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James v Repatriation Commission

[2015] FCCA 2644

COURT Federal Circuit Court, Brisbane
JUDGE Judge Jarrett
DATE OF DECISION 25 September 2015
DECISION The appeal was dismissed
ISSUES Appeal from AAT – questions of law – no questions of law stated in notice of appeal – questions formulated in written submissions and argument

Facts

Mr James’ application for increase in his disability pension to the Special Rate was refused by the Repatriation Commission.  The decision was affirmed on review by the Veterans’ Review Board and Administrative Appeals Tribunal (the Tribunal).  Mr James’ appeal to the Federal Court was transferred to the Federal Circuit Court of Australia.

Grounds of appeal

The questions of law said to arise on the appeal were summarised as follows:

    1. Whether in finding that the Applicant failed to satisfy s 24(1)(c) of the Act, the Tribunal properly considered and applied s 24(1)(c) of the Act in circumstances where the Tribunal failed to give any weight to, or ignored, a relevant matter of great importance, namely the uncontroverted evidence of two medical experts.
    2. Whether the Tribunal failed to comply with s 43(2B) of the Administrative Appeals Tribunal Act 1975 by failing to give reasons, or adequate reasons for:
      1. finding that the Applicant’s accepted psychiatric conditions did not prevent him from continuing to undertake one of the kinds of remunerative work he was undertaking, namely property maintenance;
      2. in making the said finding, not following the uncontroverted evidence of two medical experts.
    3. Whether in finding that the Applicant failed to satisfy s 24(1)(c) of the Act, the Tribunal properly considered and applied s 24(1)(c) of the Act in circumstances where the Tribunal made contradictory findings in that on the one hand, the Tribunal accepted that the Applicant satisfied 24(1)(b) of the Act, which included an assessment of the Applicant’s capacity to work in his lawn-mowing business, and then on the other hand found that the Applicant did not satisfy 24(1)(c) of the Act without making the necessary consequential finding as to what the aggregate periods of remunerative work the Applicant was therefore capable of performing.
    4. Whether in finding that the Applicant failed to satisfy section 24(1)(c) of the Act, the Tribunal properly considered and applied s 24(1)(c) of the Act in circumstances where it made a finding that was so unreasonable that no tribunal acting reasonably could have made it, namely that the Applicant’s accepted psychiatric conditions did not prevent from continuing to undertake remunerative work characterised as property maintenance.
    5. Whether in finding that the Applicant failed to satisfy section 24(1)(c) of the Act, the Tribunal properly considered and applied s 24(1)(c) of the Act by failing to consider a submission of substance made by the Applicant concerning the effect of the evidence of two medical experts which, if accepted, was capable of affecting the outcome of the Applicant’s claim.

It was the Court’s view that the amended notice of appeal did not state any questions of law, however the Court went on to address the arguments by each of the parties.

The Tribunal’s decision

The only issue for the Tribunal was whether the applicant satisfied s24(1)(c) of the VEA – the alone test.  The Tribunal was not persuaded that the applicant’s accepted psychiatric conditions prevented him from continuing to undertake his lawn mowing business.

The Court’s consideration

Appeal ground 1

The Court noted that appeal grounds 1(a) to (i) were a recitation of factual matters followed by an assertion that the Tribunal did not make certain findings, and there was no attempt to link it to the first question of law.  In particular, ground 1(h) argued that the Tribunal did not consider or make any findings about how many hours the applicant could work per week in the lawn-mowing business.  The Court indicated for the purposes of s24(1)(c), that was not necessary.  There was no dispute, and the Tribunal accepted, that s24(1)(b) was satisfied.  To the extent that the applicant argued that the Tribunal could not have found that s24(1)(b) was satisfied and not also s24(1)(c), there was no error in the Tribunal’s reasons.  Section 24(1)(b) goes to the “nature and level of” the veteran’s war-caused incapacity whereas s24(1)(c) goes to causation: Repatriation Commission v Alexander (2003) 75 ALD 329 at [13] per Spender J.  In Wright v Repatriation Commission (2005) 213 ALR 536 Tamberlin J explained at [15]:

The two findings are separate and complementary.  They pose difference 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 from more than 8 hours …

Regarding s24(1)(c), the applicant’s claim failed at the second Flentjar question – the Tribunal did not consider that the applicant’s decision to cease remunerative work in his lawn-mowing business was attributable to his war-caused injuries or conditions.  The Court indicated the Tribunal’s findings were open on the evidence before the Tribunal.

Appeal grounds 2 - 4

The Tribunal received evidence from two psychiatrists, who both expressed the opinion that the applicant was “prevented by the accepted psychiatric conditions alone from continuing in the remunerative work”.  The applicant argued that the Tribunal gave no reasons, or no adequate reasons to explain why it rejected the opinion of the experts insofar as it related to his lawn-mowing business.  The Court noted the Tribunal did explain its reasons in paragraphs [7] – [10], and that Tribunal reached the view that the applicant was unable to satisfy the requirements of s24(1)(c) with the benefit of material not available to the doctors who had given evidence – namely the answers given by the applicant in cross-examination in relation to his lawn mowing activities and his reasons for ceasing that activity.  The Court indicated it was open to the Tribunal to reach the findings that it did on the evidence before it.  The Tribunal’s reasons explained how it did that, albeit briefly, but they were adequate.

Appeal ground 5

The applicant argued that the Tribunal’s conclusion that he failed to satisfy s24(1)(c) was so unreasonable that no tribunal acting reasonably on the material before it could have reached that conclusion.  The Court noted that where a decision-maker’s application of the facts found to the statutory regime under consideration is so perverse as to fit the description of irrational, there may be a question of law involved: Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [26]; Watsford v Commissioner of Taxation [2013] FCA 1389.  However, the Court indicated there was no irrationality in the Tribunal’s application of the facts as it found them to be to the requirements of s24(1)(c).  The Tribunal’s findings were open to the Tribunal on the evidence before it.

The Court’s Decision

The appeal was dismissed.

Editorial Note

Ultimately the applicant did not establish that the Tribunal’s decision contained any error, and no questions of law arose on the Tribunal’s decision.

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