Dunkley v Repatriation Commission [2002] FMCA 66 (26 April 2002)

Last Updated: 4 March 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DUNKLEY v REPATRIATION COMMISSION

[2002] FMCA 66

VETERANS ENTITLEMENTS - Loss of earning allowance - applicant self employed - whether `engaged' in an occupation - appeal dismissed.

Re Hoyne and Repatriation Commission (1997) 47 ALD 708

Veterans Entitlements Act 1986 s 23, 24(4), 108, 108(2), 108(8)

Administrative Appeals Tribunal Act 1975 s.44

Applicant:

COLIN C DUNKLEY

Respondent:

REPATRIATION COMMISSION

File No:

MZ774 of 2001

Delivered on:

26 April 2002

Delivered at:

Melbourne

Hearing Date:

29 January 2002

Judgment of:

McInnis FM

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr P Hanks QC

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

(1) The application is dismissed.

(2) There be no order as to costs.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MZ 774 of 2001

COLIN C DUNKLEY

Applicant

And

REPATRIATION COMMISSION

Respondent

REASONS FOR JUDGMENT

1. COLIN DUNKLEY (the Applicant) has appealed to the court in relation to a decision made by the Administrative Appeals Tribunal on 3 August 2001 (the AAT decision).

2. In its decision the Administrative Appeals Tribunal (the AAT) had set aside a decision by the REPATRIATION COMMISION (the Respondent) which had decided that the Applicant had been entitled to loss of earnings allowance under s 108 of the Veterans Entitlements Act 1986 (the VE Act) for the period 3 August 1999 to 30 August 1999 and substituted for that decision a decision that the Applicant is not entitled to loss of earnings allowance beyond 5 July 1999.

3. The Applicant's claim for the grant of loss of earnings allowance arises from s 108 of the VE Act which provides as follows:-

"(1) The Commission may grant an allowance, called loss of earnings allowance, to a person in accordance with the provisions of this section.

(2) Loss of earnings allowance may be granted to a veteran, in respect of any loss of salary or wages, or loss of earnings on his or her own account from an occupation in which he or she is engaged, suffered by reason of:

(a) the veteran's undergoing treatment for incapacity from a war-caused injury or a war-caused disease;

(b) the veteran's having to wait for the supply of, or repairs to, an artificial replacement or surgical aid or appliance necessitated by such an incapacity;

(c) an investigation of a claim or application made by the veteran under Part II or of a pension granted to the veteran under that Part; or

(d) the veteran's undergoing treatment associated with such an investigation."

4. It is noted that s 108(7) of the VE Act provides that the allowance is not payable to a person in respect of any period for which that person is receiving a pension at the rate specified in s 24(4), that is the special rate of pension. Section 108(8) of the VE Act provides a formula for the calculation of the amount of the allowance by reference to the rate specified in s 24(4) and to the amount that the veteran would have earned from the occupation referred to in s 108(2).

5. The factual findings of the tribunal were that the Applicant had at all relevant times been self employed as a contractor engaged in earth moving, clearing and levelling of grape blocks in rural properties. The Applicant was born on 15 July 1946. He had been engaged in service in Vietnam and has a number of accepted war caused disabilities with the most significant being post traumatic stress disorder (PTSD).

6. The tribunal found that the Applicant had ceased self-employment on

5 July 1999 and it was said that he did so due to the effects of Zoloft medication which had been prescribed by the Applicant's treating doctor.

7. The Applicant had claimed a disability pension for PTSD and other illnesses on 16 June 1999. On 21 August 1999 the Respondent accepted some of the Applicant's claimed conditions and had rejected others. A pension was assessed at 90% of the general rate with effect from 16 March 1999 which it is noted pre-dated the date of the primary claim by approximately 3 months. An appeal was lodged by the Applicant to the Veteran's Review Board (VRB) against that decision on 31 August 1999 and after considering the matter a review by the Respondent was completed on 17 March 2000 and certain conditions previously rejected were then accepted by the Respondent with the result that an increase in the pension to the intermediate rate was allowed with effect from 16 March 1999 on the basis that the Applicant was then capable of working but for periods not exceeding 20 hours per week. The Applicant's appeal lodged with the VRB was then withdrawn. The allowance for the intermediate rate of pension was granted pursuant to s 23 of the VE Act.

8. In simple terms the decision reviewed by the AAT dated 4 December 2000 had set aside an earlier decision dated 29 September 2000 in respect of loss of earnings allowance. The decision under review by the AAT had allowed a loss of earnings entitlement for the period

3 August 1999 to 30 August 1999. The AAT, as indicated earlier, set aside that decision under review and found the Applicant was not entitled to loss of earnings beyond 5 July 1999.

9. The core issue before the AAT and this court is whether or not having ceased to be engaged in employment due to the consequences of medication for an accepted condition the Applicant is then entitled to the benefit of s 108(2) of the VE Act.

10. In his submissions the Applicant referred to his notice of appeal wherein he claims that there are three questions of law relating to the construction of s 108 of the VE Act. The questions of law are as follows:-

(a) The interpretation in English of the words "is engaged" is the main factor in the decision formulated;

(b) The interpretation of the words "suffered by reason of";

(c) The interpretation of para (a) of the words "undergoing treatment".

11. A number of grounds are set out in the notice of appeal. Essentially the Applicant seeks to argue that the tribunal was in error in its interpretation of the words of s 108 and in particular had incorrectly applied inappropriate tense when considering what is meant by "is engaged". He particularly referred to an extract from paragraph 18 of the tribunal's reasons where it stated,

"Consequently Mr Dunkley did not have an entitlement to loss of earnings allowance from 5 July 1999 because from that date he was not `engaged' ".

12. The Applicant submitted that the sentence if written in the correct tense would read,

"Mr Dunkley is engaged in his occupation as a self employed contractor, on the 5^th of July Mr Dunkley found that he could not work due to the treatment he is receiving for a condition accepted by the Respondent as war caused. Consequently Mr Dunkley would have been working for the period involved if he stopped the treatment but due to the success of the treatment he was reluctant to do this, on the 16^th of October 2000 he was granted TPI".

13. As I understood the submissions by the Applicant he regards himself as always having been engaged as a self-employed contractor though prohibited from doing so as a consequence of the treatment he was receiving for the accepted condition.

14. It is appropriate however to refer to the tribunal's finding also in paragraph 18 where it stated,

"It follows that any entitlement only exists whilst the veteran ´is engaged'. Therefore if a veteran has ceased employment (in the case of self employed persons), or has had employment terminated (in the case of wage and salary earners) the veteran cannot be said to be ´engaged'".

15. In his written submissions the Applicant made the point that if one has to be engaged in the occupation then it is difficult to see how any entitlement could be paid when seeking to apply s 108(2)(a) or (b) of the VE Act which provide the loss of earning allowance to be granted where a veteran is undergoing treatment for incapacity for a war caused injury or war caused disease or the veteran has to wait for the supply or repairs to an artificial replacement or other surgical aid or appliance necessitated by such an incapacity.

16. It was submitted on behalf of the Respondent after referring to the relevant passages from the AAT's reasons for its decision that the criticism made by the Applicant of the tribunal's reasons where it considered what is meant by the words "is engaged" is misconceived. It was submitted that s 108(2) fixes as a condition of entitlement to the allowance a loss of earnings from an occupation in which the person is engaged. It was submitted that the natural meaning of the provision is that unless the person is engaged in an occupation there is no entitlement to the allowance.

17. The Respondent challenged the notice of appeal and submissions of the Applicant where it was suggested that a person not working because of treatment or disease or waiting for replacement of a surgical aid cannot qualify for the allowance. The Respondent submitted that to adopt that approach would be to ignore the context in which the term "is engaged" is used. A person it was submitted who has a current occupation but who is "temporarily unable to pursue that occupation because of one of the reasons set out in paragraphs (a), (b), (c) and (d) of s 108(2) would still have "an occupation in which he or she is engaged" for the purpose of the provision.

18. It was submitted that the AAT's construction of s 108(2) was correct. The natural meaning according to the Respondent of the language used in that section is that the allowance is payable to a person who is, for one of the listed reasons, temporarily suffering from loss of earnings from his or her current occupation, that is the occupation in which "he or she is engaged". It was submitted there was no error of law and that the application should be dismissed with costs.

19. Reference was made by the Respondent to other parts of the notice of appeal and it was submitted that to the extent that those grounds of appeal relate to matters of fact that the court should dismiss the application as an error of fact is not properly a matter which should be the subject of an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). I agree with that criticism particularly in relation to paragraphs 9 and 14 of the Grounds of Appeal set out in the notice of appeal. It should further be noted that the criticism made by the Applicant of alleged parts of the tribunal's findings in fact where a reference to submissions made on behalf of the advocate for the Respondent and did not form part of the AAT's reasoning. I accept that submission.

20. It is noted that during the course of its decision the AAT referred to the case of Re Hoyne and Repatriation Commission (1997) 47 ALD 708. In that case the tribunal determined that loss of earnings allowance was payable to a veteran having heard evidence from the veteran's employer that that employment was terminated on a certain date, that the allowance was not payable from that date. In the present case the AAT agreed with the analysis in Hoyne's case and applied the same principles to the present case by finding that the Applicant was no longer engaged and further said that that is "consistent with the intention and apparent policy of Parliament in the drafting of this section to compensate veterans by payment of an allowance for loss of earnings only during the period of time that they remain ´engaged'".

21. I was referred to paragraph 20 of the tribunal's reasons by the Respondent where the AAT said,

"20. There are other provisions within the Act which permit a payment of pension or benefit in the case of incapacity by war-caused injury. Mr Dunkley may or may not have rights elsewhere. His rights however to recover an allowance for loss of earnings under this section ended at 5 July 1999 when he ceased to be ´engaged'."

22. Whilst in one sense there did not seem to be a significant issue as to the interpretation of the section considered by the tribunal in re Hoyne it is clear that the tribunal in that case and in the present case in my view correctly interpreted s 108 of the VE Act. In my view there is no error of law in the present case in the interpretation adopted by the tribunal. The tribunal was able to find as a matter of fact based upon the evidence that the Applicant had ceased work on 5 July 1999. The fact that he ceased work due to effects of the medication he was then taking for the accepted condition is not relevant in the sense that it was clear that he had ceased and indeed decided to cease his occupation from that date on and it was open to the tribunal to accept that the employment had therefore ceased from that date. That would also be consistent with the events which occurred shortly after where the Applicant commenced receiving on 30 August 1999 a service pension. In my view the purpose of s 108 of the VE Act is clear. I accept the submission for the Respondent that the interpretation favoured by the Applicant would not disentitle a person undergoing treatment for an accepted war caused injury or waiting for the supply of or repairs to an artificial replacement or other appliance from receiving any loss of earnings allowance in relation to a loss of salary or wages or loss of earnings by reason of those matters.

23. The distinguishing feature in the present case is that the evidence before the tribunal which it was entitled to accept was that the Applicant had in fact ceased work and was not intending to return to work and had last worked as indicated on 5 July 1999.

24. Accordingly applying the ordinary meaning of the language of the section it is clear that the Applicant could not be regarded as a person who "is engaged" in an occupation. If he is not so engaged then having ceased that occupation it is inappropriate to grant an allowance by way of compensation for "loss of earnings" due to one of the factors set out in s 108(2) of the VE Act.

25. The confusion in the circumstances arising out of the interpretation of the section is perhaps understandable. I note in passing that the AAT said at paragraph 15 the following:

"15. Section 108 of the Act has been infrequently considered by this Tribunal and there are few reported decisions. I expressed my curiosity to the parties at the hearing by the language of the section particularly the presence of the words "is engaged". The word "is" suggests that the veteran remained "engaged" at the time that the loss of earnings allowance is "granted"."

26. One can have sympathy therefore with the Applicant in the present case who may well share not just the curiosity but a concern about the language and seek to advance the interpretation which he has sought to advance before this court. However for the reasons stated it is my view that the tribunal correctly interpreted the section and in the circumstances there is no error of law demonstrated on the material before me.

27. As the matter raised in this appeal involves an issue of statutory interpretation where there is very little authority on point and where at the very least the language of the section may give rise to some misunderstanding by lay persons I do not believe it is appropriate to make an order for costs.

28. Accordingly the order of the court will be as follows:

(1) The application is dismissed.

(2) There be no order as to costs.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 26 April 2002