Case: Sheehy v Repatriation Commission (1996) 66 FCR 569
Outcome: distinguished
for the applicant argued that the Tribunal was bound to apply s 24(2)(b) of the VE Act as a provision ameliorating the effect of s 24(1)(c). Relying on Sheehy v Repatriation Commission (1996) 66 FCR 569 at 573-574, counsel contended that the applicant's remunerative activity had ceased on his suffering of the injury to his shoulders. After that, he became a person "who has not been engaged in remunerative work". The Tribunal should have seen his return to work on light duties as not engaging in remunerative work, because the attempt was unsuccessful, but should have seen that attempt as evidence that the applicant "has been genuinely seeking to engage in remunerative work". The attempt to rely on Sheehy , and to argue that the period of light duties undertaken by the applicant after he had suffered the injury to his shoulders was not itself engaging in remunerative work, appears to be a device adopted by counsel for the applicant to overcome the fact that there was no evidence at all that the applicant had been genuinely seeking to engage in remunerative work, or would have been so seeking but for his war-caused incapacity. In Sheehy , the Full Court held that a veteran could not be said to "undertake" remunerative work, or to have been "undertaking" such work unless he or she had managed to perform such work, to undertake it successfully or effectively. In that case, it had become apparent within a week of the return to work that the veteran concerned was unable to cope with his duties. In the present case, the return to work persisted for three months, according to the applicant's evidence. His evidence was that he started off doing all light duties and "then all of a sudden we're back to normal." He indicated that he was carrying heavy items and doing work of a kind he had done usually. At least for that period, it was clear that the applicant's own evidence was that he was undertaking that work. There was no occasion for the Tribunal to make a finding that the three-month period of return to work should have been disregarded in the determination of what remunerative work the applicant had been undertaking. The result of this analysis is that there was no evidence that the applicant had been seeking to engage in remunerative work, or would have been so seeking but for his war-caused incapacity. He declined an approach by his former employer to be retrained for an office job. There were suggestions in cross-examination that he was reluctant to engage in employment, because there were no jobs within a reasonable distance of his home, and because he had responsibility for caring for young children at his home. On the evidence, no occasion arose for the Tribunal to consider the application of s 24(2)(b). Any finding that the applicant had been seeking to engage in remunerative work, or would have done so but for his war-caused incapacity, would have been perverse. Leniency to the applicant Counsel for the applicant also put the well-worn argument that the Tribunal had failed to take account of the beneficial nature of s 24 of the VE Act, and had disregarded the requirements of s 119 of the VE Act. This was said to have been demonstrated by the Tribunal in a number of ways. One was simply noting conflicting evidence, without attempting to resolve the conflicts and particularly without asking the applicant or his counsel to clarify the situation. Another was the Tribunal finding that the applicant had stopped work due to bilateral arm pain, and allegedly ignoring his evidence that he was not able to cope with work because of the medication he was taking for other conditions. Yet another was the Tribunal improperly restricting the nature of remunerative work that it considered, but considering only the particular job that the applicant had been performing prior to his injury. Another was failing to identify the type of work that the applicant was capable of doing and trained to perform, which allegedly led the Tribunal to fail properly to identify the effect of the accepted war-caused disabilities on the applicant's ability to continue with or resume remunerative employment. Finally, it was suggested that the Tribunal failed to determine whether the accepted disabilities were the substantial cause of the applicant's inability to obtain work.