FCAFC 89
|COURT||Full Court of the Federal Court, Victoria|
|JUDGE||Collier, Logan and McKerracher JJ|
|DATE OF DECISION||22 June 2016|
|DECISION||The appeal was dismissed|
|ISSUES||Application for special rate – whether application lodged before applicant turned 65 – section24(2A) applicable - whether applicant was engaged in “remunerative work”– whether primary judge misconstrued “working…for a continuous period of at least 10 years”|
The applicant, Mr Desmond Ralph, served in the Australian Army from 1966 to 1971, including operational service in Vietnam. Mr Ralph applied for the special rate of pension in 2009 by posting an application to the office of the Department of Veterans’ Affairs, but the date that his application was lodged is in dispute.
On 29 July 2009 the respondent decided that Mr Ralph was not eligible for the special rate of pension, and the Veterans’ Review Board affirmed that decision. Mr Ralph applied to the Administrative Appeals Tribunal (the Tribunal). The Tribunal decided to treat the issue regarding the date of lodgement of Mr Ralph’s application as a preliminary issue. Mr Ralph stated that his application was posted on 16 April 2009 and he argued that, by operation of s29 of the Acts Interpretation Act 1901 (Cth) and s160 of the Evidence Act 1995 (Cth), the application is deemed to have been lodged four business days after it was posted, being 22 April 2009. This was one day before his 65th birthday on 23 April 2009. The respondent argued that the application was lodged on 1 May 2009, as shown by the Departmental date stamp on the application. The Tribunal decided the application was lodged on 1 May 2009, based on s5T(2) of the VEA. The Tribunal later affirmed the decision under review, and decided that Mr Ralph did not satisfy the criteria in s24(2A) of the VEA and was not eligible for the special rate. Mr Ralph’s appeal to the Federal Court was dismissed. He appealed to the Full Court of the Federal Court.
The Court's consideration
Ground 1 – The “lodgement” issue
In the appeal Mr Ralph pressed his contention that s29 of the Acts Interpretation Act was applicable, so it ought to have been presumed that the application form was received when it would have been delivered in the ordinary course of the post. He further submitted that the Tribunal was not entitled to rely on the Departmental date stamp, as there was no evidence before the Tribunal about the Department’s practice regarding the placing of such stamps on forms.
The Court noted that as with all provisions in the Acts Interpretation Act, s29 of that Act only applies in the absence of a contrary intention in a particular Act: s2(2). In this case, a contrary intention is evident in the VEA – the lodgement to which s5T(2)(a)(i) refers is, by s5T(2)(b), taken to have occurred on receipt, not delivery. Also, the alternative in s5T(2)(a)(ii) of delivery to a person looks to be physical delivery (not constructive or deemed delivery). Further, the definition of “application day” in s19(9) of the VEA refers to “received” and “so received”. In relation to the Tribunal’s finding based on the Departmental date stamp, the Court noted that the Tribunal was not bound by the rules of evidence: s33(1) of the AAT Act. The date stamp was, on its face, reasonably capable of supporting a finding of fact that the application was received on the receipt date shown on the stamp, and there was no additional need for the Tribunal to have material before it as to the Departmental practice regarding the affixing of such stamps. Ground 1 was dismissed.
Grounds 2, 3 and 4 – The “remunerative work” issue
Mr Ralph’s submitted that the primary judge ought to have concluded that the Tribunal misunderstood what constituted “remunerative work” for the purposes of the VEA. In submissions, counsel for Mr Ralph seized upon the primary Judge’s references to contractual relationships as allegedly indicative that the primary Judge unduly restricted the focus of his scrutiny of whether the Tribunal had erred in law in reaching its conclusion that s24(2A)(g) was not satisfied.
The Court indicated at :
Reading the Tribunal’s reasons in this matter as a whole, it is tolerably clear why Mr Ralph’s claim failed to meet all of the s 24(2A) criteria. It was just that the Tribunal regarded his activities with Jet Couriers and Metrans, as part of familial discourse and that his activities as a transport and logistics consultant, exemplified by his JMR consultancy, were not undertaken for a sufficient time period prior to his making of his application to meet what the Tribunal regarded as the meaning and effect of s 24(2A)(g) of the VEA…
The Court noted that the Tribunal did not, in terms, find that the activities undertaken by Mr Ralph for Jet Couriers and Metrans constituted “remunerative work” for the purposes of s24(2A)(d) of the VEA. The Tribunal made a finding with an eye to s24(2A)(g), not s24(2A)(d), that the activities undertaken by Mr Ralph for Jet Couriers and Metrans did not constitute “working on his own account in his profession, trade, employment, vocation or calling but rather advising and guiding his sons as a father with a pertinent background”. The Tribunal went further and found that even if Mr Ralph were “working on his own account” for the family companies, and even if the provision of a company car were a form of remuneration for this, he was not suffering any loss. The Court indicated that while, desirably, the Tribunal ought expressly to have addressed whether the activities undertaken by Mr Ralph for Jet Couriers and Metrans constituted or evidenced “remunerative work” for the purposes of s24(2A)(d), the findings made were consistent only with a rejection of these activities as part of the remunerative work which was the “last paid work” undertaken by Mr Ralph.
The Court concluded that the Tribunal did not, as Mr Ralph contended, reject the activities undertaken by Mr Ralph for Jet Couriers and Metrans as a form of remunerative work or as indicative of a capacity to undertake remunerative work because of the absence of a contract between him and Jet Couriers or Metrans. The Court noted that the Tribunal rejected those activities because they were not remunerative activities, only family advising for which there was but a gesture of appreciation in the provision of a car, not remuneration. The Tribunal found that the advising was not given in return for the provision of a car. There was no merit in these Grounds.
Grounds 5 – 10 years’ continuous employment
Mr Ralph argued that his earlier work as an employee for Westgate Logistics (for 17 years from 1990) should be aggregated with his JMR consultancy (from 2007-2009 and a later 2012 period being after his 65th birthday) to meet the s24(2A)(g)(ii) criterion. The Court considered the difficulty with Mr Ralph’s submission is one arising from the text of s24(2A)(g)– the reference in s24(2A)(g)(i) is to “working as an employee of another person” whereas the opening reference in s24(2A)(g)(ii) is to “working on his or her own account”. The criteria are alternatives. The reference to “employment” in s24(2A)(g)(ii) does not refer to work as an employee - it is descriptive of an occupation. Ground 5 failed.
The Court's Decision
The appeal was dismissed.
The Court referred to an extract of the decision by the Full Court in Grant v Repatriation Commission  FCA 1629 which explained the concept of “remunerative work” and distinguished the subject of inquiry under s24(2A)(d) from that in s24(2A)(g):
Determination of the “remunerative work” referred to in s 24(2A)(d) requires the characterisation of the specific remunerative activity or activities that the veteran was last undertaking before making the claim or application rather than of the capacity in which that work was undertaken. The particular capacity in which the work was undertaken is dealt with a separate criterion in s 24(2A)(g). Thus, whether or not the work was undertaken as an employee or as a self employed person is irrelevant to the characterisation to be given to that work under s 24(2A)(d). That conclusion follows from the definition of “remunerative work” in s 5Q, the recognition in s24(2A)(g) that the capacity in which work is undertaken is to be treated as a matter separate from the work that was undertaken for the purposes of s 24 and is consistent with the purpose of s 24(2A) of providing for payment at the special rate where a person is prevented solely by war-caused incapacity from continuing to undertake the work that the veteran was last undertaking before making the claim or application. In our view it would be inconsistent with that purpose for the characterisation of that work to include, or to be made to depend upon, the capacity in which that work was undertaken.