FCA 1267
|COURT||Federal Court, Melbourne|
|DATE OF DECISION||20 November 2015|
|DECISION||The appeal was dismissed|
|ISSUES||Application for special rate – whether AAT erred in its construction of s24(2)(b) by requiring a “liberal and beneficial” approach to the extent and nature of the veteran’s war-caused injuries – whether AAT erred in determining that the veteran’s war-caused injuries were the “substantial cause” of his inability to obtain remunerative work|
Mr Woodall is an Army veteran who suffers from a variety of war-caused injuries, including generalised anxiety disorder (GAD) and the displacement of an intervertebral disc. The Administrative Appeals Tribunal (the Tribunal) determined that the applicant was entitled to the Special Rate of pension. The Repatriation Commission appealed to the Federal Court.
Grounds of appeal
The Tribunal referred to the decision of the Full Court of the Federal Court in Smith v Repatriation Commission (2014) 220 FCR 452 at 456 (Rares J) and 490 (Foster J) where their Honours identified three requirements which had to be satisfied in order for a veteran to have the benefit of the ameliorative provisions of s24(2)(b) of the Act:
- the veteran must have been genuinely seeking to engage in remunerative work;
- but for incapacity by war-caused injuries, the veteran would be continuing to seek to engage in remunerative work; and
- the war-caused incapacity is the substantial cause of his inability to obtain remunerative work.
The Commission contends the Tribunal fell into error when it found that the third requirement had been satisfied. The amended grounds read:
- The Tribunal misconstrued s24(2)(b), and the cases which describe that provision as having an ‘ameliorative’ effect, as requiring a ‘liberal and beneficial’ approach to the assessment of the extent and nature of a veteran’s war-caused injuries, and therefore misapplied the test provided by the third element of s24(2)(b) of the Act.
- The Tribunal misconstrued s24(2)(b) of the Act by:
- proceeding on the basis that, in order to find that the Applicant’s war-caused incapacities were not the substantial cause of his inability to obtain remunerative work, other causal factors must be ‘the substantial cause’ of the inability to obtain employment.
- impermissibly speculating as to what would have happened if the Applicant had obtained an interview for the positions in respect of which he did not, in fact, obtain an interview; and/or
- failing to undertake the weighing exercise that was necessary in order to determine whether the Respondent’s accepted war-caused incapacities were ‘the substantial cause’ of his inability to obtain remunerative work.
The Court’s consideration
The Commission contended the Tribunal had fallen into error in undertaking the weighing exercise required by the third element of s24(2)(b) by ignoring and failing to balance other causal factors such as Mr Woodall’s age, skills and workplace restrictions, at the time he made his applications, against the war-caused injuries as causal factors. The Commission argued the Tribunal had inferred that Mr Woodall had failed to obtain the three jobs for which he had been interviews because of his war-caused back condition and generalised anxiety disorder. It had further inferred that, had Mr Woodall been interviewed by other prospective employers, they would have responded in the same way upon becoming aware of his war-caused conditions.
The Court indicated the phrase “the substantial cause” clearly recognises that factors, additional to war-caused injury, may impede a veteran who is seeking to obtain employment. In Fox v Repatriation Commission (1997) 45 ALD 317, Keifel J said at 319-320:
The words ‘the substantial cause’ require that, if the incapacity is not of itself productive of the inability to obtain work, it is nevertheless the operative factor which, more than any other, explains it. That something might be ‘a substantial cause’ has regard to the situation where there may be a number of factors operating which are of sufficient causal significance to qualify as ‘substantial’ … The definite article in s24(2) … requires a stronger and more direct casual connection between the incapacity and the inability to obtain remunerative work.
The Court noted the Tribunal identified a number of factors which might adversely affect Mr Woodall’s ability to obtain employment. The Tribunal determined it was satisfied “that the greater or more dominant cause – the substantial cause – was [‘Mr Woodall’s] incapacity [caused] by war-caused injuries.” The Court considered this conclusion was open on the limited material before the Tribunal, which included Mr Woodall’s age, employment history, skills, physical limitations and attempts to obtain alternative employment.
The Count considered the Tribunal’s references to the need to undertake the balancing exercise “in a practical, liberal and beneficial manner” was an acknowledgement of the beneficial purpose of the Act generally and s24(2)(b) in particular – they related to the application of s24(2)(b) rather than its meaning. The Tribunal did not depart in any impermissible way from the ordinary and natural meaning of s24(2)(b).
Regarding Ground 2(a), the Court indicated a fair reading of the Tribunal’s reasons did not support this contention. The Tribunal went no further than saying that, even if other negative factors may have been at work, it did not follow that those other factors “individually or in combination were the substantial cause of [Mr Woodall’s] inability to obtain remunerative work”.
Regarding Ground 2(b), the Court did not accept this submission. What the Tribunal did was to draw inferences from the limited available evidence about what had occurred when three prospective employers interviewed Mr Woodall, which supported findings about Mr Woodall’s capacity to obtain alternative employment.
Regarding Ground 2(c), the Court considered this complaint lacked substance, as it ignored the plain words of the Tribunal’s reasons at paragraph .
The Court’s Decision
The appeal was dismissed.
The Court referred to Cavell v Repatriation Commission (1988) 9 AAR 534, where Burchett J said at 539 that the Tribunal’s task in relation to s24(1)(c) was:
… to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.
Richmond recently expressly endorsed these observations. It was the Court’s view that a similar “practical”, realistic and “common sense” approach is also called for when the Tribunal is making decisions under s24(2)(b).