FEDERAL COURT OF AUSTRALIA Thomson v Repatriation Commission [1999] FCA 1485 DEFENCE FORCES – veterans' entitlements – appeal from Administrative Appeals Tribunal – pensions, allowances and other benefits – special rate pension – veteran over 65 – medical practitioner in private practice – locum engagements – whether working for a continuous period of at least 10 years WORDS AND PHRASES – "continuous period" Veterans' Entitlements Act 1986 (Cth) s 24(2A)(g)(ii) WILLIAM MCLAREN THOMSON v REPATRIATION COMMISSION NO. T14 of 1999 HEEREY J 28 OCTOBER 1999 MELBOURNE (HEARD IN HOBART) IN THE FEDERAL COURT OF AUSTRALIA HOBART DISTRICT REGISTRY T14 OF 1999 BETWEEN: WILLIAM MCLAREN THOMSON Applicant AND: REPATRIATION COMMISSION Respondent JUDGE: HEEREY J DATE OF ORDER: 28 OCTOBER 1999 WHERE MADE: MELBOURNE (HEARD IN HOBART) THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The applicant pay the respondent's costs, including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA HOBARTDISTRICT REGISTRY T14 OF 1999 BETWEEN: WILLIAM MCLAREN THOMSON Applicant AND: REPATRIATION COMMISSION Respondent JUDGE: HEEREY J DATE: 28 OCTOBER 1999 PLACE: MELBOURNE (HEARD IN HOBART) REASONS FOR JUDGMENT 1 Section 24 of the Veterans' Entitlements Act 1986 (Cth) (the Act) provides for a special rate of pension colloquially referred to as TPI (Totally and Permanently Incapacitated). Detailed conditions are prescribed by the Act, but in essence a special rate pension is payable where the veteran's war-caused injury or disease renders him or her incapable of undertaking remunerative work. 2 Since most of the workforce retire at or before age 65, ordinarily it would be inappropriate to pay special rate pensions to veterans who by reason of reaching age 65 would not have been engaged in remunerative work in any event. Provision is made for the exceptional case by s 24(2A), which was inserted in the Act in 1994. In introducing the Bill the Minister said that it would be "only in very rare cases that any veteran beyond the normal retirement age would be eligible for such rates of pension." The Minister described the effect of the new provision as follows: "An exception to this rule will apply if a veteran is engaged in remunerative work after the age of 65 and that work was in the same business or employment in which the veteran had been working for ten continuous years." 3 Section 24(2A) provides a number of criteria, (a) to (h), all of which have to be satisfied by a veteran who has turned 65. It was common ground in the present case that the veteran satisfied requirements (a) to (f) and (h). The only requirement in issue was (g) which provides: "When the veteran stopped undertaking his or her last paid work, the veteran: (i) if he or she was then working as an 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 – had been so working in that profession, trade, employment, vocation or calling; for a continuous period of at least 10 years that began before the veteran turned 65;" 4 In the present case the veteran was a medical practitioner. He turned 65 on 9 June 1989. He had practised on his own account from 1953 to 1994. He then worked as a locum in various practices in Tasmania until July 1996 when he was diagnosed with bipolar disorder. This was accepted as a war-caused disease. 5 The question before the Administrative Appeals Tribunal therefore was whether he had been working on his own account in the profession of medical practitioner for a continuous period of at least ten years up to July 1996. 6 The Tribunal had in evidence before it the veteran's diaries. It made the following findings: "11. The remaining issue for the Tribunal to decide is whether that work was continuous for a period of at least 10 years. There is no dispute as to this issue for the period up until the applicant's retirement in July 1994. It was also conceded by Mr. Castle [for the Commission] that the applicant's work was basically full-time for the remaining six months of 1994. An examination of the diaries showed, and the Tribunal is satisfied that the applicant's work was fairly consistent during the first part of 1995, at least until May when it appears that the applicant only worked for two days in Campbell Town and did not work again between 10 May and 19 June when he worked for a period until 6 July at Bridgewater. There are no recordings in the diaries for any work performed by the applicant during August 1995, except on the 9th when he attended to complete a death certificate for a patient. The diaries reveal a greater workload in the latter part of 1995 when the applicant worked for a medical practice in Zeehan, the Aboriginal Medical Service, for Dr. Maharaj, and for Dr. Scarr at Bridgewater. Whilst the applicant's work was fairly consistent during the early part of 1996 there is a significant gap for the months of April and May 1996 when the applicant was not working apart from, as he said in evidence, attending a few old friends during a three day stay at Koonya on the Tasman Peninsula. During June 1996, the applicant said that he spent time visiting a number of practices in an endeavour to obtain a more regular type of work. As a result of negotiations he was employed by Dr. Ayling at the Glenorchy Medical Centre. However this did not continue as he understood the practice wished to employ a female practitioner and Dr. Thomson's services were terminated after only eight days of practice." 7 In the course of discussion before the Tribunal the Commission's representative accepted that the veteran had worked about 180 days in an 18 month period from the beginning of 1995 to mid July 1996. 8 The Tribunal's reasoning was as follows: "12. Mr Webster on behalf of the applicant urged the Tribunal to determine, not whether the applicant's work was uninterrupted or whether he worked every day during the period in question, but rather whether he worked for a continuous period. 13. The Tribunal agreed that it is not necessary that the applicant work for each day of the 10 year period. For instance in Melocco [(1997) 25 AAR 451, a Tribunal decision] the veteran worked for one day in each week and was still found to be continuously self-employed for a ten year period. 14. However the Tribunal does agree with Mr. Castle's submission that there must be continuity of employment. The Tribunal was referred to the Oxford English Dictionary's definition of continuous, being connected, unbroken, uninterrupted by time. On the evidence before the Tribunal, it is not possible to conclude that the applicant was working on his own behalf for a continuous period for the whole of the period in question. The Tribunal has already referred to significant periods of time when he was not working at all. The Tribunal is unable to conclude that the applicant was working on his own account 'for a continuous period of at least 10 years that began before the veteran turned 65' as required by s.24(2A)(g) of the Act for entitlement to the special rate of pension. The appeal must accordingly be dismissed." 9 On the appeal to this Court counsel argued that s 24(2A)(g)(ii) did not require a person to be working for a continuous period of ten years for the whole of that period. He argued that the Tribunal had misconstrued the provision by reading it as though it said "had been so continuously working in that profession … for a continuous period of at least ten years." 10 However, as counsel conceded, if a veteran carrying on a profession simply stopped working for a period of, say, a year, there would not be the continuous period required by the Act. At the other end of the spectrum, interruptions caused by holidays or sickness for a week or so would not prevent the period being continuous. It is all a matter of fact and degree. An eighteen month period contains about 390 weekdays. Even allowing for public holidays and personal holidays, if the veteran worked for only 180 days, it was open to the Tribunal to find that there were sufficiently long periods in which the veteran was not working to prevent the period up to July 1996 being continuous. 11 The appeal will be dismissed with costs, including reserved costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 28 October 1999 Counsel for the Applicant: R M Webster Solicitor for the Applicant: R M Webster Counsel for the Respondent: P J Hanks Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 12 October 1999 Date of Judgment: 28 October 1999