Counsel v Repatriation Commission

LEGISLATIVE FRAMEWORK 29 The Act provides for four different rates of pension, one of which is the special rate. The eligibility requirements for the special rate are found in s 24 of the Act, with specific criteria for veterans over the age of 65 (applicable to the appellant) identified in s 24(2A). The criteria relevant to this appeal are: "(d) the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work ("last paid work") that the veteran was last undertaking before he or she made the claim or application; and (e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, 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."

the Tribunal's decision 30 The Tribunal found that the appellant satisfied all of the criteria for entitlement to the special rate except the requirements of s 24(2A)(e). In particular, the Tribunal rejected the respondent's submission that the appellant's farming activity was a hobby, rather than a business, from which the appellant derived no financial benefit and which, as a result, could not be regarded as remunerative work. The Tribunal found that the farming activity conducted by the appellant in partnership with his wife was both "remunerative work" and the appellant's last paid work. The respondent did not challenge those conclusions before the learned primary judge. 31 However, the Tribunal did not accept that the appellant had suffered a "loss of … earnings on his … own account" which he would not be suffering were he free from his incapacity. The Tribunal did not accept the appellant's contention that the product of remunerative work was gross income. It held that: "[T]he correct appreciation of earnings is net earnings, namely gross earnings less deduction of expenses. On this issue the Tribunal follows Wilcox J in Hill v Repatriation Commission [2000] FCA 929. As a consequence of this finding (sic) the Tribunal further concludes, that from the evidence adduced before the Tribunal, the Applicant, in all but one year, namely 1989, has always derived a loss or negative net earnings from his carrying on of the farming business. In the absence of any other material that would convince the Tribunal that the Applicant had received net earnings in another form from the farming enterprise, the Tribunal, on the balance of probabilities, finds that the Applicant has not suffered a loss of earnings on his own account by virtue of his war caused disabilities causing him to cease his farming activities. Indeed, on the evidence available to the Tribunal, cessation of his farming activity may have had a financial benefit for the Applicant in that continuing losses requiring capital injections ceased." 32 As the Tribunal considered that the appellant had failed to satisfy the criterion contained in s 24(2A)(e) of the Act, it held that the appellant did not qualify for a pension at the special rate.

THE DECISION AT FIRST INSTANCE 33 His Honour observed that the meaning of the expression "earnings on his or her own account" had to be ascertained having regard to the statutory context in which the expression appeared. I would respectfully agree with that observation. His Honour took as a logical starting point the phrase "remunerative work". He referred to some observations of Wilcox J in Hill. In that case the Tribunal was dealing with a dog breeding activity undertaken by Mr Hill. The Tribunal had found as a fact that Mr Hill's dog breeding plan did not properly commence operation and was merely a hobby which produced some very limited income. Wilcox J held that the Tribunal had not erred in law. 34 The primary judge in this case said this (at paragraph [13] of his reasons) about the observations of Wilcox J in Hill: "The observations of Wilcox J might be viewed as suggesting that work is "remunerative" only when a profit is derived from work undertaken as part of a business. However, I doubt that his Honour intended to say that work in a business could never be "remunerative" if the business made no profit. Rather, it was the characterisation of the work as a "hobby" by the Tribunal in its findings that led Wilcox J to conclude there had been no error of law on the Tribunal's part in deciding that the veteran had not been engaged in "remunerative work" (in so far as the dog breeding was concerned)." 35 The primary judge derived assistance from a decision of the Appeal Division of the Supreme Court of Victoria in Accident Compensation Commission v Alger [1993] 1 VR 379. In that case the Full Court held that the Accident Compensation Commission had not erred in looking at the net profits of a business when assessing the respondent's "actual earnings" for the purposes of making a calculation of the amount of an entitlement to accident compensation and the amount receivable if that entitlement were redeemed. 36 His Honour acknowledged that, on one view, the Tribunal had indicated that, as a matter of law, it was bound to assess loss of earnings by reference only to the net earnings of the partnership. His Honour said that if the Tribunal had adopted that approach, it would reveal legal error because s 24(2A)(e) did not require earnings to be assessed on that basis only. His Honour concluded his reasoning on this issue as follows: "However these remarks of the Tribunal followed an analysis of the business in which the Tribunal pointed to the capital injections made by the applicant and his wife, uncertainty as to the benefits enjoyed by the applicant while operating the partnership business and the applicant's expectation of receiving payment from the business whether by income reinvestment and capital enhancement or by way of drawings, profit, tax benefits or living expenses. The better view is, in my opinion, that the Tribunal adopted the approach it did having regard to the limited material before it concerning the business. The approach it took was an approach available having regard to the generality of the language used in s 24(2A)(e). The Tribunal's adoption of this approach does not reveal legal error." 37 The second issue which his Honour considered was whether the Tribunal had erred by failing to consider the hypothetical position which would have obtained in relation to the appellant's earnings if he had not been incapacitated due to his war-caused disabilities. The appellant had submitted that the Tribunal had erred by not making an assessment of what would have happened (in terms of earnings by the appellant) had the farming business not been pared back in 1988. 38 His Honour rejected this submission on the basis that no contention along those lines had been put to the Tribunal and, accordingly, it had not erred in law by not addressing that question.

the appeal 39 The appeal raised two grounds. The first was, in essence, that the Tribunal erred in law by holding that "earnings" in s 24(2A)(e) meant an amount arrived at after deducting expenses, and that the primary judge should have so found. 40 The second matter raised in the appeal was that his Honour had erred by holding that there was no error in law on the Tribunal's part in not addressing the hypothetical position which would have obtained if the appellant had been free of his incapacity. That is, would there have been a loss of earnings in such a situation?

my reasoning 41 I have read (in draft form) the respective reasons of Gray and Goldberg JJ and record my general agreement with them and my particular agreement with their observations about how partnership revenue should be characterised for the purposes of the Act. 42 In the paragraph from the Tribunal's reasons which I have set out at [7] above, the Tribunal makes it very clear that it was following what it considered had been decided by Wilcox J in Hill when it stated "… the correct appreciation of earnings is net earnings, namely gross earnings less deduction of expenses". 43 In my opinion, in doing so, the Tribunal erred in law. 44 In Hill the veteran had bred two or three litters of pups and had sold about ten dogs (for between $100 and $150 each) over a period of about four or five years. The Tribunal found as a fact that this was merely a hobby and was not "remunerative work" within the meaning of that expression in s 24(1)(c) of the Act. [That sub-paragraph relevantly combines into one paragraph the comparable criteria set out in s 24(2A)(c) and (d).] Wilcox J held (see [26]) that this finding was clearly open to the Tribunal on the evidence. But his Honour went further and expressed some views about the relevance of making a net profit to the question whether a particular activity may be regarded as "remunerative work". In doing so, he referred to a hypothetical example of a situation in which a loss-making activity might still be "remunerative work" if, but for war-caused disability, it might have been successful "… in the sense of providing 'earnings on his or her own account' - that is net earnings after deduction of expenses …". In my view, Wilcox J's observation to that effect was obiter dictum. 45 I would regard the proper construction of the term "earnings" in s 24(2A)(e) as a question of law: Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 79. Accordingly, the matter is, in my view, within the Court's jurisdiction conferred by s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). 46 The Act contains no definition of "earnings". The Macquarie Dictionary at 670 defines earnings as "money earned; wages; profits". 47 In Abram Coal Company Limited v Southern [1903] AC 306 the question was what were the "earnings", for the purposes of the Workmen's Compensation Act, 1897 (UK), of a collier whose employer deducted each week from his wages, by agreement, sums for cleaning lamps, supply of oil, sharpening picks and checking weights. Lord Macnaghten at 307-308 said this: "The sole question which your Lordships have to consider is what is the meaning of the word "earnings" in the Workmen's Compensation Act. There is no definition of that word in the Act, nor is there anything said there about deductions. I think the word "earnings" is used, not in the sense in which economical writers use it, but in a popular sense. The object of the Act was to determine the amount to be paid by way of compensation in the case of an accident resulting in disability or death. In the event of death there is a maximum limit fixed and a minimum limit as well. In the event of disability there is only a maximum limit. Subject to the prescribed limits or limit, as the case may be, the Act takes the workman's "earnings" as the standard of compensation. It is a rough standard of course. But it is a very obvious one, and there can be no difficulty if the word "earnings" means the full sum for which the man is engaged to work. The difficulties would be endless if the Court had to find out in each case the net remuneration received by the workman, or the balance left for him to spend on himself and his family." 48 In Glazebrook v Accident Compensation Commission [1988] VR 454, the appellant was a delivery truck driver who was required to provide, at his own expense, a delivery truck suitable for his work. He was also required to meet all the outgoings on the truck including fuel and maintenance. 49 The Accident Compensation Tribunal stated a special case to the Supreme Court of Victoria, sitting as a Full Court, pursuant to s 67 of the Accident Compensation Act 1985 (Vic). In essence, the Tribunal asked the Court whether the phrase "pre-injury average weekly earnings" meant the gross rate of pay paid to him by the employer or a net rate of pay after appropriate deductions had been made in respect of the truck. 50 In a joint judgment, the Full Court followed Abram Coal Company Limited and held (see p 457) that there was nothing in the relevant section of the Workers' Compensation Act 1958 (Vic) or elsewhere in that Act to show that "earnings" was meant to bear a restricted meaning, or that the legislature intended that in calculating compensation a Tribunal was required to dissect a worker's "earnings" in order to compute the proportion which he earned from personal exertion or as "the reward for his labour". 51 Glazebrook was distinguished by the Appeal Division of the Supreme Court of Victoria in Alger. 52 I would, in turn, distinguish Alger from the present case on the basis that the relevant definition (of "current weekly earnings") in the Accident Compensation Act 1985 (Vic) required a calculation of "the worker's actual earnings during the week". 53 I would acknowledge that, depending upon the context, the word "earnings" is ambiguous in that it could mean gross earnings or it could mean a figure which results after deducting expenses from gross earnings. 54 There is nothing in Part II (the relevant Part) of the Act which requires any dissection of a veteran's earnings, whether for the purpose of quantifying any rate of entitlement, or any other purpose for that matter. In other words, the amount of the earnings lost through incapacity is irrelevant to the amount payable as the special rate. That was not the case in Alger, where actual earnings had to be calculated for the purposes not only of entitlement to weekly payments but also the amount payable on redemption. 55 In Glazebrook the Full Court observed that were there "ambiguity in the construction of earnings" in the Accident Compensation Act, such ambiguity would be resolved in favour of a worker for whose benefit the Act existed. 56 In my view the same applies here. I would not give "earnings" a restricted meaning so as to require a veteran to show a loss after calculating appropriate deductions. That alone would raise many complicated issues about what would be appropriate deductions for this purpose - a factor to which the House of Lords referred in Abram Coal Company Limited. I do not see why it should be assumed that the appropriate deductions should be those allowable under the Income Tax Assessment Act 1936 (Cth). Under that Act the economic activities of a taxpayer are regarded in terms of receipts which may be income (either under ordinary concepts or as statutorily-defined income) from which there may be deductions (not necessarily those which would be regarded as expenses according to generally-accepted accounting principles) which result in assessable income. 57 The Act is clearly beneficial legislation and, in my view, the word "earnings" should be construed favourably to the veteran: Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328. Accordingly, it should be construed as meaning gross earnings, even before deducting the cost of goods sold. 58 The Tribunal found that the appellant and his wife were in partnership in conducting the farm business and that the requirements of s 24(2A)(d) were satisfied i.e. that the appellant had been undertaking remunerative work. 59 In those circumstances the appellant became entitled (jointly with his wife) to every dollar which was paid for livestock or other produce of the farm. These receipts were the product of the labours of the appellant and his wife. They earned those monies. In my view, the appellant's interest in those monies from time to time constituted "earnings" within the meaning of s 24(2A)(e) of the Act. 60 The primary judge expressed the view that the Tribunal adopted the net profits approach having regard to the limited material before it concerning the business. That may be so, but the Tribunal had before it the gross receipts figures (i.e. the earnings) of the partnership, and hence the appellant's earnings from such remunerative employment, over a period of many years. That was, in my view, all it needed. 61 In my opinion, the facts found by the Tribunal showed that the appellant satisfied the requirements set out in s 24(2A)(e) of the Act, properly construed. The Tribunal erred in law by holding to the contrary. With respect, I consider that the primary judge, in turn, erred in law in not so holding. 62 In those circumstances, it is not necessary for me to consider the second point raised in the appeal.

conclusion 63 I would allow the appeal and set aside the decision at first instance. I agree with Gray J's proposal that we direct the Tribunal to set aside the delegate's decision and substitute a decision that the appellant is entitled to receive pension at the special rate from 31 July 1998. There is no fact finding left for the Tribunal to do and no discretion to be exercised. The respondent should pay the appellant's costs at first instance and of the appeal. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

GOLDBERG J: 64 I have had the advantage of reading in draft form the reasons for judgment of Gray J and Carr J. Their Honours have set out the facts and legislative framework giving rise to the appeal. I agree, with respect, with their Honours' reasons for concluding that the facts found by the Tribunal showed that the appellant satisfied the requirements set out in s 24(2A)(e) of the Veterans' Entitlement Act 1986 (Cth) ("the Act), that the Tribunal erred in law by holding to the contrary and that the learned primary judge, in turn, erred in law in not so holding. I would, however, wish to amplify my reasons for concluding that the primary judge fell into error and that "earnings" in s 24(2A)(e) does not mean an amount arrived at after deducting expenses. 65 The primary judge accepted that if the Tribunal was indicating that, as a matter of law, it was bound to determine whether there was a loss of earnings by the appellant for the purposes of s 24(2A)(e) by reference only to the net earnings of a partnership of which the appellant was a member, then the Tribunal was falling into legal error because s 24(2A)(e) did not require that earnings be assessed on that basis only. 66 However, the primary judge did not consider that the Tribunal was indicating that s 24(2A)(e) required this conclusion as a matter of law, but that rather the Tribunal was saying that the assessment of loss of earnings of the appellant by reference to the net earnings of the partnership was the approach it should take having regard to the evidence which had been placed before it. His Honour noted that the observations of the Tribunal followed an analysis of the partnership business. 67 Although the Tribunal did undertake an analysis of the business carried on by the appellant and his wife, I am satisfied that the context in which it reached its conclusion as to the manner in which it should determine whether the appellant suffered a loss of earnings on his own account was a context in which it misdirected itself as to the applicable law. 68 The Tribunal's conclusion in this respect was reached in the following terms at [35]: "In finalising this issue, the Tribunal concludes that the correct appreciation of earnings is net earnings, namely gross earnings less deduction of expenses. On this issue the Tribunal follows Wilcox J in Hill v Repatriation Commission (supra). As a consequence of this finding the Tribunal further concludes, that from the evidence adduced before the Tribunal, the Applicant, in all but one year, namely 1989, has always derived a loss or negative net earnings from his carrying on of the farming business. In the absence of any other material that would convince the Tribunal that the Applicant had received net earnings in another form from the farming enterprise, the Tribunal, on the balance of probabilities, finds that the Applicant has not suffered a loss of earnings on his own account by virtue of his war caused disabilities causing him to cease his farming activities. Indeed, on the evidence available to the Tribunal, cessation of his farming activity may have had a financial benefit for the Applicant in that continuing losses requiring capital injections ceased." 69 In this passage the Tribunal was saying that the observations of Wilcox J in Hill v Repatriation Commission [2000] FCA 929 at [26]‑[27] required the conclusion that, for the purposes of s 24(2A)(e), determining the earnings of the veteran on his own account, where the veteran was a member of a partnership, involved a determination of the net earnings of the partnership, that is to say the gross earnings of the partnership less the deduction of expenses. 70 In Hill v Repatriation Commission (supra) Wilcox J was not called upon to determine the proper construction of the expression "suffering a loss of … earnings on his or her own account". Rather, he was faced with the issue whether the veteran's dog‑breeding activities were "remunerative work" for the purposes of s 24(1)(c) of the Act and the issue whether the remunerative work which the veteran had been undertaking, which he was now prevented from undertaking by reason of incapacity, was the veteran's most recent work or employment. Wilcox J found that the Tribunal had failed to consider the veteran's work as a public servant which had ceased some time earlier. 71 Wilcox J considered whether the veteran had been engaged in remunerative work for the purposes of s 24(1)(c) and held that it was open to the Tribunal to find that the veteran's dog‑breeding activities were a hobby. Wilcox J continued at [27]‑[28]: "There may be cases where an activity in which a veteran engaged failed to return a net profit to the veteran, but may nonetheless be regarded as 'remunerative work' for the purposes of s24(1)(c). One example may be a case where the veteran attempted to establish himself or herself in a particular activity, being a continuation of remunerative work previously undertaken by the veteran, but was denied success by his or her war‑caused disability. If the decision maker was satisfied that the attempt would have been successful, in the sense of providing 'earnings on his or her own account' - that is, net earnings after deduction of expenses - but for the war‑caused disability, I see no difficulty about concluding that the veteran has been prevented, by the war‑caused disability, 'from continuing to undertake remunerative work that the veteran was undertaking' and, by reason thereof, has suffered a loss of earnings on his or her own account. However, that is not the present case." The primary judge quoted this passage in his reasons and added the emphasis referred to. 72 These observations were obiter as the Tribunal's finding that the dog‑breeding activities were a hobby, and therefore not remunerative work, was not disturbed by Wilcox J. His Honour set aside the Tribunal's decision on the ground that the Tribunal had failed to consider the veteran's earlier employment as a public servant. 73 The primary judge considered it unlikely that the emphasised observations of Wilcox J were intended to be an exhaustive analysis of the meaning of "earnings on his or her own account". I agree with this view of Wilcox J's reasoning as that issue did not fall for consideration by him. 74 The primary judge concluded that the approach taken by the Tribunal was an approach available to it having regard to the generality of the language used in s 24(2A)(e) and that the Tribunal's adoption of this approach did not reveal legal error. I consider that this conclusion discloses an error of law as the expression "suffering a loss … of earnings on his or her own account" found in both s 24(1)(c) and s 24(2A)(e) of the Act does not require a calculation of net earnings, that is to say gross earnings less expenses, particularly in a context where the veteran is a member of a partnership which derives the earnings. The ordinary meaning which has been adopted for earnings in the context of accident and industrial compensation provisions is not easily adapted to the situation where a veteran derives earnings through the structure of a partnership of which the veteran is a member. For example, in Abram Coal Company v Southern [1903] AC 306 at 308, Lord Macnaghten considered "earnings", in the context of the Workmen's Compensation Act 1897, meant "the full sum for which the man is engaged to work". In Glazebrook v Accident Compensation Commission [1988] VR 454, the Full Court of the Supreme Court of Victoria regarded this definition as apt for the Accident Compensation Act 1985 (Vic). 75 The concept of a veteran losing "earnings on his or her own account" does not fit easily within the framework of a partnership. The income or receipts or cashflow of a partnership are not, strictly speaking, earnings on the account of a particular partner albeit that one of the partners has undertaken the activity which has brought about that income or cashflow. Partnership property and assets are not, because they are partnership assets, owned by any particular partner. Section 20(1) of the Partnership Act 1892 (NSW) provides: "All property, and rights and interests in property, originally brought into the partnership stock or acquired, whether by purchase or otherwise, on account of the firm, or for the purposes and in the course of the partnership business, are called in this Act partnership property, and must be held and applied by the partners exclusively for the purposes of the partnership, and in accordance with the partnership agreement." There was no evidence of the nature of the partnership or the terms of any partnership agreement between the appellant and his wife. Nevertheless, it is appropriate to infer that the partnership was a partnership at will governed by common law provisions. 76 In Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (1974) 131 CLR 321 the High Court said at 327: "The nature of a partner's interest in the partnership property has often been explained. The partner's share in the partnership is not a title to specific property but a right to his proportion of the surplus after the realization of assets and the payment of debts and liabilities. However, it has always been accepted that a partner has an interest in every asset of the partnership and this interest has been universally described as a 'beneficial interest', notwithstanding its peculiar character. The assets of a partnership, individually and collectively, are described as partnership property (Partnership Act 1892, as amended (N.S.W.), s 20). This description acknowledges that they belong to the partnership, that is, to the members of the partnership." In Federal Commissioner of Taxation v Everett (1979‑1980) 143 CLR 440 at 449, the majority of the High Court considered that the right to receive profits from a partnership is not separate from a partner's interest in the partnership as such. 77 Section 24(2A)(e) contemplates that because a veteran may be prevented from continuing to undertake remunerative work he or she may thereby suffer one of two types of loss. First, a loss of salary or wages in circumstances where the veteran is employed under a contract of service. Secondly, a loss of earnings or money received as a result of or by reason of the veteran's own personal exertion in circumstances where the veteran is not receiving the money as salary or wages. The common thread running through these two situations is that an income, revenue or cashflow stream available to the veteran is lost. 78 In the partnership‑type situation in which the appellant was involved the appellant was receiving, as was his wife, from time to time, earnings, money or cashflow as a result of activities which the appellant and his wife were undertaking as part of their partnership business. For example, money would be received by them as a result of the sale of livestock. At the time these funds would be received, the appellant and his wife would have access to those funds. In time, of course, at the end of a relevant accounting period, there would need to be a reconciliation of the accounts of the partnership. Money or funds to which the appellant and his wife had obtained access would have to be accounted for, and if there was shown to be a deficit in net earnings, that is to say, the partnership had been carried on at a loss, then it would be necessary for the appellant's account with the partnership to be adjusted. 79 The fact that at the end of the relevant accounting period the partnership might be showing a loss should not obscure the fact that during that year the appellant had access to the cashflow or earnings of the partnership which had been derived from his personal exertion. When the appellant was ultimately prevented by incapacity from continuing to undertake the work which he carried out in the course of the partnership, he thereby suffered a loss of earnings on his own account in the sense that he was no longer able to have access to, or take advantage of, the cashflow or earnings of the partnership business. It is not to the point that at the end of a relevant accounting period the partnership was shown in its accounts to have carried on business at a loss. 80 When s 24(2A)(e) is viewed in this way it can be said that the reference to "earnings", in a partnership context, is a reference to the money brought into the partnership, that is its cashflow, through the personal exertion of the veteran, that is, "on his or her own account". 81 I do not consider that this analysis, as the respondent submitted, confuses two concepts, namely a loss of income by the partnership business in the sense that it is trading at a loss, with a loss of earnings on the part of the appellant. Rather it concentrates on the requirement that the entitlement to a special rate pension depends on establishing not only that war‑caused injury or disease has prevented the veteran from undertaking the remunerative work he or she has been undertaking, but that it has also brought about a cessation of the generation of an income stream which hitherto existed. Put another way, the appellant's efforts of personal exertion no longer produce money. 82 The two expressions in s 24(2A)(e), "salary or wages" and "earnings on his or her own account", are intended to cover the two general ways in which a person can generate funds by personal labour or exertion, namely working under a contract of employment, or carrying on a profession, business or trade. The two expressions do not require the establishing of any particular level of salary or earnings. As Pincus J said in Gauntlett v Repatriation Commission (1991) 32 FCR 73 at 76: "As I read s 24, to qualify under it a veteran does not have to show that he has lost a 'living', but merely that he has lost salary, wages or earnings. Applying the provision in this fashion can considerably overcompensate a veteran who falls within the section's scope, as compared with other veterans who do not so fall: the extra pension paid may considerably exceed the actual earnings lost. But that seems necessarily to follow from the language used." 83 In my opinion the appeal should be allowed and the decision of the primary judge should be set aside. I agree with Gray J's proposal that the matter should be remitted to the Tribunal for reconsideration according to law with a direction that the Tribunal set aside the decision of the delegate of the Commission and substitute a decision that the appellant is entitled to receive a pension at the special rate from 31 July 1998. The respondent should pay the appellant's costs of the appeal and the hearing at first instance.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate: Dated: 20 June 2002 Counsel for the Appellant: Mr M B Smith

Solicitor for the Appellant: Legal Aid Commission of NSW

Solicitor for the Respondent: Australian Government Solicitor