Lucas, L.R. v The Repatriation Commission [1986] FCA 518

CATCHWORDS

REPATRIATION - Claim for Special Rate pension (TPI) -

Alternative claim for intermediat@ rate of pension - Relevant date for determining eligibility - Applicant unable to engage in full time remunerative work at time of application by reason of age - Regarding claim for intermediate pension,

whether economic loss demonstrated.

Repatriation Act 1920, Schedules 1 and 2

Delkou v Repatriation Commission Full Court of the Federal Court, unreported, 17 November 1986) referred to.

NSW G.222 of 1986 LLOYD RHYS LUCAS v THE REPATRIATION COMMISSION

Fisher, Beaumont and Wilcox JJ Sydney 17 November 1986

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IN THE FEDERAL COURT OF AUSTRALIA

) ) NEW SOUTH WALES DISTRICT REGISTRY ) ) )

CORAM: PLACE:

DATE:

GENERAL DIVISION

BETWEEN :

No. G.222 of 1986

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

LLOYD RHYS LUCAS

Applicant

THE REPATRIATION

COMMISSION

FISHER, BEAUMONT and WILCOX SYDNEY

17 NOVEMBER 1986

MINUTES OF ORDER

THE COURT ORDERS THAT:

The appeal be dismissed.

The applicant pay to the respo

appeal.

Respondent

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Settlement and entry of orders is dealt with in Order

36 of the Federal Court Rules.

Note

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY No. G.222 of 1986

Nees

GENERAL DIVISION

On appeal from the

Administrative Appeals

Tribunal

BETWEEN: LLOYD RHYS LUCAS

. Applicant

AND: THE REPATRIATION COMMISSION

Respondent

' REASONS FOR JUDGMENT

CORAM: FISHER, BEAUMONT and WILCOX JJ.

PLACE: SYDNEY

DATE: 17 NOVEMBER 1986

THE COURT: The applicant in this matter attained the age of 81 years during the early part of this year. He is a veteran of World War II who saw active service in New Guinea. On his discharge on 17 May 1944 he received a class B medical certification. Thereafter he resumed his pre-war occupation as a'professional architect in the employ of the New South

Wales government. He is presently in receipt of a pension

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from the New South Wales government, an age pension under the Social Security Act and a pension at 100% of the general rate prescribed by Schedule 1 to the Repatriation Act 1920 ("the Act"). He has been seeking for a number of years a pension at the special rate prescribed by Schedule 2 to that Act.

This appeal is from a decision of the Administrative Appeals Tribunal ~- constituted by a Deputy President and two other members -- which, on 6 May 1986, affirmed a decision of the Veterans' Review Board refusing him a pension at the Special Rate. The relevant facts have been set out carefully and in detail by the Tribunal which enables us to relate them shortly. For the purpose, however, of identifying the relevance of these facts it is appropriate at this stage to set out the provisions of Schedule 2, under which the applicant contends he is qualified to receive a pension at the

Special Rate. As at the date of the hearing by the Tribunal

of Mr Lucas' claim -- the relevance date: see our decision in Delkou_ v Repatriation Commission delivered to-day -- that

Schedule provided:

"{1l] 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

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(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.

For the purpose of the last preceding

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

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

4.

to seek to engage in remunerative work and that that incapacity is a substantial cause of his or her inability 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).

It is also necessary to refer to those portions of the General Rate of pension in Schedule 1 which relate to the

Intermediate Rate:

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Where --

(a) a member of the Forces is in receipt of, or is

(b)

(c)

eligible to receive, a general rate pension at the rate specified in column 3 eof the table in this Schedule;

the member's incapacity from.injury or disease that has been accepted as related to the relevant war service of the member is, of itself alone, of such a nature as to render the member incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and

the 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 from that

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the amount specified in column 3 of tHe table in this Schedule shall, in its application toithe member, be

deemed to be $251.20.

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Sub-paragraph 6(b) shall not 'be taken to be

-~ fulfilled in respect of a member of the Forces who is undertaking, or is capable of undertaking, work of a particular kind --

(a)

(b)

if the member undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or

in a case where sub-paragraph (a) is inapplicable to the work which the member is undertaking, or is capable of undertaking - if the member is undertaking, or is capable of undertaking, that work for 20 or more hours per week.

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For the purposes of sub-paragraph 6(c) --

(a) a member of the Forces, who is

incapacitated from injury or disease that has been accepted as related to the relevant war service of the member to the extent set out in sub~paragraph 6(b) 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 -- -

(i) if the member has ceased to engage in remunerative work for reasons other than his or her incapacity from that injury or disease;

(ii) if the member is incapacitated, or prevented, from engaging in remunerative work for some other reason; or

(iii) if the member has been engaged in remunerative work on a part-time basis or intermittently for reasons

other than his or her incapacity from that injury or disease; and

(b) where a member of the Forces, not being a

9. (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 the incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is a substantial cause of his or her inability 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.

For the purposes of this Schedule --

'remunerative work' has the same meaning as it has in Schedule 2; and

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(b) the question whether a member of the Forces who is incapacitated from injury er disease is incapable of undertaking remunerative work shall be decided in the same manner as that question is required to be decided for the purposes of

Schedule 2."

Shortly after his discharge a decision was made by the Repatriation Board that the applicant be granted a pension in respect of accepted war disabilities of osteoarthritis, chronic bronchitis, malaria and pilonidal cyst. This pension was 25% of the General Rate of pension prescribed by Schedule 1 to the Act. However, as mentioned, Mr Lucas was able to return to his occupation as an architect; an occupation from which he retired in May 1963 due to ill-health. On 30 June

1964 the Board made a further determination increasing his war

pension to 100% of the General Rate.

On 2 August 1973 Mr Lucas applied for an increase to the Special Rate. This application was refused both by the Repatriation Board and, on appeal, by the War Pensions

Assessment Appeal Tribunal.

On 30 May 1984 the applicant again applied for an increase, though the application did not specify whether he was applying for the so-called Intermediate Rate of pension under Schedule 1 or the Special Rate under Schedule 2. This application was also refused both by the Repatriation Board

and, as recited earlier, by the Veterans' Review Board. An

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application to review the decision of that latter Board was made to the Administrative Appeals Tribunal, which Tribunal also refused the application. Both before the Veterans'

Review Board and the Tribunal the question to be decided was

whether the applicant was eligible for the Intermediate or the

Special Rate of pension. In respect of each of these rates the extent to which the applicant's accepted war disabilities referred to above have affected his capacity to undertake remunerative work was crucial. The Tribunal correctly identified the relevant matter before it, namely whether it was established to its satisfaction that at the date of the application, 30 May 1984 -- the relevant date: see our decision today in Banovich v Repatriation Commission -- the applicant satisfied the qualifying conditions, for either of these rates of pension. In this regard it is necessary to consider the evidence as to Mr Lucas' activities since his retirement, his capacity for work and his prospects of

employment.

For the first two years after his retirement the applicant did nothing. At the end of that period his wife suffered a broken hip. Mr Lucas then took over housekeeping responsibilities and after three years he and his wife moved to Queensland. The evidence indicates he was in Queensland in 1975 but had returned to Sydney by 1977. Whilst in Queensland

he did 12-15 small architectural jobs, such as preparing

sketch plans and specifications and supervising construction

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work for friends, evidently as a consultant. He was unable to prepare full working drawings as he could not stretch over a drawing board. He told the Veterans' Review Board that he had given up part-time work as a architect in 1975. His breathlessness due to emphysema and his lack of mobility due to arthritis prevented him from undertaking the normal duties of an architect. He said that, as most of his former contacts in the profession are now dead, it was difficult for him to obtain architectural work on a commission basis. However, despite his years and general state of health, the applicant is a man of considerable mental vigour and alertness. He retains the mental capacity to perform quantative calculating

and the necessary skills for sketch work and design.

It is necessary to note the manual work which Mr Lucas performs at home. Whilst he lived in Queensland he purchased a wood lathe, which he used to produce wine goblets, canisters and the like; which he sold. In 1975 he sold the lathe, because of lack of work space, and he then turned to leather work, designing and producing handbags, purses, belts and ties. He also produced hand-painted artwork. However, the Tribunal found the activities to be little more than a retirement hobby from which the applicant has been able to recoup his costs together with a modest return whilst working at his own pace and at home. He said to the Tribunal that his

war related disabilities restricted the time he could spend on

these activities to two hours per day at the maximun.

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10. However, this evidence was inconsistent with what, according to that Board's reasons for decision, he told the Veterans' Review Board, namely that he could work for five hours a day

for up to two to three days per week.

Apart from his accepted disabilities, the applicant

has from time to time suffered from a number of other medical

conditions, none of which, either alone or together, would, in

the opinion of the Tribunal, be sufficient to render or to have rendered him incapable of continuing in his profession. A witness, the manager of a company specializing in placing in employment persons with architectural qualifications, said that the applicant was capable of carrying out duties of a consultancy nature but that the obtaining of consultancy work would largely depend upon his own contacts. He also said that, if the applicant had been in good health, he would be capable of continuing employment; either full-time or ona part-time basis. However, full-time employment would be difficult because "employers are reluctant to have people on their staff senior to the principals". When regard be had to the applicant's difficulties, his employment prospects were

remote, the witness said.

On this evidence the Tribunal made a number of findings. It was reasonably satisfied that the applicant's incapacity from his accepted disabilities was, both at the

date of his application and the date of the hearing, of such a

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available only to veterans incapacitated from working more

than eight hours per week. However the Tribunal held that Mr

Lucas met the requirement for the Intermediate Rate of pension: incapacity from undertaking remunerative work otherwise than on a part-time basis or intermittently --'see

sub-paras.6(b) and 7(a) of Schedule l. —_

Notwithstanding this finding, the Tribunal rejected the claim. It held that, although Mr Lucas had the requisite incapacity, that incapacity did not -- at the date of the application or thereafter -- have the effect required by para.6(c) of the Schedule, namely that, by reason of that incapacity -- that is incapacity from accepted war service disabilities -- and that incapacity alone, Mr Lucas was prevented from continuing the remunerative work which he was undertaking and, by reason thereof, suffered a loss of salary, wages or earnings which he would not be suffering if he were free of that incapacity. In order to determine that matter

the Tribunal considered in turn each of the three areas in

which the applicant had worked or was working.

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In respect to full-time work as an architect in salaried employment, the Tribunal was of the view that, at May 1984, the applicant's age was an additional fact which prevented him from continuing in full~time employment. The Tribunal pointed out that, by then, Mr Lucas was well beyond the statutory Public Service retiring age and that, on the evidence, it would be difficult for a person of Mr Lucas' years to obtain a position with a private firm. Likewise in respect of the part-time work as a consultant architect which he had formerly undertaken, the Tribunal found that his age -- and resultant loss of contacts ~- was a factor which would, in any event, have prevented him from obtaining remunerative work. The Tribunal pointed out that Mr Lucas gave up consultancy work in 1974 or 1975 and that, by May 1984, over

21 years had elapsed since his retirement from the full-time

work force.

The Tribunal had considerable doubt whether the applicant's handcraft and art work constituted "remunerative work" for the purpose of para.6(c) of Schedule 1. However, on the assumption that it did, it found that there was no evidence that the applicant was prevented from continuing to undertake any such work that he was undertaking in the past. This work was never more than a hobby, the Tribunal said, and it is work which he has been able to do, and which he

continues to do, despite his disabilities.

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The final question upon which the Tribunal made a finding concerned the second limb of para.6(c), namely whether by reason of his accepted disabilities the applicant was suffering a loss of wages or earnings which he would not be suffering if he was free of the incapacity stemming from his accepted disabilities. However, in this regard, the Tribunal was of opinion that such a finding was precluded by the provisions of para.8(a)(ii) of Schedule 1, namely that Mr Lucas was incapacitated from engaging in remunerative work for

some other reason.

On behalf of the applicant, counsel submit that the Tribunal erred in its construction of para.6(c) of the Schedule. They say that the Tribunal should have construed the word "alone", in the phrase "by reason of incapacity from that injury or disease alone", as being equivalent to "of itself alone"; so that the first requirement of sub-para.(c) would be met in any case where the nature of the incapacity was such as to prevent an applicant from continuing to undertake his or her former remunerative activity. It does not matter, they submit, that there may be a further factor which, even in the absence of the incapacity flowing from war

related disabilities, would have prevented the applicant

continuing to work.

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We reject this submission. It appears to us to confuse two separate matters, which are separately dealt with in para.6. Paragraph 6(b) deals with the nature and degree of the requisite incapacity, para.6(c) with the requisite economic loss. The whole purpose of para.6(c) is to limit the payment of benefits under the Schedule to those who have not only suffered such an incapacity as would prevent full-time work but who have, in consequence, been prevented from continuing to undertake work which they would otherwise have undertaken and, by reason thereof, have suffered a loss of salary, wages or earnings: cf the extract from the second reading speech of the Acting Minister quoted by us in Banovich. The relevant question under para.6(c) -- it first having been determined under para.6(b) that the applicant has suffered the requisite incapacity -~ is whether that incapacity has caused a loss of 'remunerative work, and so income, which would not otherwise have occurred. It is obviously relevant, in relation 'to that matter, to determine whether the applicant would, in any event, have been debarred from work because of a factor such as age. In our opinion

there was no error by the Tribunal in its construction of

para.6(c).

The applicant does not contest the entitlement of the Tribunal to find that, even in the absence of his war related

disabilities, he would have been prevented, by age and loss of

contacts, from engaging in remunerative work as an architect.

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15. However it is suggested that the Tribunal erred in relation to the leather and artwork undertaken by him. Having accepted that this work constituted a remunerative activity, counsel say, it is erroneous to further require that the remuneration should amount to a living wage.

We also reject this submission, which misunderstands the Tribunal's approach. The Tribunal did accept, although with misgivings, the proposition that the leather and artwork might amount to a remunerative activity. But the Tribunal rejected the submission that the loss of such work satisfied the requirements of para.6(c); not because it thought it necessary that any relevant remunerative activity return a living wage but because there was no evidence of any loss. As the Tribunal said "... there is no evidence to establish that Mr Lucas is prevented from continuing to undertake any such work that he was undertaking in the past". The applicant does

not suggest that there was any such evidence.

In our view there is no error of law in the conclusions of the Tribunal. The appeal must be dismissed,

with costs.

I certify this and the fourteen (14)

preceding pages to be a true copy of

the Reasons for Judgment of

their Honours Mr Justice Fisher,

Mr Justice Beaumont and Mr Justice Wilcox.

Associate: aa '2 Samir — eee Date: 17 November 1986

, 16. , 1 : ; Counsel for the Applicant: Mr A T McInnes Qc with BE Mr A L Hill f, | . Solicitors for the Applicant: TT Barrett ° it Australian Legal Aid Office fe: | Counsel for the Respondent: Mrs P Fleming QC with : | Mr A Robertson re{ ' Solicitors for the Respondent: Australian Government | i Solicitor { 1 i Date of Hearing: 17 October 1986 t t | f L, < ;t° Fo I f i- i 7 t —_— [" - } ; | ie 2 I r

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