Iversen v Repatriation Commission

[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.

5. 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

6. 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.

7. 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

8. 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)…’

9. On 18 December 1987 the Minister made a Determination under subs 5(13)(a) in respect of inter alia:

   ‘(1)     …

   (2)persons who, as representatives of an approved philanthropic organisation provided welfare services to the Defence Force.’

   [‘the Determination’].

10. The expression ‘approved philanthropic organisation’ is defined in the Determination.  It relevantly includes the AFOF.

    THE TRIBUNAL’S DECISION

11. The Tribunal concluded that  the evidence does not support that the applicant was a representative of the AFOF [27] after taking into account the following matters:

    ·The only concert tour in which the applicant participated to which the AFOF contributed sponsorship was the December 1969 – January 1970 concert party tour, and that was sponsored by the AFOF jointly with the Australian Army [26].

    ·The applicant was paid by the Army [27].

    ·The applicant did not give evidence that he was an AFOF member. He did not remember going through an accreditation process to join the AFOF [27].

    ·Philanthropic representatives who have served with the Australian Defence Forces (‘the ADF’) were part of the task force in Vietnam and their day-to-day conditions were similar to members of the ADF [28].

    ·The Army holds records of representatives of approved philanthropic organisations [28].

    ·All representatives serving in Vietnam are listed in the ‘honour’ roll of veterans under ADF [28]; and

    ·The applicant is listed on the nominal roll of Vietnam Veterans, but there is no evidence to suggest he was recorded in Army records as an AFOF representative [28].

12. I have not been able to find any reference in the evidence to an ‘honour’ roll of veterans; only a ‘nominal roll of Vietnam Veterans’ and the applicant was certainly listed on that roll.  This would seem to be a case of the learned senior member misconstruing or, perhaps, misstating the evidence.

    THE SUBMISSIONS ON APPEAL

13. The applicant contended that the Tribunal did not offer any definition of what it considered ‘representatives’ to mean, as that term appeared in the Determination.  So much may be accepted, but that does not constitute an error of law.  At [25] the Tribunal did address the issue of whether the applicant is a representative of the AFOF albeit in combination with the issue of whether, as such a representative, he provided welfare services to the defence force.

14. On the evidence referred to at [11] above, the Tribunal came to the view that the applicant is not such a ‘representative’ ([at 30]), and there is no basis for the view that such process of reasoning is infected by error of law.

15. The applicant, in his written submissions, contended that ‘representatives’ as it appears in the Determination should be given a meaning that protects those who were in  fact in a war zone and thereby exposed to the risks and circumstances associated with that war.  It was submitted that such a ‘factual’ emphasis on the meaning of representatives would accord with the beneficial nature of the Act and the Determination made under it.  But such a construction goes well beyond the natural and ordinary meaning of the word ‘representative’ as exemplified in the dictionary meanings of the word upon which the applicant himself relies.

16. 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

17. The Tribunal’s decision is not infected by error of law and the appeal must be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:        28 July 2006

Counsel for the Appellant:	Mr M Vincent
Solicitor for the Appellant:	Legal Aid Commission of NSW
Counsel for the Respondent:	Ms R Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 July 2006
Date of Judgment:	28 July 2006