Re Repatriation Commission v Byron Maxwell Wright [1987] FCA 259 (10 August 1987)

FEDERAL COURT OF AUSTRALIA

Re: REPATRIATION COMMISSION
And: BYRON MAXWELL WRIGHT
No. TG4 of 1987
Veterans' Affairs

COURT

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
GENERAL DIVISION
Northrop(1), Beaumont(2) and Spender(3) JJ.

CATCHWORDS

Veterans' Affairs - disability pension - application for special rate - veteran had disabilities (as at date of application) accepted as war-caused: injury right knee, osteoarthritis, anxiety state, dyspepsia, tinea pedis - veteran retired of own volition from employment with Electrolytic Zinc Company at age 62 because of war-caused disabilities - s.20 Veterans' Entitlements Act 1986 ("the Act") - s.24(1)(c) of the Act in contention - whether criteria set out in s.24 of the Act to be considered as at date of application rather than as at date of retirement - whether eligibility for special rate depends upon existence of continuing economic loss - interpretation of s.120(4) of the Act (standard of proof) - ss.33(1)(c), 44(1) Administrative Appeals Tribunal Act 1975.

HEARING

SYDNEY
10:8:1987

Counsel and Solicitors for Applicant: Mr Proctor for applicant instructed by Australian Government Solicitor

Counsel and Solicitors for Respondent: Mr M. Hodgman Q.C. with Mr Piggott instructed by Howard Piggot

ORDER

The appeal be allowed with costs.

The Tribunal's decision be set aside and the matter remitted to the Tribunal to be heard and decided again with the hearing of further evidence.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

I would make the orders proposed by Beaumont J. and I concur with his reasons for judgment.

This appeal was argued at the same time as the matter of Smith (No. T5 of 1987). The legislative background is described in Smith and need not be repeated.

2. The history of this matter is as follows. On 23 August 1984, the respondent sought an increase in his rate of pension. On 7 January 1985, the Commission determined to grant an increase from 70 to 90 per cent of the general rate with effect from 23 August 1984. On 10 February 1986, the Veterans' Review Board decided, by majority, to assess the rate of pension at the special rate. On 7 April 1987, the Administrative Appeals Tribunal, by majority, affirmed that decision. The Commission now appeals to this Court.

3. As in Smith, it is common ground that paras.(a) and (b) of s.24(1) are satisfied here, that is to say, it is accepted that the respondent was eligible to receive a pension at 100 per cent of the general rate and that he was totally and permanently incapacitated as a result of war disabilities and that, at material times, such incapacity had rendered him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.

4. The respondent was born on 19 January 1916. He left school at 16 years and worked all his life as a carpenter. He served in the A.I.F. from 1941 to 1945. According to the reasons of the majority of the Tribunal -

"9. ...He began work at the Electrolytic Zinc Company

('the E.Z.') in 1957 (scil.c. 1951) where he remained
as a tradesman until he retired of his own volition on
14 July 1978 after ceasing work some 5 weeks earlier.
He had sought an increase in his disability pension in
October 1977 which was granted as to 10 per cent in
January 1978 and as to a further 10 per cent in August
1978. His application for a service pension on the
grounds of age was sought on 20 June 1978 and granted
on 13 July with effect immediately after his
retirement.

10. The reason for the veteran's retirement was
incapacity from war-caused disease particularly his
generalised osteo-arthritis as reported by a
rehabilitation specialist (Dr. C.M. Shugg) who saw him
in June 1978 and advised him to modify his life style
to ease the pain he was suffering.

11. Age had no bearing on his cessation of employment
because at 62.5 years of age he could have remained
with his employer until he was 65. He did not seek
any work after retiring. He did not engage in any
remunerative work after that date because he could not
work as a result of his accepted disability. We make
this finding on his evidence notwithstanding the
opinions expressed in 1978 concerning a possible
residual capacity for light work. We regard the
method of assessing a percentage disability at that
time as being less reliable than the applicant's own
evidence.

12. The veteran told the Tribunal that he knew of 17
carpenters who had worked on their own account in
their trade for some years after retiring from the
E.Z., of three who had done the same after leaving the
Housing Department and another from the Marine Board.
He knew of none who had worked for an employer. Of
these persons 7 were now either dead or overseas, but
he believed 5 or more were still working.

13. He said that he had always enjoyed working with
timber and had hoped, before his disabilities caused
him to retire, that he would continue working as a
carpenter after forced retirement in due course at 65.
His father had done so until he was 70. He named two
others he knew who were over 75 when they stopped
work."

5. The majority then repeated part of the Tribunal's reasons in Smith, including paras. 20 and 21 dealing with the standard of proof required. The majority expressed its conclusion that s.24(1)(c) was satisfied here for these reasons:

"22. In the present case we were impressed by the
evidence as to other carpenters continuing their craft
or trade in a smaller way after 'retirement' (at or
before 65). It accords with our impression of the
presence in the community of such tradesmen operating
on their own account. Little more is required, the
veteran agreed in this case, than a bag of tools and
an ability and incentive to read advertisements
seeking skilled tradesmen.

23. We have considered whether or not the source of
the respondent's knowledge (partly anecdotal) and the
absence of any other form of proof should cause us to
doubt the evidence received. There is the added
problem that the respondent did not inform us at what
age in relation to retirement others became
self-employed. On balance we are prepared to act on
the uncorroborated evidence of the respondent,
because, as we have said, it accords with our own
experience.

24. Despite some concern also about the lapse of time
between the veteran's retirement in 1978 and his claim
for a Special Rate pension in 1984, we do not regard
this as of significance in this case because that
period of inactivity arose from the effects of his
disease.

25. It has been suggested by our colleague that the
failure of the applicant to take any steps to secure
work between the date of his retirement in July 1978
and the relevant date demonstrates that he would never
have been likely to secure work if he had been free of
disabilities. In support it is said that on 21 August
1978 his assessment was only 70% of the General Rate.
Furthermore the concession that he fulfilled the
requirements of s.24(1)(b) only related to the
relevant date, not the date of retirement.

26. The answer to this line of argument in our
opinion is that an assessment after resignation from
work at 70% (i.e. able to do light work only with some
breaks) does not compel the conclusion that he would
have engaged in remunerative work in 1978 if his
condition had been unaffected by war-caused injury or
disease.

27. The only inference which can be drawn from his
failure to seek work when he was said to be capable of
'light work with breaks', is that during those years
to have worked would have caused diminution of his
service pension.

28. The question to be asked is not whether his
failure to do part-time or casual work prior to the
relevant date was prompted by some financial
consideration, but whether looking at the whole of the
evidence now he was, at his date of retirement, the
kind of person who, all things being equal, would have
preferred a chance to work to total retirement.

29. In our opinion his failure to seek work when he
was capable of doing some, does not detract from the
strong impression we have formed that he is a man who
would have had the necessary motivation, skill and
opportunity to continue working to the necessary
degree after his retirement at 62.5 years but for his
war-caused disease."

6. In the course of the respondent's oral evidence before the Tribunal, Mr Hodgman Q.C. (for the respondent - Mr Dalton appeared for the Commission) put this to the respondent:

"You retired from the EZ Company in 1978?---That is
right.

And that was on, what I might say, was unanimous
medical advice; is that so?---Yes.

And is it the fact that because of your war-caused
disabilities - and there is no argument about this - I
think you do not dispute as at retirement?

MR. DALTON: It was not conceded at retirement, only
at relevant date.

MR. HODGMAN: I will lead it from him.

Well, Mr Dalton does not dispute that as of 1984
war-caused disabilities would have forced you out of
the workforce. Is the fact that you were advised by
your LMO, Dr Whyte, to retire in 1978?---That is
correct.

And that was because of your war-caused disabilities;
is that correct?---Yes.

And no other reason?---No other reason."

7. It is common ground that, as at the date of his application (August 1984), the respondent suffered from six service-related disabilities: injury right knee (meniscus operation); osteoarthritis lumbar spine; generalised osteoarthritis; anxiety state; dyspepsia and tinea pedis.

8. The respondent described the nature of his work as follows:

"What sort of carpentry did you do at the Zinc
Works?---I started off on construction, then went into
maintenance, and my last four or five years I was in
the workshop.

Yes. And what would you do there?---When I first went
in there we made cells; that is a matter of putting
one board on top of another, making a box out of
boards, one on top of the other.

And what were you doing in the latter years of your
life at the Zinc company?---I did most or I did pretty
well all of the work required by the fire station
which was putting up first-aid boxes.

Yes, I underestand?---I beg your pardon?

Yes, I follow?---Fire-extinguisher boards, notices;
that was quite an easy job because I started at
quarter to 8. The fire station people started at 9
o'clock and they would usually send a man with a
utility; take me to wherever the job was to be done;
perhaps hold the thing for me and all I would have to
do was attach a board or fix a box. I might repair
the small first-aid boxes.

Yes, I follow.

MR. HODGMAN: And even with all that easy work, on
medical advice you had to give up your job?---Well, at
that time they were starting some of the blitzes out
there on work - getting rid of workers and it looked
as though I would have been put back - could possibly
have been put back onto maintenance work and I knew at
that time that would be too much."

9. He explained his desire to retire as follows:

"I was ignorant of the way to go about it. I was told
afterwards by an RSL representative that at times when
I had a bad back I would see my LMO, have treatment
and I would - this is when the zinc works was a home.
You could get - I could go back to work and not do any
work and find it easier there than to stay at home and
be uncomfortable. When my back was bad I could
neither lay down comfortably, sit or was just
wandering around with nothing to do whereas, go back
to work I could put in a week or 10 days, see more or
less doing not much more than putting in an appearance
and being carried by the workmates."

10. The Commission now submits, as it did in Smith, that the majority of the Tribunal fell into error in three respects: (1) The wrong standard of proof was applied. (2) The matter was considered as at the date of retirement instead of as at the date of application. (3) The finding that s.24(1)(c) was satisfied was not open or at least should not have been made.

11. The Commission cannot, of course, invite the Court to reconsider merely factual questions. But, in principle, the present appeal raises the same questions of law as were raised in Smith. It must follow, for the reasons there given, that the appeal must succeed.

12. I would propose that the orders in Smith be made here also.

I agree with the reasons of Beaumont J. and with the orders that he proposes.