FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Haskard [2002] FCA 1493

VETERANS AFFAIRS – disability pension – Special Rate pension – veteran carried on business of property valuer on own account – at time of application veteran undertook six valuations a year each requiring six or seven hours over a number of days – whether prevented from continuing to undertake the remunerative work that he last undertook before the application – relevance of incapacity to work more than eight hours a week – construction of s 24(2A)(d) of the Veterans’ Entitlements Act 1986 (Cth) considered.

STATUTORY INTERPRETATION – whether ordinary meaning of statute to be applied – whether affected by context including other sections of statute.

WORDS & PHRASES – “last paid work”

Veterans’ Entitlements Act 1986 (Cth) ss 23, 24(2A)(d), 24(2A)(g), 24(2B), 28

Carter v Repatriation Commission (2001) 33 AAR 343 followed

Banovich v Repatriation Commission (1986) 6 AAR 113 discussed

Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1 cited

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 cited

Repatriation Commission v Vietnam Veterans’ Association of New South Wales Branch Inc (2000) 48 NSWLR 548 cited

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 cited

REPATRIATION COMMISSION v HASKARD

N 746 of 2002

HILL J

29 NOVEMBER 2002

SYDNEY

THE COURT ORDERS THAT:

(1)        the appeal be allowed.

(2)        the decision of the Tribunal be set aside.

(3)        it be declared that the provisions of s 24(2A) of the Veterans’ Entitlements Act 1986 (Cth) did not apply to the Respondent. 

(4)        the matter be remitted to the Tribunal to be dealt with in accordance with law.

(5)        leave is granted to the parties to apply to have the matter relisted on 48 hours notice if an issue arises requiring a costs order.

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

REASONS FOR JUDGMENT

HILL J:

1                     The Repatriation Commission (“the Commission”) appeals from a decision of the Administrative Appeals Tribunal which found that Mr Howard Haskard (“Mr Haskard”) had satisfied the requirements of s 24(2A) of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) and was thus eligible for payment of a pension at what is referred to in the Act as the Special Rate.  The appeal to this Court is by way of an application in the first instance jurisdiction of the Court and is an appeal on, that it to say limited to, a question of law.

2                     At issue between the parties is the meaning of s 24(2A)(d) of the Act which must be satisfied if Mr Haskard is entitled to qualify for a pension at the special rate.  The relevant paragraph is in the following terms:

“(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”

3                     It is not in dispute between the parties that if Mr Haskard satisfies the provisions of paragraph (d) of the section, he is otherwise entitled to a pension at the Special Rate.

The Facts Found by the Tribunal

4                     Mr Haskard was born on 12 December 1927.  He suffered from various disabilities which were accepted as war-caused and in consequence a decision was reached by a delegate of the Commission that a disability pension would be paid to him at 70% of the General Rate with effect from 13 December 1994.  That decision was ultimately set aside and a new decision made that the General Rate pension be assessed at 90% of the General Rate from 13 December 1994 and 100% of the General Rate from 26 July 1995.  Mr Haskard then applied to the Tribunal to review this decision.

5                     The facts relevant to the present point in issue can be shortly stated.  Mr Haskard was admitted as an Associate of the Commonwealth Institute of Valuers in 1970 and was qualified to make real estate valuations.  Between February 1984 and September 1989 Mr Haskard was in partnership with and joint co-owner of a Real Estate business with his son Christopher.  In that period Mr Haskard undertook property valuations on his own account, although he endorsed the fees over to the partnership bank account in order to keep the business afloat.  The business was sold in September 1989 and until December 1990 Mr Haskard worked as the sole director of the purchaser of the business.  During this period Mr Haskard was paid $300.00 per week to attend the business on three mornings per week, including maintaining the business trust account.  After he had ceased to be a director of the purchaser in December 1990 Mr Haskard continued to undertake property valuations on his own account working from home.

6                     When Mr Haskard first undertook property valuations back in 1984 he made approximately six valuations per month.  From 1985 the number of valuations gradually declined to about three per month and between 1991 and the time of the Tribunal’s hearing he had undertaken about six valuation a year.  Each valuation required six to seven hours work spread over a number of days.  In addition Mr Haskard undertook two and a half to three hours reading per week of relevant background material, including newspaper reports relating to property sales and other relevant professional information.

7                     The Tribunal also found that while Mr Haskard was capable of undertaking a property valuation requiring six to seven hours work spread over a number of days in a week, he was not capable of undertaking remunerative work for periods aggregating more than eight hours a week.  For this purpose the Tribunal considered that the time spent by Mr Haskard reading background material should not be classified as remunerative work.

The Tribunal’s Decision

8                     The Tribunal considered each of the requirements of s 24(A) of the Act in turn, noting that Mr Haskard needed to comply with the requirements of all of them before he was eligible for a special rate of pension.  As already noted, the relevant paragraph, the subject of the present application, was paragraph (d) of the subsection.  The Tribunal said of that paragraph:

“With regard to paragraph (d) of subsection 2(A), the last paid work which the Applicant undertook before making his claim for pension was that of a property valuer.  He undertook such work on his own account and not as an employee.  The Tribunal construes the wording of paragraph (d) that the veteran is ‘prevented from continuing to undertake the remunerative work’ as meaning that the veteran was unable to continue such work for periods aggregating more than eight hours per week.  In the Tribunal’s view, the wording of paragraph (d) must be interpreted in the context of other provisions in the section and, in particular, the requirement in s 24(1)(b) that to be qualified for the payment of pension at the Special Rate, the veteran must be incapable of undertaking remunerative work for periods aggregating more than eight hours per week (s 24(1)(b)).  Such a common sense interpretation is implicit from the arrangement of s 24 and follows a similar arrangement in s 23 in respect of eligibility for pension at the Intermediate Rate.”

The Submissions of the Parties

9                     It was the Commission’s submission that the provisions of s 24(2A)(d) should be given their ordinary meaning.  It was submitted that Mr Haskard in the relevant period had undertaken remunerative work as a self-employed valuer.  This remunerative work was the last paid work to which s 24(2A)(d) referred.  He still carried on the work of a self-employed valuer, albeit making only six valuations a year and so it could not be said that his incapacity had prevented him from continuing to undertake the last paid work.  Indeed, he still undertook it.

10                  It was further submitted that the submission was supported by the decision of Justice Branson in Carter v Repatriation Commission (2001) 33 AAR 343 and indeed, that her Honour in that case had considered and rejected the submission which had been accepted by the Tribunal.  It may be noted that the Tribunal made no mention of the decision in Carter in its reasons.  It was submitted, finally, that the interpretation of s 24(2A)(d) which Branson J had set out in Carter was not only consistent with the language used in the section but consistent with the history of the legislation.  It was said that this history and the policy underlying s 24(2A) was that the Special Rate pension was to be available only for an individual who was no longer working and was not to be available to a veteran who continued to undertake remunerative employment, albeit of such a limited nature as was undertaken by Mr Haskard.

11                  For Mr Haskard it was submitted that an examination of the sections concerned with the intermediate rate of pension, as well as those relating to Special Rate, showed that there was no requirement that there should be a complete cessation of remunerative work, as submitted by the Commission.  Indeed it was submitted that language similar to that in s 24(2A) which appeared in s 24(1)(c) and s 23(1)(c) of the Act did not have the meaning which the Commission contended that s 24(2A)(d) had.  Given that the language was substantially identical it was submitted that the Commission’s submission could not be correct.  Rather it was said, that when one reads s 24(2A) in its context there was a clear legislative intention that a veteran could satisfy paragraph (d) of the section where the veteran was still undertaking or capable of undertaking remunerative work on a part time basis or intermittently, at least provided that the work was of a de minimus nature, that is to say less than eight hours per week.

The Principles of Construction

12                  There is no real dispute as to the applicable principles of construction.  It can be said that, as a general rule, the task of the Court is to give effect to the intention of Parliament as expressed in the language of the statute.  Prima facie this will entail interpreting the relevant statutory provision in accordance with the ordinary meaning of the words used.  However the Australian law of statutory interpretation emphasises the necessity in construing a statutory provision to have regard to the context using that word in its widest sense: cf CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.  In particular regard is had to context not merely after ambiguity has been identified and to resolve that ambiguity but at the very outset before ambiguity has been identified: Repatriation Commission v Vietnam Veterans’ Association of New South Wales Branch Inc (2000) 48 NSWLR 548 at 575 and see the passage earlier cited in CIC Insurance Ltd and K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315 per Mason CJ dissenting but not with respect to the principles of statutory interpretation.

13                  It is necessary therefore to consider in greater detail the statutory context in which s 24(A)(d) appears.

The Statutory Scheme of Pensions

14                  The obligation of the Commonwealth to pay to veterans pensions where the veteran has become incapacitated from a war-caused injury or disease, arises under s 13 of the Act.  Although incapacity itself is not defined, s 5(D)(2) makes it clear that incapacity looks at the effects of the injury.  Further it is clear that incapacity is to be judged in percentage terms.

15                  A veteran claiming to be entitled to a pension is required to make a claim for the pension in accordance with s 14(3).  Once made the claim is investigated by the Secretary under s 17 and once that investigation is completed, the claim is submitted to the Commission for its consideration and determination under s 18 of the Act.  In considering and determining a claim the Commission is required to act in accordance with s 19.

16                  Division 4, the division in which s 24(2A) appears, is concerned with rates of pensions that are payable to veterans.  In essence there are four rates.  First there is a General Rate.  No pension at all is payable if the degree of incapacity of the veteran from war-caused injury or disease or both is less than 10%.  Subject to the degree of incapacity being in excess of 10% the veteran is to be paid a rate which is a percentage of the rate set out in s 22 that percentage being in essence the percentage degree of incapacity of the veteran brought about by the war-caused injury or disease or both. 

17                  The second rate of pension is referred to as the Intermediate Rate of pension and is that provided for in s 23 of the Act.  That section may be seen to be divided into two parts.  The first part being ss 23(1) – 23(3) applies where the veteran has not turned 65 when the claim in question was made.  The second part, ss 23(3A) and 23(3B) applies where the veteran has turned 65 before the claim or application was made.

18                  Where the veteran was under 65 at the time the claim was made, and subject to the special case where the veteran is suffering from pulmonary tuberculosis, there is a need for at least 70% incapacity from war-caused injury or disease before the Intermediate Rate of pension can be granted.  Relevant to the present question are the following provisions:

            “23 Intermediate rate of pension

(1)       This section applies to a veteran if:

…

(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

(ii)  the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

(b)   the veteran’s incapacity from war-caused injury or war-caused disease, or both is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and

(c)    the veteran is, by reason of incapacity from 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 from that incapacity; and

(d)   section 24 or 25 does not apply to the veteran.

(2)    Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:

(a)   if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or

(b)   in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking– if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.

                            (3)    For the purpose of paragraph (1)(c):

(a)   a veteran who is incapacitated form war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) 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:

(i)                 if 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;

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

or

(iii)             if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from the war-caused injury or war-caused disease, or both; and

(b)   where a veteran, not being a veteran who as 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.”

19                  The above provisions are largely mirrored in the case of a veteran who has turned 65 before the claim was made, in particular, the following provisions are relevant:

“(3A) This section applies to a veteran if

…

(c)             paragraphs (1)(a) and (1)(b) (as affected by subsection (2)) apply to the veteran; and

(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

(e)             because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and

(f)              the veteran was undertaking his or her last paid work after the veteran had turned 65; 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…

(3B) For the purposes of paragraph (3A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, to the extent set out in paragraph (1)(b) is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:

(a)               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

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

(c)               the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both.”

20                  The third applicable rate for pensions is the Special Rate.  Section 24 of the Act deals with cases where the veteran has not yet turned 65 when the claim or application was made.  Section 24(2A) deals with the case where the veteran has turned 65 before the claim or application was made.  The relevant provisions of s 24 are as follows:

“ 24 Special rate of pension

(1)          This section applies to a veteran if:

…

(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; and

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

(a)       a veteran who is incapacitated from a 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.”

21                  Sections 24(2A) and (2B) are in the following terms:

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

(a)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

(b)the veteran had turned 65 before the claim or application was made; and

(c)paragraphs (1)(a) and (1)(b) apply to the veteran; and

(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

(e)because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and

(f)  the veteran was undertaking his or her last paid work after the veteran had turned 65; 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

                (h) section 25 does not apply to the veteran.

(2B) For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:

(a)     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

(b)     the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.”

22                  Section 25 is concerned with the case of a temporary payment of a pension at a special rate and does not bear on the present case.  However, what may be seen to be a fourth rate of pension is dealt with in s 27 and is concerned with a case where the veteran suffers from certain kinds of incapacity, such as amputation of the leg or arm and where it is appropriate that a higher rate of pension is payable.  Finally reference may be made to s 28 of the Act which provides as follows:

“28 Capacity to undertake remunerative work

                In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:

(a)   the vocational, trade and professional skills, qualifications and experience of the veteran;

(b)   the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and

(c)    the degree to which the physical or mental impairment of the veteran as result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).”

Discussion

23                  It will be noted that the language of s 23(1)(c), s 24(1)(c) and s 24(2A) is virtually identical.  Indeed, this is the high point of the argument on behalf of Mr Haskard. 

24                  It is possible that a statute may use the same language in different sections but with different meanings, just as it is possible that the legislature may use the same word in the same section with different meanings (see for example Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1 at 15-16 per Mason J with whom Aickin J and Wilson J agreed).  However, as his Honour there said: “any such implication must yield to the context.”  It is clear in the context of the intermediate rate of pension that the veteran may be prevented from continuing to undertake remunerative work that the veteran was undertaking by reason of the incapacity brought about by the war-caused injury or disease but still have the capacity to work on a part-time or intermittent basis and that that capacity, which might be translated into actual work, may encompass the ability to work less than twenty hours per week or 50% of ordinary working time.

25                  In the case of a veteran who has actually turned 65 before the claim, the provisions relating to the intermediate rate of pension might be expected to be more rigorous.  This is because Parliament might be expected not to have intended the pension to be payable to a person whose incapacity merely arose by virtue of age.  However, notwithstanding this expectation, there is at least an implication to be gleaned from s 23(3)(b) that the veteran may nevertheless be capable of engaging in remunerative work part-time or intermittently and still receive the intermediate rate pension payable to a veteran under the age of 65.

26                  When one comes to look at the provisions dealing with the Special Rate of pension, ie s 24, it is again clear that the veteran may be prevented from continuing to undertake remunerative work that he or she was undertaking, notwithstanding that the veteran may be capable of undertaking remunerative work for periods aggregating at least up to eight hours per week. 

27                  However, when one comes to the provision in question, s 24(2A), no reference at all is made to capacity for intermittent or part-time work of any kind, nor is there any provision which raises an implication that the veteran have some capacity to work intermittently or part-time.

28                  With respect to the submissions put on behalf of Mr Haskard, I do not think that there is any necessity for saying that the same words have to be used in a different sense before the Commissioner’s submission is to be accepted.  It seems to me that in each case where language equivalent to s 24(2A)(d) is used, what is required is that the veteran, by reason only of the war-caused injury or disease or both, can no longer work in the particular job or occupation that the veteran has had.  In none of the occasions where these words are used is there any implication one way or the other that the veteran would be incapacitated from working in any other job or occupation.  There is nothing in these words which goes to the question of capacity to work.  All that is in question is whether the veteran has been prevented from continuing to undertake the particular remunerative work that he had undertaken.  In s 23 capacity is dealt with in s 23(b), as supplemented by s 23(2).  In the case of the Intermediate Rate, the veteran’s capacity to work must be such as not to permit the veteran to work other than intermittently or on a part-time basis.

29                  When one comes to look at the Intermediate Rate pension as applicable to someone who has turned 65, having still been in the last paid work when this happened, it can be seen that the veteran may still be capable of undertaking remunerative work on a part-time basis or intermittently, and in fact be undertaking work, for example, of less than twenty hours per week and still be entitled to the pension.  However, that fact itself has nothing to do with the question whether the veteran has been prevented, by virtue of the war-caused injury or disease incapacity from continuing to undertake the particular remunerative work that he was last undertaking. 

30                  Finally, in the case of the Special Rate pension where the incapacity must at least be 70%, the veteran under 65 may have the capacity to, and in fact undertake, remunerative work for some number of hours per week but nevertheless, be prevented from undertaking the remunerative work that he in fact was undertaking.  However the veteran must have ceased to be undertaking the particular remunerative work he had previously undertaken before the Special Rate pension is payable.

31                  Not surprisingly, in the case of a veteran over the age of 65, the tests are more stringent.  The degree of incapacity must still be at least 70%, except in the case where the veteran is suffering from pulmonary tuberculosis and have a degree of incapacity which prohibits the veteran from working more than eight hours per week.  Those requirements go to the degree of incapacity but do not go to the provisions of s 24(2A)(d) which provides that it is that incapacity which prevents the veteran from continuing to undertake remunerative work that the veteran last undertook.  Whether the incapacity does so prevent the veteran from continuing to undertake the remunerative work is a matter of fact.  Either the veteran is or the veteran is not prevented from continuing to undertake the last paid work he undertook.  If that last paid work was as here, acting as a property valuer on his own account, the question to be asked is whether that last paid work has ceased or whether it has continued.  On the facts here it has not ceased but continued.  All that has happened is that the quantity of work has declined but that does not mean that the work itself has ceased.

32                  During the course of argument, I was attracted to the possibility that a veteran who had worked full time but whose ability to work full time was impaired because of incapacity from war-caused injury so that he or she was only able to work part time, might be said to have been prevented by reason of incapacity from continuing to undertake his initial full time remunerative work.  That would mean classifying the initial remunerative work as full time work and not part time work.  I am still inclined to think that that construction might be correct.  However, it does not assist the applicant in the present case.  On the facts found by the Tribunal, Mr Haskard may have been full time in 1984 but certainly as from 1991 the work declined to the present intermittent six valuations per year, so even if it could be said that the war-caused injury did prevent Mr Haskard from working in the remunerative full time work he undertook, as and from 1991 he did not work in the full time occupation for a continuous period of ten years before he turned 65.  Further, the only occupation then that he would have engaged in for the continuous period of ten years would be the intermittent six valuations a year which in that ten year period have in fact continued.  In other words, it would not have been open to the Tribunal if it had adopted this view of the law to find that Mr Haskard had, in accordance with the language of s 24(2A)(d), been prevented from undertaking or continuing to undertake the remunerative work he was last undertaking before he made the claim or application.  That claim or application was made according to the Tribunal’s reasons in May 1995 when the valuation work he engaged in continued, namely the making intermittently of property valuations on his own account. 

The Decision in Carter v Repatriation Commission

33                  The question which arose before Justice Branson was somewhat different from that which arises in the present case.  Mr Carter had practised as an accountant until he was about 70.  For a period of one year he did not work and then for five years thereafter he undertook part time auditing work which occupied him for an average of something less than eight hours per week. The Tribunal found that the remunerative work (the last paid work) that Mr Carter had undertaken before making the claim was auditing.  The fact that he had done nothing for a period of twelve months meant that he had not worked on his own account as an auditor for the continuous period of ten years required by s 24(2A) and which had begun before he turned 65.  Branson J dismissed the appeal and with respect to her Honour, correctly.  Before her Honour it was argued on behalf of Mr Carter that it was not open to the Tribunal to find that his last paid work within the meaning of s 24(2A)(d) was the casual contract audit work, since that work was performed for less than eight hours per week.  It was argued that because s 24(1)(b) of the Act equated total and permanent incapacity with an incapacity to undertake remunerative work for periods aggregating more than eight hours per week, s 24(2A)(d) had to be interpreted as addressing only work engaged in for in excess of eight hours per week.  Hence it was said that the relevant date when the veteran had stopped undertaking the last paid work had to be the date when work above the eight hour threshold ceased to be engaged in by him.

34                  Her Honour said at page 348-349:

“23      The real issue to be determined on the application is whether, on the proper construction of s 24(2A) of the Act, the time when Mr Carter stopped undertaking his ‘last paid work’ was when he stopped working as a partner in his accounting practice or when he ceased to undertake contract work with NZI.  If he stopped undertaking his ‘last paid work’ when he stopped working as a partner in his accountancy practice, he had at that time been working on his own account in the accounting profession for a continuous period of at least ten years that began before he turned 65 years of age (see s 24(2A)(g)).  However, if he stopped undertaking his ‘last paid work’ when he ceased to undertake contract work with NZI, he had not at that time been working on his own account in the accounting profession for a period of at least ten years because he had not worked at all for approximately 12 months following the dissolution of his partnership.

24        A veteran’s ‘last paid work’ within the meaning of s 24(2A)(d) of the Act is ‘the remunerative work … that the veteran was last undertaking before he or she made the claim or application’.  As is noted above, s 5Q of the Act defines ‘remunerative work’ very broadly to include ‘any remunerative activity’.  It is therefore necessary to determine whether, within the meaning of s 24 of the Act, Mr Carter’s activities in undertaking contract work with NZI were ‘remunerative activities’.

…

26        I am unable to accept the contention of the applicant that the definition of ‘totally and permanently incapacitated’ contained in s 24(1)(b) indicates that s 24(2A)(d) and (g) must be concerned with work which employs the veteran’s capacity for periods aggregating more than eight hours per week on average.  The paragraphs are, in my view, intended to deal with distinct issues.  Section 24(1)(b) is concerned with degrees of incapacity s 24(2A)(d) with the reason which prevented the veteran from continuing to undertake his or her last paid work, and s 24(2A)(g) with the demonstration of a long-term intention to undertake a particular type of work beyond the age of 65 years. 

27        The construction of s 24(2A)(d) and (g) for which the applicant contends, would involve a significant rewriting of the paragraphs.  I am not persuaded that the context in which the paragraphs are found provides justification for such an exercise.”

35                  Accordingly her Honour was of the view that it was only when Mr Carter ceased working intermittently on the basis of eight hours average work that he ceased remunerative work within the meaning of s 24(2A) and thus he was not eligible for the pension.

36                  Although the issue in Carter was different from the issue in the present case it is clear that the construction which Branson J gave to s 24(2A)(g) bears upon the construction to be given to s 24(2A)(d).  Indeed it is the consequence of her Honour’s decision, even if not specifically a ground of it, that in the present case, the applicant cannot be found to have been prevented from undertaking the remunerative work last undertaken before the application was made.

37                  It follows both as a matter of ordinary construction and as a result of the decision in Carter that the present appeal must be allowed and the orders of the Tribunal set aside.

38                  Before concluding these reasons, I should mention that Branson J in Carter expressed doubt on the question whether full time work as a partner in an accounting practice would be characterised as work of the same kind as limited and irregular audit work undertaken on a contract basis.  With respect, I agree with the comments made by her Honour at page 348.  Clearly s 24(2A)(d) requires a process of characterisation of the work to determine whether the remunerative work in fact ceased.  I emphasise the point because of the doubt which I have as to whether work on a full time basis and work on a part time basis should be characterised as work of the same type.  In saying this I note that the full Court in Banovich v Repatriation Commission (1986) 6 AAR 113, a decision referred to by Branson J, noted that the term ‘remunerative work’ in the predecessor provision was used in a context which indicated an intention to refer to work generally and that the phrase ‘remunerative work which the respondent was undertaking’ should be read as referring to the type of work which the member previously undertook rather than to any particular job.  In the present case, the type of work characterised by the Tribunal was the making of property valuations by Mr Haskard on his own account.  This characterisation really requires the conclusion in the present case that the remunerative work undertaken by Mr Haskard never ceased but was ongoing as at the date of the hearing.

39                  The orders I would make are that the appeal be allowed, the decision of the Tribunal be set aside and that it be declared that the provisions of s 24(2A) did not apply to Mr Haskard.  The matter should accordingly be remitted to the Tribunal to be dealt with in accordance with law.

Associate:

Dated:              29 November 2002