FEDERAL COURT OF AUSTRALIA Grant v Repatriation Commission [1999] FCA 1629 VETERANS' AFFAIRS – disability pension – special rate – whether veteran over 65 years of age is prevented from continuing to undertake the remunerative work he was last undertaking – whether tribunal required only to address questions raised by "the case" put by an applicant - whether the tribunal addressed the questions required to be addressed by s 24(2A)(d) Veterans' Entitlements Act 1986 (Cth) – s 24(2A) Noble v Repatriation Commission [1997] FCA 1159 – cited Bushell v Repatriation Commission (1992) 175 CLR 408 – cited Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 – cited Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285 – cited Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 – cited Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 – cited BRIAN WILLIAM GRANT v REPATRIATION COMMISSION V 492 of 1999 JUDGES: MERKEL, GOLDBERG AND WEINBERG JJ DATE: 23 NOVEMBER 1999 PLACE: MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 492 of 1999 BETWEEN: BRIAN WILLIAM GRANT Applicant AND: REPATRIATION COMMISSION Respondent JUDGES: MERKEL, GOLDBERG AND WEINBERG JJ DATE OF ORDER: 23 NOVEMBER 1999 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders of the primary judge made on 4 August 1999 be set aside and in lieu thereof order that: (a) the decision of the Administrative Appeals Tribunal made 30 April 1998 be set aside; (b) the matter be remitted to the Administrative Appeals Tribunal to be determined in accordance with law; (c) the respondent pay the taxed costs of the appellant of and incidental to the appeals to the primary judge and to the Full Court save for the costs of and incidental to the hearing before the primary Judge. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 492 of 1999 BETWEEN: BRIAN WILLIAM GRANT Applicant AND: REPATRIATION COMMISSION Respondent JUDGES: MERKEL, GOLDBERG AND WEINBERG JJ DATE: 23 NOVEMBER 1999 PLACE: MELBOURNE REASONS FOR JUDGMENT THE COURT: Introduction 1 The appellant appeals to the Court from the decision of a Judge of the Court whereby his Honour dismissed an appeal from the decision of the Administrative Appeals Tribunal ("the AAT") that the appellant was not entitled to a special rate of pension pursuant to s 24 of the Veterans' Entitlements Act 1986 (Cth) ("the Act"). 2 The appeal concerns the circumstances in which a veteran, who is over the age of 65 and is eligible to be paid a pension under the Act, is entitled to receive a pension at the special rate under s 24 of the Act. The appellant had turned 65 before he lodged his claim for his pension under the Act on 27 February 1996. In order to be eligible for a pension at the special rate the requirements of s 24(2A) of the Act were required to be satisfied. The main requirement in issue before the primary judge, and on appeal, was the criterion in s 24(2A)(d) that: "the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application." 3 On 30 April 1998 the AAT, at the conclusion of the hearing, affirmed the decision of the Veterans' Review Board that the appellant was not entitled to a pension at the special rate. Subsequently, pursuant to a request of the appellant, the AAT furnished its reasons in writing for the decision: see s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). 4 Pursuant to s 44(1) of the AAT Act the appellant appealed to the Court, on a question of law, from the decision of the AAT. The appeal, which was heard by the primary Judge, was dismissed on the basis that the appellant had failed to make out any of the grounds of appeal relied upon by the appellant. The appellant has appealed to the Full Court against the judgment of the primary Judge. 5 In the course of the hearing before the Full Court it became apparent that the main ground upon which the appellant was seeking to impugn the decision of the AAT had not been raised before the AAT or before the primary Judge. In substance, the ground was that the AAT had failed to direct itself to the question of whether, after making the claim for a pension under the Act and during the assessment period under the Act (being from 27 February 1996 to 30 April 1998), the appellant was prevented because of incapacity from war-caused injury alone from continuing to undertake the last paid work that the veteran had been undertaking before he made the claim for his pension. Rather, so the appellant contended, the AAT erroneously directed itself to the question of whether the veteran was prevented from continuing the last paid work because of incapacity from war-caused injury alone when he had ceased to engage in that work prior to making the claim for a pension under the Act. The legislation 6 Relevantly, s 24 provides as follows: "(2A) This section applies to a veteran if: … (d) the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and (e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and (f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and (g) 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; and … (2B) For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if: (a) 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 (b) the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason." 7 Section 5Q defines "remunerative work" as including any remunerative activity. Sections 19(5), 19(9) and 24A operate to entitle a veteran, who satisfies the requirements of s 24 at any time during the assessment period (being the period starting on the day the application or claim for a pension is made and ending when the claim or application is determined) to a pension at the special rate until, inter alia, the veteran is undertaking or is capable of undertaking remunerative work for periods aggregating more than eight hours per week (s 24A(1)(c)). 8 In order for a decision maker to be satisfied that the criterion in s 24(2A)(d) has been met the decision maker must determine: · the "remunerative work" that the veteran was last undertaking before he or she made the claim or application; · whether the veteran is, at any time during the assessment period, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake that remunerative work. 9 Determination of the "remunerative work" referred to in s 24(2A)(d) requires the characterisation of the specific remunerative activity or activities that the veteran was last undertaking before making the claim or application rather than of the capacity in which that work was undertaken. The particular capacity in which the work was undertaken is dealt with as a separate criterion in s 24(2A)(g). Thus, whether or not the work was undertaken as an employee or as a self employed person is irrelevant to the characterisation to be given to that work under s 24(2A)(d). That conclusion follows from the definition of "remunerative work" in s 5Q, the recognition in s 24(2A)(g) that the capacity in which work is undertaken is to be treated as a matter separate from the work that was undertaken for the purposes of s 24 and is consistent with the purpose of s 24(2A) of providing for payment at the special rate where a person is prevented solely by war-caused incapacity from continuing to undertake the work that the veteran was last undertaking before making the claim or application. In our view it would be inconsistent with that purpose for the characterisation of that work to include, or to be made to depend upon, the capacity in which that work was undertaken. 10 Section 24(2A)(d) can be contrasted with s 24(1)(c) which provides for a pension at the special rate for veterans under the age of s 65 who are prevented by war-caused injury or disease from undertaking "remunerative work that the veteran was undertaking"; a term which has been construed as referring to the type of work that the veteran previously undertook: see Banovich v Repatriation Commission (1987) 69 ALR 395 at 402. Although by focusing upon the last paid work s 24(2A)(d) may be more restrictive than s 24(1)(c), which focuses upon remunerative work of the type the veteran previously undertook, neither sub-section is concerned with the capacity in which that work is undertaken. 11 Having identified the last paid work for the purposes of s 24(2A)(d) the decision maker is then required to determine whether at any time during the assessment period because of incapacity from war caused injury or disease or both, alone, the veteran was prevented from continuing to undertake that remunerative work. Thus, the reason why the veteran may have ceased to undertake the last paid work prior to the date of the claim is relevant to, but not determinative of, the inquiry required by s 24(2A)(d). 12 A veteran who has satisfied the requirements of s 24(2A)(d) must also satisfy the criterion in s 24(2A)(e) that, because the veteran was so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her account, that he or she would not be suffering if he or she were free from the incapacity. The AAT decision 13 The AAT accepted that the appellant's service in the Australian army during World War II constituted "operational service" for the purposes of the Act and that he suffered from a number of service related disabilities which interfered significantly with his ability to work effectively. It was not in dispute that from about 1976, after the appellant purchased a sheep farming property, the remunerative work engaged in by him was that of a sheep farmer. As explained above it is not relevant to s 24(2A)(d) that he was self employed. Over time the appellant found it increasingly difficult to carry out the physical labour required in running the sheep farm and, in 1986, his son returned to the farm to assist him. The appellant stated that in 1993 he had become so debilitated that he had to give up farming altogether. Between 1986 and 1993 the appellant said he had been able to supervise the operation of the farm but his inability to perform physical work meant that he was obliged to employ labour which resulted in the farm no longer being economically viable. 14 The main area of contest before the AAT appears to have related to whether the appellant's cessation of work on his farm, as early as 1986 or as late as 1993, was not only because of his war-caused incapacity but also because of the economic slump in the wool industry which resulted in low prices for wool. 15 In its reasons for decision the AAT outlined the evidence on that issue, which was accurately described by the primary Judge as "confusing and, at times, contradictory". For present purposes it is unnecessary to set out the detail of that evidence. In its reasons the AAT stated: "…s.24(2A)(d) was not satisfied in that it was not the incapacity from war-caused injury or war-caused disease, or both, alone, that prevented the veteran from continuing to undertake the remunerative work. The collapse of the wool industry had, on the evidence, been a major contributing reason." and that it had: "determined that, on the evidence of the veteran, both the oral evidence taken on the day by telephone and documentary evidence, in particular that contained in Exhibit A4, the applicant did not satisfy the 'alone test' and had ceased remunerative work due to the combination of the effects of his accepted war-caused disabilities and the economic slump in the wool industry in the 1980's which continued well into the 1990's." 16 The AAT addressed the issue of why the appellant had ceased his last paid work but did not address whether war-caused incapacity alone prevented the appellant from continuing to undertake that work during the assessment period. We do not accept the contention of the respondent that the AAT should be taken to have done so implicitly. Reasoning on the appeal 17 The AAT is entitled to be guided by the issues that the parties choose to put before it for its consideration (Sullivan v Department of Transport (1978) 20 ALR 323 at 342, Repatriation Commission v Hughes (1991) 23 ALD 270 at 274 and Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 487-489) and is entitled to have regard to the case put (Noble v Repatriation Commission [1997] FCA 1159 at 16). In Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-425 Brennan J said of the inquisitorial procedure of the AAT: "Proceedings before the A.A.T. may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant's case but in substance the review is inquisitorial. Each of the Commission, the Board and the A.A.T. is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it…The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings." 18 An inquisitorial review conducted by the AAT, as with the Refugee Review Tribunal, is one in which the tribunal is required to determine the substantive issues raised by the material and evidence advanced before it and, in doing so, it is obliged not to limit its determination to the "case" articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant: see Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 at [23] and Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285 at [15]). 19 In the present matter the AAT dealt with the "case" articulated by the appellant and, as a consequence, focused its attention and fact finding on the reason why the appellant ceased working as a sheep farmer at some time between 1986 and 1993. As explained above the AAT's determination of that matter was relevant to, but not determinative of, the matters the AAT was required to address under s 24(2A)(d). That sub-section required the AAT to make a determination as to whether the appellant was prevented from continuing to engage in his last paid work during the assessment period solely because of incapacity from war-caused injury or disease. We are satisfied that the AAT failed to address that issue, which it was required to address, and thereby erred in law by not applying itself to the question which the law prescribes: see The King v War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228 at 242-243. 20 The fact that that error of law was not raised previously does not preclude the appellant from raising it on appeal provided the respondent has been afforded an opportunity to be heard on the issue: see Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186, 194-195, 199 and 205 and Minister for Immigration and Multicultural Affairs v Seligman (1998) 85 FCR 115, 129. Other grounds of appeal 21 Our conclusion on the main ground of appeal argued before us means that it is unnecessary to consider the other grounds of appeal upon which the appellant relied. Having regard to the fact that this matter is to be remitted to the AAT for further consideration we should say that we are not satisfied that any error has been demonstrated in respect of the grounds argued on the appellant's behalf before the primary judge. Conclusion 22 For the above reasons the appeal is to be allowed, the orders of the primary judge are to be set aside and the matter is to be remitted to the AAT for determination in accordance with law. 23 The respondent ought to pay the appellant's taxed costs of and incidental to the appeals to the primary judge and to the Full Court, save for the costs of and incidental to the hearing before the primary judge at which the ground upon which the appellant has succeeded was not raised. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel, Goldberg and Weinberg. Associate: Dated: 23 November 1999 Counsel for the Applicant: Mr D De Marchi Solicitor for the Applicant: De Marchi & Associates Counsel for the Respondent: Mr PJ Hanks Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 15 November 1999 Date of Judgment: 23 November 1999