FEDERAL COURT OF AUSTRALIA Woodward v Repatriation Commissioner [1999] FCA 1647 VETERANS' COMPENSATION - entitlement to compensation for war-related injuries under Veterans' Entitlements Act 1986 - relationship between loss of remuneration and injury - where war injuries not sole contributing factor to cessation of paid work - whether monies recovered qualify as remunerative work Veterans' Entitlements Act 1986 s 24 JACK WALTER WOODWARD v REPATRIATION COMMISSION Q 96 OF 1999 KIEFEL J BRISBANE 26 NOVEMBER 1999 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 96 OF 1999 ON APPEAL FROM THE VETERANS' APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR DW MULLER (SENIOR MEMBER) BETWEEN: JACK WALTER WOODWARD Appellant AND: REPATRIATION COMMISSION Respondent JUDGE: KIEFEL J DATE OF ORDER: 26 NOVEMBER 1999 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 96 OF 1999 ON APPEAL FROM THE VETERANS' APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR DW MULLER (SENIOR MEMBER) BETWEEN: JACK WALTER WOODWARD Appellant AND: REPATRIATION COMMISSION Respondent JUDGE: KIEFEL J DATE: 26 NOVEMBER 1999 PLACE: BRISBANE REASONS FOR JUDGMENT 1 On 16 June 1997, the Veterans' Review Board determined that Mr Woodward was entitled to a pension of 100 per cent calculated on the General rate of pension with effect from 29 November 1996, but that he was not entitled to a Special or Intermediate Rate. The Administrative Appeals Tribunal affirmed that decision and Mr Woodward appeals from the Tribunal's decision. 2 Mr Woodward was a solicitor and sold his practice in 1982 to his son and two other solicitors when he turned 60 and became entitled to a service pension. He remained as a consultant to the firm. He was paid $65 per week, which was calculated according to the maximum amount that he was entitled to receive without his service pension being reduced. 3 From 1984, Mr Woodward received medical treatment for conditions which were accepted by the Board as war-caused, namely, dermatitis, solar skin damage with malignant change, and a duodenal ulcer, the treatment of which carried the further complication of chronic diarrhoea. By 1996, he had problems with his knees and his hips, but only the condition of the right knee was accepted as being service related. He left his work as a consultant in December 1996 and underwent an operation for the replacement of his left hip almost immediately. He has not returned to the consultancy since that time and has not continued to receive the $65 per week. 4 Entitlement to a Special rate of pension depends upon the provisions of s 24 of the Veterans' Entitlements Act 1986 applying to the veteran. Subsection 24(2A), which is here relevant, provides: "(2A) This section applies to a veteran if: (a) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and (b) the veteran had turned 65 before the claim or application was made; and (c) paragraphs (1)(a) and (1)(b) apply to the veteran; and (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 (h) section 25 does not apply to the veteran." 5 It is not necessary to refer to paragraphs 1(a) and (b). The Commission did not dispute that paragraphs (a), (b) and (c) of subs 24(2A) were fulfilled. At issue were the requirements of par (d). 6 The Tribunal's decision had two bases: that Mr Woodward was not prevented from undertaking remunerative work because that was not the nature of the work he performed as a consultant; and that it was not only war-caused injuries or diseases which prevented him from undertaking that work (whether it be regarded as remunerative or not). But there were other factors which operated. The Tribunal found: "13. I do not accept that the claimed facial problems and diarrhoea caused Mr Woodward to cease his association with the solicitor's firm in December 1996. He had been receiving treatment for those problems since 1984/85. His non-accepted orthopaedic problems and his age have also been significant factors in his decision to give up the hobby that he had been engaged in since 1982. He ceased his association with the solicitor's [sic] firm in 1996 of his own free will, as indeed he did when he retired in 1982. 14. I am not satisfied that there has been any loss of salary, wages or earnings on Mr Woodward's own account due to any service related incapacity. In my view Mr Woodward is not entitled to a rate of pension above the General Rate." 7 The requirement of subs 24(2A) is that only war-caused injuries or diseases operate to prevent the continuance of the work for which the veteran had been paid. If that requirement was not met by Mr Woodward there is no entitlement to a pension. For that reason, and despite submissions for Mr Woodward focusing upon the finding relating to whether remunerative work was undertaken, it is necessary here to consider whether the Tribunal's finding set out above was justifiable. 8 Argument before the Tribunal, in connexion with the cause of Mr Woodward not continuing with the consultancy work with his son's firm, centered upon the contribution, if any, of his arthritic hip which, it will be recalled, was found not to be service-related. The evidence before the Tribunal was that Mr Woodward's mobility was quite impaired at work by December 1996. He gave evidence that he was given a downstairs office because of the difficulty he had in moving about the two level office and this occurred on 6 December 1996. He ceased his association with the firm six days later and at that time was due to undergo the replacement hip surgery. Mr Woodward's evidence was that the hip played no part in his ability to pursue his work and that it was embarrassment or discomfort associated with his skin condition and his ulcer that caused him to decide to terminate the consultancy. The distinction he sought to draw was that while there was limitation of mobility (although he would not rate it as high) this did not prevent him driving to see clients or interviewing them as necessary. Other medical evidence indicated that he would have been in considerable pain at this time. Mr Woodward said that the operation was immaterial to his decision with respect to the consultancy. The evidence did not contain a discussion as to the basis for this, given the symptoms he would have been suffering from the hip, and in particular whether he had a belief in the success of the operation he was to undertake. The Tribunal found that, as a result of the surgery, Mr Woodward is no longer incapacitated by hip problems. 9 The question posed by par (d) of the subsection in the present circumstances was whether the skin condition and ulcer were the only factors which prevented Mr Woodward from continuing to undertake the consultancy. The question is not one which looks to loss of, or impairment to, earning capacity. Whilst appearing to be a different question, an inquiry as to what caused Mr Woodward to cease that association with the firm in this case was logically capable of providing the answer to the par (d) question. 10 Had the factors found to operate to prevent continuation of the work been only the skin condition, ulcer and arthritic hip, a question may well have arisen as to whether problems associated with the hip played a real part in the decision, although this would depend upon what Mr Woodward appreciated would result from the operation. The Tribunal's decision, however, was not confined to the hip condition as the additional disentitling factor. Rather, the Tribunal considered that Mr Woodward had made a decision to retire and not one simply that he was physically unable to continue. In this latter respect, it discounted the skin related injuries and diarrhoea as operative, and noted that he had been receiving treatment for these for over eleven years at the time he retired. With respect to one symptom that may not have been accurate, but nothing seems to me to turn upon it. In what follows, it would seem that the war-caused conditions may have had a relationship with his not continuing to undertake his activities, but they did not themselves prevent it. Earlier in the reasons, the Tribunal had found that when he had sold his practice in 1982 Mr Woodward "had had enough of practising as a solicitor" and that "he was then suffering the combined effects of age and burn-out". That led to a conclusion of voluntary retirement and the later observation that the extent of the work undertaken amounted to a "hobby". There was evidence to support these findings, albeit that there was evidence, which the Tribunal plainly did not accept, that the work undertaken was somewhat greater and that he was not really in retirement, but had merely continued work. The Tribunal appears then to have concluded that the step taken in December 1996 was simply the final step into full retirement and a reflection of Mr Woodward's earlier need for, and desire to, cease work to all practical extents, together with his consideration of his age and the various conditions he suffered from. The conclusion therefore reached was that he had simply determined not to continue. It was not that he was unable to do so by reason of his war-related injuries or diseases. In determining, as a fact, the reason why Mr Woodward terminated his consultancy, the Tribunal could not be said to have been legally in error. To overcome this finding requires a different view to be taken of the evidence and that is not a function for this Court. Indeed, the only possible legal error identified in argument was that to which the majority of argument was addressed, namely whether the Tribunal understood the meaning to be given to the words "remunerative work". The insurmountable difficulty for Mr Woodward however was that even if submissions on his behalf on that question were accepted, the findings of the Tribunal as to the lack of a sole causal connexion between loss of that remuneration and war-related injuries necessarily concludes the matter against him. 11 It is not strictly necessary for me then to deal with that part of the Tribunal's decision which concerned whether Mr Woodward had been engaged in remunerative work at the time he retired, but I shall make the following brief observations. 12 It was submitted that insufficient opportunity was given to address the question as to whether the payment of $65 per week was "remunerative work". It was submitted that the issue first arose in the Tribunal's reasons. I do not think that is, however, entirely accurate. The subsection itself contained that requirement; it was addressed in Mr Woodward's evidence and it was the subject of cross-examination. 13 The applicant's principal submission was that there was no evidence to support the finding that the amount of $65 per week was not remuneration paid for work. The amount of work undertaken varied between one and three days over the period in question. It was, clearly, a small amount of money paid to a senior solicitor. Looking at the question whether it could be said to be some recompense or reward for services, it seems to me to have been open to the Tribunal to infer that it was not, and in drawing that inference it does not appear to have been guided by any incorrect appreciation of what remunerative work meant. There were two additional aspects of the evidence which the Tribunal, as it was entitled, took into account. The effect of the evidence was that the sum was calculated, not by reference to any work undertaken, but by the amount Mr Woodward was able to earn without affecting his pension; and Mr Woodward himself said that it did reflect the use of his established name while at the same time providing him with an activity or interest. 14 The appeal should be dismissed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel. Associate: Dated: 26 November 1999 Counsel for the Appellant: Mr K J McGhee Solicitor for the Appellant: Streeting Lawyers Counsel for the Respondent: Ms E Ford Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 9 September 1999 Date of Judgment: 26 November 1999