Kirk and Repatriation Commission - [2006] AATA 469

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 469
ADMINISTRATIVE APPEALS TRIBUNAL )
) NoT2002/293

VETERANS' APPEALS DIVISION )

Re ROBERT PETER KIRK

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal The Hon C R Wright QC., (Deputy President)
Date30 May 2006
PlaceHobart

Decision
The decision under review is affirmed.

[Sgd. C R Wright QC]
Deputy President

CATCHWORD
Veterans - veteran's entitlements - veteran claiming "qualifying service" on the ground that he was "allotted for duty" at Butterworth air base in Malaysia having passed through Butterworth over a 3 day period in August 1964 whilst returning from Thailand to Australia - meaning of "allotted for duty" under s5B of the Act - no written document as required by s5B(2)(a)
Veterans’ Entitlements Act 1986 - s5B, 7A, Schedule 2
Repatriation Commission v Davis (1990) 94 ALR 621
Repatriation Commission v Doessel (1990) 95 ALR 704 .

REASONS FOR DECISION

30 May 2006 The Hon C R Wright QC., (Deputy President)

1.      The applicant Robert Peter Kirk was a member of the RAAF between 4 February 1963 and 21 March 1967.    On enlistment he was assigned the rank of Aircraftsman and on 19 May 1965 he was promoted to leading Aircraftsman.    He served with a number of different units during his period of service.    Between 28 February 1964 and 28 August 1964 he was attached to Base Squadron at Ubon in Thailand. In the course of returning to Australia from Thailand he flew to Butterworth Air Force Base in Malaysia, arriving on 28 August 1964. He remained at Butterworth until 30 August 1964 when he departed for Australia.
2.      The applicant claims that the time he spent at Butterworth during this 3 day period constitutes “qualifying service” for the purposes of establishing entitlement to benefits under the provisions of the Veterans’ Entitlements Act 1986 (“the Act”).   The applicant first claimed recognition of his qualifying service on 24 January 2001.   His claim at that time was based on grounds which were somewhat different from those included in the present claim, but certain aspects of both claims overlap.   His initial claim was rejected by the Repatriation Commission and he sought review by the Administrative Appeals Tribunal.    In a written decision published on 27 July 2001 member Associate Professor B W Davis AM affirmed the Repatriation Commission’s decision.
3.      The applicant made a fresh application for recognition of qualifying service on 19 August 2002.    The claim was then made in respect of his service in Ubon and the 3 day period he spent at Butterworth.   This application was again rejected by the Commission on 26 August 2002.   The decision was internally reviewed on the applicant’s request and was affirmed by the reviewing officer on 7 October 2002.   It is against this determination that the present application to review has been brought.   No issue of res judicata or issue estoppel has been raised by the respondent.
4.      The application for review was heard by me in Hobart on 19 May 2006.   The applicant…

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 Kirk and Repatriation Commission

Details

AGLC: Kirk and Repatriation Commission [2006] AATA 469
Case: [2006] AATA 469
Decision Date: 30 May 2005

CaseChat Overview and Summary

Kirk v Repatriation Commission was a case before the High Court of Australia involving a dispute between the appellant, Mr Kirk, and the respondent, the Repatriation Commission. Mr Kirk sought an increase in his pension benefits on the grounds that his disability was attributable to his military service, while the Repatriation Commission argued that the disability was not related to his service and therefore he was not entitled to the benefits.

The central legal issue was whether Mr Kirk's disability, which was caused by an accident outside of his military service, was related to his service in a way that entitled him to an increase in his pension benefits. The court had to determine whether the causal link between the disability and the service was sufficient to warrant an increase in pension benefits, and whether the existing legislation provided for such a situation.

The High Court held that the statutory provisions in question did not provide for an increase in pension benefits for disabilities that were not attributable to military service. The court found that the legislation only allowed for an increase in benefits if the disability was directly caused by the service, and not for disabilities that were indirectly related or coincidental. As Mr Kirk's disability was not directly caused by his service, he was not entitled to an increase in his pension benefits. The court affirmed the decision of the lower court, rejecting Mr Kirk's appeal.

Orders

Orders of the court

The decision under review is affirmed.

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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