Peacock v Repatriation Commission [2004] FCA 1449 (11 November 2004)

Last Updated: 12 November 2004

FEDERAL COURT OF AUSTRALIA

Peacock v Repatriation Commission [2004] FCA 1449

DEFENCE AND WAR – veterans´ entitlements – appeal from the Administrative Appeals Tribunal – disability pension – special rate of pension under s 24 of the Veterans´ Entitlements Act 1986 (Cth) – whether medical evidence at time of retirement necessary to satisfy the test in Flentjar v Repatriation Commission (1997) 48 ALD 1 – whether applicant was prevented from working by war-caused injury or war-caused diseased alone – applicant entered contract designed to end when he could access his superannuation benefits – whether access to superannuation benefits could prevent the applicant from working.




Veterans’ Entitlements Act 1986 (Cth) s 24
Administrative Appeals Tribunal Act 1975 (Cth) s 44

Flentjar v Repatriation Commission (1997) 48 ALD 1 applied


















GEOFFREY PEACOCK v REPATRIATION COMMISSION

Q 92 OF 2004




DOWSETT J
11 NOVEMBER 2004
SYDNEY (VIA VIDEO-LINK) HEARD IN BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 92 OF 2004

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	GEOFFREY PEACOCK APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	11 NOVEMBER 2004
WHERE MADE:	SYDNEY (VIA VIDEO-LINK) HEARD IN BRISBANE

THE COURT ORDERS THAT:

1. The decision of the Administrative Appeals Tribunal made on 25 May 2004 be set aside;

2. The matter be remitted to the Tribunal for further consideration in accordance with law; and

3. The respondent pay the applicant’s costs of this appeal.










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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 92 OF 2004

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	GEOFFREY PEACOCK APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	DOWSETT J
DATE:	11 NOVEMBER 2004
PLACE:	SYDNEY (VIA VIDEO-LINK) HEARD IN BRISBANE

REASONS FOR JUDGMENT

INTRODUCTION

1 This is an appeal from a decision of the Administrative Appeals Tribunal (the "Tribunal"), rejecting the applicant’s claim to a special rate of pension pursuant to s 24 of the Veterans’ Entitlements Act 1986 (Cth) (the "Act").

THE APPLICANT’S SERVICE AND WORK HISTORY

2 The applicant was born on 29 March 1945. He served with the Australian Army in Vietnam from 24 May 1966 to 6 May 1967. Prior to that, he had worked in local government administration in Victoria. After his discharge from the army, he returned to that industry, working in various capacities until he retired on 14 April 2000. Prior to such retirement, he was the Council Support Executive Officer for the Shire of Yarra Ranges, which position he held pursuant to a fixed-term contract for a period of three years and three months from 15 January 1997. He had previously been a permanent employee of the council. From 1994 until November 1998, the Chief Executive Officer (the "CEO") of the council was Mr Eric Howard. Mr Howard, on behalf of the council, entered into the fixed-term contract with the applicant. With reference to that contract, the Tribunal recorded in its reasons, at [16] that:

‘The applicant said that the standard contractual period was of five years but he said he had discussed his appointment with Mr Howard. He told the Tribunal that he had been experiencing problems in the workplace in respect of his capacity to concentrate and to deal with people and he said Mr Howard was aware of these difficulties. He said his main concern was that he wanted to continue in employment until he reached 55 years of age because, at that time, he would be able to gain access to his superannuation benefits and the contract was tailored, in length, to achieve that goal. This was confirmed by Mr Howard in his evidence. Mr Howard said he had had some concerns about the applicant’s well-being and was aware he was having problems with his hearing. Nevertheless, Mr Howard described the applicant as having been an exemplary employee. He said he had been thoroughly reliable, had worked long hours and was fastidious in the way he carried out his duties.’

3 In November 1998 Mr Robert Hauser succeeded Mr Howard as CEO. On 14 October 1999, following discussion with the applicant, Mr Hauser informed him that his contract with the council would not be extended. The Tribunal summarized Mr Hauser’s evidence at [19] as follows:

‘Mr Hauser said that the discussions he had had with the applicant related to the nature of the role that he was performing for the Shire at that time. He said he was not aware of any difficulties that the applicant had in carrying out his work but said that, in the manner in which he had restructured the organisation, the position the applicant filled had become one of decreasing importance and had reached the stage where the position was no longer needed.’

4 According to the Tribunal, the applicant said that:

‘... his ambition was to work until he was aged 55 but, with about three months of his contract to run, he came to a realisation that he could not go on any longer in the job and he spoke to his supervisor about gaining access to his long service leave and accrued annual leave to take him to the date of termination of his position.’

5 In the end the applicant ceased work about three months prior to the end of his contract, taking leave until it expired in April 2000. He placed his house on the market in January 2000, bought a unit on the Gold Coast in March 2000 and moved there in June of that year.

SERVICE-RELATED DISABILITIES

6 The respondent accepts that the applicant suffers from alcohol dependence, hypertension, chronic simple bronchitis, post traumatic stress disorder ("PTSD"), haemorrhoids, gastro-oesophageal reflux disease, irritable bowel syndrome, bilateral sensori-neural hearing loss with tinnitus, and impotence. For present purposes his alcohol dependence and PTSD are of primary importance. The respondent accepts that all relevant conditions are war-caused.

EVIDENCE AS TO THE APPLICANT’S DISABILITIES

7 Mr Howard considered that the applicant had been an entirely satisfactory employee but that this had probably been at some cost to himself. Mr Hauser also considered that the applicant’s service had been satisfactory. The expiry of his contract coincided with a decision by Mr Hauser to abolish his position as part of a re-organization of the council’s workforce.

8 The applicant said that whilst he was working, he felt as if he were "two people". At work, he was thorough and methodical, although not good at dealing with people; at home he was moody, unsociable and inclined to consume excessive amounts of alcohol. His wife supported this account. In the mid-1980s the applicant had consulted Dr Tom Smythe, a general practitioner, for depression. He declined to see a psychiatrist and did not otherwise seek medical advice concerning depression, stress or any associated condition until after he moved to the Gold Coast. As I have said, in 1997 the applicant entered into a contract of employment which was to expire when he became entitled to his superannuation benefits at age 55. The thrust of his evidence was that he continued to work until that time in order to secure his financial position but did so with difficulty.

9 Since mid-2001, he has been seeing a general practitioner, Dr Helen Bothwell. Dr Bothwell reported that:

‘Geoffrey has suffered from significant Post Traumatic Stress Disorder since his discharge from the Armed Services in 1968.

Prior to 1985 Geoffrey, had undergone random spasmodic assessment and treatment for this condition until he suffered a nervous breakdown in 1985. This required psychiatric assessment, medication and supportive services to assist his recovery. After this time and up til now Geoffrey has continued to internalise his emotions, he has suffered nightmares, flashbacks and has been socially withdrawn for years. This condition has deteriorated progressively over the past 5-10 years.’

10 In a later report Dr Bothwell said:

‘I, Helen Bothwell, have reviewed Geoffrey on a regular basis over the past 12 months at the Renaissance Medical Centre. He presented with a long history of increased anxiety, insomnia, nightmares, flash back and social withdrawal since his discharge from the Armed Forces in 1967. There has been associated behavioural changes including regular excessive alcohol consumption during his time in the Army and subsequently alcohol abuse and occasional physical violence since his discharge. Geoffrey was originally, prior to his drafting, a non smoker, however post draft and then post discharge, Geoffrey has remained a 1-2 packet/day smoker.

Geoffrey has also described a multitude of additional symptoms with the following diagnoses, including chronic tinnitus, sensorineual hearing loss, impotency, posttraumatic stress disorder, chronic bronchitis, irritable bowel syndrome and haemorrhoids. All of which are attributed to Geoffrey’s active time in the Armed Forces.

Thus considering Geoffrey’s current physical and psychological conditions i.e. Post Traumatic Stress Disorder and Generalized Anxiety Disorder, plus those mentioned previously, he would be unable to undertake remunerative employment for less than 8 hours per week. As previously stated, Geoff’s precarious mental stability is a result of his active involvement in the Army during the Vietnam War, and this alone has contributed wholly and solely to his diminished mental capacity now.

These conditions have been present and progressive over the past 35 years since Geoffrey’s discharge in 1967. Thus Geoffrey’s current medical conditions are considered permanently disabling. As Geoffrey still suffers from both physical and psychological conditions which will not be cured.

Given the nature and extent of Geoffrey’s precious [sic] medical circumstances I would have to state that in my medical opinion Geoffrey is totally and permanently disabled and is unsuitable for present/future rehabilitation. This is due to his accepted disabilities as per the Department of Veteran Affairs assessment, there by rendering Geoffrey, again, unable to undertake remunerative employment for up to 8 hours per week...’

11 Dr Maxwell Katz, a consultant psychiatrist, said:

‘In view again of the history of Geoffrey Peacock’s symptoms and the ongoing evidence of the same it seems reasonable to suppose from a medical perspective that the only significant medical condition which could have prevailed upon Geoffrey Peacock to the extent that he was influenced to leave work when [the applicant] did is the accepted condition of Post Traumatic Stress Disorder.

It is reasonable to presume that Geoffrey Peacock’s symptoms of Post Traumatic Stress Disorder in their previously untreated state and in the context also of uncontrolled drinking then were more severe and functionally disruptive than now from which I draw my conclusion that the symptoms of Post Traumatic Stress Disorder were of sufficient severity to influence Geoffrey’s reported decision to leave work when [the applicant] did.’

12 Dr Katz’s views can hardly be described as a diagnosis of the applicant’s condition in early 2000, let alone in late 1996 or early 1997 when he decided that he would retire in 2000. Dr Katz’s views are, at least in part, based upon assumptions as to the applicant’s probable condition in 2000, which assumptions are, in turn, based upon his condition in 2004. Dr Katz makes no reference to, and perhaps was unaware of, Messrs Howard and Hauser’s views concerning the applicant’s performance of his duties from 1997 to 2000.

13 Another psychiatrist, Dr Morris, said:

‘Before going to Vietnam and after returning from Vietnam [the applicant] has worked in local government most of his life until 2000. In 2000 he found that he could not deal with the pressures of work. His psychological symptoms made it difficult for him to complete tasks and respond to time and work pressures. His contract at the Yarra Ranges Council was not renewed in April 2000. He says that this was because his employers felt that he could not cope any further with the position. Since leaving work in 2000 he has worked as a volunteer secretary of the Southport Bowling Club. The club has 200 members. This work involves computer typing and document preparation, photocopying, printing and managing the membership database and fees. ...’

...

Geoffrey Peacock suffers from chronic PTSD. He also suffers from alcohol dependence. He has some depressive symptoms but does not have a current diagnosis of depression. The differential diagnoses include major depressive disorder, dysthymic disorder, generalised anxiety disorder, panic disorder and social anxiety disorder.

...

The loss of work in the year 2000 was a major stressor.

...

His general social functioning requires attention. In addition, he needs to be assessed for his vocational skills with the goal of determining whether he can return to the workforce in a part time capacity in a suitable job. In order to facilitate this I recommend that he is placed on a temporary special rate of pension so that if he does return to work in a limited capacity this does not affect his pension entitlements in the short term.

...

At the moment Geoffrey Peacock is not capable of working. If the treatment of his psychiatric conditions are successful, then it may be possible for him to return to work in a suitable vocation in a part time capacity. I think an attempt at vocational assessment and work rehabilitation should be made after he completes a PTSD rehabilitation program in mid year.

...

Geoffrey Peacock has had a long history of PTSD and alcohol dependence. It is unlikely that his PTSD symptoms will resolve entirely, although it can be expected that they may diminish significantly if he does respond to treatment. I suspect that he will have residual symptoms of this condition life-long. His alcohol dependence may come under control and he may be able to drink alcohol at safe levels. If he cannot do this then he will have to have an abstinence model of treatment. His alcohol dependence is prone to relapse and he will be at risk of doing this for the rest of his life. It is possible that he may return to part time work in a suitable vocation at the end of this treatment phase. This would be an optimal outcome as I doubt that he will ever get back to full time work.’ .

14 The Tribunal recognized that the applicant’s history, as recorded by Dr Morris, was ‘...completely at odds with the evidence of Mr Howard or Mr Hauser’.

THE APPEAL

15 On 31 January 2003 the applicant applied for an increase in the rate of his disability pension and for a pension at the special rate. On 3 April 2003, a delegate of the respondent increased the rate of his disability pension to 100% of the general rate but refused his application for a pension at the special rate. On 28 April 2003 the applicant applied to the Veterans Review Board (the "Board") for review of that decision. On 8 October 2003 the Board affirmed the respondent’s decision. The applicant then applied to the Administrative Appeals Tribunal (the "Tribunal") for review of that decision. On 25 May 2004 the Tribunal affirmed the Board’s decision. The applicant now appeals to this Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the "AAT Act"). Such appeals are limited to questions of law.

LEGISLATIVE PROVISIONS

16 A veteran will qualify for a special rate of pension if he or she meets the criteria prescribed in s 24 of the Act. That section relevantly provides:

(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 has 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 earning on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity;

(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.’

17 The Commission accepted that the applicant satisfied pars 24(1)(aa), (aab), (a) and (b). Paragraph 24(1)(d) is not relevant. The primary question for the Tribunal was whether the applicant satisfied par 24(1)(c). In determining that question the Tribunal had also to consider the effect of subs 24(2).

18 In Flentjar v Repatriation Commission (1997) 48 ALD 1, the Full Court observed that a proper application of par 24(1)(c) necessitated consideration of the following questions:

‘1. What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s 24(1)(c) of the Act?

2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?

3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?

4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?’

19 Subsection 24(2)(a) provides that for the purposes of par 24(1)(c), a veteran shall not be taken to be suffering a loss of remuneration by reason of his or her incapacity if he or she:

·	has ceased to engage in remunerative work for reasons other than his or her relevant war-caused incapacity; or
·	is incapacitated or prevented from engaging in remunerative work for some other reason.

20 Paragraph 24(2)(b) operates in certain circumstances to ameliorate the consequences for a veteran of failing to satisfy the requirements of par 24(1)(c). The Tribunal decided that par 24(2)(b) did not apply in the present case. The applicant has not challenged that decision.

FINDINGS OF THE TRIBUNAL

21 In answer to the first Flentjar question, the Tribunal found that the applicant’s previous work was of a clerical or administrative nature. It observed at [29]:

‘In relation to the second question posed in Flentjar v Repatriation Commission (above), I am satisfied that it cannot be said that the applicant is prevented from continuing to undertake that work because of his war-caused injuries or diseases. At the time when he stopped work, the only condition which had been accepted under the Act was haemorrhoids and the other conditions had not been diagnosed at that time. There is no contemporaneous medical evidence to indicate that the applicant was suffering from the effects of any of these conditions, subsequently accepted as being related to service, at that time. Even if it were the case that the symptoms of his now accepted disabilities were beginning to manifest themselves whilst he was working with the Yarra Ranges Shire, there is no medical evidence that they were preventing him from continuing to undertake that work. There is evidence that he was treated for depression in 1985 but with no subsequent treatment until about one year after he moved to Queensland at which time he began to see Dr Bothwell.’

22 The Tribunal’s conclusion that it was not satisfied that the applicant was unable to perform his former work because of his war-caused incapacities seems to be inconsistent with the respondent’s concession that the applicant satisfied the requirements of par 24(1)(b), although the questions are not identical. I will return to this matter at a later stage.

23 The Tribunal then discussed Dr Morris’s evidence, pointing out, as I have observed above, that his version of the applicant’s history was inconsistent with the evidence of Mr Howard and Mr Hauser. The Tribunal continued at [30] – [32]:

’30. I am not satisfied that the applicant’s war-caused injuries or diseases prevented him from continuing to undertake remunerative work that he was undertaking. However, even if it were the case that the second question in Flentjar v Repatriation Commission could be answered in the affirmative, I am satisfied that, for the purposes of the third question posed by the Federal Court in that case, any such conditions were not the only factor or factors preventing him from continuing to undertake that work. He was employed on a contractual basis which had been specifically tailored to come to an end at a point where he would be able to access his superannuation benefits at the age of 55 years. The contract continued until that time was reached although he actually stopped attending the work-place before that as he took long service leave and holiday leave over the final months of his contract. This was without the benefit of any medical advice and after making a decision to relocate with his wife from Victoria to Queensland. To that end, he had already begun to negotiate the sale of his own house and purchased his future residence in Queensland in March 2000. The decision to bring to an end his remunerative employment had been made in 1996 when he entered into the agreement. I am satisfied that, from that time, he had decided to work until his 55^th birthday and to then retire after securing his superannuation benefits. This was in a setting where consecutive CEOs of the Yarra Ranges Shire were able to express satisfaction with the manner in which he undertook his employment obligations over the next three years.

31. I am satisfied that the availability of his superannuation payments at age 55 had a significant role to play in the applicant’s decision to cease employment and that, therefore, it was not his war-caused injuries or diseases, alone, which prevented him from continuing to undertake his previous remunerative work when his contract expired or at any time thereafter. By the commencement of the assessment period, he was far removed from the working environment of local government in which he had been involved for all of his working life and had become a retired person with no intention of engaging in any form of remunerative work whilst living in retirement on the Gold Coast.

32. On the basis of that finding, the applicant does not meet the requirements of paragraph 24(1)(c) of the Act as it is set out above. ...’

GROUNDS OF APPEAL

24 The grounds of appeal raised by the applicant’s notice of appeal are a little vague. The following are possible questions of law emerging from those grounds:

·	the Tribunal wrongly considered that medical evidence was necessary in order to satisfy the test in Flentjar;
·	the Tribunal took into account an irrelevant consideration ‘...in considering that it was necessary that such medical evidence exist before being able to apply that test’;
·	the Tribunal ought to have accepted the ‘...unchallenged evidence of a Mr Howard...’ in connection with of the satisfaction of the "alone" test prescribed in Flentjar; and
·	the Tribunal erred ‘...in finding that medical evidence and assistance was necessary before the applicant was able to make a decision as to his own welfare and ability to continue work.’

25 In expanding upon these grounds in his written outline of argument, counsel for the applicant focused upon an alleged inconsistency between the respondent’s concession (accepted by the Tribunal) that the applicant had been, since the date of his claim (31 January 2003), unable to work for more than eight hours a week and its failure to accept that he was so incapacitated at the time at which his employment ceased. He also submits that the Tribunal failed to identify ‘...any factor independent of the disability suffered by the applicant...’ which prevented his undertaking work.

26 In my view there are serious deficiencies in the Tribunal’s reasons. However I doubt whether the grounds of appeal and the applicant’s submissions accurately identify them. Those grounds and submissions highlight the consequences of the Tribunal’s errors rather than the errors themselves. I will deal briefly with the matters raised by the applicant and then seek to identify the deficiencies to which I refer.

Inconsistent findings

27 As I have said, there is an apparent inconsistency between the findings at [27] in the Tribunal’s reasons and those at [29] – [32]. The findings in all three paragraphs are couched in the language of par 24(1)(c) of the Act, which paragraph addresses incapacity existing at the time of claim and thereafter (the "claim period"). However the Tribunal’s discussion of the applicant’s incapacity (at [29] – [32]) suggests that it is addressing his incapacity at the time of the termination of his employment rather than during the claim period. If I am correct in this view of the Tribunal’s reasons there is no inconsistency, but the Tribunal has misunderstood the effect of par 24(1)(c) and of the second, third and fourth Flentjar questions. I will return to that matter at a later stage.

Medical evidence

28 Three of the four grounds of appeal assert or assume that the Tribunal wrongly proceeded upon the basis that the applicant had an obligation to prove some aspect of his case by leading appropriate medical evidence. I do not accept that the Tribunal proceeded on that basis. In any event, the medical evidence established that the applicant was, during the claim period, unable to work. The respondent conceded as much, and the Tribunal accepted that concession. The applicant’s complaint must therefore concern the Tribunal’s findings as to his condition at the time he ceased work. That matter was not, as such, a matter of which the Tribunal needed to be satisfied. Nonetheless it was potentially relevant to the Flentjar questions.

29 The Tribunal observed that:

· At the time when the applicant stopped work, the only service-related condition which had been diagnosed was haemorrhoids;
· There was no contemporaneous medical evidence to indicate that he was then suffering from the effects of his psychiatric condition;
· There was no medical evidence that such condition was preventing him from continuing to work at that time; and
· Although he was treated for depression in 1985 there was no subsequent history of treatment until about a year after he moved to Queensland following the termination of his employment.

30 Some aspects of the evidence of Drs Katz and Morris suggested a connection between the applicant’s psychiatric condition and the termination of his employment in 2000. However the Tribunal clearly rejected Dr Morris’s evidence on the ground that its factual basis was inconsistent with the evidence of Messrs Howard and Hauser. Dr Katz seems to have assumed that the applicant’s symptoms would have been more severe in 2000 than they were in 2004, without regard to the fact that he had performed his duties satisfactorily between 1997 and 2000. In any event, Dr Katz’s opinion was merely that the applicant’s PTSD was sufficiently severe to have influenced his decision to cease working. Obviously, it was not for Dr Katz to determine why, in fact, the applicant ceased work in 2000. The Tribunal seems to have concluded that the availability of his superannuation benefits was, itself, a reason for his doing so. That view was not based solely upon the alleged absence of medical evidence. The medical evidence as to his condition in 2000 was, at best, equivocal and inconsistent with his apparent capacity to perform his duties to the satisfaction of his superiors. This was a question of fact for the Tribunal. There is no question of law arising out of this aspect of the matter.

The "alone" test

31 The applicant makes two criticisms. Firstly, he submits that the Tribunal ought to have accepted Mr Howard’s evidence which is said to establish that he retired for reason of his incapacity "alone". Mr Howard’s evidence may have supported the applicant’s claim to that effect but it can hardly have been conclusive. It cannot be said that the reasons for the applicant’s retirement were uniquely within Mr Howard’s knowledge or, for that matter, known to him at all. There is no substance in this criticism. Secondly, the applicant submits that the Tribunal failed to identify any other possible factor preventing the applicant from working. This is really a submission that the Tribunal ought to have been satisfied that the applicant’s incapacity was as a result of his war-caused conditions "alone". The submission is factually incorrect. The Tribunal identified the availability of the applicant’s superannuation benefits as having led to his not working. Whether that finding was supportable is another matter.

ERRORS IN THE TRIBUNAL’S APPROACH

32 The questions arising for the Tribunal’s consideration were those arising out of par 24(1)(c) of the Act as identified in Flentjar. It was also necessary to address subs 24(2). I will deal with these two aspects separately.

Paragraph 24(1)(c)

33 The Tribunal concluded, in answer to the first Flentjar question, that the applicant had previously undertaken work of a clerical or administrative nature. The second Flentjar question was whether the applicant was, during the claim period, prevented by his war-caused conditions from continuing to perform clerical or administrative work. The respondent had conceded, and the Tribunal had found, that he satisfied the requirements of par 24(1)(b) of the Act. Although the questions are not identical, I cannot see how, on the present evidence, that finding can be reconciled with the Tribunal’s conclusion that the applicant was not prevented by his conditions from performing clerical or administrative work during the claim period. As I have said, it seems that the Tribunal, in considering the second Flentjar question, looked to the situation in 2000 rather than the situation during the claim period. It is likely that the same error attended the Tribunal’s consideration of the third Flentjar question. Further, to the extent that the Tribunal concluded that the applicant’s access to superannuation benefits was a "factor" preventing him from continuing to work for the purposes of the third question, I doubt the correctness of the decision. Such access may be an incentive to retire, but it cannot prevent work.

34 The fourth Flentjar question requires a consideration, not of the veteran’s incapacity, but of whether that incapacity is causing a loss of remuneration. In practice that often requires a consideration of whether the veteran, had he not suffered his war-caused conditions, would have been earning remuneration during the claim period. If a veteran has previously stopped work, it may be necessary to ascertain whether that would have occurred irrespective of his incapacity. Much of the discussion at [29] – [32] of the Tribunal’s reasons concerned this question, although the Tribunal’s language suggests that it was there considering the third, and not the fourth, Flentjar question. It concluded, at [31], that one of the reasons for the applicant’s retirement in 2000 was the availability of his superannuation benefits. The Tribunal inferred from this that by the date of claim, he had retired, with no intention of resuming work. It was said to follow that ‘it was not his war-caused injuries or diseases, alone, which prevented him from continuing to undertake his previous remunerative work ...’.

35 As I have said, the availability of superannuation benefits may have induced the applicant to retire in 2000, but such availability did not prevent him from performing work in 2004. Further, even if he was not incapacitated for work in 2000, he may well have been so incapacitated by 2004. This aspect of the Tribunal’s reasoning seems to reflect a further misunderstanding of s 24 and of the decision in Flentjar.

36 The Tribunal should have considered whether the applicant would have retired in 2000 or between then and 2004 had he not been suffering the war-caused conditions from which he now suffers, to the extent to which they were then manifest. The applicant claimed that prior to 1997, and until 2000, he coped with his work, but with difficulty. He asserted that Mr Howard had "protected" him by finding work which was within his limited capacity. It is likely that the Tribunal rejected that assertion. However it did not expressly accept or reject the applicant’s claim that he had difficulty in performing his duties and the suggestion that his efforts to do so caused him to experience difficulties in other aspects of his life. The applicant claimed that as a result of these matters, he decided to retire at age 55 when his superannuation benefits became available. If that claim is accepted at face value, two alternative inferences are open. The first is that the opportunity to retire at age 55, with his superannuation benefits was, itself, attractive to him and therefore contributed to his decision to retire at that time, without regard to his war-caused conditions. Such a view might lead to the conclusion that even in the absence of the applicant’s incapacity, he would not have been working for remuneration in 2004. The alternative inference is that early retirement was of no interest to him as such but offered him an opportunity to escape the difficulties which he was experiencing in his work. In that case, the Tribunal might well have inferred that in the absence of his incapacity, the applicant would have been working for remuneration in 2004. It seems, however, that the Tribunal did not directly address the fourth Flentjar question.

Subsection 24(2)

37 Favourable answers to the four Flentjar questions would not necessarily result in a favourable outcome for the applicant. It was also necessary to address subpar 24(2)(a)(i). Clearly, the applicant ceased to engage in remunerative work in 2000. If he ceased work for some reason other than his incapacity, he would be ineligible for the special rate. In the present case, the operation of par 24(1)(c) and subpar 24(2)(a)(i) may overlap, both focusing upon the role of the applicant’s access to superannuation benefits in his decision to retire. However there will be cases in which they do not do so. The latter sub-section seems to be directed at the situation in which a veteran has ceased to work in a particular area for reasons unconnected with his war-caused conditions and thereafter asserts that, but for such conditions, he would have again sought and obtained employment in the same area. Such a person might satisfy par 24(1)(c) but not satisfy subpar 24(2)(a). The Tribunal did not deal with this aspect. As I have observed, it considered the operation of par 24(2)(b), finding that it did not apply so as to benefit the applicant. There is no appeal from that decision.

CONCLUSIONS

38 I conclude that the Tribunal has misunderstood both par 24(1)(c) and the Flentjar decision. It follows that its decision must be set aside.

ORDERS

39 I order that:

·	the decision of the Administrative Appeals Tribunal made on 25 May 2004 be set aside;
·	the matter be remitted to the Tribunal for further consideration in accordance with law; and
·	the respondent pay the applicant’s costs of this appeal.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated: 9 November 2004

Counsel for the Applicant:	Mr RJ Clutterbuck
Solicitor for the Applicant:	Streeting Haney Lawyers
Counsel for the Respondent:	Mr RM Derrington
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 September 2004
Date of Judgment:	11 November 2004