Federal Court of Australia
Hamilton v. Repatriation Commission
Appeal from the Administrative Appeals Tribunal
Before ----- Spender J
Heard - 1 November 1991 - Brisbane
Judgment - 1 November 1991 - Brisbane
Application dismissed
Mr Hamilton was represented by Mr PF Dooley, instructed by Price & Roobottom.
The Commission was represented by Mr WV Vitali, instructed by the Australian Government Solicitor.
The following judgment was handed down in Brisbane on 1 November 1991 -
SPENDER J. This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") affirming a decision of the Repatriation Commission to continue to pay the applicant, John Desmond Hamilton, a disability pension at 100% of the general rate. Mr Hamilton's contention was that he should have been paid the pension at the special rate from the day on which he ceased work, 30 November 1986.
The appeal concerns the application of s.24(1) of the Veterans' Entitlements Act 1986 (Cth) ("the Act"), to the circumstances of Mr Hamilton. That sub-section relevantly provides:
"This section applies to a veteran, other than a veteran to whom section 25 applies, if -
(a) either:
(i) the degree of incapa city of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate;
(b) 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; and
(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."
Mr Hamilton was born on 27 JUly 1916 and saw service in the second world war, serving in the Australian Imperial Force in New Guinea and Borneo from 1941 to 1946.
The application to review before the Tribunal was heard by Senior Member DW Muller in Southport on 5 March 1991. During taht hearing Mr Hamilton was represented by Mr Dooley of counsel, and the respondent Commission by its advocate, Mr Loftus. Oral evidence was given before the Tribunal by Mr Hamilton, by Dr Grant (a medical practitioner called by the Commission) and by Dr Yuille (Mr Hamilton's general practitioner) and each of them was cross-examined.
At the conclusion of the evidence and submissions, the Tribunal affirmed the decision under review and gave oral reasons for that decision. The decision to affirm the decision under review was made in writing on the same day.
A notice of appeal dated 2 April 1991 was filed in the Federal Court. It appears from the written reasons of the Tribunal dated 15 July 1991 that the Registrar of the Administrative Appeals Tribunal in Brisbane received a copy of that notice of appeal on 22 April and received a request from the solicitors for the applicant for a statement in writing of the reasons for decision on 5 June. Notwithstanding the provisions of O.53 r.10(2) of the Federal Court Rules and the provisions of s.43(2A) of the Administrative Appeals Tribunal Act 1975, the Tribunal provided its reasons in writing for the decision made on 5 March 1991.
Mr Hamilton ceased remunerative work on 30 November 1986, at which time he was aged 70 years and 4 months. He has since that time engaged in considerable activity on behalf of various charitable and other community organisations and has continued his connection with Legacy and with the performance of audits for community groups.
Mr Hamilton qualified as an accountant after his war service in late 1947, but has never practised as an accountant. He took up dairy farming in mid 1947 and ha has been involved in dairy farming in one way or another from that time until his retirement in November 1986. He was physically active in dairy farming until 1971, but since then his activities in connection with dairy farming have not involved active, physical farming. From 1971 he entered into arrangements with other dairy farmers whereby those farmers milked his herd.
Mr Hamilton suffers severely from an obstructive airways disease. He was granted a disability pension of 80% of the general rate from 2 November 1978 and 100% of the general rate from 2 July 1985. The Tribunal said, and tehre is no room to cavil with its conclusion, that:
"There is no doubt that the applicant has been severely disabled by his breathing problems over the last fifteen years or so."
It is apparent from the reasons of the Tribunal that the tests proposed by s.24 were addressed by it. The Tribunal said in its reasons:
"It is clear that the applicant satisfies the conditions imposed by s.24(1)(a). Mr Loftus for the respondent conceded that the applicant satisfies s.24(1)(b). The dispute to be resolved by the Tribunal was whether or not the applicant satisfied the provisions of s.24(1)(c). It was the applicant's contention that his war-caused disability (breathing difficulties) alone prevented him from continuing to be either a dairy farmer or to be a director of the South Coast Dairy Co-operative."
There was before the Tribunal a history of Mr Hamilton's activities from his commencing work in a general store in 1932 until his term as chairman of the South Coast Co-operative Dairy Association and its subsidiary companies lapsed on 30 November 1986, in respect of which positions Mr Hamilton did not seek re-election. It is relevant to note from the history that in 1975 Mr Hamilton was elected deputy chairman of the board of the South Coast Co-operative Dairy Association and its subsidiary companies and in the following year sold all of his remaining land to a Mr Geary who in turn sold it to a further purchaser. Mr Hamilton obtained a lease over the land sold to Geary and maintained his milk quota, which was a requirement for him to retain his position as a director of the board.
Mr Hamilton was elected chairman in 1980 and was re-elected in 1982, when fresh arrangements were made in respect of the milking of cattle owned by Mr Hamilton. He made an arrangement with a Mr Currie, who had a dairy farm at Coomera, and transferred 44 cows to Mr Currie's property. According to the Tribunal, from April 1982 to November 1986 Mr Hamilton was chairman of the board. He leased land at Carrara to keep his milk quota, but the land itself had no cows on it because they had all been transferred to Mr Currie's farm.
During that period Mr Currie sold six or eight of Mr Hamilton's cows by agreement with Mr Hamilton. Mr Currie also lost about 26 of Mr Hamilton's cows and apparently did not kow that they had disappeared. It appeared in evidence that Mr Hamilton did not physically check on the herd at all during this four year period and the cows were not milked during this period by Mr Currie.
Subsequent to Mr Hamilton's term as chairman expiring by effluxion of time on 30 November 1986, he went to Mr Currie's farm to see what remained of his herd. He found ten of his cattle left. He decided that he did not have the financial resources or the enegy to rebuild his herd, so he sold the remaining ten cows, cancelled the lease of the land at Carrara and sold the milk quota for $25,000.
The Tribunal posed for itself the issue before it in this way at paragraph 10 of its reasons:
"It was submitted on behalf of Mr Hamilton that he is entitled to receive the Special Rate pension because he was forced into retirement solely because of his breathing difficulties. It was said that if it had not been for his war-caused disabilities he would have either remained on the Board as a director or he would have resumed dairy farming. In either case, it was claimed, he would have continued to undertake remunerative work after 30 November 1986."
The Tribunal rejected those submissions and set out a number of considerations for that conclusion. The Tribunal said at paragraph 11:
"(i) The Special Rate pension is not to be regarded as a means of providing a superannuation benefit for veterans. It is a pension which is designed to provide an income for those veterans whose war-caused injuries prevent them from earning a living. It was never contemplated that veterans who have worked a full working life and who have then retired in the normal course of events would be eligible for a Special Rate pension.
(ii) Mr Hamilton had a full working life and he worked until he was over 70 years of age which is well past the normal retiring age. His age is an important factor in his decision to retire.
(iii) At the date of his retirement Mr Hamilton did not own a dairy farm. He was merely leasing the land at Carrara which he had sold in 1976.
(iv) At the date of his retirement Mr Hamilton did not own a dairy herd. He had 10 cows in the hills at a property at Coomera and they had not been milked for at least four years.
(v) He did not have the financial resources to re-build his dairy herd. Even if he had re-built the herd, he owned no land on which to put it.
(vi) It seemed to me to be very doubtful as to whether Mr Hamilton was,
(a) entitled to have a milk quota, and therefore,
(b) entitled to be a Director of the Board, from mid 1982 until November 1986."
The Tribunal concluded by saying at para.12:
"There is no doubt that as at the date of his retirement Mr Hamilton was severely disabled by his lung condition but that was not the only reason for his retirement from the dairying business. The factors set out in paragraph 11 above were also highly significant. Mr Hamilton's circumstances did not satisfy the conditions set out in s.24(1)(c) of the Act because he was not prevented from continuing to undertake remunerative work by reason of incapacity from war-caused disease alone."
For those reasons, the Tribunal affirmed the decision under review.
In the hearing in this Court, counsel for the appellant submitted thatthe conclusion stated by the Tribunal that "[h]is age was an important factor in his decision to retire" was erroneous.
Conscious, no doubt, that appeal to this court lies only on a question of law (see s.44 of the Administrative Appeals Tribunal Act 1975), it was submitted that on the evidence before it, the Tribunal had no choice but to conclude that the physical deterioration admitted by Mr Hamilton in the years preceding his decision not to pursue re-election as chairman or director of the board, had nothing to do with his advancing years. In short, it was submitted that there was no basis for the finding that Mr Hamilton's age was an important factor in his decision to retire.
I accept that the other matters referred to by the Tribunal as relevant to its decision are, in a sense, consequential on the decision made by him in 1986 not to seek re-election and the question is really whether there was material before the Tribunal permitting it to make the conclusion (which is one of fact) that the age of Mr Hamilton was a factor in his decision to retire. If that conclusion was open to the Tribunal, then no legal error affects the conclusion to which it came.
It is neccessary, therefore, to turn to the material before the Tribunal. First, Mr Hamilton gave evidence and was cross-examined. His age was before the Tribunal, but it was never expressly put to him by Mr Loftus, the advocate for the Commission, that his advancing years were a factor in his decision not to seek re-election in November 1986.
Mr Hamilton did say in his evidence that his breathing difficulties caused him difficulty in carrying out his duties as director and chairman of the South Coast Dairy Co-operative. He delegated some of his functions, which involved considerable walking and climbing of stairs, to officers of the companies and had to excuse himself from guiding visitors around the factory. He was asked in cross-examination:
"… your position as chairman was an elected position, wasn't it? - Yes.
… your chairmanship lapsed at the end of November 1986. Is that right? - Yes.
… you didn't choose to re-nominate? - Well, my medical condition was deteriorating. I was finding - becoming increasingly breathless, and I decided it wasn't fair either to the factory, the board or myself, to carry on.
Now, at the time your position lapsed, you'd been a director of the co-op for some 21 years, you say. Had anyone given any indication that you would be - that if you chose to re-nominate, you would be opposed in 1986? - No, no. On the contrary, there were many expressions of regret expressed at the - my final annual meeting."
Mr Hamilton conceded that he was not able to do things in 1986 that he was able to do several years previously, but he has continued to engage in his study of Japanese, his addiction to crossword puzzles and his community activities and Legacy work.
In Banovich v Repatriation Commission (1986) 69 ALR 395 the Full Court of the Federal Court (Fisher, Beaumont and Wilcox JJ) said at 404:
"... although the tribunal rightly accepted that a person as 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.
"We see no error of law in the decision of the tribunal."
The Full Court referred, at 404, to the second reading speech which attended the introduction of the Repatriation Legislation Amendment Bill 1985, where the Acting Minister for Veteranss 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 provision, 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 veteran who are under 65 years of age, are unemployed, and are genuinely seeking to engage in remunerative work.
Notwithstanding those statements, the question is whether, in the terms of s.24(1)(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". The general recognition of the retiring age of persons in various vocations is but one factor to be considered. The age of the applicant for a special rate pension is no doubt a very relevant factor and one which has to be considered in the context of the subjective circumstances of that applicant and not by any a priori rule.
In Repatriation Commission v Strickland (1990) 12 AAR 343, Davies and Ryan JJ said at 351:
"In the course of its reasons, the AAT referred on several occasions to age 65. Having read these several references, the trial judge considered that the AAT had raised the age of 65 to the status of a cut-off point, or at least a balancing point, and had wrongly treated the respondent as being required to displace an assumption that a person over 65 would not normally be gainfully employed. We do not find in the AAT's reasons the error which the trial judge thought to exist."
Speaking more generally, their Honours continued at 351:
"Age 65 was not an irrelvant matter. It is a common retiring age for employees and can be taken to reflect somewhat arbitrarily the community's general understanding of the effect of age upon ability to undertake gainful employment. Thus, as the Tribunal said, 65 years is the age at which a male person qualifies for the grant of an age pension. It follows that, if nothing more were known of an applicant for a pension than that he was over the age of 65 years when the application was lodged, a tribunal would not be likely to be satisfied that the veteran was then suffering a loss of earnings by reason only of his war-caused incapacity. Of course, that is only a hypothetical case and, invariably, more is known about the matter than that, as it was in the present case. But the point is that a tribunal, especially a tribunal which deals with issues of this nature regularly, might reasonably proceed from the premise that applications for pension made after that age would fail, unless facts were disclosed which tended to the conclusion that the veteran would then still be continuing to undertake remunerative work, but for his war-caused incapacity.
"Of course, age 65 is not an age which is directly applicable to a person who is running his own business or who controls the affairs of a company which conducts the business in which he is engaged. But that is not to say age is irrelevant to such a person."
In that case, Mr Strickland was engaged in work which involved very long hours, much beyond the normal working hours of employees and this was a factor which the Tribunal had taken into account in deciding whether or not the respondent would have continued to work to age 68. Having regard to the subjective circumstances of Mr Strickland, the finding of fact by the Tribunal that the respondent would not have continued running the business until the age of 68 was, in the view of Davies and Ryan JJ, reasonably open to the Tribunal.
In Sherman v Repatriation Commission (unreported, 6 June 1991, Federal Court of Australia), Gray J was concerned with a similar problem to the present one, but in which the subjective circumstances of the applicant were different in kind from those of Mr Hamilton. Mr Sherman had last been employed in the public service, which carried a mandatory retiring age of 65. He would not, therefore, have continued in that employment beyond that age. The Tribunal examined in detail evidence as to the likelihood of Mr Sherman's return to some form of self-employed tailoring and concluded that he had not satisfied the requirement of s.24(1)(c).
The question here is whether there was material before the Tribunal on which it could conclude, as it did, that age was a factor in the decision of Mr Hamilton not to seek re-election as chairman or director on the board of the South Coast Dairy Co-operative.
It is impossible to say that such a finding was not open to the Tribunal. It had the opportunity of seeing and hearing Mr Hamilton. The considerations referred to by Davies and Ryan JJ in Strickland's case (supra) had a direct relevance to the assessment made by the Tribunal of the factual reasons for the resignation by Mr Hamilton from the board. The finding to which it came was, in my view, reasonably open to it.
I emphasise that nature of an appeal to this court is not one of merit review, but is concerned with whether the proceedings and the conclusion to which the Tribunal came is attended by legal error. No such error has been demonstrated in the circumstances of this case and the application is refused.
The order that I make is that the application be dismissed with costs, to be taxed if not agreed.
THE COURT ORDERED THAT:
1. The application be dismissed with costs, to be taxed if not agreed.