FEDERAL COURT OF AUSTRALIA

Smith v Repatriation Commission [2012] FCA 1043

THE COURT ORDERS THAT:

1.    The proceeding is dismissed.

2.    The Applicant pay the Respondent’s costs of the proceeding, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

1    The Applicant, Kenneth Allan Smith, returned from service in Vietnam in 1971. In 2004, he was diagnosed with; inter alia, Post-Traumatic Stress Disorder (PTSD). He receives a pension at 100% of the general rate pursuant to the Veterans’ Entitlements Act 1986 (Cth) (VE Act). In April 1982, Mr Smith was injured in an industrial accident. His left leg was amputated, from above the knee. His right leg and ankle were also seriously injured. He was unable to work for five years. Between 1987 and 2006, Mr Smith worked in various jobs, including as a farmer and electrical fitter. Since early 1997, Mr Smith has complained of difficulty with his right leg. On 29 May 2006, Mr Smith ceased work altogether. In February 2009, he received a total right knee replacement.

2    On 31 March 2009, Mr Smith applied, pursuant to s 15(1) of the VE Act, for an increase in the rate of pension to the special rate. On 28 May 2010, the Respondent rejected that application. On 13 July 2010, the Veterans’ Review Board (VRB) affirmed the Respondent’s decision. On 16 February 2012, the Administrative Appeals Tribunal (AAT) affirmed the VRB’s decision (AAT Decision). Mr Smith appeals from the AAT Decision.

3    This appeal concerns the construction of s 24 of the VE Act and, in particular, ss 24(1)(c) and 24(2)(b). There are two issues. First, under s 24(1)(c), whether the AAT fell into error:

1.    in its consideration of what was the relevant “remunerative work” that Mr Smith previously undertook; and/or

2.    by considering evidence of the medical treatment of Mr Smith’s non-war caused injuries.

4    Second, for the purposes of s 24(2)(b), whether the AAT fell into error by restricting its consideration of Mr Smith’s genuine attempts to obtain work to only those attempts he made after applying for an increased pension rate.

5    For the reasons below, the answer to each of those questions is “No”. The appeal is dismissed with costs.

relevant legislative context

6    The VE Act provides for the payment of benefits to veterans and their dependants in certain circumstances. The VE Act is complex. For present purposes, it is sufficient to commence consideration of the VE Act with s 15, which entitles a veteran already in receipt of a pension to make an application for an increased pension on the ground that his or her incapacity has increased since the rate of pension was last assessed. Once an application has been made, the Secretary is compelled to undertake an investigation: s 17(1). Once the investigation is complete, the Secretary must submit the application to the Respondent: s 17(2). Section 18(1) provides that the Respondent must “satisfy itself with respect to, or to determine, as the case requires, all matters relevant to the determination of the claim or application”.

7    The matters which the Respondent must “satisfy itself with respect to, or … determine” are set out in s 19. Section 19 is a complex provision with multiple sub-sections which cross-reference to each other is a somewhat circular manner. For present purposes, it is sufficient to note that, in the case of an application under s 15(1) for an increase in the rate of a pension “[t]he Commission must deal with an application under subsection 15(1) in accordance with subsections (5A), (5B) and (5C) and determine the application under subsection (5D)”: s 19(4A).

8    Section 19(5A) is straight forward and does not relevantly add anything to s 19(4A). Section 19(5B) provides that the Respondent must assess the matters set out in subsection (5C) in accordance with whichever of ss 22, 23, 24, 25, 27 and 30 are applicable in the particular case. Section 19(5C) then provides that:

The matters that the Commission must assess are:

(a)    the rate or rates at which the pension would have been payable from time to time during the assessment period; and

(b)    subject to subsection (6), the rate at which the pension is payable.

(Emphasis added.)

9    Section 19(5C) is important; it introduces the notion that the Respondent’s inquiry is restricted to the “assessment period”. “Assessment period” is defined in s 19(9) to mean the period commencing on the date on which the application under is received. That date was 31 March 2009. It will be necessary to return to the effect of the restriction of the inquiry under s 19(5C) to the assessment period.

10    After making an assessment under s 19(5C), s 19(5D) requires the Respondent to determine that a pension is payable at the rate assessed.

11    Section 19(6) applies where the Respondent concludes, pursuant to sub-s (5C), that a pension is payable at some time during the assessment period at a rate prescribed by s 23 or s 24. Then, subject to s 24A, the rate at which the pension is payable shall not be lower than the rate provided by whichever of those sections applied, or applied most recently, during the assessment period.

12    Mr Smith’s application was for an increase in his pension to the special rate of pension payable under s 24. For that reason, none of the other provisions listed in s 19(5B) are relevant. Section 24A is also not relevant for present purposes.

13    Section 24 appears in Div 4 which is entitled “Rates of pensions payable to veterans”. Section 24(1) grants an entitlement to a pension at the special rate in the following circumstances:

This section applies to a veteran if:

(aa)    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

(aab)    the veteran had not yet turned 65 when the claim or application was made; and

(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 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

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

14    There was no dispute that Mr Smith satisfied sub-s 24(1)(a). The AAT determined s 24(1)(b) in Mr Smith’s favour. The only issue in dispute was whether Mr Smith could satisfy s 24(1)(c) (or s 24(2)(b), considered below).

15    Section 24(1)(c) focuses on whether there are reasons other than war-caused injuries or diseases that prevented a veteran from continuing to undertake remunerative work that the veteran was undertaking. If a veteran satisfies that criterion – that the war-related incapacity alone has prevented the veteran from continuing to undertake the remunerative work he was undertaking, that is the end of the enquiry: Leane v Repatriation Commission [2004] FCAFC 83 at [18] citing Magill v Repatriation Commission [2002] FCA 244 at [8].

16    However, if a veteran has not been engaged in remunerative work, the veteran may still satisfy the alone criterion in s 24(1)(c) if the veteran satisfies the requirements of s 24(2)(b). Section 24(2)(b) has been described as an “ameliorative provision”: Magill at [8].

17    The wording of s 24(2)(b) is complex. Broken in to its constituent elements, it provides:

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

…

(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[:]

[(1)]    he or she has been genuinely seeking to engage in remunerative work,

[(2)]    … he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and …

[(3)]    that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage,

[then] 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.

(The numbers in [*] have been added and do not form part of the section.)

18    Before turning to its ameliorative effect, some aspects of the section should be noted. It operates when the veteran has not been engaged in remunerative work. Next, if the conditions are satisfied, it operates as a deeming provision. It creates a fiction – it treats a veteran not engaged in remunerative work as “having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking”.

19    Section 24(2)(b) operates to ameliorate the effect of s 24(1)(c) in two important ways:

1.    it extends the class of veterans entitled to make an application for a pension at the special rate to include veterans who have not been engaged in remunerative work; and

2.    it provides that the veteran’s war-caused injury or war-caused disease need not be the sole cause but must be a “substantial cause” of his or her inability to obtain remunerative work.

The AAT decision

20    The AAT determined that Mr Smith satisfied s 24(1)(b); Mr Smith was incapable of undertaking remunerative work for more than eight hours per week and this was alone due to his war-caused injury.

21    In relation to s 24(1)(c), the AAT posed and answered four questions drawn from the judgment of the Full Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5 (see [48] below). The first three of those questions are relevant for present purposes. The AAT stated at [17], [18], [21], [22], [23] and [45] of the AAT Decision:

Qu 1:    what was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c)?

Ans:    farmer; or electrician; or electrical fitter.

Qu 2:    is the veteran, by reason of the war caused injury or war caused disease, or both, prevented from continuing to undertake that work?

Ans:    Mr Smith is prevented from continuing to undertake that work by reason of his was-caused condition of PTSD.

Qu 3:    If the answer to question 2 is yes, is the war caused injury or war caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?

Ans:    Mr Smith’s physical injuries played an important role in his inability to continue to work, so the Tribunal finds that Mr Smith’s PTSD is not the only factor preventing Mr Smith from continuing to undertake his previous work.

22    In relation to s 24(2)(b), the AAT concluded Mr Smith’s attempts to obtain remunerative work had not occurred during the assessment period. The AAT therefore held Mr Smith did not satisfy s 24(1)(c) of the VE Act and was not eligible for payment of a pension at a special rate.

questions of law

23    Mr Smith’s appeal to this Court is restricted to a question of law: s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). Mr Smith raised four questions of law:

1.    Whether a failure by a veteran to take active steps during the assessment period to obtain remunerative work precludes a finding that he or she has been genuinely seeking to engage in remunerative work within the meaning of s 24(2)(b) of the [VE Act].

2.    Whether the veteran must establish that he is precluded by the war caused disease or injury alone from undertaking the full range of remunerative work of which the [AAT] concludes he might have been capable.

3.    Whether the expression “remunerative work that the veteran was undertaking” in s 24(1)(c) of the [VE] Act requires an analysis or identification of the nature and quality of the work that the veteran claims to have been able to undertake but for the war-caused disease or injury.

4.    Whether medical treatment for conditions unrelated to the war-caused injury or disease on which the veteran relies and which was received during a period when the veteran was engaging in remunerative work is relevant to a determination of whether the veteran was subsequently prevented by that war-caused injury or disease from engaging in remunerative work.

I will address question 1 separately and then address the remaining questions.

QUESTION 1

24    Question 1 relates to s 24(2)(b) of the VE Act: see [17] above.

25    The question of law turns on the construction of s 24(2)(b) and, in particular, the requirement that a veteran demonstrate that he or she has been “genuinely seeking to engage in remunerative work”. The express terms of s 24(2)(b) are important. As noted above, it relevantly provides:

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

…

(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[:]

[(1)]    he or she has been genuinely seeking to engage in remunerative work,

[(2)]    … he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and …

[(3)]    that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage,

[then] 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.

(The numbers in [*] have been added and do not form part of the section.)

26    The AAT interpreted the phrase “genuinely seeking to engage in remunerative work” as requiring that Mr Smith demonstrate he or she had been genuinely seeking work during the assessment period.

27    The AAT observed at [54] that:

there is no material before the Tribunal to demonstrate that Mr Smith made a real effort to obtain work at any time during the assessment period … the Tribunal finds that during the assessment period Mr Smith has not been genuinely seeking to engage in remunerative work, so he cannot satisfy s 24(2)(b) of the [VE Act] …

28    Mr Smith submitted that, by restricting itself to a consideration of steps taken by him during the “assessment period”, the AAT erred in its construction of s 24(2)(b).

29    The AAT relied upon the decision in Leane. In that case, the Full Court stated at [32] that:

As the Commission properly conceded, if the Veteran had satisfied the Tribunal that he had, at any time during the assessment period, complied with the requirements of s 24(2)(b) (including the requirement that he had been genuinely been seeking to engage in remunerative employment) then, at least from that time, the Veteran would have been entitled to a pension at the special rate, notwithstanding that at some later time he may not have established that he was genuinely seeking to engage in remunerative employment.

30    Leane was a case, similar to the present, where a veteran claimed an entitlement to a pension at the special rate. Mr Leane suffered from several ailments (including PTSD), some of which were war-caused, in the relevant sense, and some of which were not. The issue was whether Mr Leane satisfied s 24(1)(c). Mr Leane put forward two alternatives (Leane at [14]), either:

1.    he satisfied s 24(1)(c) because the “only factor or factors” preventing him from continuing to undertake “remunerative work” was his incapacity from PTSD; or

2.    he satisfied s 24(2)(b) because he had engaged, and had sought to engage, in remunerative work and his incapacity from PTSD was the “substantial cause” of his inability to obtain remunerative work.

31    The AAT found that Mr Leane could not satisfy s 24(1)(c) because there were other non-war caused factors which contributed to his inability to undertake remunerative work: Leane at [15]-[16]. That finding was not raised on appeal to the Full Court: Leane at [22].

32    Turning to s 24(2)(b), the Full Court held at [28] that:

The primary judge interpreted the word “seeking” to mean “attempting to” or “trying to”. This may be accepted. Such a meaning involves something more than a mere wish or hope. It requires that a claimant “do” something. On the other hand the word “genuinely” is used in the sense of “sincerely” or “honestly”. It involves an assessment of the subjective intention or purpose of a claimant. What is required is that the claimant honestly be trying to engage in remunerative work.

33    Following its consideration of the requirements of the words “genuinely” and “seeking”, the Full Court noted at [30] to [32] that:

We note, for completeness, that it was unnecessary for the veteran to satisfy the tribunal that he had been genuinely seeking remunerative employment at all times during the assessment period. Under s 19(5C) of the Entitlements Act the Tribunal was required to assess “the rate or rates” at which the pension would have been payable “from time to time” during the assessment period and, “subject to subsection (6) the rate at which the pension is payable”. Section 19(6) provides:

(6)    Where the Commission has, pursuant to subsection (5C), assessed that the pension was payable at some time during the assessment period at the rate provided by section 23 or 24 then, subject to section 24A, the rate at which the pension is payable shall not be lower than the rate provided by whichever of those sections applied, or applied most recently, during the assessment period.

The effect of these provisions in this case is that the Tribunal was required to determine whether a special pension was payable at any time during the assessment period, being the period starting, in this case, November, 1996, and ending when the claim for application is ultimately determined: s 19(9) of the Entitlements Act. If a special pension was payable at any time during this period then the tribunal was required to determine that the special pension was payable from that time, notwithstanding that at some subsequent time the veteran might not have been able to establish that he would be entitled to a special pension.

As the Commission properly conceded, if the veteran had satisfied the Tribunal that he had, at any time during the assessment period, complied with the requirements of s 24(2)(b) (including the requirement that he had been genuinely been seeking to engage in remunerative employment) then, at least from that time, the veteran would have been entitled to a pension at the special rate, notwithstanding that at some later time he may not have established that he was genuinely seeking to engage in remunerative employment.

(Emphasis added.)

34    What then is the proper construction of s 24(2)(b)? It is a safety net provision. It deals with veterans who, following military service, cannot work: Hendy v Repatriation Commission (2002) 72 ALD 112 at [55] (findings in relation to s 24(2)(b) not disturbed on appeal, see Repatriation Commission v Hendy (2002) 76 ALD 47). The opening words of the section make that clear – it applies to a veteran “who has not been engaged in remunerative work”. As in Hendy, this case does not present as a case of a kind which s 24(2)(b) was intended to deal with: Hendy at [55] and Hall v Repatriation Commission (1994) 33 ALD 454 at 461-2; see also comments in Giesen v Repatriation Commission (2005) 87 ALD 347 and Baljas v Repatriation Commission [2009] FCA 171. Mr Smith had a work history and was therefore a person who needed to satisfy s 24(1)(c). Indeed, the distinction in language between s 24(1)(c) and s 24(2)(b) supports that conclusion. Section 24(1)(c) refers to “remunerative work that the veteran was undertaking”. Section 24(2)(b) simply refers to “remunerative work”. As Spender J said in Hall at 461, that phrase in s 24(2)(b) would extend to remunerative work that he or she would, but for the incapacity, be continuing so to seek. It cannot refer to work the veteran has actually undertaken because the section is directed to veterans who have not been engaged in remunerative work. If that is right (and I consider that it is), then it is not surprising that Spender J in Hall accepted at 461 that evidence which shows that a veteran who may not be able to seek employment but indicated a willingness to accept work if any could be found, satisfied the “genuinely seeking” requirement of s 24(2)(b): see also Hendy at [52].

35    At first blush that conclusion seems harsh. It is not. It is consistent with the express words of the statute, the scheme of the VE Act and the relevant extrinsic materials.

36    At the time of the introduction of s 24(2)(b) in the VE Act, when the relevant Bill (the Veterans’ Entitlements Bill 1985 (Cth)) was read for a second time, the Minister for Aboriginal Affairs said the following regarding the payment of a pension at the special rate (Commonwealth, Parliamentary Debates, Legislative Assembly, 16 October 1985, 2,180):

Part II of the VEB will also continue the effect of the recent legislative amendments to clarify eligibility for payment of pension at the intermediate or special-TPI-rate. The TPI rate pension was designed for severely disabled veterans of a relatively young age who could never go back to work and could never hope to support themselves or their families or put away money for their old age. It was never intended that the TPI rate would become payable to a veteran who, having enjoyed a full working life after war service, then retired from work, possibly with whatever superannuation and other retirement benefits are available to the Australian work force.

37    The “recent legislative amendments” to which the Minister was referring were the amendments introduced by the Repatriation Legislation Amendment Bill 1985 (Cth) earlier in 1985. Those amendments were introduced to address a concern in 1985 that the test for the special or TPI rate introduced by the Australian Soldiers Repatriation Act 1920 (Cth) was being interpreted too widely. In introducing that 1985 amendment, the Acting Minister for Veterans’ Affairs said (Commonwealth, Parliamentary Debates, 16 May 1985, 2,645-6):

Since 1920, there has been a special rate of disability pension payable in circumstances where, because of total and permanent incapacity resulting from war service, a veteran has been unable to resume or to continue in civil employment. The special or TPI rate pension was designed for severely disabled veterans of a relatively young age who could never go back to work and could never hope to support themselves or their families or put away money for their old age. It was never intended that the TPI rate would become payable to a veteran who, having enjoyed a full working life after war service, then retires from work possibly with whatever superannuation or other retirement benefits are available to the Australian work force. Determining authorities have found the application of the present legislative provisions difficult because the provisions, unchanged since 1920, contain outmoded and imprecise terms. The amendments clarify the eligibility criteria and make it clear that to qualify for a TPI pension a veteran must be eligible for the 100% general rate pension. In addition, the TPI rate pension can become payable only when a veteran is totally and permanently disabled by accepted disabilities and is thereby precluded from continuing to engage in remunerative work. If a person has had the usual span of a working life or has retired voluntarily or has left employment for reasons other than accepted disabilities, a TPI pension is not payable. It would be in only very rare cases that any veteran beyond the normal retirement age could be eligible for this pension. Special provision is made by the Bill to cover veterans who are under 65 years of age, are unemployed, and are genuinely seeking to engage in remunerative work.

38    It is instructive to refer back to the Second Reading Speech which accompanied the legislation introducing the special rate in 1920: Commonwealth, Parliamentary Debates, Senate, 24 March 1920, 649. That speech makes clear that the special rate was originally intended to assist severely wounded veterans who could never be expected to obtain remunerative work following their return from service.

39    During the course of argument, Counsel for the Respondent submitted that the Respondent took the view that because s 24(2)(b) was ameliorative, if a veteran satisfied the section on its terms, whether or not the veteran had worked since returning from service, the veteran should be entitled to the benefit of it. The policy which underpins that submission is understandable. The difficulty is that it appears to be inconsistent with the express words of s 24(2)(b) which state that the provision applies “where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work” (emphasis added).

40    Moreover, the legislative history and the extrinsic materials (see [36]-[38] above), reinforce the view that s 24(1)(b) applies only to a veteran “who has not been engaged in remunerative work” and that this case does not present as a case of a kind which s 24(2)(b) was intended to deal with. In light of the findings made above, there is no identified error of law.

41    Even if s 24(2)(b) was intended to extend to a veteran with a work history (a view I do not accept), there is no identified error of law. There is no identified error of law because, although it is unnecessary for a veteran to satisfy the AAT that he or she had been genuinely seeking to engage in remunerative work at all times during the assessment period (see Leane at [32]), the scheme of the VE Act requires a veteran to satisfy the AAT that he or she had, at some time during the assessment period, complied with the requirements of s 24(2)(b) (including the requirement that he or she had been genuinely seeking to engage in remunerative work).

42    The only period before the AAT was the assessment period. It starts when the application is made and ends when the application is determined: s 19(9). If at any point during the assessment period, the conditions for a pension at the special rate are satisfied, the veteran receives a pension at that special rate even if, later in the assessment period, he or she would not otherwise have satisfied the conditions: s 19(5C). The fact that a veteran must satisfy the AAT that he or she had been genuinely seeking remunerative work during the assessment period is a necessary requirement – it ensures the veracity of the scheme. It is not onerous: see [34] above and Hall at 461-2.

43    In relation to Mr Smith, the AAT found that he failed to satisfy that requirement - that he had genuinely been seeking to engage in remunerative work at some time during the assessment period. There was no identified error of law.

questions 2, 3 AND 4

44    Questions 2, 3 and 4 relate to s 24(1)(c) of the VE Act: see [13] above. The grounds were stated to be:

2.    The Tribunal failed to undertake any analysis or identification of the remunerative work which the applicant was actually prevented from undertaking.

3.    The Tribunal failed to consider the nature and quality of the remunerative work that the veteran claimed to be unable to undertake by reason alone of the PTSD which was the war caused disease or injury on which he relied.

4.    As a result of the error identified in 2 above the Tribunal was led into the further error of taking into account medical evidence that was irrelevant to the remunerative work that the veteran would have been capable of undertaking but for the PTSD alone.

Questions 2 and 3

45    Question 2 concerns the language of s 24(1)(c) and, in particular, the phrase “remunerative work that the veteran was undertaking”. Mr Smith submitted that the question of law was “[w]hether the veteran must establish that he is precluded by the war caused disease or injury alone from undertaking the full range of remunerative work of which the Tribunal concludes he might have been capable”.

46    Question 3 also concerns the phrase “remunerative work that the veteran was undertaking” in s 24(1)(c). The question of law was:

Whether the expression “remunerative work that the veteran was undertaking” in s 24(1)(c) of the [VE] Act requires an analysis or identification of the nature and quality of the work that the veteran claims to have been able to undertake but for the war-caused disease or injury.

47    Both of these questions are of statutory interpretation.

48    Before turning to consider the AAT’s approach and consideration of the questions, some principles are worth restating:

1.    In applying s 24(1)(c), the task is “to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well”: Cavell v Repatriation Commission (1988) 9 AAR 534 at 539; Repatriation Commission v Hendy (2002) 76 ALD 47 at [37] and Forbes v Repatriation Commission (2000) 101 FCR 50 at [32].

2.    In Flentjar at 4-5 Branson J propounded four questions designed to address the s 24(1)(c) issue:

1.    What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the [VE] Act?

2.    Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?

3.    If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?

4.    If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?

3.    Consideration of the “remunerative work” is not limited to the last job undertaken by the veteran; regard should be had to the types of work performed by the veteran: Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225 and Repatriation Commission v Hendy (2002) 76 ALD 47 at [36].

4.    The phrase “remunerative work” is not focused upon the particular tasks and duties involved in specific jobs. In identifying the relevant “remunerative work”, the decision-maker must look “to the type of substantive work undertaken by the veteran at a higher level of generality”: Repatriation Commission v Butcher (2007) 94 ALD 364 at [7]; Banovich v Repatriation Commission (1986) 69 ALR 395 at 402 and Starvcevich at 225.

49    Mr Smith gave evidence to the AAT that his last remunerative work had been working in the family’s feedlot business and that he ceased that work in 2006. His complaint was that the AAT failed to undertake any analysis or identification of the remunerative work that he was prevented from undertaking. Mr Smith accepted that the AAT identified the occupations previously undertaken by him but submitted that the AAT failed to identify the nature of that work. In support of that contention, Mr Smith referred the Court to [45] of the AAT Decision:

Taking all relevant matters into account the Tribunal is reasonably satisfied that Mr Smith’s physical injuries played an important part in his inability to work, so the Tribunal finds that Mr Smith’s PTSD is not the only factor preventing him from continuing to undertake his previous work …

50    Mr Smith’s complaints were that:

1.    it is not clear from the AAT Decision which physical injuries the AAT considered prevented him from working; and

2.    the AAT failed to find what work had been lost to Mr Smith by reason of his physical injuries.

In my view, these complaints should be dismissed.

51    The AAT had before it evidence that the last job performed by Mr Smith was associated with the feedlot business he established with his wife and son in 2003. The AAT also had before it evidence of the other jobs performed and positions occupied by Mr Smith prior to 2003; including a position at the Ford Motor Company, working in a dairy, labouring for the State Rivers and Waters Commission, tree lopping with the Forests Commission, working at a timber mill, work as an electrical contractor (for number of different employers, including a period of self-employment), operating a wool and beef farming business, being an electrical fitter mechanic. These findings cannot be and are not disputed.

52    The AAT identified the types of remunerative work undertaken by Mr Smith as “farmer; or electrician; or electrical fitter”: see [21] above and [21] of the AAT Decision. The AAT addressed the correct question – what are the types of remunerative work undertaken by Mr Smith: see [48] above. The AAT correctly considered the “types of employment” undertaken rather than the particular duties in which Mr Smith had been engaged.

53    The correctness of that construction of s 24(1)(c) and, in particular, the phrase “remunerative work that the veteran was undertaking” may be tested by posing the question Mr Smith would have had the AAT ask – what were the particular duties in which Mr Smith had been engaged? If that question had been asked, the AAT would have repeated the error identified by the Full Court in Butcher at [7]. That is not the question posed by s 24(1)(c).

54    Mr Smith placed considerable reliance on the decision in Repatriation Commission v Connell (2011) 197 FCR 228. Connell concerned s 23(1)(c) of the VE Act. Section 23(1)(c) (and, by implication, s 24(1)(c)), required consideration of the “nature and quality” of the work. The Full Court did not say that an analysis of the tasks and duties performed as part of the “remunerative work” was required. Rather, the Full Court directed attention to the capacity in which the work was performed at [28]:

A person who works as a painter on a full-time basis but who, due to incapacity, can now only do that work on an intermittent or part-time basis is not continuing to perform the same remunerative work. The restricted nature of the work gives it an entirely different character. Being able to perform work without restriction because of illness or injury is a situation far removed from being able to perform the same work, but with restrictions due to illness or injury. Each is remunerative work of the same type, in this case, painting. But it is not the same remunerative work considering the nature and quality of the work.

Mr Smith’s evidence was that he had ceased to perform remunerative work in 2006. The issue considered by the Full Court in Connell does not arise in this matter.

55    Mr Smith has not identified any error of law. These complaints should be rejected.

Question 4

56    Question 4 relates to the AAT’s consideration of medical evidence related to Mr Smith’s non-war related ailments which were said to have affected his ability to obtain and undertake remunerative work. Mr Smith submitted the AAT took irrelevant considerations into account because those matters were not “relevant to a determination of whether the veteran was subsequently prevented by that war-caused injury or disease from engaging in remunerative work”. In particular, Mr Smith submitted that “[a]lmost the entirety of the treatment and complaints considered by the [AAT] predated the commencement of the assessment period and occurred when [Mr Smith] was in fact working”.

57    The AAT’s consideration of the medical evidence related to Mr Smith’s non-war related ailments was said by Mr Smith to be found at [26], [27], [28], [29], [30], [31], [32], [33], [34], [35], [38], [41], [42], [43] and [44] of the AAT Decision (the Hypothetical Considerations). The AAT adopted the questions identified by Branson J in Flentjar: see [48] above. The Hypothetical Considerations are contained in the part of the AAT Decision which addresses the third question posed by Branson J.

58    Section 24(1)(c) requires, in part, that the AAT undertake a hypothetical exercise. What would the veteran have done but for the war-caused incapacity?: Repatriation Commission v Smith (1987) 15 FCR 327 at 337 and Byrne v Repatriation Commission (2001) 33 AAR 410 at [10]-[11]. If the answer is the same, then that war-caused incapacity cannot be said to have been “the reason, rather than merely a reason, for the veteran’s inability to engage in the remunerative work which the veteran had previously done”: Willis v Repatriation Commission (2012) 202 FCR 323 at [24]. That hypothetical exercise necessarily requires a consideration of the other circumstances which might affect the veteran’s ability to obtain remunerative work. The AAT will only have fallen into error in considering what have been identified as the Hypothetical Considerations, if it can be shown that the AAT was prohibited from considering one or more of them: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. The considerations to be taken into account, and not to be taken into account, by a decision-maker are determined by reference to any consideration expressly referred to in the statute or, if none are stated, by implication from the subject-matter, scope and purpose of the statute: Peko-Wallsend at 39-42; Abebe v Commonwealth (1999) 197 CLR 510 at [195] and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [74].

59    What would Mr Smith have done without the war-caused PTSD? The Respondent submitted that on the material before the AAT and having removed the war-caused PTSD, the hypothetical Mr Smith:

1.    was at the date of the application for a special rate of pension, a 60 year old who was a qualified electrician with experience running farming enterprises (AAT Decision at [5] to [8]);

2.    sustained physical injuries in 1982, resulting in the amputation of his left leg and serious injury to his right knee and ankle (AAT Decision at [6]) but who returned to remunerative work five years later (AAT Decision at [7]);

3.    from 1997, experienced difficulties with mobility and balance and became tired quickly (AAT Decision at [24]);

4.    in 2000, had been prescribed various medications for his leg problems including Endone and anti-inflammatories (AAT Decision at [35] and [43]);

5.    as at 2002, was having increasing difficulty getting to work for reasons including his leg injuries (AAT Decision at [28]);

6.    as at 2003, found that his leg was getting sorer and sorer (AAT Decision at [29]) and that his physical disabilities impacted upon his mobility (AAT Decision at [31]);

7.    as at 2005, reported problems with walking due to the above knee amputation of his left leg and limited mobility of his right leg (AAT Decision at [32]);

8.    as at 2007, had been referred to a specialist for right groin and upper thigh pain (AAT Decision at [38]);

9.    as at 2008, had osteoarthritis of the right knee and chronic pain requiring physiotherapy (AAT Decision at [38]);

10.    as at 2009, was referred for occupational therapy assessment for a wheel chair and possible bathroom rails in his home (AAT Decision at [38]).

60    Unsurprisingly, the AAT was satisfied to the required standard that Mr Smith’s “physical injuries” (the above knee amputation of his left leg and the injuries to his right knee and ankle) “played an important part in his inability to continue to work” and so found that the war-caused PTSD was not “the only factor preventing him from continuing to undertake his previous work”: AAT Decision at [45]. The previous work was identified at [21] by the AAT as “farmer; or electrician; or electrical fitter”. A careful reader will notice that the particular “physical injuries” (ie, the above knee amputation of his left leg and the injuries to his right knee and ankle) and the “work” do not appear in [45] of the AAT Decision. The fact that the concluding paragraph does not specifically identify the “physical injuries”, or the “work” which Mr Smith was unable to continue to undertake, is unfortunate.

61    However, the AAT Decision is not to be construed “minutely and finely and with an eye keenly attuned to the perception of error”: Politis v Federal Commissioner of Taxation (1988) 16 ALD 707 at 708. The Court should exercise restraint when reviewing decisions of the AAT: Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (NSW) (1980) 3 ALD 30 at 49; Politis at 708 and Federal Commissioner of Taxation v Swift (1989) 18 ALD 679 at 694.

62    The Court must approach its task “sensibly and in a balanced way, not reading passages from the reasons for decision in isolation from others to which they may be related or taking particular passages out of the context of the reasons as a whole”: Politis at 708. The AAT is required by s 43(2b) of the AAT Act to include in its written reasons for decision “its findings on material questions of fact and a reference to the evidence or other material on which those findings were based”. In the present case, that has occurred. For those reasons, I reject Mr Smith’s submissions that the AAT failed to properly apply s 24(1)(c) of the VE Act.

63    That leaves the question raised earlier – what about the Hypothetical Considerations referred to by Mr Smith? The considerations identified in [28], [29], [31], [32], [35], [38] and [43] of the AAT Decision have been addressed in the hypothetical at [59] above. Having regard to the subject-matter, scope and purpose of the statute and, in particular, the question posed by s 24(1)(c), none of those considerations was irrelevant.

64    The remaining considerations - [26], [27], [30], [33], [34], [41], [42] and [44] of the AAT Decision - were said by Mr Smith to refer to irrelevant considerations, “namely medical treatment undergone by [Mr Smith] and complaints of symptoms to doctors during a period when he was in fact engaged in remunerative work”.

65    Before turning to consider the remaining paragraphs, some general matters must be stated. The mere fact that a paragraph refers to “medical treatment undergone by [Mr Smith] and complaints of symptoms to doctors during a period when he was in fact engaged in remunerative work” does not of itself make the consideration irrelevant. As the paragraphs referred to in the hypothetical reveal, the injuries and symptoms were significant and unfortunately showed deterioration. Having regard to the subject matter, scope and purpose of the VE Act and, in particular, the question posed by s 24(1)(c), those considerations were not irrelevant. Second, not all of the paragraphs did, in fact, contain material of the kind complained of and, third, it should not be assumed that all of those matters were in fact taken into account by the AAT. The relevant paragraph (AAT Decision at [45]) stated that the AAT was “[t]aking all relevant matters into account …” (emphasis added). For the purposes of addressing this aspect of the case, I have however assumed without deciding that all of the matters listed were in fact taken into account by the AAT.

66    First, [26] and [42] of the AAT Decision concerned a report prepared in November 2003 by Mr Smith’s General Practitioner for the Department of Veterans’ Affairs (DVA)·which stated that the injuries to Mr Smith’s legs were the medical conditions that reduced his ability to work. The stated reason for Mr Smith then leaving his last occupation was that standing up was a problem with his legs, his legs became painful with longer than eight hour days being too stressful on the legs. Again, having regard to the subject matter, scope and purpose of the VE Act and, in particular, the question posed by s 24(1)(c), that consideration was not irrelevant.

67    Next, [27] of the AAT Decision. That paragraph does not describe “medical treatment undergone by [Mr Smith] and complaints of symptoms to doctors during a period when he was in fact engaged in remunerative work”. It needs to be read with [28]. That is addressed in the hypothetical.

68    Next, [30], [31], [32] and [41] of the AAT Decision. Again, these paragraphs do not precisely answer Mr Smith’s description. What [30], [31] and [41] record, however, are part of the answers given by Mr Smith in a Lifestyle Questionnaire lodged in December 2003 with the DVA. The paragraphs recorded that Mr Smith had stated in the form that he ceased work in 2003 due to ill-health and that his disabilities stopped him working because “[he] could not participate fully in management discussions and [he] also [has] a physical disability” and that his “physical disabilities prevent … mobility”. The consideration in [32] has been addressed in the hypothetical and concerned the answers given by Mr Smith in December 2005 to the DVA. Having regard to the subject matter, scope and purpose of the statute and, in particular, the question posed by s 24(1)(c), those considerations were not irrelevant.

69    Next, [33] and [34] of the AAT Decision record the evidence given by Mr Smith to the AAT. That evidence included the 1982 injuries and the affect on his mobility. That consideration is not irrelevant: see also [59(2)] above.

70    Finally, [44] of the AAT Decision. It refers to Mrs Smith’s application for a carer allowance in 2006. The paragraph records that although the application was lodged based on Mr Smith’s psychological issues, it was in fact assessed by Centrelink in 2006 and 2008 and granted by reference to Mr Smith’s mobility issues and his psychiatric conditions and not the latter alone. Again, having regard to the subject matter, scope and purpose of the statute and, in particular, the question posed by s 24(1)(c), that consideration was not irrelevant.

conclusion

71    For those reasons, the proceeding is dismissed. The Applicant is ordered to pay the Respondent’s costs of the proceeding, such costs to be taxed in default of agreement.

Associate:

Dated:    19 September 2012