Leane v Repatriation Commission [2003] FCA 889

FEDERAL COURT OF AUSTRALIA

Leane v Repatriation Commission [2003] FCA 889 JOHN AUBREY LEANE v REPATRIATION COMMISSION V119 OF 2003 FINN J 27 AUGUST 2003 CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY V119 OF 2003

BETWEEN: JOHN AUBREY LEANE

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: FINN J

DATE OF ORDER: 27 AUGUST 2003

WHERE MADE: CANBERRA

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY V119 OF 2003

BETWEEN: JOHN AUBREY LEANE

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: FINN J

DATE: 27 AUGUST 2003

PLACE: CANBERRA

REASONS FOR JUDGMENT 1 The Repatriation Commission has conceded that the Administrative Appeals Tribunal's decision in this matter is not accompanied by "a model set of reasons". Those reasons are an understandable cause of frustration to the applicant, John Leane. The crucial question is whether they betray an error of law. While I can quite understand why Mr Leane may feel hard done by on the facts, I reluctantly conclude that no reviewable error is disclosed. Factual Background 2 Mr Leane is a veteran who served in the Australian Army from 1954 to 1980 and in the Royal Australian Air Force from 1980 to 1989. His service included operational service in Vietnam. After brief periods of employment he was engaged by ACT Electricity and Water ("ACTEW") for which he worked from 1989 to 1996. In August 1996 he accepted a redundancy package (though not as part of a restructure). He has not worked thereafter save for short periods with the Australian Electoral Commission in 1997 and 2001. 3 On 18 November 1996 Mr Leane lodged a claim for pension under Part II of the Veterans' Entitlements Act 1986 (Cth) ("the VE Act"). Suffice it to say that, in consequence of this and a later claim and of reviews by the Veterans' Review Board, the Repatriation Commission has accepted that he has the following disabilities: hearing loss and tinnitus, post traumatic stress disorder ("PTSD") and osteoarthritis of the right wrist and thumb. Mr Leane has, as well, the non-war caused disability of osteoarthritis in both hips, and he underwent hip replacement surgery in 1997 and 1998. 4 The Veterans' Review Board assessed Mr Leane's pension at 100 per cent of the General Rate on 1 March 2001. It also determined that he did qualify, additionally, for the special rate. It was the latter determination that prompted his application to the Tribunal whose decision adverse to him is the subject of the present application. The Legislative Setting 5 Section 24 of the VE Act provides for the special rate of pension. For the section to apply a number of requirements are to be satisfied of which the following are presently relevant. The first is that the veteran claimant had not turned 65 at the time of the claim and has been determined to have a degree of incapacity of at least 70 per cent. I merely note that Mr Leane satisfies these. 6 The second requirement, imposed by s 24(1)(b), is that: "the veteran 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." To anticipate matters, the Tribunal found that Mr Leane satisfied this provision and that finding is not in issue in this proceeding. 7 What is in issue is whether Mr Leane could satisfy the requirements of s 24(1)(c). Because of the complex character of that subsection and of its interrelationship with s 24(2), it is helpful to approach the provision in the manner set out by Nicholson J in Forbes v Repatriation Commission (2000) 101 FCR 50 at 52-53. 8 Commenting on s 24(1)(c), His Honour said: "That paragraph is best understood by dividing it into its two limbs and relating those limbs to the relevant portions of what follows in s 24(2). The first limb of s 24(1)(c) reads: "(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 …" That limb must be read subject to the application of s 24(2)(b) which reads: "(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." The second limb of s 24(1)(c) reads: "(c) … 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; and" This is to be read in conjunction with s 24(2)(a) which provides: "(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; …" 9 I would note in passing that the "assessment period" for the purposes of s 19(5C) of the VE Act commenced to run from 18 November 1996 when Mr Leane's claim for a pension was lodged. The Tribunal's Decision 10 The Tribunal set out at quite some length, though essentially in précis form, the evidence of nine medical practitioners who gave evidence and/or provided reports. The practitioners had varying specialisations (most notably psychiatry, orthopaedics and that of rehabilitation physician). Their reports focussed, in the main, on Mr Leane's PTSD condition, his alcoholism and his hip complaints. They embodied divergent opinions which will be exemplified below. 11 In addressing the question whether Mr Leane was totally and permanently incapacitated for the purposes of s 24(1)(b) the Tribunal reached the following conclusion: "The weight of the evidence before the Tribunal is that Mr Leane is incapable of undertaking any remunerative work for periods aggregating more than eight hours per week. Of the medical practitioners only Dr McGrath disagrees. Furthermore, the medical evidence also strongly suggests this is solely attributable to Mr Leane's PTSD. See especially the evidence of Drs Rosendahl, Stone, Koller and White. Dr Cole is a little more tentative whilst Dr Strum asserts the reason is depressive illness and alcoholism not PTSD. On all the material before me I am satisfied that Mr Leane is totally and permanently incapacitated for the purposes of section 24(1)(b)." As I have indicated this conclusion is not in issue in this proceeding. 12 The Tribunal then turned to s 24(1)(c) and proceeded, though with some adaptation, to answer four questions which it considered the Full Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5 held were required to be answered. These questions were: "1. What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s 24(1)(c) of the Act? 2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work? 3. If the answer to question 2 is year, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work? 4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?" 13 The answer it gave to the first of these was that Mr Leane had been undertaking "general administrative/clerical and inspection activities". It went on to indicate that his casual work with the AEC fell within that broad description. 14 Consistent with its s 24(1)(b) finding it concluded that the second question should be answered affirmatively. Mr Leane was, by reason of his war-caused PTSD, prevented from continuing to undertake general administrative/clerical and inspection activities. 15 The answer to the third question – the "alone" test – it considered was more problematic. Rival contentions were put to it. The one was that Mr Leane's PTSD put him out of work; and that his hip deterioration was sudden and he could have returned to work after the hip replacements were it not for the PTSD. The other was that there were medical factors beyond PTSD preventing Mr Leane from undertaking remunerative work and, in particular, that he was seriously disabled at the time he ceased work with orthopaedic problems with his hips and back. 16 The Tribunal summarised the evidence of Mr and Mrs Leane concerning his leaving ACTEW and the affects on him of his PTSD and hip problems around the time he ceased work with ACTEW. It then turned to the medical evidence which it summarised as follows: ". according to Dr Rosendahl, at the time he ceased neither Mr Leane's hip or back condition prevented him from working, although before his replacement operations Mr Leane was quite severely disabled by his hips. He stopped work because of his PTSD. After his operations his mobility was substantially improved and his hips were unlikely to be a problem in future . however, there are references to hip problems in Dr Rosendahl's clinical notes in the few months prior to Mr Leane's first appointment with Dr Coyle. For example, on 22 July 1996 is recorded "Does not think he could do his normal duties with this much hip pain. Refer to Dr Coyle for assessment for his hip and back" . Dr Stone was of the view that Mr Leane's hips were of no consequence at the time he ceased work. As total hip replacement gave an excellent outcome Mr Leane could now do virtually anything except heavy lifting and constant climbing or walking. Free of PTSD and alcohol problems he would probably still be working . on 15 August 1996 Dr Coyle identified "two significant symptomatic orthopaedic problems", one in the spine and the other in the left hip. Dr Coyle's evidence suggests Mr Leane's hip surgery decision was fairly sudden . Dr McGrath concluded that Mr Leane's decision to leave his employment was likely to be influenced by several factors including his bilateral hip replacements soon after, which suggested a considerable amount of pain and disability. In addition he had a spine condition which continued to give him trouble. He also concluded that Mr Leane had significant musculoskeletal problems . Dr Strum considered that it was major depression with alcoholism that made and continued to make Mr Leane unemployable, not his PTSD . Dr Hopkins refers to certain tasks "which aggravated his back pain, leg pain and shoulder pain. He therefore took voluntary redundancy because he could not tolerate the situation any further." In 1997 Mr Leane's back pain had become worse and he expressed the desire to attend a pain clinic." 17 Without further elaboration it then stated the following conclusions: "85. Although there are some conflicting opinions, it seems fairly clear from that evidence that there were reasons other than the PTSD which were "also causally related to … [Mr Leane] having ceased to engage in work" (see Magill v Repatriation Commission [2002] FCA 244 at [11]). These included in particular his significant hip problems, probably his spinal disability, and possibly if Dr Strums' evidence is accepted major depression with alcoholism. By virtue of the deeming provision in section 24(2)(a)(i), this finding is sufficient to defeat Mr Leane's claim for a special rate pension: emphasis added. 86. Furthermore, the evidence on whether PTSD is the only factor preventing Mr Leane from continuing to undertake his previous remunerative work is not clear cut, as Dr Stone acknowledges. A number of medical practitioners suggest that the non-PTSD problems have been resolved and others dispute this. On the material before me I am not able to make a finding on the balance of probabilities in Mr Leane's favour. 87. Having regard then to all this evidence . I am satisfied and find that Mr Leane ceased to engage in remunerative work for reasons other than his war-caused conditions . I am not satisfied that Mr Leane's war-caused conditions are the only factors preventing Mr Leane from continuing to engage in that work." 18 I would note in passing that the respondent, correctly, does not seek to defend the last sentence in par 85 highlighted above. Rather it is said pars 85 and 86 must be read as embodying bifurcated findings, the one [85] concerned with his ceasing his work with ACTEW; the other [86], with what was preventing him from "continuing to undertake his previous remunerative work". 19 The Tribunal then went on to consider, whether, notwithstanding that finding, Mr Leane could avail of the "ameliorative provisions" of s 24(2)(b): Magill v Repatriation Commission [2002] FCA 744 at [8]. After noting the nature and duration of his two periods of casual employment with the AEC, the Tribunal concluded that there were "no objective signs of active pursuit of remunerative work" and that Mr Leane could not avail of s 24(2)(b). The Present Application 20 As best I can discern from the grounds stated in the application and the unhelpfully brief written submissions filed in this matter, the applicant has two principal contentions. The first is that the Tribunal erred in failing to examine or to examine adequately s 24 of the Act in order to ascertain whether, free of his accepted disabilities, the applicant would have continued to seek to engage in remunerative work. The second is that the Tribunal failed properly to apply s 24(2)(b) of the Act. 21 The oral submissions made seem to suggest, first, that the erroneous reference made by the Tribunal in par 85 of its reasons to s 24(2)(a)(i) of the Act to which I referred above, deflected it from even properly answering the "third Flentjar" question (ie was war-caused injury or disease the only factor preventing Mr Leane from continuing to undertake the relevant work?). If that question had been answered it would have found that he ceased work because of his post-traumatic stress disorder. 22 Additionally, it is submitted that s 24(2)(b) was misapplied because the Tribunal made no finding on whether the accepted disabilities were the substantial cause of his inability to obtain remunerative work. 23 Notwithstanding the sympathy I feel for Mr Leane in this matter, I am satisfied that I must dismiss the application. As the Full Court recently reminded us in Repatriation Commission v Hendy [2002] FCAFC 424 at [37]: "Error on the part of the Tribunal in determining whether the veteran's war-caused injury or war-caused disease is the sole determinant in the prevention of continued remunerative work [for s 24(1)(c) purposes] is … not open to review [in this Court]." 24 Though the Tribunal's critical findings in pars 85 to 87 of its reasons are brief, oblique, marred by one clear error, and ungraced with convincing explanation, I am satisfied that in the end it did properly address the question s 24(1)(c) asked of it and that any error that it may have made was of a purely factual character. In this, and consistent with the injunction in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 as to the proper role of a reviewing court, I agree with the reading of those paragraphs proposed by the respondent to which I earlier referred. This is that, considered in context, the Tribunal in those paragraphs concluded (a) that multiple factors, not all involving war-caused conditions, caused Mr Leane to cease work with ACTEW [par 85]; and (b) that war-caused conditions were not the only factors preventing him from continuing to engage in work [par 86]. 25 In saying this I do not overlook the erroneous (see Hendy's case), but in light of the additional finding in par 86, immaterial reliance on s 24(2)(a)(i) of the Act. Equally I consider the reference in par 87 to Mr Leane's ceasing to engage in remunerative work "for reasons other than his war-caused conditions", should not be read as involving a finding that those reasons were the only reasons both for his ceasing work and for his being prevented from continuing to engage in that work. The quotation from Magill's case in par 85 referring to reasons other than PTSD being "also causally related to" his ceasing to engage in work supports this conclusion. 26 I would, in consequence, reject the ground that relies upon a failure properly to apply s 24(1)(c). 27 If the submission of the applicant on s 24(1)(c) was meant additionally to suggest that the proper test to be applied in construing the word "alone" in that paragraph was whether the war-caused conditions alone were sufficient to prevent Mr Leane from engaging in work irrespective of other causes, I must reject the submission. It is inconsistent with authority binding on me: see Hendy's case at [37]; and see the discussion in Forbes' case at [32]ff. 28 Turning to the s 24(2)(b) ground, one of the preconditions to be satisfied before that provision can be invoked is that the veteran "satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work". The word "seeking" in my view is used here in its dictionary senses of "attempting to" or "trying to": see Shorter Oxford English Dictionary, "seek" (3rd ed). The Tribunal was not satisfied that there were any "objective signs of active pursuit of remunerative work" on the evidence before it. That conclusion is not reviewable in this court there being no error of law that infected it. 29 The applicant's submission, in my view, is based on the presupposition that he could invoke s 24(2)(b). It does not address the need to make out this first condition of the paragraph. 30 This ground of appeal must likewise be rejected. 31 I will order that the application be dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.