FEDERAL COURT OF AUSTRALIA
Clearihan v Repatriation Commission [2020] FCA 1130
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Within seven days, the parties submit any agreed minute of proposed orders to give effect to the Court’s reasons and in relation to costs.
2. If the parties cannot agree, then within 14 days each party submit a minute of proposed orders to give effect to the Court’s reasons and in relation to costs, together with a written submission of no more than two pages.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
MOSHINSKY J:
Introduction
1 The applicant was conscripted and served in the Australian Army between 1965 and 1967. He was deployed to Vietnam in 1966 for about 12 months. The applicant was born in March 1945 and is 75 years old. He has developed a number of physical and psychological conditions, many of which have been accepted by the Department of Veterans’ Affairs (DVA) as being “war-caused”.
2 In 2013, the applicant applied for a disability pension under the Veterans’ Entitlements Act 1986 (Cth). The claim was accepted and he has been paid a pension at the “general rate” of pension under the Act since his claim was accepted.
3 On 24 July 2015, the applicant applied for an increase to his rate of pension. On 26 November 2015, the Repatriation Commission, which is the respondent to this proceeding, decided to increase the applicant’s general rate of pension to the rate applicable to 80% impairment (the Original Decision). However, the Commission was not satisfied that the applicant was entitled to receive either the “special rate” or the “intermediate rate” of pension under the Act.
4 The applicant sought review of the Original Decision by the Veterans’ Review Board (VRB). On 27 September 2016, the VRB affirmed the Original Decision.
5 The applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the VRB’s decision. A hearing took place before the Tribunal on 4 and 5 June and 7 September 2018. Both the applicant and the Repatriation Commission were represented at the hearing, at which the applicant called lay and expert witnesses. On 18 June 2019, the Tribunal decided to affirm the decision under review, and provided reasons for its decision. In summary, the Tribunal was not satisfied that the applicant was eligible for the special rate or the intermediate rate of pension at any time during the assessment period, which the parties agreed extended from the date of the applicant’s application on 24 July 2015 to the date of the Tribunal’s decision (the Assessment Period).
6 The Tribunal analysed the matter by reference to two periods of time:
(a) the period from 24 July 2015 (the date on which the applicant applied for an increase in the pension) until the end of September 2016 (the time when the VRB made its decision) (Period 1); and
(b) the period from the end of September 2016 to the end of the Assessment Period (Period 2).
7 In relation to Period 2, the Tribunal was not satisfied that the applicant met the requirement in s 24(1)(b) of the Veterans’ Entitlements Act. Section 24(1)(b) relevantly required that the veteran be “totally and permanently incapacitated”, that is to say, that “the veteran’s incapacity from … war-caused disease … 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”. (That requirement applied to the applicant by virtue of s 24(2A)(c), which is set out below.) The Tribunal found that, during Period 2, the applicant was capable of doing clerical work for 20 hours per week (and certainly more than 8 hours per week). Accordingly, the Tribunal concluded that the applicant was not entitled to a pension at the special rate during Period 2.
8 In relation to Period 1, the Tribunal was not satisfied that the applicant met the requirements in s 24(2A)(d) and (e) of the Veterans’ Entitlements Act. The requirements of those provisions may be summarised as follows:
(a) Section 24(2A)(d) relevantly required that “the veteran is, because of incapacity from … war-caused disease …, 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”.
(b) Section 24(2A)(e) required that “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”. Section 24(2B)(a) relevantly provided that, for the purposes of s 24(2A)(e), a veteran who is incapacitated from war-caused disease is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if “the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that … war-caused disease”.
9 The Tribunal found that, during Period 1, there were several factors that contributed to preventing the applicant from being able to undertake clerical work (being his last paid work), including that, by the start of Period 1 (and continuing throughout it), the applicant had settled into retirement life and was not willing to relinquish this status. Accordingly, the Tribunal concluded that the applicant did not meet the “alone test” requirement under s 24(2A)(d) during Period 1.
10 The Tribunal also found that the reason the applicant decided to inform his employer (CitiPower) in late September 2014 that he would be unable to return to work was the detection and treatment of a spinal condition (which was not a war-caused injury or disease). Accordingly, the Tribunal concluded that s 24(2B)(a) applied to the applicant during Period 1. It followed that he did not satisfy the requirement in s 24(2A)(e) during that period.
11 The applicant appeals on a question of law from the decision of the Tribunal. The applicant relies on five questions of law (and associated grounds) as set out in his amended notice of appeal. The questions of law may be summarised as follows:
(a) in respect of Period 2 – whether the Tribunal misdirected itself as to what constitutes a capacity to undertake remunerative work for the purposes of s 24(1)(b); and
(b) in respect of Period 1 – whether the Tribunal erred in its application of s 24(2A)(d); whether the Tribunal engaged in an illogical or irrational process of reasoning in finding that s 24(2B)(a) applied; whether the Tribunal erred in its application of s 24(2B)(a); and whether the Tribunal engaged in an illogical or irrational process of reasoning in concluding that the applicant ceased to engage in remunerative work during Period 1 because of the detection and surgery of a spinal growth (meningioma).
12 For the reasons that follow, I have concluded that: the applicant’s challenge to the Tribunal’s findings in relation to Period 2 is not made out; and the applicant’s challenge to the findings in relation to Period 1 is made out.
Background facts
13 In addition to the background facts set out above, the following is a summary of certain additional background facts (based on the Tribunal’s reasons). The following summary is not comprehensive; a more detailed description of the background facts is contained in the Tribunal’s reasons.
14 From about 1961, the applicant worked for the State Electricity Commission, which was the predecessor to CitiPower. In 2000 or 2001, the applicant started employment at CitiPower, working as a temporary officer. The applicant’s role when he started work at CitiPower was to process documents related to meter changes, system changes and name changes.
15 Over time, the applicant moved into the New Connections area of CitiPower. As the name suggests, New Connections arranges for new connections of brand new commercial, industrial or residential premises. The applicant gave evidence to the Tribunal that he handled “almost anything” and “took turns working on the front counter”. He said he became a customer service officer and dealt with electrical contractors, customers and liaised with the field people. His daily duties involved taking telephone calls from customers, electricians or other people in the first hour of the day and dealing with those enquiries. He said he would also receive calls during the day from other people who had his telephone number. He said he would spend the day arranging paperwork and field visits or contacting customers or retailers or field people who were mainly contractors. The applicant’s ordinary hours of work in this position at CitiPower were 37.5 hours per week.
16 In about July 2013, the applicant was diagnosed with prostate cancer and took leave from work. He was 68 years old at this time.
17 On 16 September 2013, the applicant submitted a claim for the disability pension under the Veterans’ Entitlements Act in respect of “depression” and “prostate cancer”.
18 In October 2013, the applicant had keyhole surgery to remove his prostate.
19 Following the surgery, the applicant was initially on sick leave. He then received income protection insurance payments for a period of 12 months.
20 It was recommended that the applicant undergo hormone therapy and radiation therapy. These therapies commenced in January 2014.
21 In his evidence to the Tribunal, the applicant described his physical symptoms in 2014 as follows. He said he was extremely tired a lot. He said he nearly passed out a couple of times and had to lie down regularly. In terms of his day-to-day life, the applicant said he could not do some things that he could normally do, such as play tennis. He said he could not lift anything that was “reasonably weighty”. He said it affected his concentration levels and his wife would tell him he was jumping from one thing to another. He said he felt nauseous every couple of days and had hot flushes “almost” nightly. He said the hot flushes did not seem to bother him during the days.
22 In a letter dated 2 April 2014 from Dr Joon (the applicant’s radiation oncologist) to Mr Rogerson (an employee at North Eastern Eurology Pty Ltd), it was stated that the applicant had completed his course of radiation. Dr Joon reported as follows:
He has tolerated the treatment very well with some minor urinary and bowel irritation but this has now settled.
23 A similar report was provided by Dr Joon to Dr Moffitt (the applicant’s treating general practitioner) in a letter dated 1 May 2014 in which he stated as follows:
He tolerated treatment very well and reports no significant side effects. We plan to review him again in approximately 3 months time with a repeat PSA prior.
24 In his evidence to the Tribunal, the applicant said that, in about April or May 2014, his wife persuaded him to start going to a gym that was around the corner from his house. He said a guy at the gym put a program together for him that “would not break him”. He said he was against it to begin with, but had to admit that it was good. He said the program involved using the exercise bike and the treadmill. He said the treadmill “killed him” and that once he had to sit down and place his head down as he “really felt faint”. The applicant said he attended once a week when the trainer was there and once on his own. He said he “could please himself and do a few light things”. The applicant said it was helpful going to the gym because he had put on some weight and he felt better “for doing something”.
25 In June 2014, a growth in the applicant’s spine was detected. This growth was surgically removed on 9 September 2014.
26 In his evidence to the Tribunal, the applicant said that in about September 2014 he told Mr Allan (the applicant’s line manager at CitiPower) that “all the medical advice was that he would not be coming back to work”. At this time, the applicant was 69 years of age. The applicant said he was disappointed that he was not going back to work because he enjoyed the work and the people he worked with. He said he felt he had made a contribution and the feedback he had received was that he had done a great job.
27 The applicant said that Mr Allan’s response to learning he would not be coming back to work was as follows:
He asked me if Sam [Mavraganis of CitiPower] had mentioned about CitiPower was doing some downsizing and I said, no, no-one’s mentioned that. I knew there was a new hierarchy, virtually new CEO or someone, and I said no and he said, well, you might want to consider if you’re not coming back applying for this voluntary departure package and he virtually - you know, he intimated that but he didn’t - I said, well, can you - rather than go by just verbal advice, because people can - not that I don’t trust Trevor but people can deny what they said. I said can you put it in writing to me and then we can consider it.
28 On 1 October 2014, Mr Allan sent an email to the applicant informing him that he could apply for a voluntary redundancy and that otherwise, the “CO’s” would “merge with the inner PAL Connections team” at “Market St”. The applicant responded to Mr Allan the same day stating that he would get some advice and that he was not sure what to do at that stage.
29 On 14 October 2014, Ms Nichol (HR Business Partner at CitiPower) sent an email to Mr Turnour (also of CitiPower) attaching a letter dated 10 October 2014 that Ms Nichol stated had been sent to the applicant. This letter set out the options that were open to the applicant following a review of the Connections Services function. According to this letter, the options included submitting an application for one or more of the positions advertised in the new structure; applying for a voluntary redundancy or to take no action and be allocated to an area of the new structure as a Connections Officer following an assessment of the applicant’s preferences for team and location. The applicant was notified that this last option may involve a change to his title and reporting line.
30 On 16 October 2014, Mr Allan sent an email to HR (copying in Ms Toohey, another HR employee at CitiPower), in which he stated:
Keith [i.e. the applicant] is indicating that his doctor is saying he may never work again. As part of his financial planning and pensions, etc, with the armed forces, he is a lot better off if we “sack” him rather than him resigning or taking a VR.
So he is asking me “off the record how that could happen”. Can we word a letter to him that talks about his being impacted and his position is no longer available and say we’ll pay him x weeks in lieu of notice?
31 On 20 October 2014, the applicant sent an email to Mr Allan confirming that he authorised Mr Allan to arrange to obtain a voluntary redundancy payout figure for him.
32 When the applicant was asked (during his evidence to the Tribunal) about his attitude to the redundancy offer, he stated:
I was a bit ambivalent about it because I thought, well, you know, with your - whatever’s in super and this, what are you going to do because Trevor told me I was virtually still required and - - -
What do you mean by still required? He still had a job for me there and I just – I don’t know, I was - I’ve always gone by what the medical people have told me because, as far as I’m concerned, they’re - that’s their job, they know what they’ve told me and they’ve been right so far.
33 On 21 October 2014, Mr Allan sent an email to Ms Toohey in which he stated:
Keith [i.e. the applicant] has been given the figures for his VR and had decided unfortunately to pursue his first option of us “letting him go” as it suits his long-term pension options?
34 On 29 October 2014, the applicant sent to Ms Toohey a medical report by Dr Moffitt stating that he was permanently disabled due to his accepted DVA disabilities from returning to work either now or in the future; and a further medical report by Dr Joon dated 7 October 2014 outlining the prostate cancer and stating that, due to the applicant’s age and the nature of his illness and disabilities, he was unable to return to work.
35 In his evidence to the Tribunal, the applicant said he was ambivalent about the redundancy offer because he had a lot of things going through his head and was “down and depressed and that”. He said:
Does this mean I’m - you know, I won’t go back to work. What’s the - and, of course, the wife’s a financial genius in our family, not me, and what happens if I accept it? How does it - I don’t know and, in the end, all the advice was, get what you can.
36 The applicant said that this advice came from the people at CitiPower and his friends. When asked how the doctors’ advice was relevant to his decision, Mr Clearihan said:
Well, because they said I wouldn’t be going back to work, so do I do, do I just quit and see you later and that’s it or can I quit and they’ll say, yes, you can have two years for every year of service, great.
37 The applicant said he applied for the package. In an email to the applicant dated 10 November 2014, Ms Toohey confirmed that she had received his application on that day.
38 In his evidence to the Tribunal, the applicant said that, following the back surgery to remove the meningioma, he was not able to lift anything heavier than a milk carton for approximately three months. He said he told the gym he would not be “coming back for a fair while”. He said he was in hospital for one day only and was walking within a few days. When asked how long it took him to recover from this surgery, the applicant said that he was walking reasonably well by the end of three months so he started walking longer distances. He said he went to the “repat gym” in 2015, about seven, eight or nine months after the surgery.
39 The applicant said he did not have any ongoing symptoms arising from the back surgery. He said a subsequent MRI had shown that it was clear. He said the neurosurgeon wanted to review him once a year. He said the endocrinologist did not wish to see him anymore.
40 At the hearing before the Tribunal, the applicant said he had not had any plans to retire. He was asked why he did not go back to work, to which he stated:
…Because they told me I wasn’t going back to work, the doctor said, you know, you - you’re not capable of - and I knew probably deep down I wasn’t capable but - and, you know, with all the cancers and that my mind was in a turmoil, I didn’t know what was best, which way to go as far as take the package or not take the package so I took the package.
[Counsel: And if you had not had the cancer in July 2015 is it possible you would’ve been working?] Well, if I hadn’t had the prostate cancer I would’ve probably worked right through until whenever. I don’t know. But 2015, yes, I would’ve - I would think I’d still be working then because that was only a couple of years after it so - I mean, everything was out of the blue to me, it was all new.
41 During cross-examination before the Tribunal, it was put to the applicant that his back condition and the surgery that had followed in September 2014 had been a factor in his “calculations” when he spoke to Mr Allan in that same month to advise him that his doctor had told the applicant that he would not be returning to work. The applicant said he did not agree with this proposition and that the “back operation was neither here nor there, it was just a back operation. It had no bearing on me retiring” and that it “didn’t have any effect on me before, I didn’t even know it was there and afterwards I just recovered from the op and I was okay and I’ve had no symptoms there since”.
42 It was put to the applicant in cross-examination that one of the reasons why he ceased work was the availability of a redundancy package. The applicant said he did not know about the availability of the packages at the time he told Mr Allan that he would not be returning to work. The applicant stated in evidence to the Tribunal:
Well, I think I already indicated that I didn’t want to leave work … But, the medical people and my own situation were that I wasn’t going back. So, in the end, it was well, I can leave with nothing or leave with something. So, I left with something and look, in hindsight and we all know that’s a beautiful thing, I should have applied to the superfund for ill health benefit and maybe we wouldn’t be having this conversation anymore. But, because of my mental state at the time, I didn’t know. I didn’t know what to do – you know.
43 On 24 July 2015, the applicant made an application for an increase to his rate of disability pension for previously accepted disabilities. This application provided details of a new disability, which it is unnecessary to detail for present purposes. The applicant also claimed that his previously accepted disabilities had become worse since they were last assessed. DVA’s records show that the applicant’s “accepted” conditions (that is, those that were accepted as war-caused) were listed as:
(a) non-melanotic neoplasm of the skin;
(b) malignant neoplasm of the prostate;
(c) generalised anxiety disorder;
(d) major depressive disorder; and
(e) erectile dysfunction.
It is noted that this list does not include the spinal growth. In other words, that condition was not accepted as having been war-caused.
44 On 26 November 2015, a delegate of the Repatriation Commission made a decision to increase the applicant’s rate of pension to 80% of the general rate, effective from 24 April 2014 (referred to in these reasons as the Original Decision). The delegate considered whether the applicant should be paid the special or intermediate rate of pension. The delegate decided that he was not eligible for either of those higher rates.
45 On 29 January 2016, the applicant lodged an application for review of the Original Decision with the VRB, seeking to be paid the special rate of pension.
46 On 27 September 2016, the VRB decided to affirm the Original Decision.
The proceeding before the Tribunal
47 The applicant applied to the Tribunal for review of the VRB’s decision. A hearing took place before the Tribunal. As noted in the Tribunal’s reasons at [7]-[8]: the application was initially heard on 4 and 5 June 2018; as the evidence unfolded, it became apparent that the applicant’s psychological conditions may have also had an impact on his ability to undertake remunerative work at different times; the Tribunal asked the applicant’s legal representatives why Dr Arthur Velakoulis, a psychiatrist who had treated the applicant, had not been called as a witness; on the second day of the hearing, counsel for the applicant sought leave to call Dr Velakoulis to give evidence on a separate day; the Tribunal granted the applicant that leave; Dr Velakoulis (and Dr Gregory Schulz, a psychiatrist called by the Repatriation Commission) gave evidence on 7 September 2018.
48 The Tribunal made its decision and published its reasons on 18 June 2019.
49 The Tribunal described the legislative framework at [13]-[29] of its reasons. Although the Tribunal’s reasons discuss whether the applicant was entitled to the intermediate rate and whether he was entitled to the special rate for a temporary period, it is not necessary to consider these aspects of the Tribunal’s reasons for present purposes.
50 At [32] of its reasons, the Tribunal noted that the Repatriation Commission had accepted that the requirements under the following subsections of s 24(2A) of the Veterans’ Entitlements Act were met by the applicant:
(a) s 24(2A)(a) – the applicant made a claim under s 14 and subsequently, an application for an increase in his pension under s 15;
(b) s 24(2A)(b) – the applicant had turned 65 before the application was made;
(c) s 24(1)(a) (which was applicable by operation of s 24(2A)(c)) – the applicant’s incapacity from war-caused disabilities had been determined to be at least 70% (in fact, it was determined to be 80%);
(d) s 24(2A)(f) – the applicant was undertaking his last paid work after he turned 65; and
(e) s 24(2A)(g) (as worded prior to 1 July 2017) – the applicant had been working as an employee for the same person, i.e. CitiPower, for a continuous period of at least ten years and that employment began before he turned 65.
51 However, as the Tribunal noted at [33], the Repatriation Commission did not accept that the requirements under the remaining subsections of s 24(2A) were met. Those requirements are cumulative, so if any one of them is not met it will render the applicant ineligible for the special rate of pension under s 24.
52 Thus the key issues before the Tribunal concerned: the requirement in s 24(1)(b) (applicable by operation of s 24(2A)(c)); the requirement in s 24(2A)(d); and the requirement in s 24(2A)(e): see the Tribunal’s reasons at [34].
53 After setting out the factual background (at [40]-[117]), the evidence of the medical practitioners (at [118]-[203]), and the lay evidence (at [204]-[234]), the Tribunal considered whether the applicant was eligible for a special rate of pension under s 24 by reference to two periods (see [258] and [262]):
(a) the period from 24 July 2015 until the end of September 2016 (referred to as Period 1); and
(b) the period from the end of September 2016 to 18 June 2019 (referred to as Period 2).
54 The Tribunal concluded that the applicant did not satisfy the criteria for the special rate of the pension in relation to Period 1 or Period 2.
55 The Tribunal first considered the requirement in s 24(1)(b) (which was applicable to the applicant by operation of s 24(2A)(c)). After reviewing the authorities, the Tribunal accepted that the applicant met the requirement in s 24(1)(b) in respect of Period 1, but not Period 2. The relevant portion of the Tribunal’s reasons is at [257]-[275]. It is necessary to set out most of this section of the Tribunal’s reasons, as it is relevant to several of the grounds in the amended notice of appeal:
257. The Tribunal accepts that Mr Clearihan was totally incapacitated, physically and psychologically, for any work from the time he was diagnosed with prostate cancer in July 2013 until the end of September 2016. By the end of September 2016, Mr Clearihan had completed a three-year course of hormonal therapy. By this time, Mr Clearihan’s PSA levels had remained at negligible levels; as had been the case for the three years that followed the prostatectomy – see paragraph [74]. Mr Clearihan’s testosterone levels had increased again after the hormonal therapy, to reach normal levels when tested in March 2017. Importantly, over this time, the treatment had been successful in that the prostate cancer had not returned or spread. The Tribunal accepts Dr Joon’s evidence to the effect that Mr Clearihan’s prognosis had improved.
258. The Assessment Period the Tribunal is concerned with in this application commenced on 24 July 2015 when Mr Clearihan made an application to increase to his rate of pension. For the first year and two months of the Assessment Period (that is, from 24 July 2015 until the end of September 2016) (Period No. 1), the Tribunal is satisfied that Mr Clearihan was totally incapacitated for any work.
…
260. Section 24(1)(b) requires that the Tribunal be satisfied that Mr Clearihan’s incapacity from the war-caused diseases (namely, from the side-effects of the treatment for the prostate cancer and his psychological condition arising from his ongoing concerns about the skin and prostate cancers), was of such a nature as, to itself alone, to render him incapable of undertaking remunerative work for periods of more than 8 hours per week. In other words, the Tribunal considers that it must decide whether this incapacity, considered alone, gave rise to the requisite level of incapacity. While the evidence was often in conflict as to how well Mr Clearihan was doing during Period No. 1, the Tribunal is satisfied, on the balance of probabilities, that this threshold was met. The effects of his war-caused conditions, considered in isolation, rendered him incapacitated for work initially in July 2013 and remained significant and incapacitated him during Period No. 1. This incapacity was sufficient, of itself alone, to have rendered him wholly unable to work during this period.
261. For these reasons, the Tribunal considers that the requirement under s 24(1)(b) was met by Mr Clearihan during Period No. 1. At the end of the hearing, the Commission, in effect, conceded that it was open to the Tribunal to make this finding (and in fact, conceded that this may have been the case up until May 2017).
262. However, the Tribunal finds that following Period No. 1, that is, from the end of September 2016 to the end of the Assessment Period (Period No. 2), Mr Clearihan was capable of doing clerical work for 20 hours per week (and certainly more than 8 hours per week, referrable to the relevant measure under s 24(1)(b)). This finding is based on the following:
(a) from September 2016 onwards, Mr Clearihan was regularly participating in a multifaceted weekly exercise routine that indicated a good level of physical capability and certainly, sufficiently so to enable him to travel to and from a workplace and to undertake a sedentary clerical position;
(b) from September 2016 onwards, Mr Clearihan was involved in gardening, which included the trimming of shrubs at his unit, and shopping with his wife; both activities indicating good levels of physical capability;
(c) by September 2016 onwards (and in fact, from a much earlier period), Dr Velakoulis considered that from the psychological perspective, Mr Clearihan was able to return to work full-time provided he could take short periods of leave from time to time if required – see paragraph [190] and [194];
(d) when Dr Schutz examined Mr Clearihan in April 2017, he described Mr Clearihan as being “largely in remission” in relation to his condition of generalised anxiety disorder and that this condition was mild and not affecting his activities of daily living. Dr Schultz considered that from a psychiatric perspective, Mr Clearihan could resume work full-time with no restrictions if he wished to do so;
(e) Mr and Mrs Clearihan both gave evidence to the effect that Mr Clearihan’s concentration was significantly impaired. However, the Tribunal considered that from September 2016 onwards, Mr Clearihan’s concentration was at a sufficient level that would enable him to return to a clerical role for 20 hours per week, as demonstrated by his return to regular reading activities, researching on his iPad and his weekly attendances at the cinema. The Tribunal considers that those activities demonstrate that Mr Clearihan has been able to hold his concentration sufficiently to follow a story line in a movie for up to a few hours at a time, and to engage in reading activities for up to half an hour at any one sitting (according to the evidence of Mrs Clearihan);
(f) Mr Clearihan also said he would not be able to deal with “office politics” if he was to return to work. The Tribunal considers that Mr Clearihan’s interpersonal skills were not so significantly impaired at any stage by his war-caused conditions as to impact on his ability to tolerate “office politics”. He has demonstrated an ability to maintain personal relationships with others, as evidenced by the longstanding good personal relationships he has maintained when playing tennis with friends he has known for an extended period of time; and by the continued relationships he has maintained with his family members, including his wife and his children, and his grandchildren who he visits occasionally. The Tribunal considers that Mr Clearihan was capable of tolerating any “office politics” if he needed to do so;
(g) by September 2016, Mr Clearihan’s hormonal treatment had concluded and his complaints (to medical practitioners) of continuing symptoms had significantly diminished. The Tribunal finds that Mr Clearihan no longer experienced hot flushes to the same extent that he did during the hormonal therapy treatment. To the extent that they continued, Mr Clearihan had also indicated that those symptoms did not bother him. The Tribunal also accepts Dr Horsley’s evidence that symptoms referrable to the hormonal therapy were expected to cease when Mr Clearihan stopped his hormonal treatment and as Mr Clearihan’s testosterone levels returned to normal;
(h) the medical evidence does not reveal contemporaneous complaints by Mr Clearihan, from September 2016 onwards, that he was experiencing ongoing significant bladder or bowel symptoms. In fact, a letter by Dr Joon on 2 April 2014 records that Mr Clearihan had tolerated the treatment well with some minor urinary and bowel irritation “but this has settled now” – refer paragraph [71]. The Tribunal also notes there was no mention of any urinary symptoms in the report by Dr Chidley after she reviewed Mr Clearihan on 8 March 2016. Instead, she provided a report which stated that Mr Clearihan was “continuing along in good health” and was “very active”.
263. The Tribunal acknowledges that Dr Moffitt gave evidence at the hearing that he stood by his opinion that Mr Clearihan was unable to work at all “now or in the future” on account of the war-caused conditions. However, the Tribunal was unable to rely upon Dr Moffitt’s evidence for the reasons set out in [264] to [268].
264. The Tribunal could not be satisfied that Dr Moffitt’s expressed opinions were not clouded by the distinct role he has taken on as a veterans’ advocate. This was evident in the language he used and the defensiveness in his oral evidence at the hearing when challenged about his opinions; and when questioned during cross-examination about some processes within his practice. Dr Moffitt was in the permanent naval forces and also served in Vietnam as a surgical medical officer. Dr Moffitt said he has since had extensive experience in dealing with veterans and their families “on a daily basis”. He has dedicated his medical practice to patients who are predominately veterans which is not a problem in itself, but Dr Moffitt’s impartiality came across to the Tribunal when he gave evidence at the hearing.
265. Importantly, one instance where the Tribunal considered that it was clear that Dr Moffitt was selective about the medical information he was prepared to share with others (being closely attuned to what was in the best interests of Mr Clearihan being able to receive a higher rate of pension), was the omission by Dr Moffitt of any mention of Mr Clearihan’s significant back condition (the meningioma), symptoms and surgery when specifically prompted to list Mr Clearihan’s “major or minor diagnoses and duration” on the Workability Report he completed in support [of] Mr Clearihan’s application for increase in his rate of pension.
266. When asked about this at the hearing, Dr Moffitt said he had “no idea” why he had not included it and that “it must have been me…so, that’s my error” – see paragraph [156]. The Tribunal does not accept that this was an inadvertent omission on Dr Moffitt’s part. The Tribunal considers it implausible that Dr Moffitt could have overlooked such as significant physical condition that necessitated Mr Clearihan undergoing spinal surgery. Dr Moffitt had demonstrated at the hearing, and by the language he used in his medical reports, that he is well-versed as to what is required in order to maximise the rate of pension for veterans and the Tribunal was satisfied (by this omission), that Dr Moffitt was prepared to present information about Mr Clearihan in a way that served a broader purpose, rather than to answer the questions asked of him purely on an objective medical basis.
267. Further, the Tribunal was unable to clearly identify from Dr Moffitt’s oral evidence at the hearing or from his written reports, the precise clinical bases upon which he expressed and maintained his view that Mr Clearihan would be unable to return to work “either now or in the future”. At first he said it was because Mr Clearihan was “physically too weak” – see paragraph [150]. When details of Mr Clearihan’s active daily exercise routine were put to Dr Moffitt, he changed tack and his further response was that Mr Clearihan was not fit for work “particularly related to his emotional state” – see paragraph [150]. It seemed that the primary basis for Dr Moffitt’s view was that Mr Clearihan was unable to return to work because he had a risk “hanging over his head” that the prostate cancer would return. This is understandable in respect of making an assessment of Mr Clearihan at the time he was receiving the three years of hormonal therapy but the position was quite different by the time that treatment was complete. Specifically, by September 2016 the cancer in Mr Clearihan’s prostate had been removed, the hormonal treatment was complete, there was no metastasis of the cancer, his PSA levels had remained at negligible levels and his testosterone levels were increasing.
268. A further reason why the Tribunal lost confidence in Dr Moffitt’s medical opinion in relation to Mr Clearihan’s psychiatric state was because Dr Moffitt gave evidence to the effect that he thought Mr Clearihan was still under the medical supervision of Dr Velakoulis. In fact, Dr Moffitt said he had continued to prescribe anti-depressant medication to Mr Clearihan under the supervision that was being provided by Dr Velakoulis as the treating psychiatrist. However, it was subsequently confirmed by Mr Clearihan’s counsel, and also by Dr Velakoulis on the third day of the hearing, that Dr Velakoulis had, in fact, stopped treating Mr Clearihan in 2016. Dr Moffitt told the Tribunal that he had spoken to Dr Velakoulis “occasionally” (because “he was a hard man to catch”). However, he had not done so for a period of about two years.
269. Instead, the Tribunal preferred the opinions expressed by the specialist psychiatrists, namely Dr Velakoulis and Dr Schutz, who gave evidence in this application and of Dr Joon, the medical specialist in the field of oncology.
270. The psychiatrists referred to above considered that from a psychiatric perspective, Mr Clearihan was not incapacitated from working in a clerical role. Subject to a minor qualification about needing to be able to take short breaks as required (which would be available through the provision of standard sick leave entitlements), Dr Velakoulis expressed his medical opinion in a report dated 29 March 2015 (some three months before the commencement of the Assessment Period) that he considered Mr Clearihan capable of working as a clerk full-time, were he not retired – see paragraph [189]. Dr Velakoulis considered that Mr Clearihan’s psychiatric medical symptoms had “resolved largely” by May 2016 – see paragraph [194].
271. At an early stage (in October 2014), Dr Joon provided an opinion that Mr Clearihan was unable to work due to his age and the nature of (unspecified) illnesses and disabilities – see paragraph [125]. At the hearing, Dr Joon said that Mr Clearihan had “done well” from the cancer perspective and was “continuing to do well” – see paragraph [136].
272. Dr Horsley did not examine Mr Clearihan until two years after he made his application for an increase to the rate of his pension. Dr Horsley opined that a short time after Mr Clearihan completed his treatment (i.e. in mid-2017) in her view, on physical grounds, he was able to start work in a clerical role for 20 hours a week (with a need to titrate the number of hours given he had been out of the workforce for as long as he had) – see paragraph [165].
273. The Tribunal accepts Dr Horsley’s evidence to the extent that she formed a view that [Mr Clearihan] had regained capacity to work for 20 hours per week. Dr Horsley opined that this level of capacity was restored in mid-2017. However, given the significant improvement in Mr Clearihan’s symptoms that had taken place by September 2016, and the fact that it was confirmed for Mr Clearihan in September 2016 that his PSA had remained at negligible levels, his testosterone levels were increasing and, importantly, his prostate cancer had not returned or metastasised over the previous three years since the prostatectomy (and also because he had undertaken approximately one year of rehabilitation for his back surgery by this time), the Tribunal finds that Mr Clearihan regained capacity for work, both physically and psychologically, for 20 hours per week by the end of September 2016.
274. Taking into account the matters set out in paragraphs [262] to [273], the Tribunal finds that Mr Clearihan was not incapacitated for work for more than eight hours per week from September 2016 onwards. This means that he did not meet the requirement under s 24(1)(b) during Period No. 2. Mr Clearihan cannot be regarded as being “totally and permanently incapacitated” during that time.
(Emphasis added.)
In the last sentence of [264], it may be that the Tribunal intended to refer to “lack of impartiality” rather than “impartiality”, given the context and the Tribunal’s other observations about Dr Moffitt’s evidence, but nothing turns on this for present purposes.
56 For these reasons, the Tribunal concluded that the applicant met the requirement in s 24(1)(b) during Period 1 but not during Period 2. It followed that the applicant was not entitled to a pension at the special rate with respect to Period 2.
57 The Tribunal then considered, in relation to Period 1, whether the applicant met the requirements in s 24(2A)(d) and (e).
58 The Tribunal considered the requirement in s 24(2A)(d) at [276]-[290]. The Tribunal found, at [277], that the applicant’s last paid work was clerical work, performing duties of the type outlined in [49] and [50] of the Tribunal’s reasons. The Tribunal discussed the relevant authorities at [278]-[281]. The Tribunal then reasoned:
282. Returning to the facts of this application, the Tribunal considers that during Period No. 1 (that is, from 24 July 2015 to the end of September 2016), there were several different factors which contributed to preventing Mr Clearihan from being able to undertake clerical work.
283. Those factors included:
(a) by the start of Period No. 1 (and continuing throughout it), Mr Clearihan had settled into retired life and the Tribunal is satisfied that he was not willing to relinquish this status. The Tribunal finds that once Mr Clearihan made the difficult decision to finish up his employment with CitiPower, he began “enjoying his retirement lifestyle which includes time with his wife and family, gardening, shopping and other activities”, as he had reported to Dr Velakoulis as recorded in his medical report issued in March 2015 (see paragraph [187]). By this time Mrs Clearihan had also retired having ceased employment in January 2015. The Tribunal finds that Mr Clearihan identified himself to Dr Velakoulis as being “formally retired” (see paragraph [188]). Mr Clearihan refuted this evidence. However, the Tribunal considers that the records taken of Dr Velakoulis’s conversations with Mr Clearihan, particularly in light of those conversations having occurred in an unguarded environment that existed between treating doctor and client at the time, represented an accurate depiction of Mr Clearihan’s attitudes about being retired (in contrast to Mr Clearihan’s evidence given at the hearing about this which the Tribunal found to be equivocal and guarded). The Tribunal also notes that when Mr Clearihan was asked at the hearing whether he would have been working in July 2015 if he had not developed cancer, his response, as set out in full in paragraph [103], indicated a fair degree of uncertainty. Mr Clearihan stated he did not know, but he suggested, in effect, that he thought he would have done so up until (at least) 2015 as this was only a few years after the cancer. He did not state with any conviction (when he had the opportunity), that he would do so beyond this point in time;
(b) the side effects of the hormonal therapy he was receiving at that time arising from the prostate cancer, causing hot flushes and fatigue;
(c) the residual effects from the radiation treatment he received from January to April 2014 for the prostate cancer (albeit those effects had significantly reduced by July 2015); and
(d) the resultant anxiety and depression he experienced during Period No. 1 arising from his worry about the risk that the prostate cancer would recur or metastasise; and also the continuing re-emergence of the skin cancer (that is, his skin cancer re-emerged in June 2013, May 2014 and October 2014, requiring surgical removal).
…
287. Accordingly, the Tribunal is satisfied that the development of the meningioma in Mr Clearihan’s spine, the consequential spinal surgery, and the extensive rehabilitation were factors that contributed to him not working from about September 2014 for approximately six months, but it is not a factor that contributed to preventing Mr Clearihan from being able to undertake clerical work during Period No. 1. By the commencement of Period No. 1, the Tribunal considers that Mr Clearihan’s spinal function had returned to a level that would have not prevented him, from a physical perspective, from performing clerical work (and that it was within his capacity to do so for 20 hours per week).
…
290. In conclusion, the Tribunal finds that all of the four factors identified in paragraph [283] contributed to preventing Mr Clearihan from undertaking his last paid work during Period No. 1. One of those factors, being the first factor listed in subparagraph (a), is not a factor that arises from his incapacity from war-caused diseases. Consequently, the Tribunal concludes that during Period No. 1, Mr Clearihan does not met the “alone test” requirement under s 24(2A)(d) of the Act.
(Emphasis added.)
59 The Tribunal then considered whether the requirement in s 24(2A)(e) was met in respect of Period 1. This required consideration of whether s 24(2B)(a) applied during that period. The Tribunal considered the authorities in relation to that provision and like provisions at [293]-[295]. The Tribunal’s reasoning on s 24(2B)(a) was set out at [298]-[317], which included the following:
303. In an email dated 12 September 2014, three days after the spinal surgery, (see further details at [86]) Mr Allan reported back to his HR colleagues about a conversation he had with Mr Clearihan at that time indicating that Mr Clearihan had explained, in effect, that his return would be delayed for “several weeks”, which was the “best case scenario”, because of the detection of the growth, and the possibility of there being further radiation treatment if it was found to be a secondary prostate cancer. The Tribunal is satisfied that this evidence indicates that the detection of the growth (being at a point when Mr Clearihan did not know whether it was cancerous or benign), took away Mr Clearihan’s confidence in being able to return to work.
…
312. The close timing of the detection and surgery of the growth on his spine (in August 2014 and 9 September 2014 respectively), and the timing of Mr Clearihan’s conversation with Mr Allan in late-September 2014, satisfies the Tribunal that the spinal growth was the reason Mr Clearihan no longer intended to return to work at CitiPower at some point in the future. The Tribunal is not satisfied that the incapacity from the war-caused diseases was the reason why Mr Clearihan made this decision. He had suffered from those diseases and the effects of the treatment for those diseases, for about one year prior to late-September 2014 and it had not led him at any point during that time to inform CitiPower that he would not be returning to work. It was only after the advent of the spinal issues that Mr Clearihan made the decision to do so.
313. In conclusion, the Tribunal finds that the reason Mr Clearihan decided to inform CitiPower in late-September 2014 that he would be unable to return to work, was the detection and treatment of his spinal condition.
314. Further, the Tribunal finds that Mr Clearihan did not obtain any new employment during Period No. 1 partly because he did not wish to give up his retirement lifestyle that he was, and still is, enjoying with his wife (see paragraph [283(a)]). The Tribunal does not consider this to be a reason arising from Mr Clearihan’s war-caused disabilities.
(Emphasis added.)
60 Accordingly, the Tribunal concluded that the specified circumstances set out in s 24(2B)(a) applied to the applicant during Period 1. Consequently, the applicant was not taken to have suffered a loss of salary or wages because of incapacity from his war-caused diseases. The applicant therefore did not satisfy the requirement in s 24(2A)(e).
The appeal on a question of law
61 The applicant appeals to this Court on a question of law from the decision of the Tribunal. The amended notice of appeal sets out the following questions of law:
1. Whether the Tribunal misdirected itself as to what constitutes a capacity to undertake remunerative work for the purposes of s 24(1)(b) of the Veterans’ Entitlements Act 1986 (the Act).
2. Did the Tribunal err in its application of s 24(2A)(d) of the Act by:
(a) treating the veteran’s cessation of the remunerative work as an independent preventative factor for the purposes of “the alone test”?;
(b) asking itself the wrong question and/or identifying the wrong issue when it found the fact that the veteran had “settled into retired life” precluded him from satisfying the “alone test” in s 24(2A)(d).
3. Whether the Tribunal engaged in an illogical or irrational process of reasoning in finding that s 24(2B)(a) applied during Period No. 1 in that the applicant did not obtain any new employment during Period No. 1 because he did not wish to give up his retirement lifestyle.
4. Whether the Tribunal erred in its application of s 24(2B)(a) of the Act by asking itself the wrong question and/or identifying the wrong issue when it found that the applicant’s confidence in his ability to return to work was destroyed by reason other than his incapacity from that war-caused injury or disease.
5. Whether the Tribunal engaged in an illogical or irrational process of reasoning in concluding that the applicant ceased to engage in remunerative work during Period No. 1 because of the detection and surgery of the spinal growth.
62 The applicant relies of the following grounds, as set out in his amended notice of appeal:
1. The Tribunal misdirected itself as to what constitutes a capacity to undertake remunerative work for the purposes of s 24(1)(b) by applying an unduly narrow construction to the concept of capacity to undertake remunerative work.
2. The Tribunal erred in its application of s 24(2A)(d) of the Act by:
(a) treating the veteran’s cessation of the remunerative work as an independent preventative factor for the purposes of “the alone test”?;
(b) asking itself the wrong question and/or identifying the wrong issue when it found the fact that the veteran had “settled into retired life” precluded him from satisfying the “alone test” in s 24(2A)(d).
3. The Tribunal engaged in an illogical or irrational process of reasoning in finding that s 24(2B)(a) applied during Period No. 1 in that the applicant had not obtained any new employment during Period No. 1 because he did not wish to give up his retirement lifestyle.
4. The Tribunal erred in its application of s 24(2B)(a) of the Act by asking itself the wrong question and/or identifying the wrong issue when it found that the applicant’s confidence in his ability to return to work was destroyed by reason other than his incapacity from that war-caused injury or disease.
5. The Tribunal engaged in an illogical or irrational process of reasoning in concluding that the applicant ceased to engage in remunerative work during Period No. 1 because of the detection and surgery of the spinal growth.
63 The first question of law and ground relate to the Tribunal’s conclusion (in relation to Period 2) that the requirement in s 24(1)(b) was not satisfied. The remaining questions of law and grounds relate to the Tribunal’s conclusions (in relation to Period 1) that the requirements in s 24(2A)(d) and (e) were not satisfied. This ordering of the questions of law and grounds reflects the order in which the Tribunal considered the issues.
64 As the requirements in s 24(2A)(d) and (e) are cumulative, in order for the applicant to succeed in the appeal in relation to Period 1, he needs to demonstrate error by the Tribunal in respect of both s 24(2A)(d) and s 24(2A)(e). Thus, to succeed in the appeal in relation to Period 1, the applicant needs to succeed in relation to ground 2 and one or more of grounds 3, 4 and 5. This was common ground at the hearing of the appeal.
Applicable provisions and principles
65 In Repatriation Commission v Richmond (2014) 226 FCR 21 (Richmond), the Full Court of this Court (Middleton, Murphy and Rangiah JJ) at [17] approved the following summary of the legislative scheme of the Veterans’ Entitlements Act (from the judgment of Spender J in Repatriation Commission v Alexander (2003) 75 ALD 329 at [9]-[10]):
[9] The regime for the payment of pensions to veterans provided for by the Act is as follows:
• the Commonwealth is liable to pay a pension where a veteran has become incapacitated from war-caused injury or war-caused disease (s 13);
• a veteran may make a claim for a pension (s 14);
• a veteran who is in receipt of a pension may make an application for an increase in the rate of pension (s 15);
• the Repatriation Commission is required to consider and determine the claim or application of a veteran (s 18).
• the Repatriation Commission is required to consider the rate or rates at which a pension would have been payable during the assessment period, and also the rate at which the pension is payable: s 19(5C). The assessment period commences on the day on which a claim or application is received, and ends on the day when the claim or application is determined: s 19(9).
[10] A pension under the Act may be paid at the general rate (s 22), the intermediate rate (s 23), or the special rate (s 24).
66 The key relevant provision for the purposes of this appeal is s 24 of the Veterans’ Entitlements Act. Subsection (2A) of s 24 is directed to a case (such as the present) where the veteran had turned 65 before the claim or application was made. However, it is relevant also to refer to subsections (1), (2) and (2B). Accordingly, I will set out s 24(1), (2), (2A) and (2B) (as they stood at the date of the Tribunal decision, 18 June 2019 – it is common ground between the parties that this is the relevant version of the legislation):
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) 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 had been undertaking remunerative work 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.
(2B) For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a) 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
(b) the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.
(Emphasis added.)
67 Section 28 of the Veterans’ Entitlements Act is relevant to the criteria in s 24(1)(b). Section 28 provided:
28 Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a) the vocational, trade and professional skills, qualifications and experience of the veteran;
(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).
68 In construing the Veterans’ Entitlements Act it is necessary to keep in mind that it is intended to operate beneficially for veterans: see Richmond at [92]; Summers v Repatriation Commission (2015) 230 FCR 179 at [33] per Kenny, Murphy and Beach JJ.
69 The issues raised by the appeal concern s 24(1)(b) (applicable in the present case by operation of s 24(2A)(c)), s 24(2A)(d) and s 24(2A)(e).
70 In relation to s 24(1)(b), the Tribunal at [256] accepted the applicant’s contention that it is not necessary for the Tribunal to be satisfied that his incapacity is, more probably than not, going to last for the rest of his life for it to be characterised as a permanent incapacity; it will be sufficient if there is evidence that supports a finding that the incapacity (that renders him unable to work more than eight hours per week) is, more probably than not, going to last for a long and indeterminate time. The Repatriation Commission does not contend otherwise. Thus, no issue arises concerning this aspect of the Tribunal’s reasons.
71 Section 24(2A)(d) is similar to the first limb of s 24(1)(c). The first limb of s 24(1)(c) was considered in Richmond. Although the first limb of s 24(1)(c) was affected by s 24(2)(b) while s 24(2A)(d) was not, the discussion in Richmond is nevertheless of assistance. In that case, Middleton, Murphy and Rangiah JJ stated at [52] that the first limb of s 24(1)(c) “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”. In relation to the “alone” element of the test in s 24(1)(c), their Honours stated:
57 The first limb of s 24(1)(c) requires the decision-maker to decide whether the veteran’s war-caused injury or disease (or both) alone prevented him or her from continuing to undertake the remunerative work the veteran was engaged in. The alone element of the test is concerned with whether or not there is more than one cause of the preventative effect that the veteran claims has resulted from his or her war-caused incapacity.
58 The first limb provides that to qualify for the special rate, the preventative effect must arise from the veteran’s war-caused incapacity alone, and not from other non war-caused preventative factors as well. If other non war-caused factors contribute to the preventative effect, even if they are only of secondary importance and not of themselves sufficient to prevent the veteran from engaging in remunerative work, their presence will deny the veteran eligibility for the special rate.
59 In our view the authorities on the alone element of the test in the first limb are clear. In Cavell [v Repatriation Commission (1988) 9 AAR 534] (at 539-540) Burchett J expressly approved the Tribunal’s statement that the use of “alone” in s 24(1)(c) means that any non war-caused factor which plays a part in the applicant’s inability to work or to obtain and hold remunerative employment is sufficient to displace the applicant’s case for a pension at the special rate.
60. His Honour, correctly in our view, rejected the use of other descriptions in substitution for “alone” such as “sole, unique and absolute cause” and explained (at 539) that the Tribunal’s task was:
… to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.
…
65 We respectfully agree with the learned primary judge’s view (at [108]) where her Honour said:
The authorities in my view establish that if there is a non war-caused factor which prevents, or contributes to preventing, the veteran from continuing to undertake the relevant remunerative work, even if it is only of secondary weight and insufficient in itself to prevent the veteran from continuing, the “alone” test will not be satisfied.
While this may be seen as a harsh result, it arises from the plain words of the section. The special rate of pension is almost three times higher than the general rate, and the extrinsic materials indicate that the legislature intends the special rate to be reserved for a limited category of veterans.
(Bold emphasis added.)
72 The above construction was also adopted by a differently constituted Full Court (Kenny, Barker and Rangiah JJ) in Repatriation Commission v Watkins (2015) 228 FCR 573 at [61].
73 Section 24(2A)(e) is similar to the second limb of s 24(1)(c). These provisions are affected, respectively, by s 24(2B)(a) and s 24(2)(a), which are in similar terms. In Richmond, Middleton, Murphy and Rangiah JJ stated in relation to ss 24(1)(c) and 24(2)(a):
83 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.
…
86 … we accept that the operation of the second limb of s 24(1)(c) and (2)(a) means that a veteran who voluntarily chooses to cease remunerative work for reasons other than war-caused incapacity (for example, to access superannuation benefits or because of dissatisfaction with work unrelated to war-caused injuries) will usually not be eligible for the special rate, as he or she will usually be unable to establish financial loss by reason of his or her war-caused incapacity.
Consideration
74 Each of the grounds in the amended notice of appeal will now be considered.
Ground 1 (which relates to Period 2)
75 Ground 1 relates to the Tribunal’s finding that the applicant did not satisfy s 24(1)(b) during Period 2, that is, the period from the end of September 2016 to 18 June 2019. Section 24(1)(b) required that the veteran be “totally and permanently incapacitated”, that is to say, that “the veteran’s incapacity from … war-caused disease … 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”. The Tribunal’s finding that the applicant did not meet that requirement during Period 2, and its reasons for the finding, were at [262]-[274] of its reasons, which have been set out above.
76 The applicant submits that the Tribunal gave an unduly narrow interpretation to the definition of capacity to undertake remunerative work by confining its consideration to the applicant’s physical capacity to perform the tasks of a clerical worker without also considering whether he could work in a manner which would attract remuneration for the requisite number of hours per week.
77 The applicant submits that: the Tribunal’s finding as to capacity was predicated on an acceptance of Dr Horsley’s evidence to the extent that she formed a view that the applicant had regained capacity to work for 20 hours per week (see the Tribunal’s reasons at [273]); the Tribunal misstated Dr Horsley’s evidence, which was not to the effect suggested by the Tribunal, but rather that the applicant had a theoretical capacity to work part-time; in her report dated 21 June 2017, Dr Horsley opined that “I do not believe that Mr Clearihan has any realistic capacity to return to work. He is now 72 years of age. I believe that he has come to the end of his working life”. The applicant submits that: at the Tribunal hearing, Dr Horsley stated that “it was the appropriate decision [in 2014] for his doctors to suggest that he retire. He was symptomatic and very unwell at that time” (transcript, p 172); on the question of the applicant’s work capacity at the time of the hearing, Dr Horsley opined that his “reduction in personal skills on the clerical front and the altered technology skills” would militate against a return to the workforce (transcript, p 172); under questioning from the Tribunal, Dr Horsley stated that the applicant had a “theoretical” capacity to work part-time “on physical grounds” (transcript, pp 174-175); she reiterated that “he is realistically not employable and he has come to the end of his working life” (transcript, p 176). In oral submissions, counsel for the applicant emphasised a passage in the transcript at p 174, where Dr Horsley was asked, “Take into account his age [71 years] and the fact that he has been away from the workforce at that time for three years, what is your opinion about him being able to go back into the workforce part-time?” Dr Horsley’s response was: “Well that’s why I said I must admit in theory. I think the reality and in theory are probably two different things.”
78 The applicant submits that: the question of capacity to undertake remunerative work posed by s 24(1)(b) is not answered by considering only a theoretical capacity to perform physical tasks; remunerative work is defined in s 5Q as including any remunerative activity; a capacity to undertake remunerative entails an ability to work in a manner which would attract a standard rate of pay from an employer of persons in the relevant occupational category; the concept of undertaking “remunerative work” entails working “as a settled or established member of the wage earning workforce” (see Richter v Driscoll (2016) 51 VR 95 at [75], considering the concepts of work capacity and suitable employment in workers’ compensation legislation); a barrier to undertaking remunerative work such as four years out of the workforce and the consequent reduction in skills that leads to a veteran being “realistically not employable” cannot be ignored in the assessment of a veteran’s capacity to undertake remunerative work; it is clear from the Tribunal’s reasons at [262]-[274] and its questioning of Dr Horsley that it confined its consideration to the applicant’s physical capacity to perform certain tasks required by clerical work and ignored the impact that his years out of the workforce and consequent reduction in skills would have on his ability to obtain and undertake remunerative work; the interpretation applied by the Tribunal to the question of whether the applicant was “incapable of undertaking remunerative work” raised by s 24(1)(b) was unduly narrow; a beneficial provision like s 24(1)(b) should be construed in a practical way and so as to give a meaning to the concept of “remunerative work”, which is consistent with the realities of the workplace.
79 The applicant submits that: the Tribunal’s misunderstanding of what constitutes a capacity to undertake remunerative work also infected its conclusions as to effect of the applicant’s poor concentration on his work capacity (at [262(e)]); the applicant gave evidence that he did not think that he could cope with work because he could not concentrate; the applicant’s wife gave evidence that since the beginning of his cancer treatment his concentration “was shot” and that she was constantly reminding him about things and to concentrate on one thing at a time. The applicant submits that the Tribunal equated evidence of short periods of concentration in a domestic or recreational setting with the degree of concentration required to perform a relevant range of remunerative work for more than 20 hours per week. It is submitted that this finding underscores the Tribunal’s unduly narrow application of the requirement in s 24(1)(b) of capacity and its failure to consider the applicant’s capacity to perform work in a manner that would attract a standard rate of remuneration in the relevant labour market.
80 The applicant submits that s 28 does not absolve the Tribunal from having to consider whether, for the purposes of s 24(1)(b), a veteran is incapable of undertaking work which attracts remuneration, as opposed to having a theoretical work capacity. The applicant submits that his approach is consistent with the observations of the Full Court in Chambers v Repatriation Commission (1995) 55 FCR 9 (Chambers) at 11, 20. The applicant submits that the Tribunal failed to consider, in accordance with s 28(c), every fact which bears upon the extent to which the veteran’s physical or mental impairment reduced his capacity to undertake remunerative work, including matters (such as reduction in professional skills) that Dr Horsley considered rendered him unemployable.
81 Having reviewed the relevant section of the Tribunal’s reasons, namely [262]-[274], I am not persuaded that the Tribunal misdirected itself by applying an unduly narrow construction of the concept of capacity to undertake remunerative work for the purposes of s 24(1)(b).
82 Contrary to the applicant’s submissions, the Tribunal did not focus merely on the applicant’s physical capacity to perform certain tasks during the relevant period (Period 2). The Tribunal expressly considered and took into account psychological matters as well. For example, at [262(c)], the Tribunal noted that, by September 2016 onwards (and, in fact, from a much earlier period), Dr Velakoulis considered that, “from the psychological perspective”, the applicant was able to return to work full-time provided he could take short periods of leave from time to time if required. At [262(d)], the Tribunal noted that, when Dr Schutz examined the applicant in April 2017, he considered that “from a psychiatric perspective” the applicant could resume work full-time with no restrictions if he wished to do so. At [270], the Tribunal noted that the psychiatrists considered that “from a psychiatric perspective” the applicant was not incapacitated from working in a clerical role. Finally, at [273], the Tribunal found that the applicant regained capacity for work “both physically and psychologically” for 20 hours per week by the end of September 2016.
83 Contrary to the applicant’s submissions, in my view, the Tribunal did not misunderstand or mischaracterise the evidence of Dr Horsley. The Tribunal discussed the evidence of Dr Horsley in the context of the s 24(1)(b) issue at [272]-[273], having earlier described her evidence in some detail at [160]-[171]. Dr Horsley is an occupational physician. She provided a medical report dated 21 June 2017. The Tribunal noted at [163] that in her report Dr Horsley expressed the opinion that the applicant did not have “any realistic capacity for work” and that, while he had transferable skills in the clerical areas of the power industry, his age and time out of the workforce (being four years at the time of writing her report) would be significant barriers to him returning to work, putting aside his level of physical disability. The Tribunal referred at [165] to Dr Horsley’s evidence at the hearing:
165. At the hearing, Dr Horsley stated that as at mid-2017, a short time after the completion of the treatment, Mr Clearihan was “medically” or “on physical grounds” able to start work for 20 hours per week in a clerical role, subject to the need to “titrate it” (which the Tribunal took to mean he would need to adjust his hours of work initially either up or down depending on how he coped with his return to work), on account of Mr Clearihan having been out of the workforce for four years. Dr Horsley said she would need to defer to her psychiatrist colleagues in relation to whether Mr Clearihan was able to work for 20 hours per week in a clerical role on psychological grounds.
(Footnotes omitted.)
The footnotes to the above paragraph refer to pp 173-176 of the transcript (and to particular lines of the transcript on those pages), indicating that the Tribunal closely examined the pages of the transcript referred to in the applicant’s submissions on the appeal.
84 In the section of the Tribunal’s reasons at [272]-[273], the Tribunal noted that Dr Horsley opined that a short time after the applicant completed his treatment (i.e. in mid-2017), in her view, “on physical grounds, he was able to start work in a clerical role for 20 hours a week (with a need to titrate the number of hours given he had been out of the workforce for as long as he had)”. The Tribunal then referred back to [165] of its reasons (set out above). The Tribunal stated that it “accept[ed]” Dr Horsley’s evidence “to the extent that she formed a view that [the applicant] had regained capacity to work for 20 hours per week”. The Tribunal noted that Dr Horsley opined that this level of capacity was restored in mid-2017. However, the Tribunal formed the view (based on other evidence) that that capacity had already been restored by the end of September 2016.
85 The above passages indicate that the Tribunal appreciated the distinction drawn in Dr Horsley’s evidence between medical or physical capacity, on the one hand, and the barriers to the applicant returning to work presented by his age and time out of the workforce. I do not consider there to be any error in the Tribunal’s treatment of Dr Horsley’s evidence, including the evidence at pp 172-175 of the transcript.
86 I note also that Dr Horsley’s evidence was of only limited significance in the Tribunal’s finding that s 24(1)(b) was not satisfied during Period 2. The principal reasons for the Tribunal’s finding were set out at [262]. The Tribunal then dealt with the evidence of Dr Moffitt, providing reasons why it rejected his evidence. Finally, at [272]-[273], the Tribunal discussed Dr Horsley’s evidence, indicating the extent to which it accepted this evidence. Thus, while the Tribunal relied on Dr Horsley’s evidence to a certain extent, that evidence did not figure prominently in the Tribunal’s finding.
87 Insofar as the applicant submits that the Tribunal failed to take into account whether the applicant could work in a manner that would attract remuneration for the requisite number of hours per week, relying (in particular) on the applicant’s age, the time that he had been out of the work force and the changes in technology that had taken place during that time, I am not satisfied that the Tribunal failed to have regard to all relevant evidence. The Tribunal referred to both physical and psychological factors, and set out in some detail, at [262], its reasons for concluding that the applicant was capable of doing clerical work for 20 hours per week during Period 2. Insofar as Dr Horsley expressed the view that the applicant was “realistically not employable”, the Tribunal evidently preferred the evidence of the other witnesses referred to in [262] of its reasons for decision. It was open to the Tribunal to prefer that evidence.
88 Further, in my view, the Tribunal’s approach was consistent with the terms of s 28 as discussed in Chambers at 10-11 per Davies J and at 19-20 per Moore and Sackville JJ. In particular, in relation to s 28(c), the Tribunal had regard to all the facts and matters bearing upon the nature and extent of the physical and mental impairment of the applicant, and the extent to which the physical and mental impairment had reduced the applicant’s capacity to undertake remunerative work of the kind that the applicant might reasonably undertake.
89 For these reasons, I do not accept the applicant’s submission that the Tribunal adopted an unduly narrow approach to the question of the applicant’s capacity to undertake remunerative work. In my view, it was open to the Tribunal to find that the applicant did not satisfy s 24(1)(b) during Period 2 on the basis of the facts and matters relied on by the Tribunal. No error of law is established in relation to the Tribunal’s finding in this regard. Accordingly, ground 1 is not made out.
Ground 2 (which relates to Period 1)
90 Ground 2 relates to the Tribunal’s finding that applicant did not satisfy the “alone test” requirement of s 24(2A)(d) during Period 1 on the basis that he was prevented from undertaking his last paid work during Period 1 because he “had settled into retired life and ... was not willing to relinquish this status” (at [283(a)] and [290]).
91 The applicant contends that the Tribunal erred in its application of s 24(2A)(d) by: (a) treating the veteran’s cessation of the remunerative work as an independent preventative factor for the purposes of “the alone test”; and (b) asking itself the wrong question and/or identifying the wrong issue when it found the fact that the veteran had “settled into retired life” precluded him from satisfying the “alone test” in s 24(2A)(d).
92 The applicant submits that: it was not in dispute that the applicant had last performed remunerative work in about July 2013 when he was diagnosed with aggressive prostate cancer; further, the Tribunal had found that the applicant was totally incapacitated for any work from July 2013 until late September 2016 by reason of the physical and psychological effects of the prostate cancer ([257] and [260]); on the Tribunal’s own finding, the applicant was not working during Period 1 by reason of the incapacitating effects of his prostate cancer; the applicant’s “retirement” during Period 1 was a consequence of the effects of the prostate cancer and did not constitute an independent preventative factor for the purposes of defeating the “alone” requirement in s 24(2A)(d) of the Act: see Richmond v Repatriation Commission (2014) 140 ALD 380 at [109] per Dodds-Streeton J.
93 The applicant also submits, in his reply submissions, that the fact that a veteran might enjoy aspects of a non‐working lifestyle into which he or she has been forced by reason of his or her war‐caused disease is not capable of constituting an independent factor to defeat the alone test in circumstances in which the Tribunal has found that his or her war‐caused disease rendered him or her incapable of coming out of that forced retirement.
94 The Repatriation Commission’s submissions in response may be summarised as follows:
(a) It is settled that the first limb of s 24(1)(c) (a close analogue to s 24(2A)(d)) provides that to qualify for the special rate, the preventative effect must arise from the veteran’s war-caused incapacity alone, and not from other non war-caused preventative factors as well. If other non war-caused factors contribute to the preventative effect, even if they are only of secondary importance and not of themselves sufficient to prevent the veteran from engaging in remunerative work, their presence will deny the veteran eligibility for the special rate: see Richmond at [58].
(b) Whilst the applicant’s transition to retirement might on one view have been capable of being characterised as a consequence of his prostate cancer, that evidently was not the view taken by the Tribunal. Instead, as is made plain at [283(a)] of the Tribunal’s reasons, the Tribunal found not only that the applicant had “settled into retired life” by the start of Period 1, but also that he had identified himself to Dr Velakoulis as being “formally retired” at or around that time and had been equivocal in his evidence as to whether, had he not developed cancer, he would have been working in July 2015 (being the start of Period 1).
(c) It is apparent that the Tribunal was satisfied that the applicant’s retirement status and lifestyle, and the enjoyment that he derived from both of those things, was capable independently of his war-caused injury, of preventing the applicant from continuing to undertake his last paid work.
95 In my view, it is difficult to reconcile the Tribunal’s findings at [257]-[260], on the one hand, and the findings at [283(a)] and [290], on the other hand. I note the following:
(a) In the context of the s 24(1)(b) issue, the Tribunal found, at [257], that the applicant was “totally incapacitated, physically and psychologically, for any work from the time he was diagnosed with prostate cancer in July 2013 until the end of September 2016” – a period that includes the whole of Period 1, which was from 24 July 2015 until the end of September 2016. The Tribunal reiterated, at [258], that for Period 1 “the Tribunal is satisfied that [the applicant] was totally incapacitated for any work”. The Tribunal was also satisfied that the applicant’s incapacity during Period 1 was able to be characterised as “permanent” at that time: at [259]. At [260], the Tribunal referred to s 24(1)(b), noting that it required that the Tribunal be satisfied that the applicant’s incapacity from the war-caused diseases (namely, from the side-effects of the treatment for the prostate cancer and his psychological condition arising from his ongoing concerns about the skin and prostate cancers) was of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods of more than eight hours per week. The Tribunal stated that, in other words, it needed to decide whether this incapacity, “considered alone”, gave rise to the requisite level of incapacity. The Tribunal then found (at [260]):
While the evidence was often in conflict as to how well Mr Clearihan was doing during Period No. 1, the Tribunal is satisfied, on the balance of probabilities, that this threshold was met. The effects of his war-caused conditions, considered in isolation, rendered him incapacitated for work initially in July 2013 and remained significant and incapacitated him during Period No. 1. This incapacity was sufficient, of itself alone, to have rendered him wholly unable to work during this period.
(b) However, in the context of s 24(2A)(d), the Tribunal stated at [282] that there were several different factors which prevented the applicant from being able to undertake clerical work during Period 1. The Tribunal identified four such factors in [283] of its reasons. The second, third and fourth factors related to the treatment for prostate cancer and the resultant anxiety and depression, but the first factor did not. The first factor, set out at [283(a)] was that, by the start of Period 1 (and continuing throughout it), the applicant had “settled into retired life and … was not willing to relinquish this status”. The Tribunal found that: once the applicant had made the difficult decision (in late 2014) to finish up his employment with CitiPower, he began enjoying his retirement lifestyle, as he had reported to Dr Velakoulis in March 2015; by this time, the applicant’s wife had also retired (having ceased employment in January 2015); the applicant identified himself to Dr Velakoulis as being “formally retired”, which accurately depicted the applicant’s attitudes about being retired (in contrast to the applicant’s evidence at the hearing, which the Tribunal found to be equivocal and guarded). The Tribunal also noted the applicant’s uncertainty in responding to questions during the hearing as to whether he would have been working in July 2015 if he had not developed cancer. In [290] of the reasons, the Tribunal stated:
In conclusion, the Tribunal finds that all of the four factors identified in paragraph [283] contributed to preventing Mr Clearihan from undertaking his last paid work during Period No. 1. One of those factors, being the first factor listed in subparagraph (a), is not a factor that arises from his incapacity from war-caused diseases. Consequently, the Tribunal concludes that during Period No. 1, Mr Clearihan does not met the “alone test” requirement under s 24(2A)(d) of the Act.
96 Notwithstanding the differences between the test in s 24(1)(b) and the test in s 24(2A)(d), I have difficulty reconciling the Tribunal’s factual findings set out above. Having found that the applicant’s war-caused conditions, “considered in isolation” ([260]), rendered him incapacitated for work throughout Period 1, and that this incapacity was sufficient “of itself alone” ([260]) to have rendered him wholly unable to work during this period, it is difficult to see how an independent operative factor preventing the applicant from undertaking clerical work could have been that he had settled into retired life and was unwilling to relinquish that status. It is difficult to see how, at a factual level, the two findings can sit with each other.
97 Further, the Tribunal’s reasons for finding that the applicant had, by July 2015 (and throughout Period 1), settled into retired lifestyle and was unwilling to relinquish this status, do not refer to the fact that, as the Tribunal had earlier found, the applicant’s war-caused conditions rendered him incapacitated for work throughout this period. Thus the Tribunal did not discuss or consider in its reasons whether the applicant’s attitude to retirement (reflected in his description of himself as “formally retired” to Dr Velakoulis) was the product of his war-caused conditions, rather than an independent preventative factor.
98 In light of these matters, I consider that the Tribunal erred in its application of s 24(2A)(d) by treating the applicant’s attitude to retirement as an independent preventative factor for the purposes of “the alone test”. Further, in light of these matters, I consider that the Tribunal erred in its application of s 24(2A)(d) by asking itself the wrong question and/or identifying the wrong issue when it found the fact that the applicant had “settled into retired life” precluded him from satisfying the “alone test” in s 24(2A)(d).
99 For these reasons, ground 2 is made out.
Grounds 3, 4 and 5 (which relate to Period 1)
100 It is convenient to deal with grounds 3, 4 and 5 together as they all relate to s 24(2A)(e) and s 24(2B)(a). Grounds 3, 4 and 5 relate to the Tribunal’s findings (at [313]-[315]) that the circumstances set out in s 24(2B)(a) applied to the applicant such that he did not satisfy the requirement in s 24(2A)(e). The Tribunal found, in summary, that:
(a) the reason the applicant decided to inform CitiPower in late September 2014 that he would be unable to return to work was the detection and treatment of his spinal condition, which was not a reason arising from his war-caused disabilities (at [312]-[313]); and
(b) the applicant did not obtain any new employment during Period 1 partly because he did not wish to give up his retirement lifestyle, which was not a reason arising from his war-caused disabilities (at [314]).
101 By grounds 3, 4 and 5, the applicant contends that:
(a) the Tribunal engaged in an illogical or irrational process of reasoning in finding that s 24(2B)(a) applied during Period 1 in that the applicant had not obtained any new employment during Period 1 because he did not wish to give up his retirement lifestyle;
(b) the Tribunal erred in its application of s 24(2B)(a) by asking itself the wrong question and/or identifying the wrong issue when it found that the applicant’s confidence in his ability to return to work was destroyed by reason other than his incapacity from that war-caused injury or disease; and
(c) the Tribunal engaged in an illogical or irrational process of reasoning in concluding that the applicant ceased to engage in remunerative work during Period 1 because of the detection and surgery of the spinal growth.
102 In support of ground 3, the applicant submits that: the Tribunal determined that s 24(2A)(e) was not satisfied on the basis that s 24(2B)(a) applied during Period 1 in that the applicant did not obtain any new employment during Period 1 “partly because he did not wish to give up his retirement lifestyle ...” (at [314]); this finding is not rationally supportable in light of the Tribunal’s previous finding that the applicant was totally incapacitated for any work during the entirety of Period 1; the applicant could hardly have been expected to obtain “new employment” during a period in which he was totally and permanently incapacitated for work; such an expectation would impose a burden on a veteran to obtain new employment despite being totally incapacitated for work due to his or her war-caused injury or disease.
103 In support of ground 4, the applicant submits that: the Tribunal found that “the detection of the [spinal] growth (being at a point when [the applicant] did not know whether it was cancerous or benign), took away [the applicant’s] confidence in being able to return to work”; this finding underpins the Tribunal’s finding at [312] and [313] that the reason that the applicant decided to inform CitiPower in late September 2014 that he would be unable to return to work was the detection and treatment of his spinal condition. The applicant submits that: as found by the Tribunal at [303], the purported destruction of the applicant’s confidence in being able to return to work was due to the detection of the growth at a time when the applicant did not know whether it was secondary to the prostate cancer; if the applicant’s confidence in his ability to return to work was destroyed by the possibility of further radiation treatment in circumstances in which the growth might have been found to have been secondary to the prostate cancer, the appearance of the growth was an incident occurring in the course of the applicant’s treatment for prostate cancer and the resultant destruction of confidence was not by reason “other than his ... incapacity from that war-caused disease” for the purposes of s 24(2B)(a).
104 In relation to ground 5, the applicant submits that: the Tribunal’s finding that the applicant ceased to engage in remunerative work due to the detection and treatment of his spinal growth (at [303], [312] and [313]) was inconsistent with its earlier finding that the spinal surgery was “not a factor that contributed to preventing [the applicant] from being able to undertake clerical work during Period No. 1” ([287]) and thereby was not rationally supportable. The applicant submits that, even it was open to the Tribunal to find that the reason that the applicant informed CitiPower in late September 2014 that he would be unable to return to work was the detection and treatment of his spinal condition, it can hardly be said that his failure to obtain any new employment during Period 1 was due to the spinal growth in circumstances in which the Tribunal found at [286]-[287] that his back issue was a not an incapacitating factor by the time Period 1 commenced.
105 The Repatriation Commission’s submissions in response may be summarised as follows. In relation to ground 3, the Repatriation Commission submits that: the inquiry under s 24(2B)(a) necessarily operates on an antecedent finding that the veteran is totally and permanently incapacitated for the purposes of s 24(1)(b); the fact that such a finding was made in this case cannot be reason to characterise the Tribunal’s approach as irrational; in any case, as submitted in relation to ground 2, the finding that the applicant did not obtain any new employment during Period 1 because he did not wish to give up his retirement lifestyle, was open on the evidence; further, the finding was not material in circumstances where the Tribunal (at [312]-[313]) had made a finding that the reason the applicant no longer intended to return to work at CitiPower at some point in the future was the applicant’s spinal growth.
106 In relation to ground 4, the Repatriation Commission submits that: as noted above in relation to ground 3, the Tribunal found in [312]-[313] that the reason the applicant decided to inform CitiPower in late September 2014 that he would be unable to return to work was the detection and treatment of his spinal condition; the applicant seeks to characterise the appearance of the spinal growth as “an incident occurring in the course of the applicant’s treatment for prostate cancer”, such that the destruction of confidence attributed to it could not constitute, for the purposes of s 24(2B)(a), a reason other than the applicant’s incapacity from war-caused disease; s 24(2B)(a) invites a broad inquiry as to what factors (objectively ascertained) caused the cessation of the veteran’s remunerative work and the consequential financial loss; whilst the status of the applicant’s spinal growth might have been unknown as at late September 2014, by the time that the Tribunal came to consider the application of s 24(2B)(a), the evidence established that its status was dissociated from the applicant’s war-caused prostate cancer; it was therefore capable of constituting a reason separate from that war-caused disease.
107 In relation to ground 5, the Repatriation Commission submits that: the Tribunal expressly disavowed any connection between the applicant’s decision to inform CitiPower that he would be unable to return to work (due to the detection and treatment of his spinal connection) ([313]) and its finding that the applicant did not obtain any new employment during Period 1 for the reason that he did not wish to give up his retirement lifestyle ([314]); the second factor was expressed as being “further” to the first; in any case, whilst the inquiry under s 24(2A)(d) (analogous to the “first limb” of s 24(1)(c)) was whether the applicant’s war-caused incapacity, alone, prevented him from continuing to undertake the remunerative work he previously engaged in (see Richmond at [77]), the inquiry under s 24(2B)(a) was of a different nature; it accommodated a finding that at a point in time proximate to Period 1, the applicant had made a decision for reasons other than his war-caused incapacity to cease engaging in remunerative work. It is not to the point that the impact of the applicant’s spinal growth on his capacity to work might have subsequently diminished.
108 It is convenient to deal first with the Tribunal’s finding at [314] that the applicant did not obtain any new employment during Period 1 because he did not wish to give up his retirement lifestyle, which was not a reason arising from his war-caused diseases. In my view, this finding suffers from the same difficulty as that discussed above in relation to ground 2, namely that it is difficult to reconcile the findings at [257]-[260] with the finding at [314] (which refers to and relies on the finding at [283(a)]). As discussed above, at [260], the Tribunal found that the effects of the applicant’s war-caused conditions, “considered in isolation”, rendered him incapacitated for work initially in July 2013 and remained significant and incapacitated him during Period 1. The Tribunal also found, at [260], that this incapacity was sufficient, “of itself alone”, to have rendered the applicant wholly unable to work during this period. In light of the findings at [257]-[260], it is difficult to see how an independent and operative reason why the applicant did not obtain any new employment during the same period could have been that he did not wish to give up his retirement lifestyle, as found at [314]. Further, the Tribunal did not discuss and consider in its reasons whether the applicant’s retirement lifestyle was in fact a product of his war-caused conditions. In light of these matters, in my view the Tribunal engaged in an illogical or irrational process of reasoning in finding that s 24(2B)(a) applied during Period 1 on the basis that the applicant had not obtained any new employment during that period because he did not wish to give up his retirement lifestyle. Ground 3 is therefore made out.
109 I note that it was submitted on behalf of the Repatriation Commission that the finding at [314] was not material, it being merely supplementary to the finding at [312]-[313]. However, I consider the better view to be that the finding at [314] was one of the reasons for the Tribunal’s conclusion at [315] that s 24(2B)(a) applied. In these circumstances, I consider that the finding at [314] was material to the conclusion reached. It follows that the error as regards [314] is sufficient to set aside the Tribunal’s overall finding that s 24(2B)(a) applied in relation to Period 1.
110 I will deal next with the Tribunal’s findings at [312]-[313] that the reason the applicant decided to inform CitiPower in late September 2014 that he would be unable to return to work was the detection and treatment of his spinal condition, which was not a reason arising from his war-caused disabilities. The latter finding was made at [312], where the Tribunal stated: “The Tribunal is not satisfied that the incapacity from the war-caused diseases was the reason why [the applicant] made the decision.” In my view, it is difficult to reconcile this finding with the earlier findings of the Tribunal at [303]. Although that paragraph is set out above, for ease of reference it is set out again:
In an email dated 12 September 2014, three days after the spinal surgery, (see further details at [86]) Mr Allan reported back to his HR colleagues about a conversation he had with Mr Clearihan at that time indicating that Mr Clearihan had explained, in effect, that his return would be delayed for “several weeks”, which was the “best case scenario”, because of the detection of the growth, and the possibility of there being further radiation treatment if it was found to be a secondary prostate cancer. The Tribunal is satisfied that this evidence indicates that the detection of the growth (being at a point when Mr Clearihan did not know whether it was cancerous or benign), took away Mr Clearihan’s confidence in being able to return to work.
111 The Tribunal’s findings in [303] indicate that, as at September 2014, when (the Tribunal found) the applicant lost confidence in his ability to return to work, he did not know whether or not the spinal growth was related to the prostate cancer. This seems to suggest a connection between the war-caused conditions and the decision to cease employment at CitiPower. Further, the Tribunal did not consider in its reasons whether, on the basis of the findings in [303], such a connection existed. For these reasons, I consider that the Tribunal erred in its application of s 24(2B)(a) by asking itself the wrong question and/or identifying the wrong issue when it found that the applicant’s confidence in his ability to return to work was destroyed by a reason other than his incapacity from that war-caused injury or disease. Ground 4 is therefore made out. This provides an additional reason to set aside the Tribunal’s conclusion that s 24(2B)(a) applied.
112 In light of the above, it is unnecessary to consider ground 5.
Conclusion
113 For the reasons set out above, grounds 2, 3 and 4 are made out. It follows that the Tribunal’s decision insofar as it relates to Period 1 is to be set aside.
114 I have considered whether the applicant’s success in overturning the Tribunal’s findings in relation to Period 1 should carry over to Period 2, on the basis that the errors regarding Period 1 ‘infected’ the Tribunal’s reasons or reasoning process in relation to Period 2. I do not consider that to be the case. In my view, the findings and reasons in relation to Period 2 were separate from those in relation to Period 1. For the reasons given above, the challenge to the Tribunal’s findings in relation to Period 2 fails. Accordingly, the Tribunal’s conclusions in relation to Period 2 stand.
115 I will make orders that, within seven days, the parties submit any agreed minute of proposed orders to give effect to these reasons and in relation to costs; and that, if the parties cannot agree, then within 14 days each party submit a minute of proposed orders to give effect to these reasons and in relation to costs, together with a written submission of no more than two pages.
I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky. |
Associate:
