Repatriation Commission v Watkins

did the Court err in its construction of s 24(1)(c)? 34 Section 24(1)(c), shorn of presently unnecessary text, states: 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 … wages …, that the veteran would not be suffering if the veteran were free of that incapacity. 35 Indeed, in the circumstances of this appeal, where no question of war-caused disease is indicated, it may relevantly be reduced to the requirement: The veteran is, by reason of incapacity from that war-caused injury …, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of … wages …, that the veteran would not be suffering if the veteran were free of that incapacity. 36 The primary judge, at [24], accepted the construction of s 24(1)(c) for which the appellant contended, to the following effect: The construction contended for by the applicant is that the 'alone' element requires that the preventative effect not be, by reason of or because of, some cause or causes other than the war-caused incapacity. The 'alone' element asks whether there is a non-war caused disability (or disabilities) which independently of the war-caused ailments have also brought about the preventative effect. The war caused ailments and their consequences are to be put to one side and an assessment be made as to whether there is an additional cause or causes which prevent the veteran from working. The non-war caused disabilities will only be a disqualifying factor if they of themselves and independently of the war-caused ailments also have the preventative effect. (Emphasis added.) 37 The Commission contended that s 24(1)(c) recognises that there may be reasons in addition to the war-caused incapacity that prevents a veteran from engaging in remunerative work: in such cases, a veteran does not meet s 24(1)(c) and will not qualify for a special rate of pension. The Commission said the issue in the appeal was whether the non war-caused factor must, of itself, be of such a character that it alone prevents the veteran from continuing to undertake remunerative work, or whether it was enough that the non war-caused factor is a contributing factor but not the only cause of the veteran not engaging in remunerative work. 38 The Commission contended that the decision of the Full Court of this Court in Repatriation Commission v Richmond [2014] FCAFC 124 at [57]-[69] (decided after the judgment under appeal but referring to the decision of the primary judge now under appeal) settled the construction issue, and did so contrary to the construction adopted by the primary judge. In the result, that submission must be accepted and this appeal accordingly allowed. 39 The Commission maintained that s 24(1)(c) contains two limbs or aspects and that it has to be read together with s 24(2). Relevantly, a veteran will satisfy the first part of the section if the veteran is prevented from continuing to undertake remunerative work by reason of incapacity from war-caused injury or disease, or both. 40 The Commission referred, in this regard, to what was recently said by the Full Court in Richmond, at [57] and [58] as follows: 57 The first limb of s 24(1)(c) requires the decision-maker to decide whether the veteran's war-caused injury or disease (or both) alone prevented him or her from continuing to undertake the remunerative work the veteran was engaged in. The alone element of the test is concerned with whether or not there is more than one cause of the preventative effect that the veteran claims has resulted from his or her war-caused incapacity. 58 The first limb provides that to qualify for the special rate, the preventative effect must arise from the veteran's war-caused incapacity alone, and not from other non war-caused preventative factors as well. If other non war­caused factors contribute to the preventative effect, even if they are only of secondary importance and not of themselves sufficient to prevent the veteran from engaging in remunerative work, their presence will deny the veteran eligibility for the special rate. 41 The Commission contended that this approach accords with the language of the provision, in that it is to be applied to the actual circumstances of the veteran. The Commission noted that in Forbes, Nicholson J said that when regard is had to all of the circumstances in which the war-caused condition exists, the fact that a non war-caused condition is not alone causative of such preventative effect does not prevent it having that effect in combination with the war-caused condition. The Commission submitted that this approach is supported not only by Richmond, at [59], but also by a long line of authority, including: Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47 and Repatriation Commission v Butcher [2007] FCAFC 36; (2007) 94 ALD 364, which provide that if non war-caused factors play a part in or contribute to preventing a veteran from engaging in remunerative work, even if those preventative factors are of secondary importance and not of themselves sufficient to prevent remunerative work, the "alone" requirement will not be satisfied. 42 In respect of the analysis of the primary judge, the Commission contended that s 24(1)(c) does not, in terms, state that non war-caused factors must alone be such as to prevent the veteran from working. Rather, the text of the provision states that it is the war-caused factors that must alone cause the veteran to be prevented from continuing to undertake remunerative work. 43 Secondly, the Commission submitted that, as a matter of logic, war-caused factors will not be the only cause of a veteran being prevented from working in two contexts: (1) first, where there is another reason altogether that prevents the veteran from working; and (2) secondly, where there is another reason that in combination with the war-caused injury prevents the undertaking of work. 44 The Commission submitted that the approach taken by the primary judge ignores this second category of case, yet it is plainly satisfied by the text. That is, so the Commission argued, the war-caused factors will not be the cause alone if there is another cause that also contributes to the result. The Commission submitted that the idea that there may be a number of causes that bring about a certain result is well known as a matter of both human experience and legal precedent. 45 Thirdly, the Commission submitted that the approach taken by the primary judge assumes that the first limb or aspect of s 24(1)(c) describes a hypothetical situation in which the veteran is not suffering from a war-caused disability. The Commission submitted the first limb presents a straightforward factual inquiry: what are the factors that prevent the veteran from engaging in remunerative work? It submitted that it will perhaps almost inevitably be the case that one of those factors will be a war-caused incapacity. After all, it is a condition set by s 24(1)(b) that the veteran is totally and permanently incapacitated by a war-caused injury or disease. 46 The Commission argued, however, that as a matter of fact there may be other factors in play. Thus, so the Commission affirmed, there is no reason why that exercise would require the Tribunal to put aside the war-caused factors in considering the existence of other potential factors as the primary judge's approach does. According to the Commission, the introduction of a hypothetical aspect to the first limb of s 24(1)(c) adds undue complexity, which is unlikely to have been intended. On the other hand, the Commission observed, the second limb of s 24(1)(c) necessarily and expressly directs attention to the hypothetical situation described by the words, "if the veteran were free of that incapacity". 47 Fourthly, the Commission submitted that the construction adopted by the primary judge is inconsistent with Full Court authority and it would be necessary for the respondent to persuade the Court that the decisions in Hendy and Butcher were clearly wrong before the Court would decline to follow them. 48 In that regard, the Commission respectfully submitted that the primary judge erred in considering that the construction he favoured was supported by another Full Court decision, that of Smith v Repatriation Commission [2014] FCAFC 53; (2014) 220 FCR 452. The Commission submitted that the observations of Buchanan J in Smith at [48], referred to by his Honour, did not assist Mr Watkins, because Buchanan J was not discussing the issue that currently arises. The Commission noted that, in Richmond at [24], the Full Court referred to what Buchanan J said in Smith at [47]-[48] and indicated that his Honour's approach was consistent with the constructional approach it adopted. 49 Mr Watkins conceded that Hendy stands as authority against the construction adopted by the primary judge, but not Butcher. 50 Mr Watkins submitted that Butcher concerned the meaning of the expression "remunerative work", and does not stand as broader authority for the contention advanced by the Commission. The error of law in that case, he contended, was that the Tribunal had 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" (Butcher at [13]). While the Full Court in Butcher did quote the passage in Hendy at [37] with approval, Mr Watkins submitted that the legal issue in dispute was the meaning of "remunerative work", not the "alone" test, and so Butcher may be distinguished on that basis. 51 As to Richmond, Mr Watkins submitted the Court took the view that the Commission's construction may be "harsh" but arises from the "plain words of the section". Mr Watkins agreed that the result is "harsh" but disputed the Full Court's conclusion and supporting analysis. Instead, he submitted that the primary judge's approach to construction accounts for the plain words, read as a whole and particularly in the context of s 24(1)(b) and s 24(2)(a)(ii), at least as equally as well as the Commission's construction, and avoided a harsh result; and so should be adopted by this Court. 52 Mr Watkins contended that the primary judge's approach accounts for secondary, non war-caused factors. Thus, Mr Watkins contended that if secondary, non war-caused factors have a cumulative effect preventing a veteran from working, they will be taken into account. If they do not, then they should not be taken into account. In this case, he submitted that they should not be taken into account, because his prior history of headaches and ataxia, as well as his age, in and of themselves, would not have prevented him from working. Further, Mr Watkins submitted that his time out of the workforce is arguably war-caused in any event, and the Tribunal made no finding about this. According to Mr Watkins, the Tribunal did not deal with the possibility that, in and of themselves, the non war-caused factors prevented Mr Watkins from working. 53 In this way, Mr Watkins supported the construction of the primary judge that s 24(1)(c) proceeds on the basis that the war-caused ailments must be of themselves, when aided by other factors, causative of the preventative effect. In his argument, it must logically follow that the 'alone' requirement is addressing whether another factor with the same preventative effect exists. 54 Mr Watkins submitted, in accordance with the analysis of the primary judge, that s 24(2)(a)(ii) serves as a "re-expression" of that preferred construction. Section 24(2)(a)(ii), read with s 24(2)(b), he submitted, creates an ameliorating provision for veterans aged under 65 at the date of lodgement of their application. By virtue of s 24(2)(a)(ii), for the purposes of s 24(1)(c), a relevantly incapacitated veteran "shall not be taken to be suffering a loss of salary or wages … by reason of that incapacity", if "the veteran is incapacitated or prevented from engaging in remunerative work for some other reason". Mr Watkins said that this refers to some other non war-caused reason, provided that the war-caused reason is the substantial cause of the veteran's inability to work. 55 Mr Watkins contended that, rather than the first limb of s 24(1)(c) presenting a straightforward factual inquiry, the preferred construction of the Commission would alter the question raised by s 24(1)(c) from the question raised by s 24(2)(a)(ii) and this would needlessly complicate the issues raised in the Act. 56 He further contended that s 24(1)(b) is also consistent with his preferred construction of s 24(1)(c) in that it asks whether the veteran is "totally and permanently incapacitated" by reason of war-caused injury or disease. Section 24(1)(c) should be read, so he said, on the assumption that the veteran has already been found to be incapable by force of s 24(1)(b). It does not ask if the veteran is incapable by reason of war-caused factors together with some other cause. Nor does s 24(1)(c). Having established that the veteran is incapacitated by reason of war-caused injury or disease, it is logical, so Mr Watkins submitted, that the decision-maker ought to consider whether there are other factors that are preventing the veteran from working. If there are, the inquiry proceeds to the ameliorating provisions in s 24(2)(b). 57 Mr Watkins submitted that the Act is beneficial legislation that should be construed in a way that avoids capricious consequences for the veteran. At the hearing, Mr Watkins submitted that the Full Court's construction in Richmond was not consistent with the purposive approach to construction endorsed by s 15AA of the Acts Interpretation Act 1901 (Cth), effectively because it failed to take account of this beneficial purpose. 58 While it may be said that the text of s 24(1)(c) is calculated to produce the difficult constructional questions that the primary judge identified in his reasons for decision, as indeed the Full Court in Richmond recognised at [69], the decision in Richmond has considered each of them and preferred the constructional approach urged on this Court in this appeal by the Commission. Indeed, the Full Court in Richmond at [67] expressly disagrees with the construction of s 24(1)(c) adopted by the primary judge in the decision under appeal. 59 The Full Court's decision in Richmond is recent, considers the apparently conflicting decisions relied on by the primary judge in adopting his alternative, different construction of s 24(1)(c), and adopted the construction for which the Commission now contends. In doing so, the Full Court, at [87]-[91], had explicit regard to the legislative policy and purpose informing the Act and also, at [92]-[93], to the fact that, considered as a whole, the Act is beneficial legislation and s 24(1)(c) should be "construed liberally, and as generously as the language of the section allows". 60 We are not bound by the earlier decision in Richmond in an absolute sense, but we would not depart from it unless we were satisfied that it is clearly or plainly wrong. As the Full Court of this Court said in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [201]: This Court is not bound by its previous decisions, but will only depart from its previous decisions in rare circumstances: Nguyen v Nguyen (1990) 169 CLR 245 at 268-269. In particular, the Court will follow its previous decisions unless convinced that the previous decision is clearly or plainly wrong: Chamberlain v R (1983) 72 FLR 1 at 8-9; Perrett v Commissioner for Superannuation (1991) 29 FCR 581 at 592. In Transurban City Link Ltd v Allan (1999) 95 FCR 553, a Full Court of five judges restated the test, observing that the second Full Court would not refuse to follow a previous decision if only upon the basis that the matter was one on which minds might differ. The second Full Court, in that circumstance, would not have been persuaded that the earlier decision was clearly or plainly wrong. 61 It cannot be said that the decision in Richmond is "plainly wrong". Indeed, we considered it to be correct and applicable in this appeal. As a consequence, we decided that the appeal must be allowed.

should Mr Watkins be given leave to file A notice of contention? 62 Mr Watkins also sought leave to rely upon a notice of contention, to the following effect:

1. That the primary judge erred in finding, at [80], that the reasons given by the Tribunal adequately explained that Mr Watkins' time out of the workforce, and his history of ataxia and headaches, were matters that adversely affected the likelihood that he would be selected for employment as a firefighter and station officer, and were thus factors which contributed to preventing him from working as a firefighter and station officer; and
2. In holding that the non war-caused conditions prevented Mr Watkins from working, the Tribunal erred by having regard to the effect of those conditions in May 2006, rather than during the assessment period from June 2008. 63 We note that, at the hearing, Mr Watkins did not press a foreshadowed cross-appeal but he did seek leave to rely on a draft notice of contention that accompanied his solicitor's letter of 29 January 2015. The Commission opposed any application by Mr Watkins for leave in this regard, noting that he had not sought to file a notice of contention within the time stipulated by r 36.24 of the Federal Court Rules 2011 (Cth) and that he has not filed an application for an extension of time. 64 The Rules provide, in r 36.24, that a notice of contention must be filed within 21 days after the notice of appeal is served. The Commission stated in its written submissions (and it was not disputed) that the notice of appeal was served on 19 August 2014. Mr Watkins is, therefore, well out-of-time. He has not provided any explanation for the delay nor his failure to apply for an extension of time. 65 Whether or not the Court will grant the leave sought, and extend time in which to file the notice of contention in exercise of its discretion to do so, depends on whether this best serves the interests of the proper administration of justice. 66 Mr Watkins indicated that he sought to rely on the contentions set out in his draft notice of contention in his submissions filed on 16 January 2015. At that time he foreshadowed that he would seek to cross-appeal. In reply submissions dated 23 January 2015, the appellant challenged his competence to do so, but also addressed the merits of these additional contentions. 67 The failure to file a notice of contention within the time provided for by the Rules coupled with the lack of any explanation for the delay, not to mention the failure to seek leave to extend the period for doing so until shortly before the appeal was to be heard, militated against the grant of any application for leave to extend time at the hearing of the appeal. 68 In any event, the proposed contentions or issues lacked merit. 69 The Court agrees with the submission made on behalf of the Commission that, at [80], the primary judge, having considered the Tribunal's reasons as a whole, found that they adequately explained that the time Mr Watkins spent out of the workforce and his history of ataxia and headaches were matters that adversely affected the likelihood that the respondent would be selected for employment as a firefighter, and were thus factors which contributed to preventing him from working as a firefighter and a station officer. They were findings of fact open to the Tribunal and the primary judge was correct to find that the reasons of the Tribunal adequately explained its findings, when read as a whole. 70 Additionally, at [74]-[75], the primary judge rejected Mr Watkins' submission that in holding that the non war-caused conditions prevented him from working, the Tribunal erred by having regard to the effect of his health conditions in May 2006 (or in May 2005) rather than at the commencement of the assessment period. 71 As the Commission submitted, contrary to what is contended now on behalf of Mr Watkins, the Tribunal did not confine its consideration of Mr Watkins' ability to work to the earlier time. At [39], of its reasons, the Tribunal referred to the health issues affecting Mr Watkins in May 2005. Then at [40], the Tribunal expressly addressed the position at the beginning of the assessment period, on 31 July 2009, and concluded that, as of that date, shortly after he ceased employment, there were non war-caused factors that were relevant to his ceasing firefighting duties and to his leaving his employment as a firefighter and station officer at age 64. The Tribunal further found that Mr Watkins' age and time out of the workforce would also be likely to rule him out of reappointment to a similar role. 72 In all the circumstances, including the lack of merits in the contentions sought to be raised by Mr Watkins' draft notice of contention, the failure to file a notice of contention within time, the failure to explain the delay in seeking to bring it forward and the failure to seek an extension of time to do so in a timely way, we determined to refuse leave to rely on the draft notice of contention.

conclusion and orders 73 For the reasons given above, we ordered that:

1. The appeal be allowed with costs.
2. The orders (1) and (2) made by the primary judge be set aside and in lieu thereof the application by way of appeal be dismissed with costs.
3. The respondent's application for leave to extend the time to file a notice of contention be dismissed with costs. 74 Our orders were, of course, directed to the judgment and orders under appeal, which were those made on 29 July 2014. We observe that the primary judge did not make a separate order for the respondent to pay the appellant's costs of and incidental to the proceedings before him until 7 August 2014. This order was not the subject of appeal. Accordingly, we would vary our orders of 9 February 2015 with the following effect:
4. The appeal be allowed.
5. Orders (1) and (2) made by the primary judge on 29 July 2014 be set aside and in lieu thereof order that the application by way of appeal be dismissed.
6. The respondent's application for leave to extend time to file a notice of contention be refused.
7. The respondent pay the appellant's costs of and incidental to the appeal. I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kenny, Barker and Rangiah