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NOEL TERRANCE HALL v. REPATRIATION COMMISSION No. QG127 of 1992 FED No. 458/94 Defence and war (1994) 33 ALD 454
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
SPENDER J
HRNG
BRISBANE, 6 June 1994
#DATE 22:6:1994
Counsel for the applicant: Mr K. J. McGhee
Instructed by: Sampson and Assoc.
Counsel for the respondent: Mr S. L. Doyle
Instructed by: Australian Government Solicitor
ORDER
The Court orders that:
(i) the appeal be allowed;
(ii) the matter be remitted to the Tribunal to be heard and
determined according to law, with such further or other
evidence as the parties might wish to place before it;
(iii) the respondent pay the applicant's costs of the
application, to be taxed if not agreed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.
JUDGE1
SPENDER J This is an appeal by Noel Terrance Hall from a decision of the
Administrative Appeals Tribunal (constituted by Mr K. L. Beddoe, Senior
Member, Brigadier I. R. W. Brumfield, Member, and Dr J. B. Morley, Member)
given on 6 August 1992 wherein the Tribunal directed that the decision under
review (being a decision of the Repatriation Commission made on 31 January
1990 that he should receive pension at 100% of the General Rate) be varied by
deciding that the applicant is entitled to pension at 100% of the General Rate
with effect from 24 July 1985.
2. The appeal is in the original jurisdiction of the Federal Court and,
pursuant to s. 44 of the Administrative Appeals Tribunal Act 1975, lies only
on a question of law. The Tribunal determined that Mr Hall was not prevented
from engaging in remunerative work because of service related disabilities
alone.
3. On 24 August 1989, the veteran, Mr Hall, applied for an increase in his
disability pension. In that application, he indicated his current rate of
disability pension was 80-90%. It is accepted by the parties that this
application comprehended an application to an entitlement to either the
Special rate of pension or the Intermediate rate of pension provided for by
ss. 23 and 24 respectively of the Veterans' Entitlements Act 1986 ('the Act').
4. Mr Hall was born on 13 December 1935 and as a consequence he is not
entitled to the Extreme Disablement Adjustment pursuant to s. 22 of the Act.
5. Mr Hall served in the Army for a period of some thirty-three years, rising
to the rank of major. He was discharged on 26 March 1986 on non-medical
grounds. As the Veterans' Review Board noted, Mr Hall was a career soldier
who took a voluntary decision to finish his army career in March 1986. The
Review Board said:
"Mr Hall was not discharged from the army medically unfit.
He openly admits that he resigned his Commission in the army
at the time that he did to maximise payment of
superannuation benefits in the manner that he desired. He
expresses an opinion that if he had continued in the army in
which he may have served for another four years, he may have
been discharged on medical grounds, and such a discharge
would not have allowed him to maximise his superannuation
benefits and order his affairs in the manner which he
personally desired."
6. There is now no argument advanced on Mr Hall's behalf that he ceased to be
a member of the army in which he had served for some thirty-three years
because of incapacity arising solely from service related
disabilities/diseases. It seems accepted that Mr Hall's desire to maximise
superannuation benefits was a leading factor motivating his decision to resign
his commission at the time that he did. Mr Hall in fact commuted his pension
on 25 March 1986 to receive a lump sum and a reduced pension.
7. Mr Hall rendered operational services overseas from 31 May 1965 to 5 June
1965, from 1 June 1967 to 2 June 1967 and from 13 January 1971 to 7 October
1971. He also had eligible service in respect of non-operational Defence
Service over the period 7 December 1972 to 26 March 1986. Mr Hall's army
service is notable for his rise through the ranks from private to Warrant
Officer Class 2, and then being commissioned as a Lieutenant, with subsequent
promotions to Captain and Major. He served in Borneo in 1966, and in South
Vietnam in 1971. Mr Hall was awarded an MBE in 1982 for his exceptional
service in the field of personnel management.
8. This appeal turns on the proper interpretation of s. 24 of the Act, which
relevantly provides:
"(1) This section applies to a veteran, other than a veteran
to whom section 25 applies, if:
(a) either:
(i) the degree of incapacity of the veteran from
war-caused injury or war-caused disease, or
both, is determined under section 21A to be
at least 70% or has been so determined by a
determination that is in force; or
(ii) the veteran is, because he or she has
suffered or is suffering from pulmonary
tuberculosis, receiving or entitled to
receive a pension at the general rate;
(b) is totally and permanently incapacitated, that is to
say, the veteran's incapacity from war-caused injury or
war-caused disease, or both, is of such a nature as, of
itself alone, to render the veteran incapable of
undertaking remunerative work for periods aggregating
more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that
war-caused injury or war-caused disease, or both, alone,
prevented from continuing to undertake remunerative
work that the veteran was undertaking and is, by reason
thereof, suffering a loss of salary or wages, or of
earnings on his or her own account, that the veteran
would not be suffering if the veteran were free of that
incapacity.
(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury
or war-caused disease, or both, shall not be taken to
be suffering a loss of salary or wages, or of earnings
on his or her own account, by reason of that incapacity
if:
(i) the veteran has ceased to engage in
remunerative work for reasons other than his
or her incapacity from that war-caused injury
or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented,
from engaging in remunerative work for some
other reason; and
(b) where a veteran, not being a veteran who has attained
the age of 65 years, who has not been engaged in
remunerative work satisfies the Commission that he or
she has been genuinely seeking to engage in
remunerative work, that he or she would, but for that
incapacity, be continuing so to seek to engage in
remunerative work and that that incapacity is the
substantial cause of his or her inability to obtain
remunerative work in which to engage, the veteran shall
be treated as having been prevented by reason of that
incapacity from continuing to undertake remunerative
work that the veteran was undertaking."
9. Section 9 of the Act defines "war-caused injuries or diseases". Section
13 provides, inter alia, that where a veteran has become incapacitated from
war-caused injury or war-caused disease, the Commonwealth is liable to pay, in
the case of incapacity of a veteran, pension to the veteran in accordance with
the Act.
10. Section 19 relevantly provides:
"(1) Where a claim or application is submitted to the
Commission in accordance with subsection 17(2), the
Commonwealth shall:
(a) consider all matters that, in the Commission's
opinion, are relevant to the claim or application; and
(b) subject to this section, determine the claim as
provided by subsection (3) or the application as
provided by subsection (4).
...
(3) The Commission shall determine a claim for a pension as
follows:
(a) first, the Commission shall determine whether the
claimant is entitled to be granted a pension in
respect of:
(i) the incapacity of a veteran from war-caused
injury or war-caused disease, or both; or
(ii) the death of a veteran that was war-caused;
(b) then, if the Commission determines that the claimant
is so entitled, the Commission shall proceed as set
out in subsection (5).
(4) The Commission shall determine an application for a
pension at an increased rate in accordance with subsection
(5).
(5) Where paragraph (3)(b) applies in respect of a claim or
subsection (4) applies in respect of an application, the
Commission shall assess, in accordance with whichever of
sections 22, 23, 24, 25, 27 and 30 are applicable;
(a) the rate or rates at which the pension would have been
payable from time to time during the assessment
period; and
(b) subject to subsection (6), the rate at which the
pension is payable from the date of the determination;
and shall make a determination approving the payment of
pension in accordance with that assessment."
11. Section 22 provides that the general rate of pension is payable to a
veteran other than a veteran to whom ss. 23, 24 or 25 applies. The rate at
which that pension is payable is the rate per fortnight that constitutes the
same percentage of the general rate as the percentage determined by the
Commission to be the degree of incapacity of the veteran from war-caused
injury or war-caused disease, or both, as the case may be: section 22(2).
Section 23 provides for an Intermediate Rate of pension if the incapacity from
war-caused injury or war-caused disease, or both, is of itself alone of such a
nature as to render the veteran incapable of undertaking remunerative work
otherwise than on a part-time basis or intermittently. The Special Rate of
pension, for which s. 24 of the Act provides, applies if, inter alia, the
degree of incapacity is at least 70% (as is the case with Mr Hall) and the
veteran is totally and permanently incapacitated; that is to say, Mr Hall is
incapable of undertaking remunerative work for periods aggregating more than
eight hours per week, and Mr Hall is by reason of incapacity from that
war-caused injury or war-caused disease, or both, alone, prevented from
continuing to undertake remunerative work that he was undertaking.
12. The Tribunal in its reasons said that "on the evidence, ...the applicant
applied for discharge because he wished to ensure he retained the right to
commute his pension entitlement. " The Tribunal acknowledged that in 1989 Mr
Hall was hospitalised for lower back problems. The Tribunal said:
"The reality, on the evidence before us, is that his
retirement activities have been severely restricted by the
deterioration of his medical condition."
The Tribunal noted:
"The applicant has made attempts to obtain employment but
those attempts appear to have been desultory and self
serving. That is not to reflect adversely on the applicant.
It does, however, reflect his medical condition."
13. This finding identifies a crucial question on this appeal. The Veterans'
Review Board referred to his efforts to obtain employment as going "through
the motions of attempting to seek some form of remunerative activity". It
said, referring to an example of Mr Hall's job seeking, that:
"...one could not reasonably conclude in any circumstance
that this was a whole hearted effort to genuinely re-enter
the work force."
and said of this:
"...the Board would point out that it is aware that there is
a view in some quarters that a person who is so afflicted by
service related incapacity that he cannot actively seek to
engage in remunerative activity does satisfy that criteria
detailed in Section 24(2)(b) of the Act for this very
reason. This view is not universally held, nor should it be
inferred that all members or any members of the existing
Board subscribe to this legislative interpretation."
14. There is conflicting medical evidence as to Mr Hall's condition prior to
7 March 1990. A Dr Carlyle on 20 August 1987 expressed the view that the
applicant was "unemployable and due to the nature of the condition, requiring
the discharge from the Army, should not be seeking employment". On the other
hand, a Dr Champion, in July 1988 diagnosed a consequential severe chronic
pain syndrome but found that Mr Hall was not in distress although he did have
dizzy turns during the consultation. It seems clear that the Tribunal
accepted that the applicant's condition deteriorated during 1989.
15. The Tribunal accepted the evidence of Dr Sharwood, an orthopaedic
surgeon, who had examined Mr Hall on 7 March 1990 when the applicant was 54
years of age. Dr Sharwood's view was that the applicant was severely disabled
with regard to his back problems which stemmed from injuries twenty years
earlier, there was very significant lumbar spine disease and a neck fusion.
Mr Hall's problems were diagnosed by Dr Sharwood as related to his lumbar
spine with disc degeneration causing nerve root irritation and sciatica, and
Dr Sharwood expressed the opinion that the applicant -
"is totally unemployable and will never be able to do any
significant work."
16. The Tribunal was satisfied, in the light of Dr Sharwood's report, that
the applicant -
"is now totally and permanently incapacitated so as to render
the applicant incapable of undertaking remunerative work."
17. The Tribunal expressed its view that Mr Hall was so incapacitated from 7
March 1990, the time of Dr Sharwood's report, but the Tribunal expressed the
view:
"We do not consider there is any basis for being so satisfied
that was the case at the date of either application."
18. The reference to "either application" is a reference to an application
made on 24 October 1985 and the application on 24 August 1989 to which
reference has already been made. The Tribunal, nonetheless, said:
"Clearly the applicant's condition deteriorated after his
discharge but Dr Sharwood's report is in our view the
determinative factor in the material before us."
19. It is necessary to set out the gravamen of the Tribunal's conclusion
which are contained in paragraphs 27, 28 and 29 of their findings.