Bailey and Repatriation Commission - [2003] AATA 745

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 745
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/866

VETERANS' APPEALS DIVISION )

Re SAMUEL BAILEY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal REAR ADMIRAL A R HORTON AO, Member
Date4 August 2003
PlaceSydney

Decision The decision under review is affirmed.
...............................................
Rear Admiral A R Horton
Member

CATCHWORDS
VETERANS’ AFFAIRS – Eligibility for the Gold Card – whether Applicant rendered qualifying service – Army service during period of hostilities – service in Sydney area during Japanese submarine attacks in 1942 – service in Darwin area 1944/46 – whether Applicant incurred danger from hostile forces of the enemy – whether Applicant rendered service in operations against the enemy
LEGISLATION
Veterans’ Entitlements Act 1986 – sections 5B(1), 5C(1), 6A, 7A(1), 85(4A), 119, 120(4)
AUTHORITIES
Repatriation Commission v Thompson (1988) 44 FCR 20
Willcocks v Repatriation Commission (1992) 39 FCR 49
Repatriation Commission v Mitchell [2002] FCA 1177
Re Crawford and Repatriation Commission (1987) 14 ALD 341
Re Tiplady and Repatriation Commission (1987) 12 ALD 670
Re Carlyon and Repatriation Commission (AAT 12957, 6 May 1998)
Re Corrick and Repatriation Commission [2000] AATA 143
Re Smith and Repatriation Commission [2000] AATA 111
Re Pearse and Repatriation Commission [2000] AATA 330
Re Mirabito and Repatriation Commission [2001] AATA 453
Re Mitchell and Repatriation Commission [2001] AATA 1055
REASONS FOR DECISION

4 August 2003 REAR ADMIRAL A R HORTON AO

1. This is an application for review of a decision made on 27 December 2001 by a delegate of the Repatriation Commission (“the Respondent”), and affirmed by review under section 57 of the Veterans’ Entitlements Act 1986 (“the Act”) on 4 April 2002, that Samuel Bailey, (“the Applicant”) did not render qualifying service for the purposes of section 7A of the Act, and hence is not eligible for the Gold Card under section 85(4A) of the Act. The Applicant lodged an application for review by the Administrative Appeals Tribunal (“the Tribunal”) on 25 June 2002.
2.      At a hearing before the Tribunal at Gosford on 9 July 2003, the Applicant was self-represented. Mr J Marsh, Senior Advocate, appeared for the Respondent.
3.      The Tribunal had before it as evidence the following documents:

Exhibit No Description Date

T1-10
pp1-26

Documents pursuant to section 37 of the

Administrative Appeals Tribunal Act 1975

A1

Applicant’s Letter to Mr Marsh

12 February 2003

R1

Historian’s Report of Mr Brendan O’Keefe

23 November 2002

LEGISLATION AND ISSUES
4. Eligibility for the Gold Card is established pursuant to section 85(4A) of the Act, which states:
"(4A)A veteran is eligible to be provided with treatment under this Part for
any injury suffered, or disease contracted, by the veteran, whether before or after the commencement of this Act, if:
(a)the veteran is 70 or over; and
(b)the veteran has rendered qualifying service during the period covered by paragraph (b) of the definition of period of hostilities in subsection 5B(1); and
(c) either:
(i) the Department has notified the…

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 Bailey and Repatriation Commission

Details

AGLC: Bailey and Repatriation Commission [2003] AATA 745
Case: [2003] AATA 745
Decision Date: 4 August 2003

CaseChat Overview and Summary

Bailey applied for a Gold Card under the Repatriation Act. The Repatriation Commission declined the application, finding that Bailey had not rendered qualifying service as he had not incurred any danger from hostile forces of the enemy. Bailey appealed to the Federal Court, contending that he had rendered qualifying service. The central issue was whether Bailey's service during the relevant periods qualified as service in operations against the enemy, as required by the Repatriation Act. Specifically, the court had to determine whether Bailey's service in Sydney during the Japanese submarine attacks in 1942, and in Darwin from 1944 to 1946, constituted service in operations against the enemy, thereby rendering him eligible for the Gold Card.

The court considered the definition of "operations against the enemy" under the Repatriation Act, which required that the service be rendered in circumstances where there was a real and substantial danger of injury or death from the hostile forces of the enemy. The court examined the evidence of the periods in question, including the locations and nature of Bailey's duties, and whether these circumstances presented a real and substantial danger from the enemy. The court also looked at the historical context of the Japanese submarine attacks and the military operations in the Darwin area during the relevant times. Ultimately, the court concluded that Bailey's service did not meet the statutory criteria for qualifying service as he did not incur any danger from hostile forces of the enemy during the specified periods.

Consequently, the court affirmed the decision of the Repatriation Commission, finding that Bailey was not eligible for the Gold Card. The Federal Court upheld the Commission's determination that Bailey had not rendered qualifying service under the Act. The appeal was dismissed, and the decision under review was affirmed.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Exhibit No	Description	Date
T1-10 pp1-26	Documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1	Applicant’s Letter to Mr Marsh	12 February 2003
R1	Historian’s Report of Mr Brendan O’Keefe	23 November 2002