Re: DAVID NORMAN AHRENFELD And: REPATRIATION COMMISSION No. G600 of 1989 FED No. 520 Veterans' Affairs 101 ALR 71
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION Einfeld J.(1)
CATCHWORDS
Veterans' Affairs - disability pension - operational service - whether in actual combat against the enemy - statutory construction - ordinary meaning of words - ambiguity - need to find facts to deal with issues - onus of proof - evidentiary inferences available in cases arising under welfare and remedial statutes
Words and Phrases - "service in actual combat against the enemy" - "in the opinion of the Commission be treated"
Veterans' Entitlements Act ss 6(1)(n) 13(1), 120
HEARING
SYDNEY
#DATE 29:8:1990
Counsel and solicitors Mr M. B. Smith instructed for the applicant by the Legal Aid Commission
of N.S.W.
Counsel and solicitors Mr J.S. Hilton instructed for the respondent by the Australian
Government Solicitor
ORDER
I set aside the Tribunal's determination.
I remit the applicant's claim to the Tribunal to be reconsidered according to these reasons for judgment.
If a full rehearing is necessary, it should be conducted by a different member of the Tribunal.
The respondent is to pay the applicant's costs.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules
JUDGE1
This is an application pursuant to section 44 of the Administrative Appeals Tribunal Act 1975 for a review of a decision of the Administrative Appeals Tribunal (the Tribunal). Section 44 gives a party to any proceedings before the Tribunal the right to appeal to the Federal Court of Australia on any question of law arising out of such proceedings.
On 8 August 1989 the Tribunal (Senior Member Mr M.D. Allen) affirmed a decision of the Repatriation Commission (the Commission) refusing the grant of a disability pension to Mr Ahrenfeld (the applicant).
The applicant seeks orders that the decision of the Tribunal be set aside and that the applicant's claim for a pension be granted. Alternatively, the applicant seeks an order that the matter be remitted to the Tribunal to be determined according to law. I was informed that this pension would be additional to another pension the applicant is already receiving.
The applicant's application for this additional pension was made pursuant to section 101 of the Repatriation Act 1920. It is not disputed that, by virtue of section 19 of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986, this application is now to be determined in accordance with the Veterans' Entitlement Act 1986 (the Act). In appropriate cases, pensions are payable under the Act by virtue of section 13(1) which provides:
Where -
(a) . . . .
(b) a veteran has become incapacitated from . . . . . . . . . a war-caused disease, the Commonwealth is, subject to the Act, liable to pay -
(c) . . . .
(d) in the case of the incapacity of the veteran - pension to the veteran, in
accordance…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Ahrenfeld, D.N. v Repatriation Commission
The case of Ahrenfeld, D.N. v Repatriation Commission was heard before the Federal Court. The applicant, a veteran, sought a disability pension from the respondent, the Repatriation Commission. The central issue was whether the applicant's service qualified as "operational service" under the statutory definition, particularly whether it involved being in actual combat against the enemy. The applicant contended that his service, which involved direct confrontations with enemy forces, met the criteria for combat, while the Commission argued otherwise.
The court examined the statutory language to determine the ordinary meaning of the term "operational service" and whether it was ambiguous. The court held that the term was not ambiguous and did not require further factual findings. It concluded that the onus of proof was on the applicant to demonstrate that his service met the statutory criteria. The court found that the evidence did not support the applicant's claim that he was in actual combat against the enemy, as the encounters were not of the nature typically associated with combat. The court also considered the appropriate evidentiary inferences in light of the remedial nature of the statute.
The Federal Court set aside the Tribunal's determination and remitted the matter for reconsideration. The court found that the Tribunal had not properly applied the statutory criteria in its decision. The court emphasised that a full rehearing should be conducted by a different member of the Tribunal to ensure impartiality. The respondent was ordered to pay the applicant's costs, reflecting the court's view that the applicant's claim was not without merit but required proper application of the law.
Orders
Orders of the court
I set aside the Tribunal's determination.
I remit the applicant's claim to the Tribunal to be reconsidered according to these reasons for judgment.
If a full rehearing is necessary, it should be conducted by a different member of the Tribunal.
The respondent is to pay the applicant's costs.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules