Long and Repatriation Commission - [2008] AATA 139

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 139
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N200600953

VETERANS’ APPEALS DIVISION )

Re LORRAINE SMITH as executor of the Estate of William Thompson Long (deceased)

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen
Rear Admiral A R Horton, AO, RAN (Rtd), Member
Date22 February 2008
PlaceSydney

Decision
The decision under review is affirmed.

.................[sgd]........................
M D Allen Presiding Member

CATCHWORDS
VETERANS’ ENTITLEMENTS – review of decision by respondent that determined veteran had not rendered qualifying service and was ineligible for a gold card entitling veteran to provision of medical treatment at the respondent’s expense – entitled to gold card if rendered qualifying service during a period of hostilities and incurred danger from hostile forces of the enemy – civil standard of proof – decision under review affirmed
LEGISLATION
Veterans' Entitlements Act 1986 sections 5B, 6A, 7A, 7A(1), 85(4A), 119, 120(4), 120(6) and 126
CASE LAW
Repatriation Commission v Thompson (1988) 82 ALR 352
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Farley-Smith [2007] FCA 1058
REASONS FOR DECISION

22 February 2008 Senior Member M D Allen
Rear Admiral A R Horton, AO, RAN (Rtd), Member

1. By application filed the 28^th day of July 2006 on behalf of William Thompson Long review was sought of a determination by the Respondent that the Veteran had not rendered Qualifying Service as that time is defined in section 7A of the Veterans’ Entitlements Act 1986.
2. The Veteran died prior to the matter coming on for hearing. On 19 January 2007 the late Veteran’s daughter Lorraine Irene Smith, the executrix of his estate was approved by the Respondent pursuant to s 126 VEA to pursue her late father’s application to the Administrative Appeals Tribunal.
3. On 22 October 2004 the late Veteran made an application for what is known as a “Gold Card”. The grant of that card entitles a Veteran to the provision of medical treatment at the expense of the Department of Veterans’ Affairs. Subsection 85(4A) VEA states inter alia that the late Veteran is entitled to treatment at the expense of the DVA if he or she is over 70 and has rendered qualifying service as that term is defined in s 7A VEA during a period of hostilities.
4. There is no dispute that the late Veteran served during a period of hostilities as that term is defined in s 5B VEA, namely during the period of World War II. To have rendered “qualifying service” however he would have had to render service in an area at a time when he incurred danger from hostile forces of the enemy, s 7A(1) VEA.
5. The term “incurred danger from hostile forces of the enemy” was considered by the Full court of the Federal Court in Re Repatriation Commission v Thompson (1988) 82 ALR 352. At p 356 the Court said:
“The words ‘incurred danger’ therefore provide…

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 Long and Repatriation Commission

Details

AGLC: Long and Repatriation Commission [2008] AATA 139
Case: [2008] AATA 139
Decision Date: 22 February 2008

CaseChat Overview and Summary

Long, the appellant, challenged a decision by the Repatriation Commission that he was ineligible for a gold card, which would entitle him to medical treatment at the Commission's expense. The dispute centred on whether the appellant had rendered qualifying service during a period of hostilities and incurred danger from hostile forces of the enemy. This case was heard in the Federal Court of Australia, where the appellant sought a review of the Commission's decision.

The central legal issue the court had to resolve was whether the Commission's decision was legally sound and based on the correct interpretation of the relevant legislation. Specifically, the court needed to determine whether the Commission had correctly applied the civil standard of proof when deciding the appellant's eligibility for a gold card. The court had to consider whether the Commission's decision was reasonable and if there were any errors in the application of the law or the facts.

The court found that the Commission's decision was legally sound and based on a correct interpretation of the legislation. The court held that the appellant had not discharged the onus of proving, on the civil standard, that he had rendered qualifying service and incurred danger from hostile forces of the enemy. The court concluded that the Commission had correctly applied the relevant legal principles and that the decision was supported by the evidence. As a result, the court affirmed the decision under review, upholding the Commission's determination that the appellant was not entitled to a gold card.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

VETERANS’ APPEALS DIVISION		)
Re		LORRAINE SMITH as executor of the Estate of William Thompson Long (deceased)