Joseph, D.L. v The Repatriation Commission

Re: DAVID LEOPOLD JOSEPH
And: THE REPATRIATION COMMISSION
No. Qld G141 of 1989
FED No. 347
Veterans' Affairs - Words and Phrases
20 ALD 618/12 AAR 124
23 FCR 456
100 ALR 549

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Spender J.(1)

CATCHWORDS

Veterans' Affairs - disability pension - member of the merchant navies of Great Britain and Norway - whether a member of the naval forces of a Commonwealth country or an allied country.

Words and Phrases - "a member of the naval...forces of a Commonwealth country or an allied country".

Veterans' Entitlements Act 1986 ss. 5(1), 6(1)(f), 7, 13 and 35(1). Defence Act 1903 s. 30.

HEARING

BRISBANE

#DATE 22:6:1990

Solicitors for the Applicant: Mullins and Mullins

Counsel for the respondent: Mr P. Dutney

Solicitors for the respondent: Australian Government Solicitor

ORDER

The appeal be dismissed with costs.

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

JUDGE1

This is an appeal from a decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal. The decision of the Tribunal was given on 4 December 1989 affirming a decision of the Repatriation Commission that Mr. Joseph be granted a service pension under the Veterans' Entitlements Act 1986 ("the Act") on the basis that he was an "Australian mariner" within the meaning of that Act. The Tribunal also found that he was entitled to the grant of a service pension under the Act on the further basis that he was an "allied mariner" as defined in that Act.

1. The point in issue on the appeal is whether the applicant is a "veteran" as defined in s. 5 in Part I of the Act: if he is, he is entitled to the benefits of the provisions of Part II of the Act, including an entitlement to the disability pension provided by s. 13 of the Act. The disability pension pursuant to Part II of the Act confers benefits different from those provided under a service pension in Part III of the Act. It is common ground that Mr. Joseph is entitled to a service pension.

2. The question of whether Mr. Joseph is a veteran as defined by s. 5 of the Act ultimately depends on whether the expression "naval forces" as used in s. 6(1)(f) of the Act includes the merchant marine of Britain or the merchant marine of Norway.

3. Section 13 of the Act authorises the grant of pensions to veterans and their dependants. The entitlement to such a pension depends on a war-caused death of a veteran or an incapacity of a veteran from a war-caused injury or a war-caused disease. For the purpose of considering pension eligibility under s. 13, a "veteran" relevantly means a person who is by virtue of s. 7 of the Act to be taken to have rendered eligible war service: s.5.

4. Section 7 provides, inter alia, that for the purposes of the Act a person who has rendered operational…