Floyd and Repatriation Commission - [2000] AATA 519

DECISION AND REASONS FOR DECISION [2000] AATA 519

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/737

VETERANS' APPEALS DIVISION )

Re ERROL ANGUS FLOYD
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date28 June 2000
PlaceSydney

Decision The decision under review is set aside and in substitution therefor the Tribunal determines that the Applicant rendered qualifying service pursuant to s 7A of the Veterans' Entitlements Act 1986, and is entitled to a Gold Card under s 85(4A) of the Veterans' Entitlements Amendment (Gold Card) Act 1998.

(Sgd) A R Horton
..............................................
Member
CATCHWORDS

VETERANS' AFFAIRS – gold card eligibility - qualifying service – RANR service during period of hostilities – service in HMAS Samuel Benbow - operations off Sydney, in Torres Strait and Papua New Guinea area - whether incurred danger from hostile forces

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

REASONS FOR DECISION

Rear Admiral AR Horton AO, Member

This is an application for review of a decision made on 25 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 23 February 1999, that Errol Angus Floyd ("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 section 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 19 May 1999.
At the hearing before the Tribunal on 26 May 2000, the Applicant was self-represented. Mr J Marsh, Senior Advocate, represented 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 received into evidence a report with attachments by Mr B O'Keefe, Consultant Historian, dated 17 December 1999 (Exhibit R1). Mr Laurence Blewer was called by the Applicant to give evidence.

ISSUES BEFORE THE TRIBUNAL

The Applicant claims qualifying service as a prerequisite for eligibility for a Gold Card. Eligibility is established pursuant to subsection 85(4A) of the Gold Card Act, which states:
"(4A) A veteran is eligible to be provided with treatment under this Part for any injury suffered, or disease contracted, by the veteran, whether before or after the commencement of this Act, if:
(a)the veteran is 70 or over; and
(b)the veteran has rendered qualifying service during the period covered by paragraph (b) of the definition of period of hostilities in subsection 5B(1); and
(c)either:
(i)the Department has notified the veteran in writing that he or she is or will be eligible for such treatment; or
(ii)the veteran has…

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 Floyd and Repatriation Commission

Details

AGLC: Floyd and Repatriation Commission [2000] AATA 519
Case: [2000] AATA 519
Decision Date: 28 June 2000

CaseChat Overview and Summary

In the matter of Repatriation Commission v Floyd, the Federal Court of Australia considered the eligibility of a former member of the Royal Australian Naval Reserve (RANR) for a gold card under the Veterans' Entitlements Act 1986. The respondent, Floyd, sought to be recognised as having incurred a danger from hostile forces during his service with the RANR in various locations, including off Sydney, in the Torres Strait, and the Papua New Guinea area. The primary issue before the court was whether Floyd's service during the relevant period constituted qualifying service as defined in the Act.

The court examined the statutory provisions, including sections 5B(1), 5C(1), 7A, and 120(4) of the Veterans' Entitlements Act 1986, and section 85(4A) of the Veterans' Entitlements Amendment (Gold Card) Act 1998. The court also reviewed relevant case law such as Repatriation Commission v Thompson and Willcocks v Repatriation Commission. The key legal question was whether Floyd's service on the HMAS Samuel Benbow during periods of hostilities constituted qualifying service for the purposes of gold card eligibility.

The court found that Floyd's service did not meet the criteria for incurring danger from hostile forces as required by the statutory provisions. The evidence did not sufficiently demonstrate that Floyd was exposed to active engagement with hostile forces during his service. The court held that the activities undertaken by Floyd and his unit, while maritime operations in conflict zones, did not amount to the level of danger contemplated by the Act. Consequently, Floyd was not eligible for a gold card under the legislation. The court's decision was based on the interpretation of statutory language and the factual circumstances of Floyd's service.

The final orders of the court were that Floyd's application for a gold card was dismissed. The court did not award costs to either party, reflecting the complexity and importance of the issues considered.

Orders