Oldmeadow v Repatriation Commission [2013] FCA 423 | Case summary

Introduction 1 Mr Oldmeadow suffers from a defence-caused adjustment disorder for which he is entitled to a disability pension under s 70 of the Veterans' Entitlements Act 1986 (Cth) (the VE Act), with effect from 18 December 2006. It is accepted that he is 100% incapacitated. 2 The only issue which remained for the Repatriation Commission (the Commission) to decide was the rate of that pension. The Commission on 30 May 2008 decided that he met the criteria for payment of the extreme disablement adjustment, but it did not accept that he is entitled to be paid at the special (and higher) rate under s 24 of the VE Act. 3 Section 24(2A) is the relevant provision. It prescribes six criteria for eligibility for the disability pension at the special rate. The criteria are cumulative, so each must be satisfied. They are that the veteran: (i) turned 65 before the claim is made: s 24(2A)(b) - Mr Oldmeadow was born on 18 April 1937, and so qualified; (ii) had a degree of incapacity from war-caused injury or war-caused disease of at least 70%: s 24(2A)(c) - he again qualified as he is 100% incapacitated; (iii) because of incapacity from war-caused injury or war-caused disease, is unable to undertake the remunerative work that he was last undertaking: s 24(2A)(d) - again, the findings meant Mr Oldmeadow qualified; (iv) is suffering a loss of earnings as a consequence: s 24(2A)(e); (v) was undertaking his last paid work after he turned 65: s 24(2A)(f); and (vi) when the veteran stopped his last paid work, he had been working for a continuous period of at least 10 years: s 24(2A)(g). Section 25 does not apply (temporary incapacity): s 24(2A)(h), and s 24(2A)(a) was satisfied as Mr Oldmeadow had made a claim for the special rate of pension. 4 As noted, it is, and has been at material times, accepted that Mr Oldmeadow satisfied the first three criteria referred to. He turned 65 before the claim was made; his incapacity exceeds 70% and he cannot undertake the remunerative work he was last undertaking. 5 However, in a succession of decisions, he has variously been found not to have satisfied one or other of the three remaining criteria referred to in (iv), (v) and (vi) above. 6 The Commission, in its decision of 30 May 2008, decided he could not receive the special rate because the criterion in s 24(2A)(f) was not met: it found that Mr Oldmeadow had not worked past the age of 65. It said, therefore, that it did not need to decide whether he met the other criteria. 7 It is now accepted by the Commission that Mr Oldmeadow did work past the age of 65. 8 Mr Oldmeadow understandably sought review of the Commission decision by the Veterans Review Board (VRB) on 10 June 2008. The VRB focused on whether the criterion in s 24(2A)(e) was met. That is, it considered whether he is suffering a loss of earnings as a consequence of his disability. Section 24(2B) provides that, if he ceased to engage in remuneration work for reasons other than his incapacity, then he is to be taken as not suffering a loss of earnings as a consequence of his disability. The VRB review was adjourned at first so the evidence relevant to that question could be assembled by Mr Oldmeadow and by the Commission. Ultimately, on 12 May 2010, the VRB rejected the claim to the special pension rate because it was not satisfied about the criterion in s 24(2A)(e). 9 The VRB also addressed the criteria in s 24(2A)(f) and (g). It accepted that Mr Oldmeadow had been undertaking his last paid work after he turned 65, and that he had been working for a continuous period of 10 years when he last stopped paid work. 10 Mr Oldmeadow also considered the VRB decision was wrong. He promptly applied on 8 June 2010 to the Administrative Appeals Tribunal (AAT) for review of the VRB decision. He said in his application that the VRB was wrong to conclude he had not ceased work because of his disability. 11 The matter came on for hearing before a member of the AAT on 24 August 2011. A "preliminary point" had, by then, been identified by the Commission as to whether, despite the finding of the VRB, Mr Oldmeadow did not satisfy the criterion in s 24(2A)(g) because he had not been working continuously for 10 years when he last stopped work. 12 Mr Oldmeadow had worked for the Australian Bureau of Statistics (ABS) for the period up to when he last worked on 22 June 2003. Before the VRB he had produced a "Certificate of Service" dated 10 September 2003 on ABS letterhead signed by an officer of the ABS certifying that he had worked for the ABS from 9 May 1993, so it showed that criterion was satisfied. That was the material on which the VRB was satisfied about the criterion on s 24(2A)(g). 13 The matter was then adjourned for the assembly of evidence on the issue. 14 The hearing resumed on 12 June 2012. On that date, after the evidence, the member of the AAT gave ex tempore reasons for his decision. He affirmed the decision of the Commission because he accepted evidence that Mr Oldmeadow had not started work with the ABS until 27 September 1993, so he did not meet the 10-year criterion by a few months. He did not address the issue in respect of which Mr Oldmeadow instituted the application to the AAT, namely whether he ceased to work because of his disability and not for other reasons. 15 No transcript of the ex tempore reasons was made. On 13 August 2012, the AAT produced reasons for the decision, reconstructed from notes. It is accepted that they substantially reflect the ex tempore reasons, and that the Court should proceed on that basis. 16 Thus over a period of some six years, and three administrative decisions, Mr Oldmeadow has been found not to be eligible to receive the higher rate of pension for three different reasons.

Consideration 25 I do not accept that the AAT was not entitled to consider and determine, on its review of the decision of the Commission by the application of Mr Oldmeadow, whether it was satisfied about the 10-year criterion. 26 The AAT is given jurisdiction to review on the merits decisions of the Commission which have been reviewed by the VRB: s 175 of the VE Act. The jurisdiction is to review the decision of the Commission (as here, as affirmed by the VRB). It is not confined to reviewing the correctness or otherwise of the reasons for the decision. Section 176 of the VE Act provides then that the relevant provisions of the AAT Act apply. Section 43 of the AAT Act says that, on review, the AAT has all the powers and discretions of the Commission and it must make a decision affirming, varying or setting aside the decision under review with consequential orders. The decision of the Commission was that Mr Oldmeadow was not entitled to the special rate of pension under s 24 of the VE Act. 27 In Bramwell v Repatriation Commission (1998) 158 ALR 623 (Bramwell), Weinberg J at 631 clearly indicated that, as s 43(1) and (6) of the AAT Act indicate, it is the decision of the Commission and not its reasons for decision which the AAT is to review. That conclusion followed earlier decisions of this Court in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 and Fitzmaurice v Repatriation Commission (1989) 91 ALD 297; and was followed in Stewart v Repatriation Commission [2002] FCA 316. See also Kowalski v Repatriation Commission [2009] FCA 794. The scope of the relief available to the AAT on a review of a decision supports the conclusion that it must consider the decision afresh, and may substitute the correct and preferable decision and not simply be confined to the particular issue addressed by the Commission. If it were satisfied that the reason for the decision of the Commission was wrong (as was acknowledged), if it could not go beyond that issue, it could not substitute the correct or preferable decision. It would need additionally to address the other criteria for qualifying for the special rate of pension. As Weinberg J pithily said in Bramwell at 632, "There is either a hearing de novo, or there is not". 28 The decision of Sutherland v Repatriation Commission [1996] FCA 1265 relied on by Mr Oldmeadow is, in my view, distinguishable from the present circumstances. That case decided that, on a review under s 175 of the VE Act, the AAT could not address a decision different from that made by the Commission. In that case, the AAT had decided that the veteran's spinal condition was not war-caused, when the claim considered by the Commission did not include a claim based on the veteran's spinal condition: see at [5]. 29 In Repatriation Commission v Stafford (1995) 56 FCR 132, by way of contrast, the AAT was found by the Full Court to have erred in adopting too narrow a view of a decision of the Commission. The Commission had considered claims in respect of four medical conditions, and had found that two were not war-caused and the other two did not qualify as injury or disease under the VE Act. The AAT wrongly considered that, because the VRB had addressed only whether the same two conditions were war caused, it too could only review the Commission's decision that two of the conditions were not war caused: see at 142-143. The decision under review was that of the Commission. The Full Court decision is consistent with the view I have taken. 30 Written submissions for Mr Oldmeadow also rely upon Re Brian Lawlor Automotive Pty Ltd v Collector of Customs (New South Wales) (1978) 1 ALD 167 at 175, but I do not consider that decision supports his contention. 31 In my view, the AAT was entitled to consider, on the review of the Commission's decision, whether Mr Oldmeadow satisfied the criterion in s 24(2A)(g) of the VE Act. 32 It follows that the appeal under s 44 of the AAT Act should be dismissed, and the first of the grounds argued in support of the ADJR Act application should also be rejected. 33 Each of grounds (2), (3) and (4) of the application under the ADJR Act set out in [23] above involves to some degree an assessment of the evidence before the Tribunal - either to characterise it as incapable of proving the critical fact found - namely that Mr Oldmeadow started working for ABS in September 1993 and not in May 1993 - or because certain elements of that evidence did not in fact tend to prove what the AAT regarded it as proving, or because overall it could not to a reasonable decision maker be taken to have proved what the AAT found to have been the case. 34 In undertaking that task, I have been troubled by the adequacy of the reasons for decision of the AAT. They are, relevantly, fully set out at [21] above. 35 To address the contentions, I will first note the documentary material before the AAT: (1) Certificate of Service dated 10 September 2003 from the ABS, Northern Territory, apparently signed by Ms Rebecca Clarke certifying Mr Oldmeadow worked for the ABS between 9 May 1993 and 22 June 2003, including that he had ABS Field Interviewer Training. (2) Computer-generated Payroll Reports (several pages), an example being for the payday 5 December 2002, recording Mr Oldmeadow as having "commenced" on 20 September 1993 (a sequence of those pages was in the material before the AAT). (3) Letter/report dated 20 January 2012 from an ABS Officer, Ms Hinrichsen, Interviewer Pay and Entitlements Section, Adelaide indicating that: (a) 20 September 1993 is the date that "commencement paperwork" for Mr Oldmeadow was entered into the system and that Mr Oldmeadow commenced initial training on 27 September 1993; (b) the computer-based payroll system came into use in the late 1980s, so his payroll records would at no time have been manually maintained; (c) ABS interviewers (such as Mr Oldmeadow) are employed under the Census and Statistics Act 1905 (Cth) and not the Public Service Act 1999 (Cth), and an employee of the ABS is unable to commence work until an Undertaking of Fidelity and Secrecy is signed. (4) Undertaking of Fidelity and Secrecy, under the Census and Statistics Act 1905 (Cth), dated 27 September 1993, signed by Mr Oldmeadow. (5) Appointment of Persons to Assist the Statistician, dated 27 September 1993, appointing, inter alia, Mr Oldmeadow as an interviewer. (6) Letter of Appointment dated 20 September 2010 from ABS, Interviewer Pay Entitlement Section, Adelaide stating that Mr Oldmeadow commenced with the ABS on 20 September 1993 and ceased on 22 June 2003. (7) Email exchange with the ABS Regional Director, Northern Territory, Ms Robyn Elliott. She held that position from about 2001 to 2009. She said "from memory" Certificates of Service such as document (1) above were prepared by Population Survey Operations (PSO) staff from the PSO Interviewers payroll system, and that Ms Clarke was at 2003 probably either the Supervisor of PSO or in the Management Section responsible for personal issues; she said Ms Clarke was a very conscientious and meticulous officer. (8) ABS Northern Territory letter to Ms V Hayes of 17 April 1993, signed by the Manager Population Surveys, offering her a position of field interviewer with training on 4-7 May 1993. 36 The transcript of evidence before the AAT on 24 August 2011 is in the relevant material. Mr Oldmeadow gave evidence that he started work with ABS on 9 May 1993, after an induction course. Ms Hayes was also at the course. He recalled starting work on a Sunday. He resigned effective on 30 June 2003. He said that the Certificate of Service of 10 September 2003 was signed by Ms Elliott in his presence, after looking at his personal file (apparently erroneously as Ms Elliott did not sign that document but Ms Clarke). He said (resisting the suggestion that his pay was not prepared by the ABS Northern Territory officer) that for some months the office staff paid him and others by cheque which would be cashed in another section of the office, based upon hours worked, and that the type of document at document (2) in [35] above was not used for some months after he started work, and when that system commenced he also started to receive computer-generated pay slips. Apart from the Certificate of Service, he said he had no other means of fixing the commencement date at 9 May 1993, as his personal records had been destroyed. He maintained that he undertook training with Ms Hayes. (It was reported to the AAT that Ms Hayes could not recall who was on the training course with her.) 37 Following that hearing, the advocate for the Department of Veterans Affairs, by letter of 2 September 2011, sought additional information in an appropriately-worded request from the ABS, which led to the production before the AAT of the documents in (2) to (5) at [35] above. 38 In my view, the conclusion reached by the AAT is not shown to have been reached without there being evidence to support it. The Payroll Reports, the Appointment Notice and the Undertaking of Fidelity and Secrecy are capable of supporting its finding. That is the more so when they are seen in the light of the information provided by Ms Hinrichsen referred to in (3) at [35] above. 39 As counsel for Mr Oldmeadow contended, it is possible to take a critical eye to all that information. It is correct to say that she has expressed her view that, by reason of such documents, Mr Oldmeadow must have commenced only on 27 September 1993 by reference to current practice because she states that practice in the current tense. But she has researched to find an explanation for those documents, and excluded the explanation that payroll processes were not computerised until after May 1993. She is clearly trying to identify and explain the circumstances at 1993. It is also fair to comment that her precise position, and her precise qualifications, to provide her information are not explained. Again, however, that does not mean that material has no weight, especially as she responded to a letter of 2 September 2011 sent by the Department of Veterans Affairs to a nominated officer of the relevant section of ABS which fairly explained the issues and Ms Hinrichsen provided the response, together with all available files of Mr Oldmeadow. 40 It is also fair to comment that, as is common ground, the equivalent letter to Mr Oldmeadow to that of Ms Hayes at (8) above is not produced. There is no suggestion that there is any deliberate concealment; the file is not able to be found. Mr Oldmeadow's copy has been destroyed. That does not show that the material relied on by the AAT had no weight, or was irrelevant, to the issue addressed. 41 The same observation is made about the Appointment Notice referred to in (5) of [35] above. It is obviously a more formal document, covering a number of employees (redacted to omit their names), so it might be thought to be a formal catchup of a series of appointments rather than the appointment of a number of persons on the same day. But that is purely speculative. On its face it supports the AAT finding. It may have been that a number of appointments were made on that day following a period of interviews over time. 42 In written submissions to the AAT, the possibility of the commencement date being wrongly entered into the payroll records was raised. The material indicating computer payroll records were in place from the 1980s can be used to exclude that occurring on a transfer of data to a new system. The prospect of the Northern Territory office of ABS not having followed the ABS processes, so that Mr Oldmeadow started work before the documents relied on by the Commission, was also raised. As a matter of logic, that is a possibility; but there was no other material to support it (other than that based on Mr Oldmeadow's evidence and the Certificate of Service, both of which the AAT referred to). 43 The fact that the documents at (4) and (5) in [35] above also have some evidentiary significance is supported by the statutory and regulatory provisions under which they came into existence: s 7 of the Census and Statistics Act 1905 and reg 3 of the Statistics Regulations 1983 as in force in September 1993 providing that "the Statistician" is the person who was responsible for engaging persons to assist in carrying out the Statistician's functions. 44 In my view, Mr Oldmeadow has not made out the grounds of review in (2)(a), (3) and (4) of [23] above. I consider that the material relied upon by the AAT was capable of supporting its findings of fact, namely that Mr Oldmeadow commenced employment on 27 September 1993, so that the criterion in s 24(2A)(g) of the VE Act was not satisfied. 45 There remains the ground of review referred to in (2)(b) of [23] above, namely a failure to take into account relevant considerations. 46 The AAT referred to the oral evidence of Mr Oldmeadow and to the Certificate of Service, as its reasons set out in [21] above demonstrate. 47 It did not explain in any detail how it reconciled with its finding Mr Oldmeadow's evidence that he started work in the early part of 1993, that he started training with Ms Hayes (who, on the evidence of document (8) in [35] above, undertook training in early May 1993), and that he started work on a Sunday (which would fit with a 9 May 1993 start). Nor did it explain why it did not accept Mr Oldmeadow's evidence that, for a period of a few months, he was not paid by a computer payment process as the Payroll Reports suggested, but by individual cheque which was then cashed by the "financial area on the next floor up" of ABS in the Northern Territory. He did say in cross-examination that, apart from the Certificate of Appointment, he had no other recollection or any other means of fixing his commencement date on 9 or 10 May 1993, as his home records had been destroyed. 48 Despite those observations, I do not consider that this ground of review has been made out. In the first place, as Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39, that ground is only made out if the decision maker fails to take into account a consideration which he or she is bound to take into account. In this matter, the relevant consideration was whether the criterion in s 24(2A)(g) of the VE Act was established. Clearly, the AAT took that into account. There is, secondly, no basis for concluding by reason of the brevity of the reasons that the AAT in any event did not take into account the matters referred to in the preceding paragraph. In essence, the AAT appears simply to have attributed to Mr Oldmeadow an unreliable memory of events. No doubt Mr Oldmeadow disagrees with that, but it is not possible to conclude that what he said was overlooked; the AAT specifically - albeit briefly - referred to his evidence. The AAT also referred to the Certificate of Service, but did not accept it as reliable. On those issues, the AAT had the benefit of careful written submissions on behalf of Mr Oldmeadow. The discussion recorded in the transcript recognised that a mistake must have been made about the date of his commencement of service, either by the person who prepared the Certificate of Service or in the other records of the ABS. The AAT had to resolve where that mistake lay. Ultimately, it preferred the documentary material produced by the Commission as explained by Ms Hinrichsen. 49 Finally, in the light of those observations, I record my conclusion that, on the whole of the material before the AAT, I do not consider its decision was so unreasonable that no reasonable person could have reached the decision it reached: see McVeigh v Willarra Pty Ltd (1984) 6 FCR 587 at 596-597. Its critical finding of fact was not unsupported by evidence: cf Luu v Renevier (1989) 91 ALR 39 at 47, and I am not persuaded that the evidence it relied upon was "uncertain, unsubstantiated and irrelevant", expressions used in the written submissions of Mr Oldmeadow. It may be that the AAT reasons are somewhat unsatisfactory because they do not explain in a way which Mr Oldmeadow might comprehend why the detail of his evidence was not accepted. There is, however, no contention that the reasons do not satisfy s 43(2) of the AAT Act. They do indicate that his evidence was not accepted (including his evidence about the means by which he was paid for the first few months of his employment) where it did not fit in with the documentary records produced by the ABS, and with the information provided by Ms Hinrichsen, and that the Certificate of Service was also rejected as being unreliable. On that basis, for the reasons given, that ground of review is also not made out.

Oldmeadow v Repatriation Commission

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (10)