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No. 7 September 2009

Hopkins v Repatriation Commission

[2009] FCA 1037

COURT Federal Court, Adelaide
JUDGE Mansfield J
DATE OF DECISION 16 September 2009
DECISION Appeal dismissed
ISSUES Meaning of “ceasing to engage in remunerative work” in s 24(2)(a)(i)


Mr Hopkins claimed a pension under the Veterans’ Entitlements Act 1986 (VEA) in respect of a number of conditions. The Commission accepted the conditions and decided that Mr Hopkins was entitled to pension at 100% of the General Rate. The decision was affirmed by the Veterans’ Review Board. Mr Hopkins then sought review by the Administrative Appeals Tribunal (Tribunal).  He appealed from the decision of the Tribunal to the Federal Court.

The Tribunal’s reasoning

The key issue for consideration before the AAT was whether Mr Hopkins met the qualifying criteria specified in section 24(1)(c) of the VEA. The Tribunal approached this issue by way of the four questions set out in Flentjar v Repatriation Commission (1997) 48 ALD 1.  While the first two questions were answered uncontroversially, there was also the issue as to the date Mr Hopkins ceased to engage in remunerative work for the purposes of section 24(1)(c).

In respect of this issue Mr Hopkins claimed that while he has received a redundancy payment on 28 November 2003 he had applied over 100 times for employment, up until in 2007, when he received a report from the Veterans’ Vocational Rehabilitation Scheme indicating that he was not suitable for their services.

The Tribunal held that Mr Hopkins ceased to engage in remunerative employment on 28 November 2003, the phrase used in s24(2)(a)(i). It found that he ceased to engage in remunerative employment at that time because he was retrenched, so that his reasons for doing so were other than his incapacity from his war caused condition. Further, in terms of s24(2)(b), the Tribunal found that Mr Hopkins was not genuinely seeking to engage in remunerative work at any time during the assessment period.

Grounds of appeal

Mr Hopkins contended that the Tribunal had erred in law in reaching the conclusion that he ceased to engage in remunerative work on 28 November 2003, because it did not make the necessary findings of fact to support that conclusion. Specifically, it had failed to make findings as to whether Mr Hopkins had sought employment after 28 November 2003.

The Court’s Consideration

Justice Mansfield considered that the Tribunal did not fail to make the findings of fact required to determine Mr Hopkins’ application.  It was required to determine when Mr Hopkins had ceased to engage in remunerative work. It decided that question of fact.  Further, his Honour noted the following:

Formal decision

Justice Mansfield was satisfied that the error of law asserted by Mr Hopkins was not made out. As such, his application was dismissed with costs.

Editorial Note

Section 24(2)(a) provides that a person will not be able to satisfy the “loss of earnings” test in section 24(1)(c) if something other than his or her accepted disabilities is also stopping the person from working. In this case, the Tribunal took the view that Mr Hopkins had ceased to engage in remunerative employment because he was retrenched. 

Genuinely seeking work etc

The alone test in section 24(1)(c) is ameliorated by s24(2)(b) which provides that if the veteran is under 65 years, has not been engaged in remunerative work and satisfies the Commission that he or she has been genuinely seeking such work, and would have continued to do so but for the incapacity from the war caused condition, and the war caused condition is the substantial cause of his or her inability to obtain that remunerative work - then the veteran shall be treated as having been prevented by reasons of the incapacity from continuing to undertake the remunerative work the veteran was undertaking.

The Full Court’s decision in Leane v Repatriation Commission [2005] FCAFC 83, provides guidance on the issue of “genuinely seeking work”.  Firstly, the person must be genuinely seeking to engage in remunerative work during the assessment period: see [30]-[32]. Further, the decision maker must consider the subjective intention or purpose of the claimant - what is required is that the claimant must honestly be trying to engage in remunerative work: see [28].

In this case, the Tribunal rejected Mr Hopkins’ claim that he made over 100 applications, because he had not retained any copies of the applications. However, it is important to note that while there will usually be objective evidence of a person ‘genuinely seeking’ work, such evidence is not essential.  In Leane, the full Court said:

It may be accepted that, in the ordinary course, a person in the position of the Veteran would have difficulty in establishing that he or she was honestly trying to engage in remunerative work unless there were some ‘objective signs of active pursuit of remunerative work’. However, it would be wrong to turn the practical issue of how a person might establish his or her case into some legal pre-condition…

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