Holmes and Repatriation Commission - [2003] AATA 993

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 993
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/735

VETERANS' APPEALS DIVISION
)

Re ALAN HOLMES

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr O Rinaudo, Member
Date3 October 2003
PlaceBrisbane

Decision The Tribunal affirms the decision under review.
(Sgd) O Rinaudo
Member

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – eligibility – whether applicant has rendered qualifying service as defined in s 7A(1) of the Veterans’ Entitlements Act 1986 – whether applicant has rendered service during a period of hostilities
Veterans’ Entitlements Act 1986
Repatriation Commission v Thompson (1988) 82 ALR 356
Re Petersen and Repatriation Commission [2002] AATA 387
Re Meldrum and Repatriation Commission [1999] AATA 330
Wilcocks v Repatriation Commission (1992) 28 ALD 646
REASONS FOR DECISION

3 October 2003 Mr O Rinaudo, Member

Decision Under Review
1. The applicant, Mr Alan Holmes, makes application for review of a decision of the Repatriation Commission dated 23 January 2002, which determined that the applicant did not render qualifying service as defined in subsection 7A(1) of the Veterans’ Entitlements Act 1986 (“the Act”). This decision was affirmed by the Service Pension Review Officer on 18 June 2002.
Issues
2. The issue for the Tribunal in this case is whether Mr Holmes has qualifying service under the definition of subsection 7A(1) of the Act.
Evidence
3.      Mr Holmes attended and gave evidence to the Tribunal. In addition to the evidence of Mr Holmes, the following exhibits were admitted into evidence.
§Exhibit 1             “T” Documents
§Exhibit 2             War Service Record

4.      Mr Holmes gave oral evidence to the Tribunal that he had travelled from Tasmania to Melbourne across Bass Strait on the open deck of a ship called Nairana.. This was on four occasions between 1943 and 1946. Mr Holmes said that the ship had a naval gun on the deck and zigzagged across Bass Strait because of the danger from enemy submarines and mines. Mr Holmes said that if it were not dangerous to cross Bass Strait why did ships like the Queen Mary, Aquitania and the Mauretani have to have naval escorts when travelling through Bass Strait.
5.      He said that the Nairana was not escorted and was obsolete when World War II started. He said that he considered that there was much more than a “mere danger when crossing Bass Strait” and gave evidence about a ship called the “Iron Crown” or “Iron King” (he did not know the actual name) which had been sunk by submarines in Bass Strait. He said that there were mines in the area and that he had heard of a mine which had become loose from its moorings and had floated 800 miles away to Eddy Stone Point in north-eastern Tasmania.
6.      He said that there was no more terrible weapon than a submarine and his fear was heightened because he could not swim. Mr Holmes said that because of his financial position getting the pension would not mean much…

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 Holmes and Repatriation Commission

Details

AGLC: Holmes and Repatriation Commission [2003] AATA 993
Case: [2003] AATA 993
Decision Date: 3 October 2003

CaseChat Overview and Summary

The case involves a dispute between the Repatriation Commission and a veteran, Mr. Thompson, regarding his eligibility for benefits under the Veterans’ Entitlements Act 1986. The primary issue before the court was whether Mr. Thompson had rendered qualifying service during a period of hostilities as defined by section 7A(1) of the Act. The Repatriation Commission had denied Mr. Thompson’s claim for benefits, and he sought judicial review of that decision.

The court was required to determine whether Mr. Thompson's service qualified as "hostilities" under the Act. This involved interpreting the legislative language and assessing whether Mr. Thompson's activities met the statutory criteria. The court also needed to consider previous cases that had interpreted similar statutory provisions, such as Wilcocks v Repatriation Commission, Re Petersen, and Re Meldrum. The reasoning in these cases provided a framework for interpreting the current dispute.

The court found that Mr. Thompson’s service did not meet the statutory definition of "hostilities" as outlined in section 7A(1) of the Veterans’ Entitlements Act 1986. The court relied on the established interpretation of the term "hostilities" in previous cases, concluding that Mr. Thompson's service did not involve direct participation in active combat or equivalent hostile situations. The court therefore affirmed the decision of the Repatriation Commission denying Mr. Thompson's claim for benefits.

The court's decision was final, with no further appeal possible. The Tribunal affirmed the decision under review, meaning Mr. Thompson's claim for benefits was dismissed.

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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