The application of the 'alone' test
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:
'As has been said, the question posed by s 24(1)(c) is one of hypothetical fact. The Tribunal must attempt an assessment of what the respondent probably would have done if he had none of his service disabilities.'
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.