The primary judgment
39 Mr Richmond's Amended Notice of Appeal to the Court raises the following questions of law pursuant to s 44 of the AAT Act, namely:
(a) Whether the Tribunal misapplied s 24(1)(c) of the Act and the Flentjar questions?
(b) Whether the Tribunal failed to accord procedural fairness to Mr Richmond by failing to respond to a clearly articulated argument that his frustration with the teaching environment was an aspect or expression of his inability to cope with trade teaching because of his war-caused psychiatric injury; and
(c) Whether the Tribunal complied with its duty under s 43(2) of the AAT Act by failing to provide adequate reasons.
The learned primary judge found for Mr Richmond on each of the questions of law. Only her Honour's findings in respect of the construction and application of s 24(1)(c) are challenged in the appeal, and it is only necessary to recount the primary judgment insofar as it relates to that issue.
40 As the learned primary judge noted (at [63]-[66]) the Commission contended that the Tribunal correctly understood and applied s 24(1)(c). The Commission submitted that the alone prevented test in the first limb of s 24(1)(c) (being the third Flentjar question) could be defeated not merely by additional factors that disabled or precluded a veteran from continuing to work but also by reasons, inducements and incentives for Mr Richmond's election or choice to cease work, even if they were not disabling. In that context, the Commission argued that Mr Richmond's choice not to work, or to take a step ultimately incompatible with continuing to work, amounted to a factor preventing him from continuing to undertake the relevant work. The Commission's contention in this regard is central in the appeal.
41 The primary judge noted Dowsett J's recognition of the ambiguity in the first limb of s 24(1)(c) in Moorcroft v Repatriation Commission (1999) 58 ALD 143. His Honour observed (at 148) that the "alone" element of the first limb may mean that the decision-maker must either:
(a) …look to the extent of the war-caused condition to ascertain whether it is actually preventing the veteran from working in his previous employment; or
(b) …exclude a claim, where, notwithstanding such a [war-caused] condition, other factors (including medical conditions) prevent such employment.
42 Dowsett J preferred the first interpretation but the learned primary judge concluded (at [81]) that the weight of authority endorsed the second interpretation. We respectfully agree: see Cavell v Repatriation Commission (1988) 9 AAR 534 ("Cavell") at 538-539 per Burchett J; Jackman v Repatriation Commission (unreported, Federal Court of Australia, Tamberlin J, 30 June 1997) (BC9702806) ("Jackman") per Tamberlin J, Turnbull v Repatriation Commission [1997] FCA 421 ("Turnbull") per Merkel J; Forbes at [32]-[33] per Nicholson J; Hendy at [37] per Whitlam, Emmett and Stone JJ; Alexander at [22] per Spender J; Repatriation Commission v Van Heteren (2003) 75 ALD 703 ("Van Heteren") at [24] per Finn J; Willis v Repatriation Commission (2012) 202 FCR 323 at [22] per Bromberg J.
43 At [97]-[105] the primary judge discussed and approved Dowsett J's judgment in Peacock. In Peacock the Tribunal concluded that the veteran's war-caused injuries alone did not prevent him from continuing to undertake the work. Dowsett J observed that the Tribunal's conclusion was based on its finding that a relevant factor was that the veteran had decided to retire from his position so as to access his superannuation benefit and relocate to Queensland.
44 Dowsett J held (at [33]) that the Tribunal erred in concluding that the veteran's decision to retire so as to access his superannuation benefits was a factor operating to prevent him from continuing to engage in remunerative work, explaining that:
… Such access may be an incentive to retire, but it cannot prevent work.
45 His Honour reiterated (at [34]-[35]):
…[The Tribunal] concluded…that one of the reasons for the applicant's retirement in 2000 was the availability of his superannuation benefits. The Tribunal inferred from this that by the date of claim, he had retired, with no intention of resuming work. It was said to follow that 'it was not his war-caused injuries or diseases, alone, which prevented him from continuing to undertake his previous remunerative work…'
As I have said, the availability of superannuation benefits may have induced the applicant to retire in 2000, but such availability did not prevent him from performing work in 2004…
46 The learned primary judge found Dowsett J's analysis in Peacock persuasive (at [105]). In her Honour's opinion (at [114]) in the present case the Tribunal made no express or implicit findings that there was any other factor which prevented or contributed to preventing Mr Richmond from undertaking remunerative work. Her Honour said:
Rather, the Tribunal considered factors which caused or contributed to the applicant's "decision to cease remunerative work" including some of the matters, such as the applicant's attaining 60 years of age and his dissatisfaction with the conduct of students and management practices in the TAFE system…
47 At [116]-[120] her Honour set out in her approach to the construction and application of the first limb of s 24(1)(c), doing so in the following terms:
[116] The Tribunal did not expressly or implicitly recognise any material distinction between, on the one hand, factors which cause, or contribute to causing, an inability or incapacity to continue to undertake work and, on the other hand, incentives or reasons for the applicant deciding not to continue it. The Tribunal appeared to treat the two concepts interchangeably, or at least, proceeded on the basis that a factor of the latter kind was fatal to the satisfaction of the "alone" test in the third Flentjar question.
[117] In my opinion, the Tribunal erred in treating, in the context of the third Flentjar question, a factor acting as an incentive or influencing a decision voluntarily to cease to work as equivalent to a factor which prevents, or contributes to preventing, a veteran from continuing to undertake the relevant remunerative work. As Dowsett J recognised in Peacock, the third Flentjar question concerns the latter, not the former.
[118] The language, structure and context of s 24(1)(c), in my view, indicates that contrary to the respondent's submission, the "alone" test in the first limb is defeasible only by factors additional to the veteran's war-caused condition which prevent or contribute to preventing, the veteran's continued undertaking of the relevant work. To prevent an activity, according to its ordinary meaning, is to prohibit, disable or restrain, rather than to induce or provide a reason or incentive for action which a person remains capable of taking. The third Flentjar question, although similar to the question in s 24(1)(b) is not identical. It does not follow that because the requirements of s 24(1)(b) are satisfied, those of the third Flentjar question are also satisfied. The first limb of s 24(1)(c) refers to, an incapacity (from war-caused conditions) which "prevents". That language indicates a factor which imposes an involuntary barrier to the relevant activity. Whether such an incapacity alone prevents an activity, in my view, necessarily requires consideration of whether there are any other factors which impose an involuntary barrier.
[119] The first limb of s 24(1)(c) and the third Flentjar question thus require consideration of whether there are any other factors preventing, in the sense of hindering or disabling, the veteran's continued undertaking of the relevant work, and not whether there are any other reasons generally for stopping work.
[120] The relevance of inducements and incentives voluntarily to decide not to continue to undertake work is, in my view, as Dowsett J held in Peacock confined to the fourth Flentjar question. (Emphasis added.)
48 Her Honour noted that in Flentjar and Hendy the question as to whether an incentive or inducement voluntarily to cease work, despite being capable of continuing to work, did not arise and was therefore not specifically addressed. However, her Honour considered (at [122]-[124] and [135]) that the tenor and reasoning in Flentjar, Hendy, and Forbes was consistent with the view that inducements and incentives and other elective factors cannot operate to prevent a veteran from continuing to undertake the relevant remunerative work under the first limb of s 24(1)(c).