FEDERAL COURT OF AUSTRALIA
Murray v Repatriation Commission [2016] FCA 1150
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The decision of the Administrative Appeals Tribunal the subject of this appeal is set aside.
2. The case be remitted to the Administrative Appeals Tribunal to be decided according to law.
3. Subject to any further order, the remittal is made without limitation.
4. Subject to any further order, the Respondent pay the Applicant’s costs of the appeal.
5. Should any party seek a further order as to costs or a further order imposing a limitation upon the remittal, that party must within 7 days hereof file and serve a submission in support.
6. Any submission in opposition to a further order must be filed and served within 14 days hereof.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
BROMBERG J:
1 This is an application brought under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). The applicant (“Mr Murray”) appeals the decision of the Administrative Appeals Tribunal (“Tribunal”) of 27 May 2015, published as Terrence Murray v Repatriation Commission [2015] AATA 364, to affirm the decision of the Veterans’ Review Board (“VRB”) to set Mr Murray’s disability pension at 100 per cent of the general rate and not at either the special rate of pension provided for by s 24 of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”) or the intermediate rate provided for by s 23 of that Act.
2 By his Amended Notice of Appeal, Mr Murray identified five grounds of appeal directed at two questions of law. Four of the five grounds are directed at the Tribunal’s construction and application of ss 23 and 24 of the VE Act. The fifth ground makes a more general claim that the Tribunal failed to comply with its statutory duty under s 43(2) of the AAT Act to give reasons for its decision.
3 For the reasons that follow Mr Murray’s appeal should be allowed.
Factual Background
4 The Tribunal has usefully set out the relevant background facts at [1]–[3] and [9]–[20] of its reasons. Those facts are not in contention in the instant appeal.
5 Mr Murray is a veteran of the Vietnam War. He provided military service between July 1966 and January 1969, serving in a non-combat role as a workshop clerk with 17 Construction Squadron in Vung Tau, South Vietnam between April 1968 and November 1968.
6 In 1974 Mr Murray was diagnosed with a benign essential tremor, a condition which caused him to involuntarily shake or nod his head. The diagnosis was reconfirmed by the original diagnosing neurologist in 1992.
7 At the time of Mr Murray’s original diagnosis, he was employed by the Department of Defence as a clerk. Mr Murray became self-conscious at work as a result of the involuntary head movements caused by his condition, and resigned from the public service in 1976.
8 Between 1976 and 1992 Mr Murray worked variously as a car park manager, a night shift machine operator, an unqualified carpenter, a cleaner, and a food van driver.
9 In 1992, unable to afford the rent of his home in Chelsea, Mr Murray moved to Netherby, a town in the Wimmera region of western Victoria with a population of about 20. Following his relocation, he received unemployment benefits for approximately five months.
10 Between 1992 and 1993 Mr Murray undertook various part-time non-skilled manual jobs including cleaning a local hotel and maintenance/handyman work at a local school and on local farms. In 1993 Mr Murray worked full-time for six months assisting a local business using a sheep dip apparatus. While working full-time he continued to perform casual non-skilled maintenance work including truck driving, re-stumping barns, building renovations and as a shearing shed rouseabout.
11 From 1994 Mr Murray worked part-time as a bus driver for K. H. Rintoule Pty Ltd. In order to take up the position, Mr Murray was required to obtain a heavy vehicle driver’s licence, renewed in 2004, the issue of which was subject to medical testing. Mr Murray was required to undergo further medical testing by the Taxi Directorate every two years. Mr Murray drove a school bus a total of approximately 100km per day split between morning and afternoon shifts lasting approximately one hour each. The bus route took Mr Murray off the main road along single lane gravel carriageways in order to collect and drop off children from local farms. He worked about ten hours per week but was paid for 15 hours per week to account for extra time spent cleaning and maintaining the bus. Whilst employed as a bus driver, Mr Murray continued to pick up extra non-skilled work as a carpenter and painter until about 2005.
12 Mr Murray left employment as a bus driver in June 2005, just prior to his 60th birthday. He applied for and was granted the Service Pension. Between December 2006 and June 2007 Mr Murray worked for the Shire of Hindmarsh for no more than five hours per week. Since June 2007 he has not worked.
13 On 27 May 2009 Mr Murray applied to the respondent (“Commission”) for a disability pension – a different, more valuable class of pension than the Service Pension – on the basis of the following disabilities: ischaemic heart disease, essential tremor, hypertension, anxiety and stress. On 22 September 2009 a delegate of the Commission accepted the claim for ischaemic heart disease but rejected the other claims. On the basis of that finding, the delegate set Mr Murray’s rate of pension to 80 per cent of the general rate provided for by s 22 of the VE Act.
14 On 26 June 2012 the VRB reviewed the decision of the Commission and determined that Mr Murray’s generalised anxiety disorder, alcohol dependence, tremor associated with anxiety, hypertension and emphysema were all war-caused and remitted the matter to the Commission for redetermination of Mr Murray’s rate of pension. On 16 August 2012, the Commission increased Mr Murray’s rate of pension to 100 per cent of the general rate with effect from 27 February 2009.
15 On 31 October 2012, Mr Murray sought review by the VRB of the 16 August 2012 decision of the Commission on the basis that his disability qualified him for the special rate of pension, a sub-category of the disability pension more valuable than the general rate. On 24 February 2014, the VRB affirmed the Commission’s decision to set the rate at 100 per cent of the general rate with effect from 27 February 2009.
16 On 19 March 2014, Mr Murray applied for review by the Tribunal of the 24 February 2014 decision of the VRB, on the basis that “[t]he Veterans’ Review Board erred in fact and/or law in failing to increase [Mr Murray’s] disability pension beyond 100% of [the] general rate under the Veterans’ Entitlement[s] Act 1986”.
Legislation
17 The relevant provisions of the VE Act are ss 23 and 24, setting out the qualifying criteria for the intermediate rate and the special rate of pension respectively.
18 Section 23 provides as follows:
23 Intermediate rate of pension
(1) 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’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c) the veteran is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free from that incapacity; and
(d) section 24 or 25 does not apply to the veteran.
(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
(3) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity:
(i) if the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both;
(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii) if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented, by reason of that incapacity, from continuing to undertake remunerative work that the veteran was undertaking.
(3A) [not relevant]
(3B) [not relevant]
(4) Subject to subsections (5) and (6), the rate at which pension is payable to a veteran to whom this section applies is $619.80 per fortnight.
(5) [not relevant]
(6) [not relevant]
19 Section 24 provides as follows:
24 Special rate of pension
(1) 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.
(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
(2A) [not relevant]
(2B) [not relevant
(3) [not relevant]
(4) Subject to subsections (5), (5A) and (6), the rate at which pension is payable to a veteran to whom this section applies is $919.40 per fortnight.
(5) [not relevant]
(5A) [not relevant]
(6) [not relevant]
discussion
20 I have concluded that the Tribunal erred in applying ss 23 and 24 to Mr Murray’s application.
21 To explain why I have reached that conclusion, I will commence by setting out – in broad terms – the relevant task that ss 23 and 24 posed in respect of Mr Murray’s circumstances. It is sufficient that I undertake the analysis by reference only to the terms of s 24. So far as is relevant, the terms of s 23 are either identical or sufficiently consonant with those of s 24 to permit the concession that, if the Tribunal erred in its application of s 24, it also erred in relation to s 23 and for the same reasons.
22 I need not be much troubled by s 24(1)(aa), (aab) and (a)(i). It was conceded, and the Tribunal was satisfied, that Mr Murray had met the requirements of those paragraphs. I need, however, to note two matters here, the consequence of which will be more apparent later. First, that Mr Murray satisfied s 24(1)(a)(i) meant that during the assessment period – a concept I will shortly explain – Mr Murray must be taken to have had a war-caused injury or war-caused disease (collectively “war-caused disabilities”) with a degree of incapacity of more than 70 % as assessed by reference to the requirements referred to in s 21A of the VE Act.
23 Second, although it is not recorded in the Tribunal’s reasons, it was not contended that Mr Murray did not also meet the requirements of s 24(1)(b). That is, that Mr Murray’s incapacity from his war-caused disabilities was of “such a nature as, of itself, alone, to render [Mr Murray] incapable of undertaking remunerative work for periods aggregating more than 8 hours per week”. Mr Murray submitted, without demur from the Commission, that it was not in dispute before the Tribunal that on and from 27 May 2009, Mr Murray satisfied the requirements of s 24(1)(b).
24 The requirements of each of the paragraphs of s 24(1) must be satisfied for a veteran to satisfy the s 24(1) criteria and qualify for a special rate of pension. So far, I have addressed all but paragraphs (c) and (d) of s 24(1). Paragraph (d) is not relevant. That leaves only paragraph (c). The contest before the Tribunal and on the appeal was concerned with whether Mr Murray’s circumstances satisfied s 24(1)(c) (or failing that s 23(1)(c)).
25 Before turning to more closely consider s 24(1)(c), I should make one further observation. For present purposes, s 24(2A) and (2B) are not relevant. However the terms of s 24(2) are. That subsection, as its opening words reveal, is linked in purpose to the terms of s 24(1)(c). Its terms will require closer consideration.
26 It has often been said that s 24(1)(c) has two limbs. The first limb is constituted by the words which precede the phrase “and is” found in the middle of the paragraph and the second limb is constituted by the words that succeed that phrase. In Repatriation Commission v Richmond (2014) 226 FCR 21, Middleton, Murphy and Rangiah JJ in the following passage at [52]–[54], identified the essence of what each of the two limbs of s 24(1)(c) required and reflected on the overall effect of the provision:
[52] As we have said, s 24(1)(c) has two limbs. The first limb, which is capable of being informed by s 24(2)(b), requires a causal connection between the veteran's war-caused incapacity, alone, and the veteran's inability to undertake the remunerative work he or she previously engaged in.
[53] The second limb, which is amplified by s 24(2)(a), requires a causal connection between that inability to work and the veteran's suffering of financial loss. The enquiry under this limb relates to whether the veteran's financial loss is a result of his or her war-caused incapacity.
[54] As Buchanan J said in Smith (at [48]), the overall effect of s 24(1)(c) is that an applicant for the special rate of pension “requires a demonstrated loss of earnings as the direct result of the war-related incapacity, and only for that reason”.
27 Echoing those observations Kenny, Murphy and Beach JJ in Summers v Repatriation Commission (2015) 230 FCR 179 at [165]–[167] said this:
[165] Section 24(1)(c) has two main limbs. The first limb provides:
“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 … ”
(Emphasis added.)
It requires that the veteran be prevented, by war-caused incapacity alone (that is, not for other reasons) from continuing his or her earlier remunerative work: Smith v Repatriation Commission (2014) 220 FCR 452 (Smith) at [8]-[11] per Rares J, [47]-[48] per Buchanan J, [167]-168] per Foster J; Richmond at [57]-[69] per Middleton, Murphy and Rangiah JJ and the authorities there cited. The possible harshness in the “alone” test in this limb is ameliorated to an extent by s 24(2)(b).
[166] The second limb of s 24(1)(c) is:
… and [the veteran] 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;
The operation of this limb is amplified by s 24(2)(a).
[167] We respectfully agree with Buchanan J's explanation in Smith at [48] where his Honour said that “[t]he overall effect of s 24(1)(c) may be summarised as one which requires a demonstrated loss of earnings as the direct result of the war-related incapacity, and only for that reason” (emphasis added).
28 The connection between the second limb and s 24(2)(a) is apparent from the observations just quoted. Similar observations were made in Richmond at [81] and followed up at [83] where this was said:
The plain words of s 24(2)(a)(i), informing the second limb of s 24(1)(c) as they do, make specific provision for the situation where a veteran, for reasons unrelated to war-caused incapacity, has voluntarily decided to leave his or her remunerative employment. This indicates that the legislature intended that matters other than strictly preventative factors would be picked up under that limb. The second limb (and s 24(2)(a)(i)) provide for a broad enquiry as to fact and degree that is well capable of catering for factors such as a veteran's voluntary or elective decision to cease work.
29 An example of the ameliorative effect of s 24(2)(b) referred to in Summers, was given in Richmond at [91]:
… Further, s 24(2)(b) allows a veteran to qualify for the special rate where the veteran ceases remunerative work for reasons unrelated to war-caused incapacity, and then later (perhaps when the veteran's war-caused incapacity has worsened) demonstrates genuine efforts to obtain work which are made fruitless substantially by reason of that incapacity: Smith at [49] per Buchanan J.
30 It should also be said by reference to Richmond at [77], that the focus of the enquiry under the first limb of s 24(1)(c), is on what has prevented the veteran from continuing to undertake remunerative work:
The enquiry under the first limb is therefore whether the veteran's war-caused incapacity alone, prevented, the veteran from continuing to undertake the remunerative work he or she previously engaged in. It is factors that prevent the veteran from engaging in remunerative work that are relevant to the enquiry under the first limb of s 24(1)(c).
31 A counterfactual analysis has often been employed in the application of s 24(1)(c). The assessment to be made asks whether, absent the war-caused reason, another reason (or other reasons) is a reason for the veteran's inability to engage in remunerative work. In Repatriation Commission v Smith (1987) 15 FCR 327 (“Repatriation Commission v Smith”) at 337 (Beaumont J) with whom Northrop and Spender JJ agreed), said this:
As has been said, the question posed by s 24(1)(c) is one of hypothetical fact. The Tribunal must attempt an assessment of what the respondent probably would have done if he had none of his service disabilities. The starting point is an examination of the prospects of employment, including self-employment, in southern Tasmania in early 1985 for a healthy sixty-nine year old plumber …
32 That counterfactual approach was regarded by the Full Court in Richmond at [69] as “expressing a practical rolled up approach to the operation of both limbs”.
33 Finally, before turning to consider in detail what the Tribunal did, I need to emphasise that whether the s 24(1)(c) criteria is satisfied has to be answered by reference to the circumstances prevailing during the “assessment period”. The relevant question being the rate or rates at which the pension would have been payable (in accordance with s 24) in the period starting on the date upon which the application was lodged and ending on the date of the determination of that application. That is the effect of the combined operation of ss 14, 15 and 19 of the VE Act as Rares J explained at [5] of Smith v Repatriation Commission (2014) 220 FCR 452 (“Smith”) (see also Richmond at [18]). It is reinforced by the language of s 24(1)(c). Satisfaction of s 24(1)(c) requires that the veteran “is” by reason of incapacity “suffering a loss” that the veteran would not “be” suffering if the veteran were free from that incapacity. The condition is cast in the present tense and, in context, must be referrable to whether the loss is being suffered in the assessment period: see in relation to a predecessor provision, Banovich v Repatriation Commission (1986) 69 ALR 395 at 402–403 (Fisher, Beaumont and Wilcox JJ).
34 The related disentitling circumstances relevant to the application of the second limb of s 24(1)(c) and spelt out by s 24(2)(a), are also to be construed as dealing with the situation prevailing during the assessment period. The word “is” in s 24(2)(a)(ii) again makes that apparent, as does the word “has” used in s 24(2)(a)(i). The use of the present tense indicates that the cessation of remunerative work is ongoing during the assessment period. That provision is addressing the reasons why, at that time, the veteran is not engaging in remunerative work. Why the veteran ceased his or her last employment may well be important to that consideration, but why the engagement in remunerative work has not resumed is also relevant: see Smith at [10] (Rares J) and, in a related context but in relation to s 24(2)(b), Smith at [15] (Rares J), and at [67] and [70] (Buchanan J).
35 I turn then to the reasons of the Tribunal to see how the Tribunal addressed the issues I have just identified. Unfortunately, the reasons of the Tribunal do not grapple with, even in the most rudimentary sense, the structure of s 24(1)(c), its interaction with s 24(2) or any of the issues of construction I have just addressed. Other than setting out the text of ss 23 and 24, and at [51] expressing its view that ss 23(1)(c) and 24(1)(c) were not satisfied, the Tribunal’s reasons make no reference to s 24(1)(c) or s 24(2)(a) or their equivalents in s 23. At [8], the Tribunal said that it was aware of judicial consideration of “relevant subsections” but then appeared to dismiss that as not germane.
36 In the section of its reasons headed “Findings”, the Tribunal set out its analysis of the facts and their application to what the Tribunal must have regarded as the relevant legislative criteria. As stated, it did so without any express reference to either ss 23 or 24. It is sufficient that I set out [47]–[50] of the Tribunals reasons beginning with [47]–[49]:
[47] The Tribunal notes that the determination of war-caused ailments was remitted to the Commission for reconsideration on 26 June 2012, some five years after the cessation of part time work. The rate of pension was increased on 16 August 2012, but with effect from 27 February 2009, itself towards two years after the last part time work concluded.
[48] The Tribunal considers that there is no evidence of health problems causing the Applicant to cease work in either June 2005 or June 2007. Specifically, there is no objective contemporaneous evidence that he was prevented by his retrospectively accepted war-caused incapacity from working more than eight or 20 hours per week. There is no objective contemporaneous evidence that he was prevented by his retrospectively accepted war-caused incapacity from working any time duration, including full time work. The medical evidence is consistent with a person retiring at a convenient time for his employer close to his 60th birthday. The Applicant’s health has subsequently continued to deteriorate as a result of the vicissitudes of his life choices.
[49] The subsequent claims for various increments to level of incapacity in 2009, back dated to 27 February 2009, have permitted a post hoc and serendipitous (the Applicant turned 65 in July 2010; the assessment period commences 27 May 2009 ability to apply for an increased rate of pension, which is beyond the intention of the Parliament.
37 The Tribunal’s dispositive conclusions were expressed in a single paragraph (at [50]) which, for ease of reference, is here reproduced with each sentence separately numbered:
1. The Tribunal finds that there is no objective contemporaneous evidence the Applicant has ceased to engage in remunerative work related to his incapacity from war-caused injury or war-caused disease, or both. 2. The Tribunal thus finds the Applicant ceased to engage in remunerative work for reasons other than his incapacity from his war-caused injury or war-caused disease, or both. 3. Specifically, the Tribunal finds that the reason(s) the Applicant ceased employment was not for war-caused injury or war-caused disease, or both, alone. 4. This includes his personal choice to receive the service pension in 2005 at 60 years of age and his geographically remote, sparsely populated area where suitable employment opportunities are scarce. 5. The Tribunal finds that once the Applicant ceased all forms of remunerative work in June 2007, there is no evidence he has been genuinely seeking to engage in any remunerative work.
38 The Commission contended that [50] of the Tribunal’s reasons should be understood as follows – the Tribunal, having presumed that the first limb of s 24(1)(c) was met, was not satisfied that the second limb of s 24(1)(c) was met because the disentitling criterion of s 24(2)(a)(i) was satisfied. The Commission conceded that a generous view of [50] needed to be taken in order to discern such a conclusion from the terms of [50]. It, however, supported its contention by pointing to the language of the second sentence of [50], which, I accept, largely replicates the text of s 24(2)(a)(i). Reasoning from that observation, the Commission contended that the Tribunal must have concluded that as Mr Murray’s circumstances satisfied the disentitling criterion of s 24(2)(a)(i), he failed to satisfy the second limb of s 24(1)(c) because, by operation of s 24(2)(a), Mr Murray was not to be taken to be suffering a loss of salary or wages for the purposes of s 24(1)(c).
39 The Tribunal’s reasons should be fairly read and the orthodox approach requires that that be done without over-zealous judicial scrutiny: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh, Gummow JJ). A generous reading is not inappropriate so long as it is a fair reading. It is, I think, fair to infer that the second sentence of [50] has the language of s 24(2)(a)(i) in mind.
40 Presuming that to be so, Mr Murray contended that even if [50] is to be understood as the Commission contends, error is evinced in any event. Mr Murray contended that the Tribunal failed to assess the s 24(2)(a)(i) criterion by reference to the circumstances prevailing during the assessment period and was instead subsumed by considerations going to why Mr Murray chose to retire from his last remunerative positions in July 2005 and July 2007.
41 Read in the context of [48], and despite the use of the present tense in the first sentence (“has ceased”), to my mind, the first to fourth sentences of [50] are dealing with Mr Murray’s circumstances to June 2007. The fifth sentence then addresses circumstances after June 2007. That seems to be the structure of [50]. When the Tribunal used the phrase “ceased to engage in remunerative work” in the second sentence of [50] and the phrase “ceased employment” in the third sentence, the Tribunal was referring to Mr Murray ceasing to engage in his last employment. This is consistent with the use of the simple past tense, “ceased”, to denote a single past event. If that were so, Mr Murray’s contention that if the Tribunal was addressing s 24(2)(a)(i) in the second sentence of [50], the Tribunal misconstrued it, would be made good. It would support the conclusion that the Tribunal was addressing the reasons why Mr Murray left his last remunerative position rather than the proper question of why, as at the assessment period, Mr Murray had ceased to engage in remunerative work.
42 Mr Murray’s contention faces the following potential difficulty. If the Tribunal had been suffering under the misapprehension upon which Mr Murray’s contention relies, it would not have been necessary for the Tribunal to consider the circumstances subsequent to Mr Murray’s last employment but the fifth sentence of [50] shows that it did. However, in answer to that it may be said that the fifth sentence of [50] has nothing to do with s 24(2)(a)(i). That sentence contains the phrase “has been genuinely seeking to engage in any remunerative work” which is found in s 24(2)(b). Applying the same rationale that the Commission asks me to apply to the second sentence of [50], should I assume that the fifth sentence is addressing s 24(2)(b)?
43 Initially, the Commission answered that question in the affirmative. Later, perhaps appreciating the deficiency in its primary submission that I have identified, the Commission submitted that the fifth sentence should be understood as addressing the criterion in s 24(2)(a)(i) as well as that in s 24(2)(b).
44 The Commission’s changed position makes apparent the extent of speculation involved in attempting to decipher the Tribunal’s reasoning process. It demonstrates the inadequacy of the Tribunal’s reasons. I do not consider that the fate of Mr Murray’s appeal should depend upon the Court speculating as to how the Tribunal reasoned to its ultimate conclusion. I will deal with that matter further when I address Mr Murray’s fifth ground of appeal and the inadequacy of the Tribunal’s reasons.
45 For present purposes, that is in addressing Mr Murray’s third ground of appeal, I will presume that the Commission’s contention about how [50] is to be understood, including the fifth sentence thereof, is correct. That is that the fifth sentence of [50] provides a contemporaneous basis upon which the Tribunal was satisfied that the criterion of s 24(2)(a)(i) was met and thus that s 24(1)(c) was not. There is a further contention raised by Mr Murray that substantiates error even if that presumption is made. It is this – the Tribunal’s dispositive reasoning does not evince a sufficient engagement by the Tribunal with the counterfactual assessment of “what [Mr Murray] probably would have done if he had none of his service disabilities” (Repatriation Commission v Smith at 337). Even if the fifth sentence is read as addressing the criterion in s 24(2)(a)(i), it does not go far enough. Accepting that the fifth sentence is a finding that, as at the assessment period, Mr Murray was not seeking to engage in remunerative work, the Tribunal needed to consider and determine whether Mr Murray was not then seeking remunerative work “for reasons other than his … incapacity” from his war-caused disabilities.
46 The Tribunal’s reasoning at [48] shows that on the findings made, the Tribunal did, in substance, undertake a counterfactual exercise in relation to why in June 2005 Mr Murray retired from his last regular employment, and in June 2007 from his last irregular employment. In essence, the Tribunal put aside the effect of Mr Murray’s war-caused disabilities when it concluded that those disabilities did not prevent him from continuing the work he was then doing and that consequently his ceasing employment at that time was brought about by personal choice. But why Mr Murray did not seek to engage in remunerative work thereafter was not tested by consideration of the hypothetical counterfactual. If, as I have presumed it did, the Tribunal relied, for s 24(2)(a)(i) purposes, on Mr Murray not genuinely seeking to engage in remunerative work as a reason for explaining why he had ceased employment as at the assessment period, the Tribunal needed to, but did not, consider whether putting aside Mr Murray’s war-caused disabilities, Mr Murray would not have sought employment. The reasons do not support the conclusion that the Tribunal grappled with the question of whether, after June 2007, Mr Murray no longer sought work “for reasons other than” his incapacity from his war-caused disabilities. That issue needed to be addressed and particularly so given that it was not disputed that as of 27 May 2009, Mr Murray’s incapacity from his war-caused disabilities was of “such a nature as, of itself, alone, to render [Mr Murray] incapable of undertaking remunerative work for periods aggregating more than 8 hours per week” (s 24(1)(b)).
47 In failing to address that issue, the Tribunal erred by misconstruing the task required of it by s 24(2)(a)(i), and in turn, s 24(1)(c) of the VE Act. For the same reason, the Tribunal erred by misconstruing the task required of it by s 23(3)(a)(i), and, in turn, s 23(1)(c). If I accepted that the Commission was correct in its contention as to how [50] is to be understood, I would nevertheless allow that part of ground 3 of Mr Murray’s Amended Notice of Appeal which raises the Tribunal’s failure to apply the hypothetical fact analysis.
48 I would not allow grounds 1(a), (b) and (d). The matters there raised were pressed in support of Mr Murray’s primary ground and not pressed as standalone challenges. I would not allow ground 1(c) as, in my view, the Tribunal did at [37] of its reasons sufficiently identify the remunerative work that Mr Murray was undertaking.
49 That leaves grounds 2, 4 and 5 and an aspect of ground 3. I will address ground 2 first.
50 Ground 2 focused upon the Tribunal’s reference at [48] (and repeated at [50]) to the absence of “objective contemporaneous evidence” that Mr Murray was prevented by his war-caused disabilities from working. That finding seems to be confined to the Tribunal’s inquiry as to why Mr Murray ceased work in June 2005 and June 2007. Mr Murray contended that the Tribunal proceeded on the erroneous basis that it could not be satisfied that he ceased working by reason of his war-caused disabilities unless that satisfaction was supported by objective contemporaneous evidence.
51 I think by “objective” evidence the Tribunal meant independent evidence, relevantly, not the evidence of Mr Murray. By “contemporaneous” evidence I take the Tribunal to mean evidence of a medical assessment conducted at or about the time at which Mr Murray ceased working in either June 2005 or June 2007.
52 Clearly, the Tribunal would have been wrong if it had proceeded on the basis for which Mr Murray contends. That a war-caused disability prevented a veteran undertaking work could be established on the basis of the veteran’s own evidence or on the basis of a medical opinion given at a time that post-dated that prevention: see in relation to proof of an injury, May v Military Rehabilitation and Compensation Commission (2015) 322 ALR 330 at [211]-[212] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ).
53 I do not, however, accept that the Tribunal proceeded on that basis. The Tribunal’s reference to a lack of “objective contemporaneous evidence” needs to be read in context. At [43], the Tribunal referred to “a reasonably contemporaneous medical assessment on 14 February 2015” and noted that it contained no mention of any work-related health issues, including anxiety or dyspnoea. The Tribunal also referred to medical assessments made in July and November 2005 and noted that there was no reference to symptoms or signs of anxiety or dyspnoea. At [44] and [45], the Tribunal referred to medical records made in 2007 and 2008 to the same or similar effect. Whilst clearer language could have been used to make the point, to my mind, the point being made in [48], and referred to again at [50], is that the absence of any reference to symptomology associated with Mr Murray’s war-caused disabilities in medical assessments made contemporaneously with his ceasing his last employments, was a persuasive consideration in support of the Tribunal’s conclusion that Mr Murray’s war-caused disabilities did not cause him to cease those employments. When properly understood, there is no error apparent in that reasoning. Mr Murray’s second ground of appeal should be dismissed.
54 Mr Murray’s fourth ground of appeal took issue with the observations made by the Tribunal at [49] of its reasons and claimed that those observations evinced that the Tribunal misconstrued ss 23 and 24. It is very difficult to understand what the Tribunal was trying to say at [49]. The Commission was unable to assist. Its submission was that [49] was a passing and irrelevant observation. The difficulty with that submission, however, is unless the meaning of the paragraph is discerned, its relevance cannot be ascertained.
55 Mr Murray contended that paragraph [49] evinced that the Tribunal was diverted from determining his application according to ss 23 and 24 by statements made in second reading speeches that the Tribunal had earlier set out in its reasons (at [6]–[7]), to the effect that the intention of providing the high levels of pension was to compensate severely disabled veterans who could not go back to work upon their return from service and that it was not intended such pensions should be granted to veterans aged over 65. Mr Murray contended that the Tribunal should not have relied upon extrinsic material to displace the determination of his pension entitlement according to the words of the statute as interpreted by authorities the Tribunal was bound to follow.
56 I think there may be some force in the connection Mr Murray’s contention makes between the Tribunal’s reference to the intent of Parliament, the reference (also at [49]) to Mr Murray turning 65 and the reference in the extrinsic material set out earlier in the Tribunal’s reasons to the effect that veterans over 65 ought not ordinarily be eligible for the higher rates of pension. I am not satisfied, however, that in [49], the Tribunal is saying that Mr Murray failed to meet the ss 23 or 24 criteria because he turned 65 in July 2010 which is really the import of Mr Murray’s attempt to give [49] some meaning. It seems to me that [49] is more closely concerned with the matters addressed at [47] and [48] than it is with the extrinsic materials elsewhere set out in the reasons. When [49] is read with [47] and [48], I suspect that the point the Tribunal was trying to make was that, its view that Mr Murray had voluntarily ceased work without a causative contribution by any war-caused disability, was not undermined by assessments made by the Commission that Mr Murray was totally incapacitated by his war-caused disabilities at a much later time and with retrospective effect.
57 I consider that [49] assists the contention made by Mr Murray in support of his primary submission that the Tribunal was wrongly subsumed by the reasons for the cessation of Mr Murray’s last employments, rather than upon the proper question as to why, as at the assessment period, Mr Murray was no longer engaged in remunerative work. I do not, however, consider that Mr Murray has made out an error of the kind contended for by ground 4.
58 The second aspect raised by Mr Murray’s ground 3, was that it was not open on the evidence for the Tribunal to have held that Mr Murray ceased his remunerative employment for the following reasons:
(a) his personal choice to receive the service pension in 2005 at 60 years of age (“finding (a)”); and
(b) his geographically remote, sparsely populated area where suitable employment opportunities were scarce (“finding (b)”).
59 Each of those two findings were made at [50]. Each of those findings were also the subject of Mr Murray’s fifth ground of appeal, that the Tribunal failed to provide adequate reasons. In relation to each finding, I will deal first with whether the finding was open and then consider whether adequate reasons were provided.
60 In relation to finding (a), I am not satisfied that the finding was not open on the evidence. Mr Murray ceased his regular part-time work in June 2005 very near his 60th birthday as the Tribunal recorded at [42]. There was medical evidence before the Tribunal which it considered was “consistent with a person retiring at a convenient time for his employer close to his 60th birthday” (at [48]). That seems to be the basis upon which the Tribunal said at [50] that Mr Murray’s reasons for ceasing to engage in the remunerative work included “his personal choice to receive the service pension in 2005 at 60 years of age”. It was open to the Tribunal to reach that conclusion on the basis of the material to which I have referred. That material also explains the finding made and denies Mr Murray’s contention that the finding was unsupported by adequate reasons.
61 Finding (b) is more difficult to defend and so much was recognised by the Commission. There are actually two findings involved in (b). The first – that Mr Murray lived in a geographically remote, sparsely populated area – is defensible. It was both open and the subject of adequate reasons. At [12], the Tribunal recorded that Netherby, where Mr Murray lived from 1992, is isolated, with a population of about 20 and located in the Wimmera approximately half way between Melbourne and Adelaide.
62 The second part of (b) was that in Mr Murray’s area “suitable employment opportunities are scarce”. There was no direct evidence to suggest such a conclusion and no reasons were given by the Tribunal as to why it made that finding. The Commission contended that the conclusion could legitimately be inferred from the fact that Netherby is isolated with a very small population. I reject that contention. It may well be the case that many remote and sparsely populated areas suffer from few employment opportunities, but no such conclusion could be made about any particular area without considering its particular circumstances. Remoteness is not necessarily an indicator of a scarcity of positions generally and not an indicator of the extent of work that may be available for an employee with particular skills.
63 However, the finding in question seems to be made about 2005 and as to why Mr Murray ceased regular employment at that time. The Tribunal found that after leaving that employment in June 2005 (at [42]), Mr Murray was then not employed until 4 December 2006 (at [44]). That may be some evidence of employment opportunities being scarce for Mr Murray in the period in question. In any event, I do not consider that, if erroneous, the finding is material to the Tribunal’s conclusion. The conclusion reached by the Tribunal, of which the fourth sentence of [50] was a part, was emphatic. The Tribunal did not regard Mr Murray’s incapacity from war disabilities to be a reason for his ceasing his last regular employment in 2005. Even if one of the reasons that the Tribunal ascribed to Mr Murray for taking that course – scarce employment opportunities – was wrong, the Tribunal had a sufficient basis for its ultimate finding on that question.
64 I would reject the challenges made to findings (a) and (b) by both grounds 3 and 5.
65 In pursuance of his fifth ground of appeal, Mr Murray also complained more generally about the inadequacy of the Tribunal’s reasons.
66 As I have already observed, the Tribunal’s reasons failed to expressly identify the basis for the Tribunal’s conclusion at [51] that it was “not reasonably satisfied that [Mr Murray’s] circumstances met the provisions of ss 23(1)(c) or 24(1)(c)”. That deficiency means that significant uncertainty attends those reasons. Did, for instance, the Tribunal address the first limb of s 24(1)(c)? It is probably more likely that the Tribunal presumed that the first limb was satisfied. The language of the second limb of s 24(1)(c) is not found in [50] of the reasons but that of s 24(2)(a)(i) is. Did the Tribunal reason that s 24(2)(a)(i) was satisfied? If so, as I suspect may have been the case, why did it not say so? Is it to be inferred that because the Tribunal regarded s 24(2)(a)(i) as satisfied, the Tribunal concluded that the second limb of s 24(1)(c) was not? Again, that could so easily have been said. What of s 24(2)(b)? Given that Mr Murray was less than 65 years old and had not been engaged in remunerative work, the provision was enlivened and had to be dealt with. Is the fifth sentence of [50] a conclusion that the criterion in s 24(2)(b) was not satisfied? Is that sentence only addressing s 24(2)(b) or is it also addressing s 24(2)(a)(i)?
67 Whilst I am prepared to read the Tribunal’s reasons generously, neither the parties nor the Court should be left to speculate as to the Tribunal’s reasoning process.
68 In Willis v Repatriation Commission (2012) 202 FCR 323 at [7]–[18], I surveyed the authorities on the content of the obligation imposed upon the Administrative Appeals Tribunal to give reasons by s 42(3) of the AAT Act. Of the cases there surveyed, the following observations about the content and purpose of the duty to provide adequate reasons given in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69] by McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) is most germane:
… It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion.
69 The reasons of the Tribunal did not ensure that a dissatisfied person like Mr Murray “can identify with certainty” the reasoning of the Tribunal. More tellingly, the Court, on an appeal such as this, is unable to identify with certainty the reasoning process of the Tribunal. I do not intend to suggest that absolute certainty is required but, at the least, the reasoning process of the Tribunal must be exposed so that what it decided and why it decided it is ascertainable without speculation. As Kenny, Murphy and Beach JJ said in Summers at [110]:
… One of the central objects behind the statutory obligation to give reasons is to expose the Tribunal’s reasoning process which may facilitate appeals on a question of law or judicial review. The Tribunal was required to explain what it decided on the issue of cl. 6(a) and why, and in our view it did not: Preston v Secretary, Department of Family and Community Services (2004) 39 AAR 177 at [21] per Stone J; Hill v Repatriation Commission (2004) 207 ALR 470 at [20] per Mansfield J; Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 179 FCR 554 at [49] per Bennett, Flick and McKerracher JJ; Dornan and Others v Riordan and Others (1990) 24 FCR 564 at 573-574 per Sweeney, Davies and Burchett JJ.
70 As the Full Court said in relation to s 43(2) of the AAT Act at [110] of Summers, the failure to provide adequate reasons constitutes an error of law.
71 Sections 23 and 24 of the VE Act have been described as “bedevilled with bewildering complexity” and as examples of a drafting style which “has created a nearly impenetrable shroud over [their intended] meaning”: Smith at [26], (Rares J). As did the Full Court in Richmond at [69], I respectfully echo those observations as well as those made in supplementation that the cost to the community of the obscurity must be enormous.
72 The difficulty that the obscurity presents decision makers, including the Tribunal, must be acknowledged. Particularly so when it is appreciated that decision-makers will not necessarily be lawyers trained to grapple with complex statutory language. Whilst that difficulty may well explain the lack of adequate reasons and other errors in this case, it cannot excuse them.
Conclusion
73 I have upheld Mr Murray’s fifth ground of appeal together with part of ground 3. Mr Murray’s appeal should be allowed, the decision of the Tribunal the subject of the appeal should be set aside and the matter should be remitted to the AAT for determination according to law. No submissions were made as to whether any remittal should be confined or as to costs. Subject to any further order, the order I will make will not confine the remittal so that the whole of the case will need to be redetermined without limitation, including as to the presentation of further evidence. Subject to any further order, I will order that the Commission pay Mr Murray’s costs. I will, however, reserve to the parties the opportunity to contend for a further order that confines the remittal or seeks a different outcome as to costs. If any application for a further order is made, I will deal with it on the papers after receiving written submissions from the parties.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. |
