Leplaw and Repatriation Commission - [2006] AATA 936

Administrative

Appeals

Tribunal

-

DECISION AND REASONS FOR DECISION [2006] AATA 936
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/297

VETERANS’ APPEALS DIVISION
)

Re NORMAN LEPLAW

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr KS Levy, Senior Member
Date3 November 2006
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

. ............[Sgd]..........
KS Levy
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – service pension – application for Gold Card – applicant involved in patrols following outbreak of POW camp at Cowra – no qualifying service – whether applicant incurred danger from hostile forces of the enemy – decision affirmed
Veterans’ Entitlements Act 1986 ss 5B, 7A, 57, 85 (4A), 120(4)
Repatriation Commission v Thompson (1988) 44 FCR 20; (1988) 82 ALR 352; (1988) 15 ALD 501; (1988) 9 AAR 199
Re Saxton and Repatriation Commission (1998) 51 ALD 167; (AAT 12787, 9 April 1998)
REASONS FOR DECISION

3 November 2006 Dr KS Levy, Senior Member

1.      This is an application by Norman Leplaw for review of a decision to reject his application for a Gold Card for Veterans of Australia’s Defence Force. The applicant made an initial application for a Gold Card in February 2000, which was rejected in March 2000 for not having “qualifying service” as required by the legislation. The applicant made a further application for a Gold Card, the subject of this appeal, in July 2005, which was rejected by the Repatriation Commission by decision dated 8 August 2005. That decision was affirmed by a Delegate of the Repatriation Commission on 10 March 2006. It was again determined that the applicant did not have the necessary “qualifying service”.
2.      This matter has been decided on the papers in accordance with the agreement between the parties.
Background
3.      The applicant is 80 years of age, his date of birth being 21 May 1926. He enlisted in the Army during World War II on 9 June 1944. He was transferred to the Army Recruit Training Battalion on 5 August 1944, which was in close proximity to the Prisoner of War (POW) camp at Cowra. Mr Leplaw served in the Citizen Military Forces from 9 June 1944 to 27 September 1944, and in the Australian Imperial Force from 28 September 1944 to 2 January 1947. During that period, he also served in Papua New Guinea, having embarked, in Sydney, on the HMAS Kanimbla on 23 March 1946 and disembarked at Rabaul on 31 March 1946. He served there until he embarked on the SS Duntroon on 11 December 1946. He disembarked at Sydney, Australia, on 17 December 1946.
4. His application for a Gold card is premised on his eligibility for “qualifying service”, under section 7A of the Veterans Entitlement Act 1986 ("the Act."). This application is being assessed by virtue of section 57 of the Act.
Issue
5. The issue in this case is whether the applicant has "qualifying service" under section 7A of the Act, by having “...incurred danger from hostile forces of the enemy."
Legislation

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 Leplaw and Repatriation Commission

Details

AGLC: Leplaw and Repatriation Commission [2006] AATA 936
Case: [2006] AATA 936
Decision Date: 3 November 2006

CaseChat Overview and Summary

The matter before the court involved Mr. Leplaw, who sought a Gold Card under the Veterans’ Entitlements Act 1986. Mr. Leplaw argued that his involvement in patrols following the Cowra outbreak should qualify him for the pension, despite the lack of qualifying service. The Repatriation Commission denied his application, leading Mr. Leplaw to appeal to the Administrative Appeals Tribunal. The Tribunal was required to decide whether Mr. Leplaw's service during the Cowra outbreak constituted service in hostile circumstances, thereby entitling him to a Gold Card.

The court examined the statutory criteria for the Gold Card under sections 5B, 7A, 57, 85(4A), and 120(4) of the Veterans’ Entitlements Act 1986. The primary issue was whether Mr. Leplaw's participation in patrols following the Cowra outbreak constituted "service in hostile circumstances" as required by the Act. The Tribunal considered previous cases such as Repatriation Commission v Thompson (1988) 44 FCR 20 and Re Saxton and Repatriation Commission (1998) 51 ALD 167, which provided guidance on the interpretation of "hostile circumstances."

The Tribunal concluded that Mr. Leplaw's service during the Cowra outbreak did not meet the statutory definition of "hostile circumstances." The court found that while Mr. Leplaw participated in patrols, the risk he faced was not from the enemy's hostile forces but rather from the prisoners of war themselves. Therefore, the Tribunal affirmed the Commission's decision, holding that Mr. Leplaw was not entitled to the Gold Card. The Tribunal's reasoning was grounded in the specific statutory requirements and the interpretation of similar cases, which emphasized the distinction between risks posed by enemy forces and those posed by detainees or prisoners.

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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