FEDERAL COURT OF AUSTRALIA

Ralph v Repatriation Commission [2016] FCAFC 89

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

THE COURT:

1    Mr Desmond Ralph served in the Australian Army from 1966 to 1971. That service included a period during the Vietnam War of what the Veterans’ Entitlements Act 1986 (Cth) (the VEA) terms “operational service”.

2    Mr Ralph has applied to the Repatriation Commission under the VEA for a special rate disability pension. This application has thus far been unsuccessful, most recently as a result of the dismissal by the Court in its original jurisdiction of a statutory appeal (s 44 appeal) which he made on questions of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) in respect of a decision adverse to him in the Administrative Appeals Tribunal (the Tribunal): see Ralph v Repatriation Commission [2015] FCA 165. He now appeals against the Court’s judgment on the s 44 appeal.

3    There are five grounds of appeal. A convenient way of dealing with them is to adopt the categorisation and related grouping of grounds which Mr Ralph’s counsel employed in his submissions.

Ground 1 – The “lodgement” issue

4    Mr Ralph was born on 23 April 1944. Thus, his 65th birthday fell on 23 April 2009.

5    A veteran’s 65th birthday is an auspicious date in relation to any application by that veteran for a special rate disability pension. That is because, having regard to s 24 of the VEA, the eligibility criteria for the payment of a pension at that rate vary according to whether the application was made before or after the veteran has turned 65. It will be necessary to consider some of those eligibility criteria in the course of dealing with other grounds of appeal. For the moment, it is enough to note that the existence of the variation and that this variation depends on whether the veteran has turned 65 “at the time when the application is made”.

6    Save in circumstances where a pension is reinstated, payment of a disability pension to a veteran is not automatic. A claim must be made by that veteran: s 14(1) of the VEA. That claim must be made in accordance with the requirements of s 14(3) of the VEA. The same applies in relation to an application by a person already in receipt of a disability pension for an increase in the rate at which that pension is paid: ss 15(1) and  15(3) respectively. Materially, s 15(3) provides:

(3)    An application under subsection (1) or (2):

(a)    shall be in writing and in accordance with a form approved by the Commission;

(b)    shall be accompanied by such evidence available to the applicant as the applicant considers may be relevant to the application; and

(c)    is to be lodged at an office of the Department in Australia in accordance with section 5T and is taken to have been made on a day determined under that section.

7    The reference in s 15(3)(c) to “lodged at an office of the Department … in accordance with section 5T and is taken to have been made on a day determined under that section” will be noted. Section 5T of the VEA provides:

5T Lodgment of claims, applications, requests and documents

(1)    This section regulates the lodgment of all claims, applications, requests or other documents under this Act.

Note:    So far as concerns the lodgment of documents with the Veterans’ Review Board, the Repatriation Medical Authority and the Specialist Medical Review Council, these matters are dealt with in Parts IX, XIA and XIB respectively.

(2)    For the purposes of this Act, a claim, application, request or other document, other than a claim, application, request or other document that is approved by the Commission for electronic lodgment and that is transmitted electronically:

(a)    is taken to have been lodged at an office of the Department in Australia only if the claim, application, request or other document is:

(i)    lodged at a place approved by the Commission for the purposes of this subsection; or

(ii)    delivered to a person approved by the Commission for the purposes of this subsection; and

(b)    is taken to have been so lodged on the day on which it is received at that place or delivered to that person.

(3)    For the purposes of this Act, a claim, application, request or other document that is approved by the Commission for electronic lodgment and that is transmitted electronically:

(a)    is taken to have been lodged at an office of the Department in Australia only if the claim, application, request or document is transmitted electronically:

(i)    in a manner approved by the Commission for the purposes of this subsection; and

(ii)    to an electronic address approved by the Commission for the purposes of this subsection;

    in relation to claims, applications, requests or documents of that kind; and

(b)    is taken to have been so lodged on the day on which it is so received at that electronic address.

(4)    Claims, applications, requests and other documents transmitted electronically other than in a manner approved by the Commission or to an electronic address other than an electronic address approved by the Commission are not to be treated as having been validly lodged.

(5)    The Commission may approve a place within or outside Australia for the purposes of subparagraph (2)(a)(i).

(6)    For the purposes of this Act, a claim, application, request or other like document is taken to have been made on the day on which, under subsection (2) or (3), it is taken to have been lodged at an office of the Department in Australia.

(7)    For the purposes of this Act, a notice or like document is taken to have been given on the day on which, under subsection (2) or (3), it is taken to have been lodged at an office of the Department in Australia.

(8)    If any provision of this Act requires any material to be lodged in support of a claim, application, request or other document, that supporting material:

(a)    unless paragraph (b) applies—may be lodged in accordance with this section in the same manner as the claim, application, request or other document to which it relates; and

(b)    if the supporting material is not appropriate to be lodged in the same manner as the claim, application, request or other document to which it relates—may be lodged in such other manner contemplated by this section as the Commission approves.

8    Section 19 of the VEA specifies the manner in which a pension claim or an application for an increase in the rate of pension is to be determined. Within that section, “application day” and “assessment period”, each as defined, have an important role to play in terms of the assessment of the merits of a claim and the rate at which a pension ought to be paid. The “assessment period” commences on the “application day” and concludes on the date a pension determination is made: s 19(9). The definition of “application day” in s 19(9) is particularly important for present purposes, because of its reference to, materially, “received at an office of the Department” and also to “so received”:

application day, in relation to a person who has made a claim or application or on whose behalf a claim or application has been made, means:

(a)    the day on which the claim or application was received at an office of the Department in Australia; or

(b)    if subsection 20(2), 20(2B) or 21(2) applies to the person—the day on which the claim or application referred to in paragraph 20(2)(a), 20(2B)(a) or 21(2)(a) was so received.

9    In the circumstances of the present case, what was critical was when, for the purposes of s 5T(2)(b) of the VEA, the disability pension claim made by Mr Ralph was received by the Department. The claim bears on its face a Department of Veterans’ Affairs, Melbourne “Received” stamp with the date, “1 May 2009”. Obviously enough, that date is after he had attained 65 years of age.

10    Before the Tribunal, Mr Ralph contended for a finding of fact that his claim had been received before he turned 65, i.e. before 23 April 2009.

11    In support of his contention to the Tribunal that this finding be made, Mr Ralph gave oral evidence. So, too, did two volunteers from the Returned and Services League (RSL). Mr John Meehan, an RSL advocate, gave evidence about his assisting Mr Ralph with the completion of the Department’s approved form, including taking that form to his medical practitioner for the completion of a particular portion of it and returning it as completed to the RSL’s Noble Park office. Mr Michael North gave evidence about his undertaking volunteer administrative tasks at the RSL’s Noble Park office, including the dispatch of mail and the recording of dispatched mail in a mail book. All three believed that the claim form had been posted on 16 April 2009. In the case of Messrs Meehan and North, that evidence was based on the usual practice at the RSL’s Noble Park office. The evidence also was that, since then, the mail book for that office had later been lost in a flood.

12    In a year in which falls the 100th anniversary of the formation of the RSL, it is worth recording that this evidence offers a reminder of a role which the RSL continues to play in assisting Australia’s veterans and so doing via volunteers.

13    The evidence from these three witnesses was tendered to the end of providing a foundation for a submission on behalf of Mr Ralph that postage was a means of service authorised by s 28A of the Acts Interpretation Act 1901 (Cth) (the Acts Interpretation Act) and either via the presumption found in s 29 of that Act or that found in s 160 of the Evidence Act 1995 (Cth) (the Evidence Act), it should be concluded that his application form was received by the Commission at the Melbourne office of the Department prior to 23 April 2009.

14    The evidence that Messrs Ralph, Meehan and North gave was not challenged and the Tribunal made no finding adverse to their credit. It did observe that the true position as to when the application was posted may never be known.

15    Be this as it may, the Tribunal’s conclusion was that these statutory presumptions were not applicable, because, by virtue of s 5T(2)(b), the focus of the VEA was on when the claim or application was “received” by the Department. That conclusion was initially expressed in an interlocutory decision, Ralph v Repatriation Commission [2011] AATA 881 (the 2011 decision). The Tribunal made an affirmative finding, based on the departmental date stamp, that the application was received by the Department on 1 May 2009.

16    The Tribunal adhered to these conclusions in its final decision in respect of the review which it conducted: Ralph v Repatriation Commission [2013] AATA 948 (the 2013 decision). The correctness of that approach was upheld by the primary judge on the s 44 appeal. Further, his Honour noted, correctly, that s 160 of the Evidence Act is only applicable to court proceedings, not those in the Tribunal.

17    In the appeal, Mr Ralph conceded that s 160 of the Evidence Act did not apply to proceedings in the Tribunal but pressed his contention that s 29 of the Acts Interpretation Act was both relevant and binding on the Tribunal to the end that it ought to have been presumed that the application form was received when it would have been delivered via the ordinary course of the post. He further submitted that the Tribunal was not entitled to rely on the departmental date stamp, because there was no evidence before the Tribunal as to the Department’s practice in relation to the placing of such stamps on forms.

18    As with all provisions in the Acts Interpretation Act, s 29 of that Act only applies in the absence of a contrary intention in a particular Act: s 2(2). In this case, a contrary intention is evident in the VEA. It is desirable at this point to set out s 28A and s 29 of the Acts Interpretation Act as they stood in April and May 2009:

28A    Service of documents

(1)    For the purposes of any Act that requires or permits a document to be served on a person, whether the expression “serve”, “give” or “send” or any other expression is used, then, unless the contrary intention appears, the document may be served:

(a)    on a natural person:

(i)    by delivering it to the person personally; or

(ii)    by leaving it at, or by sending it by pre‑paid post to, the address of the place of residence or business of the person last known to the person serving the document; or

(b)    on a body corporate—by leaving it at, or sending it by pre‑paid post to, the head office, a registered office or a principal office of the body corporate.

(2)    Nothing in subsection (1):

(a)    affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorizes the service of a document otherwise than as provided in that subsection; or

(b)    affects the power of a court to authorize service of a document otherwise than as provided in that subsection.

29    Meaning of service by post

(1)    Where an Act authorizes or requires any document to be served by post, whether the expression “serve” or the expression “give” or “send” or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.

(2)    This section does not affect the operation of section 160 of the Evidence Act 1995.

19    In Capper v Thorpe (1998) 194 CLR 342, at 352, [23] the High Court observed of ss 75 and 76 of the Interpretation Act 1984 (WA) and their equivalents elsewhere in Australia, which materially include s 28A and s 29 of the Acts Interpretation Act:

[In] Western Australia, as elsewhere in Australia, the Legislature by enacting ss 75 and 76 of the 1984 Act has extended the meaning of the term “serve”. In cases falling within the provisions of those sections, a document may be served although it is not in fact received by the person who has to be served.

[Footnote references omitted]

Of the cases cited in support of the proposition found in the second sentence of the passage just quoted, it is sufficient just to refer to Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87. In that case, the Queensland equivalent of s 29 of the Acts Interpretation Act, s 39(1) of the Acts Interpretation Act 1954 (Qld) and a provision in that State’s hire purchase legislation providing for the giving of a notice fell for consideration. The latter was an analogue of s 28A of the Acts Interpretation Act. Having considered prior authority concerning the meaning of provisions of these types, the High Court stated, at 97:

As the present case shows, delivery may be different from receipt by the intended recipient and, provided that delivery is not disproved, the fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post.

The short point is that, for the purposes of s 29 of the Acts Interpretation Act and its equivalents, non-receipt is not to be equated with non-delivery or, put conversely, receipt is not to be equated with delivery.

20    The difficulty for Mr Ralph is that the lodgment to which s 5T(2)(a)(i) refers is, by s 5T(2)(b), taken to have occurred on receipt, not delivery. It might be added, that, given this and read in context, the alternative in s 5T(2)(a)(ii) of delivery to a person looks to be physical, not constructive or deemed, delivery. Were there any doubt about the requirement for receipt that is put to rest by the definition of “application day” in s 19(9) and its references to “received” and “so received”. Those s 19(9) references are apt to cover each of the lodgement alternatives in s 5T(2)(a). They cover the effect of both limbs of the s 5T(2)(b) deeming provision; on the one hand via the exact reference to “received” and, on the other, when “delivered” is read as physically delivered it is thus “received” by a person.

21    By specifying that lodgment is to be in accordance with the requirements of s 5T and by the references in s 19(9) to “received”, Parliament has understandably opted for precision in relation to a system for disability pension entitlements in which much turns on what constitutes the relevant “assessment period” and when, relative to a veteran’s 65th birthday, a claim or application is made.

22    As to the finding based on the departmental date stamp, the Tribunal was not bound by the rules of evidence: s 33(1)(c) of the AAT Act. Whatever might have been the status of that date stamp under the laws of evidence, and it is not necessary to decide that, it was, on its face, reasonably capable in a body not bound by the rules of evidence of supporting a finding of fact that the application was received on the receipt date shown on the stamp, 1 May 2009. There was no additional need for the Tribunal to have material before it as to the departmental practice in relation to the affixing of such stamps. The inference of receipt was open administratively just by the presence of the word “Received” above the date on what was, apparently, a departmental stamp. Further, we have not, in Australia, reached a stage in public administration, and it is to be hoped as a country we never do, where, in the ordinary course of administrative decision-making, the default presumption is that, deliberately or otherwise, such a stamp should be presumed not accurately to record receipt. There was no evidence to the contrary before the Tribunal. The evidence led by Mr Ralph, even taken at its highest, did not prove, by statutory presumption or otherwise, receipt by the Department.

23    It necessarily follows also that, even though Mr Ralph may not expressly have raised questions of reasonableness before the primary judge in relation to the use by the Tribunal of the date stamp as the foundation for a finding of fact (and thus would require leave to raise such a ground on appeal), there is no merit in a proposition that reliance on it was unreasonable. The interests of justice in this case are better served by highlighting the absence of merit in the contention than by declining to consider it.

24    Ground 1 should be dismissed.

Grounds 2, 3 and 4 – The “remunerative work” issue

25    Mr Ralph’s submission was not that the primary judge had misunderstood what constituted “remunerative work” for the purposes of the VEA, but rather that bringing that understanding to bear, the primary judge ought to have concluded that the Tribunal had misunderstood that concept.

26    The Tribunal made very particular findings of fact concerning Mr Ralph’s work history, both before and after his 65th birthday.

27    One finding was that, in 1996, Mr Ralph was instrumental in the establishment of two related courier companies, which respectively traded under the names Jet Couriers and Metrans. He provided start-up funds and held and continued to hold the positions of Chairman of Directors and Company Secretary. From the outset, two of Mr Ralph’s sons, Mr Brett Ralph and Mr Shaun Ralph, held and continued to hold the positions of Managing Director and Operations Director in those companies. Mr Ralph’s claim was that he had engaged in remunerative work as a consultant for these family owned companies. He also claimed that, both before and after he lodged his application, he had briefly undertaken consultancy work for another company in the transport industry, JMR.

28    In light of the finding that the Tribunal made as to his having lodged his application after his 65th birthday, the Tribunal assessed Mr Ralph’s eligibility for an increase in his disability pension to the special rate against the criteria found in s 24(2A) of the VEA. There was no error of law entailed in the Tribunal’s looking to the s 24(2A) criteria. On the premise that his application was received after he turned 65, Mr Ralph does not contend otherwise.

29    The Tribunal found that Mr Ralph satisfied each of the eligibility criteria specified in s 24(2A), save that in s 24(2A)(g). It is in this regard that the “remunerative work” error is said to be found. Materially then, s 24(2A) provides:

(2A)    This section applies to a veteran if:

…

(d)    the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and

…

(g)    when the veteran stopped undertaking his or her last paid work, the veteran:

(i)    if he or she was then working as an employee of another person had been working for that person, or for that person and any predecessor or predecessors of that person; or

(ii)    if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling had been so working in that profession, trade, employment, vocation or calling;

for a continuous period of at least 10 years that began before the veteran turned 65; and …

Section 5Q of the VEA gives the following definition of “remunerative work”:

“remunerative work” includes any remunerative activity.

30    Before the primary judge Mr Ralph claimed that the Tribunal’s findings of fact showed that, as “remunerative work” was to be understood for the purposes of the VEA, he had engaged in such work in a way that satisfied s 24(2A)(g). He pointed to three particular paragraphs in the Tribunal’s reasons (set out and summarised by the primary judge at [71]):

(a)    [33], where the Tribunal set out Mr Ralph’s evidence that when he lodged his application he did not consider that what he did for Jet Couriers would be considered as work for which he was paid;

(b)    [37], where the Tribunal set out Mr Ralph’s evidence, given in cross-examination, that he had not mentioned his work with Jet Couriers earlier as he did not consider it to be work at the time he lodged his application; and

(c)    [58], where the Tribunal again set out Mr Ralph’s evidence that when he made his 2010 statement in support of the application he did not classify his activities for Jet Couriers and Metrans as work.

Having summarised these passages in the Tribunal’s reasons, the primary judge stated, at [72] - [73]:

72.    ... The Tribunal’s task under s 24(2A) was to undertake a factual enquiry as to whether Mr Ralph:

(a)    was engaged in “work” at Jet Couriers and Metrans; and

(b)    was remunerated or paid for that work.

It should be kept in mind that the three paragraphs upon which Mr Ralph relies are just the Tribunal’s recitation of his evidence, and he does not contend that they are inaccurate.

73.    I note that Mr Ralph’s and Brett’s evidence was not that Mr Ralph was employed by Jet Couriers and/or Metrans under a contract of employment, but rather that he was working as a transport consultant for those companies. That is, that he was a contractor on his own account. Of course, a father and son may intend to create a legally enforceable contract of service pursuant to which the father undertakes activities within his son’s business which can properly be described as “work”. However, on the facts, the question was whether Mr Ralph was engaged under a contract of services with his sons’ businesses to work as a paid transport consultant, or whether he and his son merely entered into a familial arrangement for Mr Ralph to provide a father’s counsel and assistance in his sons’ businesses, with no intention to create legal relations.

[Emphasis added]

31    In submissions, counsel for Mr Ralph seized upon the references in [73] to contractual relationships as allegedly indicative that, even though the primary judge had earlier made reference to authorities which highlighted the breadth of the defined concept of remunerative work, his Honour had, by these contractual references, unduly restricted the focus of his scrutiny of whether the Tribunal had erred in law in reaching its conclusion that s 24(2A)(g) was not satisfied.

32    It may be accepted that the limits of what constitutes “remunerative work” are not delineated by the existence of either a contract of service or a contract for services or a contractual relationship at all; an understanding or arrangement might suffice (as would the holding of an office on commission, which entails no contract). In Repatriation Commission v Buckingham [1996] FCA 37 (Buckingham), as Moore J found in Counsel v Repatriation Commission [2001] FCA 1032 at [13] (Counsel), Ryan J accepted as correct the position conceded by the parties that the provision of free accommodation to a person who undertook voluntary work for a church constituted remunerative work. Acceptance of the correctness of this concession also seems to have informed Moore J in his observation in Counsel, at [13], that “what constitutes “remunerat(ion)” is [not] to be viewed narrowly”. This proposition was accepted by the primary judge, who offered in his reasons for judgment a helpful analysis of authorities supporting the breadth of what is entailed in “remuneration”. We, too, accept that what constitutes remuneration is not to be construed narrowly. It does though carry with it the notion of a quid pro quo, of something in return for a service. Viewed in this light, though the provision of the accommodation in Buckingham was aptly regarded as remuneration, it is a moot point as to whether the work undertaken was truly characterised as entirely voluntary.

33    The province of the eligibility criterion found in s 24(2A)(g) is with two posited scenarios after the veteran “stopped undertaking his or her last paid work”. The reference in the chapeau in s 24(2A)(g) to “last paid work” is, given the parenthetical definition in s 24(2A)(d), a reference to “the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application”. In this way, the breadth of the defined term “remunerative work” forms part of “last paid work” for the purposes of s 24(2A)(g). That criterion is concerned with the capacity in which that last paid work was undertaken. This was the point made by the Full Court in Grant v Repatriation Commission (1999) 57 ALD 1 at 4; [1999] FCA 1629 at [9] (Grant), both in explaining the concept of “remunerative work” and in distinguishing the subject of inquiry under s 24(2A)(d) from that in s 24(2A) (g) of the VEA:

Determination of the “remunerative work” referred to in s 24(2A)(d) requires the characterisation of the specific remunerative activity or activities that the veteran was last undertaking before making the claim or application rather than of the capacity in which that work was undertaken. The particular capacity in which the work was undertaken is dealt with as a separate criterion in s 24(2A)(g). Thus, whether or not the work was undertaken as an employee or as a self employed person is irrelevant to the characterisation to be given to that work under s 24(2A)(d). That conclusion follows from the definition of “remunerative work” in s 5Q, the recognition in s 24(2A)(g) that the capacity in which work is undertaken is to be treated as a matter separate from the work that was undertaken for the purposes of s 24 and is consistent with the purpose of s 24(2A) of providing for payment at the special rate where a person is prevented solely by war-caused incapacity from continuing to undertake the work that the veteran was last undertaking before making the claim or application. In our view it would be inconsistent with that purpose for the characterisation of that work to include, or to be made to depend upon, the capacity in which that work was undertaken.

See, also, as to the difference in focus as between s 24(2A)(d) and 24(2A)(g) of the VEA, Thomson v Repatriation Commission (2000) 96 FCR 550 at 554-555, [10] (Thomson).

34    Given the way in which Mr Ralph put his case in relation to the remunerative work issue, it is desirable first to set out some propositions about the provision of reasons by officers of the executive government and the Tribunal in particular.

35    Members of the Tribunal are officers of the executive government, albeit ones with a special charter of independence. At common law, officers of the executive government are not obliged to furnish reasons for their decisions: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656. This position has been much altered by statute so as to create such an obligation, in the case of the Tribunal, by ss 43(2), 43(2A) and 43(2B) of the AAT Act. Parliament has varied the common law position on the basis that a requirement to furnish reasons, by obliging an official to set out the material matters of fact and the adopted view of the meaning and application of applicable legislation promotes better decision-making and also gives confidence both to the person affected and the wider public in the integrity of that decision-making. It remains the case though that such reasons are meant to inform the person affected of why the decision was made and must not be narrowly scrutinised with an eye for error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang). The cautionary note sounded in Wu Shan Liang is of enduring resonance.

36    Reading the Tribunal’s reasons in this matter as a whole, it is tolerably clear why Mr Ralph’s claim failed to meet all of the s 24(2A) criteria. It was just that the Tribunal regarded his activities with Jet Couriers and Metrans, as part of familial discourse and that his activities as a transport and logistics consultant, exemplified by his JMR consultancy, were not undertaken for a sufficient time period prior to his making of his application to meet what the Tribunal regarded as the meaning and effect of s 24(2A)(g) of the VEA. There is a risk in a further analysis of the Tribunal’s reasons of being thought deaf to the cautionary note mentioned. Even so, we consider that some further analysis is necessary in order to deal with the challenge made by Mr Ralph.

37    The Tribunal did not, in terms, find that the activities undertaken by Mr Ralph for Jet Couriers and Metrans constituted “remunerative work” for the purposes of s 24(2A)(d) of the VEA. The finding that the Tribunal made (at [55]) in respect of s 24(2A)(d) was that, before and after his application was made, Mr Ralph had worked as a “transport logistics consultant through JMR”. It was on this basis that the Tribunal found that s 24(2A)(d) was satisfied.

38    The error which Mr Ralph alleged that the primary judge and the Tribunal had made was in respect of s 24(2A)(g), not s 24(2A)(d). Logically though, if there were an error in discarding the activities undertaken by Mr Ralph for Jet Couriers and Metrans, which were also conducted before and after the application was made, that error infected the Tribunal’s approach to each of these criteria.

39    The Tribunal was well aware of the different tasks posited by s 24(2A)(d) and 24(2A)(g) of the VEA, not the least because Grant was cited to it by counsel for Mr Ralph and the Tribunal expressly cited (at [51]) the relevant passage from the case in its reasons.

40    On the evidence before it, the Tribunal found as a fact, as it was entitled so to do, that the activities undertaken by Mr Ralph for Jet Couriers and Metrans did not constitute “working on his own account in his profession, trade, employment, vocation or calling but rather advising and guiding his sons as a father with a pertinent background” (Tribunal’s Reasons at [59]). Plainly from the language employed, this was a finding made with an eye to s 24(2A)(g), not s 24(2A)(d).

41    The Tribunal went further and found that, even if this activity could be said to constitute “working on his own account” and even if this had ceased (which the Tribunal did not consider clear on the evidence), Mr Ralph had “not suffered any loss as he still maintains use of a car of the same standard as before he stopped working and has not suffered a loss” (Tribunal’s Reasons at [59]). The evidence was that Mr Ralph had been given the use of a company car by his two sons. By virtue of its primary finding, the Tribunal must be taken as having accepted and found that the provision of this car was but a token of familial appreciation, not a quid pro quo. It was not a “reward or recompense for a service”, which is the essence of “remuneration” (Oxford English Dictionary, online edition http://www.oed.com/ viewed 6 June 2016). The Tribunal has thus alternatively found, contrary to its primary views, that, even if Mr Ralph were “working on his own account” for the family companies and even if the provision of the car were a form of remuneration for this, he was not suffering any loss.

42    While, desirably, the Tribunal ought expressly to have addressed whether the activities undertaken by Mr Ralph for Jet Couriers and Metrans constituted or evidenced “remunerative work” for the purposes of s 24(2A)(d), the findings which it made in relation to these activities are consistent only with a rejection of these activities as part of the remunerative work which was the “last paid work” undertaken by Mr Ralph. On the findings which the Tribunal made, these particular activities were wholly and truly voluntary, nothing more than familial interaction. In like fashion, the provision of a car was, on the findings which the Tribunal made for the purposes of s 24(2A)(g), just a gesture of appreciation, not a form of “remuneration”.

43    Possibly, though this was not a feature of Mr Ralph’s “contractual error” submission, the Tribunal too narrowly classified what constituted Mr Ralph’s “remunerative work” for the purposes of s 24(2A)(d), by qualifying the reference to “transport logistics consultant” by the addition of “through JMR”. It may be that that particular consultancy was but indicative of an ability which Mr Ralph had to undertake a remunerative activity namely, “transport logistics consultant”. Equally, to read the use of “through JMR” in that way may be to violate the principle stated in Wu Shan Liang.

44    The Tribunal did expressly make broad the scope of its s 24(2A)(g) inquiry in stating (at [57]), “the question arises as to whether Mr Ralph had been working on his own account as a transport logistics consultant for a continuous period of 10 years when guiding his sons in relation to the activities of Jet Couriers and Metrans and with JMR”. Further and in any event, the findings which the Tribunal did make in relation to s 24(2A)(g) with respect to the activities Mr Ralph undertook for Jet Couriers and Metrans are consistent only with these particular activities, as opposed to those with JMR, not being additionally indicative of an ability to undertake remunerative work as a “transport logistics consultant”, only to undertake familial advising.

45    The Tribunal’s use (at [60]) of the term “consultant” with respect to the JMR consultancy is indicative of its classification of this as work on Mr Ralph’s own account rather than as an employee. The Tribunal’s finding that “his work with JMR as a consultant has not been for a continuous period of 10 years before ceasing work” was, on the evidence, unremarkable. The consequential conclusion that s 24(2A)(g) was not satisfied was equally unremarkable. Given the finding in relation to the activities undertaken by Mr Ralph for Jet Couriers and Metrans, the JMR work was the only paid work which fell for consideration. There was no “last paid work” as an employee which fell for consideration.

46    To return to [73] of the reasons for judgement of the primary judge, and there being no suggestion on the facts that Mr Ralph was ever an employee of Jet Couriers, Metrans or, for that matter, JMR, read in the context of the whole of that paragraph, the part which we have emphasised in it is just a reference to the nature of the finding which, on the facts of this case, fell to the Tribunal to make under s 24(2A)(g)(ii). His Honour’s reference there to “contract of services” is not, with respect, accurate if read as a reference to a contract of service as an employee, for that is the province of s 24(2A)(g)(i), which had no relevance on the evidence. In context though, the reference seems to us to have been used by the primary judge in a much less technical way and as but a shorthand, if, with respect, infelicitous, reference to “if he or she was then working on his or her own account” in s 24(2A)(g)(ii). Further, and in any event, the alleged error leads nowhere as the Tribunal did not, in relation to s 24(2A)(g)(ii), confine itself to the contractual, just to the only form of remunerative work which Mr Ralph had put forward as his last paid work, which was work as a “consultant”. And, as the Tribunal found, what constituted remunerative work had not been undertaken by him for a “continuous period of 10 years before ceasing work”.

47    The Tribunal did not, as Mr Ralph contended, reject the activities undertaken by Mr Ralph for Jet Couriers and Metrans as a form of remunerative work or as indicative of a capacity to undertake remunerative work because of the absence of a contract between him and Jet Couriers or Metrans. It rejected those activities because they were not remunerative activities, only family advising for which there was but a gesture of appreciation, not remuneration. It found that the advising was not given in return for the provision of a car.

48    However approached, there is no merit in Mr Ralph’s “remunerative work” issue.

Ground 5 – 10 years’ continuous employment

49    We have already mentioned that the s 24(2A)(g)(i) criterion did not fall for consideration on the evidence. That was because the activities which Mr Ralph undertook for each of Jet Couriers, Metrans and JMR were not undertaken as an employee.

50    The Tribunal also found that Mr Ralph had worked as an employee for Westgate Logistics for 17 years from 1990. Mr Ralph accepted that this employment was not for “a continuous period of at least 10 years that began before the veteran turned 65”. He did not contend that it fell within s 24(2A)(g)(i). Rather, his point was that, if aggregated with his JMR consultancy, which relevantly ran from 2007 - 2009 (the later, 2012 period being after Mr Ralph’s 65th birthday), the criterion in s 24(2A)(g)(ii) was met. This same submission was put to and rejected (at [87]) by the primary judge, who remarked of s 24(2A)(g) that, “It does not provide for the assessment of at least 10 years continuous work by combining periods of work under each of subs (i) and (ii)”. The Commission supported this construction and application of the VEA.

51    Mr Ralph submitted that the requisite combination was achieved by s 24(2A)(g)(ii) alone. This was because work as an employee was, by the reference to “employment”, embraced within “if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling had been so working in that profession, trade, employment, vocation or calling”.

52    In support of that submission, it was put that, not to construe “employment” as embracing work as an employee would yield a most unfortunate and unlikely gap in eligibility for the special rate disability pension. That would occur whenever, in the continuous period of at least 10 years that began before the veteran turned 65, a veteran had engaged in remunerative work both as an employee and worked on his own account and otherwise.

53    The point is not one which fell for consideration by an earlier Full Court, either in Grant or in Thomson.

54    The difficulty with Mr Ralph’s submission is one arising from the text of the legislation. Even accepting, as we do, that the VEA is directed to beneficial ends and should, if textually and contextually possible, be construed accordingly the text of s 24(2A)(g) is intractable; the reference in s 24(2A)(g)(i) is to “working as an employee of another person”, whereas the opening reference in s 24(2A)(g)(ii) is to “working on his or her own account”. The criteria in the two sub-paragraphs in s 24(2A)(g) are posited as, and as a matter of language are, alternatives. Further, read in the context of the opening reference to “working on his or her own account” in s 24(2A)(g)(ii), the reference to “working as an employee of another person” and as part of the class, “any profession, trade, employment, vocation or calling”, “employment” can only be being used in the sense of descriptive of an occupation, not of a status or capacity in the undertaking of that occupation. In other words, “employment” does not refer to work as an employee. Such work is the province of s 24(2A)(g)(i). Textually, the word “or”, which separates the criteria in the two sub-paragraphs in s 24(2A)(g), is being used wholly in its disjunctive sense, not, as it can sometimes be, in both a conjunctive and disjunctive sense.

55    The Commission submitted that its preferred construction was supported by regard to the Explanatory Memorandum to the Bill which became the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth). It was this Act which amended the VEA so as, relevantly, to insert s 24A. We do not accept this. In that explanatory memorandum, under the heading “Outline and Purpose” and the sub-heading “Special and intermediate rate pensions” (at p ii), it is stated, materially, “An exception to this rule will apply if the veteran was engaged in remunerative work after the age of 65 and that work was in the same business or employment in which the veteran had been working for 10 continuous years.” Of course it is always the text of the legislation, not an antecedent explanatory memorandum, which falls for construction but this statement looks to us as intended to be all embracing with the “or” being used in the sense of one or the other or each. When it is recalled that there are many callings, be they professional or trade, where persons move seamlessly from employee to self-employed status and back again over the course of a career it is, to say the least, odd that the discriminating touchstone is that one must have pursued a calling in but one capacity for a continuous period of 10 years in order to meet the qualifying criterion found in s 24(2A)(g) of the Act. What is truly telling about the explanatory memorandum is that it contains not a hint that this is what was intended.

56    The result is an inconvenient one, very probably caused by drafting which has imperfectly conveyed Parliament’s intent. But it is possible to give meaning to the text of s 24(2A)(g). Long ago now, in Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328 at 331, a case concerning the construction of other legislation directed towards beneficial ends, Dixon CJ (with whom Windeyer J agreed) observed of a provision the text of which he considered might be inelegant or even illogical, “But that is hardly enough to authorize the adoption of an implication or an interpretation which overcomes the otherwise plain meaning of words”. The result of adhering to the plain meaning of this text may well yield an injustice to a particular type of veteran, of whom Mr Ralph may be an exemplar. Rectification of any injustice flowing from that plain meaning is for Parliament, not the courts. This was the point made by Pincus J in Gauntlett v Repatriation Commission (1991) 32 FCR 73 at 77 (Gauntlett) when, on that occasion, it was the Commission which had highlighted in submissions what was said to be an anomaly flowing from the text of the VEA:

[T]his is not the first time in which the respondent Commission has implied in argument that provisions of this sort could not possibly have been intended to produce such anomalies as, literally read, seem to follow from them; but it is the constitutional function of Parliament, and not that of the judges, to correct any anomalies thought to arise from applying the plain language of legislation.

57    Ground 5 must fail.

58    For these reasons, the appeal must be dismissed.

Costs

59    There remains a question as to what order ought to be made in respect of the costs of the appeal. There is a discretion to exercise but it always falls to be exercised in the circumstances of the particular case. That remains so even though, in the ordinary course, the discretion is exercised such that costs follow the event. That does not invariably follow. Citing Shelton v Repatriation Commission (1999) 85 FCR 587 at 590, [10] – [11] and Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234–241, [9] – [25] (Ruddock v Vadarlis (No 2)) per Black CJ and French J (as the Chief Justice then was), Mr Ralph submitted that the particular circumstances of this case were such that there ought to be no order as to costs. That was because the apparent anomaly in the drafting of s 24(2A)(g) of the VEA, exposed by this appeal raised a question of wider public importance. The Commission recognised this wider public importance but pointed to the absence of merit in the grounds of appeal and that it was only in the course of submissions in relation to ground 5 that the potentiality of an anomaly was exposed. The result, so the Commission contended, was that Mr Ralph ought to be ordered to pay half of the costs of the appeal.

60    A difficulty about the Commission’s submission is that it ignores the interplay between the grounds of appeal in terms of an endeavour to provide an underpinning of remunerative work for the construction of s 24(2A)(g) of the VEA which Mr Ralph came to promote.

61    The construction of s 24(2A)(g) of the VEA apart, this appeal has highlighted the receipt based focus of that Act in relation to the lodgment of claims for, and applications for increases in the rate of, the disability pension. There is a related public interest in this for the wider veterans’ community, the RSL and others who assist veterans and their dependents. We doubt that the practice of using the post for the lodgment of claims and applications, revealed by this case, is unique to the RSL’s Noble Park office. The requirement for receipt, not just postal delivery as presumed, adds a further dimension to a current need in business, commerce and legal practice generally, arising from the elongation of delivery times for standard postal articles, to allow for greater lead times or use other than the standard post, in those circumstances where the statutory presumption in respect of service by post is applicable see: Morgan N J, “Stamp and Deliver: Will a two-tier letter service affect statutory presumptions?” (2015) 35 (June) Queensland Law Society Proctor 5 at p 14. Use of the post for lodgment is convenient and cost-effective and certainly permitted by the VEA but an elongation of delivery times in the standard post may well be at odds with perceptions of many older veterans about the post, based on the experience of earlier times. The VEA also permits lodgment by electronic means but this, too, is receipt focussed and then effective only if an electronic address designated by the Commission is used (see s 5T(3)). For the wider veterans’ community, the RSL and others who assist veterans and their dependents and with respect to claims or applications relating to a disability pension, this case serves as a reminder that there is a need, especially where a veteran’s 65th birthday is imminent, to adapt administrative processes to present communication realities so as to assure their receipt in sufficient time by the Commission (and, desirably, to liaise with the Commission accordingly).

62    The Commission’s costs submission also gives insufficient weight to another wider public interest given the nature of the anomaly exposed. This anomaly has lain dormant for over 20 years. The passing of the years may well mean that, to an older generation of veterans, the anomaly is increasingly an academic one. However, since the particular amendment to the VEA was made, a whole new generation of members of the Australian Defence Force have been exposed, over a prolonged period, and continue to be exposed, to the hazards to body and mind which operational service can entail in places as diverse as East Timor, Iraq, elsewhere in the Middle East and Afghanistan. Such is the length of that new period of overseas deployments that, combined with the relaxation in modern times of military retirement ages (see, now Defence (Personnel) Regulations 2002 (Cth), Pt 3 and Sch 1), it is entirely conceivable that some may already be subject to s 24(2A). That one of these members who has endured these hazards in the national interest and who, as a result of that service, is otherwise eligible to be paid a disability pension at the special rate might come to be denied a payment of pension at that rate on a basis as whimsical as not having relevantly engaged in continuous remunerative work for a period of 10 years as an employee or not having been so engaged for 10 years on his or her own account, even though he or she has been continuously engaged in one capacity or the other for that same 10 years, raises an issue of profound and practical public interest. There was no merit in the Commission’s submission that such an anomalous result was, having regard to the Explanatory Memorandum, intended by Parliament.

63    In short then, this case entailed determining a novel question about the construction of a provision peculiarly relevant to those veterans who suffer serious incapacity as a result of operational service. It has exposed, notwithstanding a submission of the Commission to the contrary, an anomaly in that provision. Mr Ralph has at least succeeded in exposing that anomaly.

64    In Ruddock v Vadarlis (No 2), at 240-241, [25], Black CJ and French J, referring to Cabal v United Mexican States (No 6) (2000) 174 ALR 747 at 753; (2000) 113 A Crim 227 at [22] per Goldberg J (Cabal), cited cases concerning liberty of an individual as an example of those where individual and wider public interests converged such that occasion might be found for a departure from the usual order as to costs. In Cabal Goldberg J added, “In particular is this so where the costs are incurred by the State under whose authority the person is detained.”

65    A case which entails the exposure of an anomaly concerning veterans’ entitlements surely offers another example of where individual and wider public interests converge such that there ought to be no order as to costs. Further, and to paraphrase Goldberg J in Cabal, in particular is this so where the costs are incurred by the Commission under whose administration of the VEA a veteran’s pension entitlements fall to be determined and whose statutory functions are, by s 180(1)(d) of the VEA, expressed by Parliament to include:

to provide the Minister with information concerning, and to advise the Minister on, matters relating to the operation of this Act, including, but without limiting the generality of the foregoing, matters relating to pensions, allowances and other benefits for veterans, and dependants of veterans, incapacitated from injury or disease suffered as a result of service in a war or in war-like operations and for dependants of veterans whose deaths are attributable to any such service.

66    Earlier examples of where cases brought by veterans have been seen to serve a wider public interest such that there was no order as to costs are offered by Gauntlett and Collett v Repatriation Commission (2009) 178 FCR 39. Not every s 44 appeal or further appeal by a veteran will automatically fall into this category. Some will entail nothing more than a general administrative law issue, set against the background of a settled meaning of the VEA. To record that is but to highlight that the discretion falls to be exercised in the circumstances of a particular case. Sometimes, as notably in Liversidge v Anderson [1942] AC 206, orders other than the usual order as to costs will be the result of an intimation from the bench and a corresponding understanding of principle and its application by the government official or agency concerned; on other occasions it will be necessary to determine how the discretion ought to be exercised.

67    It only comes to this. For the reasons given, there will be no order as to costs in respect of the appeal. There is no reason to disturb the order as to costs made in the court below.

68    It is to be hoped that the Commission, in the discharge of its function under s 180(1)(d) of the VEA, draws the anomaly concerned to the attention of the Minister.

Associate:

Dated:    22 June 2016