Grounds 2, 3 and 4 - The "remunerative work" issue
25 Mr Ralph's submission was not that the primary judge had misunderstood what constituted "remunerative work" for the purposes of the VEA, but rather that bringing that understanding to bear, the primary judge ought to have concluded that the Tribunal had misunderstood that concept.
26 The Tribunal made very particular findings of fact concerning Mr Ralph's work history, both before and after his 65th birthday.
27 One finding was that, in 1996, Mr Ralph was instrumental in the establishment of two related courier companies, which respectively traded under the names Jet Couriers and Metrans. He provided start-up funds and held and continued to hold the positions of Chairman of Directors and Company Secretary. From the outset, two of Mr Ralph's sons, Mr Brett Ralph and Mr Shaun Ralph, held and continued to hold the positions of Managing Director and Operations Director in those companies. Mr Ralph's claim was that he had engaged in remunerative work as a consultant for these family owned companies. He also claimed that, both before and after he lodged his application, he had briefly undertaken consultancy work for another company in the transport industry, JMR.
28 In light of the finding that the Tribunal made as to his having lodged his application after his 65th birthday, the Tribunal assessed Mr Ralph's eligibility for an increase in his disability pension to the special rate against the criteria found in s 24(2A) of the VEA. There was no error of law entailed in the Tribunal's looking to the s 24(2A) criteria. On the premise that his application was received after he turned 65, Mr Ralph does not contend otherwise.
29 The Tribunal found that Mr Ralph satisfied each of the eligibility criteria specified in s 24(2A), save that in s 24(2A)(g). It is in this regard that the "remunerative work" error is said to be found. Materially then, s 24(2A) provides:
(2A) This section applies to a veteran if:
…
(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
…
(g) when the veteran stopped undertaking his or her last paid work, the veteran:
(i) if he or she was then working as an employee of another person had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii) if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling had been so working in that profession, trade, employment, vocation or calling;
for a continuous period of at least 10 years that began before the veteran turned 65; and …
Section 5Q of the VEA gives the following definition of "remunerative work":
"remunerative work" includes any remunerative activity.
30 Before the primary judge Mr Ralph claimed that the Tribunal's findings of fact showed that, as "remunerative work" was to be understood for the purposes of the VEA, he had engaged in such work in a way that satisfied s 24(2A)(g). He pointed to three particular paragraphs in the Tribunal's reasons (set out and summarised by the primary judge at [71]):
(a) [33], where the Tribunal set out Mr Ralph's evidence that when he lodged his application he did not consider that what he did for Jet Couriers would be considered as work for which he was paid;
(b) [37], where the Tribunal set out Mr Ralph's evidence, given in cross-examination, that he had not mentioned his work with Jet Couriers earlier as he did not consider it to be work at the time he lodged his application; and
(c) [58], where the Tribunal again set out Mr Ralph's evidence that when he made his 2010 statement in support of the application he did not classify his activities for Jet Couriers and Metrans as work.
Having summarised these passages in the Tribunal's reasons, the primary judge stated, at [72] - [73]:
72. ... The Tribunal's task under s 24(2A) was to undertake a factual enquiry as to whether Mr Ralph:
(a) was engaged in "work" at Jet Couriers and Metrans; and
(b) was remunerated or paid for that work.
It should be kept in mind that the three paragraphs upon which Mr Ralph relies are just the Tribunal's recitation of his evidence, and he does not contend that they are inaccurate.
73. I note that Mr Ralph's and Brett's evidence was not that Mr Ralph was employed by Jet Couriers and/or Metrans under a contract of employment, but rather that he was working as a transport consultant for those companies. That is, that he was a contractor on his own account. Of course, a father and son may intend to create a legally enforceable contract of service pursuant to which the father undertakes activities within his son's business which can properly be described as "work". However, on the facts, the question was whether Mr Ralph was engaged under a contract of services with his sons' businesses to work as a paid transport consultant, or whether he and his son merely entered into a familial arrangement for Mr Ralph to provide a father's counsel and assistance in his sons' businesses, with no intention to create legal relations.
[Emphasis added]
31 In submissions, counsel for Mr Ralph seized upon the references in [73] to contractual relationships as allegedly indicative that, even though the primary judge had earlier made reference to authorities which highlighted the breadth of the defined concept of remunerative work, his Honour had, by these contractual references, unduly restricted the focus of his scrutiny of whether the Tribunal had erred in law in reaching its conclusion that s 24(2A)(g) was not satisfied.
32 It may be accepted that the limits of what constitutes "remunerative work" are not delineated by the existence of either a contract of service or a contract for services or a contractual relationship at all; an understanding or arrangement might suffice (as would the holding of an office on commission, which entails no contract). In Repatriation Commission v Buckingham [1996] FCA 37 (Buckingham), as Moore J found in Counsel v Repatriation Commission [2001] FCA 1032 at [13] (Counsel), Ryan J accepted as correct the position conceded by the parties that the provision of free accommodation to a person who undertook voluntary work for a church constituted remunerative work. Acceptance of the correctness of this concession also seems to have informed Moore J in his observation in Counsel, at [13], that "what constitutes "remunerat(ion)" is [not] to be viewed narrowly". This proposition was accepted by the primary judge, who offered in his reasons for judgment a helpful analysis of authorities supporting the breadth of what is entailed in "remuneration". We, too, accept that what constitutes remuneration is not to be construed narrowly. It does though carry with it the notion of a quid pro quo, of something in return for a service. Viewed in this light, though the provision of the accommodation in Buckingham was aptly regarded as remuneration, it is a moot point as to whether the work undertaken was truly characterised as entirely voluntary.
33 The province of the eligibility criterion found in s 24(2A)(g) is with two posited scenarios after the veteran "stopped undertaking his or her last paid work". The reference in the chapeau in s 24(2A)(g) to "last paid work" is, given the parenthetical definition in s 24(2A)(d), a reference to "the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application". In this way, the breadth of the defined term "remunerative work" forms part of "last paid work" for the purposes of s 24(2A)(g). That criterion is concerned with the capacity in which that last paid work was undertaken. This was the point made by the Full Court in Grant v Repatriation Commission (1999) 57 ALD 1 at 4; [1999] FCA 1629 at [9] (Grant), both in explaining the concept of "remunerative work" and in distinguishing the subject of inquiry under s 24(2A)(d) from that in s 24(2A) (g) of the VEA:
Determination of the "remunerative work" referred to in s 24(2A)(d) requires the characterisation of the specific remunerative activity or activities that the veteran was last undertaking before making the claim or application rather than of the capacity in which that work was undertaken. The particular capacity in which the work was undertaken is dealt with as a separate criterion in s 24(2A)(g). Thus, whether or not the work was undertaken as an employee or as a self employed person is irrelevant to the characterisation to be given to that work under s 24(2A)(d). That conclusion follows from the definition of "remunerative work" in s 5Q, the recognition in s 24(2A)(g) that the capacity in which work is undertaken is to be treated as a matter separate from the work that was undertaken for the purposes of s 24 and is consistent with the purpose of s 24(2A) of providing for payment at the special rate where a person is prevented solely by war-caused incapacity from continuing to undertake the work that the veteran was last undertaking before making the claim or application. In our view it would be inconsistent with that purpose for the characterisation of that work to include, or to be made to depend upon, the capacity in which that work was undertaken.
See, also, as to the difference in focus as between s 24(2A)(d) and 24(2A)(g) of the VEA, Thomson v Repatriation Commission (2000) 96 FCR 550 at 554-555, [10] (Thomson).
34 Given the way in which Mr Ralph put his case in relation to the remunerative work issue, it is desirable first to set out some propositions about the provision of reasons by officers of the executive government and the Tribunal in particular.
35 Members of the Tribunal are officers of the executive government, albeit ones with a special charter of independence. At common law, officers of the executive government are not obliged to furnish reasons for their decisions: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656. This position has been much altered by statute so as to create such an obligation, in the case of the Tribunal, by ss 43(2), 43(2A) and 43(2B) of the AAT Act. Parliament has varied the common law position on the basis that a requirement to furnish reasons, by obliging an official to set out the material matters of fact and the adopted view of the meaning and application of applicable legislation promotes better decision-making and also gives confidence both to the person affected and the wider public in the integrity of that decision-making. It remains the case though that such reasons are meant to inform the person affected of why the decision was made and must not be narrowly scrutinised with an eye for error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang). The cautionary note sounded in Wu Shan Liang is of enduring resonance.
36 Reading the Tribunal's reasons in this matter as a whole, it is tolerably clear why Mr Ralph's claim failed to meet all of the s 24(2A) criteria. It was just that the Tribunal regarded his activities with Jet Couriers and Metrans, as part of familial discourse and that his activities as a transport and logistics consultant, exemplified by his JMR consultancy, were not undertaken for a sufficient time period prior to his making of his application to meet what the Tribunal regarded as the meaning and effect of s 24(2A)(g) of the VEA. There is a risk in a further analysis of the Tribunal's reasons of being thought deaf to the cautionary note mentioned. Even so, we consider that some further analysis is necessary in order to deal with the challenge made by Mr Ralph.
37 The Tribunal did not, in terms, find that the activities undertaken by Mr Ralph for Jet Couriers and Metrans constituted "remunerative work" for the purposes of s 24(2A)(d) of the VEA. The finding that the Tribunal made (at [55]) in respect of s 24(2A)(d) was that, before and after his application was made, Mr Ralph had worked as a "transport logistics consultant through JMR". It was on this basis that the Tribunal found that s 24(2A)(d) was satisfied.
38 The error which Mr Ralph alleged that the primary judge and the Tribunal had made was in respect of s 24(2A)(g), not s 24(2A)(d). Logically though, if there were an error in discarding the activities undertaken by Mr Ralph for Jet Couriers and Metrans, which were also conducted before and after the application was made, that error infected the Tribunal's approach to each of these criteria.
39 The Tribunal was well aware of the different tasks posited by s 24(2A)(d) and 24(2A)(g) of the VEA, not the least because Grant was cited to it by counsel for Mr Ralph and the Tribunal expressly cited (at [51]) the relevant passage from the case in its reasons.
40 On the evidence before it, the Tribunal found as a fact, as it was entitled so to do, that the activities undertaken by Mr Ralph for Jet Couriers and Metrans did not constitute "working on his own account in his profession, trade, employment, vocation or calling but rather advising and guiding his sons as a father with a pertinent background" (Tribunal's Reasons at [59]). Plainly from the language employed, this was a finding made with an eye to s 24(2A)(g), not s 24(2A)(d).
41 The Tribunal went further and found that, even if this activity could be said to constitute "working on his own account" and even if this had ceased (which the Tribunal did not consider clear on the evidence), Mr Ralph had "not suffered any loss as he still maintains use of a car of the same standard as before he stopped working and has not suffered a loss" (Tribunal's Reasons at [59]). The evidence was that Mr Ralph had been given the use of a company car by his two sons. By virtue of its primary finding, the Tribunal must be taken as having accepted and found that the provision of this car was but a token of familial appreciation, not a quid pro quo. It was not a "reward or recompense for a service", which is the essence of "remuneration" (Oxford English Dictionary, online edition http://www.oed.com/ viewed 6 June 2016). The Tribunal has thus alternatively found, contrary to its primary views, that, even if Mr Ralph were "working on his own account" for the family companies and even if the provision of the car were a form of remuneration for this, he was not suffering any loss.
42 While, desirably, the Tribunal ought expressly to have addressed whether the activities undertaken by Mr Ralph for Jet Couriers and Metrans constituted or evidenced "remunerative work" for the purposes of s 24(2A)(d), the findings which it made in relation to these activities are consistent only with a rejection of these activities as part of the remunerative work which was the "last paid work" undertaken by Mr Ralph. On the findings which the Tribunal made, these particular activities were wholly and truly voluntary, nothing more than familial interaction. In like fashion, the provision of a car was, on the findings which the Tribunal made for the purposes of s 24(2A)(g), just a gesture of appreciation, not a form of "remuneration".
43 Possibly, though this was not a feature of Mr Ralph's "contractual error" submission, the Tribunal too narrowly classified what constituted Mr Ralph's "remunerative work" for the purposes of s 24(2A)(d), by qualifying the reference to "transport logistics consultant" by the addition of "through JMR". It may be that that particular consultancy was but indicative of an ability which Mr Ralph had to undertake a remunerative activity namely, "transport logistics consultant". Equally, to read the use of "through JMR" in that way may be to violate the principle stated in Wu Shan Liang.
44 The Tribunal did expressly make broad the scope of its s 24(2A)(g) inquiry in stating (at [57]), "the question arises as to whether Mr Ralph had been working on his own account as a transport logistics consultant for a continuous period of 10 years when guiding his sons in relation to the activities of Jet Couriers and Metrans and with JMR". Further and in any event, the findings which the Tribunal did make in relation to s 24(2A)(g) with respect to the activities Mr Ralph undertook for Jet Couriers and Metrans are consistent only with these particular activities, as opposed to those with JMR, not being additionally indicative of an ability to undertake remunerative work as a "transport logistics consultant", only to undertake familial advising.
45 The Tribunal's use (at [60]) of the term "consultant" with respect to the JMR consultancy is indicative of its classification of this as work on Mr Ralph's own account rather than as an employee. The Tribunal's finding that "his work with JMR as a consultant has not been for a continuous period of 10 years before ceasing work" was, on the evidence, unremarkable. The consequential conclusion that s 24(2A)(g) was not satisfied was equally unremarkable. Given the finding in relation to the activities undertaken by Mr Ralph for Jet Couriers and Metrans, the JMR work was the only paid work which fell for consideration. There was no "last paid work" as an employee which fell for consideration.
46 To return to [73] of the reasons for judgement of the primary judge, and there being no suggestion on the facts that Mr Ralph was ever an employee of Jet Couriers, Metrans or, for that matter, JMR, read in the context of the whole of that paragraph, the part which we have emphasised in it is just a reference to the nature of the finding which, on the facts of this case, fell to the Tribunal to make under s 24(2A)(g)(ii). His Honour's reference there to "contract of services" is not, with respect, accurate if read as a reference to a contract of service as an employee, for that is the province of s 24(2A)(g)(i), which had no relevance on the evidence. In context though, the reference seems to us to have been used by the primary judge in a much less technical way and as but a shorthand, if, with respect, infelicitous, reference to "if he or she was then working on his or her own account" in s 24(2A)(g)(ii). Further, and in any event, the alleged error leads nowhere as the Tribunal did not, in relation to s 24(2A)(g)(ii), confine itself to the contractual, just to the only form of remunerative work which Mr Ralph had put forward as his last paid work, which was work as a "consultant". And, as the Tribunal found, what constituted remunerative work had not been undertaken by him for a "continuous period of 10 years before ceasing work".
47 The Tribunal did not, as Mr Ralph contended, reject the activities undertaken by Mr Ralph for Jet Couriers and Metrans as a form of remunerative work or as indicative of a capacity to undertake remunerative work because of the absence of a contract between him and Jet Couriers or Metrans. It rejected those activities because they were not remunerative activities, only family advising for which there was but a gesture of appreciation, not remuneration. It found that the advising was not given in return for the provision of a car.
48 However approached, there is no merit in Mr Ralph's "remunerative work" issue.