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Re: PETER BANOVICH And: THE REPATRIATION COMMISSION No. NSW G178 of 1986 Repatriation
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Fisher J.
Beaumont J.
Wilcox J.
HRNG
SYDNEY
#DATE 17:11:1986
Counsel for the Applicant: Mr D M J Bennett QC with Mr G Miller
Solicitors for the Applicant: T Barrett, Australian Legal Aid Office
Counsel for the Respondent: Mrs P Fleming QC with Ms S Ward
Solicitors for the Respondent: Australian Government Solicitor
ORDER
The appeal be dismissed.
The appellant pay to the respondent its costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.
JUDGE1
This is an appeal by the applicant, Peter Banovich, from a decision of the
Administrative Appeals Tribunal, constituted by a Deputy President sitting
alone, by which the Tribunal affirmed a decision of the Veterans' Review Board
that the applicant was not entitled to a pension at the Special Rate
prescribed by Schedule 2 to the Repatriation Act 1920 -- often referred to as
"the TPI pension" -- and that his pension would therefore continue at 100% of
the General Rate. The appeal is limited to matters of law: see s.44 of the
Administrative Appeals Tribunal Act 1975.
2. The applicant was born on 9 September 1909, so that he was 76 years of age
at the time of the hearing before the Administrative Appeals Tribunal. Mr
Banovich served overseas during the Second World War, being discharged on 3
November 1944 with a Class D medical classification. Prior to discharge he
was classified as unfit for any occupation involving heavy work.
Subsequently, Mr Banovich was granted a war disability pension, the amount of
which was, in 1960, increased to 100% of the General Rate. He has received
the pension at that rate since that time.
3. Since 10 October 1962 it has been accepted that the following disabilities
are attributable to Mr Banovich's war service:-
1. Fracture 4th, 5th and 6th cervical vertebrae,
2. Rupture long head left biceps,
3. Fracture right tibial tuberosity,
4. Dysentery,
5. Osteoarthritis of cervical spine,
6. Impotence,
7. Spondylitis,
8. Hysterical personality,
9. Osteoarthritis of hip joints.
4. For some years after his discharge from the Army Mr Banovich was
self-employed. During the 1950s he worked as a driver, first for CSIRO and
then for the Department of Works and Housing. From 1952 until at least 1960
he was employed by the Metropolitan Sewerage and Drainage Board as a "clerical
labourer". On 28 April 1964 he commenced employment with the Commissioner for
Railways (now the State Rail Authority). At that time the Railways had a
policy not to recruit persons aged more than 47 years and Mr Banovich was then
54 years old. However, he gave his date of birth as 1917 and was employed,
until September 1975 as a fitter's assistant and thereafter as a depot man.
5. Mr Banovich was retired from his employment with the State Rail Authority
on medical grounds on 7 May 1977. He was then in fact aged 67 years and 8
months but the Authority's records showed him to be only 59 years and 8
months. So far as the Authority was concerned, and but for his disabilities,
it seems that Mr Banovich's employment could have continued until 9 September
1982 when, according to the Authority's records, he would have turned 65
years.
6. The Tribunal made the following findings as to the circumstances of the
applicant's retirement:
"The event that precipitated Mr. Banovich's
retirement in 1977 was described by him as
follows. He had been standing on a table
cleaning a clock on the wall. His foot, which
was very close to the edge of the table,
slipped. He dropped one foot onto a swivel
chair which spun around causing him to injure
his right hip. Following examination by a
doctor employed by the Authority, Mr. Banovich
was told that he would be retired medically
unfit because his hip was 'finished' - 'it
will never be right'."
7. Later in the Tribunal's reasons, the Deputy President said that whilst it
was "Quite possible that this injury aggravated his war caused disability of
'osteoarthritis of hip joints', I have no evidence before me to that effect":
see para.27 of the Tribunal's reasons, cited below.
8. We interpolate that counsel for Mr Banovich attack this finding and submit
that, in the conclusion it reached, the Tribunal asked itself the wrong
question. It is contended that the evidence before the Tribunal showed that
the injury at work was caused by the war related injury. We do not agree with
these criticisms. The evidence relied upon by counsel for Mr Banovich for
this purpose was as follows:
"Yes, did you have an accident?---Have an
accident in our office, yes.
What happened?---I was going up on a table
like that, and I was cleaning a clock on the
wall - clock ---
Yes?---And I put my foot very close to the
edge and as I could not move fast, because I
am too stiff - my right shoulder, my neck -
all is stiff - and hips. I could not - when I
slipped I could not spin round quick so I
dropped my foot on a chair to stop, but it
happened to be a spinning chair and when I put
the weight there she spins around and I hit my
hip, harder than I - - -
And how did it - - - ?---Well, nearly a minute
and a half I could not get up I was so pain in
the right hip."
9. We do not think that the Tribunal was bound to conclude from such sketchy
material that the injury which forced Mr Banovich's retirement was caused by
any war related disability. More important, it was not a matter which was
open for review by the Tribunal. Mr Banovich had not made a claim for a
pension in respect of any incapacity said to arise out of this incident. Thus
the Tribunal was not called upon to consider whether any such incapacity was
war related. What was before the Tribunal was the different question of
reassessment of the appropriate rate of pension payable to Mr Banovich by
reference to several disabilities which were accepted as attributable to war
service. In our reasons in Delkou v The Repatriation Commission, delivered
this day, we have mentioned the distinction between a determination that the
Commonwealth is liable to pay a pension to a member of the Forces on the
ground of his incapacity on the one hand and the rate of any such pension on
the other. In the present case, the Tribunal was concerned only with the
latter question.
10. Mr Banovich has not engaged in paid employment since his retirement from
the Railways.
11. On 20 June 1983 Mr Banovich applied for the Special Rate of pension. The
application was refused by a Repatriation Board and the Veterans' Review Board
affirmed that refusal on 15 January 1985.
12. Between the date of the decision of the Veterans' Review Board and the
hearing before the Tribunal, namely on 6 June 1985, the Repatriation
Legislation Amendment Act 1985 came into effect. That Act made important
amendments to the Repatriation Act, as previously framed. One of these
amendments was to Schedule 2 to the Act, that amendment effecting substituted
criteria for the grant of a pension at the Special Rate. Before the Tribunal
the parties accepted that, notwithstanding the fact that the application had
been made -- and determined by the Veterans' Review Board -- before the
enactment of the amendments, the Tribunal was bound to apply to the case the
terms of the amended Schedule. The Tribunal agreed with the parties'
understanding of the law. The contrary has not been argued before us, in this
case, but we are satisfied, for the reasons we give in Delkou, that this is
the correct position.
13. The relevant provisions of Schedule 2 are as follows:
"(1) The special rate of pension may be granted
to --
(a) a member of the Forces who has been
blinded as a result of war service; and
(b) any other member of the Forces if --
(i) the other member is in receipt of,
or is eligible to receive, a general
rate pension at the rate specified
in column 3 of the table in Schedule
1;
(ii) the other member is totally and
permanently incapacitated, that is
to say, the member's incapacity from
injury or disease that has been
accepted as related to the member's
relevant war service is of such a
nature as, of itself alone, to
render the member incapable of
undertaking remunerative work for
periods aggregating more than 8
hours per week; and
(iii) the other member is, by reason of
incapacity from that injury or
disease alone, prevented from
continuing to undertake remunerative
work that the member 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 member would not be
suffering if the member were free of
that incapacity.
(2) For the purpose of the last preceding
paragraph --
(a) a member of the Forces who is
incapacitated from injury or disease that
has been accepted as related to the
member's relevant war service 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 member has ceased to engage in
remunerative work for reasons other
than his or her incapacity from that
injury or disease; or
(ii) the member is incapacitated, or
prevented, from engaging in
remunerative work for some other
reason; and
(b) where a member of the Forces, not being a
member 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 a substantial
cause of his or her inablity to obtain
remunerative work in which to engage, the
member shall be treated as having been
prevented by reason of that incapacity
from continuing to undertake remunerative
work that the member was undertaking.
(3) In determining whether a member of the Forces
who is incapacitated from injury or disease is incapable
of undertaking remunerative work, the Commission shall
have regard to the following matters only:
(a) the vocational, trade and professional
skills, qualifications and experience of
the member;
(b) the kinds of remunerative work which a
person with skills, qualifications and
experience referred to in sub-paragraph
(a) might reasonably undertake; and
(c) the degree to which the incapacity of the
member from injury or disease that has
been accepted as related to the member's
relevant war service has reduced his or
her capacity to undertake the kinds of
remunerative work referred to in
sub-paragraph (b).
...
In this Schedule, a reference to remunerative work
shall be read as including a reference to any
remunerative activity."
(We have inserted, for convenience of reference, the numbers shown in square
brackets, the paragraphs being unnumbered in the Schedule itself).
14. Paragraph (1)(b) of the Schedule, upon which the present applicant
relies, specifies three qualifying criteria. They may be shortly described as
receipt of 100% general rate pension, total and permanent incapacity and
economic loss. There was never any question about the first element and,
before the Tribunal, the Repatriation Commission conceded total and permanent
incapacity.
15. But the Commission successfully disputed that the third element was made
out. In its reasons for decision the Tribunal said this in relation to
economic loss:
"22. There are, essentially, two questions
posed by paragraph (1)(b)(iii). The first
question is whether, by reason of the
incapacity from the accepted disabilities
alone, Mr. Banovich is prevented from
continuing to undertake remunerative work that
he was undertaking. 'Prevented' in this
context, I understand to mean 'precluded'.
The relevant question, in my view, is whether
the incapacity from the accepted disabilities
alone is what stands between the veteran and
his continuing to undertake remunerative work
that he was undertaking. If there are other
reasons which prevent the member from
continuing to so work, the first requirement
of paragraph (1)(b)(iii) cannot be satisfied.
In the present case, it was said that whatever
incapacitating effect may flow from the
applicant's accepted war disabilities, the
applicant was now, by reason of his age,
precluded from undertaking remunerative work.
In support of this contention evidence was
called from Mr. Ian Sneddon, the manager of
the Cabramatta Job Centre of the Commonwealth
Employment Service, who said that, quite apart
from the highly competitive labour market for
unskilled work, Mr. Banovich's age and
disabilities would preclude him from obtaining
full time employment, sedentary or otherwise.
The part-time labour market, he said, was even
tighter. That factor aside, however 'Mr.
Banovich's stated disabilities would
undoubtedly remain an unsurmountable barrier'.
He concluded that, in his opinion, any of the
three factors of age, labour market conditions
or accepted disabilities, would make it
extremely unlikely that Mr. Banovich would be
able to obtain employment. The combination of
all three factors 'would make it infinitely
more unlikely'."
16. The Tribunal referred to the submission of counsel for Mr. Banovich
pointing out that no age limit was imposed by the Schedule and went on:-
"24. In the present case, it is, I think,
relevant that Mr. Banovich has throughout the
bulk of his working life been employed in
various Government authorities, all of which
have a maximum statutory retiring age not in
excess of 65 years. By the date of his latest
application for the Special Rate pension in
June 1983 (that being the application that is
presently before me), he was 73 years of age,
considerably beyond the statutory retiring age
for the types of employment in which he had
engaged during most of his working life. His
only prospect of employment at that stage
would have been in private enterprise - a
prospect which, on the evidence of Mr.
Sneddon, even if Mr. Banovich was assumed to
be perfectly fit, was minimal having regard to
(a) the state of the labour market and (b) Mr.
Banovich's age.
25. In my view, therefore, it follows that in
June 1983, Mr. Banovich was not prevented from
continuing to undertake remunerative work that
he was undertaking by reason of incapacity
from his accepted disabilities alone. He was,
in my view, also prevented from continuing to
undertake such work by reason of his advanced
years. His age alone had become a barrier
precluding any further prospects of employment
in the workforce. In my view, therefore, he
fails to satisfy the first requirement of
paragraph (1)(b)(iii) of Schedule 2."
17. Although it was strictly unnecessary to consider the matter, the Tribunal
also dealt with the second requirement of sub-para.(iii), in relation to which
para.(2)(a) is relevant.
"27. In the present case, the evidence leaves
no doubt that Mr. Banovich has ceased to
engage in remunerative work. Looking back
over his work history, I find that the reason
Mr. Banovich has ceased to engage in such
work, was the decision of the SRA to retire
him on medical grounds by reason of the injury
that he sustained to his right hip. Whilst it
is quite possible that this injury may have
aggravated his war caused disability of
'osteoarthritis of hip joints', I have no
evidence before me to that effect. On the
evidence as it stands, therefore, I am unable
to find that Mr. Banovich ceased to engage in
remunerative work by reason of incapacity from
his accepted disabilities alone. Whether that
conclusion be correct or not, it is my view,
for the reasons earlier given, that Mr.
Banovich was prevented from engaging in
remunerative work not only by reason of the
incapacity from his accepted disabilities but
also by reason of his age. Accordingly, Mr.
Banovich cannot be taken to be suffering a
loss of salary or wages by reason of
incapacity from his accepted disabilities
alone."
18. Several grounds of appeal are argued on behalf of the applicant but they
reduce to two major matters for determination: the proper interpretation of
para.(1)(b)(iii) and the date at which the criteria specified by para.(b) must
be satisfied.
The interpretation of para.(1)(b)(iii)
19. Sub-paragraph (iii) refers to "incapacity from that injury or disease
alone". This is a reference back to sub-para.(ii) and to the concept of
incapacity which it embodies; that is to say an incapacity:
(a) which is caused by an injury or disease that has
been accepted as related to the member's war
service; and
(b) which is such, of itself alone, to render the
member incapable of undertaking remunerative
work for more than eight hours per week.
It will be noted that sub-para.(ii) deals only with the nature of the
incapacity. It includes no requirement of economic loss.
20. Sub-paragraph (iii) takes the incapacity described in sub-para(ii) and
imposes two additional requirements: that the member be prevented by such
incapacity from continuing to undertake remunerative work which he or she was
undertaking and that, by reason thereof, the member suffer a loss of salary or
wages or of earnings on his or her own account. In the usual case a loss of
salary, wages or earnings will follow any prevention from continuing to
undertake the remunerative work which the member was undertaking but there may
be exceptional situations under which a person unable to continue that work
continues to receive a salary, wages or earnings; in which exceptional case
sub-para.(iii) would not be satisfied.
21. Counsel for the applicant submit that a member may be "prevented from
continuing to undertake" remunerative work in two disparate ways: the member
may lose his or her employment or he or she may be unable to obtain
employment. They submit that, in either case -- but in the second case only
where that the member has previously had employment -- it is accurate to speak
of the incapacity preventing the member "from continuing to undertake
remunerative work that the member was undertaking". The "loss of salary or
wages" referred to in sub-para.(iii), they say, is the financial loss suffered
because of the loss of existing employment or the loss caused by the inability
of the member to obtain employment.
22. In the argument of counsel for the applicant, the distinction made in
para.(1)(b)(iii) is reflected in the alternatives postulated by para.2(a);
sub-para(i) referring to a case of loss of employment and sub-para(ii) to a
case of inability to obtain employment. Unless para.2(a) is so construed,
they say, a member who loses his or her employment for a non-war related
reason -- for example, retrenchment -- or who is at some stage unable to
obtain employment for a non-war related reason -- for example, imprisonment --
will never subsequently be entitled to receive a Special Rate pension,
regardless of the subsequent employment effects of a war-related disability.
In the present case it is enough, say counsel, that Mr Banovich ceased to work
for the State Railway Authority because of a war related incapacity or was at
some stage -- for example immediately after retirement by the Authority --
unable to work because of the war-related incapacity alone.
23. We accept that the loss referred to in para.(1)(b)(iii) may be caused
either by a loss of existing employment or by an inability to obtain new
employment. There is no difficulty in regarding either circumstance as
preventing the member "continuing to undertake" remunerative work. But it is,
in our opinion, erroneous to read the phrase "remunerative work that the
member was undertaking" as referring to a particular job with a particular
employer. The term "remunerative work" is used in the Schedule in a context
which indicates an intention to refer to work generally: see, for example,
para.(1)(b)(ii), para.(2)(b), para.(3). Consistently with that user the phrase
"remunerative work which the respondent was undertaking" should be read as a
reference to the type of work which the member previously undertook and not to
any particular job. It follows that a member's loss of particular employment
for a reason unrelated to a war disability would never destroy a member's
subsequent entitlement to claim a Special Rate pension; the question would
remain, at the relevant date for determination of a claim, whether the member
was prevented by his or her war-related incapacity -- and by that incapacity
alone -- from continuing in that field of remunerative activity.
The relevant date
24. Counsel for the applicant submit that an applicant is entitled to a
Special Rate pension if he or she was at any time able to satisfy the criteria
specified in para.(1)(b). They say that if, at some stage, the incapacity
caused by the member's accepted war disability was, of itself alone, enough to
prevent the member undertaking remunerative work and to occasion a loss of
salary or wages, the entitlement to a Special Rate pension arises and that it
is not lost because, before final determination of the claim for that pension,
there arises some additional impediment to remunerative work.
25. The date at which the relevant facts must be considered has been
discussed in a number of recent decisions of the Administrative Appeals
Tribunal. In Re McCartney and Repatriation Commission (1986) 4 AAR 518 it was
concluded that the applicant's qualification for grant of a Special Rate
pension should be considered on the basis of the facts as they stood at the
earliest date from which the Tribunal could approve payment at that rate;
that is the date upon which the applicant made a claim which complied with
s.25 of the Act. However, the issue in that case was whether the relevant date
was the date of the application or the date of the hearing before the
Tribunal. There is no reference in the Tribunal's decision to the possible
relevance of an earlier date.
26. In Pringle v Repatriation Commission (not reported, 11 June 1986) a
differently constituted Tribunal reached a different conclusion. By the date
of this decision the Repatriation Act 1920 had been replaced by the Veterans'
Entitlements Act 1986, but nothing was seen as turning upon that circumstance.
The Tribunal found that, at a point of time earlier than the date of the
application, all of the requirements of para.(1)(b) -- as it stood at the date
of the Tribunal's decision -- were met by the applicant. It was held that he
thereby became entitled to a grant of a Special Rate pension, an entitlement
which was not lost because of subsequent events. "Any other view" the
Tribunal said, "would discourage the well motivated person who would otherwise
try to continue in useful work despite his disabilities and encourage those
less well motivated for fear that if they did not apply for the TPI pension at
the earliest possible opportunity they would later be debarred by the mere
fact of increasing age".
27. In Finkelstein v Repatriation Commission (not reported, 30 June 1986) and
Dell v Repatriation Commission (not reported, 29 August 1986) it was held by
the Tribunal that the facts should be examined as at the date of the
application for a Special Rate pension. A similar view was taken in two
subsequent cases, each heard by a differently constituted Tribunal, Mattson v
Repatriation Commission (not reported, 2 July 1986) and Ridyard v Repatriation
Commission (not reported, 18 July 1986).
28. We have some sympathy for the comment made in Pringle, quoted by us, as
to the effect of confining examination of the facts to the period commencing
from the date of the application for a Special Rate pension. But it appears
to us that the terms of the legislation permit no other conclusion than that
contended for by the Commission. The purpose of Schedule 2 is to identify the
persons to whom, to quote the opening words of the Schedule, a Special Rate
pension "may be granted". In considering whether to grant a Special Rate
pension, the decision-maker must be satisfied that the applicant is a person
to whom the Schedule relates. Some such persons are identified by reference to
past events. Under para.1(a) a person who "has been blinded" will qualify for
a grant. Others (para.1(b)) are identified by reference to their possession
of specified present characteristics. In this sub-paragraph all the criteria
are couched in the present tense.
29. The task of the Administrative Appeals Tribunal, in reviewing a decision
relating to an application for a pension, is to make the decision which the
primary decision-maker ought to have made, upon the basis of the evidence
before the Tribunal. Subject to any change in the relevant law, the Tribunal
should put the applicant in the position in which he or she was entitled to be
put at the time of the primary decision. It follows, we think, that the
question whether a particular applicant complies with the criteria in
para.(1)(b) of the Schedule should be considered as at the time of his or her
application to the primary decision-maker for the grant of a Special Rate
pension.
30. Having regard to the findings of the Tribunal, the present applicant
faces two hurdles -- each of which we regard as insurmountable -- in his quest
for a Special Rate pension. The Tribunal found that the cause of his
retirement from the employ of the State Rail Authority was the the injury to
his hip occasioned by the fall at work. This injury, which has not been
accepted as a war related incapacity, thereafter would, in any event, have
prevented Mr Banovich from continuing to undertake the remunerative work which
he had previously undertaken. Consequently, even immediately after his
retirement, Mr Banovich did not comply with sub-para.(iii). But, secondly, by
the date of his application for a Special Rate pension -- June 1983 -- he
would, in any event, have been retired by the Railways. His age, even
according to their records, exceeded 65 years. And, although the Tribunal
rightly accepted that a person was not automatically disentitled to a pension
on attaining 65 years, the Tribunal found, on the facts of this case and
having regard to Mr Banovich's employment history, that Mr Banovich would in
any event have been unlikely to continue in remunerative work after the date
upon which he would have retired from the Railways.
31. We see no error of law in the decision of the Tribunal.
32. Although we did not find it necessary to refer to it as an aid to the
construction of the legislation, we note that our conclusion would appear to
accord with the policy underlying its enactment. In his second reading speech
introducing the Repatriation Legislation Amendment Bill 1985, the Acting
Minister for Veterans' Affairs said:
"Since 1920, there has been a special rate of
disability pension payable in circumstances
where, because of total and permanent
incapacity resulting from war service, a
veteran has been unable to resume or to
continue in civil employment. The special or
TPI rate pension was designed for severely
disabled veterans of a relatively young age
who could never go back to work and could
never hope to support themselves or their
families or put away money for their old age.
It was never intended that the TPI rate would
become payable to a veteran who, having
enjoyed a full working life after war service,
then retires from work possibly with whatever
superannuation or other retirement benefits
are available to the Australian work force.
Determining authorities have found the
application of the present legislative
provisions difficult because the provisions,
unchanged since 1920, contain outmoded and
imprecise terms. The amendments clarify the
eligibility criteria and make it clear that to
qualify for a TPI pension a veteran must be
eligible for the 100 per cent general rate
pension. In addition, the TPI rate pension
can become payable only when a veteran is
totally and permanently disabled by accepted
disabilities and is thereby precluded from
continuing to engage in remunerative work. If
a person has had the usual span of a working
life or has retired voluntarily or has left
employment for reasons other than accepted
disabilities, a TPI pension is not payable.
It would be in only very rare cases that any
veteran beyond the normal retirement age could
be eligible for this pension. Special
provision is made by the Bill to cover
veterans who are under 65 years of age, are
unemployed, and are genuinely seeking to
engage in remunerative work."
(See Parliamentary Debates, House of Representatives, 17 May 1985 at
pp.2645-6.)
33. The appeal must be dismissed with costs.
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