Leane v Repatriation Commission

STATUTORY FRAMEWORK 7 Section 19(1) of the Entitlements Act provides that, where a claim for a pension or an application for an increased pension is submitted to the Commission, the Commission must consider all matters that are, in the Commission's opinion, relevant to the claim or application and determine the claim or application as provided by s 19(3). Section 19(3) provides that the Commission must determine a claim or application:

• by determining whether the claimant is entitled to be granted a pension in respect of incapacity of a veteran from war caused injury or war caused disease, or both; and · if the Commission determines that the claimant is so entitled, by proceeding as set out in ss 19(5A), (5B), (5C) and (5D).

Under s 19(5C), the Commission must assess the rate or rates at which the pension would have been payable from time to time during the assessment period and the rate at which the pension is payable. Section 19(5D) then provides that, after making such an assessment, the Commission must determine that a pension is payable at the rate assessed. Under s 19(9), 'assessment period' in relation to a claim or application relating to a pension means the period starting on the day when the claim or application is made and ending when the claim or application is determined. 8 Section 24 deals with the special rate of pension and relevantly provides as follows: ' (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. (4) … the rate at which pension is payable to a veteran to whom this section applies is $571.70 per fortnight.' 9 The Commission accepts that the Veteran meets all the requirements for a pension at the special rate save for the requirement in s 24(1)(c). In particular, the Commission accepts that the Veteran is totally and permanently incapacitated for the purpose of s 24(1)(b) of the Entitlements Act.

THE TRIBUNAL'S DECISION 10 The sole issue before the Tribunal was the correct level of assessment for the Veteran's accepted conditions and, in particular, whether he is entitled to a pension at the special rate payable under s 24. The Tribunal proceeded on the basis that the Veteran's degree of incapacity from war caused injury had been determined to be 100 per cent by the Board. The Veteran suffers from the following accepted war caused conditions:

• post traumatic stress disorder;
• bilateral sensorineural hearing loss with tinnitus;
• osteoarthrosis of the right wrist; and
• osteoarthrosis of the right thumb. Although the Veteran also suffers from osteoarthrosis of both hips, that condition was not accepted as war caused. 11 The Tribunal posed the question of whether the Veteran is incapable of undertaking remunerative work for more than eight hours a week, and if so, whether that incapacity was attributable solely to the Veteran's war caused disabilities. That is the question raised by s 24(1)(b). The Tribunal found that the Veteran is incapable of undertaking any remunerative work for periods aggregating more than eight hours per week, and that, accordingly, he is totally and permanently incapacitated within the meaning of s 24(1)(b). 12 The Tribunal then considered the application of s 24(1)(c) of the Entitlements Act. The Tribunal observed that s 24(1)(c) focuses on whether there are reasons other than war related injuries that caused a claimant to cease working or prevent him from working. It considered the following four questions (see Flentjar v Repatriation Commission (1997) 26 AAR 93 at 96): '1. What was the relevant 'remunerative work that the veteran was undertaking' within the meaning of section 24(1)(c) of the Act? 2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work? 3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work? 4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran, by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?' 13 In answer to question 1, the Tribunal found the type of work the Veteran previously undertook was general administrative/clerical and inspection activities. In answer to question 2, the Tribunal found that the Veteran is, by reason of his war caused PTSD, prevented from continuing to undertake such activities. Accordingly, it was necessary to consider question 3. 14 The Veteran claimed that: (a) the 'only factor or factors' preventing him from continuing to undertake 'remunerative work' was his incapacity from PTSD; and (b) in any event, he complied with s 24(1)(c) because he met the requirements of s 24(2)(b) of the Entitlements Act. The Veteran claimed that he had engaged, and had sought to engage, in remunerative work and that his incapacity from PTSD was the 'substantial cause' of his inability to obtain remunerative work. 15 In relation to whether PTSD was the 'only' factor preventing the Veteran from continuing to undertake remunerative work, the Tribunal (in par [85] of its reasons) referred to a number of other factors which, it found, were 'causally related' to the Veteran's decision to cease full time clerical work in 1996 prior to the assessment period. These included 'his significant hip problems, probably his spinal disability and possibly if Dr Strums' evidence is accepted major depression with alcoholism'. The Tribunal held that 'by virtue of the deeming provision in section 24(2)(a)(i), this finding is sufficient to defeat [the Veteran's] claim for a special rate pension.' 16 The Tribunal also proceeded to consider the continuing effect (if any) of these other causes. The Tribunal discussed whether PTSD was the only factor preventing the Veteran from continuing to undertake remunerative work. The Tribunal concluded that it was not able to make a finding on the balance of probabilities in the Veteran's favour on that issue. 17 The Tribunal therefore answered question 3 'No' and found it unnecessary to consider question 4. That being so, the Tribunal concluded that the Veteran is not entitled to a pension at the special rate. 18 In relation to s 24(2)(b) of the Entitlements Act the Tribunal said at paras [88]-[92]: 'As put by Justice Drummond in Magill [v Repatriation Commission [2002] FCA 244]: "8. Section 24(2)(b) was correctly described by counsel for the Commission as 'an ameliorative provision'. If the veteran satisfies the criterion contained in s 24(1)(c) - that the war-related incapacity 'alone' has prevented the veteran from continuing to work - it is unnecessary to consider s 24(2)(b). If, however, a veteran has not been engaged in remunerative work at the relevant date, he or she will still be able to satisfy the 'alone' criterion in s 24(1)(c) even though the war-related incapacity is not the sole cause of the veteran's inability to obtain work, provided the veteran nevertheless meets the requirements of s 24(2)(b)." Further section 24(2)(b) provides that where a veteran younger than 65 "[W]ho has not been engaged in remunerative work satisfies the Commission - · that he or she has been genuinely seeking to engage in remunerative work, and · 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."(Magill at [7]) See also Repatriation Commission v Sheehy (1996) 39 ALD 286 at 291-2; 133 ALR 654 at 659-660 and Re Sutton and Repatriation Commission [2001] AATA 119. Mr De Marchi for Mr Leane sought to distinguish Flentjar [v Repatriation Commission (1997) 48 ALD 1] on the basis that section 24(2)(b) applies to his client. He referred to Mr Leane's work with the AEC. The evidence on this is very limited · in 1997 he worked for the AEC on a specific task only, ie checking the electoral roll · this amounted to less than 20 hours per week spread over three months · he worked for a second period with the AEC for 8 days spread over two weeks after the 2001 election · Mr Leane felt he could do this regularly. This latter work in 2001 was a one off for a recount of the poll. Although Mr Leane said he could do this regularly, there was no evidence that he sought further work of this type then or later with the AEC. There is also no evidence that he has sought other remunerative work. In Re Homery and Repatriation Commission (1998) 28 AAR 193 at 207; 52 ALD 317 at 331- 332 the AAT said: "The AAT is satisfied that Mr Homery would genuinely be liking to work, that is that he would genuinely like 'to engage in remunerative work. The wording of the provision however requires that the AAT must be satisfied that Mr Homery 'has been genuinely seeking to engage in remunerative work'. The AAT agrees with Deputy President McMahon in Re Bonner and Repatriation Commission (1989) 17 ALD 680 as reported at 681 that 'the use of the word 'genuinely' in the paragraph indicated the necessity for some objective signs of active pursuit of remunerative work'." In Mr Leane's case there are no objective signs of active pursuit of remunerative work. He can not therefore rely on the ameliorating provisions of section 24(2)(b).'

THE DECISION OF THE PRIMARY JUDGE 19 The Veteran instituted an 'appeal' in this Court pursuant to s 44 of the AAT Act from the decision of the Tribunal. This Court's powers of review are limited to questions of law. This Court does not have jurisdiction to intervene if all that is shown is that the Tribunal has reached an erroneous factual conclusion: see Repatriation Commission v Hendy [2002] FCAFC 424 at [33]. 20 The primary judge identified two issues that were raised in the Veteran's 'appeal'. The first was whether the Tribunal made an error of law in holding that the other causes of the Veteran ceasing clerical work in 1996 were sufficient to defeat the Veteran's claim 'by virtue of the deeming provision in s 24(2)(a)(i)'. As to this, his Honour accepted that the reference by the Tribunal to the effect of s 24(2)(a)(i) involved an error of law. Nevertheless, his Honour concluded that that error was 'immaterial'. His Honour said at paras [24]-[27]: 'Though the AAT´s critical findings in pars 85 to 87 of its reasons are brief, oblique, marred by one clear error, and ungraced with convincing explanation, I am satisfied that in the end it did properly address the question s 24(1)(c) asked of it and that any error that it may have made was of a purely factual character. In this, and consistent with the injunction in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 as to the proper role of a reviewing court, I agree with the reading of those paragraphs proposed by the respondent to which I earlier referred. This is that, considered in context, the AAT in those paragraphs concluded (a) that multiple factors, not all involving war-caused conditions, caused Mr Leane to cease work with ACTEW [par 85]; and (b) that war-caused conditions were not the only factors preventing him from continuing to engage in work [par 86]. In saying this I do not overlook the erroneous (see Hendy's case), but in light of the additional finding in par 86, immaterial reliance on s 24(2)(a)(i) of the Act. Equally I consider the reference in par 87 to Mr Leane´s ceasing to engage in remunerative work 'for reasons other than his war-caused conditions', should not be read as involving a finding that those reasons were the only reasons both for his ceasing work and for his being prevented from continuing to engage in that work. The quotation from Magill's case in par 85 referring to reasons other than PTSD being "also causally related to" his ceasing to engage in work supports this conclusion. I would, in consequence, reject the ground that relies upon a failure properly to apply s 24(1)(c). If the submission of the applicant on s 24(1)(c) was meant additionally to suggest that the proper test to be applied in construing the word "alone" in that paragraph was whether the war-caused conditions alone were sufficient to prevent Mr Leane from engaging in work irrespective of other causes, I must reject the submission. It is inconsistent with authority binding on me: see Hendy's case [[2002] FCAFC 424] at [37]; and see the discussion in Forbes' case [(2000) 101 FCR 50] at [32]ff.' 21 The second issue identified by the primary judge was whether the analysis by the Tribunal of the applicability of the ameliorative provision in s 24(1)(c) of the Entitlement Act revealed some error of law by the Tribunal. As to that issue the primary judge held at paras [28]-[29]: 'Turning to the s 24(2)(b) ground, one of the preconditions to be satisfied before that provision can be invoked is that the veteran "satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work". The word "seeking" in my view is used here in its dictionary senses of "attempting to" or "trying to": see Shorter Oxford English Dictionary, "seek" (3rd ed). The AAT was not satisfied that there were any "objective signs of active pursuit of remunerative work" on the evidence before it. That conclusion is not reviewable in this court there being no error of law that infected it. The applicant's submission, in my view, is based on the presupposition that he could invoke s 24(2)(b). It does not address the need to make out this first condition of the paragraph.'

THIS APPEAL 22 The Veteran has appealed to this Court from the decision of the primary judge pursuant to s 24 of the Federal Court of Australia Act 1976 (Cth). A number of grounds are contained in the Notice of Appeal and in the written submissions filed on behalf of the Veteran. However, counsel for the Veteran properly conceded that the Veteran could not succeed on any of his grounds unless he could show that the Tribunal had made an error of law in its interpretation and/or its application of s 24(2)(b) of the Entitlements Act. It is to that issue that we turn. 23 In order to come within the terms of s 24(2)(b) of the Entitlements Act, the Veteran was required to satisfy the Tribunal that he has been 'genuinely seeking to engage in remunerative work [and] that he 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 inability to obtain remunerative work'. The Tribunal was not satisfied that the Veteran was seeking to engage in remunerative work. On that basis the Tribunal did not need to consider the other aspects of s 24(2)(b) of the Entitlements Act. The Veteran criticised the Tribunal for not proceeding to consider those other aspects, but clearly enough the Tribunal was not required to do so unless its conclusion in relation to whether the Veteran was 'genuinely seeking to engage in remunerative work' involved some error of law. 24 The Tribunal's reasons for its conclusion in relation to s 24(2)(b) of the Entitlements Act are set out above (par [18]). It is clear that the Tribunal accepted that the Veteran had been employed by the AEC in 1997 for a limited period and for a limited purpose and again in 2001. It is also clear that the Tribunal found 'there was no evidence' the Veteran had sought further work with the AEC in 2001 or later. It is also clear that the Tribunal found that there was no evidence that he had sought other remunerative work. 25 These facts were insufficient to satisfy the Tribunal that the Veteran had been 'genuinely seeking to engage in remunerative work'. However, in reaching that conclusion the Tribunal relied upon its previous decisions as 'indicating the necessity for some objective signs of active pursuit of remunerative work'. The Tribunal concluded that, in the absence of such signs the Veteran 'cannot rely on the ameliorating provisions of 24(2)(b)' This would seem to involve the identification by the Tribunal of a legal test that the veteran could not establish that he had been genuinely seeking to engage in remunerative work unless he or she could satisfy the Tribunal that there were 'objective signs of active pursuit of remunerative work'. 26 The primary judge may have applied the same test. As his Honour put it (and has already been extracted in [21] above): 'The Tribunal was not satisfied that there were any "objective signs of active pursuit of remunerative work" on the evidence before it. That conclusion is not reviewable in this court there being no error of law that infected it.' 27 The policy of s 24(2)(b) of the Act was explained in the speech on the second reading of the Bill for the insertion of that provision (see per Sackville J in Repatriation Commission v Sheehy (1995) 133 ALR 654 at 660-661). In that speech the relevant Minister made the point that 'special provision is made by the bill to cover veterans who are under 65 years of age, are unemployed, and are genuinely seeking to engage in remunerative work.' 28 The primary judge interpreted the word 'seeking' to mean 'attempting to' or 'trying to'. This may be accepted. Such a meaning involves something more than a mere wish or hope. It requires that a claimant 'do' something. On the other hand the word 'genuinely' is used in the sense of 'sincerely' or 'honestly'. It involves an assessment of the subjective intention or purpose of a claimant. What is required is that the claimant honestly be trying to engage in remunerative work. 29 It may be accepted that, in the ordinary course, a person in the position of the Veteran would have difficulty in establishing that he or she was honestly trying to engage in remunerative work unless there were some 'objective signs of active pursuit of remunerative work'. However, it would be wrong to turn the practical issue of how a person might establish his or her case into some legal pre-condition. Assume, for example, that a claimant satisfied the Tribunal that:

• he or she honestly wished to engage in remunerative work;
• he or she had made a reasonable assessment of his or her disabilities;
• he or she had reasonably concluded that he or she could only be employed in a particular type of work;
• he or she was checking employment advertisements on the look out for such employment; but
• he or she had not yet identified any such employment prospects. Counsel for the Commission properly conceded that, on these facts, the Tribunal might be satisfied that the claimant was 'genuinely seeking to engage in remunerative work'. This example highlights that the adjectives 'objective' and 'actual' in the redefinition adopted by the Tribunal are at least unhelpful and may be misleading. The proper course was for the Tribunal to ask itself whether, on the evidence before it, it was satisfied that the Veteran was 'genuinely seeking to engage in remunerative work' or not, rather then to ask itself the different question that it did ask. 30 We note, for completeness, that it was unnecessary for the Veteran to satisfy the Tribunal that he had been genuinely seeking remunerative employment at all times during the assessment period. Under s 19(5C) of the Entitlements Act the Tribunal was required to assess 'the rate or rates' at which the pension would have been payable 'from time to time' during the assessment period and, 'subject to subsection (6) the rate at which the pension is payable'. Section 19(6) provides: ' (6) Where the Commission has, pursuant to subsection (5C), assessed that the pension was payable at some time during the assessment period at the rate provided by section 23 or 24 then, subject to section 24A, the rate at which the pension is payable shall not be lower than the rate provided by whichever of those sections applied, or applied most recently, during the assessment period.' 31 The effect of these provisions in this case is that the Tribunal was required to determine whether a special pension was payable at any time during the assessment period, being the period starting, in this case, November, 1996, and ending when the claim for application is ultimately determined: s 19(9) of the Entitlements Act. If a special pension was payable at any time during this period then the Tribunal was required to determine that the special pension was payable from that time, notwithstanding that at some subsequent time the Veteran might not have been able to establish that he would be entitled to a special pension. 32 As the Commission properly conceded, if the Veteran had satisfied the Tribunal that he had, at any time during the assessment period, complied with the requirements of s 24(2)(b) (including the requirement that he had been genuinely been seeking to engage in remunerative employment) then, at least from that time, the Veteran would have been entitled to a pension at the special rate, notwithstanding that at some later time he may not have established that he was genuinely seeking to engage in remunerative employment. 33 Having regard to the above, the questions that need to be considered are whether the use of the test adopted by the Tribunal and (it would appear) by the primary judge involved an error of law and, if it did, whether that error did affect or could have affected the decision ultimately reached by the Tribunal. As to whether there was any error of law, this depends upon whether the test adopted and applied by the Tribunal was merely unhelpful or whether it was positively misleading. In order to answer that question it is necessary to look at the evidence that was before the Tribunal to ascertain whether the Tribunal has misapplied that evidence in light of the test it adopted. As to whether any error (if it existed) affected the result, this also makes it necessary to consider the evidence that was before the Tribunal to see if there was any material before the Tribunal which was capable of satisfying it that the Veteran was 'genuinely seeking remunerative work' as properly understood. 34 The Veteran's case before the Tribunal simply did not address the question of whether the Veteran was genuinely seeking remunerative work. Clearly there was evidence that the Veteran had obtained remunerative employment with the AEC in 1997 and in 2001. The Veteran submitted to us that evidence that he had been employed necessarily established that he had been genuinely seeking to engage in remunerative employment during the period of the employment. 35 However, the mere fact that a person accepts remunerative work does not mean that he or she is seeking it, much less 'genuinely seeking' it. For example, the relevant employer could have sought out the prospective employee and requested that person's assistance which the employee had reluctantly given even though the employee had not been 'seeking' employment. This does not mean that evidence of employment could never give rise to an inference that the person had been seeking employment. If evidence was given, for example, that a person had been employed by a number of different employers over a relatively short period, there may be an almost overwhelming inference that that result could only have occurred by reason of the person 'genuinely seeking' employment. Of course, that inference could be displaced by other evidence. However, in this case, it would seem to us that the evidence that the Veteran had been employed on two different occasions by the same employer was not capable, by itself, of satisfying the Tribunal that the Veteran was 'genuinely seeking' remunerative work, even in 1997 or 2001. 36 The only further evidence there was about whether the Veteran was 'seeking remunerative work' was his answer to a leading question asked of him in cross examination: 'Since then [i.e. 1997] have you looked for work or not?---Yes, I have worked with the Electoral Commission again last year.' The answer 'yes' could be taken as suggesting that the Veteran 'looked for work'. Taking a generous view of it that might provide some evidence that he may have been seeking work. It does not establish that he was genuine. The answer also suffers from the problem of all qualified answers to leading questions, that it is unclear whether the Veteran did, in fact, understand the words 'looked for' as meaning 'seeking' or whether he understood them to mean 'obtained'. Beyond that unsatisfactory answer, there was no evidence at all, save for the Veteran's evidence in chief before the Tribunal that, if he had not been suffering from PTSD, he would want to work. As the Tribunal remarked, the evidence was 'very limited'. 37 We remind ourselves that the 'satisfaction' required in s 24(2)(b) of the Entitlements Act is the satisfaction of the Tribunal, not of this Court. Nevertheless, it seems to us that the limited evidence before the Tribunal was so inadequate that it was not capable of satisfying the Tribunal that the Veteran was genuinely seeking to engage in remunerative employment. This is not to suggest that there was any onus cast upon the Veteran - merely that the material before the Tribunal was not capable of satisfying it of matters upon which it had to be satisfied if it was to determine that the Veteran was entitled to a pension at the special rate. In those circumstances it is not possible to say that there was any error of law by the Tribunal in reaching its conclusion that s 24(2)(b) of the Entitlements Act did not apply. Nor is it possible to say that the primary judge was in error in accepting that conclusion. In any event, it is not possible to say that any such error (if it occurred) affected, or could have affected, the result. 38 The consequence is that the appeal must be dismissed with costs.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Applicant: De Marchi & Associates

Solicitor for the Respondent: Australian Government Solicitor