Dibbs and Repatriation Commission - [2001] AATA 526

DECISION AND REASONS FOR DECISION [2001] AATA 526

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/406

VETERANS' APPEALS DIVISION )

Re anthony vernon dibbs
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Senior Member M D Allen

Date15 May 2001
PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL )         No   N2001/406
  )
VETERANS' APPEALS DIVISION                )

Re: ANTHONY VERNON DIBBS
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Senior Member M D Allen

Date 15 May 2001

Place Sydney

DecisionPursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975, on an application dated 6 April 2001 for an extension of time, it is ordered that the time for the lodging of an application by the Applicant for a review of a decision made by the Respondent not be extended.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Extension of time. Refused on basis application had no prospects of success. Whether Applicant rendered qualifying service. Application of an objective test. Although German submarine sighted no evidence of actual danger being incurred.

Veterans' Entitlements Act 1986

Hunter Valley Developments Pty Ltd v Cohen 3 FCR 344
Windshuttle v Deputy Federal Commissioner of Taxation 46 FCR 235
Re Commonwealth of Australia and Another; Ex parte Marks 177 ALR 491
Gallo v Dawson 64 ALJR 458
Repatriation Commission v Thompson 82 ALR 352

REASONS FOR DECISION

Senior Member M D Allen

At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen

Signed: Kwai-Ling Wong
..................................................................................……………………………….
Associate

Date of Hearing  15 May 2001
Date of Decision  15 May 2001
Solicitor for Applicant                  Applicant was self-represented
Advocate for Respondent          Mr Peter Godwin,
  Department of Veterans' Affairs

DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2001/406
By MR M.D. ALLEN, Senior Member
DIBBS and REPATRIATION COMMISSION
SYDNEY, TUESDAY, 15 MAY 2001
MR ALLEN: Well, in this matter the applicant seeks, pursuant to subsection 7 of section 29 of the Administrative Appeals Tribunal Act (1975) an extension of time in which to seek a review of a decision by the respondent, Repatriation Commission. The decision in question is to the effect that he did not…

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 Dibbs and Repatriation Commission

Details

AGLC: Dibbs and Repatriation Commission [2001] AATA 526
Case: [2001] AATA 526
Decision Date: 15 May 2001

CaseChat Overview and Summary

In the case of Dibbs versus the Repatriation Commission, the dispute involved the eligibility of the applicant for certain veterans' entitlements under the Veterans' Entitlements Act 1986. The matter was heard in the Federal Court of Australia, with the court tasked to decide on the merits of the applicant's claim for an extension of time and whether the application had any prospects of success. The central issue revolved around whether the applicant had rendered qualifying service for the purposes of the act, specifically whether there was sufficient evidence to demonstrate that the applicant had actually encountered danger during their service.

The court considered the criteria for assessing whether a service qualifies under the act, noting that an objective test should be applied. The court found that, although the applicant's submarine had sighted a German submarine, there was no evidence that the applicant had actually incurred any danger. This was an important distinction, as the act requires that the applicant must have been in a situation where actual danger was present. The court referenced several precedents, including Hunter Valley Developments Pty Ltd v Cohen, Windshuttle v Deputy Federal Commissioner of Taxation, Re Commonwealth of Australia and Another; Ex parte Marks, Gallo v Dawson, and Repatriation Commission v Thompson, to support its interpretation of the relevant statutory provisions.

The court concluded that the applicant's application for an extension of time should be refused because it lacked prospects of success. The court's reasoning was based on the absence of evidence that the applicant had encountered actual danger, despite the sighting of a German submarine. Consequently, the applicant's claim for veterans' entitlements was dismissed. The court's decision was grounded in the objective test applied to the facts of the case, ensuring that the interpretation of the act was consistent with established legal principles.

Orders