Veterans' Review Board
Home | About the VRB | Contact us | Members and Staff | Publications | Factsheets | ADR trial | Links | Notices | Vacancies | Site map

Smith v Repatriation Commission

[2012] FCA 1043

COURT Federal Court, Melbourne
JUDGE Gordon J
DATE OF DECISION 19 September 2012
DECISION The appeal was dismissed
ISSUES Whether war caused injuries the sole cause of inability to obtain remunerative work

Facts

Mr Smith appealed to the Court from a decision of the Administrative Appeals Tribunal that determined that he was not entitled to the special rate of pension.

Grounds of appeal

The appeal concerned the construction of S24 of the VEA, in particular ss24(1)(c) and 24(2)(b).

  1. Under s24(1)(c) the appeal concerned whether the AAT fell into error in its consideration of what was the relevant remunerative work Mr Smith previously undertook;
  2. For the purposes of s24(2)(b), whether the AAT fell into error by restricting its consideration of Mr Smith’s genuine attempts to obtain work to only those attempts he made after applying for an increased pension rate

The Court’s Consideration

Section 24(1)(c) focuses on whether there are reasons other than war caused injuries or disease that prevented a veteran from continuing to undertake remunerative work that the veteran was undertaking. If a veteran satisfies that criteria that war related incapacity alone has prevented the veteran from continuing to undertake the remunerative work he was undertaking, that is the end of the inquiry.

If a veteran has not been engaged in remunerative, the veteran may still satisfy the alone criteria in s24(1)(c) if the veteran satisfies the requirements of s24(2)(b) the ameliorative provision.

The Court noted the ameliorative provision operates when the veteran has not been engaged in remunerative work. If the conditions are satisfied it operates as a deeming provision. It creates a fiction – it treats a veteran not engaged in remunerative work as “ having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking”.

Section 24(2)(b) operates to ameliorate s24(1)(c) in two important ways:

  1. it extends the class of veterans entitled to make a application for a pension at the special rate to include veterans who have not been engaged in remunerative work
  2. it provides that the veteran’s war caused injury or war caused disease need not be the sole cause but must be a “substantial cause” of inability to obtain remunerative work.

The question of law raised by the appeal was whether a failure by a veteran to take active steps during the assessment period to obtain remunerative work precludes a finding that he has been genuinely seeking to engage in remunerative work.

The AAT interpreted the phrase “ genuinely seeking to engage in remunerative work’ as requiring that Mr Smith demonstrate he had been genuinely seeking work during the assessment period. The AAT noted there was no material before them to demonstrate that Mr Smith made a real effort to obtain work at any time during the assessment period.
Mr Smith submitted that by restricting itself to a consideration of steps taken by him during the “ assessment period”, the AAT erred in its construction of s24(2)(b).

The Court noted the Full Court decision in Leane:

that it is unnecessary for the veteran to satisfy the tribunal that he had been genuinely seeking remunerative employment  at all times during the assessment period.  Under s19(5C) of the VEA the Tribunal was required to assess “ the rate of rates” at which the pension would have been payable” from time to time” during the assessment period, Section 19(6) provides: where the commission has pursuant to subsection(5C), assessed that the pension was payable at some time during the assessment period at the rate provided by section 23 or 24 then, subject to 24A, the rate at which the pension is payable shall not be lower than the rate provided by whichever of those sections applied most recently during the assessment period.

The effect of these provisions is that the tribunal was required to determine whether a special pension was payable at any time during the assessment period. If a special pension was payable at any time during this period then the tribunal was required to determine that the special pension was payable from that time, notwithstanding that at some subsequent time the veteran might not have been able to establish that he would be entitled to a special pension.

The Court noted that s24(2)(b) deals with veterans who, following military service, cannot work. It applies to a veteran “who has not been engaged in remunerative work”. Mr Smith had a work history and was therefore a person who needed to satisfy s24(1)(c). Section 24(1)(c) refers to “remunerative work that the veteran was undertaking”. Section 24(2)(b) simply refers to “remunerative work’. That phrase in s24(2)(b) would extend to remunerative work that he would, but for the incapacity, be continuing so to seek. It cannot refer to work the veteran has actually undertaken because the section is directed to veterans who have not been engaged in remunerative work.

The Court noted Spender J in the case of Hall accepted that evidence which shows that a veteran who may not be able to seek employment but indicated a willingness to accept work if any could be found, satisfied the “genuinely seeking” requirement  of s24(2)(b).

The Court went on to say that although it is unnecessary for a veteran to satisfy the AAT that he or she had genuinely seeking to engage in remunerative work at all times during the assessment period, the scheme of the VEA requires a veteran to satisfy the AAT that he or she had, at some time during the assessment period, complied with the requirements of S24(2)(b).

In regard to whether the Tribunal failed to undertake any analysis of the remunerative work which the applicant was actually prevented from undertaking the Court noted the following principles:

In Flentjar Branson J propounded four questions designed to address the s24(1)(c) issue:

  1. What was the relevant “ remunerative work that the veteran was undertaking” within the meaning of s24(1)(c)?
  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?

In Mr Smith’s case, the AAT identified the types of remunerative work undertaken by Mr Smith. The AAT addressed the correct question- what are the types of remunerative work undertaken by Mr Smith. The AAT correctly considered the types of employment undertaken rather than the particular duties in which Mr Smith had been engaged.

Again the Court noted that Mr Smith had not identified any error of law.

Decision

Appeal dismissed

Note:


The issue before the Court was whether the prerequisite in s.24(2)(b) that an applicant be genuinely seeking remunerative work had to be met during the assessment period, as suggested in Leane’s case.

The Court went beyond the scope of the question before it and concluded that s.24(2)(b) could only apply to veterans who, following military service, could not work and therefore meet the description of a veteran “who has not been engaged in remunerative work”, in the words of s.24(2)(b).  This interpretation does not represent the Commission’s interpretation.

All Practice Notes