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 war with Australia, or in forces engaged in supporting or assisting the forces of such a country; or

   (d)in forces that were, at that time, engaged in war like operations against the Naval, Military or Air Forces of Australia”.

   Background

3. The applicant is aged 76 years. On 5 June 1997 the applicant lodged an application with the respondent for a service pension. On 17 June 1997 the delegate of the respondent determined that the applicant did not qualify as an allied veteran as defined in s 5C(1) of the Act as he had served with the forces of Italy before 13 October 1943 and during that period of hostilities it was at war with Australia. The applicant sought a review of the decision of the delegate pursuant to s 57 of the Act and that review affirmed the decision of the delegate. On 13 October 1997 the applicant lodged an application with the Tribunal for review of the decision of the delegate.

   The decision of the Tribunal

4. The issue before the Tribunal turned on whether the applicant had “served” in enemy forces and therefore was not an “allied veteran” for the purposes of s 5C(1) of the Act. The evidence before the Tribunal, which the Tribunal accepted, was as follows – the applicant was born in Fiume (then part of Italy and now part of Croatia) on 1 March 1923. The applicant was anti‑fascist and on 5 September 1942 he was conscripted into the Italian army although he refused to swear allegiance and never wanted to be part of the army. Prior to that time he was regarded as a political suspect and he associated with anti‑fascist sympathisers. On 7 September 1942 he went to the 18^th Infantry Regiment were he remained for about ten weeks.  Whilst with that Regiment his activities involved cleaning the barracks and surrounding yards of the Regiment.  On 15 November 1942 he was transferred to 205 Workers Company.  Although his service record showed that he either served in or was attached to the 336^th Infantry Regiment he said he was never part of that Regiment.  The only activity he carried out with 205 Workers Company was cleaning the barracks of the company.  He was not given tools or weapons and was under the control of armed Italian officers.

5. The Italian government declared an armistice with the allied forces on 8 September 1943 and on 1 October 1943 the applicant deserted from the Workers Company, made contact with British forces in Italy and served thereafter with a Yugoslav partisan unit.

6. There was an entry in the applicant’s service record that on 24 November 1943 he appeared before a military tribunal on a charge of desertion and on 31 July 1950 he was sentenced to a term of military imprisonment for desertion.  These entries had been crossed out on the original form as the applicant said that he made application to have those entries removed because he did not want to be referred to as a deserter as he intended to apply for an Italian pension and civilian employment.  He said he had applied for an Italian pension before these entries were deleted and was refused and it was upon that refusal that he learned that the deletion of those parts of the record might permit him to qualify for a pension.

   Submissions before the Tribunal

7. The applicant submitted that he qualified as an “allied veteran” within s 5C(1) of the Act as he was conscripted against his will and conscription did not amount to “service”. He submitted that the Workers Company was a special unit created to retain people of Yugoslav background who were suspected of being anti‑fascist and that he was not utilised for the benefit of the Italian army. It was submitted that the applicant’s circumstances fell within the reasoning of the Full Court in Truchlik v Repatriation Commission (1989) 87 ALR 263.

8. The respondent submitted that the decision in Truchlik (supra) supported the respondent’s case that the applicant could not be regarded as an “allied veteran”. 

   Reasoning of the Tribunal

9. The Tribunal analysed the decision in Truchlik (supra) and noted that the members of the Full Court discussed the concept of “allied veteran” as involving a consideration of both enlistment and service in the sense that “service” contemplated activity or action beyond that of mere enlistment.  The Tribunal did not accept the applicant’s submission that because he was assigned to a Workers Company only and was principally engaged in the cleaning of barracks he did not “serve”.  The Tribunal said at par 26 of its reasons:

   “To serve as a member of an army in a time of war is surely not confined to direct or close association with combat.  By this we mean that it would not be hard to contemplate that direct association with combat would involve actual fighting including the discharge of weapons and explosives in an attempt to overwhelm or annihilate an enemy.  Similarly close association would amount to support type ventures to ensure overwhelming or annihilation of an enemy such as the construction of roads, bridges, airfields and the like.  It is our view however that service extends to performing or undertaking all things necessary to support forces directly engaged in combat for example, provision of meals, manufacture and supply of uniforms and clothing, transportation of auxiliary goods and services and – cleaning of barracks.  (Refer Davies J at p.267‑268 and Sheppard & Foster JJ at p.272‑273).”

   The Tribunal also rejected the submission by the applicant that by being conscripted service by him could not be substantiated and relied upon the observation of Davies J in Truchlik (supra) at 268:

   “Service in the armed forces is service whether it be voluntary or pursuant to conscription.”

10. The Tribunal then found that not only did the applicant understand that he “served” but that there was evidence to suggest that it was understood by relevant authorities that the applicant did “serve”.  The Tribunal referred to the service record which showed that the applicant had “served” in the 18^th Infantry Regiment from September 1942, other documentation from the applicant in which he acknowledged he served in the Italian army and a letter from the Consul General of Yugoslavia in which it recorded that the applicant had served in the Italian army for about a year.  The Tribunal found that the applicant left his company without permission on 1 October 1943 after a period of service which occurred whilst Italy was supporting a country at war with Australia. 

11. The Tribunal concluded that the applicant had served in the Italian army whilst Italy was supporting a country at war with Australia.

12. The Tribunal then referred to the alterations to the applicant’s service record and noted that the applicant had qualified for, and now received, an Italian pension because he served as a member of the Italian army.

    Grounds of appeal

13. The questions of law raised in the notice of appeal are:

    “(a)Was the Tribunal wrong in law in its determination that the Applicant was not an allied Veteran, pursuant to the Veterans’ Entitlement Act 1986.

    (b)Was the Tribunal wrong in law in its application of the decision of Truchlik v Repatriation Commission (1989) 87 ALR 263.

    (c)Was the Tribunal wrong in law in failing to supply adequate and sufficient reasons for its determination.

    (d)Was the Tribunal wrong in law in taking into account [an] irrelevant consideration.

    (e)Was the Tribunal wrong in law in failing to accord the applicant procedural fairness.”

    In oral submissions Mr De Marchi, who appeared for the applicant, refined these grounds into the following propositions:

    ·The Tribunal did not interpret the term “service” correctly and failed to take into account the nature of the work carried out by the applicant, particularly having regard to the fact that he had been conscripted;

    ·The Tribunal did not look at the work which the applicant actually undertook;

    ·There were no facts before the Tribunal from which it could conclude that the applicant had served in the Italian army;

    ·The Tribunal’s reasons were inadequate because they did not address the essential issue whether the applicant had served in the Italian army;

    ·The Tribunal took into account an irrelevant consideration, namely that the applicant had sought and obtained an Italian pension and the Tribunal did not accord the applicant procedural fairness by deciding the application partly on the fact that he had obtained a pension from the Italian government and that entries in his service record had been deleted to facilitate this when this point was not raised as an issue during the hearing.

    Did the Tribunal fall into error?

14. Mr De Marchi submitted that the Tribunal incorrectly interpreted the definition of “allied veteran” in s 5C(1) of the Act by not giving the term “service” the degree of attention required by the Act and the principles in Truchlik (supra).  He submitted that the Tribunal acted on a wrong principle, namely that if the veteran was conscripted into the army it did not matter what type of service he rendered.  He also submitted that the Tribunal did not take into account the peculiar circumstances of the applicant’s conscription and service.

15. I do not accept these submissions.  The Tribunal correctly analysed Truchlik (supra) and, in particular, recognised and accepted that “service” contemplated activity or action beyond mere enlistment, that is to say beyond the fact of joining the army.  The Tribunal proceeded on the basis that it was insufficient simply to find that the applicant was conscripted in order to determine that he did not qualify as an allied veteran.  The Tribunal recognised that it had to investigate and make a finding as to the nature of the activities in which the applicant was involved and the work he carried out before it could conclude that he had served in the Italian army. 

16. It is incorrect to say that the Tribunal took the view that it did not matter what type of service the applicant rendered.  Nor is it correct to say that the Tribunal did not take into account the peculiar circumstances of the applicant’s conscription and the work he carried out.  The Tribunal specifically addressed the issue of the activities in which the applicant was involved and the work he carried out in par 26 of its reasons to which I have already referred.  The Tribunal made the finding that service in the army extends to a number of activities which it identified including the cleaning of barracks.  On the evidence before the Tribunal it was open to the Tribunal to find that the applicant had been involved in carrying out this activity whilst with the 18^th Infantry Regiment and the 205 Workers Company. 

17. Mr De Marchi submitted that it was not a proper interpretation of Truchlik (supra) to equate the cleaning of barracks with service in the Italian army.  This submission misunderstands the decision in Truchlik (supra) which was that service was not performed merely by joining the army, whether voluntarily or by conscription.  This principle was recognised and applied by the Tribunal.  It is not inconsistent with the reasoning in Truchlik (supra) that the cleaning of barracks be equated with service in the Italian army.  The Tribunal had before it evidence as to the work undertaken by the applicant whilst he was part of the 18^th Infantry Regiment and 205 Workers Company.  The Tribunal recognised that serving as a member of an army in war time is not confined to direct or close association with combat.  It was then a matter for the Tribunal whether the facts before it warranted the conclusion that the applicant had carried out service in the Italian army.  It is a matter of fact whether the cleaning of barracks is an activity which supports forces directly engaged in combat.  Having accepted that service required more than simply conscription the Tribunal found that service extended to performing or undertaking a number of matters including the cleaning of barracks.  Such a finding was open to the Tribunal on the evidence before it and it was not an error of law to make such a finding.  In my opinion, the Tribunal correctly applied the reasoning in Truchlik (supra) and made a finding of fact which was open to it. 

18. Put shortly, the Tribunal accepted the proposition which can be derived from Truchlik (supra) that the “service” contemplated in the definition of “allied veteran” in s 5C(1) of the Act requires activity or action beyond that of mere enlistment. The Tribunal’s finding that “service” extends to performing or undertaking all things necessary to support forces directly engaged in combat including the cleaning of barracks is a correct application of Truchlik (supra) and reflects a proper understanding of the definition of “allied veteran” in s 5C(1) of the Act.

19. There is no substance in the submission that the Tribunal’s reasons were inadequate.  The Tribunal set out in some detail the evidence which had been placed before it, in substance found the relevant facts, set out the submissions of both sides and then reached a conclusion explaining why it reached that conclusion.  That reasoning specifically addressed the issue of what was contemplated by “service” for the purpose of the definition of “allied veteran” and explained why the Tribunal reached the conclusion that the cleaning of barracks was an activity forming part of service.  In reality the applicant’s complaint is that the Tribunal’s reasons were inadequate because the Tribunal did not reach the conclusion that the applicant had not served in the Italian army.  However, the Tribunal addressed the essential issues and made findings and reached a conclusion in a proper and reasonable manner.

20. I also reject the submission that the Tribunal took into account an irrelevant consideration and failed to accord the applicant procedural fairness by referring to the alteration to the applicant’s service record and the fact the applicant had qualified for, and received, an Italian pension.  Insofar as the Tribunal used this matter as the basis for a finding that the applicant had served in the Italian army, it was an alternative basis propounded by the Tribunal after it had reached the conclusion, having regard to relevant principles, that on the evidence before it the applicant in fact served in the Italian army.  This is made clear by the observation of the Tribunal in par 32 of its reasons that:

    “Put in the alternative, despite submitting to us that he did not serve the Italian Army, Mr Dugina has been successful in his pursuit of pension payable as an ‘ex‑service man’ of the Italian Army (refer ‘registration and information sheet’ appended to respondent’s letter of 13 February 1998).”

    The applicant submitted that this is an irrelevant consideration and that by the Tribunal referring to it he was denied procedural fairness because the point was not raised as an issue during the hearing.  The issue of the deletion of the relevant entries in the service record was raised in the applicant’s evidence‑in‑chief.  Although there may be some doubt as to whether the Tribunal was correct in concluding that the pension was only payable because he served as a member of the Italian army rather than because of his civilian service I am satisfied that the Tribunal reached the conclusion it did, namely that service by the applicant in the Italian army occurred whilst Italy was supporting a country at war with Australia, before directing its attention to this other issue.  I am satisfied that the Tribunal would have reached the same decision as it did even if it had not addressed the issue of the deletion of the entries in the service record and the application for, and receipt of, an Italian pension.

21. The relevant test to be applied by an appellate court where an error of law has been established in the case of a trial by a judge sitting alone is found in the joint judgment of Dixon CJ and Kitto CJ in Paterson v Paterson (1953) 89 CLR 212 at 225–226 where, after holding that certain cross‑examination should not have been allowed, their Honours said:

    “But in the end we have come to the conclusion that the learned judge’s findings would have been exactly the same, had he disallowed the cross‑examination.  We are not here dealing with the verdict of a jury, the reasons for which are not known.  The learned judge has stated his reasons in full, and while it certainly cannot be said that nothing deduced from that part of the cross‑examination enters into the reasons his Honour gives, it can safely be concluded not only that what he so deduced did not form an indispensable part of his opinion or of the process by which it was formed, but that all the other elements in the case, had this one been excluded, would have led him exactly upon the same path to the same result.  In these circumstances it would not be right to order a new trial on the ground that the cross‑examination in question was wrongly admitted.”

    In Reynolds v Reynolds (1973) 1 ALR 318 Mason J (with whom Menzies and Walsh JJ agreed) said at 323‑324:

    “Unlike the jury verdict, the judge’s reasons provide a guide to the way in which he arrived at his decision and, in consequence, a basis for determining the likely effect on the decision of the rejected evidence, had it been admitted.”

    (See also Lynch v Howard (1980) 44 FLR 71 at 87 and in the context of judicial review Minister for Aboriginal Affairs v Peko‑Wallsend Limited (1986) 162 CLR 24 at 40 per Mason J).

    These observations are apposite to an appeal to the Court on a question of law from a decision of the Tribunal pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). I am satisfied having regard to the structure and content of the Tribunal’s reasons that its conclusions would have been the same had it not turned its attention to the issue of the deletion of the entries in the applicant’s service record and the Italian pension in the terms it did in pars 31 and 32 of its reasons.

1. On a proper analysis of the Tribunal’s reasons it had reached its conclusion on the merits of the application and decided the matter against the applicant by reference to the definition of “allied veteran” in s 5C(1) of the Act and the facts it had found in relation to the applicant (pars 1 ‑ 30) before it turned to the issues of the deletion of the entries in the service record and the Italian pension. It is clear from the Tribunal’s reasons that absent any reference to the alterations to the service record and the Italian pension the Tribunal would have reached the same result as it did.

2. In my opinion, the Tribunal made no error of law, it correctly construed s 5C(1) of the Act and correctly analysed and applied Truchlik (supra) by reference to facts in respect of which there was evidence before it.  The application will be dismissed.

I certify that the preceding twenty‑three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated:             5 May 1999

Counsel for the Applicant:	D De Marchi
Solicitor for the Applicant:	De Marchi & Associates
Counsel for the Respondent:	P J Hanks
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 April 1999
Date of Judgment:	5 May 1999