Brennan and Repatriation Commission - [2010] AATA 821

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 821
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0739

VETERANS' APPEALS DIVISION )

Re MAURICE BRENNAN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr M Denovan, Member
Date25 October 2010
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

.................[Sgd].............................
Member

CATCHWORDS
VETERANS’ ENTITLEMENTS – Service pension – Has applicant rendered qualifying service – Was the applicant awarded a campaign medal for service within New Zealand – Not awarded campaign medal for service within New Zealand - Did the applicant incur danger from hostile forces of the enemy while serving outside of New Zealand – Cannot be reasonably satisfied that the applicant incurred danger from hostile forces while serving outside of New Zealand – No qualifying service rendered – Decision under review affirmed.
Veterans’ Entitlement Act 1986 (Cth) ss 5B, 5C, 7A, 119, 120
Re Owens and Repatriation Commission [1989] AATA 137
Repatriation Commission v Thompson (1988) 82 ALR 352
Re Rawson and Repatriation Commission (1989) 18 ALD 31
Re Zeeno and Repatriation Commission (1988) 14 ALD 616
REASONS FOR DECISION

25 October 2010 Dr M Denovan, Member

INTRODUCTION
1.        Mr Maurice Brennan, the applicant, served in the Royal New Zealand Navy from 29 February 1944 to 24 April 1946. Mr Brennan was awarded the 1939-45 Star, the Pacific Star, the British War Medal and the New Zealand Service Medal.
2.        Mr Brennan’s application for service pension was rejected by the respondent, the Repatriation Commission, on 25 November 2008, because he has not rendered qualifying service, within the meaning of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”). The decision was affirmed on 5 February 2009.
3.        Whether a person has rendered qualifying service is determined by reference to s 7A of the Act. A member of the defence force[1] who served in World War 2[2] is deemed to have rendered qualifying service if:
·     they were engaged in service outside that country, at a time when the person incurred danger from the hostile forces of the enemy in that area[3]; or,
·     they were engaged in service within the country, being service in respect of which the person has been awarded a campaign medal.[4]
[1] Defence force established by a Commonwealth country means inter alia the naval force of the country: s 5C (1) of the Act.
[2] Period of hostilities means inter alia, World War 2 from its commencement 3 September 1939 to 20 October 1945: s 5B (1) of the Act.
[3] Section 7A (1) (b) (i) of the Act.
[4] Section 7A(1)(b)(ii) of the Act.

4. Mr Brennan requested a review of that decision by this Tribunal because he believes that he incurred danger of the type required under the Act. He also believes that the service medals that he has been awarded are evidence of his qualifying service.
5. Specifically, Mr Brennan contends that he incurred danger in 1944 when his ship swept a channel of mines in Wellington Harbour, and also during his…

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 Brennan and Repatriation Commission

Details

AGLC: Brennan and Repatriation Commission [2010] AATA 821
Case: [2010] AATA 821
Decision Date: 25 October 2010

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal (AAT) was an appeal by Mr. Brennan against a decision of the Repatriation Commission that he was not entitled to a service pension under the Veterans’ Entitlement Act 1986. The dispute centred on whether Mr. Brennan had rendered qualifying service during his military tenure, which would entitle him to a service pension. Specifically, the Tribunal had to determine if Mr. Brennan had been awarded a campaign medal for service within New Zealand, and if he had incurred danger from hostile forces while serving outside of New Zealand.

The key legal issues for the Tribunal were whether Mr. Brennan had provided sufficient evidence to establish that he had rendered qualifying service. This involved examining whether he had been awarded a campaign medal for service within New Zealand and whether he had incurred danger from hostile forces while serving outside of New Zealand. The Tribunal was required to assess the evidence provided by Mr. Brennan against the statutory criteria set out in sections 5B, 5C, and 7A of the Veterans’ Entitlement Act 1986.

The Tribunal examined the evidence and concluded that Mr. Brennan had not been awarded a campaign medal for service within New Zealand, and that there was insufficient evidence to reasonably satisfy the Tribunal that he had incurred danger from hostile forces while serving outside of New Zealand. Consequently, the Tribunal determined that Mr. Brennan had not rendered qualifying service, and affirmed the decision of the Repatriation Commission. The Tribunal relied on previous cases such as Re Owens and Repatriation Commission, Repatriation Commission v Thompson, Re Rawson and Repatriation Commission, and Re Zeeno and Repatriation Commission in reaching its decision.

The final order of the Tribunal was that the decision under review, which found that Mr. Brennan was not entitled to a service pension, was affirmed. This means that Mr. Brennan's appeal against the Repatriation Commission's decision was dismissed, and he remains ineligible for a service pension under the Veterans’ Entitlement Act 1986.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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