FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Nugent [2003] FCA 1184

PRACTICE AND PROCEDURE - application for extension of time to appeal from a decision of the Administrative Appeals Tribunal - measurement of time from which to appeal - explanation for delay

VETERANS AFFAIRS - entitlements - whether Administrative Appeals Tribunal made an error of law - veteran’s capacity to undertaken remunerative work - deaf

Veterans’ Entitlements Act 1986 (Cth) s 24, s 28

Administrative Appeals Tribunal Act 1975 (Cth) s 43(2), s 43(2B)

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 applied

Secretary, Department of Social Security v Van Den Boogarart (1995) 37 ALD 619 cited

Comcare v A’Hearn (1993) 45 FCR 441 (FC) cited

Collector of Customs v Pozzolanic (1993) 43 FCR 280 cited

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited

Baxter Healthcare Pty Limited v Comptroller-General of Customs (1997) 72 FCR 467 referred to

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 applied

Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 cited

Lucic v Nolan (1982) 45 ALR 411 cited

REPATRIATION COMMISSION v CHARLES NUGENT

Q78 OF 2003

COOPER J

BRISBANE

27 OCTOBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q78 OF 2003

On appeal from the Veterans’ Appeals Division of the

Administrative Appeals Tribunal constituted by Senior Member K L Beddoe

BETWEEN:	REPATRIATION COMMISSION APPLICANT
AND:	CHARLES NUGENT RESPONDENT
JUDGE:	COOPER
DATE OF ORDER:	27 OCTOBER 2003
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant pay the respondent’s costs of and incidental to the application, to be taxed if not agreed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q78 OF 2003

On appeal from the Veterans’ Appeals Division of the

Administrative Appeals Tribunal constituted by Senior Member K L Beddoe

BETWEEN:

REPATRIATION COMMISSION

APPLICANT

AND:

CHARLES NUGENT

RESPONDENT

JUDGE:	COOPER
DATE:	27 OCTOBER 2003
PLACE:	BRISBANE

REASONS FOR JUDGMENT

background

1 The applicant is the Repatriation Commission, a body corporate recognised and continued under s 179 of the Veterans’ Entitlements Act 1986 (Cth) (‘the VE Act’). Its functions include the granting of pensions, allowances and other benefits to veterans under and in accordance with the provisions of the VE Act: s 180(1).

2 The respondent is a veteran for the purposes of the VE Act. On 9 April 1997 he was assessed by the Army Medical Board to be unfit for Army service. Rather than being discharged as medically unfit for the purposes of his superannuation, he took a voluntary discharge from the Army in 1997. He was aged forty-eight years at the time of his discharge. He was granted a disability pension under the VE Act. On 5 June 1997 that pension was increased to 100 per cent of the General Rate with effect from 29 October 1996.

3 On 11 February 2000, the respondent applied under s 24 of the VE Act for a Special Rate Pension. The claim was refused on 30 March 2000 and the respondent sought review of the decision by the Veterans’ Review Board (‘the VRB’) on 26 June 2000. On 2 February 2002, the VRB affirmed the decision under review. On 26 April 2002, the respondent sought further review of the decision in the Administrative Appeals Tribunal (‘the AAT’).

4 On 12 March 2003, the AAT decided that:

(a) the decision under review was set aside;

(b) Mr Nugent satisfied the terms of s 24 of the VE Act with effect from 28 February 2000; and

5 The AAT gave oral reasons on 12 March 2003 at the conclusion of the hearing before it. The applicant was represented before the AAT by a Mr McAninly who fully participated in those proceedings. On 17 March 2003, the applicant sought written reasons from the AAT. The written reasons of the AAT, which included the oral reasons previously given, were made available to the parties on 8 May 2003.

6 On 2 June 2003, the applicant applied for an extension of time in which to file and serve a notice of appeal from the decision of the AAT given on 12 March 2003. An extension of time is required because an appeal to this Court from a decision of the AAT must be instituted not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the AAT is furnished to the person appealing, or within such further time as the Court allows: s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’). The applicant received notification in writing of the AAT’s decision on 14 March 2003.

7 The applicant filed two affidavits in support of its application for extension of time.

8 The first affidavit was that of Ms Nanette Kerrison, the senior legal adviser to the Commonwealth Department of Veterans’ Affairs (‘the Department’) in Canberra, ACT. Ms Kerrison deposes that she has had the conduct of this matter since 8 May 2003, the date on which the applicant received a copy of the written reasons of the AAT. She further deposes that on 30 May 2003, she became aware of the ‘correct position’ regarding the time in which to appeal a decision of the AAT pursuant to s 44 of the AAT Act, and on that day gave instructions to the Australian Government Solicitor to inform the respondent’s legal representative that the applicant intended to apply for an extension of time to appeal. Ms Kerrison asserts in her affidavit that there will be prejudice if the decision of the AAT is allowed to stand and influence other decisions in relation to s 24 of the VE Act, and in particular s 24(1)(c). She also asserts that the Commission is:

‘... concerned that other servicemen or service women in the same position as the Respondent who are denied a Special Rate Pension will feel aggrieved by what will appear to be unequal treatment under the legislation.’

9 Ms Kerrison asserts that the respondent will not suffer any prejudice if time to appeal is extended. She deposes to having received counsel’s advice that the applicant has good grounds for successfully appealing and draft grounds of appeal are annexed to her affidavit.

10 The second affidavit was that of Mr Darryl McAninly, an advocate in the External Review Section of the Department. Mr McAninly was responsible for the care and conduct of the respondent’s claim from 6 June 2002 until 8 May 2003. Mr McAninly appeared and conducted the proceedings before the AAT on 12 March 2003. He deposes that he received the reasons for decision from the AAT on 8 May 2003. Those reasons were provided in consequence of a written request for reasons made in accordance with s 43(2A) of the AAT Act by Mr McAninly on 17 March 2003. Mr McAninly deposes that upon receipt of the reasons, he discussed with his colleagues the possibility of lodging an appeal to this Court but took the matter no further as a Mr Bob Loftus of the Disability Compensation Branch, Compensation Support Division, of the Department also had a copy of the reasons and was in the process of considering an appeal. Mr McAninly deposed that prior to 8 May 2003, he had mistakenly thought that the time for filing an appeal from a decision of the AAT ran from the date of receipt of the reasons.

11 For the purpose of the application it was conceded that at all material times, Mr McAninly had access to legal advice within the department.

12 No material was filed from Mr Loftus explaining his involvement in the matter.

the discretion to extend time

13 In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, Wilcox J had occasion to consider the principles guiding the exercise of the discretion to extend the time for applying to this Court under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The same principles are relevant to the exercise of the discretion to extend under s 44 of the AAT Act: Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121 at 122; Secretary, Department of Social Security v Van Den Boogaart (1995) 37 ALD 619 at 620; Cooper v Comcare [2002] FCA 788 at [11].

14 In Hunter Valley Developments (at p 348 - p 349), Wilcox J said:

‘1. Although the section does not, in terms, place any onus of proof upon an applicant for extension, an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied that it is proper so to do. The “prescribed period” of 28 days is not to be ignored (Ralkon v. Aboriginal Development Commission (1982) 43 A.L.R. 535 at 550). Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v. Nolan (1982) 45 A.L.R. 411 at 416). It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time (Duff at 485; Chapman v. Reilly, unreported (Federal Court of Australia, Neaves J., 9 December 1983) at 7).

2. Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not “rested on his rights”: per Fisher J. in Doyle v. Chief of Staff (1982) 42 A.L.R. 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon, and Douglas v. Allen (1984) 1 F.C.R. 287 with Lucic at 414-415 and Hickey v. Australian Telecommunications Commission (1983) 47 A.L.R. 517 at 519. The reasons for this distinction are not only the “need for finality in disputes” (see Lucic at 410) but also the “fading from memory” problem referred to in Wedesweiller v Cole (1983) 47 A.L.R. 528.

3. Any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the grant of an extension: see Doyle at 287; Duff at 484-485; Hickey at 525-527 and Wedesweiller at 533-534.

4. However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas, Lucic at 416; Hickey at 523. In this context, public considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at 550; Becerra at 12-13) or of established practices (Douglas) is likely to prove fatal to the application.

5. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic at 417; Chapman at 6.

6. Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion: Wedesweiller at 534-535.

In considering the authorities it is, I believe, important to bear in mind the point made by Sheppard J. in Wedesweiller at 531 relating to the diversity of decisions as to which review may be sought under the Act:

"… there will be some cases which may be decided upon considerations which affect only the immediate parties. It will be appropriate to consider whether the delay which has taken place has been satisfactorily explained, the prejudice which may be caused to an applicant by the refusal of an application, the prejudice which may be suffered by the Government or a particular department if the application is granted and, generally, what the justice of the case requires. In other cases wider considerations will be involved.”

He went on to mention the reference to public interest made by Fitzgerald J in Lucic at p 416.

It is in relation to the former category of cases, ie those “which affect only the immediate parties” that the approach adopted by Bray C.J. in Lovett v LeGall (1975) 10 S.A.S.R. 479 at 485, in respect of private litigation but adopted in this context in both Doyle at 287 and Duff at 485, is apposite namely:

“If the defendant has suffered no prejudice, as when he was well within the limitation period of the plaintiff’s claim, or where the excess period of time is small, or where he cannot show that he has lost anything by reason of the delay, it may well be that the court will not find it difficult to come to the conclusion that it is fair and equitable in the circumstances to grant extension.”

By contrast, in cases involving public administration, especially day-to-day matters such as personnel management, the public interest may well dictate refusal of an extension, even after only a short delay.’

conclusion on the application

15 The explanation given by the applicant for failure to lodge the application within time is that Mr McAninly wrongly understood that time did not run until receipt of the reasons of the AAT, and that in consequence he took no steps to lodge an appeal. There is no explanation given by Mr McAninly as to why he held that erroneous belief. He was obviously aware that certain consequences flowed from receipt of the decision on 14 March 2003 because he wrote citing the applicant’s rights to receive reasons under s 43(2A) of the AAT Act. He was obviously aware that there was a relevant time limitation within which to appeal but he has not explained why he did not acquaint himself with the provisions of s 44 of the Act, or avail himself of legal advice to ensure that any appeal rights in respect of the decision did not expire. Importantly, there is no explanation of how, upon receipt of the written reasons of the AAT on 8 May 2003, he became aware that his previously held belief as to the operation of s 44 of the AAT Act was incorrect.

16 The explanation of Mr McAninly raises the involvement, if any, of Mr Loftus in the conduct of the matter before 8 May 2003, his knowledge of the decision of the AAT given on 12 March 2003, and the circumstances in which he came into possession of a copy of the written reasons and for what purpose. Mr McAninly’s affidavit would entitle the Court to infer that Mr Loftus was an officer of the applicant, authorised to initiate an appeal if he thought it appropriate to do so. The failure of Mr Loftus to give an explanation of his knowledge and involvement, or a satisfactory explanation for his failure to do so, is unacceptable.

17 One of the circumstances which leads to such a conclusion is that the applicant did not act to give effect to the decision of the AAT of 12 March 2003 in which it was ordered that the applicant pay to the respondent his entitlement to a Special Rate Pension under s 24 of the VE Act with effect from 28 February 2000, and the applicant had not done so when the application for leave to extend time to appeal was heard by the Court. That is, the delay in filing an appeal has had the effect of holding the respondent out of an entitlement to be paid the pension which he acquired by the decision of the AAT on 12 March 2003. In the absence of an explanation as to the involvement of Mr Loftus, and of the knowledge and involvement of such other persons in the Department who have determined not to give effect to the AAT decision, it is open to infer that having decided not to pay the benefit as directed by the AAT, there was no pressing urgency for the applicant to concern itself with ascertaining its appeal rights and availing itself of such rights in a timely manner in accordance with the limitations in s 44 of the AAT Act.

18 The position taken in Ms Kerrison’s affidavit does not overcome the problem. She does not explain how she became involved in the matter on 8 May 2003 when the reasons of the AAT were received. Nor does she explain in what circumstances she became aware on 30 May 2003 as to the ‘correct position’ regarding the time within which it was necessary to file an appeal from a decision of the AAT pursuant to s 44 of the AAT Act. It seems likely that the advice came with counsel’s opinion which, according to the letter from the Australian Government Solicitor to the respondent’s counsel dated 30 May 2003, was received on that day.

19 The letter from the Australian Government Solicitor stated:

‘1. We refer to our telephone conversation, and confirm that we have this afternoon received instructions to act on behalf of the Repatriation Commission in respect of a proposed appeal to the Federal Court from the decision of the Administrative Appeals Tribunal in this matter.

2. Counsel’s advice in respect of prospects of the appeal was received today. It is our client’s intention that an application for leave to appeal, with the draft notice of appeal will be filed at the beginning of next week.

3. We are informed that the decision was delivered on 12 March 2003 although written reasons for the decision were not received until 8 May 2003, despite our client’s request for same having been made on 17 March. We note that our client’s application will be filed within 28 days of the date reasons were made available.’

20 There is no suggestion in the letter that the delay in filing an appeal was as a result of an erroneous understanding of an advocate and senior legal adviser as to the operation of the time limit provided in s 44 of the AAT Act. The reasonable inference to be drawn by a recipient of the letter is that no decision was going to be taken in respect of an appeal until favourable advice from counsel was obtained and that the obtaining of such advice was delayed because of delay or tardiness on the part of the AAT in not providing written reasons until 8 May 2003 despite a written request from the applicant on 17 March 2003.

21 The applicant does not contend that it did not know of or understand the oral reasons of the AAT, and could not in consequence either obtain counsel’s advice or file its appeal. Nor could it do so as Mr McAninly was present when the decision and oral reasons were given, and could at any time, as was ultimately done, obtain a written transcript of the proceedings before the AAT.

22 The absence of an acceptable explanation for the delay in filing the appeal is not an essential pre-condition to the grant of an extension of time, although it is expected that one will normally be given, and that the applicant will show that it is fair and equitable in the circumstances to extend time: Comcare v A’Hearn (1993) 45 FCR 441 (FC) at 444. For the reasons given above, I am not satisfied that the applicant has done so.

23 The circumstances reveal a real risk that the applicant, having decided at some level to fail to give effect to the decision of the AAT, determined not to press its legal advisers to ascertain its rights to appeal and the prospects of such an appeal in a timely way, and simply rested on its rights, there being no pressing urgency on its part to have the respondent’s entitlement to the benefit, as determined by the AAT, finally resolved.

24 It was submitted by the applicant that an extension of time would not prejudice the respondent because the question involved was one of error of law, and that delay in the proceedings did not prejudice the determination of that issue, the evidence and facts having been given and found in the AAT.

25 In my view, that submission takes too narrow a view of prejudice. The system of administrative review is intended to provide a measure of finality and certainty in the making and review of administrative decisions. If the applicant is determined not to pay the respondent his pension at the increased rate pending appeal, then for so long as the AAT decision stands, the respondent is being held out of his proper entitlement as determined by the AAT, and he is thereby prejudiced. It is no answer to say that if the applicant is ultimately unsuccessful in setting aside the decision of the AAT the respondent will receive the benefit with effect from 28 February 2000. If that occurs he will have been held out of his entitlement to his prejudice, not only for the period of delay seeking to obtain an extension of time within which to file the appeal, but also the time taken to ultimately dispose of the appeal. Moreover, if the matter were remitted to the AAT for re-hearing, the respondent will be put to the cost and inconvenience of a further hearing not limited to those questions of law, but ones involving the representation of evidence which may or may not involve additional evidence by both parties, in an attempt to address any weaknesses revealed in their case as a consequence of the judicial review. Having to re-litigate on another evidentiary basis may well be to the prejudice of the respondent. In any event, mere absence of prejudice is not enough.

26 The applicant contends that, should an extension of time be refused, it will be prejudiced by allowing the AAT decision to stand and influence other decisions in respect of s 24, and especially s 24(1)(c) of the VE Act. In my view, there is no substance in this contention. Each determination of the entitlement of a veteran to a pension, allowance or benefit under the VE Act turns on its own particular facts, and the application of the relevant provisions of the VE Act to those facts. This decision does not purport to be other than the application of the provisions of s 24 of the VE Act to the circumstances of this particular veteran.

27 There is no uncertainty as to the requirements of s 24 of the VE Act. As counsel for the applicant demonstrated beyond argument in her submission on the merits of the proposed appeal, the requirements have been clearly and authoritatively laid down by Full Courts and single justices of this Court: see for example Chambers v Repatriation Commission (1995) 55 FCR 9 (FC) at 19 - 20, 22, 26; Repatriation Commission v Buckingham [1996] FCA 37 at 10, 14 - 15, 17; Forbes v Repatriation Commission (2000) 101 FCR 50 at [14] - [15]; Flentjar v Repatriation Commission (1997) 48 ALD 1 (FC) at 4 - 5; Repatriation Commission v Hendy [2002] FCAFC 424 at [36] - [27]; Repatriation Commission v Alexander [2003] FCA 399 at [13], [22].

28 The applicant also contends that it is concerned that others in the position of the respondent will feel aggrieved if they do not receive the Special Payment Pension and the respondent is allowed to retain the benefit of the decision of the AAT given on 12 March 2003. The underlying assumption in this contention is that the decision is wrong and that the respondent has unfairly received a benefit to which he was not entitled. It is premised on a disagreement with the findings of fact made by the AAT as to the nature and extent of the disabilities from which the respondent suffers; the extent to which those disabilities, or some of them, render him incapable of undertaking remunerative work as required by s 24(1)(b) of the VE Act; and whether by reason of that incapacity from war-caused injury alone, he is prevented from continuing to undertake remunerative work and has thereby suffered loss of salary, wages or earnings in the circumstances specified in s 24(1)(c) of the VE Act.

29 This is not a case of a public service appeal where, for example, to extend time to appeal will impact on the rights of other applicants in the same position as the applicant in relation to the appointment made. Rather, it concerns the rights inter se of the applicant and the respondent, and the AAT decision does not impact upon the right of any veteran to obtain a Special Payment Pension under s 24 of the VE Act if the factual circumstances of that veteran entitle him or her to a benefit under that section. The situations where veterans do suffer a real sense of grievance is where two veterans have both served in the same location, performing the same duties and, because of a change in the policy of the applicant as to the nature of that service, they are treated differently. This occurs when earlier AAT determinations which treated the service as rendering operational service were allowed to stand, and later claims for the same service are rejected by the applicant as non-operational service, and the rejection upheld by later AAT and Court decisions. That is not this case.

30 The final matter for consideration raised by the applicant was the merits of its proposed appeal. The applicant contended that it has a meritorious appeal and its draft notice of appeal alleges that the AAT made errors of law:

(a) in the construction and application of s 24(1)(b) of the VE Act;

(b) in the construction and application of s 24(1)(c) of the VE Act;

(d) in failing to give reasons for its decision; and

(e) in making findings of fact in the absence of any evidence to support such findings.

31 The reasons of the AAT are not to be construed minutely and finely with an eye attuned to the perception of error, remembering that reasons are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to ascertain whether some inadequacy may be gleaned from the way in which the reasons are expressed: Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 286 - 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 - 272. In Baxter Healthcare Pty Limited v Comptroller-General of Customs (1997) 72 FCR 467 at 469, Burchett J said:

‘This case very well illustrates a point made in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-287, and recently reiterated by the High Court of Australia in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. The point is that judicial review of decisions of the Administrative Appeals Tribunal is not concerned with technical legal niceties, looseness of language, or infelicities of expression, but with whether a decision is infected in substance by some error of law. To my mind, the primary argument in the present appeal turns on whether the Tribunal in reality mistook its legal task, or whether it merely strayed into a measure of obscurity in the statement of its reasons, the actual meaning of which can nevertheless be ascertained by some perseverance, and being ascertained, reveals no error.’

32 I agree with such an approach.

33 Further, in giving its reasons, the AAT was required by s 43(2) and s 43(2B) of the AAT Act only to set out its findings on those questions of fact which it considered to be material to the decision which it made, and to the reasons it had for reaching that decision: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68]. The section only requires the recording of matters that are matters of fact: Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 at [44]; Yusuf at [67]. The Court may infer that a matter not mentioned in the reasons was not considered to be material by the AAT: Yusuf at [69]; Repatriation Commission v O’Brien (1985) 155 CLR 422 at 446.

34 Section 24 of the VE Act, so far as presently relevant, provides:

‘24 Special rate of pension

(1) This section applies to a veteran if:

...

(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and

(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and

...

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

(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:

(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or

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

(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.

...’

35 Section 28 of the VE Act provides:

‘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 a 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).’

36 In written reasons dated 7 May 2003, the AAT stated:

‘4. The respondent has accepted as service-related the following conditions:

(a) Bilateral Sensori-neural Deafness; and

(b) Anterior Cruciate Ligament insufficient Right Knee (Reconstructed).

5. The applicant had two periods of service in the Army, on each occasion rising to the rank of sergeant.

6. I am satisfied that the applicant became unemployable during his second period of service because of his deafness and he was discharged from the Army for that reason. I am also satisfied, based on the applicant’s evidence, that he managed to maintain his employment in the Army only because, as a sergeant, he was able to delegate functions to others, thereby avoiding problems which would arise because of his deafness.

7. In relation to the discharge I accept that the applicant took voluntary discharge because he did not want a discharge on invalidity grounds due to reasons relating to payment of Defence Force pension benefits.

8. While Dr Boys thought that the applicant was capable of working twenty hours per week, on the basis of his examination, he did not take into account the applicant’s hearing problems.

9. Dr Goode was of the opinion that the applicant was, and is, unemployable when the deafness and right knee conditions are both taken into account.

10. At the conclusion of the hearing, the Tribunal gave oral reasons for its decision that section 24 of the Act had been satisfied, as follows:

“I propose to set aside the decision under review and substitute a decision that the applicant is entitled to a special rate pension within the terms of section 24 of the Veterans’ Entitlements Act. My brief reasons for that decision are as follows.

The applicant was a long-term soldier. He in fact had two terms of engagement in the Army. On each occasion he rose to the rank of sergeant. During the first period of his employment with the Army, he suffered certain injuries which in the result caused severe hearing loss, which is beyond doubt, so that he is now profoundly deaf, and that is an accepted medical condition.

He also had a problem with his right knee. The right knee has been accepted for the reconstruction, but the subsequent condition of osteoarthritis, if that is the right diagnosis, has not been accepted and I’ve excluded from consideration the fact of the applicant’s osteoarthritis of his right knee. But I’m satisfied that the profound deafness was such that the applicant was prevented from continuing in his employment in the Army. He had been medically downgraded to the point where he was to be discharged on medical grounds, but he in effect stalled that process by taking an administrative discharge to take advantage of the provisions of the Defence Force Retirement and Death Benefits Act as he understood them.

After leaving the Army, the applicant purchased a business and at the date of application, which is 28 February 2000, he was still carrying on that business but I’m satisfied it was in such a run-down state that it had almost ceased to be a business and certainly had ceased to be an income earning proposition as far as the applicant was concerned so that the was suffering a real loss of remuneration arising from that business. He was also suffering a loss of remuneration from his employment in the Army, and it was that factor alone - the profound deafness as a result of his service in the Army, the accepted condition - I’m satisfied, that caused that loss of remuneration and that alone resulted in the provisions of section 24 being satisfied.

Insofar as the applicant did not make any attempt to seek alternative employment, I’m satisfied that - and I accept his evidence that - having been told by the Army that he can no longer perform clerical duties he was satisfied in his own mind and it is reasonable on an objective basis to also be satisfied that he was no longer capable of performing normal clerical duties and the kind of work that he had been engaged in, and therefore the terms of section 24 have all been satisfied, given that the applicant is already on a 100 per cent disability pension.

As I said before, the decision under review will be set aside, the matter remitted to the respondent with a direction that the applicant complies with section 24 of the Veterans’ Entitlements Act 1986. That decision will be made in writing and a copy sent to each of the parties.’

37 The applicant’s proposed appeal is largely based upon the contention that the AAT should have accepted the evidence of Dr Goode when he concluded that the respondent had morbid obesity, osteoarthritis of the knee and probable spondylosis of the lumbar spine. Dr Goode’s report dated 15 October 2001 was given without the benefit of an x-ray examination of the right knee, or the lower spine. Indeed, in a written report dated 22 November 2001, he expressed the view that ‘an x-ray of the lumbar spine would have helped to assess the degree of lumbar spondylosis’.

38 A later report relating to the respondent’s right knee condition and back condition was obtained by the applicant from Dr Peter Boys, a specialist orthopaedic surgeon. That report is dated 6 November 2002. Dr Boys had Dr Goode’s report, together with x-rays. In relation to his examination of the x-rays, Dr Boys stated:

‘RADIOLOGY

Plain radiographs of the lumbosacral spine (26/9/2002) show a very well-preserved lumbar spine. There is minimal developmental wedging of the T12 and L1 vertebral bodies. Vertebral alignment is normal. Intervertebral disc heights are preserved. There is evidence of minimal osteophytic lipping at the L4/5 disc space.

Radiographs of the pelvis and hips (26/9/2002) show no abnormality.

Radiographs of the left knee (26/9/2002) shows minimal osteophyte associated with the intercondylar eminence of the tibia.

Radiographs of the right knee (26/9/2002) show evidence of past anterior cruciate ligament reconstruction with screws in situ.’

He then gave his opinion:

‘OPINION

It is my opinion that Mr Nugent experiences residual symptoms referable to the right knee as a consequence of injury to the articulation sustained in the course of military service. Clinically this man has a well-functioning cruciate ligament construction and his symptoms reflect, in all probability, early degenerative change within the right knee.

I note reference within your letter of instruction to the lumbar spine. This man has minor age-related degenerative changes within the lumbar spine which are, at this time, completely asymptomatic. He relates no past history of service related injury to the spine. He does have a history of a degree of numbness to the right thigh which has now resolved and reflects, in all probability, entrapment of the lateral cutaneous nerve of the thigh (meralgia paresthetica). This condition is frequently seen in the obese individual and again no specific service relationship is elicitable.

I note your specific questions and I would respond:

1. Is range of movement of any lower limb joint or the lumbar spine restricted?

No.

2. If so, please specify the limitation in quartiles of each affected joint.

No.

3. What is the maximum distance he can walk on level ground before stopping to rest?

200 - 300 metres.

4. How many flights of stairs can he climb before stopping to rest?

One to two.

5. What is the relative contribution of the right anterior cruciate ligament insufficiency to any of the restrictions and limitations described in your responses to the above questions?

Injury to the anterior cruciate ligament, menisci and associated degenerative change is responsible for the incapacities evidence.

6. What musculoskeletal conditions, if any, limit Mr Nugent’s capacity for work?

The right knee condition.

7. Would right anterior cruciate ligament insufficiency of itself prevent him from working?

No. This man would be fit to perform clerical employment.

8. Would it by itself prevent the applicant from working 20 hours or more per week?

No.

9. If yes, does it prevent him working 8 hours or more but less than 20 hours a week?

Not applicable.

10. Is the situation likely to improve with treatment or rehabilitation?

No.’

39 In evidence, Dr Boys gave the following answer when questioned by the Senior Member:

‘You’ve answered a number of specific questions in your report at pages 4 and 5?---Yes.

And I’m looking, in particular, at question 7:

Would right-hand anterior cruciate ligament insufficiency of itself prevent him from working?

Your answer is:

No. This man would be fit to perform clerical work.

When you gave that answer, did you intend it to refer only to his orthopaedic condition?---Yes, that’s correct.

Yes. And the same applies to question number 8 and the answer you gave there?---Yes, I’ve answered that in the context of the condition of the knee.

Yes?---Yes.’

40 Dr Goode in his report dated 15 October 2001 concluded:

‘Taken overall, Mr Nugent would therefore not be able to return to work involving heavy manual handling because of his right knee and lumbar pain. Further, his obesity would generally reduce his exercise for heavy manual handling. Therefore, Mr Nugent could not return to his work as a Printer. Further, Mr Nugent could not return to work involving significant mobilising independently.

However, Mr Nugent is fortunate in having a significant clerical and administrative background. I feel he could consider desk-based and sedentary work, such as clerical/administrative work as he performed in the Army. I feel he could consider this initially on a 8 - 20 hour per week basis. Of course any potential employer would have to make the reasonable adjustments I have indicated above, such as accommodating the hearing loss, preferably in a non-noisy environment without heavy manual handling, such as heavy lifting and bending, squatting, kneeling or mobilising for long periods, and with no extended periods of driving. Further, Mr Nugent would do better to avoid contact with the public and repeated use of a telephone, because of his hearing problems. Sedentary process work would also be a ---possibility, but this would require the strict use of ear personal protective equipment, and one would personally understand Mr Nugent’s reluctance to consider such work in the circumstances.’

41 In his evidence-in-chief, Dr Goode said:

‘All right. And you’re saying that - in your report you’re saying his morbid obesity actually does contribute to his problems as well regarding his exercise and his osteoarthritis of the knee and his problems with his lumbar spine?---The obesity is very much a secondary issue. The knee issue is - is obviously mainly because of the anatomical problems resulting from those injuries that he had in the Army. He had two arthroscopies I believe and then a - and then a reconstruction. That’s the main reason he’s got osteoarthritis in his right knee. Body weight won’t help. The other thing that won’t help is age; simple as that. So those issues are contributory but they’re - they’re secondary issues, very much secondary issues.

Are you saying one of the major factor[s] in his knee condition is the osteoarthritis of the knee?---Well, the main reason he’s got problems now is - well, he’s got some cruciate instability still because I found that on examination. There’s a little bit of the - the Lackman’s Test showed a little bit of laxity in the anterior cruciate still. There’s still a bit of chondromalacia, so there is still some anatomical problems there. I mean, the main source of symptoms is probably going to be osteoarthritis, but that’s a secondary due to the - that’s mainly due to the anatomical deformity resulting from those injuries.

Okay. And you consider that he could certainly do sedentary type clerical work, provided reasonable adjustments were made?---That’s the view I came to. I mean, he done [sic] a lot of that throughout his military career, and obviously did it at a high level. He was in charge of other people at various times as well. He’s obviously capable of doing it, but I would have - I would have thought - I would have came [sic] to that view that that would be possible.’

42 Under cross-examination Dr Goode then said:

‘Would you think a hearing loss of 86.6 per cent might restrict him in clerical work?---Depending on the circumstances as I said before.

What clerical work do you envisage that you could have such a profound hearing loss and that you didn’t deal with the public and/or use a telephone?---I know profoundly deaf people who are working as mail officers, and I mean I guess that’s a form of clerical work in a way.

His job in the Army was a fairly - what would you say - high-powered clerical work. A mail officer doesn’t actually equate to that, does it?---I mean, they’re - they’re - they’re required to do but - that type of task - and Mr Nugent was doing it in the military was my understanding as well - was doing clerical work. In fact, he was in charge of other people in the military.

He was actually - well, he wasn’t discharged medically unfit, but he had an assessment of being medically unfit in the Army, and that’s why he took administrative discharge which was because of his hearing. Do you think that there is any - if the military discharged him as not being able to do clerical work because of his hearing loss, do you think that that equates anything to a civilian, or do you think the civilian workforce is much easier than the Army?---No, I wouldn’t see the civilian workforce as being any easier, no, but I mean I don’t - I mean, you know I don’t know the circumstances of Mr Nugent’s discharge from the military. I mean, he said he was medically discharged. The - but - and I’m - and I’d have to go back and have a good look at my report actually to find out how long he was working as a clerical person and obviously doing it for - must have been capably. However, if the military didn’t think he was doing it capably, I mean if they put up with it for an extended period of time I can’t - I’m the wrong person to ask.

You said in your report:

Of course I recognise such severely restricted work would be difficult to find in the open competitive job marketplace.

That was your - sorry, on page 7 of your report. That seems to be a recognition that although he could do clerical work, it would be extremely difficult for him to find?---A his age, time of life, all that time - these disabilities an employer has got to cope with, yes, I’m not saying it’s easy; I’m saying it’s possible.

Which disability do you think ranks highest in having difficulty in finding more work?---Hearing.

The hearing. So you would recognise that his hearing would make it very very difficult for him to find clerical work? Not impossible I’m saying, but very difficult?---It would make it difficult.

Could you see that he has difficulty with face-to-face contact, Mr Nugent. You know in a clerical position you tend to - you get instructions from people or you talk to people. Could you see that he could have any difficulty with that face-to-face contact?---Well, usually - in fact, I was commenting - it occurred to me when I did my report. I usually make a comment in the second paragraph of my examination as to - well, third paragraph, whatever - if there was any problem giving a history, and it struck me - if I had a lot of trouble with hearing Mr Nugent or him hearing me in having our conversation for this consultation, I would have made a note of that, and I haven’t, so I wouldn’t be able to get a seven page report by sitting down with Mr Nugent for an hour or so and we had no difficulties with conversation, enough for me to make a comment about that in the report.

If there was more than one person speaking or a conversation between more than just one on one, would there by any difficulty?---There may well be in the presence of background noise. If there’s - there’s significant background noise that can certainly represent a problem when - in the presence of sensory neural hearing loss.

Yes. Mr Nugent, in his evidence, said that he was even having trouble now with the phone that has an enhanced loud-speaker - - -?---Right.

- - - on it, that his relatives who ring him up have to almost spell out words. Would that give any trouble with a clerical job, not - - -?---Obviously would. That’s why you’d have to make a reasonable adjustment to accommodate it as required under Federal legislation.

So the reasonable adjustment usually is the speaker in the phone. Even with the speaker in the phone, he is still having trouble. Do you think that a reasonable adjustment would be the never phoning him or - - -?---Maybe - maybe, and that’s making it more difficult, isn’t it? I mean, if he - if he can’t use the telephone, full stop, that’s going to make it that bit harder.’

43 In re-examination, he said:

‘MR McANINLY: Okay. I would like to ask you to comment a bit on the policy of reasonable adjustment. My learning [sic] friend over here has actually stated that reasonable adjustment is actually getting the veteran a speaker phone. Isn’t reasonable adjustment also adjusting the workplace such as adjusting the duties of the job so, in Mr Nugent’s case, he would be relieved of telephone duties and pick up other forms of duties and also doing such adaptations as perhaps Mr Nugent initiating his correspondence to people with email rather than using telephone. So reasonable adjustment is actually - also includes adjusting the job slightly, isn’t it, adjusting the duties of the job so - - -?---Provided the person can meet the inherent requirements of the job, and so that’s the employer who has to decide whether that’s reasonable or not.

That’s right, yes?---So that the person has got to meet the inherent requirements of the job. Then the - via those - with those reasonable adjustments, so depends - I mean, if they can modify the job so it doesn’t answer the phone and can do it through email, well, well and good. But if they can’t, well then he can’t meet the inherent requirements of the job.

Well, in view of Mr Nugent’s strong clerical background, do you think he would have any trouble performing a clerical job where such a reasonable adjustment may be made to minimise the amount of telephone usage that he would be required to do, such as he could certainly be someone who could write reports and administrative instructions, the sort of work that he was doing in the Army, and that requires a minimal amount of phone work. Would you think he would be able to do that sort of work without a problem?---Well, I don’t see any reason why he could not trial that as I’ve - as I’ve indicated in my report. I would not see that as impossible.’

44 The applicant contended that the AAT was bound to make findings as to the subjects of morbid obesity, back pain and the respondent’s age and the contribution of these factors to any incapacity to undertake remunerative work.

45 It may be inferred that, in not making findings in relation to these matters, The AAT has not regarded them as material considerations to the issues before it. However, the AAT has accepted Dr Boys’ evidence, which excludes any lumbar disability and makes no adverse comment in respect of the explanation given by the respondent for some transient back pain at an earlier time. Dr Boys, with the benefit of the x-rays and being aware of Dr Goode’s views, was in a better position than Dr Goode to express an expert opinion as to the condition of the respondent’s lower back. Accordingly, the AAT was entitled to prefer Dr Boys’ opinion.

46 Dr Boys does not suggest that morbid obesity is relevant to any incapacity of the respondent to undertake remunerative work. Dr Boys’ evidence was that without considering his profound deafness, there was nothing in his examination of the respondent which would render him incapable of working as a clerk. However, he opines that the anterior cruciate ligament insufficiency would be responsible for incapacity in other areas. Dr Boys’ opinion is no different to that of Dr Goode insofar as his assessment of the limitations the right knee disability and the impact this has on the performance of work other than as a clerk.

47 The AAT has clearly enough concluded that the right knee injury has excluded the respondent from areas of work other than as a clerk (whether or not any non war-caused condition has contributed to that incapacity) and for that reason has excluded possible degenerative change in the knee from its consideration.

48 The issue which the AAT has isolated for consideration was whether or not the respondent was incapable of undertaking remunerative work as a clerk, it being the area of possible employment identified by Dr Boys and Dr Goode, for periods aggregating more than eight hours per week because of his profound deafness.

49 The AAT found that the respondent was no longer capable of performing normal clerical duties of the kind that he had performed during his Army service. It came to that conclusion because it was satisfied ‘that the profound deafness was such that the [respondent] was prevented from continuing his employment in the Army.’ The AAT found that the profound deafness alone was the reason he was unable to perform normal clerical duties in the Army and was also the reason he was forced to leave the Army.

50 The AAT records that Dr Goode was of the opinion that the respondent was and is unemployable when the deafness and right knee conditions are both taken into account. That view, in my opinion, was open on the evidence of Dr Goode. The effect of Dr Goode’s evidence is that the respondent cannot carry out the ordinary duties of a clerk without significant accommodation being made by an employer, should there be such a willing employer. Dr Goode had no satisfactory explanation as to why the respondent, after being forced to leave the Army because he was unable to perform his clerical duties because of his profound deafness, would be able to work effectively as a clerk in civilian employment, with all necessary adjustments being made.

51 Ultimately, the effect of Dr Goode’s evidence was that, assuming a willing employer could be found, the respondent may be able to do some of the duties associated with a clerk’s position if other duties which he cannot perform are carried out by others; or the inherent requirements of the job are changed to accommodate his profound deafness. Otherwise, the respondent was unemployable as a clerk because his deafness imposed limitations upon him in his ability to perform the inherent requirements of a clerical position.

52 The impact of the respondent’s age (forty-eight at discharge from the Army and fifty-one at the time of hearing) on his prospects of employment was not a matter of medical speciality but a matter for the AAT to consider if it regarded it as material to the issue before it. In any event, when Dr Goode addressed the respondent’s age, it was in the context of his age not helping a person with disabilities to find employment. There was no suggestion that because of his age he was to any degree incapacitated from performing the inherent requirements of a clerical position.

53 The AAT clearly came to its conclusion that the respondent could not perform the ordinary duties of a clerk by reason of his profound deafness because that was the view of the Army based on an assessment of his medical condition. That is, if the respondent could perform the ordinary duties required of him in the Army, he would still be in such employment and the only reason he was not still in the Army was his profound deafness. It is also clear that the AAT saw nothing inconsistent with that view in the evidence of Dr Goode nor in the possibility that some limited form of clerical work could be available depending upon the existence of a raft of contingencies which might never come about. As Dr Goode said:

‘It would depend very much of course on the employer and the job, but - but I mean, that’s why it would have to be assessed on its merits at the time.’

54 It was within the AAT’s discretion to treat the evidence of Dr Goode as to the existence of some residual capacity to undertake remunerative clerical work as speculative, and to look at the practical reality of the capacities of the respondent to perform ordinary clerical work in the light of the circumstances which forced his discharge from the Army.

55 Having formed the view that the respondent, because of his profound deafness alone, was incapable of undertaking remunerative work as a clerk because he was no longer capable of performing normal clerical duties, the AAT has addressed the issue in s 24(1)(b) of the VE Act.

56 The AAT’s finding that the profound deafness alone prevented him from continuing his employment in the Army, and that he thereby suffered the loss of his service pay, addressed the issue of s 24(1)(c) and s 24(2)(a)(i) and (ii) as required.

57 Similarly, the issue in s 24(2)(b) was addressed by the AAT, in finding that the respondent’s failure in seeking clerical positions since his discharge from the Army (in the light of the Army having told him that he was unfit for clerical duties) and the fact that, objectively, he was no longer capable of performing normal clerical duties, was reasonable.

58 Accordingly, I am satisfied that the AAT addressed all of the relevant issues arising under s 24 of the Act and it is by no means immediately apparent that its treatment of those issues involved any error of law.

59 It is true that the reasons of the AAT are short. However, the AAT has to process a great number of appeals in a practical and efficient manner. The question is not whether the reasons may have been better stated; it is whether they have been sufficiently stated to satisfy s 43(2) and s 43(2B) of the AAT Act.

60 With some perseverance, the benefit of the statute before a reader aware of the issues and the evidence before the AAT, the reasons contain sufficient detail to show the findings of fact the AAT made in respect of the issues and the manner in which it applied the statutory requirements of s 24 to those facts. The complaints as to the inadequacy of the reasons fall away when it is realised that the AAT found that the incapacity of the respondent to undertake remunerative work was solely due to his profound war-caused deafness; and the reasons why the AAT came to that conclusion, namely that the profound deafness which forced the respondent out of a clerical position with the Army was the same condition which rendered him incapable of undertaking remunerative work of a similar nature in the civilian workplace.

61 It follows from the above that I regard the prospects of any appeal as poor.

62 I have considered each of the matters raised by Wilcox J in Hunter Valley Developments. I have also considered the application as a whole to see whether it is fair and equitable in all the circumstances for the time to file and serve an application to be extended. I have asked myself whether I am positively satisfied that it is proper to do so: Hunter Valley Developments at 348. In the result, I am not persuaded that the applicant has made out a case for extension. In those circumstances, the prima facie rule that proceedings not commenced in time should not be entertained operates: Lucic v Nolan (1982) 45 ALR 411 at 416; Hunter Valley Developments at 348; Secretary, Department of Social Security v Van Den Boogaart at 621 - 622.

63 The application is dismissed with costs.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Associate:

Dated: 27 October 2003

Counsel for the Applicant:	H Bowskill
Solicitor for the Applicant:	Australian Government Solicitor

Counsel for the Respondent:	B Carter Nicoll
Solicitor for the Respondent:	Sciacca’s

Date of Hearing:	10 October 2003
Date of Judgment:	27 October 2003

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