Dugina v Repatriation Commission

[1999] FCA 560

FEDERAL COURT OF AUSTRALIA

Dugina v Repatriation Commission [1999] FCA 560

VETERANS AFFAIRS – appeal against decision of the Administrative Appeals Tribunal affirming the decision of the respondent rejecting the applicant’s application for a service pension pursuant to s 5C of the Veterans’ Entitlements Act 1986 (Cth) – whether Tribunal wrong in law in its determination that the applicant was not an “allied veteran” - whether Tribunal wrong in law in its application of the meaning of “service” as determined in Truchlik v Repatriation Commission (1989) 87 ALR 263 - whether Tribunal, in considering alterations to the applicant’s service record and his receipt of an Italian pension took into account an irrelevant consideration and failed to accord the applicant procedural fairness.

Veterans’ Entitlements Act 1986 (Cth) s 5C

Truchlik v Repatriation Commission (1989) 87 ALR 263 - followed

ALESSANDRO DUGINA v REPATRIATION COMMISSION

VG 347 of 1998

GOLDBERG J
5 MAY 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 347 of 1998

On appeal from the Veterans’ Appeal Division of the Administrative Appeals Tribunal, constituted by Mr J Handley, Senior Member, and Dr C Re, Member

BETWEEN:	ALESSANDRO DUGINA Applicant
AND:	REPATRIATION COMMISSION Respondent
JUDGE:	GOLDBERG J
DATE OF ORDER:	5 MAY 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The applicant’s appeal is dismissed.

2.        The applicant pay the respondent’s costs of the appeal including any reserved costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 347 of 1998

On appeal from the Veterans’ Appeal Division of the Administrative Appeals Tribunal, constituted by Mr J Handley, Senior Member, and Dr C Re, Member

BETWEEN:	ALESSANDRO DUGINA Applicant
AND:	REPATRIATION COMMISSION Respondent

JUDGE:	GOLDBERG J
DATE:	5 MAY 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction

1. The applicant appeals to the Court pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) against the decision of the Administrative Appeals Tribunal (“the Tribunal”) on 1 July 1998 whereby it determined that the decision of the respondent rejecting the applicant’s application for a service pension pursuant to the provisions of the Veterans’ Entitlements Act 1986 (Cth) (“the Act’) be affirmed.

2. The Tribunal determined that the applicant was not an “allied veteran” within the definition of that term in s 5C(1) of the Act because the applicant had served in the forces of a country (Italy) that was at the time of his service engaged in supporting or assisting forces of a country at war with Australia. Section 5C(1) of the Act provides:

   “allied veteran means a person:

   (a)who has been appointed or enlisted as a member of the defence force established by an allied country; and

   (b)who has rendered continuous full‑time service as such a member during a period of hostilities;

   but does not include a person who has served at any time:

   (c)in the forces of a country that was, at that time, at…