Wright v Repatriation Commission

legislation 8 The Act requires the Commonwealth to pay a Part II pension where a veteran has become incapacitated from war-caused injury or war-caused disease: see s 13. When a veteran makes a claim for a pension under s 14 the respondent must determine the claim under s 19. If the veteran is found to be suffering war-caused incapacity the respondent must assess the rate at which the pension would have been payable during the assessment period and the rate at which the pension is payable: see ss 19(6) and 19(5C). 9 The expression "assessment period" is defined in s 19(9) to mean the period starting on the application day and ending when the claim or application is determined. In this case the "application day" is the date the claim was determined on 2 August 2004. Pensions under Part II of the Act may be paid at four rates, depending on the veteran's circumstances. The first is a general rate provided for by s 22, which also allows for an extreme disablement adjustment. There is an intermediate rate provided for by s 23, and a special rate referred to in s 24. . 10 The present appeal relates to eligibility for the special rate, and in particular to the provisions of s 24(1)(c). The relevant provisions of s 24 are as follows: "24 Special rate of pension (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 has 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; … (2) For the purpose of paragraph (1)(c): … (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 too 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." (Emphasis added)

reasoning of AAT - special rate 11 The reasoning of the AAT in relation to the claim for payment at the special rate is set out in pars [71]-[76] of the AAT reasons, which read as follows: "ASSESSMENT - SPECIAL RATE 71. The criteria for assessment of a disability pension at the special rate are detailed in section 24 of the Act. After consideration of all the material the Tribunal finds that the Applicant satisfies section 24(1) (aa) of the Act in that he had made a claim under section 14 of the Act, section 24(1) (aab) of the Act in that he was less than 65 years of age at the time of claim and 24(a)(1) of the Act in that his degree of incapacity from war-caused injury and/or disease had already been determined at 100 per cent of the General Rate. 72. In addressing section 24(1)(b) of the Act the Tribunal notes the following: a) The Veterans' war-caused injuries/diseases are: • bilateral sensorineural deafness • bilateral tinnitus • bronchitis and emphysema • Alcohol dependence • Chronic pancreatitis • diabetes mellitus • drug dependence.

b) the issue of remunerative work: (i) in accordance with section 28 of the Act the Tribunal concludes that the kinds of remunerative work which the Veteran might reasonably undertake is remunerative work associated with maintenance of particular kinds of machinery, general labouring, art teacher and artist; (ii) The Tribunal acknowledges that the term remunerative work is defined in section 58(1) of the Act as including any remunerative activity. The Tribunal in turn acknowledges the Federal Curt [sic] decision in Banovich v Repatriation Commission (1986) 9 ALN 223 in which the term remunerative work is stated to be used in context which indicates an intention to refer to work generally. Further, the Tribunal acknowledges the definition of "work" in the Shorter Oxford dictionary as "action involving effort or exertion directed to a definite end especially as a means of gaining one's livelihood";

(iii) The Tribunal is mindful that the Applicant lodged his claim under section 14 of the Act on 26 April 2002. The Tribunal also notes that the Applicant held an exhibition of his paintings and ceramics at St Albans Gallery in September/October 2002 and two paintings in an exhibition entitled Kaleidoscope in 2003. … It is evident to the Tribunal that the Applicant must have pursued artistic work activity prior to the solo exhibition in September/October 2003 and that it was [his] intention to receive remuneration for such activity. (iv) The Tribunal also notes that the Applicant received a service pension (invalidity) from 19 January 2000. The Tribunal notes the quantum of remuneration from the solo exhibition that the Applicant would have received was $2295 less commission …, while the Tribunal is unaware as to whether further paintings have been sold (v) The Tribunal is aware that the Applicant's view of his current artistic activities is somewhat disparaging. The Tribunal, while aware that the Applicant intermittently seeks to pursue his natural artistic talents concludes that on the evidence before the Tribunal the artistic work performed by the Applicant since his application on 26 April 2002 is no more than an expression of his talent and certainly not performed with the intention of gaining a livelihood. While noting that the Applicant may have received some financial returns from the sale of his art in September/October 2002, the Tribunal concludes that such a financial return is consistent with an individual carrying on a pursuit of individual preference, namely a hobby with the financial return assisting in meeting the financial outlay for the material associated with the hobby activity. (vi) Accordingly the Tribunal concludes that the Applicant did not undertake any remunerative work from his date of application. Further, the Tribunal concludes that there is no evidence to suggest that the Applicant has been genuinely seeking to engage in remunerative work since being granted his service pension (invalidity) from 19 January 2000. (vii) While argument could be made that the exhibitions in 2001, 2002 and 2003 by the Applicant were attempts by the Applicant to genuinely seek to engage in remunerative work, such argument would involve an acceptance that the solo exhibitions and the activity involved in preparation for such were indeed remunerative work activities. With such a designation the Applicant's claim for a special and/or intermediate rate would fail, as it is evident that he did undertake such activities and did receive payment for his activities. (viii) The Tribunal concludes that the Applicant satisfies section 24(1)(b) of the Act, in that the Applicant's accepted war-caused diseases/injuries alone prevent him from undertaking remunerative work for periods aggregating more than eight hours per week. In so finding the Tribunal accepts the opinions of Drs Hills, Burns, Dinnen and White and Professor Mattick. 73. In addressing sections 24(1)(c) and 24(2) of the Act, the Tribunal has already considered and concluded that there is no evidence to suggest that the Applicant has been seeking to engage in remunerative work since he received his service pension (invalidity) on 19 January 2000. Accordingly the Tribunal concludes that the substantial cause provisions contained within section 24(2)(b) are not available to the Applicant in this matter. 74. The Tribunal has already detailed the Applicant's war-caused diseases and/or injuries. The Tribunal also notes that the Applicant suffers from the following non accepted conditions:

• cervical spondylosis, with left foraminal narrowing at both C5-C6 and C6-C7 - causing neck pain and associated with loss of sensation and paresthesia in the left hand; • bilateral carpal tunnel syndrome - multiple operations, with pins and needles in his left hand - drops things from time to time; • arthritis in shoulders and low back - experiences pain in his low back, which radiates to his legs and is only able to walk 50 metres; • bilateral conductive deafness. 75. The Tribunal, mindful of the decisions in Forbes v Repatriation Commission (2000) 171 ALR 131; [(2000) 101 FCR 50] and Flentjar v Repatriation Commission (1997) 48 ALD 1 concludes that the Applicant does not satisfy sections 24(1)(c) and 24(2) of the Act. The reason for this finding being that the Applicant has been prevented from continuing to undertake remunerative work because of both his war-caused diseases/injuries and his non accepted conditions, which prevent him from satisfying the alone test. The non accepted conditions include conditions which have effect [on] the Applicant's inability to work or to obtain and hold suitable remunerative employment. That such conditions have employment consequences is evident from the nature of the conditions and the outline of the effects of same as nominated in the reports of Drs Mills and Burns and the clinical records of Dr. Mossely. 76. The Tribunal concludes that the Applicant does not satisfy the requirements for payment of a pension at the special rate. For similar reasoning the Tribunal concludes that the Applicant is not entitled to payment of a pension at an intermediate rate pursuant to section 23 of the Act. Further, the Tribunal concludes that the Applicant does not satisfy the requirements for payment of extreme disability adjustment pursuant to section 22(4) of the Act in that the Applicant does not have lifestyle rating of 6." (Emphasis added)

12 In Flentjar at 4-5, Branson J (with whom Beaumont and Merkel JJ agreed) posed the following four questions as raising the relevant issues for consideration under s 24(1)(c) of the Act 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?" 13 In the present case there a factual finding against the applicant in respect of question 3 at par 75 of the AAT reasons.

REASONING 14 Mr Wright submits that the AAT has erred in law because it reflects contradictory findings. The submission is that its findings at par 13 in relation to s 24(1)(c) that the applicant was not entitled to payment of disability pension at the special rate because non-accepted disabilities of cervical spondylosis, bilateral carpel tunnel syndrome and bilateral conductive deafness also contributed to the appellant's inability to undertake remunerative work is contrary to its conclusion at par 72 that the applicant satisfies s 24(1)(b) of the Act in that the applicant's war-caused diseases/injuries alone prevented him from undertaking remunerative work for periods aggregating more than eight hours per week. 15 The short answer to this submission is that on a proper analysis the two findings are not inconsistent. This is because a finding that an applicant satisfies subsection s 24(1)(b) of the Act goes to the nature and level of incapacity by which ability to undertake remunerative work is to be assessed. If the character and effect of the incapacity is such as to render the veteran incapable of undertaking remunerative work for a period aggregating more than eight hours per week then condition 24(1)(b) is satisfied. The next and distinct step is to proceed to consider the requirements of ss 24(1)(c) which is concerned with the causation of the veteran's inability to continue with the remunerative work that he or she was previously undertaking. The two findings are separate and complementary. They pose different hurdles which the veteran must surmount. The finding that the prevention from continuing to undertake remunerative work is not caused solely by war-caused injury or war-caused disease is a different and separate finding from a requirement that the nature of the incapacity is such that a person cannot work for more than eight hours. Accordingly, this submission is not accepted. 16 A second submission is that the AAT erred in adopting the Shorter Oxford Dictionary definition of "work" as action involving effort or exertion directed to a definite and especially as a means as gaining one's livelihood. It is said that to use this dictionary definition of "work" is contrary to, and unduly restrictive of, the definition of "remunerative work" in s 5Q of the Act, which is simply that remunerative work includes any remunerative activity. The language, innocent of any gloss, denotes any activity which provides remuneration. The applicant submits, and correctly so in my opinion, that the definition is not restricted to an action that is carried out with the intention of gaining one's livelihood. This erroneous gloss on the statutory definition is imported into the AAT's reasons and applied in par 72(b)(v), when the conclusion is reached that although Mr Wright may have received some financial returns from the sale of art in 2002, such financial return was consistent with an individual carrying on a "hobby" with the financial return assisting in meeting the financial outlay for the materials. In my view, in so far as this definition was applied it was an error. 17 However, this error had no significant impact on the outcome and does not provide a reason for setting aside the decision: cf Cavell v Repatriation Commission (1988) 9 AAR 534 at 539 per Burchett J; Conway v Repatriation Commission (1988) a6 ALD 770. 18 After referring to its conclusion that Mr Wright had been carrying on a hobby, the AAT found that Mr Wright satisfied the requirements of s 24(1)(b). 19 However, the real difficulty faced by Mr Wright in this case is that the AAT made a factual finding in relation to ss 24(1)(c), which is fatal to Mr Wright's case. It found at par 75 that Mr Wright was prevented from continuing remunerative work because of both his war-caused diseases and injuries and the non-accepted conditions. In other words, the non-accepted conditions were a contributing cause to his inability to work or obtain and hold suitable remunerative employment. This finding is supported by the medical evidence referred to in that paragraph. On this finding Mr Wright could not satisfy the "alone" test in s 24(1)(c) because the accepted conditions alone did not lead to him being prevented from undertaking remunerative work. There were other non-accepted conditions which were causative in addition to the accepted war-caused conditions. It is essential that the accepted conditions on their own must lead to the prevention: see the Full Court decision in Repatriation Commission v Hendy (2002) 76 ALD 47 at [37]. 20 Accordingly, Mr Wright does not satisfy the "alone" test in s 24(1)(c), which is an essential requirement, and therefore his claim must fail regardless of whether the AAT was correct in characterising his artistic activities as a hobby after the application date. 21 Another matter raised by counsel for the respondent is that if the painting and other artistic activities were to be regarded as remunerative work then there is evidence and there are findings in the AAT reasons that Mr Wright in fact continued to carry out artistic activities during the assessment period, which ended on 2 August 2004. The AAT notes at par 72 that Mr Wright obtained financial return form his artistic activities in this period although it suggested that they went to assist in the purchase of materials. It does not find that the artistic activities did not result in payment, or that all the moneys were used in the purchase of materials. 22 Finally, counsel for Mr Wright submits that having made the finding that Mr Wright's artistic activity was a "hobby", the AAT erred in not considering whether Mr Wright was prevented by war-caused injury or disease from engaging in remunerative activity as a teacher. He had previously engaged in some part-time art teaching on a casual basis before the commencement of the assessment period, but had ceased this activity about five years before that period commenced. It is said that when considering, under s 24(1)(c), whether Mr Wright was prevented from continuing with remunerative work, the AAT should have determined whether the war-caused injury or disease prevented him from continuing to work as a teacher. It is said that this question was not addressed and should have been considered. 23 In the present case, Mr Wright was not, on the AAT findings, engaged in any remunerative work as at the application date and had not then been so engaged for over five years. It is artificial in these circumstances to suggest that consideration should have been given to the question whether he could have continued remunerative work as a teacher. In fact, the AAT found that Mr Wright was prevented from continuing remunerative work in general, in part due to factors other than his war-caused diseases and injuries. At par 72 the AAT identified what it considered to be appropriate earlier remunerative work and this identification included work as a teacher. 24 The circumstances in this case are quite different to those in Starcevich v Repatriation Commission (1987) 18 FCR 221, because in that case the veteran had been forced by war-caused illness to give up his preferred occupation of farming, and had thereafter taken up other work when a war-caused injury prevented him from working at a new site where his employer had required him to work. In the present case, the evidence indicates there was no suggestion of Mr Wright taking up teaching again. It further appears that Mr Wright had voluntarily abandoned any prospect of working as a teacher and there was no indication that this decision had been attributable to war-caused injury or disease alone. 25 On the case that Mr Wright presented to the AAT, Mr Wright was said to have been engaged in remunerative artistic work, and it is clear that this artistic work had continued during the assessment period, although to a lesser extent than previously, largely because of his alcohol problems. In those circumstances, in addition to the fact that the "alone" test was not satisfied, the requirement that Mr Wright had been prevented from continuing remunerative work has not been satisfied. As Hill J pointed out in Repatriation Commission v Haskard (2002) 126 FCR 1 at [31]: "Either the veteran is or the veteran is not prevented from continuing to undertake the last paid work he undertook. If that last paid work was as here, acting as a property valuer on his own account, the question to be asked is whether that last paid work has ceased or whether it has continued. On the facts here it has not ceased but continued. All that has happened is that the quantity of work has declined but that does not mean that the work itself has ceased." 26 These remarks are apposite to the present circumstances because the evidence here indicates that Mr Wright continued to engage in his artistic work during the assessment period, and had not ceased, although the amount of artistic work was substantially diminished. On Mr Wright's case his last paid work was as an artist. 27 For the above reasons, I consider that the application should be dismissed. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate: Dated: 14 January 2005 Counsel for the Applicant: Neale Dawson

Solicitor for the Applicant: Legal Aid Commission of New South Wales

Solicitor for the Respondent: Australian Government Solicitor