Heagney and Repatriation Commission - [2005] AATA 1122

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 1122
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/570

VETERANS’ APPEALS DIVISION )

Re Walter Heagney

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal Mr M. A. Griffin, Member
Date15 November 2005
PlaceSydney

Decision The Tribunal affirms the decision under review.

[Sgd] Mr M. A. Griffin, Member

CATCHWORDS
VETERANS' AFFAIRS - qualifying service – whether allotted for duty - no written instrument of allotment for duty – no declaration of warlike service - decision under review affirmed.
Veterans’ Entitlements Act 1986 - ss 5B (2)(a), 5C(1), 7A(1)(iii) and (iv)
Repatriation Commission v Doessel (1990) 95 ALR 704
Repatriation Commission v Davis (1990) 94 ALR 621
Re King (K) and Repatriation Commission (1995) 39 ALD 156
Re Buckham and Repatriation Commission (AAT 12735, 27 March 1988)
Re Graham (No1) and Repatriation Commission (AAT 479 , 2 July 1998)
Re Graham (No2) and Repatriation Commission [2000] AATA 337
Graham v Repatriation Commission [2001] FCA 422
Re Paterson and Repatriation Commission (AAT 840, 28 October 1998)
Re Smith and Repatriation Commission (AAT 640, 13 August 1998)
Re Gibbs and Repatriation Commission [1999] AATA 223
REASONS FOR DECISION

15 November 2005 Mr M.A. Griffin, Member

1. This is an application under section 175(2) of the Veterans' Entitlements Act 1986 (“the Act”) for review of a decision of the Repatriation Commission which found that Mr Heagney did not render qualifying service within the meaning of that term in s.7A(1)(iii) or (iv) of the Act.
2. At the hearing Ms Doran represented Mr Heagney. Mr Bunn, an advocate with the Department of Veterans’ Affairs appeared for the respondent. The Tribunal had before it the documents (“the T documents”) lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and also the Exhibits tendered during the hearing.
3. The sole issue in the matter is whether Mr Heagney’s service with the Australian Army from 29 September 1965 to 28 September 1967 (as set out in the T documents and exhibit A2) includes a period of qualifying service as defined in the Act. It is not in dispute that Mr Heagney served with 4RAR in Malaysia from 21 September 1966 to 25 August 1967. The two relevant sub-paragraphs of section 7A(1) are (iii) and (iv). They provide that a person has rendered qualifying service if the person has, as a member of the Defence force:
“(iii)rendered service outside Australia in an area described in column 1 of Schedule 2 during the period specified in column 2 of that Schedule opposite to that description, as a member of a unit of the Defence Force that was allotted for duty, or as a person who was allotted for duty, in that area; or
(iv)rendered warlike service;
. . .”

4. Section 5B so far as relevant provides in sub-section (2)(a):
“(2)A reference in this Act to a person, or a unit of the Defence Force, that was allotted for duty…

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 Heagney and Repatriation Commission

Details

AGLC: Heagney and Repatriation Commission [2005] AATA 1122
Case: [2005] AATA 1122
Decision Date: 15 November 2005

CaseChat Overview and Summary

The case of Heagney and the Repatriation Commission involved a dispute concerning the veteran's qualifying service and whether it was allotted for duty. The matter was heard in the Administrative Appeals Tribunal of Australia. The veteran, Mr Heagney, sought a review of a decision by the Repatriation Commission that his service did not qualify for certain benefits under the Veterans’ Entitlements Act 1986. The primary issue before the tribunal was whether Mr Heagney's service was considered allotted for duty in accordance with the statutory provisions, specifically sections 5B(2)(a), 5C(1), 7A(1)(iii) and (iv) of the Act.

To address this issue, the tribunal examined whether there was a written instrument of allotment for duty or a declaration of warlike service that could substantiate Mr Heagney's claim. The relevant case law, including Repatriation Commission v Doessel, Repatriation Commission v Davis, and Re King (K) and Repatriation Commission, was considered to interpret the statutory language and determine the appropriate criteria for qualifying service. The tribunal also reviewed previous decisions such as Re Graham (No1) and Repatriation Commission, Re Graham (No2) and Repatriation Commission, and Graham v Repatriation Commission, which had dealt with similar issues of qualifying service and allotment for duty.

Upon reviewing the evidence and applying the relevant case law, the tribunal concluded that there was no written instrument of allotment for duty or declaration of warlike service to support Mr Heagney's claim. Therefore, the tribunal found that his service did not qualify for the benefits he sought under the Veterans’ Entitlements Act 1986. Consequently, the tribunal affirmed the decision of the Repatriation Commission, thereby dismissing Mr Heagney's appeal. The tribunal's decision was based on the absence of necessary documentation and the precedent set by previous cases, which required such evidence for a claim of qualifying service to be successful.

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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