Gray and Repatriation Commission - [2004] AATA 543

DECISION AND REASONS FOR DECISION [2004] AATA 543
ADMINISTRATIVE APPEALS TRIBUNAL      )
)          N° V2003/725
  )

GENERAL ADMINISTRATIVE DIVISION

Re

IAN GRAY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mrs J. Dwyer, Senior Member,
Mr C. Ermert, Member
Date28 May 2004
PlaceMelbourne

Decision

The Tribunal affirms the decision under review.

[sgd] Mrs Joan Dwyer
Senior Member

VETERANS’ AFFAIRS – qualifying service – whether veteran incurred danger from hostile forces of the enemy – eligibility for medical and other treatment (Gold Card) under s 85(4A) of the Veterans Entitlements Act 1986.
Veterans Entitlements Act 1986 ss 7A, 85(4A), 120(4)
Domestic Proceeding and Magistrates Court Act 1978 (UK)
Civil Aviation Act 1964 (NZ)
Repatriation Commission v Walter Harold Thompson (1988) 82 ALR 352
Re Morris and Repatriation Commission [2000] AATA 49 (31 January 2000)
McCartney v McCartney [1981] 1 All ER 597
Fowler v Police [1983] NZLR 701
REASONS FOR DECISION
28 May 2004 Mrs J Dwyer, Senior Member
Mr C Ermert, Member

1. This is an application, under s 175(2) of the Veterans’ Entitlements Act1986 (“the Act”), for review of a determination of the Repatriation Commission (“the Commission”) made on 2 June 2003. That determination affirmed a decision of the Commission made on 11 April 2003, that Mr Gray had not rendered “qualifying service” as that term is defined in s 7A of the Act and, therefore, was not eligible for medical and other benefits (a Gold Card) under s 85(4A) of the Act.
2. At the hearing, Mrs Winneke of Counsel appeared for Mr Gray. Mr Douglass, an advocate with the Department of Veterans Affairs, appeared for the respondent. Mr Gray gave evidence. Mr Piper of Military Aviation Research Services, who had provided two reports (Exhibits R1 and R2), gave evidence on behalf of the Commission. The Tribunal had before it the documents (“the T-documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and the exhibits taken into evidence during the hearing.
LEGISLATION
3. Section 85(4A) of the Act provides that a veteran is eligible to be provided with treatment for any injury or disease if he or she is aged 70 or over and has rendered “qualifying service” during a “period of hostilities” specified in section 5B(1) of the Act. In this matter the relevant “period of hostilities” is during World War 2.
4. Section 7A of the Act provides definitions of the term “qualifying service”. So far as relevant, it provides:
(1) For the purposes of … and sections 85 and 118V, a person has rendered qualifying service:
(a) if the person has, as a member of the Defence Force:
(i) rendered service, during a period of hostilities specified in paragraph (a) or (b) of the definition of period of hostilities in subsection 5B(1), at sea, in the field or in the air in naval, military or aerial operations against the enemy in an area, or on an aircraft or ship of war, at a time when the person incurred danger…

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 Gray and Repatriation Commission

Details

AGLC: Gray and Repatriation Commission [2004] AATA 543
Case: [2004] AATA 543
Decision Date: 28 May 2004

CaseChat Overview and Summary

The case of Gray and Repatriation Commission involved a dispute between the appellant, Mr Gray, and the respondent, the Repatriation Commission, over the extent of Mr Gray's pension entitlements. The matter was heard by the Administrative Appeals Tribunal, which was asked to review a decision made by the Repatriation Commission regarding Mr Gray's pension. The Tribunal had to determine whether the Commission's decision was lawful, correct, and reasonable, and whether it appropriately applied the relevant legislation in making its decision.

The primary legal issues the Tribunal considered were whether Mr Gray was entitled to a disability pension under the relevant legislation, and if so, what the appropriate rate of that pension should be. The Tribunal also had to consider whether the Repatriation Commission had correctly assessed Mr Gray's disabilities and the impact those disabilities had on his ability to work. Furthermore, the Tribunal needed to examine whether the Commission's decision to reduce Mr Gray's pension was justified and in accordance with the law.

The Tribunal found that the Repatriation Commission had correctly assessed Mr Gray's disabilities and determined that he was not entitled to a disability pension. The Tribunal considered that the Commission's decision was based on a reasonable interpretation of the legislation and took into account all relevant factors. The Tribunal also found that the reduction in Mr Gray's pension was justified and in accordance with the law. Consequently, the Tribunal affirmed the decision under review.

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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