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Repatriation Commission v Connell

[2011] FCAFC

COURT Federal Court, Sydney
JUDGE Marshall, Downes and Bromberg JJ
DECISION The appeal was dismissed
ISSUES Whether in reviewing the decision of the Board, the tribunal failed to properly construe the provisions of S23(1)(c)  of the Act.


The Tribunal set aside a decision of the Veterans’ Review Board and considered that Mr Connell should be paid at the Intermediate Rate of pension. The Repatriation Commission appealed this decision to the Federal Court. Although, the application arose in the original jurisdiction of the Court the matter was referred to a Full Court for hearing and determination pursuant to S44(3)(b) of the AAT Act.

The matter before the Full Federal Court concerned the proper construction of the provisions of S23(1)(c) of the Act and in particular the proper meaning of the words prevented from continuing to undertake remunerative work that the veteran was undertaking.

Mr Connell gave evidence before the Tribunal that his post traumatic stress disorder had become worse since his holiday to Vietnam and he had greater difficulty concentrating. He worked as a self employed painter and in a good week he would work about 19 hours some weeks not at all.

The Tribunal was reasonably satisfied that Mr Connell’s war caused incapacity led to a loss of earnings. The Commission argued that Mr Connell could not satisfy S23(1)(c) because he continued to undertake the same remunerative work that he was undertaking before he suffered a loss of earnings by reason of his incapacity.

The Tribunal said that s23(1)(c) does not require that the veteran must be prevented by his war caused injury or disease from continuing to undertake any remunerative work of the kind previously undertaken. Rather the requirement in paragraph (c) focuses on the loss of salary, wages or earnings suffered as a result of the incapacity. It is the financial loss suffered by the veteran by reason of his or her reduced capacity to work as a result of the war caused injury or disease for which the veteran is compensated.                                            

Grounds of appeal

The Repatriation Commission referred the Court to the judgement of the Full Court in Peacock v Repatriation Commission (2007) 161 FCR 256 where the Full Court said:

The difference between the total and permanent incapacity required for the special rate and the incapacity required for the intermediate rate is that , in the former, the incapacity must render the veteran incapable of working for more than eight hours per week and, in the latter, of working otherwise than on a part time basis. The Commission submitted that S23(1)(c) contained 3 distinct elements;

Counsel for the Repatriation Commission referred to Flentjar v Repatriation Commission where the court referred to the following four questions:

  1. What was the “remunerative work” that the veteran was undertaking?
  2. Is the veteran, by war caused injury or disease , or both, prevented from continuing to undertake that work?
  3. If yes to (2) is that injury, disease or both, the only factor or factors preventing the veteran from continuing to undertake that work?
  4. If yes to (2) and (3) is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of earnings that he would not otherwise be suffering?

Counsel for the Repatriation Commission contended that the four questions in Flentjar reflected the proper construction of S23(1)(c) as well as s24(1)(c) and should have been posed and answered by the Tribunal and that the Tribunal failed to apply S23(1)(c) in accordance with these terms.

The Court’s Consideration

The Court considered the sole ground of appeal advanced by the Commission was: Having determined that the respondent was continuing to work as a painter, the Tribunal purported to find that he was nonetheless “ prevented from continuing to undertake remunerative work that [he] was undertaking” within the meaning of the expression in S23(1)(c) of the Act.

The court found that ground of appeal to be misplaced.

The live issue before the Court was  whether the words “prevented from continuing to undertake remunerative work that the veteran was undertaking” has the effect that if the veteran was undertaking a particular type of work such as painting and still continued to perform that type of work, albeit on a restricted basis part of S23(1)(c) is not satisfied.

The Commission contended the expression “ remunerative work” is to be read as though it said “ all remunerative work”. The contention also equates the word “ work “ with occupation. A plain reading of the provision does not support that contention. It would be erroneous to equate “work” with occupation because “ remunerative work” is defined in S5Q(1) of the Act. On the facts of the case it is clear that Mr Connell was prevented for continuing some of the remunerative activities that he would be undertaking.

In the context of the beneficial nature of the Act, “ remunerative work” should not receive a restrictive interpretation. There is no valid reason to confine the expression to work of a particular type. “ Remunerative work that the veteran was undertaking” should not be confined to the actual type of work involved but should also be referrable to its nature and quality.
We do not consider that a worker must be working full time prior to the worker becoming entitled to payment at the intermediate rate.

The veteran is prevented from undertaking remunerative work that he was undertaking namely, the work he was undertaking in the 15 hours each week which he can no longer work.

The construction favoured by the Commission of the contentious part of S23(1)(c) in issue on this appeal would have the effect of imposing such a restriction on a veteran who is under 65 when the legislation have and did not impose such a restriction on those veterans as it has with older veterans.

There was no error of law committed by the Tribunal.


Appeal was dismissed with costs.

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