FCAFC 10
|COURT||Federal Court, Melbourne|
|JUDGE||Kenny, Barker & Rangiah JJ|
|DATE OF DECISION||11 February 2015|
|DECISION||The appeal was allowed|
|ISSUES||Special rate of pension under s 24(1)(c) – whether applicant prevented from engaging in remunerative working by war-caused injuries alone – leave to extend time to rely on notice of contention refused|
The respondent, Mr Watkins, is a veteran who served in the Royal Australian Navy for nine years, including during the Vietnam War. As at July 2009, Mr Watkins was in receipt of a disability pension at 100% of the general rate for his war-caused conditions of bilateral sensorineural hearing loss with tinnitus, osteoarthritis of the right ankle and foot, solar keratosis, posttraumatic stress disorder (PTSD) and alcohol dependence. On 31 July 2009, shortly before his 64th birthday, Mr Watkins applied to the Commission for his pension to be paid at the special rate.
On 29 October 2009 a delegate of the Commission decided Mr Watkins was not eligible for a special rate of pension. The decision was affirmed on review by the Veterans’ Review Board and the Administrative Appeals Tribunal (the Tribunal). Mr Watkins appealed to the Federal Court, and the primary judge allowed the appeal on the basis that the Tribunal had misconstrued s 24(1)(c) of the Act. The Commission now appeals to the Full Court.
Grounds of appeal
The Commission appealed on the basis that the primary judge erred:
(1) in the construction of s 24(1)(c) of the Act, by holding that non warcaused disabilities will only be a disqualifying factor if they, of themselves and independently of the warcaused ailments, would prevent the veteran from undertaking the relevant work.
(2) in holding that, where a veteran suffers both warcaused and non warcaused disabilities, non warcaused disabilities will only prevent the veteran from meeting the “alone” test in s 24(1)(c) if the non warcaused disabilities, of themselves and independently of the war-caused ailments, would prevent the veteran from undertaking the relevant work.
(3) in that his Honour should have held that a veteran who is affected by non warcaused disabilities which contribute, in combination with the veteran’s warcaused ailments, to cause the veteran’s incapacity to undertake the relevant work, fails to meet the requirement in s 24(1)(c) that the veteran’s warcaused ailments alone prevent the continuance of work.
Therefore, the primary issue was whether the primary judge erred in the construction he gave s 24(1)(c).
The Primary judgment
The primary judge accepted the following construction of s 24(1)(c) at paragraph :
The construction contended for by the applicant is that the ‘alone’ element requires that the preventative effect not be, by reason of or because of, some cause or causes other than the war-caused incapacity. The ‘alone’ element asks whether there is a nonwar caused disability (or disabilities) which independently of the war-caused ailments have also brought about the preventative effect. The war caused ailments and their consequences are to be put to one side and an assessment be made as to whether there is an additional cause or causes which prevent the veteran from working. The nonwar caused disabilities will only be a disqualifying factor if they of themselves and independently of the war-caused ailments also have the preventative effect.
The Court’s consideration
After considering detailed submissions by the parties, the Court indicated the decision of the Full Court in Repatriation Commission v Richmond  FCAFC 124 preferred the constructional approach urged on this Court in this appeal by the Commission. The Full Court in Richmondexpressly disagrees with the construction of s 24(1)(c) adopted by the primary judge in the decision under appeal. The Court considered Richmond to be correct and applicable in this appeal, and consequently the appeal was allowed.
The Court also considered a procedural issue of whether Mr Watkins should be given leave to file a notice of contention, which had not been filed within 21 days after the notice of appeal was served. The Court decided to refuse leave to rely on the draft notice of contention given:
- the lack of merits in the contentions sought to be raised by Mr Watkins’ draft notice of contention;
- the failure to file a notice of contention within time;
- the failure to explain the delay in seeking to bring it forward; and
- the failure to seek an extension of time to do so in a timely way.
The Court’s decision
The appeal was allowed.
For further reading please see the 2014 practice note regarding the Full Court decision in Repatriation Commission v Richmond on the VRB’s website.
One of the submissions made by the Commission was that the primary judge erred in considering that the construction he favoured was also supported by another Full Court decision, Smith v Repatriation Commission  FCAFC 53. The Commission contended the observations of Buchanan J in Smith at  referred to by the primary judge did not assist Mr Watkins because Buchanan J was not discussing the issue that currently arises. The Commission noted in Richmond at  the Full Court referred to what Buchanan J said in Smith at  –  and indicated that his Honour’s approach was consistent with the constructional approach it adopted.