Repatriation Commission v Butcher

THE DECISION OF THE TRIBUNAL 6 The Tribunal based its decision on the evidence relating to particular work in specific positions over nominated periods. It took into account the experiences of the veteran in those particular positions, including the effect of shoulder problems he had experienced. For example, it looked at the particular work performed by the veteran at Comit Farm Produce Pty Ltd as a general hand, as well as the duties involved in carrying out particular jobs as a truck driver and a fork lift driver. In our view, his Honour was correct in finding that the Tribunal approached its task of considering the characterisation of remunerative work undertaken by the veteran on too narrow a basis. 7 It is settled law that the subsection requires consideration of 'remunerative work' by having regard not to particular tasks and duties involved in specific jobs, but rather to the type of substantive work undertaken by the veteran considered at a higher level of generality: see Banovich v Repatriation Commission (1986) 69 ALR 395 at 402; Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225; and Repatriation Commission v Hendy (2002) 76 ALD 47 at 54. 8 The evidence before the Tribunal, as noted by the primary judge, indicated that the veteran had worked in the following positions for the periods set out below: 'Period Position Employed 1 November 1983-June 1985 Process Worker Stan Bond Limited 2 December 1985- Yard hand North East Timbers 3 August 1988-February 1989 Truck driver MRW Co-op 4 August 1989- Truck driver Lindfox Transport Australia Ltd 5 March-May 1992 Fork-lift driver Adelaide Steel Processing 6 March-May 1998 General hand Comit Farm Produce Pty Ltd' 9 The Tribunal also referred to the observations of Burchett J in Cavell v Repatriation Commission (1988) 9 AAR 534 at 539 to the effect that the true task of the decision-maker was: '… to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions but with an eye to reality, and as a matter in respect of which common sense is the proper guide.' (Emphasis added) 10 The Tribunal accepted that the problems which the veteran had experienced with his left shoulder were the result of degenerative changes in the condition of the cervical spine and that this condition was not war-caused. The Tribunal also accepted that the degenerative condition of the cervical spine would be a factor in preventing the veteran from undertaking certain types of remunerative work which he had undertaken in the past. By way of example, the Tribunal referred to the fact that the veteran would not be able to undertake work such as a labourer in tasks that entailed working above his head and looking up, such as fixing ceilings or cornices, or painting. The Tribunal also noted that the veteran would have difficulty with tasks such as concrete laying or flooring work, where he would be looking down for long periods of time. Taking into account the veteran's description of his work as a forklift driver, the Tribunal accepted that his cervical condition would be a factor preventing him from doing that work because it frequently entailed stacking shelves at heights which would involve a forklift operator looking upwards for significant periods. 11 However, the Tribunal found that the veteran's cervical condition would not be a factor that would prevent him from undertaking work as a storeman or general farm labourer. It further found that his cervical spine condition would not be a factor that would prevent him from working as a truck driver. In light of these findings, the Tribunal concluded that the veteran had been prevented by his war-caused injuries alone from carrying out remunerative work that he was previously undertaking. 12 The task for the Tribunal in considering the application of s 24(1)(c) was summarised by the Full Court in Repatriation Commission v Hendy (2002)76 ALD 47 at [35]-[37] as follows: '36 The tribunal's task was to assess what the veteran probably would have done, if he had none of his service disabilities during the assessment period. The requirement to consider "remunerative work that the veteran was undertaking" does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past. That is the exercise that the tribunal undertook. The tribunal was not bound to limit its consideration to the last employment that the veteran actually undertook. 37 The consideration of what a veteran would probably have done, absent the service disabilities, is a hypothetical exercise. The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran's being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. So long as the tribunal performs this exercise, the conclusions drawn from the assignment of the relative impact of the various factors on the ability of the veteran to continue in remunerative work is not reviewable, except in exceptional circumstances. Moreover, having considered any or all of the factors which may have contributed to a veteran's incapacity, the tribunal is then required to determine whether it is the veteran's war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work. Error on the part of the tribunal in determining whether the veteran's war-caused injury or war-caused disease is the sole determinant in the prevention of continued remunerative work is, similarly, not open to review.' (Emphasis added) 13 On a fair reading of its reasons in this matter, the Tribunal paid regard not to the substantive remunerative work that the veteran had undertaken in the past, but to particular tasks performed by the veteran during the course of his employment. The Tribunal did not consider, in the general sense required by the subsection, the type of employment undertaken by the veteran but rather the particular duties in which he had been engaged. In so doing, the Tribunal has fallen into error. In our opinion, the primary judge was correct in finding that there had been an error of law in the approach taken by the Tribunal due to its overly narrow description of the remunerative work previously undertaken by the veteran.

THE DECISION OF THE PRIMARY JUDGE 14 The Commission contends that his Honour erred in his approach by determining the factual questions for himself, rather than remitting the matter to the Tribunal. His Honour reasoned that characterising the type of work undertaken by a veteran involved a consideration of the veteran's qualifications and the work which he or she had, in fact, undertaken in the past. His Honour pointed out that sometimes the decision would be relatively straightforward where, for example, the veteran had specialised qualifications and had only ever worked in one field of employment. It was noted that in other cases, the decision must involve a process of characterisation that would not necessarily be resolved by simply characterising the field of remunerative activity as involving all of the particular types of employment which the veteran had undertaken. 15 His Honour emphasised that the characterisation of the type of remunerative work must be made with an eye to reality using practical common sense. He referred to the danger that a narrow definition could result in a veteran receiving the pension at a special rate in circumstances not contemplated by the legislature. His Honour also pointed out that, on the other hand, an unduly wide definition could result in veterans being wrongly refused the special rate pension. He observed that an unduly wide definition could lead to a situation where a veteran is denied a pension where it is unlikely that, even without any injury or disease, the veteran would ever have undertaken a particular form of employment that happens to fall within the wide definition. After making these observations, his Honour said at [44]: 'In my opinion, in this case a more general characterisation of the type of work, or field of remunerative activity, the respondent was undertaking is appropriate, rather than one which includes all six previous forms of employment. I would describe the remunerative work the respondent was undertaking as general labouring duties involving unskilled work, process work and general driving duties. I would not include driving a fork-lift in the description of general driving duties. That was employment he undertook for only a short period of time and the question is the "substantive" or "substantial" remunerative work the respondent has undertaken in the past. That leaves for consideration whether, in this case, the general labouring duties involving unskilled work includes tasks that required work above his head, such as fixing ceilings or cornices, or painting, or prolonged looking down, such as concrete laying or flooring work. I do not think that it does, because there is no evidence that the respondent undertook such work on a prolonged or repetitive basis for any period of time, or that he was qualified to undertake such work.' (Emphasis added.) 16 The Commission accepts the description by his Honour of the past remunerative work which the veteran was undertaking as being 'general labouring duties involving unskilled work, process work, and general driving duties,' and agrees that this was an appropriate classification. However, the Commission contends that his Honour then fell into error by referring to a finding that there was no evidence that the respondent undertook general labouring duties involving unskilled work requiring work above his head, such as fixing ceilings or painting. It was submitted that his Honour's exclusion of tasks involving 'prolonged looking down' and 'work above his head' was inconsistent with the findings of the Tribunal. His Honour decided that the expression 'general labouring duties' excluded such work because there was no evidence that the veteran undertook such work on a prolonged repetitive basis. 17 In our view, on a fair reading of this aspect of the primary judge's reasoning, there was no error. His Honour approached the issue by contemplating in a realistic and practical way the range of work it was appropriate to consider on a broad basis, having regard to the fact that some types of work would clearly be outside a practical range of reference because there was no suggestion that these types of work would be engaged in by the veteran. The fact that the veteran had undertaken certain types of general labouring work was used by his Honour to provide guidance in describing the range of types of work which it would be reasonable to take into account in characterising past remunerative work undertaken by the veteran. In adopting this common sense approach to determine the outer boundaries of a reasonable range of remunerative work, we do not consider that his Honour fell into error as contended for by the Commission. His Honour's conclusion that the veteran's cervical spine condition would not have prevented him from continuing the remunerative work he was undertaking, having regard to a realistic range of activities, does not disclose a misapplication or a misunderstanding of the concept of 'remunerative work' required by the subsection. 18 His Honour's approach and finding as to 'remunerative work' within s 24(1)(c) was different to that of the Tribunal because he characterised the work as general labouring duties involving unskilled work, process work and general driving duties excluding fork lift driving. Adopting a different approach which we have found to be incorrect, the Tribunal made a finding that the veteran could also use a fork lift if the truck he was driving were equipped with lifting devices. In our view, there is an inconsistency between the actual finding made by his Honour and that made by the Tribunal. Section 44(7) provides that the Court may make findings of fact on an appeal to the Federal Court if the findings of fact are not inconsistent with findings of fact made by the Tribunal. In these circumstances, it is appropriate that there should be a further investigation by the Tribunal as to whether, having regard to the types of work that the veteran was undertaking as correctly interpreted, the war-caused injury alone prevented him from engaging in the work which he previously undertaking. 19 Notwithstanding the above view as to the legal correctness of his Honour's reasoning, we consider that his Honour erred in not referring the matter back to the Tribunal for further consideration. The Tribunal had fallen into legal error and, in our view, the appropriate course in this case was for the Tribunal to reconsider the evidence having regard to any further submissions or evidence which the parties wished to advance. In cases where a wrong principle has been applied by an administrative tribunal, it will generally follow that the matter should be referred back, except in cases where it would be futile to do so or where there could be no other outcome. In this matter, his Honour erred in deciding the factual question rather than remitting it to the Tribunal. 20 Accordingly, the appeal is allowed with costs for the above reasons. The orders made by His Honour should be set aside and the decision of the AAT is set aside. The matter is remitted to the AAT for determination in accordance with these reasons. The Court considers that this is an appropriate case in which to certify that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 pursuant to s 6(3). I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, Nicholson and Tracey

Counsel for the Appellant: Ms S Maharaj QC with Ms K Bean

Solicitor for the Appellant: Australian Government Solicitor