Willis v Repatriation Commission

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 183 of 2011

JUDGE: BROMBERG J DATE: 19 April 2012 PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant ("Mr Willis") is a recipient of a disability pension under the Veterans' Entitlements Act 1986 (Cth) ("the Veterans' Entitlements Act") at 100 per cent of the general rate. On 30 August 2007 Mr Willis lodged a claim for his disability pension to be paid at the special rate. His application was to be determined under s 24 of the Veterans' Entitlements Act. The respondent ("the Repatriation Commission") determined that Mr Willis was not eligible for a pension at the special rate referred to in s 24. The Veterans' Review Board agreed with that determination. Mr Willis then lodged an application for review of the decision of the Veterans' Review Board with the Administrative Appeals Tribunal ("the AAT"). 2 Pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), Mr Willis appealed to this Court from the decision made by the AAT on 8 February 2011 to affirm the decision of the Veterans' Review Board ("the decision"). 3 Mr Willis raised a number of grounds in support of his appeal. The main ground agitated and the only ground of any merit, is the complaint made by Mr Willis that the reasons given by the AAT for its decision are not adequate, and that by reason of that inadequacy the AAT made an error of law. 4 For the reasons that follow, I have determined that the AAT erred by failing to provide adequate reasons for its decision. As a consequence, the AAT's decision will be set aside and the matter remitted to the AAT for reconsideration.

the relevant legislative provisions 5 Section 24 of the Veterans' Entitlements Act is headed "Special rate of pension". The terms of s 24(1) and (2) are as follows: (1) This section applies to a veteran if: (aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and (aab) the veteran had not yet turned 65 when the claim or application was made; and (a) either: (i) the degree of incapacity of the veteran from war caused injury or war caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or (ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and (b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war caused injury or war caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and (c) 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 salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and (d) section 25 does not apply to the veteran. (2) For the purpose of paragraph (1)(c): (a) a veteran who is incapacitated from war caused injury or war caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if: (i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war caused injury or war caused disease, or both; or (ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and (b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.

Failure to provide adequate reasons for decision 6 Mr Willis complained by grounds 1 and 2 of his Notice of Appeal that the AAT did not provide any, or any sufficient, explanation for, nor adequately expose its reasoning in determining his claim and in rejecting his application for a pension at the special rate.

Duty to Provide Adequate Reasons - Legal Principles 7 Section 43(2) of the AAT Act generally imposes upon the AAT the obligation to give reasons either orally or in writing for its decision. A statement in writing of the reasons of the AAT may be requested by a party to the proceeding: s 43(2A). Section 43(2B) provides: Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. 8 The Repatriation Commission accepted that a failure by the AAT to provide adequate reasons for its decision can constitute an error of law. In Dornan v Riordan (1990) 24 FCR 564 at 573 a Full Court of this Court held that a failure to provide adequate reasons is an error of law. Whilst the correctness of Dornan has been the subject of some unresolved debate (see Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 253 ALR 263 at [30]-[31]), there is no basis for me to depart from the principle established by Dornan. 9 There can be no doubt that the grounds of challenge raise a "question of law" as is required to bring an appeal to this Court by s 44(1) of the AAT Act. Although not described as such by Mr Willis's Notice of Appeal, the question of law posed is whether the AAT has complied with its statutory duty under s 43(2) of the AAT Act. 10 In relation to a decision made under the Veterans' Entitlement Act and in considering the adequacy of the reasons given for the decision, McHugh, Gummow, Callinan and Heydon JJ in Roncevich v Repatriation Commission (2005) 222 CLR 115 at [19], asked whether sufficient appears from the judgment of the Tribunal to enable the parties and the Court to understand and deal with the reasoning and decision of the Tribunal. 11 A more expansive observation about the content and purpose of the duty to provide adequate reasons was given in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, where at [69] McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) said: It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. 12 The requirements of s 430 of the Migration Act 1958 (Cth) with which the Court was there dealing with are broadly similar to those of s 43(2B) of the AAT Act. A number of decisions of this Court have applied the reasoning of Yusuf to s 43(2B) of the AAT Act: see the cases cited in Civil Aviation at [29]. 13 The authorities have also made some cautionary remarks. It would be wrong for the courts to construe reasons in any overly critical spirit: ARM Constructions v Deputy Commissioner of Taxation (1986) 10 FCR 197 at 203-204 (Burchett J). Reasons should not be construed in an over zealous fashion: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996)185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). The Court ought not be concerned merely with looseness in language or with unhappy phrasing: Oak Valley (Maralinga) Inc v Aboriginal & Torres Strait Islander Commission (1999) 98 FCR 1 at [22] (O'Loughlin J). There is no requirement that reasons provide an unarguable logical progression to a conclusion: Repatriation Commission v Hendy (2002) 76 ALD 47 at [39] (Whitlam, Emmett and Stone JJ). 14 In Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465, Wilcox J applied what he called the homespun test of Woodward J stated in Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500. His Honour noted that what is required is that the decision-maker articulate the reasons for the decision, including by providing an explanation or particulars of the conclusions reached: at [481]-[483]. In Oak Valley at [26], O'Loughlin J held that it was insufficient for a decision maker simply to set out the conclusions which had been reached without identifying the findings of fact that it made during the course of those deliberations. 15 Section 43(2B) of the AAT Act requires the AAT not only to make specific findings of fact, but to explain what evidence it has accepted or rejected: TelePacific v Commissioner of Taxation (2005) 218 ALR 85 at [50] (Sackville J) and the authorities there cited; and see Narbey v Federal Commissioner of Taxation (2008) 111 ALD 312 at [38] (McKerracher J). In Federal Commissioner of Taxation v Cainero (1988) 15 ALD 368, Foster J analysed the obligation under s 43(2B) of the AAT Act in relation to primary facts. His Honour said at 370: It could not be suggested that the Tribunal was under any obligation to isolate in its reasons every issue of fact and record a specific finding in respect of each of them. It is obviously sufficient, in light of the cases referred to above, and as a matter of common sense, that a sufficient compliance with the requirement of considering all issues of fact and giving adequate reasons occurs when the reasons themselves provide a sufficient indication that the ultimate facts to be decided have been fully kept in mind and that no significant area of primary fact has been ignored. 16 The requirements of s 43(2B) were more recently dealt with in Appellant V324 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259, where at [46] Hill and Allsop JJ accepted that it was necessary to make findings and give reasons in respect of substantial issues on which the case turned. 17 While it is not incumbent upon a judge to deal with every argument or issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue: Hunter v Transport Accident Commission (2005) 43 MVR 130 per Nettle JA at [21]; referred to with approval by Tamberlin, Sundberg and Besanko JJ in Carlisle Homes Pty Ltd v Barrett Property Group Pty Limited [2009] FCAFC 31 at [45]. 18 I considered many of these authorities in Alexander v Australian Community Pharmacy Authority [2010] FCA 189 at [65]-[78] and determined that conclusions as to primary facts which were not the subject of controversy before the decision-maker are unlikely to require explanation. However, conclusions as to significant facts in dispute are likely to require explanation if persons affected by the decision are to be given an understanding of the basis for the decision. That obligation requires that significant areas of primary fact should ordinarily be addressed in order to provide some explanation of the basis upon which the decision-maker has arrived at an ultimate fact.

The Task of the AAT - The Alone Test in s 24(1)(c) 19 In order to assess the adequacy of the reasons provided by the AAT, it is necessary to first understand the task that the AAT was duty bound to undertake in determining Mr Willis's application. Mr Willis's contentions centred upon two aspects of the AAT's decision. The first was dealt with at [38] and [39] of the decision. Those paragraphs dealt with what has often been described as the "alone test" contained in s 24(1)(c) of the Veterans' Entitlement Act. 20 Section 24(1)(c) has two elements. The first asks whether the war-caused incapacity, alone, prevented the veteran from continuing to undertake remunerative work that the veteran had been undertaking. The second element asks whether by reason thereof, the veteran is suffering loss of salary or wages or earnings that the veteran would not be suffering if the veteran were free of the war-caused incapacity. The "alone test" is concerned with the first element. It is to be noted, although not of significance to this case, that an alternative test to the "alone test" is provided by s 24(2)(b). That alternative has often been described as ameliorating the more onerous criterion of s 24(1)(c). The two criteria are separate and distinct though they both deal with the same element - the nexus between the war-caused incapacity and the inability of the veteran to obtain remunerative work. Satisfaction of either criterion will result in the veteran establishing the requisite nexus. 21 The proper interpretation of s 24(1)(c) has been the subject of a great deal of judicial consideration in which differing views have been expressed. Two of the possible interpretations of the words of s 24(1)(c) which comprise the "alone test" were expressed by Dowsett J in Moorcroft v Repatriation Commission (1999) 58 ALD 143 at [20] as follows: They are:- (a) That these words 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) That they are designed to exclude a claim where, notwithstanding such a condition, other factors (including other medical conditions) prevent such employment. 22 Although Dowsett J preferred the first interpretation, the preponderance of authority (which I will follow) supports the second: Cavell v Repatriation Commission (1988) 9 AAR 534 at 538-539; Repatriation Commission v Alexander (2003) 75 ALD 329 at 22; Repatriation Commission v Van Heteren (2003) 75 ALD 703 at [24]; and generally, Flentjar v Repatriation Commission (1997) 48 ALD 1, and Repatriation Commission v Hendy [2002] FCAFC 424. 23 The question raised by the "alone test" is not whether, on its own, the war-caused incapacity prevents the veteran's continued employment. The question is whether apart from the war-caused incapacity, there is another factor or factors which prevent employment. The existence of other factors which prevent the veteran from working has a disqualifying result for an application for a pension at the special rate. The war-related incapacity must be the lone factor which prevents continued employment. That is what is meant by "alone". 24 Another way of re-stating that proposition, which more closely focuses upon the language of s 24(1)(c), is that the alone test requires that the war-caused incapacity is the reason, rather than merely a reason, for the veteran's inability to engage in the remunerative work which the veteran had previously done. If there is another reason which, independently of the war-caused reason, is preventing the veteran from working, the inability of the veteran to engage in remunerative work is not "by reason" of the war-caused incapacity "alone". 25 The assessment to be made asks whether absent the war-caused reason, another reason (or other reasons) is a reason for the veteran's inability to engage in remunerative work: Repatriation Commission v Smith (1987) 15 FCR 327 at 337 (Beaumont J, with whom Northrop and Spender JJ agreed); Byrne v Repatriation Commission [2001] FCA 1134 at [8]-[10] (Gyles J). 26 Although in Byrne, Gyles J was dealing with the alternative test set by s 24(2)(b), his Honour's observations at [8]-[10] are equally applicable to the proper construction of s 24(1)(c). That analysis makes the point that a reason which could stand as an additional and thus a disqualifying reason, is not to be so regarded, when that reason is itself a consequence of the war-caused injury, disease or both. Thus, whilst time out of the workplace and the veteran's location in a remote area were each recognised by Gyles J as having the capacity to be a causative reason for the veteran's inability to engage in work, they were not to be counted because each was a consequence of the war-caused incapacity. The veteran's war-caused injury (PTSD) had been a cause of his move to the remote location and a cause of his time out of work. In the assessment to be made, it is necessary to exclude the consequences of the war-caused incapacity when assessing whether there exists a reason, additional to and independent of the war-caused reason, for the veteran's inability to engage in remunerative work. Thus in Byrne at [10], Gyles J posed the practical approach to the assessment to be made (in relation to the veteran's with war-caused PTSD, bilateral sensorineural hearing loss, osteoarthrosis of the right and left knees and sleep apnoea) as follows: In order to judge the effect of the relevant incapacity, it is necessary to compare the position of the applicant as he is with the position he would be in without the relevant incapacity. In the present case, that requires the formation of an assessment of the work prospects of the applicant as a fifty-one year old man with his characteristics and abilities, who had never suffered from PTSD, bilateral sensorineural hearing loss, osteoarthrosis of right and left knees or sleep apnoea and who is probably not living in Kempsey. That process enables the true effect of war-caused incapacity upon the ability of the applicant to obtain work to be assessed. Similarly, Beaumont J (with whom Northrop and Spender JJ agreed) in Smith 337 put the nature of the task as follows: As has been said, the question posed by s 24(1)(c) is one of hypothetical fact. The Tribunal must attempt an assessment of what the respondent probably would have done if he had none of his service disabilities. The starting point is an examination of the prospects of employment, including self-employment, in southern Tasmania in early 1985 for a healthy sixty-nine year old plumber. 27 In Forbes v Repatriation Commission (2000) 101 FCR 50, at [39] and [40] Nicholson J stated: [39] …The question whether the veteran by reason of the war-caused condition "alone" has been prevented from continuing to undertake remunerative work can only be answered by reference to all 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. [40] … it is possible that the war-caused condition will be by far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension. 28 In those passages Nicholson J seems to be addressing a situation where of itself, a war-caused incapacity is not causative of the preventative effect but a combination of a war-caused incapacity with a non war-caused incapacity is causative. His Honour suggested such a situation would have a disqualifying effect. With respect, the analysis fails to appreciate that the assessment to be made does not look to combinations of the kind contemplated by Nicholson J, because where the war-caused incapacity is not of itself causative of the preventative effect the veterans application will fail and fail for that reason. Insofar as the analysis suggests that the consequences of a war-caused incapacity may be counted in assessing whether a non war-caused incapacity is causative of the preventive effect, the analysis is inconsistent with the reasoning of Smith and Byrne to which I have earlier referred. 29 Finally, in the assessment to be made as to whether the veteran has been prevented from working, it is necessary to identify the work that the veteran had been undertaking. In that respect, and as a number of authorities have stated, it is the type of work which the veteran had been doing, not the veterans last job, which is relevant: Smith at 333; Hendy at [36]; Repatriation Commission v Butcher [2007] FCAFC 36 at [13] (Tamberlin, Nicholson and Tracey JJ).

Consideration of the reasons given by the AAT 30 The AAT's decision identified that the Repatriation Commission had accepted that Mr Willis suffered from the following war-caused medical conditions: Post-Traumatic Stress Disorder ("PTSD"); Bilateral Censorineural hearing loss; Bilateral Tinnitus; Tinea; and Alcohol Dependence, ("Mr Willis's war-caused conditions"). 31 At [4] of its decision, the AAT set out the issues that it needed to consider as follows: Is Mr Willis unable to work for more than 8 hours per day? When and why did Mr Willis stop working? Do Mr Willis's accepted war-caused conditions alone prevent him from working? 32 The AAT's decision is divided into three sections each one headed by one of the three issues identified above. Under the heading "Do Mr Willis's accepted war-caused conditions alone prevent him from working?", the AAT set out paragraphs (a) and (b) of s 24(1). It noted that the parties agreed that Mr Willis met the criterion in s 24(1)(a) and accepted that Mr Willis was unable to work for more than 8 hours per week on the basis of his war-caused conditions. The Tribunal then turned to consider s 24(1)(c). It noted that in Flentjar, Branson J set out the issues posed by s 24(1)(c) and then set out the four Flentjar questions as follows: 1. What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s 24(1)(c) of the Act? 2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work? 3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work? 4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity? 33 Dealing with the first Flentjar question, the AAT found that "the remunerative work undertaken by Mr Willis included labourer, process worker, foreman and handyman". The AAT answered the second Flentjar question in the affirmative. 34 The AAT's reasons then turned to the third Flentjar question and the matter most pertinent to the grounds of challenge here being considered. The Tribunal stated that there "are also other factors to be taken into account in relation to Mr Willis's employability apart from his accepted war-caused conditions". The AAT then set out the comments of Nicholson J at paragraphs [39] and [40] of Forbes, to which I have referred. The AAT then recounted without comment, the evidence of a consultant psychiatrist, an occupational physician and an occupational psychiatrist. Paragraph [38] of the AAT's decision contains the relevant factual findings made. They are as follows: Mr Willis stopped working (in his last remunerative employment) because of his neck and shoulder injury and then the closure of the factory in which he worked; he has an inability to walk long distances and a dislike of hills and stairs; he left school after Year 9 and has no formal qualifications; he does not know how to use a computer; he lives in a relatively remote area and has told the Tribunal that there is little work available; he is 60 years of age; and he has not been in the workforce since ceasing work around 1998. 35 At [39], the AAT set out its conclusion that Mr Willis's war-caused disabilities are not the only factors preventing him from working and thereafter stated that the answer to the third Flentjar question was no. The AAT said: His time out of the workforce, his age, his lack of education and inability to use computers or computerised farm equipment as well as his physical limitations in walking long distances are all factors preventing him from undertaking remunerative work of the types he has previously done. His location in a remote area is also a factor. 36 It would appear that the AAT was satisfied that each of the following factors prevented Mr Willis from "undertaking remunerative work of the types he has previously done": time out of the workforce; age; lack of education; inability to use computers including computerised farm equipment; limited capacity to walk long distances; and location in a remote area. 37 It is not clear from the AAT's reasons whether in assessing those factors as causative, the AAT separated out any contribution made by Mr Willis's war-caused conditions. That was a live issue in the proceeding because there was evidence before the AAT that Mr Willis's war-caused conditions had contributed to his time-out of the workforce and that his war-caused conditions had been a cause of his move to the remote area in which he was located. How the AAT dealt with that evidence is not explained by its reasons. It may well be that given its reference to Forbes, the AAT considered that evidence to be irrelevant because it took a different view of its task to that I have explained at [19]-[26]. Conversely, did the AAT dismiss the evidence? If it did the latter, why was the evidence dismissed? 38 Nor is it clear from the AAT's reasons whether the AAT regarded each of the non-war caused factors it identified as causative on its own or whether it found that the combination of one factor with some or all of the other non war-caused factors prevented Mr Willis from working. 39 Additionally, it is to be recalled that the AAT identified four types of remunerative work which had been previously undertaken by Mr Willis. The types of work identified by the AAT are somewhat diverse and call for different capacities from an employee or a self-employed worker. Did the AAT regard each non-war factor it identified as preventing Mr Willis from working in each type of work that Mr Willis had previously performed? To give an example to illustrate the lack of explanation provided, was Mr Willis's limitation in walking long distances a factor which the AAT regarded as preventing him (either alone or in combination) from working as a foreman, a process worker or as a handyman? If so, why? What evidence supported such a conclusion? By way of further illustration, did the findings that Mr Willis lacked education and was unable to use computers contribute to the conclusion that Mr Willis was prevented from working as a labourer? If so, what was the evidence upon which the AAT relied which supported such a conclusion? 40 The reasons for decision of the AAT failed to explain the connection between the findings made by the AAT that a particular factor (or factors) prevented Mr Willis from working, with the type of work which the AAT regarded Mr Willis had been prevented from performing. It is therefore not possible to discern from the reasons given the attribution accorded to each such factor in relation to the assessment made as to each of the types of work which Mr Willis had formerly undertaken. Whatever attribution was accorded by the AAT must have been based on underlying facts regarded by it as supportive of the conclusion that the particular factor identified was causative in preventing the particular type of employment. But those underlying or primary facts are not stated at all, not even in the most cursory fashion. How the AAT dealt with evidence before it which was relevant to the conclusions expressed at [39] is not explained. 41 Whilst the Repatriation Commission conceded that there is a difficulty with the rolled up approach of the AAT in addressing at [39] of its decision, in a global way, all of the different types of work, the Commission contended that though of short form, the reasons were adequate in circumstances where much of what the AAT relied upon was "admitted" by the evidence given by Mr Willis. 42 I accept that where what is at issue, is not the subject of controversy, the determination of that issue is unlikely to require explanation. However, I do not accept that insofar as Mr Willis gave evidence which supports the conclusions expressed by the Tribunal at [39], he did so by way of an admission or so as to remove the issue concerned from controversy. To give an example, Mr Willis gave evidence that there was not a great deal of work as a farm hand in his area. But the issue as to whether work as a labourer on a farm was potentially available to a healthy person in Mr Willis's circumstances was not confined to that evidence. 43 Evidence about Mr Willis's work as a farm labourer and his prospects of obtaining such work was given by a Mr Cunningham. Mr Cunningham had used Mr Willis as a farmhand on an intermittent and periodic basis over the prior six or seven years whilst Mr Willis lived in a cottage on his dairy farm. In the periods when Mr Willis was able to work, Mr Willis worked one or two hours a day. The types of duties he performed ranged from tending vegetables, driving a truck on the farm and distributing hay or other feed to cattle and pigs. Mr Cunningham thought that when Mr Willis's mental state was good, Mr Willis could perform light duties in an excellent manner. In those circumstances, he could do a lot of work on Mr Cunningham's farm and could perform similar work for other farmers in the district. Mr Cunningham believed that there was a demand in his area for a reliable worker performing agricultural labour. The evidence of Mr Willis about the low demand for farm labourers was put to Mr Cunningham. He accepted that the demand was dwindling in the immediate area because of the prevalence of hobby farms, but that in the general area (within a 40 minute drive) he thought work was available for part-time farm labourers. He had employed a part-time farmhand himself who had taken over many of the tasks previously performed by Mr Willis. 44 How the AAT dealt with that evidence is not explained by its reasons. The issue was of sufficient significance to warrant at least a rudimentary explanation as to why the issue was lost by Mr Willis. 45 In my view, the AAT's reasons failed to provide a sufficient explanation of the conclusions the AAT reached at [39] of its decision. There is a failure to identify findings of fact which underlie those conclusions, including a failure to explain the evidence accepted or rejected. There is also a failure to expose the reasoning process which led to the conclusions reached in a manner sufficient to enable the parties and the Court to understand the AAT's reasoning. I am satisfied that, in this respect, legal error is established. 46 The AAT reasons also failed to adequately expose its reasoning in relation to the second element of s 24(1)(c) which deals with the requisite nexus between the war-caused incapacity and the veteran suffering a loss of salary, wages or a loss of earnings on his or her account. The test propounded by this element of s 24(1)(c) is to be construed by reference to the provisions contained in s 24(2)(a), as the opening words of s 24(2) say. 47 The only part of the AAT's decision which appears to deal with this second element of s 24(1)(c) is [40] of the decision. That paragraph contains three findings of fact followed by a finding "that Mr Willis fails to satisfy s 24(2)(a) of the Act". No reference is made to s 24(1)(c) or the terms of s 24(2)(a). No reference is made to the task required of the AAT in addressing this element. 48 The factual findings which are stated, address why Mr Willis ceased work in a particular position, why his attempts to work as a gardener were hampered, and that Mr Willis had received a disability pension for more than a decade. 49 The relevance of those factual findings to the test raised by the second element of s 24(1)(c) and the reasoning which led to the AAT's conclusion, is neither expressed nor apparent. It may well be that the AAT was working under the misapprehension that s 24(2)(a)(i) and (ii) are addressing the reason why the last remunerative position held by the veteran came to an end, rather than addressing why the veteran ceased to be engaged in the type of remunerative work that the veteran had been undertaking: see [29] above.

the other grounds of appeal 50 The third ground of appeal pressed by Mr Willis is that the AAT misconstrued the evidence of Dr R Horsley and that of Mr Willis in relation to difficulties with Mr Willis's feet and its consequences for his capacity to work. The finding of the Tribunal which was here challenged was not identified in either the Notice of Appeal or in the submissions made. I presume it to be the finding at [39] of the decision that Mr Willis had physical limitations in walking long distances. A factual finding based on a misconstruction of the evidence is not amenable to challenge in an appeal restricted by s 44 of the AAT Act to questions of law. I am not satisfied that any question of law has been raised by this ground and it must be rejected. 51 Ground four of the Notice of Appeal fails to identify the error Mr Willis seeks to challenge. The submissions made shed little light on the intended challenge. It was asserted that the AAT treated the termination of Mr Willis's last employment with a small goods manufacturer as the cessation of his remunerative employment all together. The submission hinted at an error of construction, but failed to identify which provision had been misconstrued and what was the asserted error of law. The Court was left to speculate as to what error was really being agitated. I decline to do so. This ground must also be rejected. 52 Ground five and the submissions made in support of it were equally uninformative. The most I can discern from the submissions made is a complaint that no consideration was given in the AAT's reasons as to why the AAT concluded that non-war factors precluded Mr Willis performing light to moderate duties in a factory. I have dealt with the inadequacy of the AAT's reasons under grounds one and two.

disposition 53 In light of my conclusion that by failing to provide adequate reasons for its decision the AAT erred, I will make the following orders: 1. The appeal be allowed. 2. The decision of the Administrative Appeals Tribunal of 8 February 2011 be set aside. 3. The case be remitted to the Administrative Appeals Tribunal to be heard and decided again. 4. The respondent pay the applicant's costs of the appeal. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.