Federal Court of Australia Parkes v Repatriation Commission [2020] FCA 1770 Appeal number(s): Parkes v Repatriation Commission [2020] AATA 3358 File number(s): QUD 308 of 2020 Judgment of: GREENWOOD J Date of judgment: 8 December 2020 Catchwords: SOCIAL SECURITY – consideration of a request by the parties for the making of orders in the resolution of an application under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the "AAT Act") concerning questions of law arising for determination in the context of a decision of the Administrative Appeals Tribunal in its Veterans' Appeals Division – consideration of aspects of the reasoning of the Tribunal in the context of the construction to be attributed to s 24(2A)(d) and s 24(2A)(e) of the Veterans' Entitlements Act 1986 (Cth) (the "VEA Act") – consideration of whether the proposed orders are "appropriate" for the purposes of s 44(4) of the AAT Act Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 44(1), (4), (5) Veterans' Entitlements Act 1986 (Cth), s 24(2A)(d) and (e) Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 13 Date of last submission/s: 1 December 2020 Date of hearing: 19 November 2020 Counsel for the Applicant: Mr A C Harding Solicitor for the Applicant: Cockburn Legal Counsel for the Respondent: Ms K A McGree Solicitor for the Respondent: Australian Government Solicitor ORDERS QUD 308 of 2020 BETWEEN: KEVIN PARKES Applicant AND: REPATRIATION COMMISSION Respondent order made by: GREENWOOD J DATE OF ORDER: 8 DECEMBER 2020 THE COURT ORDERS THAT: The parties consent, for the purposes of Rule 39.11 of the Federal Court Rules 2011, to the making of orders in accordance with the following terms: 1. The appeal is allowed (because of the agreed errors described in question of law 1 of the Appeal on the basis of the below "Notes"). 2. The decision of the AAT in proceedings 2018/3436 be set aside. 3. The matter be remitted to the AAT and determined according to law. 4. The Respondent is to pay the Applicant's costs fixed in the amount of $7,700. Notes: Introduction 5. The Applicant (Mr Parkes) appeals by a Notice of Appeal, dated 27 September 2020 (the Notice of Appeal), pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (the AAT Act), the decision of the Administrative Appeals Tribunal (the AAT) given on 31 August 2020 in Parkes v Repatriation Commission [2020] AATA 3358 (T). Question of law one raised by the Notice of Appeal 6. Mr Parkes was first granted a disability pension pursuant to the Veterans' Entitlements Act 1986 (VEA) on 16 May 2013 at 40% of the general rate with effect from 24 October 2012. 7. On 20 May 2015, Mr Parkes's disability pension was increased to 80% of the general rate with effect from 24 June 2014. 8. On 27 November 2015, when Mr Parkes was aged 67 years and 9 months, he made a claim for disability pension on the basis that acquired cataract, haemorrhoids and malignant neoplasm of the prostate were service related conditions. 9. By operation of s 19 of the VEA, the assessment period commenced on 27 November 2015. 10. On 1 September 2016, a delegate of the Respondent (the Repatriation Commission) determined: 10.1 Mr Parkes's acquired cataract was service related with effect from 27 August 2015; and 10.2 Mr Parkes's haemorrhoids were not related to service. 11. The delegate deferred deciding on Mr Parkes's malignant neoplasm of the prostate and retinal detachment, and the assessment of Mr Parkes's pension, for the purpose of obtaining further information. 12. On 1 June 2017, a delegate of the Repatriation Commission accepted Mr Parkes's right eye retinal detachment was a service-related disease and deferred assessment of the rate of pension for the purpose of obtaining further information. 13. On 8 August 2017, a delegate of the Repatriation Commission determined that Mr Parkes's disability pension be increased to 100% of the general rate with effect from 27 August 2015 (the Determination). 14. The delegate found that Mr Parkes was not eligible for a pension at either the special or intermediate rate because his non-accepted disabilities impacted on his ability to work. The delegate found Mr Parkes was not eligible for the extreme disablement adjustment because his lifestyle rating was less than six. 15. On 4 September 2017, Mr Parkes requested a review of the Determination by the Veterans' Review Board (VRB). 16. On 5 September 2017, Mr Parkes sought to increase his pension entitlement on the basis that depressive disorder, erectile dysfunction and psychological trauma ought to be accepted as service-related conditions. 17. On 4 December 2017, Mr Parkes withdrew his haemorrhoid claim from consideration. 18. On 9 April 2018, the VRB affirmed the Determination (the Reviewable Decision). The VRB was reasonably satisfied that Mr Parkes was not eligible for a pension at the special rate because Mr Parkes was not prevented from continuing to undertake the remunerative work that he was last undertaking by reason of incapacity from service-caused conditions alone. 19. On 21 June 2018, a delegate of the Repatriation Commission determined: 19.1 Mr Parkes's depressive disorder and erectile dysfunction were accepted as service-related with effect from 5 June 2017; and 19.2 Mr Parkes's disability pension was increased to include the extreme disablement adjustment with effect from 5 June 2017. 20. On 22 June 2018, Mr Parkes applied to the AAT for review of the Reviewable Decision. The proceedings were numbered 2018/3436. 21. The AAT varied the Reviewable Decision such that Mr Parkes would be eligible not only to receive the disability pension at 100% of the general rate, but also the extreme disablement adjustment with effect from 5 September 2017. 22. In reaching its decision, the AAT considered Mr Parkes's entitlement to the special rate of pension under s 24 of the VEA but erred in doing so, making irreconcilable findings at T [36] and [37]. 23. At T [36], the AAT reasoned that Mr Parkes came within s 24(2A)(d) of the VEA because: 23.1 "incapacity from the effective loss of vision in his right eye [a condition accepted as related to service], alone, prevented [Mr Parkes] from continuing to undertake his last paid work"; and 23.2 "other non-war caused factors did not play a part in preventing [Mr Parkes] from engaging in remunerative work". 24. At T [37], the AAT reasoned that Mr Parkes did not come within s 24(2A)(e) of the VEA because: 24.1 "It is found that [Mr Parkes] would not be operating the businesses … (and therefore not be suffering a loss of salary or wages or of earning on his own account), including by reason of the conditions other than the conditions that have been accepted as related to service"; and 24.2 "was not prevented from undertaking his last paid work and suffering a loss of salary or wages, or earnings on his own account, if [Mr Parkes] were free from that incapacity". 25. Therefore, the AAT has erred in the construction and application of s 24(2A)(e) of the VEA by: 25.1 asking itself the wrong question and/or identifying the wrong issue when finding that Mr Parkes "was not prevented from undertaking his last paid work and suffering a loss of salary or wages, or earnings on his own account, if [Mr Parkes] were free from that incapacity" under s 24(2A)(e), where it had previously found that "other non-war caused factors did not play a part in preventing [Mr Parkes] from engaging in remunerative work" under s 24(2A)(d); and 25.2 engaging in an illogical or irrational process of reasoning to find that Mr Parkes came within s 24(2A)(e). Date of assessment 26. Although not described as a question of law for determination on appeal, in the grounds relied upon at para 13 of the Notice of Appeal, Mr Parkes contends that the AAT used the date 5 September 2017 as a basis for its decision, whereas the date of assessment began on 27 November 2015. 27. At T [23], the AAT gave a correct qualitative description of the relevant assessment period as beginning on the date of Mr Parkes's application. At T [19], the AAT had identified the date of the application as "5 September 2017". The date of the application was in fact 27 November 2015 (see paras [8] and [9] above). 28. At T [37] and [39], the AAT erroneously referred to the assessment period as beginning on "5 September 2017". Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GREENWOOD J: 1 These proceedings are concerned with the resolution, by the consent of the parties, of an appeal by the applicant, Mr Parkes, under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the "AAT Act") of a decision of the Administrative Appeals Tribunal (the "AAT") in its Veterans' Appeals Division given by Senior Member Katter on 31 August 2020 in Parkes v Repatriation Commission [2020] AATA 3358. 2 The orders sought by consent are that the appeal be allowed (because of "agreed errors" described in the first question of law arising in the appeal as set out in the "Notes" forming part of the proposed orders); that the decision of the AAT of 31 August 2020 be set aside; that the matter be remitted to the AAT for determination according to law; and that the Repatriation Commission pay the applicant's costs fixed in the amount of $7,700.00. 3 Because the proposed orders include orders that the appeal be allowed and that the decision of the AAT be set aside with the matter remitted for determination according to law, it is necessary for the Court to form a view about the appropriateness of the orders notwithstanding that the parties support the making of the orders by consent. The Court needs to be satisfied that a question of law properly arises and that there is a proper basis for allowing the appeal and setting aside the AAT's decision with a remitter to the AAT to decide the matter according to law, having regard to the question of law arising in the matter. 4 Section 44(4) of the AAT Act provides that the Federal Court shall hear and determine an appeal from any decision of the AAT, on a question of law, and may make such order "as it thinks appropriate by reason of its decision". Thus, in making a consent order, the Court must nevertheless form the view that the orders are appropriate. Without limiting the generality of s 44(4), the orders that the Court may make on an appeal include an order affirming or setting aside the decision of the AAT and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence by the AAT in accordance with the directions of the Court. 5 The orders contain an extensive range of "Notes". 6 I have had the benefit of reading the AAT decision of 31 August 2020 against the background of all of the factual matters set out in the Notes to the proposed orders. It is not necessary to set out in these reasons the factual matters recited at paras 6 to 20 of the Notes. 7 However, it should be noted in these reasons that the AAT varied the decision under review such that Mr Parkes would be eligible not only to receive the disability pension at 100% of the general rate, but also the extreme disablement adjustment with effect from 5 September 2017. A delegate of the Repatriation Commission had earlier determined that Mr Parkes's depressive disorder and erectile dysfunction were accepted as service-related with effect from 5 June 2017 and that Mr Parkes's disability pension was to be increased to include the extreme disablement adjustment with effect from 5 June 2017. 8 The AAT, in reaching its decision, considered Mr Parkes's entitlement to the special rate of pension under s 24 of the Veterans' Entitlements Act 1986 (Cth) (the "VEA Act"). However, in doing so, the contention is that the AAT erred by making irreconcilable findings at [36] and [37] of the AAT's reasons. At [36], the AAT reasoned that Mr Parkes fell within the integers of s 24(2A)(d) of the VEA Act as follows: It is found, having regard to all the evidence, that the Applicant is, because of incapacity from the effective loss of vision in his right eye, alone, prevented from continuing to undertake his last paid work as to 'fine measuring instruments'; and The other non war-caused factors did not play a part in preventing the Applicant from engaging in remunerative work, in that those factors were not secondary to the factor of his right eye and were not of themselves sufficient to prevent the Applicant's remunerative work. 9 At [37], the AAT reasoned that Mr Parkes did not fall within the integers of s 24(2A)(e) of the VEA Act as follows: It is found that the Applicant would not be operating the businesses in the assessment period after 5 September 2017 (and therefore not be suffering a loss of salary or wages or of earnings on his own account), including by reason of the conditions other than the conditions that have been accepted as related to service; and In the assessment period after 5 September 2017, it is found that the Applicant was not prevented from undertaking his last paid work and suffering a loss of salary or wages, or of earnings on his own account, if the Applicant were free from that incapacity. 10 The contention is that the AAT has erred in the construction of s 24(2A)(e) of the VEA Act and the application of the provision to the facts by asking itself the wrong question and/or identifying the wrong issue, for the purposes of s 24(2A)(e), when finding that Mr Parkes "was not prevented from undertaking his last paid work and suffering a loss of salary or wages, or earnings on his own account, if [he] were free from that incapacity", where the AAT had previously found that "other non war-caused factors did not play a part in preventing [him] from engaging in remunerative work" under s 24(2A)(d). 11 The further contention is that the AAT engaged in an illogical or irrational process of reasoning to find that Mr Parkes came within s 24(2A)(e) of the VEA Act. 12 There is also a contention by Mr Parkes that the AAT adopted the date of 5 September 2017 as a basis for its decision whereas the date of assessment began on 27 November 2015. The parties note that the AAT has given a correct qualitative description of the relevant assessment period as beginning on the date of Mr Parkes's application. They note that at [19] the AAT has identified the date of the application as 5 September 2017 whereas the date of the application was in fact 27 November 2015. The parties note that at [37] and [39] the AAT has erroneously referred to the assessment period as beginning on 5 September 2017. 13 I am satisfied that having regard to the factual matters recited in the Notes and the matters described above, it is "appropriate" in terms of s 44(4) of the AAT Act that the appeal be allowed, the decision of the AAT be set aside and that the matter be remitted to the AAT for determination according to law. As to the question of costs, I simply act on the basis of the agreement the parties have reached as to that matter. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Greenwood. Associate: Dated: 8 December 2020