court

1. The Appellant is granted leave to further amend the Amended Notice of Appeal by adding ground of appeal 4D(a) substantially in the terms of that paragraph in the proposed Further Amended Notice of Appeal filed 7 November 2014.

2. The appeal is allowed.

3. Paragraph 2 of the Orders of Justice Mortimer made 12 June 2014 be set aside and in lieu thereof order that:

(a) the decision of the Administrative Appeals Tribunal dated 27 June 2013 be set aside in so far as it affirmed the decisions under review; and

(b) the matter is remitted to the Administrative Appeals Tribunal to be determined according to law and the reasons herein.

4. The parties are directed to file and serve submissions on costs within fourteen days.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

In the decision challenged in the appeal the Tribunal:(a)affirmed the decision of the Veterans’ Review Board (“VRB”) that Mr Summers did not suffer from war-caused alcohol dependence. It was common ground that he suffered from alcohol dependence and the issue was whether it was war-caused under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). In broad summary the Tribunal decided there was no reasonable hypothesis connecting Mr Summers’ operational service with his alcohol dependence as the asserted hypothesis did not fit with the applicable Statement of Principles (“SoP”) under ss 120(3) and 120A of the Act;(b)decided that Mr Summers suffered from war-caused post-traumatic stress disorder (“PTSD”) setting aside the VRB’s decision in that regard; and(c)affirmed the VRB’s decision that Mr Summers did not qualify for the intermediate or special rate of pension under the Act, largely because his alcohol dependence was not war-caused. In short, it decided that Mr Summers’ non-war-caused alcohol dependence played a part in preventing him from continuing to undertake remunerative work and he therefore did not satisfy the “alone” test in ss 23(1)(c) or 24(1)(c) of the Act.The background facts and procedural history The following account of the facts is derived from the findings of the Tribunal, as set out in Summers v Repatriation Commission [2013] AATA 439 and, earlier, in Summers v Repatriation Commission [2010] AATA 803 (see para [11] below). Mr Summers left school in year 10 after which he worked in the retail industry before he was called up for National Service. He was posted to the Ordnance Corps and when the opportunity to serve in Vietnam arose he volunteered. He served in Vietnam from 24 June 1968 to 14 October 1968 and was assigned to duty in the Other Ranks canteen at Vung Tau where he was the sole person operating the bar. In October 1968 he returned to Australia on compassionate leave so that he would be able to attend his father’s funeral. In total he served in the Australian Army from 12 July 1967 to 11 July 1969. Prior to the present dispute the Commission had accepted that Mr Summers suffers from war-caused sensorineural hearing loss, chronic bronchitis and emphysema and lumbar spondylosis. As a result Mr Summers has been in receipt of a disability pension at 100% of the general rate for some time. On 10 December 2007 Mr Summers made an application in which he sought that the Commission accept that he suffered from war-caused PTSD and war-caused alcohol dependence, and that he was eligible for an increase in his pension to the special rate of pension. His claims of war-caused PTSD and alcohol dependence rely on five events in the course of his service but it is unnecessary to deal with four of these events because they are not central to the Tribunal’s decision or the reasons of the primary judge. The event which is central in the application occurred in Australia on 26 October 1968 while he was on compassionate leave following his father’s death. He was shortly due to return to Vietnam and was drinking with a fellow soldier at Watson’s Bay Hotel in Sydney when they became involved in an altercation with a group of sailors. The evidence is unclear as to what happened next, but an investigating officer’s report suggests that Mr Summers was involved in a brawl with a sailor or sailors during which he and a sailor fell over a cliff onto a rock ledge below while affected by alcohol (“the Watson’s Bay event”).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Tribunal dealt with Mr Summers’ application for the special rate pension under s 24 and also considered whether he was eligible for an intermediate rate pension under s 23. Sections 23 and 24 are in essentially the same terms and we deal with the appeal by reference to s 24. Accordingly we do not set out s 23 or recount the Tribunal’s decision on that section.THE TRIBUNAL DECISION At [5] the Tribunal identified three issues arising on the review, namely:(1)Does Mr Summers suffer from PTSD? If so, is the condition war-caused?(2)Is Mr Summers’ alcohol dependence war-caused?(3)Does Mr Summers qualify for the intermediate rate pension or special rate pension?The claim of war-caused PTSD There is no appeal before us arising out of the primary judge’s decision to uphold the Tribunal’s determination that Mr Summers suffered from war-caused PTSD. It is not necessary to set out much of the Tribunal’s decision in that regard but some of it also goes to his claim of war-caused alcohol dependence. Mr Summers relied on five events which occurred during his three and a half months’ service in Vietnam and while he was on compassionate leave in Australia to underpin his claim of war-caused PTSD. However, the Watson’s Bay event was central to the Tribunal’s decision. The Tribunal set out the lay evidence about the Watson’s Bay event as follows (at [17]-[24]):[17] The fifth event concerned an alleged assault near Watson’s Bay, Sydney on 26 October 1968, when Mr Summers was found at the bottom of a cliff after an altercation with a group of sailors (the Watson’s Bay event).[18] Mr Summers stated that after his father’s funeral in Melbourne he travelled to Sydney to await transport to Vietnam to resume his normal duties. In a written statement dated 27 November 2007 Mr Summers said that he had been drinking in a hotel with a friend and was confronted by a group of sailors and became involved in a fight as they left the hotel to walk back to the army base near a cliff face. His friend ran off. He said that four or five sailors came at him. One picked up a branch and struck him in the head, fracturing his cheekbone. He said: I was bashed up and thrown down a cliff. In a further written statement dated 15 January 2013, Mr Summers said that he remembered the incident in about the third week of his hospitalisation and the memory distresses him enormously even now. What particularly distresses him is thinking about Australian service personnel acting this way against their own people by leaving him at the bottom of the cliff and not seeking medical assistance or informing the authorities.[19] In a written statement dated 24 January 2013, Mr Summers said that he was scared when the sailors...approached me and when I was hit with the branch of a tree with a diameter of 2 inches. He expressed amazement and shock when he was told of the circumstances of the incident, and said that he still thinks about the events a lot. He said:When I think about the sailors leaving me at the bottom of the cliff I feel agitated, angry and wound up. I go through the events again over and over. I am very emotional and tears come and my legs start shaking. I hide in my “Men’s Cave” every day — my garage under the house. There I have my fridge, my television and my dog. I sit there in the darkness with the telly on.Mr Summers stated that he was kept in hospital for several weeks and was unable to return to Vietnam. He said that he was in intensive care for four weeks and was then sent to Concord Rehabilitation Hospital for one week and three weeks of rehabilitation followed, after which he returned to Victoria.[20] Under cross-examination Mr Summers agreed that in an injury report dated 5 November 1968 he stated that he had no clear recollection of the Watson’s Bay event, but maintained that he did not remember making the statement as he was interviewed only 10 days after suffering serious injuries and was probably taking prescribed medication at the time. He also agreed that the investigating officer’s report dated 6 November 1968 referred to the injuries having occurred … as a result of a fall down a cliff face at South Head … following a brawl between Mr Summers and a sailor from HMAS Watson. The investigating officer noted:After wrestling around on the ground they both fell over a cliff onto the rock ledge below. From the statements made by the five sailors interviewed it would appear that everybody was affected by alcohol.[21] Mr Summers stated that he was never interviewed by military authorities about the incident, and that no other person was found with him at the base of the cliff the next day. He was not aware of any charges or disciplinary action against the sailors, but believed that they threw him over the cliff and left him there. He agreed that at the Tribunal’s first hearing he stated: I can remember them coming at me and I can remember, sort of, a flash then that was it. I don’t know whether I got king hit with a branch or … He also agreed that before the Watson’s Bay event he had been looking forward to returning to Vietnam, as he enjoyed his role operating the canteen and had settled in well at Vung Tau ……[23] Mrs D Summers told the Tribunal that she has been married to Mr Summers since 1969. In a written statement dated 10 January 2013 she said that when she was told about the incident she drove to Sydney and at the hospital she observed him to be seriously injured and in great pain. He was in and out of consciousness for some time. She said she remained in Sydney for about two weeks while he was in intensive care.[24] Mrs Summers said that after the incident Mr Summers’ personality and behaviour changed and he was not the young man whom she had known before he went to Vietnam because he was always angry and irritable with her, his family and friends. She explained that since the incident Mr Summers will not visit hospitals and will not discuss the incident at any length, although she said that he told her that he remembers one of the sailors coming towards him with a piece of wood. She described his anger, impatience and rudeness, and said that he has nightmares and has difficulty sleeping. Recently, she and Mr Summers were on a cruise ship and, knowing that Watson’s Bay would be visible, Mr Summers became anxious and suffered from flashbacks. She said that the incident was, and continues to be, a major part of their lives and that he thinks about it every day.

Ratio Decidendi

Legal Principle Established

Section 31 of the AD Act provides:Administration of Commonwealth laws and programs(1)It is unlawful for a person who:(a)performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program; or(b)has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program;to discriminate against another person on the ground of the other person’s age in the performance of that function, the exercise of that power or the fulfilment of that responsibility.Definition(2) In this section:Commonwealth program means a program conducted by or on behalf of the Commonwealth Government.The Tribunal’s decision We set out the Tribunal’s decision in relation to Mr Summers’ application for a special rate pension at [54]-[63] above and we need not reiterate it. Mr Summers relies upon two parts of the Tribunal’s decision in which it refers to Mr Summers’ age in the context of his application for a special rate of pension pursuant to s 24(1)(c) of the Act. Section 24(1)(c) has two main limbs. The first limb provides: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 ... (Emphasis added)It requires that the veteran be prevented, by war-caused incapacity alone (that is, not for other reasons) from continuing his or her earlier remunerative work: Smith v Repatriation Commission (2014) 220 FCR 452 (“Smith”) at [8]-[11] per Rares J, [47]-[48] per Buchanan J, [167]-168] per Foster J; Richmond at [57]-[69] per Middleton, Murphy and Rangiah JJ and the authorities there cited. The possible harshness in the “alone” test in this limb is ameliorated to an extent by s 24(2)(b). The second limb of s 24(1)(c) is:… and [the veteran] 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;The operation of this limb is amplified by s 24(2)(a). We respectfully agree with Buchanan J’s explanation in Smith at [48] where his Honour said that “[t]he overall effect of s 24(1)(c) may be summarised as one which requires a demonstrated loss of earnings as the direct result of the war-related incapacity, and only for that reason” (emphasis added). We have previously set out the relevant parts of the Tribunal’s summary of the evidence and its findings (at [56]). In broad terms the evidence is that, in 2005, Mr Summers was made redundant from Greensborough Bulk trading as Betta Electrical. The Tribunal found that Mr Summers did not seek remunerative work between the date of his redundancy and June 2007, and that his approach to Retravision and his telephoning a Harvey Norman store did not constitute genuinely seeking work. The Tribunal referred (at [70]) to Mr Summers’ evidence “that no one wanted to employ him because of his age, physical disabilities and the economic situation in the retail industry.” Then, the Tribunal summarised the evidence of Dr Horsley, an occupational physician (at [72]) which was to the effect that Mr Summers would have great difficulty returning to the workforce because of his age as well as other factors.