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No.4 March 2008

Repatriation Commission and Edmonds

TRIBUNAL Federal Magistrates Court, Brisbane
MEMBERS  Wilson FM
DATE OF DECISION 29 January 2008
DECISION Appeal dismissed
ISSUES Entitlement to Special Rate – characterisation of remunerative work the veteran is able to undertake

Facts

A delegate of the Repatriation Commission (Commission) originally determined that Mr Edmonds’ disability pension be increased to 90% of the General Rate.  The decision was set aside on review by the Veterans’ Review Board (VRB) and Mr Edmonds’ disability pension was increased to 100% of the General Rate.  Mr Edmonds’ sought further review by the Administrative Appeals Tribunal (Tribunal). The decision of the VRB was set aside, and the Tribunal substituted its decision that Mr Edmonds was entitled to be paid disability pension at the Special Rate.

Grounds of appeal 

The Commission appealed to the Federal Magistrates Court contending that the Tribunal had erred in law in concluding that Mr Edmonds was entitled to pension at the special rate pursuant to section 24 of the Veterans’ Entitlements Act (VEA). The appeal concerned one issue:

The Commission’s position

The Commission’s submissions were focussed on paragraph [38] of the Tribunal’s reasons:

[38] The Tribunal is satisfied that based on the above judicial reasoning and the applicant’s military training and experience, that warehousing work is related to the logistical training and experience of the applicant. It may not have been of the same level and status of his work in the Army, that was his choice and also, it was the only employment available to him. The Tribunal therefore accepts his two short term periods of employment were "remunerative work" for the purpose of this question.

The Commission’s position was:

The Court’s consideration  

Federal Magistrate Wilson considered that some confusion had crept into the Commission’s understanding of the Tribunal’s reasoning.  His Honour considered that what the Tribunal was saying at paragraph [38] of its reasons was that the type of work sought to be undertaken by Mr Edmonds during the two short periods, characterised as warehouse work, was in the same field of endeavour as work previously undertaken by Mr Edmonds during his military service.

His Honour noted Mr Edmonds’ evidence before the Tribunal that his logistics work in the Army was mainly stores accounting, basically to maintain records of account. He also maintained supervision of the quartermaster’s store. Although in the last 15 years of his service he was involved in high level training, he said that he did storeman work when he started in the Army.

Federal Magistrate Wilson considered that the Tribunal had correctly approached the question by addressing whether the type of work attempted by Mr Edmonds following his retirement from the Army was in the same field of endeavour or of the same type as he had previously successfully performed, in his case in the Army.

His Honour considered that it was overly critical for the Commission to latch onto the use by the Tribunal of the words ‘related to’.  His Honour agreed with Counsel for Mr Edmonds submissions that, fairly read, the Tribunal concluded that warehousing work, or work as a storeman, was in the same field of endeavour as work that Mr Edmonds had previously undertaken in the Army. His Honour concluded that the Tribunal had not introduced a new concept and had addressed itself to the correct inquiry.

His Honour then went on to consider whether that finding was reasonably open to the Tribunal, noting that Counsel for the Commission accepted in submissions that if there had been evidence of Mr Edmonds having undertaken warehousing work successfully in the Army, the Commission’s appeal must fail.

Federal Magistrate Wilson considered Repatriation Commission v Butcher [2006] FCA 811 and the Court’s comments at [42]:

It seems to me that the determination of the type of work the veteran was undertaking, or his or her field of remunerative activity, involves a consideration of the veteran’s qualifications and the work which he or she has in fact undertaken in the past. On occasions, the decision will be a relatively straightforward one, where, for example, the veteran has specialised qualifications and has only ever worked in one field of employment. In other cases, of which this is one, the decision will involve a process of characterisation and it is not necessarily resolved by simply characterising the field of remunerative activity as involving all of the particular types of employment which the veteran has undertaken. Nor will it necessarily be appropriate to include in the field of remunerative activity a particular type of employment performed some time in the past for a short period of time.”

Accordingly, Federal Magistrate Wilson noted that the Court in Butcher had adopted a more general characterisation of the type of work, or field of remunerative activity, that the veteran was undertaking. 

In the present case, his Honour noted that there was evidence available to the Tribunal that Mr Edmonds had undertaken stores work during his Army service, and that this was substantive work:

[32] …during his military service the respondent had acquired skills in logistics, which involved stores work.  Although this work had occurred earlier in the respondent’s career, and he had advanced considerably in the military by the time of his retirement, there is nothing in the evidence before the Tribunal that suggests this part of the respondent’s work history should be ignored for the reasons advanced in Butcher… the respondent’s military career revealed that much of his service was spent in the logistics area, albeit at a higher level than storeman, a position the respondent said was assigned to a lower rank. This demonstrates that stores work was in the same field of endeavour as much of the respondent’s military service…

[33] As Besanko J said, in Butcher, the crux of the test is whether the veteran is now unable to carry out remunerative work that he had successfully undertaken in the past, because of his war caused injury. Here, the respondent in the past had successfully performed the duties, inter alia of a storeman, whilst in that section of the Army. He can no longer perform such duties because of his war caused injury, particularly post traumatic stress disorder.

In his Honour’s view, there was evidence that enabled the Tribunal to conclude:

[34]… that the type of work attempted by the respondent in the two jobs of very short duration was work of a kind that the respondent undertook previously in his military career. It was not necessary in those circumstances, for the respondent to establish that he successfully undertook the work when he attempted to do so following his retirement from active service.
Federal Magistrate Wilson found that the Tribunal considered the relevant test, and reached a conclusion that was open to it on the evidence.  

Formal decision

The grounds of appeal argued by the Commission were rejected. The appeal was dismissed.  

Editorial Note

The Court’s positive reference to Repatriation Commission v Butcher indicates that a distinction is starting to develop in the case law on section 24(1)(c).  Specifically, that a more general characterisation of remunerative work the veteran is able to undertake is required.

While Edmondscase does not mention the decision of the Full Court in Butcher it should be noted that Tamberlin, Nicholson and Tracey JJ agreed with the primary judge’s findings on the section 24 issue.  Specifically, that that the type of work that a person had been undertaking for the purposes of s 24(1)(c) is usually better characterised in general terms.

In a previous edition of VeRBosity (Volume 22 No 4) it was suggested that following Butcher’s1 case the words ‘substantive remunerative work’ in the context of section 24(1)(c) might have a different shade of meaning. Specifically, that ‘substantive remunerative work’ indicates that the type of work has a separate and independent existence from other remunerative work undertaken by the person.  The case of Edmondswould lend support to this view.

Further reading: Please see ‘Special rate cases: 1986 to 2006’ in VeRBosity Volume 22 No 4 atpages 140 to 149 and  VeRBosity Volume 23 No 1 pages 35 to 36 for further discussion regarding Butcher’s case.  


1[2007] FCAFC 36

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