Bergman and Repatriation Commission - [2000] AATA 870

DECISION AND REASONS FOR DECISION [2000] AATA 870

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1105

VETERANS' APPEALS DIVISION )

Re NORMAN LEONARD BERGMAN
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date3 October 2000
PlaceSydney

Decision The decision under review is affirmed

[Sgd] A Horton
Member

CATCHWORDS

VETERANS' AFFAIRS – gold card eligibility - qualifying service – RAAF service in equipment branch - service in South Australia and Queensland – whether delivery flight took place to New Guinea - whether incurred danger during period of hostilities – service in New Guinea from Sep 1945

Veterans' Entitlements Act 1986 - ss 5B(1), 5C(1), 7A, 120(4)
Veterans' Entitlements Amendment (Gold Card) Act 1998 - s85(4A)

Repatriation Commission v Thompson (1988) 44 FCR 20
Willcocks v Repatriation Commission (1992) 39 FCR 49
Repatriation Commission v Burton (1993) 31 ALD 475
Repatriation Commission v Smith (1987) 15 FCR 327
Re Bancroft and Repatriation Commission (1996) AATA 11333
Re Rapp and Repatriation Commission (1995) 37 ALD 777
Re Farrell and Repatriation Commission [2000] AATA 69.

REASONS FOR DECISION

September 2000 Rear Admiral AR Horton AO, Member

This is an application for review of a decision dated 30 September 1998 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 11 April 1999, that Norman Leonard Bergman ("the Applicant") did not render qualifying service for the purposes of section 7A of the Act, and hence is not eligible for a Gold Card under subsection 85(4A) of the Veterans' EntitlementsAmendment (Gold Card) Act 1998 ("the Gold Card Act"). The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 22 July 1999, an application to the Tribunal for an extension of time having been granted.
At the hearing before the Tribunal on 3 March 2000, the Applicant was self-represented. Mr J Marsh, Senior Advocate, appeared for the Respondent. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also took into evidence the following:

Exhibit No.     Description    Date
A1      Statutory declaration by the Applicant.    28 February 2000
R1      Statement of service of Norman Leonard Bergman.     Undated

In the course of the hearing, the Respondent sought an adjournment in order to undertake further investigation in respect of the Applicant's claim that he participated in an aircraft delivery flight to New Guinea. Accordingly, the matter was adjourned. Prior to the resumed hearing, the Applicant advised the Tribunal (vide his letter of 16 August 2000) that he would not attend the resumed hearing, which accordingly proceeded in his absence on 31 August 2000. At the resumption, the following additional documentation was made available to the Tribunal and taken into evidence:

Exhibit No.     Description    Date
R2      Letter from Department of Defence (RAAF Records).   4 May 2000
R3      Report by Mr R Piper, historian.    21…

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 Bergman and Repatriation Commission

Details

AGLC: Bergman and Repatriation Commission [2000] AATA 870
Case: [2000] AATA 870
Decision Date: 3 October 2000

CaseChat Overview and Summary

The case of Bergman and the Repatriation Commission was heard by the Federal Court of Australia. The central issue was the eligibility of the veteran for a gold card under the Veterans' Entitlements Act 1986. The applicant, Mr Bergman, sought to establish that his service in the Royal Australian Air Force (RAAF) qualified him for the gold card, which provides access to certain health services. The dispute arose from the Repatriation Commission's determination that his service did not meet the criteria for gold card eligibility, specifically concerning whether his service involved delivery flights to New Guinea during the period of hostilities and whether he incurred danger during that time.

The primary legal issue for the court was to determine if Mr Bergman's service in the RAAF, specifically his involvement in delivery flights to New Guinea, constituted qualifying service under the relevant statutes. The court had to interpret the statutory provisions and case law to ascertain whether the applicant's service met the criteria for gold card eligibility. This included evaluating the nature and duration of his service, the geographical areas where he served, and the period during which he was exposed to danger. The court also had to consider the legislative intent behind the gold card eligibility criteria and apply it to the facts of Mr Bergman's case.

In delivering the judgment, the court closely examined the evidence provided by Mr Bergman and the Repatriation Commission. The court noted that the applicant's service in the equipment branch of the RAAF, his delivery flights to New Guinea, and his presence in the area after hostilities ended were all relevant factors. The court referenced previous decisions, such as Repatriation Commission v Thompson and Willcocks v Repatriation Commission, to understand the scope of qualifying service. Ultimately, the court found that Mr Bergman's service did not qualify for the gold card as he did not incur danger during the period of hostilities. The court's reasoning was based on the statutory definition of qualifying service and the specific circumstances of Mr Bergman's military activities.

The final orders of the court were that Mr Bergman's application for a gold card was dismissed. The court held that his service did not meet the statutory requirements for gold card eligibility, as he did not incur danger during the relevant period of hostilities. This decision was grounded in the statutory interpretation and the factual findings made by the court regarding Mr Bergman's military service.

Orders