Hanrahan and Repatriation Commission

Case [2008] AATA 369


Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 369

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2006/244

VETERANS' AFFAIRS  DIVISION )
Re PETER HANRAHAN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr S. Webb, Member
Dr P. Wilkins, Member

Date7 May 2008

PlaceCanberra

Decision The Tribunal affirms that part of the Veterans' Review Board decision concerning operational service: Mr Hanrahan rendered operational service from 29 September 1970 to 3 October 1970.

.............signed................................

Mr S. Webb, Presiding Member

CATCHWORDS

VETERANS' ENTITLEMENTS - operational service - Vietnam - supernumerary flight crew on flights from Australia - Veteran's memory imprecise - absence of official records - evidence concerning dates of departure and return of single flight - no probative evidence concerning other alleged flights - operational service decision affirmed

Veterans' Entitlements Act 1986 ss 5B, 6C, 119, 120

Briginshaw v Briginshaw (1938) 60 CLR 336

Repatriation Commission v Smith (1987) 74 ALR 537

Bater v Bater [1950] 2 All ER 458

Jakab v Repatriation Commission [2007] FCA 898

Mason v Repatriation Commission 10 October 2000 [2000] FCA 1409

Repatriation Commission v Bey (1997) 79 FCR 364

Fenner v Repatriation Commission 2 February 2005 [2005] FCA 27

REASONS FOR DECISION

7 May 2008 Mr S. Webb, Member
Dr P. Wilkins, Member       

1.      Peter Hanrahan served in the Royal Australian Air Force from 20 July 1966 to 19 July 1972.  He was mustered as a General Hand and was posted to the Richmond Air Force Base.  He was allotted duty as supernumerary flight crew on a flight to Vietnam.  Mr Hanrahan asserts that he was allotted such duty on more than one occasion.  In the period from 13 November 2002 to 10 September 2004, Mr Hanrahan lodged three claims for disability pension in relation to various conditions.[1]  Those claims were rejected by the Repatriation Commission[2] and the Veterans’ Review Board,[3] and related proceedings are presently on foot in this Tribunal.

[1] T4, T10 and T22.

[2] T2.

[3] T27.

2.      The purpose of the present hearing is to determine the period of Mr Hanrahan’s operational service.  The substantive matters of his claims will be dealt with in due course.

3.      Mr Hanrahan asserts that he was posted to 37 Squadron from 17 October 1966 to 18 July 1972[4]  and he was allotted duty as supernumerary flight crew on six flights in C130E Hercules aircraft to bases in Vietnam.  He gave evidence about the duration of such flights and the flight paths taken and described his duties and recollections of what occurred.[5]  He also gave evidence about personnel on such flights.[6]  Mr Hanrahan described his recollection of the administrative arrangements relating to such flights, especially in relation to his passport and ‘needle book’.  In Mr Hanrahan’s submission, the dates of each flight are recorded on a loose sheet in his passport.[7]  He says that these dates were verified by the Department of Defence[8]  and he was awarded the Australian Active Service Medal 1945-1975 with Clasp Vietnam and the Vietnam Logistic and Support…

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Hanrahan and Repatriation Commission [2008] AATA 369
Case
[2008] AATA 369
Decision Date

CaseChat Overview and Summary

The case before the court involved a dispute between Mr Hanrahan and the Repatriation Commission regarding the recognition of his operational service in Vietnam for the purposes of veterans' entitlements. The Tribunal, which was acting on an appeal from the Veterans' Review Board, had to determine whether Mr Hanrahan's service qualified as operational. Mr Hanrahan's memory concerning the dates of his service was imprecise, and there were no official records to substantiate his claims. The central issue before the court was whether Mr Hanrahan had provided sufficient evidence to establish that he had performed operational service during the specified period.

The court considered the statutory provisions under the Veterans' Entitlements Act 1986, which require a veteran to prove their service on the balance of probabilities. The court examined the principles established in Briginshaw v Briginshaw, which emphasize the importance of the quality of evidence rather than its quantity. In applying these principles, the court scrutinised the evidence provided by Mr Hanrahan and the Commission. The court found that while there was evidence concerning the dates of a single flight, there was no probative evidence regarding other alleged flights. Consequently, the court concluded that the burden of proof had not been discharged in relation to the other flights.

Based on the evidence presented, the court determined that Mr Hanrahan had only provided sufficient evidence to establish his operational service from 29 September 1970 to 3 October 1970. The court found that the other alleged flights were not adequately substantiated. Consequently, the Tribunal affirmed the part of the Veterans' Review Board decision that recognised Mr Hanrahan's operational service during the specified period. The court did not extend the recognition of operational service beyond the dates for which there was sufficient evidence.

Orders

Orders of the court

The Tribunal affirms that part of the Veterans' Review Board decision concerning operational service: Mr Hanrahan rendered operational service from 29 September 1970 to 3 October 1970.

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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