FEDERAL COURT OF AUSTRALIA

Beezley v Repatriation Commission [2015] FCA 78

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1    The applicant (Mr Beezley) is a veteran who was engaged in operational service in Vietnam between November 1967 and July 1968. He has a number of war-caused disabilities, including Post-Traumatic Stress Disorder (PTSD).

2    Mr Beezley was receiving a pension at 90% of the general rate of pension available pursuant to s 22 of the Veterans’ Entitlements Act 1986 (Cth) (VE Act). Mr Beezley applied for a pension at the special rate on the basis that he satisfied the criteria specified by s 24(2A) of the VE Act. His application was denied by the respondent (Commission).

3    On the review of that denial, the Administrative Appeals Tribunal (Tribunal) determined that Mr Beezley was not entitled to a pension at the special rate and affirmed the decision of the Commission. The Tribunal’s decision (published as Beezley v Repatriation Commission [2014] AATA 495) (decision) is the subject of this appeal brought pursuant to s  44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

4    For the following reasons, Mr Beezley’s appeal must be dismissed.

Background facts

5    Before Mr Beezley’s enlistment, he was employed as an apprentice electroplater. In due course, he became a manufacturing supervisor. Subsequent to Mr Beezley’s discharge from service he returned to his former employment and continued as a manufacturing supervisor until 1977.

6    For two and a half years commencing in or around 1977, Mr Beezley was a sales executive with a chemical company. In 1980, Mr Beezley left that employment and acquired an electroplating business trading as “All-Brite Plating.”

7    There is tension between the Tribunal’s finding at [3] that Mr Beezley was in self-employment after he acquired the All-Brite business and its finding that the business was, at least by May 2011, conducted by a corporation.

8    It appears that on Mr Beezley’s acquisition of the business “All-Brite Plating,” he personally traded as “All-Brite Plating,” or in any event that the business “All-Brite Plating” was not carried on by a corporation. In 1991, All-Brite Plating Pty Ltd (All-Brite) was incorporated and commenced to carry on the electroplating business. Despite referring to Mr Beezley as being self-employed, the Tribunal proceeded on the undisputed basis that, at least by May 2011, Mr Beezley was an employee of All-Brite and, with his wife, one of All-Brite’s two directors.

9    At its peak, All-Brite’s business operated out of six factories and had 35 employees. The business declined substantially during the 2011 financial year.

10    In the first week of May 2011, Mr Beezley was paid his monthly salary in advance.

11    On 11 May 2011, All-Brite entered into a creditors’ voluntary winding-up and a liquidator (liquidator) was appointed.

12    The extent to which Mr Beezley had any involvement with All-Brite after 11 May 2011 and in particular after his 65th birthday on 23 May 2011 was a crucial matter in dispute. I shall say more about that shortly.

13    On 31 May 2011, Mr Beezley applied for a pension at the special rate.

The Tribunal’s decision

14    The Tribunal noted that Mr Beezley had turned 65 before making an application for a pension at the special rate. Accordingly, it was s 24(2A) of the VE Act (and not s 24(1)) that fell to be considered. The Tribunal observed that s 24(2A)(d) of the VE Act required that the veteran be, “because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application.” The Tribunal discussed the phrase “remunerative work” and the phrase “last paid work” in the context of the definition of the former phrase found in s 5Q of the VE Act.

15    The Tribunal then observed that s 24(2A)(f) of the VE Act requires that, “the veteran was undertaking his or her last paid work after the veteran had turned 65.” At [26], the Tribunal identified that Mr Beezley had advanced two reasons why he satisfied s 24(2A)(f), being:

(a)    the company paid him salary for one month in advance from the first week of May; and

(b)    he worked with the liquidator assisting in the winding up of the company.

16    The Tribunal was satisfied that Mr Beezley had received his monthly salary in advance in the first week of May 2011 (at [27]). The Tribunal then went on to consider when it was that Mr Beezley ceased to undertake work for All-Brite.

17    Though that question was fundamental to the determination of the matter, the Tribunal’s reasons are somewhat opaque. There is inconsistency in the reasoning. Also, in some places words are italicised apparently as indicating that they are used in the VE Act (e.g., at [36]), and other places to indicate emphasis (e.g., at [14], [16]). That made it difficult to determine whether a particular italicisation was intended to indicate that the word or phrase in consideration was a statutory word or phrase, or whether instead the word or phrase was merely being emphasised. The difficulty extends to the italicisation of “work” at [34] and [38] of the decision.

18    A close analysis of the decision is required to discern the Tribunal’s findings. Reading the decision as a whole and in context, I consider that the Tribunal made the following findings:

(a)    with the permission of an employee of the liquidator, Mr Beezley worked in his capacity as an electroplater to complete outstanding orders. That work was completed no later than 19 May 2011 (at [28]);

(b)    the Tribunal regarded the salary paid in advance in the first week of May 2011 as compensation or reward for work that it was anticipated (at a time prior to All-Brite being placed into liquidation) would be undertaken by Mr Beezley for All-Brite (at [27]);

(c)    however, Mr Beezley did not perform any work for All-Brite after 19 May 2011 and had no entitlement to remuneration after that date. Monies paid to him in advance were not recompense or reward for any work actually done between 19 May 2011 and the first week of June 2011 (at [30]);

19    The third finding required the Tribunal to consider Mr Beezley’s contention that he worked (for the purposes of s 24(2A) of the VE Act) after he turned 65 because he “worked, with the liquidator assisting in the winding up of the company, including attending the creditors meeting on 26 May 2011” (at [32]).

20    The Tribunal regarded that contention as having no merit. On my reading of the Tribunal’s reasons, it came to that determination not because it lacked satisfaction that assistance had been provided, but because it considered that those activities were not “work.” Again, reading the decision as a whole it seems to me that the Tribunal’s reasoning was essentially as follows.

21    First, Mr Beezley ceased to be employed as an electroplater on 19 May 2011, and ceased to be employed or engaged to carry out directorial duties on 11 May 2011. Thereafter, in so far as Mr Beezley had any involvement with All-Brite, that involvement was confined to assisting the liquidator in the winding-up of All-Brite including by attending the creditors’ meeting on 26 May 2011.

22    Second, the Tribunal had doubt as to whether, in regard to Mr Beezley’s work as an electroplater, he was entitled to be remunerated beyond 11 May 2011 (at [29]). Ultimately, though, the Tribunal seems to have taken the view that Mr Beezley was entitled to be paid to 19 May 2011 for his work in regard to completion of outstanding orders (at [29] and [41]).

23    Third, and importantly, the Tribunal found that Mr Beezley had no entitlement to be paid, nor was he in fact paid, for assisting the liquidator (at [34]). That was a finding reached on the basis of the liquidator’s evidence that Mr Beezley was not employed by All-Brite after the date of the liquidator’s appointment (11 May 2011), that Mr Beezley was not paid a salary after that date, and that Mr Beezley had no further involvement with All-Brite after 11 May 2011 aside from meeting his obligations under s 530A Corporations Act 2001 (Cth) to assist the liquidator (at [33]).

24    The Tribunal also set out (at [40]) the following propositions:

(a)    that the Corporations Act 2001 (Cth) did not permit remuneration for work as a director after 11 May 2011; and

(b)    that Mr Beezley could not have worked as director of a company in liquidation.

25    Summarising, the Tribunal asked itself two questions:

(a)    when did Mr Beezley cease to be employed to carry out his electroplating duties and his directorial duties?; and

(b)    when did Mr Beezley’s entitlement to remuneration cease?

26    It answered those questions, respectively, as follows:

(a)    Mr Beezley ceased to be employed to carry out electroplating duties on 19 May 2011 and ceased be employed to carry out directorial duties on 11 May 2011; and

(b)    the salary paid in advance was not remuneration for work done after 19 May 2011. The monies received in the first week of May 2011 were, so far as the period 19 May 2011 to the first week of June 2011 was concerned, monies paid in anticipation for work that was never performed.

27    The substance of the Tribunal’s factual findings is encapsulated in summary at [43(i)] of its decision, where the Tribunal recorded its conclusion that Mr Beezley does not satisfy paragraph (d) of s 24(2A):

…because his last paid work as a director ceased on 11 May 2011 and as an electroplater on 19 May 2011. Any work after that date was not paid work and was not work undertaken [as] a director or electroplater.

28    The Tribunal further addressed the criteria relevant to paragraphs (e), (g) and (f) (again) in a single paragraph (at [43]). Given the nature of the grounds pressed on the appeal, it is not necessary that I further outline the approach taken by the Tribunal.

Relevant legislation

29    Part II Division 4 of the VE Act is entitled, “Rates of pensions payable to veterans.” Its scheme is, in broad, to require the Repatriation Commission to pay a pension to a veteran who has become incapacitated from a war-caused injury, war-caused disease, or both. That pension will be payable at the general rate under s 22, the intermediate rate under s 23, or the special rate under s 24.

30    In Repatriation Commission v Connell (2011) 197 FCR 228 at [10], Marshall, Downes, and Bromberg JJ explained the special rate as follows:

The Special Rate is sometimes referred to as the Totally and Permanently Incapacitated pension or the “TPI” pension. It is, broadly speaking, payable to a veteran who, because of total and permanent incapacity resulting from war service, has been unable to resume or continue employment. …

31    Subsection (2A) applies to a veteran who has turned 65 when he or she makes a claim for a pension or an application for an increase in the rate of the pension that he or she is receiving. Mr Beezley is such a veteran. Relevantly, s 24(2A) provides:

24    Special rate of pension

…

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

(a)    the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and

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

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

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

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

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

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

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

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

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

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

32    The phrase “remunerative work,” which appears in s 24(2A)(d), is defined in s 5Q of the VE Act, as follows:

remunerative work includes any remunerative activity.

33    The appeal to this Court is governed by s 44(1) of the AAT Act, which provides, relevantly that a party to a proceeding before the Tribunal may appeal to this Court, on a question of law, from any decision of the Tribunal.

Appeal on a question of law

34    As will become apparent, whether Mr Beezley’s appeal raises a question of law which has enlivened this Court’s jurisdiction to review the Tribunal’s decision is critical to the disposition of this appeal.

35    The distinction between a question of law and a question of fact is notoriously elusive. This is significant, of course, because the scope of an appeal brought pursuant to s 44(1) of the AAT Act does not render findings of fact made by the Tribunal susceptible to challenge unless the manner of their making raises an error of law: Price Street Professional Centre Pty Ltd v Commissioner of Taxation (2007) 243 ALR 728 at [22] (Kenny J). The position was explained by Brennan J in Waterford v Commonwealth (1987) 163 CLR 54 at 77, as follows:

The error of law which an appellant must rely on to succeed must arise on the facts as the AAT has found them to be or it must vitiate the findings made or it must have led the AAT to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact.

36    An instance of a vitiated factual finding is one that is supported by no evidence. But, it bears repetition, “… there is no error of law simply in making a wrong finding of fact. Even if the reasoning whereby the court reached its conclusion of fact were demonstrably unsound, that would not amount to an error of law”: Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 at [34] (Sundberg, Emmett and Finkelstein JJ).

37    So, it is insufficient for the purposes of establishing an error of law to show that other findings were available. However, “… the making of findings and the drawing of inferences in the absence of evidence is an error of law”: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6 (Mason CJ) (emphasis added). The corollary is that if there is some evidence to support a finding of fact, no error of law will have been committed. Accordingly, as Goldberg J said in Parks Holdings Pty Ltd (t/as Gladstone Chemicals) v Chief Executive Officer of Customs (2004) 81 ALD 365 at [62]:

The tribunal is the ultimate determiner of the facts and it should only be in exceptional cases, where there is a clear case that there was no evidence to support a particular finding and conclusion, that the court should undertake that exercise. If there be evidence supporting the tribunal’s findings or conclusions, then the court should resist the temptation to consider the evidence going the opposite way for the purpose of establishing that there was no evidence upon which a finding could have been made.

consideration

38    By his Notice of Appeal, Mr Beezley identified five questions of law. Each question was accompanied by a corresponding ground of appeal. At the outset of the hearing, I raised with Mr Beezley’s solicitor Mr De Marchi, my view that the submissions filed lacked clarity and also travelled well beyond the grounds of the appeal specified in Mr Beezley’s Notice of Appeal.

39    I informed Mr De Marchi that I would consider those questions of law said to ground the appeal which were identified with the clarity and precision necessary for the Court to be able to appreciate the case being advanced. Ultimately, Mr Beezley’s case was confined to what is essentially one primary ground and a second consequential ground.

40    By his primary ground, Mr Beezley contended that the Tribunal misconstrued the phrase “remunerative work” in s 24(2A) of the VE Act by holding that the work undertaken by Mr Beezley assisting the liquidator did not constitute “remunerative work”.

41    The consequence of that finding, so Mr Beezley argued, was that the work performed by him after his 65th birthday of assisting the liquidator was incorrectly excluded from consideration by the Tribunal. As a result, the Tribunal found that Mr Beezley was not undertaking his or her last paid work after the veteran had turned 65 and therefore failed to satisfy the criterion specified by s 24(2A)(f) of the VE Act.

42    It is clear that the AAT rejected the contention that the assistance provided by Mr Beezley to the liquidator was “remunerative work”. Mr Beezley contended that there were two reasons why the Tribunal came to that conclusion.

43    The first is that the Tribunal took the view that assistance given to a liquidator pursuant to an obligation under s 530A(2)(c) or s 530A(3) of the Corporations Act 2001 (Cth) (Corporations Act), could not be “remunerative work”.

44    Section 530A(2)(c) of the Corporations Act provides:

Where a company is being wound up … an officer of the company must … attend such meetings of the company’s creditors or members as the liquidator or provisional liquidator reasonably requires.

45    Section 530A(3) of the Corporations Act provides:

An officer of a company that is being wound up must do whatever the liquidator reasonably requires the officer to do to help in the winding up.

46    I accept that whether or not a particular activity is encompassed with the phrase “remunerative work” in s 24(2A)(d), and in particular, whether an activity required by a liquidator under s 530A of the Corporations Act is capable of being “work” within the second limb of the composite phrase “remunerative work”, is a question of law. If the Tribunal erred in determining that question, the error would be an error of law reviewable pursuant to the jurisdiction conferred on this Court by s 44 of the AAT Act.

47    However, as the Commission correctly contended, the Tribunal did not make a finding that assistance provided to a liquidator could not be an activity encompassed by the phrase “remunerative work”.

48    Mr Beezley did not identify where in the Tribunal’s reasons he contended that such a finding was made. As I have already observed, the Tribunal’s reasons are difficult to follow. Nevertheless, what is apparent on a close reading of the reasons as a whole and at [32]-[34] in particular, is that “on the evidence” (rather than as a matter of statutory construction), the Tribunal was not satisfied that in assisting the liquidator, Mr Beezley was employed or otherwise engaged by All-Brite and that, in that sense, assisting the liquidator was not “work” in which Mr Beezley was engaged. Further, as the Tribunal found at [34], even if assisting the liquidator was part of Mr Beezley’s work with All-Brite, it was not work for which he had an entitlement to be remunerated and was not work for which he was in fact remunerated.

49    In other words, the Tribunal’s conclusion that assisting the liquidator was not “work” was a factual conclusion based on the Tribunal’s acceptance of evidence before it that at the time that Mr Beezley was assisting the liquidator he was not employed by All-Brite at all.

50    I am not satisfied that the Tribunal either posed or answered the question of law that Mr Beezley contended was erroneously determined. It follows that Mr Beezley’s contention that the Tribunal erred in law in this respect, is without merit.

51    The second aspect of Mr Beezley’s first ground is that the Tribunal misconstrued “remunerative work” because the Tribunal wrongly determined that Mr Beezley had no entitlement to be and was not remunerated for undertaking his statutory obligations under s  530A of the Corporations Act. That is the finding made at [34] of the Tribunal’s reasons.

52    Whether or not Mr Beezley was entitled to be or was in fact remunerated for assisting the liquidator is a question of fact. The finding that he was not entitled to be remunerated nor actually paid, is a factual finding. As the authorities I have earlier set out make clear, a finding of fact is not susceptible to challenge unless the manner in which the finding was made raises a question of law.

53    The submissions made for Mr Beezley did not expressly identify how the finding of fact made raised an error of law. Those submissions did however point to the two propositions at [40] of the decision which I have earlier identified at [24] above. Those propositions were said to be wrong and taken into account in reaching the finding of fact made.

54    The Tribunal observed that the Corporations Act would not have permitted Mr Beezley to work as a director or be paid as a director of All-Brite after 11 May 2011 when All-Brite was placed into liquidation. I suspect that what the Tribunal had in mind was s 499(4) of the Corporations Act which, in relation to a creditors’ voluntary winding up, provides:

On the appointment of a liquidator, the powers of the directors cease except so far as the committee of inspection, or, if there is no such committee, the creditors, approve the continuance of any of those powers.

55    For reasons that will become apparent it is not necessary for me to decide whether the Tribunal’s propositions at [40] are right or wrong. But, I am inclined to the view that the position is not as absolute as the Tribunal suggested it to be. The suspension of the powers of a director is, as s 499(4) states, subject to an exception which provides that on an approval by the committee of inspection or the creditors the powers of a director may continue. Further, I cannot see (though again it is unnecessary to decide) that the Corporations Act provides for the cessation of a director’s office or a prohibition on a director receiving remuneration in one form or another once a company is placed in voluntary liquidation.

56    But, accepting that the Tribunal’s reasoning was unsound in that regard, and accepting that it may have contributed to the finding made, there was other evidence before the Tribunal upon which the finding that Mr Beezley was not entitled to payment nor paid for providing assistance to the liquidator was based.

57    Mr Beezley did not contend before the Tribunal that he had a specific entitlement to be paid for providing assistance to the liquidator. Nor did his evidence rely upon any agreement made with the liquidator, as agent of the company or otherwise, that he be paid for providing that assistance. His evidence was that he had in fact been paid by All-Brite his salary through to the first week of June 2011, including over the period in which he assisted the liquidator. Whilst the Tribunal accepted that Mr Beezley had been paid in advance, it characterised the payment as intended to reward Mr Beezley for the work it was anticipated he would perform for All-Brite (at [27]). However, the Tribunal was not satisfied that Mr Beezley worked for All-Brite beyond 19 May 2011 (at [29]) and concluded that beyond that day he had no entitlement to remuneration (at [30]).

58    In essence, the Tribunal regarded the monies received in advance by Mr Beezley as not referable to any work performed by him for All-Brite beyond 19 May 2011 because the Tribunal was satisfied that Mr Beezley performed no work for All-Brite beyond that date.

59    At [10], [31] and [33], the Tribunal’s reasons record evidence from the liquidator which the Tribunal accepted and relied upon in all relevant respects, save that the Tribunal found that Mr Beezley continued in his employment as an electroplater until 19 May 2011. That evidence, contained in a letter from the liquidator, was that Mr Beezley was not employed by All-Brite after 11 May 2011, was not paid a salary after that date, and had no involvement with All-Brite after 11 May 2011 aside from his obligation to assist the liquidator in accordance with the Corporations Act.

60    The evidence of the liquidator was probative evidence before the Tribunal which supported its finding that Mr Beezley did not work for All-Brite after 19 May 2011, had no entitlement to be paid, and was not paid for any work performed beyond that date. Despite the contribution to that finding that may have been made by the erroneous reasoning to which I have referred, it was open on the material before the Tribunal for the Tribunal to have arrived at the finding it made and there is no place for judicial review because no material error of law has taken place: Al-Miahi at [34].

61    There is a further unfortunate error in the reasons of the Tribunal. At [36] the Tribunal misconstrued s 24(2A)(g) of the VE Act as requiring a continuous prior period of at least ten years of the work there specified, from when the veteran turned 65, rather than from when the veteran stopped undertaking his or her last paid work. That error was not, as Mr Beezley accepted, an error material to the grounds of appeal which were pressed.

62    Mr Beezley’s second ground challenged the Tribunal’s findings that he failed to satisfy s  24(2A)(d), (e), (f) (again), and (g). Those findings were said to be vitiated because they were predicated on the error of law made in relation to whether Mr Beezley had engaged in “remunerative work”. As the success of that second ground was predicated on Mr Beezley succeeding on his first ground, his second ground must also be rejected.

disposition

63    For those reasons, it follows that Mr Beezley’s appeal should be dismissed.

64    Both parties agreed that costs should follow the event.

65    Accordingly, I will make orders dismissing the appeal and requiring Mr Beezley to pay the Commission’s costs of the appeal.

Associate:

Dated:    17 February 2015