FCA 165
|COURT||Federal Court, Melbourne|
|DATE OF DECISION||4 March 2015|
|DECISION||The appeal was dismissed|
|ISSUES||Application for special rate – whether application lodged prior to applicant turning 65 – s24(2A) applicable – whether applicant was engaged in “remunerative work” – whether Tribunal misconstrued “working…for a continuous period of at least 10 years” under s24(2A)(g) – whether Tribunal misconstrued “suffering a loss” under s24(2A)(e)|
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 Department 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 appealed to the Federal Court.
Grounds of appeal
The applicant’s notice of appeal in the Federal Court outlined the following questions of law:
Date of lodgement issue
- Question 8 alleged that the Tribunal misconstrued s5T(2)(b) of the VEA, and that it erred in failing to decide that the application was deemed to have been lodged on 22 April 2009 by operation of s29 of the Acts Interpretation Act and s160 of the Evidence Act.
Operation of s24(2A) issues
- The Remunerative Work Issue: questions 1 to 4 revolve around the meaning of the words “remunerative work” in s24(2A) of the VEA. The questions include whether the Tribunal misconstrued the provision, took into account irrelevant considerations, made an illogical or irrational decision, and whether it provided adequate reasons for its decision;
- The 10 Years Continuous Work Issue: questions 5 to 7 revolve around the meaning of the words “working…for a continuous period of at least 10 years” in s24(2A)(g) of the VEA. The questions include whether the Tribunal misconstrued the provision, failed to have regard to a relevant consideration and whether it provided adequate reasons for its decision; and
- The Loss Issue: question 9 is whether the Tribunal misconstrued the words “suffering a loss” in s24(2A)(e) of the VEA.
The Court's consideration
Date of lodgement issue
The Court did not accept the applicant’s argument. The Court did not consider s29 of the Acts Interpretation Act, which refers to serving, giving or sending a document by post, applies to s5T(2) of the VEA, when that section refers to lodgement of a document at an approved place. Firstly, in the Court’s view “serve”, “give” or “send” refer to delivery of a document whereas “lodged” connotes receipt or physical acceptance. Secondly, in relation to applications lodged at an approved place, s5T(2)(b) states that an application “is taken to have been so lodged on the day on which it is received at that place” i.e. physical receipt is required. Thirdly, s19(9) of the VEA points in the same direction, and provides that the “assessment period” for applications commences on the “application day”, which is defined to mean “the day on which the claim or application was received at an office of the Department in Australia”. The Court considered s5T(2) unambiguously provides that lodgement of a posted application only occurs when it is physically received at a place approved by the Commission.
Operation of s24(2A) issues
The Remunerative Work Issue
The Court considered the Tribunal’s task under s24(2A) was to undertake a factual enquiry as to whether the applicant was engaged in “work” in his son’s businesses, Jet Couriers and Metrans, and was remunerated or paid for that work. The evidence included:
- Mr Ralph’s subjective view that he did not regard his activities at Jet Couriers and/or Metrans as work for which he was paid;
- that he did not render any invoices for his purported work to Jet Couriers and/or Metrans;
- that he was given the use of a motor vehicle from Jet Couriers’ large fleet and that he continued to be given the use of a motor vehicle after he cased his purported work;
- he never declared his receipt of a motor vehicle in his tax returns; and
- his son’s evidence that the motor vehicle was provided to Mr Ralph as a gesture of appreciation.
On the basis of that evidence the Court considered the conclusion that the applicant was just helping out his sons, rather than working as a paid consultant, was open to the Tribunal. The same evidence also went to the question of whether the applicant was remunerated for the activities he performed for his sons’ businesses. The Court could see no legal error in the Tribunal taking into account that Jet Couriers continued to provide the applicant with a motor vehicle even after he ceased working for them, and the Tribunal’s conclusion that the motor vehicle was not provided as remuneration for work was open to it. The Court could see nothing in the Tribunal’s decision to indicate it misconstrued ss24(2A) and 5Q(1) of the VEA.
The Court did not consider the Tribunal took into account irrelevant considerations or that it made an illogical or irrational decision in its approach to “remunerative work”. Finally, the Court did not accept that the Tribunal failed to provide adequate and sufficient reasons, as required by s43(2B) of the AAT Act.
The 10 Years Continuous Work Issue
Section 24(2A)(g) requires that when the veteran stopped undertaking his or her last paid work:
(i) if he or she was then working as am employee of another person – had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii) if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling:
for a continuous period of at least 10 years that began before the veteran turned 65.
In the Court’s view, the Tribunal did not misconstrue the phrase “working…for a continuous period of at least 10 years” in s24(2A)(g). The Tribunal limited its decision regarding s24(2A)(g) by reference to the applicant’s work as a self-employed transport consultant because it took the view that his activities in his sons’ businesses was not “remunerative work”.
The applicant also argued that the Tribunal misconstrued the phrase “working…for a continuous period of at least 10 years” by treating it as setting out an absolute requirement that the veteran have worked for a continuous period of 10 years, regardless of the reasons for any gaps in continuity, such as breaks which arise from a veteran’s war-caused disability. The Court indicated that even if the Tribunal was required to ignore the three year break in the continuity in the applicant’s work as a self-employed transport consultant (which the Tribunal found resulted from his accepted war-caused disabilities) he did not work on his own account as a transport consultant for 10 years – he only worked for about 2 years.
The Loss Issue
The Court considered it was unnecessary for the Tribunal to decide whether the applicant was suffering a loss, as he had failed to satisfy s24(2A)(g).
The Court's Decision
The appeal was dismissed.
Once it was determined that the application for special rate was lodged after Mr Ralph turned 65, his eligibility was assessed under s24(2A). In relation to the 10 years continuous work issue, the Court referred to the decision of the Full Court of the Federal Court in Thomson v Repatriation Commission  FCA 204, which explained that:
As was pointed out by the Full Court [in Grant], subs (g) of s24(2A) is concerned with the capacity in which the last paid work was undertaken. A veteran meets the requirements of the subsection if the last paid work has been undertaken in the relevant capacity for a period of at least 10 years. If the capacity is as an employee, the veteran must have been employed by the same employer (or its predecessor) continuously for the 10 year period. If the veteran is self-employed, then the last paid work must have been undertaken in that capacity continuously for the 10 year period. When subcl (ii) refers to the requirement that the self-employed veteran must have been “so working” continuously for the 10 year period, the reference is to the capacity in which the veteran worked.