Anderson v Repatriation Commission [2004] FCA 1009 (6 August 2004)

VETERANS’ ENTITLEMENTS – pension – death of veteran – whether executor and trustee of veteran’s will is the ‘legal personal representative’ for the purposes of continuing the proceeding – entitlement to special rate – veteran worked as a farmer on large property before moving to a small ‘hobby farm’ – whether veteran eased out of farming for war-caused injuries alone – application of ‘alone’ test – relevance of reduction of assets to maintain entitlement to pension at a particular rate, retirement age, increasing dementia, disability caused by leg amputation and lack of income – whether veteran engaged in ‘remunerative work’ – whether Tribunal misapplied definition of ‘remunerative work’

WORDS & PHRASES – ‘remunerative work’

Veterans’ Entitlements Act 1986 (Cth) ss 5Q, 6, 24, 28, 119, 120, 126
Administrative Appeals Tribunal Act 1975 (Cth) ss 43(1), 44(1)

Repatriation Commission v Strickland (1990) 12 AAR 343 referred to
Cavell v Repatriation Commission (1988) 9 AAR 534 referred to
Repatriation Commission v Smith (1987) 15 FCR 327 referred to
Counsel v Repatriation Commission [2002] FCAFC 201 (2002) 122 FCR 476 referred to
Hill v Repatriation Commission [2000] FCA 929 referred to

ALISON ANDERSON v REPATRIATION COMMISSION
V 376 of 2003

GRAY J
6 AUGUST 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 376 of 2003

BETWEEN:	ALISON ANDERSON APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	GRAY J
DATE OF ORDER:	6 AUGUST 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The applicant pay the respondent’s costs of the proceeding.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 376 of 2003

BETWEEN:	ALISON ANDERSON APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	GRAY J
DATE:	6 AUGUST 2004
PLACE:	MELBOURNE

1 The questions raised by this appeal from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) relate to the application by the Tribunal to the case of Gilbert Anderson, now deceased, of s 24 of the Veterans’ Entitlements Act 1986 (Cth) (‘the VE Act’). Section 24 contains the criteria by which a claim by a veteran for a pension increase to what is called the ‘special rate’ is to be determined. In applying s 24(2A)(d), the Tribunal found that Mr Anderson was not prevented by incapacity from war-caused injury or war-caused disease or both, alone, from continuing to undertake the remunerative work that he was last undertaking before he made the claim for pension at the special rate. Although it also raises other issues, this appeal is concerned principally with the application by the Tribunal of the ‘alone’ test.

2 At the time of his application to the Tribunal, and at the time of instituting this proceeding, Mr Anderson was alive, but suffering from severe dementia. The application to the Tribunal was commenced in the name of Mr Anderson, but the Tribunal’s decision is headed with an additional reference to the fact that the application was made by Mr Anderson by his attorney under power, his wife. Similarly, this proceeding was commenced in the name of Mr Anderson, followed by the words ‘By his attorney under Power Allison [sic] Anderson’. Prior to the hearing of the appeal, Mr Anderson unfortunately died. By s 126(1) of the VE Act:

3 Counsel who appeared in support of the appeal produced to the Court a copy of Mr Anderson’s will, in which his wife, Alison Margaret Anderson, is named as the sole executor and trustee. There was no information before the Court as to whether Ms Anderson had taken any step to obtain probate of the will, or had otherwise exercised any of the powers or functions of an executor. The phrase ‘legal personal representative’ in s 126(1) is not defined in the VE Act. Neither counsel who appeared was able to assist me with any authority on the question whether the addition of the word ‘legal’ to the more commonly used phrase ‘personal representative’ was intended to carry any particular meaning. I expressed some doubt as to whether someone merely named in a will as executor and trustee could be said to be the ‘legal personal representative’ for the purposes of s 126(1). It became unnecessary to determine this issue, because counsel for the respondent, the Repatriation Commission (‘the Commission’), obtained instructions to the effect that, if Ms Anderson were to indicate formally to the Court that she sought approval by the respondent for the purposes of s 126(1), such approval would be granted.

4 Accordingly, on the basis that Ms Anderson was either the legal personal representative of the late Mr Anderson, or on the basis that she was ‘a person approved by the Commission’, for the purposes of s 126(1), I ordered that she be substituted as the applicant in the proceeding, and that the title to the proceeding be amended accordingly.

6 The term ‘remunerative work’ is defined in s 5Q of the VE Act to include ‘any remunerative activity.’

8 Section 119(1) provides that, in considering, hearing or determining, and in making a decision in relation to (among other things) a claim for an increase in pension to the special rate, the Commission:

9 Section 120(4) of the VE Act requires the Commission, in making a determination or decision of this kind, to decide the matter to its reasonable satisfaction. Section 120(6) makes it clear that there is no onus on a claimant or applicant for a pension or increased pension of proving any matter that is, or might be, relevant to the determination of the claim or application. Pursuant to s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’), the Tribunal may exercise all of the powers and discretions of the original decision-maker; in effect, the Tribunal stands in the place of the original decision-maker in the exercise of the required functions. The legislative provisions as to how the Commission

is to determine a claim or application also bind the Tribunal, when it is reviewing a decision of the Veterans’ Review Board (‘the VRB’), in relation to such a claim or application.

10 Mr Anderson was born on 23 March 1914. He served in the army from 1 July 1940 to 8 November 1945. There is no dispute that his service was ‘operational service’ as defined in s 6 of the VE Act.

11 After his discharge, Mr Anderson acquired a farm property at Derrinallum, which he began farming in 1947. In 1961, he suffered a traumatic amputation of the right leg below the knee, as a result of a farming accident. In 1975, he sold the property at Derrinallum and moved to a 162-acre property at Camperdown, on which he ran a small Hereford cattle stud.

12 On 4 April 1976, Mr Anderson began to investigate the possibility of obtaining a pension, consequent upon his military service. He was then 62 years old. He wrote to the Commission:

13 On 4 May 1976, Mr Anderson applied for a service pension on the grounds of his ‘age’ and ‘permanent unemployability’. The ‘permanent unemployability’ he described was ‘right leg amputated below knee’. He was granted a pension in 1977. In 1983, Mr Anderson married Alison Anderson, his first wife having died some time before.

14 In July 1986, Mr Anderson suffered a reduction of his service pension, as his assets were assessed as being in excess of the basic limit in a means test. He was advised of the reduction in a letter dated 30 July 1986. On 13 November 1986, Ms Anderson wrote to the Commission, referring to the letter of 30 July 1986. She said that, in response to that letter, and the decision of the Department of Veterans’ Affairs (‘the Department’) to revalue the assets, ‘we have been compelled to sell the property...at Camperdown.’ The sale had in fact been completed on 20 October 1986.

15 The couple then acquired a property at Scotts Creek of 14 acres, of which only seven were cleared. In a letter to the Commission, dated 5 October 1987, Mr Anderson wrote:

16 In December 1995, Mr Anderson underwent surgery for an aortic valve replacement and coronary artery bypass.

17 On 28 November 1997, Mr Anderson made a claim for a disability pension in respect of acquired cataracts and bilateral sensorineural hearing loss. On 17 March 1998, the Commission accepted those conditions as war-caused and assessed Mr Anderson’s entitlement at 50 per cent of the general rate of pension, with effect from 28 August 1997.

18 On 6 January 1998, Mr Anderson made a further claim for disability pension in respect of post-traumatic stress disorder (‘PTSD’), ischaemic heart disease and aortic stenosis. On 20 March 1998, he made another claim in respect of the same disabilities. On 26 March 1998, the Commission accepted ischaemic heart disease as war-caused, but found that PTSD and aortic stenosis were not war-caused. The Commission assessed Mr Anderson’s pension at the extreme disability allowance rate with effect from 6 October 1997.

19 Mr Anderson sought review by the VRB of the decision refusing his claim for recognition of PTSD and aortic stenosis as war-caused. On 4 December 1998, the VRB affirmed the decision. Mr Anderson, by his attorney under power, Ms Anderson, sought review of that decision by the Tribunal. On 14 April 2003, the Tribunal published its decision and its reasons for decision. The Tribunal set aside the decision of the VRB in so far as it concerned PTSD and substituted a decision that PTSD was war-caused. The Tribunal affirmed the decision that aortic stenosis was not war-caused. The Tribunal also refused the claim for pension at the special rate.

20 In the meantime, on 8 October 1999, Mr Anderson made a claim in respect of ischaemic dementia, seeking an increase in the rate of his pension. The Commission refused the claim, but the VRB upheld it, with effect from 8 July 1999 and remitted the matter for assessment of pension by the Commission. On 3 January 2001, the Commission decided that the extreme disablement adjustment was the correct rate of pension.

22 In the course of the proceeding before the Tribunal, the claim that Mr Anderson’s aortic stenosis was war-caused was withdrawn.

23 The Tribunal’s written reasons for decision extend to some 30 pages. They contain a detailed account of Mr Anderson’s history and of the evidence and other material before the Tribunal. When it came to determine the issue of whether Mr Anderson was entitled to pension at the special rate, the Tribunal turned directly to s 24(2A)(d) of the VE Act and to the ‘alone’ test found in that provision.

24 The Tribunal referred to the fact that, in 1998, when the application giving rise to the proceeding was made, Mr Anderson was then 84 years old. Citing Repatriation Commission v Strickland (1990) 12 AAR 343 at 351 per Davies and Ryan JJ, the Tribunal recognised that age was not a determining factor of entitlement to pension at the special rate, but was a relevant factor. It referred to the fact that it could only determine Mr Anderson’s capacity to undertake remunerative work by reference to the evidence of Ms Anderson and the available documents, because Mr Anderson was infirm and incapable of giving evidence.

25 The Tribunal recognised that self-employed farmers often work beyond the age of 65. It also recognised that persons with disabilities are capable of working full-time, or close to full-time and that, despite the amputation of Mr Anderson’s lower leg, he was able to conduct farming operations for many years. The Tribunal then said:

26 The Tribunal referred to the letter of 7 April 1976, in which Mr Anderson had said that his age and his disability had caused him to investigate payment of a service pension. It referred to his statement in his claim for a service pension that he was applying by reason of age and permanent unemployability, referring to the amputation as the cause of permanent unemployability. The Tribunal then referred to Ms Anderson’s letter of November 1986, and to the statement that she and Mr Anderson had been compelled to sell the Camperdown property in response to the revaluation of their assets.

27 As the Tribunal found, in 1986, Mr Anderson was 72 years old. He moved from a 168-acre (elsewhere the Tribunal had said 162-acre) farm to a 14-acre property. The Tribunal was of the view that this was consistent with an intention or a decision to retire. It referred to a statement in response to a questionnaire, in which Mr Anderson said in 1986 that he had in fact ceased working, because in the previous 12 months he had not been in full-time, part-time, seasonal or casual employment. The Tribunal referred to a letter from Mr Anderson’s accountant to the Commission in December 1986, expressing the view that there would be ‘little or no income from the farming venture’ at Scotts Creek. The Tribunal also referred to Mr Anderson’s letter of 5 October 1987, in which he stated:

28 The Tribunal found that this comment was again consistent with actual or intended retirement. Mr Anderson continued to advise the Department and the Commission that he had not been in full-time, part-time, casual or self-employment for the previous 12 months, in statements made up to February 1991.

29 The Tribunal then turned to evidence, supplied by Ms Anderson, in an attempt to show that the Scotts Creek property was commercially viable. It found that a greater part of the content of a statement by Ms Anderson was an exaggeration of the level of activity conducted at Scotts Creek. Income from ‘meat poultry’ extended for a period of between six and eight weeks only and then involved only 24 chickens. The activity ceased because the slaughter of the chickens revolted Mr Anderson. The sale of eggs amounted to no more than an average of $2 per week, even allowing for what the Tribunal thought was exceptional laying capacity of the hens, described by Ms Anderson. Income from dog breeding amounted to no more than $100 over five years, although Ms Anderson speculated that cash payments were made to her husband, but could offer no proof. One stud dog served five female dogs per year, so in the Tribunal’s view, not much by way of income would have been achieved. Agistment of racehorses was only for a 12-month period and provided an income of no more than $50 per week on average. That income was received after Mr Anderson’s heart surgery in 1995, from which time Ms Anderson agreed that he had effectively retired. Nor did it appear to the Tribunal that there was significant income from the sale of fruit and vegetables, because of its seasonal nature, the youth of the fruit trees and the indication Ms Anderson gave of the size of the ‘market garden’.

31 The Tribunal also referred to an application form, dated 26 December 1997, which it said was completed by Mr Anderson but was apparently in the handwriting of Ms Anderson, containing a history of employment and recording that, from 1986, the type of work undertaken was ‘retirement acres, hobby farm, sheep’. In the same statement, Mr Anderson recorded increasing dementia and leg amputation as disabilities affecting employment. The Tribunal found that it was Mr Anderson’s choice, in 1986, 11 years before the application was lodged, that he decided to ‘ease out of farming’. It was not by war-caused injuries alone.

32 The Tribunal referred to Cavell v Repatriation Commission (1988) 9 AAR 534, in which Burchett J decided that the word ‘alone’ in s 24(1)(c) of the VE Act (a provision similar to s 24(2A)(d) of the VE Act) does not mean ‘sole, unique and absolute cause’. His Honour held at 539 that the Tribunal should:

34 Counsel for the applicant advanced a number of arguments in relation to the Tribunal’s reasons for decision. It is convenient to deal with those arguments under separate headings.

35 Counsel for Ms Anderson argued that the Tribunal had failed to act in accordance with s 119(1)(h) of the VE Act because it had not taken into account difficulties in ascertaining the existence of any fact, matter, cause or circumstance. He suggested that the Tribunal had failed to have sufficient regard to the absence of any direct evidence from Mr Anderson, because of his infirmity due to dementia.

36 In fact, the Tribunal was well aware of the difficulty caused by the absence of evidence from Mr Anderson himself. As I have said in [24], the Tribunal made specific reference in its reasons to the fact that an analysis of Mr Anderson’s capacity to undertake remunerative work could only be determined by reference to the evidence of Ms Anderson and available documents. In summarising its reasoning, in the paragraph I have set out at [33], the Tribunal began by referring specifically to the absence of Mr Anderson, obviously regarding that as a difficulty. Counsel for Ms Anderson was reduced to contending that, although the Tribunal said that it was taking the matter into account, it had not really done so, or had not done so properly. I cannot agree. There is nothing in the Tribunal’s reasons for decision to suggest that it did anything other than take as sympathetic a view of the evidence as it could, given that it had been unable to receive any evidence directly from Mr Anderson.

37 Counsel for Ms Anderson also accused the Tribunal of having imposed an onus of proof on Mr Anderson, contrary to s 120(6) of the VE Act. When I asked for references to specific passages that might reveal that the Tribunal had done this, counsel for Ms Anderson was in some difficulty. He referred to the Tribunal’s statement, in relation to income from dog breeding, that Ms Anderson had speculated that cash payments were made to her husband, ‘but over which she could offer no proof.’ The Tribunal was not there imposing any onus. It was merely distinguishing between Ms Anderson’s speculation and hard evidence which, if available, would have enabled a firm finding to be made. Counsel for Ms Anderson drew attention to a sentence in the Tribunal’s reasons:

38 Nothing about this sentence suggests the imposition of an onus of proof. It is merely a conclusion drawn by the Tribunal from the evidence available to it. The final reference made was in the paragraph I have quoted at [33], to the sentence beginning ‘There is not one reference made by him’. Again, this is not indicative of the Tribunal imposing an obligation on Mr Anderson to prove anything. It is merely a conclusion drawn by the Tribunal from the available evidence.

39 There is no reason to believe that the Tribunal did anything other than to deal with the case before it in accordance with s 120(4) of the VE Act, deciding the matter to its reasonable satisfaction. It has been held in Repatriation Commission v Smith (1987) 15 FCR 327 at 335 that this provision requires the decision-maker to decide any issues for which no other standard of proof is specified on the balance of probabilities. This the Tribunal did.

40 Counsel for Ms Anderson criticised the Tribunal for going directly to s 24(2A)(d), and for not applying all of the provisions of s 24(2A). In particular, he suggested that, in order to reach s 24(2A)(d), the Tribunal would have had to be satisfied that s 24(1)(b) applied to Mr Anderson. Section 24(1)(b) was made applicable by s 24(2A)(c). He suggested that, if the Tribunal had made a specific finding that Mr Anderson’s incapacity from war-caused disease alone rendered him incapable of undertaking remunerative work for periods aggregating more than eight hours per week, this would have led the Tribunal to conclude that the incapacity from war-caused disease alone was responsible for Mr Anderson having ceased to engage in the remunerative work that he was last undertaking.

41 This argument cannot be accepted. Paragraphs (c) and (d) of subs (2A) are obviously intended to lay down separate criteria; if both were the same, it would be unnecessary to have more than one. The criterion in s 24(1)(b), imported into the case of a veteran over 65 at the time of making a claim by s 24(2A)(c), is directed to the causal relationship between the veteran’s war-caused injury or disease and his or her incapacity for work. That is, it is directed to a current issue. Section 24(2A)(d) is directed towards the causal relationship between the war-caused injury or disease and the cessation of the last remunerative work that the veteran was undertaking before the claim was made. Thus, it is directed to a past issue. As a matter of logic, and no doubt as a practical matter in many cases, it is perfectly possible to find that a veteran is now incapacitated, by reason of war-caused injury or disease alone, to the extent required by s 24(1)(b), and at the same time to find that the veteran has in the past ceased work for reasons that were not confined to war-caused injury or disease.

42 Counsel for Ms Anderson also criticised the Tribunal for failing to deal with the criterion expressed in s 24(2A)(e). It is enough to say that that criterion only becomes applicable, as is demonstrated by its opening words, if the criterion in (d) is found to be made out, ie if the veteran is so prevented from his or her last paid work.

43 To the extent to which counsel for Ms Anderson sought to rely on the fact that the Tribunal had gone straight to s 24(2A)(d) in its reasoning, his criticism of the Tribunal’s reasoning cannot be justified. It was open to the Tribunal to deal with the most obvious issue before it. It did so.

44 Counsel for Ms Anderson made a number of criticisms of the Tribunal’s reasoning in its application of the criterion referred to in s 24(2A)(d) of the VE Act.

45 He referred to the failure of the Tribunal to make any direct reference to the definition in s 5Q of the VE Act of ‘remunerative work’. He suggested that, if the Tribunal had understood that ‘remunerative work’ included ‘any remunerative activity’, its conclusion on the facts would have been different. Although the Tribunal did not refer to the definition expressly, there is nothing in its reasoning to suggest that the Tribunal misunderstood the meaning of ‘remunerative work’. Indeed, in the course of its reasons for decision, the Tribunal referred to the judgment of the Full Court in Counsel v Repatriation Commission [2002] FCAFC 201 (2002) 122 FCR 476 and to the judgment of Wilcox J in Hill v Repatriation Commission [2000] FCA 929. Although those cases were concerned more with the meaning to be attributed to ‘earnings’ in a criterion such as that found in s 24(2A)(e), they clearly informed the Tribunal’s understanding that farming would not necessarily cease to be remunerative simply because the end of year accounts showed a loss, and that there was a distinction to be drawn between small amounts of money derived from a hobby and remuneration.

46 The question whether Mr Anderson was engaged in remunerative work at Scotts Creek was central to the issue whether he had been prevented by his war-caused diseases alone from continuing to engage in his last remunerative work. It was a question of fact for the Tribunal. The Tribunal reviewed in detail the evidence as to the nature and extent of the activities carried out by Mr Anderson and Ms Anderson at Scotts Creek, and concluded on the facts that they did not amount to ‘remunerative work’. An appeal lies from the Tribunal’s decision to this Court only on a question of law: see s 44(1) of the AAT Act. Only if it can be shown that the Tribunal misdirected itself in law in the manner in which it dealt with that question of fact would the appeal succeed on that issue. Counsel for Ms Anderson was unable to show that the Tribunal misdirected itself in law in its approach to the issue of ‘remunerative work’.

47 Counsel for Ms Anderson also attempted to argue that the Tribunal had failed to apply correctly the principle expressed by Burchett J in Cavell. Assuming that principle to be stated correctly, there is nothing to show that the Tribunal failed to apply it properly. The Tribunal did make a very practical decision as to whether Mr Anderson’s loss of remunerative work was attributable to his service-related incapacities and not to something else as well. It did not apply ‘nice philosophical distinctions’, but acted with ‘an eye to reality’. It exercised common sense. Indeed, it might be thought that the case was overwhelming. Both Mr Anderson and Ms Anderson had made previous statements as to the reasons for the sale of the farm at Camperdown and the move to Scotts Creek. Those reasons included Mr Anderson’s age, the disability consequent upon the amputation of part of his leg (which was not war-caused) and the need to reduce their assets so as to maintain an entitlement to receive a pension at a particular rate. The Tribunal accepted that Mr Anderson was a person who did not like to speak about his wartime experiences. It is one thing to say that Mr Anderson had such reluctance. It is quite another to say that he was prepared to invent explanations for his decision to cease farming at Camperdown that had nothing to do with any war-caused incapacity, and to advance them to the Department and the Commission instead of the real reason. In the circumstances, it would have been extremely difficult for the Tribunal to be reasonably satisfied that Mr Anderson’s move from Camperdown to Scotts Creek was by reason of war-caused incapacity, and that advancing age, the earlier amputation of one leg below the knee and the diminution of his rate of pension by reason of a reassessment of the value of his assets played no part in it. For the Tribunal to do so would have been to fly in the face of the evidence.

48 Counsel for Ms Anderson also relied on Repatriation Commission v Smith (1987) 15 FCR 327. He contended that it laid down a principle of construction of the criterion in s 24(2A)(d), in the form of a question that the Tribunal had failed to ask itself. At 337, Beaumont J, with whom Northrop and Spender JJ agreed, said:

On this basis, counsel for Ms Anderson contended that the Tribunal in the present case had not attempted an assessment of what Mr Anderson would have done if he had none of his service disabilities.

49 In Smith, the Full Court was dealing with what was then s 24(1)(c) of the VE Act. In a single paragraph, that provision contained (as it still does) effectively the two criteria found in s 24(2A)(d) and (e). Section 24(1)(c) deals with both the question whether incapacity from war-caused injury or disease or both, alone, prevented a veteran from continuing to undertake remunerative work and the question whether the veteran is 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. It is plain that the question formulated by Beaumont J in Smith was directed to the application of the two-stage criterion in s 24(1)(c). That part of the criterion that is constituted by the ‘alone’ test, standing by itself as it does in s 24(2A)(d), does not prompt such a question as Beaumont J suggested. It prompts an inquiry into what the last remunerative work undertaken by the veteran was, and why he ceased to undertake it. If more than one reason appears, and the reasons are not confined to war-caused injury or disease, then the ‘alone’ test will not be satisfied. If the veteran does satisfy the ‘alone’ test, it will be necessary to move to the question of loss of wages or salary, 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, as required by s 24(2A)(e). It is then that the Tribunal would need to attempt an assessment of what the veteran probably would have done if not suffering from the service disabilities. If, even without the war-caused injury or disease, and its consequent incapacity, the veteran would not have been earning, then that criterion will not be satisfied. There was no error of law on the part of the Tribunal in the present case in failing to ask the question referred to in Smith.

50 Counsel for Ms Anderson attempted to attack the Tribunal’s reliance on Strickland. He argued that, whilst 65 might have been a common retiring age at the time when Strickland was decided, it had ceased to be so by the time the Tribunal made its determination and Mr Anderson was prejudiced because the Tribunal regarded his age as an important disqualifying factor. The Tribunal was bound to follow Strickland, as it is bound to follow any judgment of this Court. Even if it were the case that, in the 13 years between the Full Court’s judgment in Strickland and the Tribunal’s decision in the present case, changed circumstances had undermined the view taken in Strickland of the importance of 65 as a retiring age, it was not for the Tribunal to undertake a reconsideration of Strickland. I am also bound by Strickland, and cannot reconsider it as a single judge.

51 In any event, the Tribunal followed Strickland not by way of attaching great importance to 65 as a retiring age, but by reference to the principle underlying what was said in Strickland. The Tribunal, correctly, took the view that Mr Anderson’s age was a factor that it should take into account in applying the ‘alone’ test. The Tribunal, also correctly, accepted the well-known fact that self-employed farmers often work beyond the age of 65. Even if it be the case that, because of a heightened awareness of the need to refrain from discriminating on the ground of age in relation to retirement, it is necessary to accept that 65 can no longer be regarded as a retiring age, and Strickland is no longer good law, this would not be sufficient to demonstrate error of law on the part of the Tribunal in the present case. It would still be the case that the age of a veteran at the time of ceasing the veteran’s last remunerative work would be a relevant, and possibly an important, consideration in the application of the ‘alone’ test.

52 Counsel for Ms Anderson suggested that the Tribunal had taken into account Mr Anderson’s intention when he was 62 years old. He argued that, if the Tribunal were to do so, it should have applied s 24(2)(b), and inquired whether Mr Anderson would, but for his war-caused incapacity, be continuing to seek to engage in remunerative work. Section 24(2)(b) is a provision that assists in the application of s 24(1)(c). Both provisions are applicable only to a veteran who had not yet turned 65 when the claim for a pension or application for an increased pension was made. They did not apply to Mr Anderson, who was over 65 at those times. All that the Tribunal did was to find that, in the history of Mr Anderson’s working life, he was contemplating retirement as early as 62. He was doing so then for reasons not associated with his war-caused condition.

53 Counsel for Ms Anderson suggested that some of the factual matters on which the Tribunal relied were irrelevant. These included: the response to a reduction in pension; the move from a larger property to a smaller property; the finding that there was little or no income from the Scotts Creek property; and that Mr Anderson had wanted to ease himself out of farming activities. The answer is that these facts were plainly relevant to the question whether Mr Anderson satisfied the ‘alone’ test. Central to that question were his reasons for selling the Camperdown farm and moving to Scotts Creek and the question whether any remuneration was earned from the activities on the Scotts Creek property.

54 The Tribunal performed its task correctly when it determined that the last remunerative work undertaken by Mr Anderson was the operation of his farm at Camperdown and that he was not prevented by incapacity from war-caused injury or disease, or both, alone, from continuing to undertake that remunerative work. It did not fail to apply any correct principle. It did not, as counsel for Ms Anderson suggested, fail to characterise the remunerative activity that Mr Anderson was last undertaking, by referring only to the capacity in which he undertook that work. Contrary to the submission on behalf of Ms Anderson, the reasons why Mr Anderson ceased to undertake his last paid work were determinative of the application of the ‘alone’ test.

55 For these reasons, the appeal must be dismissed. No reason was advanced, and none appears, as to why the usual rule that costs follow the event should not be followed. Ms Anderson should be ordered to pay the costs of the Commission of this proceeding.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Counsel for the Applicant:	D De Marchi

Solicitor for the Applicant:	De Marchi & Associates

Counsel for the Respondent:	A McMahon

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	13 May 2004

Date of Judgment:	6 August 2004

Federal Court of Australia

Anderson v Repatriation Commission [2004] FCA 1009 (6 August 2004)