Agius v Repatriation Commission

TRIBUNAL'S DECISION 4 Section 24 of the Act relevantly provides: 24 Special rate of pension (1) This section applies to a veteran if: (aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and (aab) the veteran had not yet turned 65 when the claim or application was made; and (a) either: (i) the degree of incapacity of the veteran from war‑caused injury or war‑caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or (ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and (b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war‑caused injury or war‑caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and (c) the veteran is, by reason of incapacity from that war‑caused injury or war‑caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and (d) section 25 does not apply to the veteran. (2) For the purpose of paragraph (1)(c): (a) a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if: (i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war‑caused injury or war‑caused disease, or both; or (ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and (b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking. … 5 In this case, the Tribunal held that, for the purposes of s 24(2)(b) of the Act, the decision of the Full Court in Leane v Repatriation Commission [2004] FCAFC 83; 81 ALD 625 at [7] and [28] stood for the proposition that the applicant's requisite efforts to obtain remunerative work must occur during the "assessment period" (which commences when a veteran makes a relevant application). It dismissed the applicant's appeal on the basis of that proposition of law.

CONSIDERATION 6 At the hearing on 14 August 2017, after hearing helpful submissions from counsel for the applicant and the respondent, it became apparent that, once it was accepted, as the respondent's counsel quite properly accepted, that the Tribunal's statement on the critical point (being the principle in Leane v Repatriation Commission [2004] FCAFC 83; 81 ALD 625) was wrong, only one result was possible. 7 Section 44(4) of the AAT Act empowers the Court to "hear and determine the appeal and make such order as it thinks appropriate by reason of its decision": see Harradine v Secretary, Department of Social Security (1989) 25 FCR 35 at 36 per Wilcox J, 42-43 per French J and 49 per von Doussa J. In some cases, the appropriate order will be to remit the matter to the Tribunal to be heard and determined according to law. In other cases, this being one, the appropriate order will be for the Court to make a decision in substitution for that under review. Relevantly, as Murphy J held in Civil Aviation Safety Authority v Caper Pty Ltd (No 2) [2012] FCA 1305; 132 ALD 475, " [i]t is established that where only one result is consistent with the court's decision is possible, the court may make a decision in substitution for that under review, thereby relieving both the tribunal and the parties of the burden of a further hearing…" (at [7]). 8 It is sufficient for present purposes to record, as the respondent properly conceded, that the decision in Leane v Repatriation Commission [2004] FCAFC 83; 81 ALD 625 does not stand for the proposition that the applicant's requisite efforts to obtain remunerative work must occur during the assessment period and that the law on the question is well settled to the contrary. 9 As Buchanan J explained in Smith v Repatriation Commission (2014) 220 FCR 452 at [69]: The AAT also concluded that it should not take into account at all the efforts made by the appellant to obtain work which predated the assessment period. That appears to me, as I have already said, to have been a clear error of law. It follows from the scheme of the Act set out earlier that it must be possible to assess the merits of a claim at the date that an application is lodged, on which date the assessment period commences. That is because there is a requirement to assess whether any entitlement arises at any time during the assessment period. That means that it must be open to a veteran to rely upon genuine efforts to find work before the application is made. That would not be possible if the question is to be tested only after the date of the application. (See too at [185] per Foster J.) 10 The respondent accepted that it had not contended before the Tribunal that the applicant had not sought and obtained remunerative work before the commencement of the assessment period. The respondent accepted, in all the circumstances of the case, including the Tribunal's other findings of fact, that it was apparent that only one result was therefore now possible - namely, that the applicant was entitled to payment of his Department of Veterans' Affairs disability pension at Special Rate. 11 It was for these reasons that the Court proposed, and the parties consented to, the orders set out above. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.