Iversen v Repatriation Commission

Case [2006] FCA 942

FEDERAL COURT OF AUSTRALIA

Iversen v Repatriation Commission [2006] FCA 942

DEFENCE AND WAR – Veterans – entitlements – where ministerial determination extended application of  Veterans’ Entitlements Act 1986 (Cth) – where determination applied to representatives of approved philanthropic organisations – where applicant participated as a musician in concert tours to Vietnam – where at least one tour co-sponsored by such an organisation – where applicant’s pay and allowances provided by the army – whether ‘representative’ bears its ordinary meaning in the determination – whether applicant a representative of the organisation

WORDS & PHRASES – ‘representative’

Veterans’ Entitlements Act 1986 (Cth) s 5(13)
Social Security and Veterans’ Affairs (Miscellaneous Amendments) Act 1986 (Cth) s 62

JACK IVERSEN v REPATRIATION COMMISSION

NSD 747 OF 2006

EDMONDS J
28 JULY 2006
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 747 OF 2006
ON APPEAL FROM THE VETERANS’ APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MRS J KELLY, SENIOR MEMBER

BETWEEN:

JACK IVERSEN
Applicant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

EDMONDS J

DATE OF ORDER:

28 JULY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The applicant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 747 OF 2006
ON APPEAL FROM THE VETERANS' APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MRS J KELLY, SENIOR MEMBER

BETWEEN:

JACK IVERSEN
Applicant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

EDMONDS J

DATE:

28 JULY 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT

EDMONDS J:

  1. This application is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) affirming a decision of a delegate of the respondent refusing a claim for a pension under the Veterans’ Entitlements Act 1986 (Cth) (‘the Act’) on the basis that the applicant is not a ‘veteran’ as defined in the Act. The Veterans’ Review Board (‘the Board’) had earlier affirmed the delegate’s decision.

    BACKGROUND

  2. The applicant was born on 4 February 1934.  He was a musician by occupation.  He worked as a trumpet player for the Australian Broadcasting Corporation (‘ABC’), commercial television channels, nightclubs, and touring artists prior to his retirement in 1996.

  3. During the Vietnam War he made four trips to that country as a musician in concert parties to entertain troops on active service.  The dates of those concert tours were given as:

    1.2 March 1967 to 16 March 1967.

    2.22 December 1967 to 3 January 1968.

    3.23 December 1969 to 12 January 1970.

    4.16 September 1979 to 6 October 1970.

  4. It is clear from evidence before the Tribunal that the applicant was paid by the Australian Army for each of these tours and that occurred at the air base in Saigon at the end of each tour, although he received allowances through the Army while he was on tour.

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Details
AGLC
Iversen v Repatriation Commission [2006] FCA 942
Case
[2006] FCA 942
Decision Date

CaseChat Overview and Summary

The case of Iversen v Repatriation Commission involved an appeal by the applicant against a decision by the Administrative Appeals Tribunal (the Tribunal) that upheld a refusal by a delegate of the Repatriation Commission (the respondent) to grant the applicant a pension under the Veterans’ Entitlements Act 1986 (the Act). The central issue was whether the applicant qualified as a ‘veteran’ under the Act, given that his services in Vietnam during the Vietnam War were provided as a musician in concert parties to entertain troops on active service, rather than in a military capacity. The applicant argued that his service should be recognised as equivalent to military service because his trips to Vietnam were sponsored by the Australian Army, either directly or through the Australian Forces Overseas Fund.

The court had to determine whether the applicant’s service in Vietnam could be considered as ‘relevant service’ as defined in the Act, specifically whether it could be equated with ‘continuous full-time service’ in the Defence Force. The key legal issue was whether the nature of the applicant’s service, as a musician entertaining troops, could be deemed to make him a representative of the Australian Forces Overseas Fund or the Australian Army, thereby qualifying him as a veteran under the Act. The court examined the definition of ‘veteran’ in the Act, including the circumstances under which the Minister could determine that the Act applies to a person as if they were a Defence Force member.

The court concluded that the Tribunal’s decision was not affected by any error of law. The court found that the applicant’s service, while acknowledged as support to the military, did not qualify as ‘relevant service’ because he was not a member of the Defence Force. The sponsorship by the Army or the Australian Forces Overseas Fund did not alter the fact that the applicant’s service was not rendered as a Defence Force member. The court rejected the applicant’s argument that his presence in the war zone was explicable by reference to his participation in a concert tour co-sponsored by the Army, stating that being sponsored by an organisation could not be equated with being a representative of that organisation.

The appeal was dismissed, and the applicant was ordered to pay the respondent’s costs of the appeal. The court upheld the Tribunal’s decision that the applicant was not a veteran under the Act, and thus not entitled to a pension under the Act.

Orders

Orders of the court

1. The appeal be dismissed.

2. The applicant pay the respondent’s costs of the appeal.

Background

Background to the litigation

This application is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) affirming a decision of a delegate of the respondent refusing a claim for a pension under the Veterans’ Entitlements Act 1986 (Cth) (‘the Act’) on the basis that the applicant is not a ‘veteran’ as defined in the Act. The Veterans’ Review Board (‘the Board’) had earlier affirmed the delegate’s decision.BACKGROUND The applicant was born on 4 February 1934. He was a musician by occupation. He worked as a trumpet player for the Australian Broadcasting Corporation (‘ABC’), commercial television channels, nightclubs, and touring artists prior to his retirement in 1996. During the Vietnam War he made four trips to that country as a musician in concert parties to entertain troops on active service. The dates of those concert tours were given as:1.2 March 1967 to 16 March 1967.2.22 December 1967 to 3 January 1968.3.23 December 1969 to 12 January 1970.4.16 September 1979 to 6 October 1970. It is clear from evidence before the Tribunal that the applicant was paid by the Australian Army for each of these tours and that occurred at the air base in Saigon at the end of each tour, although he received allowances through the Army while he was on tour. The evidence also establishes that only one of the tours, the December 1969/January 1970 tour, was jointly sponsored by the Army and the Australian Forces Overseas Fund (‘the AFOF’), but that while individual entertainers on the tour were sponsored by the AFOF, the Sydney ABC Dance Band, of which the applicant was a member, was sponsored on that tour by the Army. The relevance of this evidence will become apparent below.THE CLAIM On 11 November 2002, the applicant claimed a pension under the Act in respect of a medical condition suffered by him, namely psoriasis, not cirrhosis as found by the Tribunal. His claim was refused by the delegate on 18 November 2002, on the ground that the applicant is not a veteran, and that decision was affirmed on review by the Board on 27 April 2005. The applicant applied to the Tribunal for review on 10 June 2005. The Tribunal conducted a hearing on 3 March 2006 and gave an ex tempore decision on 6 March 2006. The Tribunal concluded that the applicant is not a veteran.RELEVANT LEGISLATION The word ‘veteran’ is defined in s 5 of the Act. In 1986, s 5 was amended by s 62 of the Social Security and Veterans’ Affairs (Miscellaneous Amendments) Act 1986 (Cth) to add subs 5(13), which relevantly provided:‘The Minister may, by notice in writing published in the Gazette, make, in respect of a person, or of persons included in a class of persons, specified in the notice, all or any of the following determinations:(a)a determination that this Act, or specified provisions of this Act, shall apply to and in relation to the person, or a person included in that class of persons, as if he or she was, while he or she was rendering service of a kind specified in the notice (in this sub-section referred to as “relevant service”), a member of the Defence Force who was rendering continuous full-time service;(b)…’

Evidence

Evidence Before The Court

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Decision

Reasons for decision

EDMONDS J
In his oral submissions, the applicant articulated what is substantively, albeit not in the same terms, a similar argument, namely that if the applicant’s presence in the war zone is only explicable by reference to his participation in a concert tour co-sponsored by the AFOF and the Australian Army, then he can be a representative of the former. That might be so, but such co-sponsorship will not of itself make the applicant a representative of the co-sponsor. Indeed, as the respondent submits, even if the applicant had been an ‘AFOF sponsored’ entertainer rather than an ‘Army sponsored’ entertainer, being sponsored by an organisation cannot be equated with being a representative of that organisation.CONCLUSION The Tribunal’s decision is not infected by error of law and the appeal must be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Established by: EDMONDS J

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