Hopkins v Repatriation Commission [2009] FCA 1037

FEDERAL COURT OF AUSTRALIA

Hopkins v Repatriation Commission [2009] FCA 1037

FRANCIS JAMES HOPKINS v REPATRIATION COMMISSION

SAD 79 of 2009

MANSFIELD J

16 SEPTEMBER 2009

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION SAD 79 of 2009

BETWEEN: FRANCIS JAMES HOPKINS

Applicant

AND: REPATRIATION COMMISSION

Respondent

JUDGE: MANSFIELD J

DATE OF ORDER: 16 SEPTEMBER 2009

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT:

1. The application is dismissed. 2. The applicant pay to the respondent its costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION SAD 79 of 2009

BETWEEN: FRANCIS JAMES HOPKINS

Applicant

AND: REPATRIATION COMMISSION

Respondent

JUDGE: MANSFIELD J

DATE: 16 SEPTEMBER 2009

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) provides for an appeal on a question of law to this Court from a decision of the Administrative Appeals Tribunal (the Tribunal). Mr Hopkins has exercised that entitlement in this matter, although not without some dissent from the Repatriation Commission (the Commission) because, it says, his appeal raises no question of law. In any event, it says that the Tribunal committed no error of law in reaching the decision the subject of his appeal. 2 The primary facts are not in dispute. The appeal, ultimately, concerns the amount of the entitlement to a pension on the part of Mr Hopkins under the Veterans' Entitlements Act 1986 (Cth) (the VE Act). The particular issue ventilated before the Tribunal was whether he was entitled the general rate of pension, or under s 24 of the VE Act to the special rate of pension. There is a significant difference in the applicable weekly rates of pension. 3 It is convenient to record the background and the non-contentious facts. 4 Mr Hopkins on 8 December 2006, claimed a pension and other payments under the VE Act in respect of a number of conditions: tinea, ingrown toenails in both feet, bilateral pterygium, and osteoarthrosis of the left knee. The Commission, on 15 June 2007, accepted that all those conditions were "war-caused" within the meaning of the VE Act, and it decided that Mr Hopkins was entitled to a pension at 100% of the general rate from and including 8 September 2006. That decision was affirmed by the Veterans' Review Board on 25 October 2007. 5 Mr Hopkins then sought review of that decision by the Tribunal. The question was whether he was entitled to the special rate of pension under s 24 of the VE Act, or to the general rate of pension which he had been awarded. 6 The relevant provisions of the VE Act are ss 24(1)(c) and 24(2). They provide: 24(1) This section applies to a veteran if: … (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; … 24(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. If s 24 applies to Mr Hopkins by virtue of s 24(1), then s 24(4) provides that, subject to ss 24(5) and (6), he is entitled to the special rate of pension. 7 Section 24(1) has a number of cumulative conditions arising or specified to determine whether s 24 applies to a veteran. It was accepted by the Tribunal that each of the relevant conditions was met: Mr Hopkins had made a claim under s 14 for a pension or application under s 15 for an increase in the rate of pension; he had not by the time of the application turned 65; he has a degree of incapacity from war-caused conditions, determined under s 21A of the VE Act to be at least 70%; he is totally and permanently incapacitated from his war-caused conditions, in that he is, by reason of that incapacity, alone, incapable of undertaking remunerative work for periods aggregating more than eight hours per week. 8 The issue was whether he met the additional qualifying criterion specified in s 24(1)(c). 9 It is to be noted that, in relation to the requirement that he be totally and permanently incapacitated from his war-caused conditions so that, of themselves, he is incapable of undertaking remunerative work for periods aggregating more than eight hours per week, that criterion had previously been determined in his favour. The Commission initially noted that it was satisfied of that fact, but in the course of the Tribunal hearing, it withdrew that concession. The Tribunal did not separately address that matter further, but it is apparent from its factual findings when discussing s 24(1)(c) that it determined that question of fact favourably to Mr Hopkins. There is no notice of contention on this application on the part of the Commission that the Tribunal erred in so doing. 10 As to s 24(1)(c), it is noteworthy that it has two elements. The incapacity from the war-caused conditions must alone have firstly prevented the veteran from continuing to undertake the remunerative work that the veteran was undertaking and, secondly, by reason of that inability to continue to undertake the remunerative work that the veteran was undertaking, the veteran must have suffered a loss of wages or earnings that the veteran would not otherwise have been suffering if free of the war-caused conditions or the incapacity they produced. 11 Section 24(2) applies to s 24(1)(c) only in relation to the latter part of those two elements, namely whether the veteran satisfies the decision-maker that the veteran is suffering a loss of salary or wages or earnings by reason of the war-caused conditions and the incapacity that they produce. Relevantly to the present matter, s 24(2) contains two elements, separately specified, so far as relevant to the present proceeding. The veteran must not have ceased to engage in the remunerative work for reasons other than his incapacity from the war-caused conditions, and provided the veteran is not over 65 years, the veteran has not been engaged in remunerative work and satisfies the Commission that the veteran has been genuinely seeking such work, and would have continued to do so but for incapacity from the war-caused condition, and that the incapacity from the war-caused condition is the substantial cause of the veteran's inability to obtain that remunerative work. Unless those two elements are satisfied, and in particular s 24(2)(b), the veteran shall not be treated as having been prevented by reason of the incapacity from continuing to undertake the remunerative work that the veteran was undertaking. It is a somewhat curious inversion of the two elements of s 24(1)(c) because s 24(2)(a) relates to the second element of those two elements and s 24(2)(b) relates to the first of those elements. 12 In Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4, Branson J (with whom Beaumont and Merkel JJ agreed) said that the proper consideration of s 24(1)(c) of the VE Act required responses to the following four questions: 1. What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s 24(1)(c) of the [VE] 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 yes, 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? Section 120(4) of the VE Act requires the decision-maker (on review the Tribunal) to decide those issues to its reasonable satisfaction. That equates to the balance of probabilities: see Repatriation Commission v Smith (1987) 15 FCR 327. 13 The Tribunal answered the first question in an uncontroversial way. Mr Hopkins is now 58. He served in the Royal Australian Navy until 1994, giving nearly 18.5 years of service. He then worked for a series of private companies as a clerical/electronics technician until 28 November 2003. On that date he was made redundant, and received a modest redundancy payment. The Tribunal found that the remunerative work that Mr Hopkins was undertaking was that described as clerical/electronic technician. 14 The Tribunal also answered question two, also now uncontroversially. It found that Mr Hopkins is prevented by his war-caused conditions, or the incapacity resulting from them, from undertaking remunerative work for more than eight hours per week. 15 There was an issue, however, as to the date that Mr Hopkins ceased to engage in remunerative work for the purposes of s 24(1)(c). One option was the date of his redundancy, that is 28 November 2003. In fact, he had not had paid remunerative work since that date. He argued, however, that the relevant date was 16 March 2007 when he received a report from the Veterans' Vocational Rehabilitation Scheme indicating that he was not suitable for their services. He claimed that, until that date, he had vigorously sought ongoing employment after his redundancy, including having applied over 100 times for employment between November 2003 and February 2004. Hence, he claimed, he had been prevented from continuing to undertake remunerative work as clerical/electronics technician only from 16 March 2007. For that purpose, it was necessary to consider s 24(2)(b). He also claimed that it was only from that date that he had suffered a loss of salary or wages or earnings which he would not have been suffering if he were free of the incapacity from his war-caused conditions. For that purpose, s 24(1)(c) is explicated by s 24(2)(a). 16 Hence, the Tribunal found at [36] and [38] as follows: I find that the suggestion that Mr Hopkins made over 100 applications for employment between November 2003 and about February 2004 and failed to retain copies of any of those applications, none of which resulted in a job interview, and the suggestion that Mr Hopkins believed that physiotherapy would allow him to return to the workforce, yet he failed to obtain that perceived necessary treatment and his suggestion that he did not read any of the sickness certificates provided by his then general practitioner, Dr Scanlon, and consequently did not note that she had recorded him as suffering from shortness of breath and chronic obstructive airways disease, are implausible. … In this case, I consider the date Mr Hopkins ceased to engage in remunerative work was the date he last performed work, that is on 28 November 2003. He applied for Centrelink benefits shortly thereafter, provided medical certificates indicating that he could not work and consequently he obtained an exemption for applying for jobs. He was eventually provided with a Disability Support Pension. 17 The Tribunal concluded that the date that Mr Hopkins in fact last worked on 28 November 2003 was the date he ceased to engage in remunerative employment, the phrase used in s 24(2)(a)(i). It found that he ceased to engage in remunerative employment at that time because he was retrenched, so that his reasons for doing so were other than his incapacity from his war-caused condition. 18 It was then necessary to consider s 24(2)(b). The Tribunal noted Mr Hopkins' claim, and its findings, in [42], in the following terms: Mr Hopkins argued that he stood ready to work if he could find employment, until he received the report of the Veterans' Vocational Rehabilitation Scheme (T33) on 16 March 2007. That is, for a period of a little over three months after the commencement of the assessment period. In relation to this suggestion, I have noted that Mr Hopkins believed that he could only work if he undertook a course of physiotherapy, but failed to do so. Mr Hopkins said that he did not undertake a course of physiotherapy because his then general practitioner, who had been treating him since May 1998, had refused his request for such a referral. His suggested reasoning appears improbable. Mr Hopkins himself said that if he had been offered a job, he would have immediately attended the Repatriation General Hospital in order to obtain physiotherapy. The implausibility of this suggestion, along with the other circumstances of this matter and Mr Hopkins' concession that he had deliberately misinformed the [Veterans' Review Board] in 2005, has led me to a view that Mr Hopkins was not genuinely seeking to engage in remunerative work at any time during the assessment period. 19 Mr Hopkins thus failed at the first of the three steps or elements in s 24(2)(b), namely that he had been genuinely seeking to engage in remunerative employment from November 2003 until he received the report from the Veterans' Vocational Rehabilitation Scheme on 16 March 2007. The Tribunal found that he had not done so. 20 In those circumstances, s 24(2) was enlivened. It required the Tribunal to find, as it did, that Mr Hopkins did not suffer a loss of earnings by reason of his incapacity from his war-caused conditions, so that s 24(1)(c) was not satisfied. 21 It therefore affirmed the decision of the Veterans' Review Board. 22 Mr Hopkins' contention is a brief one. He contends that the Tribunal erred in law, in reaching the conclusion in [38] of its reasons that he ceased to engage in remunerative work on 28 November 2003, because it did not make the necessary findings of fact to support that conclusion. 23 It is arguable, at least, that the failure to make necessary findings of fact is an error of law: see Australian Postal Corporation v Lucas (1991) 33 FCR 101. 24 In essence, counsel for Mr Hopkins contended that, because the Tribunal failed to make the findings required by s 24(2)(a)(i) as to whether in fact he had made efforts to seek employment after 28 November 2003, it had erred in law. He submitted that the Tribunal's reasons at [36] do not amount to such a finding. It was accepted that the term "implausible", if applied to an ultimate issue, may indicate that the Tribunal was not satisfied of that ultimate issue of fact, but that in this instance the Tribunal's reasons indicate that it had inappropriately applied that term to a "range of matters". By way of example, Mr Hopkins through his counsel asked rhetorically whether, because the Tribunal regarded it as implausible that he had made over 100 applications for employment in the period November 2003 to February 2004, that did not amount to the Tribunal being satisfied, and could not have amounted to the Tribunal being satisfied, that Mr Hopkins had made some lesser number of applications for employment, or no applications for employment, or that it simply did not know. Although there was no attack on the adequacy of the Tribunal's reasons, that is, an attack in asserting error on the part of the Tribunal for failing to give adequate reasons for its decisions as required by s 43 of the AAT Act, the assertion was made that the Tribunal's reasons demonstrate that it did not make the necessary findings of fact one way or the other sufficient to found the ultimate conclusion which it expressed on the issue. 25 In my judgment, the Tribunal did not fail to make the findings of fact required to determine Mr Hopkins' application. It was required to decide when Mr Hopkins had ceased to engage in remunerative work. It decided that question of fact. There is no issue about when he had last worked. There was evidence from Mr Hopkins as to what had been done, with a view to having the Tribunal be satisfied that he had not in fact thereafter ceased remunerative work. In my view, the Tribunal correctly identified the question which it was required to ask, and considered the evidence which was presented to it. On the basis of that evidence, it was satisfied that from that date he had ceased to engage in remunerative work. The evidence to which it had regard is discussed in paragraphs 36, 38 and 42 quoted above. It did not accept that evidence. In my view, there is no ambiguity in its reasons. It has rejected Mr Hopkins' claim that he made over 100 applications for employment between November 2003 and February 2004, as it explained, because he did not retain copies of any of those applications, even though none of them resulted in a job interview. It has rejected his claim that he believed that physiotherapy would allow him to return to the workforce, in essence, because he failed to obtain or seek that treatment. It rejected his claim that he did not read any of the sickness certificates provided by his then general practitioner and so did not realise that he was suffering from a shortness of breath and chronic obstructed airways disease, which otherwise may have impaired his capacity for work. Partly, it rejected that evidence because it was implausible. Partly, it rejected that evidence because it was aware that Mr Hopkins had, in one other respect, deliberately misinformed the Veterans' Review Board in 2005 about certain information. I do not consider that the word "implausible" in the context is other than an indication that those assertions of fact were not accepted. That being the case made out by Mr Hopkins, and there being no other evidence to which my attention was drawn, the position plainly enough is that the Tribunal found that Mr Hopkins had ceased working on 28 November 2003 and had not actively sought work after that date, so that he had ceased remunerative work on that date. 26 In my judgment, the error of law asserted by Mr Hopkins has not been made out. His application should be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.