Jensen v Repatriation Commission

The facts 6 The following is a summary of the facts found by the Tribunal in its reasons for decision. The applicant has war-caused disabilities of alcohol dependence or alcohol abuse, bilateral sensorineural hearing loss, gastro-oesophageal reflux disease, solar keratoses and asthma. He is entitled to a disability pension at 100% of the general rate. He was born on 7 June 1949. He served in the Australian Army and rendered operational service from 9 July 1970 to 8 July 1971. 7 Both before and after his military service, the applicant was employed as a bank clerk with the Commonwealth Bank. He was then promoted through various positions up to manager level in branches of the bank. In 1994, he was offered and accepted a redundancy package. 8 The applicant's evidence to the Tribunal was that, throughout his service with the bank after his war service, he drank excessively, both at lunch time and in the evening, but his drinking did not create any major problems with the bank. He had some exchanges with his regional manager about his drinking, but the applicant argued that he obtained business for the bank at the hotel. 9 In 1994, the applicant's wife was operating a post office sub-agency. With the proceeds of his redundancy package, the applicant purchased an adjoining shop and established a card and gift shop business, which was combined with his wife's existing business. His evidence was that this did not succeed as he continued drinking heavily, slept through the mornings, and was away from the shop for much of the time. The Tribunal found that he had little or no active involvement in the business after 1995, although he took money from the cash register as he needed it. The business was subsequently sold. There was some conflict in the evidence about the date of the sale. 10 The applicant made no apparent effort to engage in work until March 2004, when he was appointed as an office administrator by a construction company. This lasted for some two months. The applicant identified two problems that led to this period of employment being so short. The first was his inability to process the company's records on computer, because he lacked the necessary skills. The second was that his drinking interfered with his work. 11 In early 2005, the applicant entered into an arrangement with a financial services provider, whom he met at a hotel. The arrangement was for the applicant to receive a commission on referrals of clients. The applicant said that he did not get any leads, because he was not able to provide instant approval for loans (as he had with the bank), and no income was generated. Later in 2005, he entered into a similar arrangement with a firm that arranged loans for equipment. The arrangement was terminated because of the same problem. Still later in 2005, the applicant was employed by another company as a bookkeeper. Again, he was unable to cope because of his computer illiteracy and his drinking. All of these short-term employment opportunities came about through contacts he met at a hotel. There was no evidence of any organised or specific effort to obtain employment. 12 In May 2007, the applicant's son, who operates a financial services business, asked the applicant to work in the business. His son regarded the applicant as an outgoing character, good at networking, who knew a lot of potential clients and had 27 years' experience in the banking industry. He wished to keep the applicant occupied during the day and limit his opportunities to drink. In a written statement dated 15 October 2008, the son said that the applicant worked three hours per day five days a week. In oral evidence at the Tribunal's hearing, the son said that the applicant averaged about eight hours per week, which was less than he had worked previously. He said that he asked the applicant to be in at 10.00 am, but could not rely on him complying, with the applicant frequently turning up after lunch. The applicant had done a course as a prerequisite to becoming accredited as a financial adviser, but had not proceeded with accreditation. He had done a short course in insurance products and was an authorised representative of a company offering loan protection insurance. The son said that the applicant's concentration levels were not good. 13 In a written statement dated 14 May 2008, the applicant said that, in working for his son, there was little pressure and he could work approximately two hours per day about three days per week. In his oral evidence to the Tribunal he said that he worked three hours per day five days per week. He thought that he had worked those hours regularly for at least a year. He said he could cope with that and was better not drinking all day. He would like to feel that he could work full-time but was unsure whether he had the skills for a steady full-time job, with alcohol still a problem. 14 There was medical evidence from Dr Castle (an occupational physician) and from Mr Burge (a clinical psychologist). In Dr Castle's initial report, dated 8 February 2008, he expressed the view that the applicant was unable to work for more than eight hours per week, but this was not solely due to his accepted disabilities. In part, it was due to the adoption by the applicant of a comfortable lifestyle that involved his drinking. Subsequently, having learned of the applicant's employment with his son, Dr Castle expressed the opinion that the applicant was able to work 15 hours a week for his son, but would not be able to work any more than that and would not be able to work in open employment, because most workplaces would not tolerate alcohol abuse. At that stage, Dr Castle considered that the applicant's inability to work was the consequence of his alcohol dependence or abuse and the cognitive decline this had caused. In a report dated 9 February 2008, Mr Burge expressed the opinion that, due to his alcohol abuse, the applicant was unlikely to be able to maintain employment. He referred to increasing difficulties with memory and concentration. He pointed out that a workplace accommodating drunken employees was highly unlikely. In his oral evidence, Mr Burge accepted that the applicant had not mentioned his work for his son, but said there was likely to be a higher tolerance of the alcohol problems by a son than by any independent employer.

The Tribunal's reasons for decision 15 At [13] of his reasons for decision, the senior member constituting the Tribunal set out subss (1) and (2) of s 24 of the VE Act. At [14], he said that s 23 "is in virtually identical terms but applies where the veteran is incapable of undertaking work for more than 50 per cent of the time ordinarily worked by persons engaged in work of that time or more than 20 hours per week." At [15], the senior member found that the applicant had been working at least 15 hours per week on a regular basis and continued to do so. He therefore failed to satisfy the criterion in s 24(1)(b), but met the requirement of s 23(1)(b), because he was incapable of undertaking remunerative work for more than 20 hours per week. At [16]-[17], the senior member said: Having arrived at that conclusion, it is necessary to consider s 23(1)(c) the wording of which is virtually identical to s 24(1)(4). Sub-section (1) of s 23 is virtually identical to sub-section (2) of s 24. It is clear that prior to 1984 he had been a full time employee of the Commonwealth Bank for some 23 years after his operational service. I am satisfied that he ceased to be engaged in that remunerative work that he was undertaking for reasons other than his incapacity from his war-caused injury or disease. The evidence of Mr Jensen was clear. He applied for and was offered a redundancy package together with many other employees in 1994. At the time he was in disagreement with some of the bank's policies. While he may have been drinking excessively, this had not created any major problems with the bank. He said that, if not for the redundancy package, he believed that he could have continued with the bank, likely until retirement. At the time it is clear that the redundancy package suited Mr Jensen, providing him with a substantial lump sum with which the property adjoining his wife's existing business could be purchased to expand that business. From the evidence of Mr Jensen it would seem more likely than not that Dr Castle was correct in his view that Mr Jensen then adopted what, for him, was a comfortable lifestyle. It was clear that there was both conflict with his wife in relation to the business and a failure by Mr Jensen to be able to carry out a role in the business which he had envisaged in 1994. This failure, in my view, was unlikely to have been the result of his alcohol problem alone. Subsequent to his ceasing direct involvement in the business, it could not be said that he was genuinely seeking to engage in remunerative work. Each of his abortive attempts resulted from meeting someone at the hotel and being offered either employment or commission for referring clients. Mr Jensen was clear that the commission opportunities failed because of his inability to provide instant loan approval. The two short term employment opportunities failed as much a result of his inability to perform the work required with no computer skills as his drinking problem. 16 At [18], the senior member concluded that the applicant did not meet the requirements of either s 23 or s 24 of the VE Act to qualify for the intermediate rate or the special rate of pension.

The grounds of appeal 17 In addition to his notice of appeal, the applicant filed what was described as a supplementary notice of appeal. No issue was taken about his reliance on grounds stated in the supplementary notice of appeal, even though he had not sought or been granted leave to file an amended notice of appeal, and the supplementary notice of appeal did not comply with the rules of court relating to amended documents. 18 The grounds of appeal may be summarised as follows. In the ground designated as 4.1, it was alleged that the Tribunal failed to take into account relevant considerations. Those considerations were described as: relevant remunerative work that the applicant was undertaking within the meaning of s 23(1)(c) of the VE Act; whether by reason of his war-caused conditions, the applicant was prevented from continuing to undertake remunerative work; whether the war-caused conditions alone prevented the applicant from continuing to undertake that work; and whether the applicant therefore suffered a loss of wages or salary. It was said that all of these considerations should have been taken into account in relation to the assessment period. In ground 4.2, it was said that, by failing to take into account those relevant considerations, the Tribunal was precluded from considering properly the requirements of s 23(1)(b), s 23(2)(b), s 23(1)(c) and s 23(3)(a)(iii) of the VE Act. Ground 4.3 alleged that the Tribunal erred in extrapolating the criteria in s 24 and applying them to s 23 of the VE Act. This was explained as: a failure to take into account the applicant's capacity for part-time or intermittent employment and whether there was a reduction in that capacity attributable to the war service, with a consequent loss of salary or wages; a failure to examine the impact of the applicant's continuing employment in satisfaction of the requirements of s 23; and a failure to analyse the significance of the employment for the purposes of s 23(1)(c) and s 23(1)(a)(iii). Ground 4.4 alleged a failure to consider the "ameliorating provisions" of s 23(3)(b) "in circumstances where the applicant continued to seek to engage in remunerative work and was employed and prevented from continuing to undertake the full scope of the remunerative work because of the substantial impact of war related disabilities." Ground 4.5 alleged a failure to give adequate reasons for the Tribunal's decision, by failing to set out material findings on questions of fact in relation to the work the applicant was engaged in during the assessment period, or the evidence on which those findings were based.

Relevant considerations and the provisions of the VE Act 19 The task of the Tribunal was to apply the criteria in ss 23(1) and 24(1) of the VE Act to the facts of the applicant's case as it found them. A failure to do so would amount to an error of law and would entitle the applicant to succeed in this appeal. The criteria laid down in each of s 23(1) and s 24(1) are cumulative, however. The Tribunal's conclusion that the applicant did not satisfy any one of the criteria in s 24(1) led necessarily to the result that the applicant was not entitled to pension at the special rate. Similarly, the conclusion of the Tribunal that the applicant did not satisfy any one of the criteria in s 23(1) led necessarily to the result that the applicant was not entitled to pension at the intermediate rate. 20 The Tribunal did conclude in [15] of its reasons for decision that the applicant did not satisfy the criterion in s 24(1)(b). The Tribunal's finding that the applicant was capable of undertaking remunerative work for 15 hours or more per week led to the conclusion that he was not incapable of undertaking remunerative work for periods aggregating more than eight hours per week. It followed that the applicant could not qualify for pension at the special rate. Similarly, the Tribunal concluded in [16] and [17] of its reasons for decision that the applicant did not satisfy the criterion in s 23(1)(c). He could not satisfy the "alone" test required by that paragraph, in light of the Tribunal's findings that he had ceased his remunerative work with the Commonwealth Bank for reasons other than his incapacity from his war-caused conditions. Nor was the applicant prevented by his war-caused conditions alone from conducting the business he established in conjunction with his wife's business. His lifestyle choice, conflict with his wife in relation to the business and his failure to carry out the envisaged role in that business all played a part. The applicant's other short-term jobs were brought to an end because of factors that included the absence of any authority to provide instant loan approval and the applicant's lack of computer skills. Because the applicant failed the "alone" test in s 23(1)(c), it followed that he was not entitled to pension at the intermediate rate. 21 In those circumstances, it was unnecessary for the Tribunal to proceed to examine in detail whether the applicant was able to satisfy any of the other criteria in s 23(1) or s 24(1). A determination favourable to the applicant in relation to any one of those criteria could not have brought about the result that he would have been entitled to pension at the intermediate rate or the special rate, because he could not satisfy all criteria. Much of the applicant's case in this appeal is based on the proposition that the Tribunal should have applied all of the criteria in s 23(1) and all of the criteria in s 24(1) to the applicant's case. Counsel for the applicant asserted that, by failing to undertake this exercise, the Tribunal was failing to take into account relevant considerations and failing to apply the provisions of the Act. These arguments must fail. As I have said, application of the remaining criteria could not have resulted in a decision in the applicant's favour. 22 Counsel for the applicant submitted that, when applying s 23(1)(c) of the VE Act, the Tribunal had failed to take into account the period of employment of the applicant by his son. The Tribunal certainly did not address the question whether the applicant was prevented from continuing to undertake that work because of his war-caused conditions alone. It did not address this question for the very good reason that it found that the applicant was continuing to undertake remunerative work for his son. That work could not have been "remunerative work that the veteran was undertaking" for the purposes of s 23(1)(c) if the applicant continued to undertake it. Nor could the Tribunal have determined that the applicant was prevented from continuing to undertake that work, whether by his war-caused conditions or by any other factor, if he was not prevented from undertaking it at all, but was continuing to do so. The applicant's argument in this respect does not have any foundation in the terms of the provision of the VE Act that it invokes. 23 Counsel for the applicant also submitted that the Tribunal failed to apply s 23(3)(a)(iii) of the VE Act. He identified this provision as the crucial difference between ss 23 and 24, because s 24(2)(a) of the VE Act contains no equivalent. The argument is mystifying. Section 23(3) contains provisions that instruct the decision-maker how the "alone" test in s 23(1)(c) is to be applied. Section 23(1)(a) contains three specific situations in which a veteran who satisfies s 23(1)(b) is nonetheless taken not to satisfy s 23(1)(c). The third of those, in s 23(3)(a)(iii), requires the decision-maker to find that a veteran does not satisfy the "alone" test in s 23(1)(c) if there are reasons other than that veteran's war-caused condition that have caused the veteran to engage in remunerative work on a part-time basis or intermittently. It is hard to see how the application of the criterion in s 23(3)(a)(iii) to the process of determining whether the applicant met the "alone" test in s 23(1)(c) could have assisted the applicant. The Tribunal found that it was not the applicant's war-caused conditions alone that prevented him from continuing to undertake any remunerative work that he had been undertaking. A finding that it was those war-caused conditions, and no other reason, that caused the applicant to engage in remunerative work on a part-time basis would have been inconsistent with all of the Tribunal's other findings. It would have been perverse in the circumstances. 24 There was also a suggestion that the Tribunal had failed to apply s 23(2)(b) of the VE Act. Again, this is a strange argument. The Tribunal found that the applicant satisfied the criterion in s 23(1)(b). That is to say, the Tribunal found that the applicant's incapacity from war-caused conditions, alone, prevented him from undertaking work otherwise than on a part-time basis. Section 23(2) sets out the circumstances in which a veteran is not to be taken as having fulfilled the criterion in s 23(1)(b). In making its determination that the applicant did fulfil that criterion, the Tribunal applied s 23(2)(b). Indeed, the Tribunal might be criticised for having failed to consider s 23(2)(a). It seems to have assumed that the time ordinarily worked by persons engaged in work of the kind the applicant was doing on a full-time basis would be 40 hours or less, and therefore simply have applied the 20 hour maximum. The likelihood is that the Tribunal did this because of the absence of evidence that would enable it to make any finding about the time ordinarily worked by persons engaged in work of that kind. In any event, having been the beneficiary of a Tribunal finding favourable to him under s 23(1)(b), the applicant cannot be heard to complain that the criteria for making that finding were either not applied, or were misapplied. The Tribunal did take into account the applicant's reduced capacity to work by reason of his war-caused conditions alone, and therefore found that the applicant satisfied the criterion in s 23(1)(b), but went on to find that the applicant failed to satisfy the criterion in s 23(1)(c). This finding was fatal to the applicant's case.

Comparing s 23 and s 24 25 It is true that the Tribunal's comparison of s 23 with s 24 was of a broad nature. The Tribunal did not either set out the relevant provisions of s 23 in full, or catalogue all of the differences between those provisions and the provisions of s 24. Nevertheless, the Tribunal did refer to the relevant differences. In terms of the provisions it applied to the applicant's case, the Tribunal's comparison was unexceptionable. The limited comparison produced no error of law that could be of any benefit to the applicant.

The "ameliorating" provisions 26 Counsel for the applicant argued that the Tribunal ought to have applied what he called the "ameliorating" provisions of s 23(3)(b) of the VE Act. That paragraph, in its terms, applies in the case of a person "who has not been engaged in remunerative work". I take the view that the paragraph has no application to a person who has been engaged in remunerative work after completing war service, but only to someone who has not been able to work at all. Compare the reasoning in Giesen v Repatriation Commission [2005] FCA 846 (2005) 87 ALD 347 at [19]-[26] and Baljas v Repatriation Commission [2009] FCA 171 at [20], in relation to the equivalent provision in s 24(2)(b) of the VE Act. Because the Repatriation Commission has been prepared to accept that the provisions are "ameliorating" in the case of someone who has been engaged in remunerative work, I have been prepared to take into account the provisions. 27 In the present case, it is extremely difficult to describe the applicant as a person who has not been engaged in remunerative work. As the Tribunal found, the applicant continued to be engaged in such work at the time the Tribunal dealt with the case. In any event, the Tribunal's finding, at [17] of its reasons for judgment, that it could not be said that the applicant was genuinely seeking to engage in remunerative work after leaving the Commonwealth Bank is sufficient to preclude the application of s 23(3)(b).

The adequacy of the Tribunal's reasons 28 Counsel for the applicant contended that the Tribunal had not complied with its duty under s 43(2) and (2B) of the AAT Act, because its reasons did not include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. It is difficult to separate this submission from the submissions alleging the failure of the Tribunal to address provisions of the VE Act. In part, counsel for the applicant was suggesting that the Tribunal ought to have made more findings than it did. To the extent to which the Tribunal did make findings, its reasons are expressed perfectly adequately to comply with its statutory duty. The relevant findings are set out, as is the evidence or other material on which they are based. The Tribunal's reasoning is disclosed sufficiently to enable the reader to understand how it reached its conclusion.

Conclusion 29 The applicant has failed in respect of all grounds on which he sought to overturn the Tribunal's decision. The appeal must be dismissed. No reason was advanced, and none appears, why the usual principle, that costs follow the event, should not be applied. The application of that principle leads to the conclusion that the applicant should be ordered to pay the Commission's costs of the appeal. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray.