FCA 78
|COURT||Federal Court, Melbourne|
|DATE OF DECISION||17 February 2015|
|DECISION||The appeal was dismissed|
|ISSUES||Application for special rate – whether a finding made by the Tribunal as to whether the veteran performed work of a particular kind raised a question of law in relation to the phrase “remunerative work” – whether factual finding made that veteran was not performing work after turning 65 was made in a manner which raised an error of law|
The applicant, Mr Beezley, is a veteran who had operational service in Vietnam between November 1967 and July 1968. He has a number of war-caused conditions, including Post-Traumatic Stress Disorder (PTSD). Mr Beezley was in receipt of a disability pension at 90% of the general rate, and just after his 65th birthday he applied for a pension at the special rate. The respondent declined the increase, and the applicant went through the appeal process.
Relevantly, in 1980 Mr Beezley acquired an electroplating business, All-Brite Plating, which was incorporated in 1991. Although there was some conflict between the Tribunal’s finding that Mr Beezley was self-employed and its finding that business was conducted by a corporation, at least by May 2011 Mr Beezley was an employee of the business and, with his wife, one of All-Brite’s two directors. The business declined substantially during the 2011 financial year. In the first week of May 2011 Mr Beezley was paid his monthly salary in advance. On 11 May 2011 All-Brite entered into a creditors’ voluntary winding-up and a liquidator was appointed. A crucial matter in dispute was the extent to which Mr Beezley had any involvement with All-Brite after 11 May 2011 and in particular after his 65th birthday on 23 May 2011.
Grounds of appeal
The applicant’s primary ground of appeal was that the Tribunal misconstrued the phrase “remunerative work” in s 24(2A) of the Act by holding that the work undertaken by the applicant assisting the liquidator did not constitute “remunerative work”.
The Court’s consideration
The applicant argued the work performed by him after his 65th birthday of assisting the liquidator was incorrectly excluded from consideration by the Tribunal. As a result, the Tribunal found the applicant was not undertaking his or her last paid work after the veteran had turned 65, and therefore failed to satisfy s 24(2A)(f) of the Act. The applicant argued there were two reasons why the Tribunal came to the conclusion that the assistance provided by him to the liquidator was not “remunerative work”.
Firstly, the applicant argued the Tribunal took the view that assistance given to a liquidator pursuant to an obligation under s530A(2)(c) or s 530A(3) of the Corporations Act 2001 (Cth) could not be “remunerative work”. The Court accepted that whether or not a particular activity is encompassed with the phrase “remunerative work” in s 24(2A)(d), and in particular whether an activity required by a liquidator under s 530A of the Corporations Act is capable of being “work”, is a question of law. However, as the respondent correctly contended, the Tribunal did not make a finding that assistance provided to a liquidator could not be an activity encompassed by the phrase “remunerative work”. The Tribunal was not satisfied that in assisting the liquidator, the applicant was employed or otherwise engaged by All-Brite and that, in that sense, assisting the liquidator was not “work” in which the applicant was engaged. Further, the Tribunal found, even if assisting the liquidator was part of the applicant’s work with All-Brite, it was not work for which he had an entitlement to be remunerated and was not work from which he was in fact remunerated. The Tribunal’s conclusion that assisting the liquidator was not “work” was a factual conclusion based on the Tribunal’s acceptance of evidence before it, that at the time that the applicant was assisting the liquidator, he was not employed by All-Brite at all. The Court was not satisfied that the Tribunal either posed or answered the question of law that the applicant contended was determined in error.
Secondly, the applicant argued the Tribunal misconstrued “remunerative work” because the Tribunal wrongly determined that the applicant had no entitlement to be and was not remunerated for undertaking his statutory obligations under s 530A of the Corporations Act. The Court considered whether or not the applicant was entitled to be or was in fact remunerated for assisting the liquidator was a question of fact, and the finding he was not entitled to be remunerated nor actually paid was a factual finding. The Court was of the view that a finding of fact was not susceptible to challenge unless the manner in which the finding was made raises a question of law. The applicant’s submissions pointed to two propositions said to be wrong which the Tribunal took into account in reaching the finding of fact. The Court considered it was not necessary to decide whether the Tribunal’s propositions were right or wrong, as there was other evidence before the Tribunal upon which its finding was based. There was probative evidence from the liquidator which supported the Tribunal’s finding that the applicant did not work for All-Brite after 19 May 2011, had no entitlement to be paid, and was not paid for any work performed beyond that date. The Tribunal regarded the monies received in advance by the applicant as not referable to any work performed by him for All-Brite beyond 19 May 2011 because the Tribunal was satisfied he performed no work for All-Brite beyond that date. The Court indicated there was no place for judicial review as no material error of law had taken place.
The Court’s Decision
The appeal was dismissed.
The applicant’s arguments in this case centred on subsections 24(2A)(d) and (f) of the VEA. Section 24(2A) relevantly provides:
24 Special rate of pension
(2A) This section applies to a veteran if:
(d) the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(f) the veteran was undertaking his or her last paid work after the veteran had turned 65; …
The phrase “remunerative work,” which appears in s 24(2A)(d), is defined in s 5Q of the Act as follows:
remunerative work includes any remunerative activity.
The sequence of events in this case was critical. The applicant was paid his monthly salary in advance in the first week of May 2011. All-Brite went into liquidation on 11 May 2011. The Tribunal was not satisfied that the applicant worked for All-Brite beyond 19 May 2011. The applicant’s 65th birthday was on 23 May 2011. He did not apply for an increase in his disability pension until 31 May 2011. While the Tribunal accepted the applicant had been paid in advance, it characterised the payment as intended to reward the applicant for the work it was anticipated he would perform for All-Brite. However, the Tribunal was not satisfied that the applicant worked for All-Brite beyond 19 May 2011 and concluded that beyond that day he had no entitlement to remuneration.