Van Ewijk v Repatriation Commission

Van Ewijk v Repatriation Commission - [2004] FCA 17 - FCA 2004 case summary — Zoe

[11]

Background to the appeal 3 The applicant was born on 27 August 1946. He was conscripted into the Australian Regular Army by way of the National Service scheme from 27 May 1968 and was discharged on 26 May 1970. His service included a period of service in Vietnam from 9 April 1969 to 5 March 1970. The applicant's accepted service related disabilities are: post traumatic stress disorder ('PTSD'); gastro-oesophageal reflux disease; hypertension; alcohol dependence or alcohol abuse; diabetes mellitus; ischaemic heart disease; chronic solar skin damage; and bilateral sensorineural hearing loss. The applicant's claim for a disability pension and medical treatment was lodged on 12 August 1999. 4 The applicant's employment history, including his attempts to gain employment and his medical history are described in detail at [13] - [37] of the Tribunal's reasons. For present purposes it is sufficient to say that from 1962 to 1967 the applicant was an apprentice fitter and turner with BHP in Newcastle. On his return from Vietnam he again worked with BHP as a marine engineer from 1971 but was dismissed in 1977 because of excessive drinking. From 1978 to 1979 the applicant was a marine engineer with Dublin Shipping in Ireland. From 1980 to 1981 he was a partner with Mr Harry Jenkins in a fishing business. His duties in the partnership seem mainly to have involved using his skills as a marine engineer to keep the vessel in good order. Following that he worked for six months in New Guinea as a slipway superintendent. During this period he had good relations with the local workers but not with the expatriate workers. He was unemployed during 1982 but from 1983 he worked as a marine engineer with Condreco Dredging in Brisbane until he was made redundant in 1987. From late 1988 to 1991 the applicant was a marine engineer with Pioneer Dredging in Brisbane. 5 In October 1991, whilst working for Pioneer Concrete (Qld) Pty Ltd ('Pioneer') the applicant injured his back when he jumped onto a barge and slipped on some gravel on its deck. He has not worked since he sustained that injury. On 10 March 1992 he was advised that his job with Pioneer could no longer be held open for him and was retrenched. The applicant received workers' compensation payments from 1991 to 1993. He gave evidence that he made several attempts to start his own business but was unable to do so either because the ventures contemplated were not feasible or he was not able to raise the necessary capital.

[24]

The Tribunal's decision 7 Before the Tribunal it was not in contention that the applicant satisfied the special pension criteria in s 24(1)(a) and (b) of the Act and, on this basis and on the material before it, the Tribunal so found. The respondent submitted however that the applicant did not satisfy the criteria in s 24(1)(c) of the Act or the ameliorating provisions of s 24(2)(b) because his inability to engage in remunerative work was not caused by his war-caused disabilities. It was also submitted that the applicant ceased to engage in remunerative work because of his back injury and consequently he could not, pursuant to s 24(2)(a), satisfy s 24(1)(c) of the Act. 8 The applicant submitted that his incapacity for work was a result of his PTSD rather than his back injury and that he therefore satisfied s 24(1)(c). In respect of s 24(2)(a) the applicant submitted that the loss of his job with Pioneer (see [5] above) is not the crucial factor. Rather, the question is whether his incapacity for remunerative work, whatever it be, resulted from his war-caused disabilities, relevantly, PTSD. The applicant contended that although he may have lost his job with Pioneer because of his back injury, his present inability to undertake remunerative employment resulted from PTSD which was a consequence of his service in Vietnam. Conversely the respondent attributed the applicant's difficulties to his back condition, lack of skills, tightness in the labour market and lack of business capital. 9 The Tribunal accepted that the applicant has trade qualifications and experience as a fitter and turner in the field of marine engineering and as a marine engineer and supervisor of ship maintenance, as well as experience in conducting small business ventures related to the marine environment. The Tribunal noted that it needed to bear in mind these types of work in determining whether the applicant's war-caused disabilities were the cause of him ceasing to engage in remunerative work and whether they prevented him from continuing to undertake or seek remunerative work. 10 The Tribunal considered each form of employment mentioned at [9] above. It concluded that the applicant ceased work with BHP and in the fishing partnership because of his alcoholism which was accepted as war-caused. With respect to all the other forms of employment, however, the Tribunal took a different view and held that the applicant's employment had ceased for reasons unrelated to his war-caused disabilities. In relation to the applicant's position in New Guinea the Tribunal referred to his dislike of the expatriate community and its way of life. It said that the applicant's attempt to commence his own business failed because of commercial difficulties, such as lack of capital, not his war-caused disabilities. Finally, the Tribunal was satisfied that the applicant's employment with Pioneer Concrete ceased because of his back injury.

[42]

In TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 Gummow J, at 178, contrasted s 44(1) with the old s 196 of the Income Tax Assessment Act 1936 (Cth). That section provided for appeals from the Board of Review which 'involved' a question of law: 'The result was that if some question of law was involved, the whole of the decision of the Board was open to review, not merely the question of law. … That is to say, if the condition as to jurisdiction were met, (that is there was a question of law involved) the whole of the "matter" or controversy between the taxpayer and the Commissioner came before the court. This no longer will be the case with appeals brought to this court under s 44 of the AAT Act. The existence of a question of law is … not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself…' 18 In the light of these comments and the frank concession of counsel noted at [16] above, it is difficult to see how the jurisdiction of the Court under s 44(1) is enlivened. If the applicant's case amounts to an invitation for this Court to engage in merits review it must fail. 19 The applicant's counsel submitted that although the Tribunal accepted the medical evidence it did not properly consider this evidence and the failure to do so led the Tribunal to the wrong conclusion. In other words, it was submitted that the Tribunal has not engaged in the reasoning process necessary to sustain its conclusion. The applicant's argument is essentially that, on the evidence, the Tribunal could not, had it properly performed its task, reached the conclusion that it did. 20 A similar claim to that made here was made in Repatriation Commission v Hendy [2002] FCAFC 424. In relation to a claim that the Tribunal in that case misunderstood the medical evidence or failed to give adequate reasons explaining the process by which it reached its decision, the Full Court said at [33]: 'While it may be an error of law for an administrative decision-maker to fail to give proper, genuine and realistic consideration to the question before it, reaching an erroneous conclusion after a genuine consideration of the evidence is not an error of law.'

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