FEDERAL COURT OF AUSTRALIA

Ralph v Repatriation Commission [2015] FCA 165

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Applicant pay the First Respondent’s costs.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    The applicant, Desmond Francis Ralph, applies by way of an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) from a decision of the Administrative Appeals Tribunal (“the Tribunal”) of 24 December 2013 (Desmond Francis Ralph v Repatriation Commission [2013] AATA 948) (“the 2013 decision”). The Tribunal determined that he was not eligible for a special rate of pension under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”).

BACKGROUND

2    Mr Ralph is a returned serviceman having served in the Australian Army from 1966 to 1971, including operational service in Vietnam. He is in receipt of a pension under the Act at 100% of the general rate for his accepted war-caused conditions of post-traumatic stress disorder (“PTSD”), non-Hodgkin’s lymphoma, alcohol dependence, hypertension and ischaemic heart disease.

3    It is uncontroversial that Mr Ralph applied for the special rate of pension in 2009 by posting an application to the office of the Department of Veterans’ Affairs (“Department”), but the date that his application was lodged is in dispute. The date of lodgement is crucial because there are different statutory requirements for veterans who are no longer working depending upon whether the application for an increased pension is lodged before or after the veteran reaches the age of 65. Applications made after a veteran turns 65 are decided under s 24(2A) of the Act and the requirements of that provision pose difficulties for Mr Ralph’s claim.

4    On 28 July 2009 the Commission decided that Mr Ralph was not eligible for the special rate of pension. Mr Ralph applied for review by the Veterans’ Review Board (“VRB”), but on 27 May 2010 the VRB affirmed the Commission’s decision. On 26 August 2010 Mr Ralph appealed to the Tribunal.

5    The Tribunal decided to treat the issue regarding the date of lodgement of Mr Ralph’s application as a preliminary issue. Mr Ralph stated that his application was posted on 16 April 2009 and he argued that, by operation of s 29 of the Acts Interpretation Act 1901 (Cth) (“Acts Interpretation Act”) and s 160 of the Evidence Act 1995 (Cth) (“Evidence Act”), the application is deemed to have been lodged four business days after it was posted, being 22 April 2009. This was one day before his 65th birthday on 23 April 2009.

6    The respondent, the Repatriation Commission (“Commission”), argued that the application was lodged with the Department on 1 May 2009, as shown by the Departmental date stamp on the application.

7    On 14 November 2011 the Tribunal decided that the application was lodged on 1 May 2009 and delivered ex tempore reasons. Subsequently at Mr Ralph’s request the Tribunal provided written reasons (Desmond Francis Ralph v Repatriation Commission [2011] AATA 881) (“the 2011 decision”).

8    Mr Ralph then applied to the Federal Court by way of an appeal under s 44 of the AAT Act. The Commission objected to the competency of the appeal, contending that the Tribunal’s determination of the preliminary issue should not be understood as the effective determination of the application from which an appeal could lie: see Director-General of Social Services v Chaney (1980) 31 ALR 571 per Deane and Fisher JJ. On 8 February 2012 Marshall J upheld the objection to competency and dismissed the proceeding.

9    The Tribunal proceeded to hear and determine the substance of Mr Ralph’s application, doing so on the basis that it was lodged on 1 May 2011. In the 2013 decision the Tribunal affirmed the Commission’s decision and decided that Mr Ralph did not satisfy the criteria in s 24(2A) of the Act and was not eligible for the special rate.

10    In the present appeal Mr Ralph applies to the Court by way of an appeal under s 44 of the AAT Act. He contends that the Tribunal:

(a)    misconstrued s 5T(2) of the Act by failing to conclude that, by operation of s 29 of the Acts Interpretation Act and s 160 of the Evidence Act, the application was lodged on 22 April 2009. As a result the Tribunal determined the application under s 24(2A) rather than s 24(1) as it was required to do (“the Lodgement Date Issue”);

(b)    misconstrued the meaning of the words “remunerative work” in ss 24(2A) and 5Q(1) of the Act, took into account irrelevant considerations, made an illogical or irrational decision, and failed to provide adequate reasons for its decision in that regard pursuant to s 43(2B) of the AAT Act;

(c)    misconstrued the meaning of the words “working…for a continuous period of at least 10 years” in s 24(2A)(g) of the Act, failed to have regard to a relevant consideration and failed to provide adequate reasons for its decision in that regard; and

(d)    misconstrued the words “suffering a loss” in s 24(2A)(g) of the Act.

I will describe the issues in paragraphs (b)-(d) as the Operation of s 24A Issues.

11    In my view the Tribunal did not err in finding that Mr Ralph’s application was lodged on 1 May 2009, and that ground of appeal must be dismissed. Further, I can see no error of law in the Tribunal’s approach to s 24(2A) or in the contention that it failed to provide adequate reasons. Those grounds of appeal also must be dismissed. I have ordered the appeal be dismissed and ordered the appellant to pay the first respondent’s costs.

THE NOTICE OF APPEAL

12    The Supplementary Notice of Appeal dated 29 April 2014 raises nine purported questions of law as follows:

1    Did the Tribunal properly construe the expression “remunerative work” within the meaning of ss 24(2A) and 5Q(1) of the Veterans’ Entitlements Act, in determining whether the Applicant engaged in “remunerative work” by reference to the Applicant’s subjective purpose for his work rather than whether he performed some activity and was remunerated for it?

2    Did the Tribunal take into account irrelevant considerations in determining whether the Applicant engaged in “remunerative work” within the meaning of ss 24(2A) and 5Q(1) of the Veterans’ Entitlements Act, by considering the Applicant’s subjective purpose for his work?

3    Did the Tribunal provide adequate and sufficient reasons for its determination as to whether the Applicant’s work was “remunerative” within the meaning of ss 24(2A) and 5Q of the Veterans’ Entitlements Act, as required by s 43(2B) of the AAT Act, in referring to the provision of a car as a “gesture of appreciation” without further explanation?

4    Did the Tribunal make an illogical or irrational decision in determining whether the Applicant engaged in “remunerative work” within the meaning of ss 24(2A) and 5Q(1) of the Veterans’ Entitlements Act, in reasoning that “remunerative work” and work for the purpose of family assistance are mutually exclusive alternatives?

5    Did the Tribunal properly construe the phrase “working … for a continuous period of 10 years” within the meaning of s 24(2A)(g) of the Veterans’ Entitlements Act, in determining whether the Applicant was “working … for a continuous period”, by limiting its inquiry to work for certain employers rather than the Applicant’s kind of work and/or by failing to allow for any temporary breaks for war-caused reasons alone?

6    Did the Tribunal provide adequate and sufficient reasons for its determination as to whether the Applicant was “working … for a continuous period of 10 years” within the meaning of s 24(2A)(g) of the Veterans’ Entitlements Act, as required by s 43(2B) of the AAT Act?

7    Did the Tribunal fail to have regard to a relevant consideration in determining whether the Applicant had worked for a “continuous period of 10 years” within the meaning of s 24(2A)(g) of the Veterans’ Entitlements Act, namely any temporary breaks for war-caused reasons alone?

8    Did the Tribunal properly construe the word “lodged” within the meaning of s 5T(2)(b) of the Veterans’ Entitlements Act, when read with s 29 of the Acts Interpretation Act and s 160 of the Evidence Act, in determining when the Applicant’s application was “lodged”?

9    Did the Tribunal properly construe the phrase “suffering a loss” within the meaning of s 24(2A) of the Veterans’ Entitlements Act, in determining whether the Applicant is “suffering a loss”, by reference to the Applicant’s last specific job rather than his substantial remunerative work?

13    Mr Ralph also seeks that the Court make a finding of fact pursuant to s 44(7) of the AAT Act, as follows:

That the application was received on 22 April 2009, that is, within 4 business days of being mailed, and that it be taken to be lodged within the meaning of s 5T(2)(b) of the Veterans’ Entitlements Act on 22 April 2009.

THE LEGISLATIVE FRAMEWORK

The provisions relevant to the Lodgement Date Issue

14    Section 15(1) of the Act provides that a veteran who is in receipt of a pension may make an application for an increase in the rate of pension. Under the heading “Application for increase in pension”, s 15(3)(c) provides that the application:

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

(Emphasis added)

15    Section 5T of the Act relevantly provides:

5T    Lodgment of claims, applications, requests and documents

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

(2)    For the purposes of this Act, a claim, application, request or other document … :

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

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

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

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

…

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

(Emphasis added)

16    Sections 28A of the Acts Interpretation Act, in Part 6 - “Service of Documents”, provides:

28A    Service of documents

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

…

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

(2)    Nothing in subsection (1):

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

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

(Emphasis added)

17    Sections 29 of the Acts Interpretation Act, in the same Part, provides:

29    Meaning of service by post

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

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

(Emphasis added)

18    Section 160 of the Evidence Act provides:

(1)    It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted.

(Emphasis added)

Section 24(2A) of the Act

19    Section 24(2A) of the Act provides:

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.

THE TRIBUNAL DECISION

The decision on the Lodgement Date Issue

20    The Tribunal found in the 2011 decision (at [2]):

Desmond Ralph celebrated his 65th birthday on 23 April 2009. A few weeks before his birthday, he decided to lodge an application for a special rate pension on the basis that his war-caused disabilities, for which the respondent had accepted liability, had prevented him from continuing his employment. He sought the assistance of a Returned and Services League (RSL) advocate, Mr John Meehan, in completing the form. Mr Ralph took the form to his doctor for the completion of a relevant part of a form [sic] and returned the form to the RSL. Mr Ralph and the RSL advocate believed that the form was posted to the Department of Veterans’ Affairs (DVA) in sufficient time for it to reach DVA before his birthday. Unfortunately, DVA’s records indicate that the application arrived on 1 May 2009.

21    The Tribunal noted the evidence adduced on behalf of Mr Ralph (at [4]):

Mr Ralph and Mr Meehan gave oral and written evidence. Mr Michael North, a volunteer who assists with administrative tasks including the mail at the Noble Park RSL, also gave oral evidence. All three of them firmly believed that the application was posted on 16 April 2009.

22    The Tribunal did not reject this evidence as unreliable, instead treating it as irrelevant. This can be seen in the Tribunal’s reasons where it said that even if the RSL’s mail book had been available to prove that the application was posted on 16 April 2009 “it would not have assisted Mr Ralph because of the lodgement provisions in the Act.” It may also be seen in the Tribunal’s statement in oral reasons that “whether [the application] was sent on the 15th, the 16th, the 17th, the 18th, the 20th is irrelevant. … What is relevant is the date that it was received by the department. That is the only relevant date.”

23    It does not appear that there was evidence before the Tribunal regarding the Department’s usual practice in stamping mail as received, or in relation to the stamping of Mr Ralph’s application. The Tribunal made its position clear enough in the following exchange between the solicitor for Mr Ralph, Mr De Marchi, and the Tribunal member:

Mr De Marchi:    It could be that [the application] sat at the DVA office for a week too.

Ms Perton:    …that’s not an issue that has been raised, that their practice is any different again to any government agency, and I would think that normally applying that stamp to a document is sufficient proof that that was the day it was received at that office.

Mr De Marchi:    We’ve had no evidence, madam, in relation ---

Ms Perton:    Well, I’m satisfied on the balance of probabilities that it was received on 1 May and that date stamp is sufficient.

Mr De Marchi:    Because of the stamp on the document.

Ms Perton:    The date stamp on it, it would have been recorded on their system. Their decisions all say “received 1 May”… So I am satisfied that it was received on that day. I think the application of the … date stamp is sufficient for me to believe it was lodged on that day.

24    The Tribunal also said:

…we haven’t gone through a whole lot of issues about the procedures at DVA when mail comes in, however, it is common practice for a date stamp to be applied on the day correspondence is received at a particular agency, be it federal, state or local. And there is no evidence to the contrary that it wasn’t received on 1 May at the Department. … it hasn’t been challenged that that was the date that the document actually was received by DVA in relation to the application of the claim.

It is likely that the Tribunal did not require further evidence on the date the Department received the application because Mr Ralph did not contend that it was, in fact, received by the Department prior to his 65th birthday. The thrust of Mr Ralph’s argument was that the application was deemed to have been received on 22 April 2009, rather than that it was actually received on that date.

25    The Tribunal held that, in the context of the present case which involved an application posted to an office approved by the Commission, s 5T(2) of the Act relevantly requires that an application is taken to have been lodged only when it is lodged at the approved place, and that it is taken to have been so lodged on the day on which it is received at that place.

26    In ex tempore reasons on 14 November 2011 the Tribunal determined that s 5T(2) precluded the operation of s 29 of the Acts Interpretation Act. The Tribunal member said:

… section 15(3) has to be viewed in conjunction with section 5T which says that a claim is lodged only - and the word “only” appears in 5T - only on the day it was received at an office of the commission and is taken to have been lodged on the day on which it is received at that place.

…

… It, in my view, is a specific provision which means that regardless of the Acts Interpretation Act section, this particular section in 5T(2) says:

…it is lodged in an office in Australia only –

… The word “only” appears there and that word “only” to me is the crunch in which way I have to go in this matter. So it’s not an ambiguous statutory provision with the word “only” in there or allowing for a date of dispatch of a form issue. It is clear on its face the Acts Interpretation Act provisions may well be relevant to other documents but not to the actual claim form lodgement day.

…

And:

… I think the wording in 5T(2) is very clear. It:

…is taken to have been lodged with an office of the Department in Australia only if the claim-

and I will just use the word “claim” –

is lodged at a place approved by the commission for the purposes of this subsection.

… And (b):

…is taken to have been so lodged on the day on which it is received at that place.

Not on the day on which it is deemed to have been received, but on the day it is actually received. … and the word “only” to me is an important issue in that, and the fact that it says on the day it is received at that place, not deemed receipt or not anything else.

(Emphasis added)

27    The Tribunal also said that s 160 of the Evidence Act did not apply to lodgement of an application under s 5T(2). It decided that the application was received on 1 May 2009, as recorded by the Department’s date stamp.

The decision on the operation of s 24(2A)

28    Because the application was lodged after Mr Ralph turned 65 the Tribunal dealt with it under s 24(2A) of the Act. The Tribunal explained its task in the following terms (at [7]):

In deciding whether Mr Ralph is eligible for [a] pension at the special rate, the Tribunal needs to consider:

•    Is Mr Ralph unable to undertake remunerative work for more than eight hours per week?

•    When and why did Mr Ralph stop working?

•    Was Mr Ralph still working after his 65th birthday?

•    Did Mr Ralph work for 10 continuous years prior to lodgement of his claim solely as an employee or contractor in the same field?

It is convenient to summarise the Tribunal’s decision under the same headings.

Is Mr Ralph unable to engage in remunerative work for more than eight hours per week?

29    Based on the evidence of Mr Ralph, two consultant psychiatrists and an occupational physician the Tribunal was satisfied that he was unable to undertake remunerative work for more than eight hours per week (at [15]).

When and why did Mr Ralph stop working?

30    The evidence relating to Mr Ralph’s employment history is set out in the Tribunal’s decision (at [16]-[38]) and may be broadly summarised as follows:

(a)    before his army service began in 1966 Mr Ralph worked at various jobs including as a labourer and truck driver (at [16]);

(b)    after he left the army in 1971 Mr Ralph commenced working in the transport industry and he was employed by Brambles for 19 years as a transport manager until 1990 (at [16] and [27]);

(c)    Mr Ralph was then employed by Westgate Logistics for 17 years including for three years in Sydney where he was NSW State manager (at [27]). He said that in 2005 he needed help because of his alcohol use and PTSD symptoms and he took annual leave and went to a psychiatric clinic in Richmond, New South Wales, subsequently continuing with outpatient treatment (at [34]);

(d)    he resigned from Westgate Logistics in February 2007. In his 2010 statement he said that he resigned because of increasing irritability and conflict with authority which had been impacting on his work and restricting his career opportunities (at [17]);

(e)    he said that he had a break from work for one month (at [34]) and then he commenced as a transport consultant in March 2007 working on his own account through JMR Management Consultancy Services (“JMR”);

(f)    he continued as a self-employed transport consultant through JMR until 9 April 2009 when he was forced to give up that work due to the deterioration in his accepted war-caused disabilities and their effect on his lifestyle and employment (at [18] and [20]);

(g)    in May 2009 Mr Ralph was referred to the Repatriation Hospital and he had further treatment including a three-week course on how to handle PTSD and alcohol dependence. He attended the hospital regularly over the next six months and he stopped drinking for about 90 days, but then gradually resumed doing so (at [36]); and

(h)    in the short period between February and March 2012 Mr Ralph returned to work on his own account as a self-employed transport consultant through JMR (at [13]).

31    One issue for the Tribunal was Mr Ralph’s evidence, first given in 2012, that at the same time as he was working for Westgate Logistics he was also working as a paid consultant on his own account, consulting to companies run by two of his sons, Jet Couriers Pty Ltd (“Jet Couriers”) and Metrans Pty Ltd (“Metrans”) (at [22]). He said that his work at those companies was advisory and counselling and also involved recruitment, advice, providing leads, and assisting through knowledge of the industry and the business opportunities that might arise (at [29]).

32    Brett Ralph (“Brett”), the Managing Director of Jet Couriers, said that his father was an integral contributor to the performance of the businesses because of his 40 years’ experience in most facets of transportation together with his contacts, knowledge and insights (at [23]). He described his father as his advisor and mentor and said that Mr Ralph was also involved in strategic planning for the businesses (at [40]).

33    Mr Ralph said that Jet Couriers and Metrans commenced in 1996 and that he was initially the company secretary and a director (at [28]). He and his wife provided a start-up loan for these businesses which quickly became profitable. The business started with one operating depot and by the time of the 2013 Tribunal hearing it had 15 depots and had expanded into the United States.

34    Mr Ralph said that between 1996 and 2007 he worked for up to 16 hours per week for Jet Couriers and Metrans, on top of his work for Westgate, working largely on evenings or on weekends (at [30]). He also said that when he was the NSW state manager for Westgate Logistics he would spend Monday in Melbourne and, with the agreement of his boss, he usually spent part of it with Jet Couriers (at [27]). But he said that in the financial years ended 30 June 2009, 30 June 2010 and 30 June 2011 he did not consult for more than six hours per week to Jet Couriers and Metrans (at [22]).

35    Mr Ralph did not provide this version of his employment history until after the Tribunal had rejected the contention that his application for a special rate of pension should be deemed to have been lodged prior to his 65th birthday. He said that when he lodged his application for the special rate of pension he did not consider that his role at Jet Couriers and Metrans would be considered work for which he was being paid. At that time he did not consider he was being paid to do that work and he saw this role as different to the consultancies he did through JMR (at [33]). He did not prepare invoices in relation to his work at his sons’ businesses (at [29]).

36    In his 2012 statement Mr Ralph said that Jet Couriers and Metrans provided him with the use of a motor car by way of remuneration for his work, which he estimated to be worth around $23,000. He did not include the provision of this car in his tax returns (at [22]).

37    Brett said that he and his brother made the decision to provide Mr Ralph with a car as payment for his work and that Mr Ralph was responsible for the fringe benefits tax, car registration and running costs. Brett could not recall why they decided upon a car but it was a gesture of their appreciation. He could not recall when the car was first provided to Mr Ralph noting that Jet Couriers had more than 100 vehicles (at [42]-[43]).

38    In the Tribunal’s view it was only after the Tribunal made its finding as to the lodgement date that it was suggested to Mr Ralph that his role at Jet Couriers might be classified as employment (at [43]). Even so, the Tribunal was satisfied that Mr Ralph was a truthful witness.

39    The Tribunal accepted that Mr Ralph was no longer able to work for more than eight hours per week, and it was satisfied that he had been undertaking remunerative work after his 65th birthday on 23 April 2009 (through his work two months in 2012 as a self-employed transport consultant with JMR) (at [43]).

Does Mr Ralph meet the requirements for a special rate pension?

40    At [46]-[48] and [54]-[56] the Tribunal was satisfied that Mr Ralph met the requirements of s 24(2A)(a), (b), (c), (d), (e) and (f). The question was whether he satisfied subs (g).

41    Section 24(2A)(g) would be satisfied if, when Mr Ralph stopped undertaking his last paid work:

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

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

for a continuous period of at least 10 years that began before he turned 65.

42    As the Tribunal noted, Mr Ralph argued that:

(a)    he had been providing advice and guidance as a self-employed transport consultant since 1996 (at [49]);

(b)    he had worked for JMR for more than two years before his application and was still effectively involved as a self-employed transport consultant through his work for Jet Couriers and Metrans (at [50]);

(c)    he had been forced to cease working for JMR in 2009 because of his accepted war-caused conditions, although he resumed for a brief period in 2012 (at [52]); and

(d)    he satisfied the requirement of working for a continuous period of at least 10 years through a combination of his work as a self-employed transport consultant through JMR and for Jet Couriers and Metrans (at [52]).

43    The Tribunal also noted the Commission’s arguments (at [53]-[54]) that:

(a)    Mr Ralph’s activities amounted to him being involved in a family business and he was still providing assistance to his sons when asked to do so, that is he not ceased those activities; and

(b)    the only remuneration Mr Ralph received for his work was the provision of a car, and that nothing had changed as far as that was concerned. That is, he said that he was no longer working but he still had the use of a car; and

(c)    Brett was unable to say why he and his brother had originally decided to provide the car beyond expressing their gratitude for their father’s role in creating and supporting their businesses and for his ongoing advice.

44    The Tribunal noted that when Mr Ralph made his 2010 statement he did not classify his activities for his sons’ businesses as work (at [58]), and that his change of position had followed the Tribunal’s rejection of the argument that his application should be deemed to have been made prior to his 65th birthday.

45    The Tribunal reached the conclusion that in his activities for his sons’ businesses Mr Ralph was not working on his own account in a profession, trade, employment, vocation or calling as required under s 24(2A)(g). It found that he had been advising and guiding his sons as a father with a pertinent background rather than as a paid consultant undertaking remunerative work (at [59]). The Tribunal also said that, if Mr Ralph had now ceased to assist his sons (which was not clear) he was not suffering any loss because he was still being provided with the use of a motor vehicle of the same standard as before he ceased.

46    The Tribunal’s rejection of Mr Ralph’s contention that his activities in his sons’ businesses constituted “remunerative work” meant that those activities could not be taken into account in establishing a continuous period of at least 10 years work.

47    The Tribunal accepted that Mr Ralph had worked for two years as a self-employed transport consultant through JMR from March 2007 until April 2009 and that he had resumed three years later in 2012 for a two month period (at [60]). It accepted that he was remunerated for that work and that payment had stopped. However, because Mr Ralph had been a self-employed transport consultant through JMR for only two years before he turned 65, the Tribunal found that he did not work as a transport consultant on his own account for a continuous period of at least 10 years before he turned 65. He therefore did not satisfy s 24(2A)(g) of the Act.

48    The Tribunal therefore determined that Mr Ralph was not eligible for the special rate of pension.

CONSIDERATION

The Date of Lodgement Issue

49    Question eight of the Supplementary Notice of Appeal alleges that the Tribunal misconstrued s 5T(2)(b) of the Act, and that it erred in failing to decide that the application was deemed to have been lodged on 22 April 2009 by operation of s 29 of the Acts Interpretation Act and s 160 of the Evidence Act.

A question of law?

50    The Commission submits that question eight is not a question of law and argues that it is an impermissible attempt to challenge a finding of fact made by the Tribunal. I do not accept this contention.

51    In Federal Commissioner of Taxation v Trail Brothers Steel & Plastics Pty Ltd (2010) 186 FCR 410 at [13], Dowsett and Gordon JJ explained:

…what is "on a question of law" for the purposes of s 44 of the AAT Act has been analysed in many cases and includes:

1.    Whether the AAT has identified the relevant legal test: Scicluna (2008) 72 NSWLR 674 at [68] and Collins v Administrative Appeals Tribunal (2007) 163 FCR 35 at [55];

2.    Whether the AAT has applied the correct test: Repatriation Commission v Hill (2002) 69 ALD 581 at [59]; Federal Commissioner of Taxation v Zoffanies Pty Ltd (2003) 132 FCR 523 at [25]; Tax Agents’ Board v Bray (2004) 58 ATR 118 at [19]; Collins 163 FCR 35 at [55];

3.    Whether there is any evidence to support a finding of a particular fact: Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 at [34]; and

4.    Whether facts found fall within a statute properly construed: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.

That list is by no means exhaustive: see, by way of example, Pozzolanic 43 FCR 280 at 287.

52    Question eight asks whether, in deciding the lodgement date of Mr Ralph’s application, the Tribunal misconstrued the relevant provision. Section 44 of the AAT Act does not limit the legitimate subject of an appeal to questions of law divorced from a need to look at the facts, and whether the Tribunal failed to discharge its obligations according to law is a proper question for the Court: see Collins v Administrative Appeals Tribunal and Another (2007) 163 FCR 35 per Allsop J at [55] (Lindgren and Emmett JJ agreeing).

The application of s 29 of the Acts Interpretation Act

53    There is no dispute that the subject application was lodged by prepaid mail at a place approved by the Commission as required by s 5T(2)(a)(i). The Commission accepts that applications may be made by post and it does not argue that the application was not lodged. The dispute only relates to the date of lodgement.

54    Mr Ralph submits that the Tribunal misconstrued s 5T(2)(b) of the Act in finding that the application was made on 1 May 2009, being the date of the Departmental date stamp. He argues that the Tribunal should have deemed it to have been received on an earlier date.

55    Section 29 of the Acts Interpretation Act provides that, where a document may be served by post, whether the expression “serve”, “give”, “send” or any other expression is used, service will be deemed to be effected by properly addressing, prepaying and posting the document as a letter. Unless the contrary is proved, the service is deemed to have been effected at the time at which the letter would be delivered in the ordinary course of post.

56    The unchallenged evidence of Mr Ralph and two RSL volunteers is that on 16 April 2009 Mr Ralph’s application was properly addressed and sent by prepaid mail to an office approved by the Commission. Mr Ralph contends that the effect of s 5T(2)(b) read together with s 29 of the Acts Interpretation Act is that the application is deemed to have been lodged on the date on which it would be delivered in the “ordinary course of post”. He also calls in aid s 160 of the Evidence Act in relation to the “ordinary course of post” as, if it is applicable, it creates a rebuttable presumption that the letter was delivered in four business days.

57    I do not accept Mr Ralph’s contentions. There is no issue that s 29 of the Acts Interpretation Act applies to some provisions in the Act: see for example Repatriation Commission v Gordon and Others (1990) 26 FCR 569 which concerns s 34 of the Act. However, I do not consider that s 29, which refers to serving, giving or sending a document by post, applies to s 5T(2) of the Act when that section refers to lodgement of a document at an approved place. I was taken to no previous decision applying s 29 to the date of lodgement of an application under s 5T(2).

58    I say this, first, because s 5T(2)(a) refers to an application being “lodged” at a place approved by the Commission. The Shorter Oxford Dictionary gives a meaning to the word “lodge” which includes “deposit in court or with an official, a formal statement of (a complaint, objection etc).” When used as a verb it relevantly means “the action of lodging something especially a sum of money, securities etc; the deposit of money.” In my view “lodged” has a different meaning to “serve”, “give” or “send” and like expressions. Broadly, I see those words as referring to delivery of a document whereas “lodged” connotes receipt or physical acceptance.

59    There is some support for this view in Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) (1988) 19 FCR 477 per Sweeney and Northrop JJ. In this case the Full Court dealt with the meaning of the word “lodged” in ss 29 and 68 of the AAT Act. Section 29(d) relevantly provided that an application “shall be lodged with the Tribunal within the prescribed time.” Section 68 provided that “[w]here a document is required by this Act to be lodged with the Tribunal, the document shall be lodged at the office of the Registrar or of a Deputy Registrar.” Northrop and Sweeney JJ (Jenkinson J dissenting) took the view that an application was lodged when it was physically received. Northrop J explained (at 488-489):

Thus, in s 68 of the Act, the word “lodged” is used in the sense of placing or depositing a document at the office of the registry or a Deputy Registrar. It appears to be the practice of the tribunal to allow this to be done by post. Whether the lodging is done by post or by depositing the document at the office, a concept of acceptance is required in a sense similar to that required with respect to the presentation of a document. There must be a physical acceptance of the document by an officer of the Registry. Thus, if an application is posted but not delivered to a registry, the application is not lodged. In all probability, it is lodged when it is received at the office of the Registry. Similarly, a document deposited on a counter at the office of a Registry may not be lodged, but if taken by an officer, or in other words received by that officer, it is accepted for the purpose of lodging.

60    Second, in relation to applications lodged at an approved place (as in the present case) s 5T(2)(b) unambiguously states that an application “is taken to have been so lodged on the day on which it is received at that place”. In referring to lodgement occurring on receipt rather than by “service”, “giving”, or “sending” the subsection indicates that physical receipt is required. Reinforcing this in relation to lodgement at a place approved by the Commission pursuant to s 5T(2)(a)(i) (as distinct from lodgement by delivery to an approved person pursuant to s 5T(2)(a)(ii)) an application is taken to be lodged “only” if it is lodged at an approved place. This tends to confirm that an application may not be lodged by operation of the presumption in s 29.

61    Third, s 19(9) of the Act points in the same direction. It provides that the “assessment period” for applications commences on the “application day” and ends when the application is determined. “Application day” is defined to mean “the day on which the claim or application was received at an office of the Department in Australia” (emphasis added). It tends to show that it is the Commission’s receipt of an application which is critical because it is then that the assessment period commences.

62    Of course the fact that the Act is beneficial legislation must be kept in mind. Section 5T(2) is to be construed liberally and as generously for a veteran as the language of the section allows: Hill v Repatriation Commission (2004) 82 ALD 60 at [44] per Mansfield J and the authorities there cited; Nilant v Macchia (2000) 104 FCR 238 at [42] per Weinberg J. However I consider s 5T(2) unambiguously provides that lodgement of a posted application only occurs when it is physically received at a place approved by the Commission.

63    Looked at another way, I note that s 2(2) of the Acts Interpretation Act provides that the application of the Acts Interpretation Act to an Act or a provision of an Act is subject to a contrary intention. If (contrary to my view) s 29 of the Acts Interpretation Act is seen to apply to lodgement of documents at an approved place under s 5T(2), for the reasons already given I consider that s 5T(2)(b) manifests an intention to preclude the operation of s 29, that is, a contrary intention.

64    Although nothing turns on this, I note that Mr Ralph’s reliance on s 160 of the Evidence Act is misplaced. Section 4(1) of the Evidence Act provides that the Act applies to all proceedings in a “federal court” which is defined to include a “body (other than the Supreme Court of a Territory), that in performing a function or exercising a power under a law of the Commonwealth, is required to apply the laws of evidence”. Pursuant to s 33(1) of the AAT Act the Tribunal is not required to apply the rules of evidence and it therefore does not fall within the definition of a “federal court”. It was not bound to apply s 160: Danagher v Child Support Registrar [2014] FCA 1408 at [34]-[38]. However, provisions such as s 33 of the AAT Act are intended to be facultative rather than restrictive (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [49] per Gleeson CJ and McHugh J) and the Tribunal was entitled pursuant to s 33 to inform itself on any matter in such manner as it thinks appropriate. This meant that it was open to the Tribunal to have regard to the presumption in s 160 had it wanted to do so, but the Tribunal did not.

The Operation of s 24(2A) Issues

65    Questions one to seven and question nine of the Supplementary Notice of Appeal can be boiled down to three categories, namely:

(a)    questions one to four which revolve around the meaning of the words “remunerative work” in s 24(2A) of the Act. The questions include whether the Tribunal misconstrued the provision, took into account irrelevant considerations, made an illogical or irrational decision, and whether it provided adequate reasons for its decision (“the Remunerative Work Issue”);

(b)    questions five to seven which revolve around the meaning of the words “working…for a continuous period of at least 10 years” in s 24(2A)(g) of the Act. The questions include whether the Tribunal misconstrued the provision, failed to have regard to a relevant consideration and whether it provided adequate reasons for its decision (“the 10 Years Continuous Work Issue”); and

(c)    question nine which is whether the Tribunal misconstrued the words “suffering a loss” in s 24(2A)(g) of the Act (“the Loss Issue”).

I will deal with the questions under these headings.

The Remunerative Work Issue

66    Mr Ralph alleges that the Tribunal misconstrued the meaning of the words “remunerative work” and “paid work” in ss 24(2A) and 5Q(1) of the Act. In essence he contends that the Tribunal focused on Mr Ralph’s subjective understanding of what was intended by “remunerative work” and “paid work” and as a result it misunderstood its task.

67    Section 5Q(1) defines “remunerative work” as including “any remunerative activity”. I accept, as Mr Ralph contends, that the words “undertake the remunerative work” and “undertaking” the remunerative work in s 24(2A) import the notion of performance of the work or of a successful or effective undertaking of work: Sheehy v Repatriation Commission (1996) 66 FCR 569 at 574 per Wilcox, Whitlam and Lindgren JJ.

68    The authorities also indicate that the work must be substantial for it to be treated as “remunerative work”. Hill v Repatriation Commission [2000] FCA 929 concerned a veteran who had been engaged in dog breeding in a minor way. The Tribunal said it was “merely a hobby that produced some very limited income for him” and declined to characterise it as “remunerative work”. Wilcox J found no error in the Tribunal’s approach. There is though no issue in the present case as to whether Mr Ralph’s activities in his sons’ businesses were “substantial”.

69    I accept too that what constitutes “remunerative work” should not be viewed narrowly: Counsel v Repatriation Commission [2001] FCA 1032 at [13]-[14] per Moore J; Repatriation Commission v Buckingham [1996] FCA 37 (“Buckingham”). I respectfully agree with Ryan J’s approach in Buckingham where his Honour accepted that a person engaged in voluntary work for the church and provided with free accommodation could be seen as having been engaged in “remunerative work”.

70    Mr Ralph contends that his activities in his sons’ businesses satisfied the “remunerative work” requirement in s 24(2A) because:

(a)    he was undertaking some activity; and

(b)    he was being paid in some form.

He argues that the Tribunal fell into error because it was preoccupied with his subjective understanding of the nature of the activities he undertook.

71    In this argument he points to three paragraphs in the 2013 decision, namely:

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

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

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

72    I do not accept Mr Ralph’s contentions in this regard. The Tribunal’s task under s 24(2A) was to undertake a factual enquiry as to whether Mr Ralph:

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

(b)    was remunerated or paid for that work.

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

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

74    To decide the issue the Tribunal was required to undertake a factual enquiry as to the nature of the relationship and the surrounding circumstances. There were a number of indicators in the evidence that Mr Ralph was just helping his sons out as a good parent would, rather than working as a paid consultant pursuant to a contract of service. The evidence included:

(a)    Mr Ralph’s subjective view that he did not regard his activities at Jet Couriers and/or Metrans as work for which he was paid;

(b)    that he did not render any invoices for his purported work to Jet Couriers and/or Metrans;

(c)    that he was given the use of a motor vehicle from Jet Couriers’ large fleet and that he continued to be given the use of a motor vehicle after he ceased his purported work;

(d)    he never declared his receipt of a motor vehicle in his tax returns; and

(e)    Brett’s evidence that the motor vehicle was provided to Mr Ralph as a gesture of appreciation.

75    I can see no legal error in the Tribunal taking into account Mr Ralph’s subjective view that his activities at his sons’ businesses were not work. On the basis of that evidence, together with the other evidence to which I have referred, the conclusion that Mr Ralph was just helping out his sons rather than working as a paid consultant was open to the Tribunal.

76    The same evidence also went to the question of whether Mr Ralph was remunerated for the activities he performed for his sons’ businesses. I can see no legal error in the Tribunal taking into account that Jet Couriers continued to provide Mr Ralph with a motor vehicle even after he ceased working for them. On a fair reading of the decision the Tribunal took this to indicate that the motor vehicle was not provided to Mr Ralph as remuneration for work and in my view that conclusion was open to it. It is correct that Brett also gave evidence that the motor vehicle was provided as remuneration, but the weighing of the evidence is a matter for the Tribunal, and its conclusion on the evidence does not involve any error of law.

77    I can see nothing in the Tribunal’s decision to indicate that it misconstrued ss 24(2A) and 5Q(1) of the Act. Question one of the appeal must be dismissed.

78    Nor do I consider that the Tribunal took into account irrelevant considerations or that it made an illogical or irrational decision in its approach to “remunerative work”. Amongst other things, I do not accept the contention that the Tribunal reasoned that “remunerative work” and work for the purpose of family assistance were mutually exclusive alternatives. While some of Brett’s evidence was that the motor vehicle was provided as remuneration other evidence indicated that the motor vehicle was not payment for work. It was open on the evidence for the Tribunal to conclude, as it did, that the motor vehicle was merely a gesture of appreciation for a father’s counsel and assistance. Question two and four of the appeal must be dismissed.

79    Finally, I do not accept that the Tribunal failed to provide adequate and sufficient reasons within the meaning of s 43(2B) of the AAT Act. The Tribunal’s finding that Mr Ralph’s activities in his sons’ companies did not constitute “remunerative work” was based on the evidence I have set out. While the Tribunal did not go to great lengths to explain its factual conclusions, the decision exposed its reasoning process in a way which complied with its obligations under s 43(2B). Question three of the appeal must be dismissed.

The 10 Years Continuous Work Issue

80    Questions five, six and seven of the appeal revolve around the contention that the Tribunal misconstrued the phrase “working… for a continuous period of at least 10 years” within the meaning of s 24(2A)(g) of the Act. They also allege that the Tribunal failed to have regard to a relevant consideration when assessing the continuity of work, namely temporary breaks in service for war-caused reasons alone, and that the Tribunal failed to provide adequate and sufficient reasons for its decision.

81    First, Mr Ralph argues that the Tribunal’s finding that Mr Ralph did not work for JMR “for a continuous period of at least 10 years” before ceasing work (at [60]) meant that the Tribunal misconstrued that phrase in s 24(2A)(g). He argues that the phrase calls for an analysis of the continuity of the remunerative activity rather than to continuity by reference to a particular employer.

82    He relies on the decision of the Full Court in Grant v Repatriation Commission (1999) 57 ALD 1 (“Grant”) at [9] per Merkel, Goldberg and Weinberg JJ where their Honours said:

Determination of the “remunerative work” referred to in s 24(2A)(d) requires the characterisation of the specific remunerative activity or activities that the veteran was last undertaking before making the claim or application rather than of the capacity in which that work was undertaken.  The particular capacity in which the work was undertaken is dealt with as a separate criterion in s 24(2A)(g).  Thus, whether or not the work was undertaken as an employee or as a self-employed person is irrelevant to the characterisation to be given to that work under s 24(2A)(d).

He contends that the Tribunal’s finding that Mr Ralph’s work as a transport consultant on his own account through JMR had not been for a continuous period of 10 years shows that the Tribunal preoccupied itself with one employer.

83    In my view this contention is misconceived. The Tribunal found (at [55]) that because of his accepted war-caused conditions Mr Ralph ceased to work as a transport consultant through JMR in April 2009. He therefore satisfied s 24(2A)(d). The Tribunal’s remarks (at [60]) were directed at whether he could satisfy the requirements in s 24(2A)(g) which is concerned with the particular capacity in which the veteran’s last paid work was undertaken: see Grant at [7]-[9]; Thomson v Repatriation Commission (2000) 96 FCR 550 (“Thomson”) at [10]-[11] per Ryan, North and Merkel JJ.

84    The Full Court in Thomson explained at [10]-[11]:

As was pointed out by the Full Court [in Grant], subs (g) of s 24(2A) is concerned with the capacity in which the last paid work was undertaken. A veteran meets the requirements of the subsection if the last paid work has been undertaken in the relevant capacity for a continuous period of at least 10 years. If the capacity is as an employee, the veteran must have been employed by the same employer (or its predecessor) continuously for the 10 year period. If the veteran is self-employed, then the last paid work must have been undertaken in that capacity continuously for the 10 year period. When subcl (ii) refers to the requirement that the self-employed veteran must have been "so working" continuously for the 10 year period, the reference is to the capacity in which the veteran worked.

Thus, the enquiry mandated by the subsection in the present case required consideration of whether the appellant had been working as a medical practitioner on his own account for a continuous period of at least 10 years prior to his cessation of work during July 1996.

85    The Tribunal accepted Mr Ralph’s evidence (at [55]) that he worked on his own account as a transport consultant on his own account through JMR from March 2007 to March 2009 and then resumed briefly in February and March 2012. The Tribunal therefore found that his last “paid work” was as a self-employed transport consultant. As I said earlier, the Tribunal did not accept that Mr Ralph’s activities in his sons’ businesses constituted “remunerative” or “paid” work and those activities were therefore not to be considered in assessing whether he had worked continuously for at least 10 years as required under s 24(2A)(g).

86    Once Mr Ralph’s activities in his sons’ businesses were not to be considered, s 24(2A)(g)(ii) required the Tribunal to decide whether at the time he ceased his last paid work through JMR in March 2012 he had been working as a self-employed transport consultant for a continuous period of at least 10 years. Mr Ralph had worked as an employee of Westgate Logistics undertaking transport logistics work for 17 years before he commenced as a self-employed transport consultant through JMR, but that period of employment cannot be added to his period of self-employment so as to satisfy the requirement of “a continuous period of at least 10 years”.

87    Section 24(2A)(g) requires that:

(a)    the veteran must have been employed with a particular employer or a particular employer and its predecessor(s) for a continuous period of at least 10 years (under subs (i)); or

(b)    that the veteran must have been working on his own account in a profession, trade, employment, vocation or calling for a continuous period of at least 10 years (under subs (ii)).

It does not provide for the assessment of at least 10 years continuous work to be made by combining the periods of work undertaken under each of subs (i) and (ii).

88    In my view the Tribunal did not misconstrue the phrase “working … for a continuous period of at least 10 years” in s 24(2A)(g). On a fair reading, the Tribunal limited its decision in relation to s 24(2A)(g) by reference to Mr Ralph’s work as a self-employed transport consultant through JMR because it took the view that his activities in his sons’ businesses was not “remunerative work”.

89    Second, Mr Ralph argues that the Tribunal misconstrued the phrase “working … for a continuous period of at least 10 years” by treating it as setting out an absolute requirement that the veteran have worked for a continuous period of 10 years, regardless of the reasons for any gaps in continuity. He argues that the word “continuous” cannot be meant literally and consideration must be given to weekends, annual leave and many other kinds of leave, including whether a veteran was unable to work for a period because of his or her accepted war-caused disabilities.

90    Mr Ralph was unable to take the Court to any authority which directly supports his preferred construction. Instead he relied on authorities relating to continuity of employment under the Fair Work Act 2009 (Cth) and under workers’ compensation legislation which were of little assistance in construing the meaning of s 24(2A)(g). The main thrust of Mr Ralph’s argument is that, on a purposive construction, breaks in the continuity of paid work which arise from a veteran’s war-caused disability must be excluded.

91    I have no difficulty in accepting that weekends, annual leave and other kinds of leave taken by a veteran in the course of employment or self-employment will not give rise to any break in a period of continuous work, and (notwithstanding the absence of any express provision) there may be merit in the argument in relation to interruptions to paid work caused by a veteran’s accepted war-caused disabilities. It is, however, unnecessary to decide this question in the present case. Even if the Tribunal was required to ignore the three-year break in the continuity in Mr Ralph’s work as a transport consultant through JMR (which the Tribunal found resulted from his accepted war-caused disabilities) he did not work on his own account as a transport consultant for 10 years. He worked for about two years through JMR and the Tribunal found that he had no other paid consultancies. That is, even if the Tribunal misunderstood the meaning of continuous work in s 24(2A)(g) because it did not ignore this interruption it would have made no difference to the result.

92    Questions five, six and seven of the appeal must be dismissed.

The Loss Issue

93    Question nine of the appeal concerns whether the Tribunal misconstrued the words “suffering a loss” in s 24(2A)(e) of the Act.

94    This question revolves around the Tribunal’s finding (at [59]) that Mr Ralph was not “suffering a loss” as he still had use of the motor vehicle which he said was payment for his work in his sons’ businesses. In essence Mr Ralph alleges that the Tribunal misconstrued that phrase by limiting its “before and after” inquiry to his last specific job. He argues that the Tribunal (wrongly) regarded the comparator under s 24(2A)(e) as being his last job being his work as a consultant to his sons’ businesses.

95    In my view this appeal is misconceived. The Tribunal’s decision (at [59]) concerned Mr Ralph’s activities in his sons’ companies which it concluded was not “remunerative work”. On a fair reading of the decision the reference to “suffering a loss” related only to that enquiry. This is reinforced by the fact that the Tribunal concluded that he satisfied s 24(2A)(e) and (f) (at [56]) and took into account the work that he undertook through JMR in 2012.

96    Question nine of the appeal must to be dismissed. I note also that nothing turns on this question. The Tribunal found that Mr Ralph had not continuously worked as a self-employed transport consultant for 10 years and he therefore failed to satisfy s 24(2A)(g). It was unnecessary for the Tribunal to decide whether he was suffering a loss, and even if this question was answered in Mr Ralph’s favour his appeal must be dismissed.

CONCLUSION

97    For the reasons I have set out I have ordered that the appeal be dismissed and the applicant pay the respondent’s costs.

Associate:

Dated:    4 March 2015