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McKeown v Repatriation Commission

McKeown v Repatriation Commission

Case [1995] FCA 856 25 October 1995

Judicial Review

Statutory Interpretation

Veterans' Entitlements Act 1986

Administrative Law

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CATCHWORDS

Defence - Ex-Servicemen (Veterans) - Pensions, allowances and other benefits - Qualification for benefits - Whether service in "actual combat against the enemy".

Veterans' Entitlements Act 1986 - s.6(1)(n)

DOROTHY MAY McKEOWN v. REPATRIATION COMMISSION

VG488 of 1993

Jenkinson J.
Melbourne
25 October, 1995

IN THE FEDERAL COURT OF AUSTRALIA    )
VICTORIA DISTRICT REGISTRY          )     No. VG488 of 1993
GENERAL DIVISION  )

On Appeal from the Veterans' Appeals Division of the Administrative Appeals Tribunal constituted by Mrs H.E. Hallowes, Senior Member

BETWEEN: DOROTHY MAY McKEOWN

Applicant

AND: REPATRIATION COMMISSION

Respondent

CORAM: Jenkinson J.

PLACE: Melbourne

DATE: 25 October, 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

The appeal be allowed.

The decision of the Administrative Appeals Tribunal made on 13 October 1993 be set aside.

The matter of the claim the subject of the said decision be remitted to the Administrative Appeals Tribunal to be heard and determined according to law.

Each party have leave to adduce further evidence before the said Tribunal.

The applicant's costs of the appeal (including reserved costs) be paid by the respondent.

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

IN THE FEDERAL COURT OF AUSTRALIA   )
VICTORIA DISTRICT REGISTRY         )    No. VG488 of 1993
GENERAL DIVISION                   )

On Appeal from the Veterans' Appeals Division of the Administrative Appeals Tribunal constituted by Mrs H.E. Hallowes, Senior Member

BETWEEN: DOROTHY MAY McKEOWN

Applicant

AND: REPATRIATION COMMISSION

Respondent

CORAM: Jenkinson J.

PLACE: Melbourne

DATE: 25 October, 1995

REASONS FOR JUDGMENT

Appeal from a decision of the Administrative Appeals Tribunal affirming a decision of the respondent Commission that had been affirmed by the Veterans' Review Board.

The Commission's decision was to refuse the claim by Leonard McKeown for a pension under Part II of the Veterans' Entitlements Act 1986 ("the Act"). The application for review by the Tribunal was made by his widow, the applicant in this court, as the person approved under s.126 of the Act after his death. At the request of the parties the Tribunal first determined whether Mr. McKeown had rendered operational service at any time while he was rendering eligible war service during World War 2. Having determined that he had
not, the Tribunal determined the claim for pension in accordance with the provisions of s.120(4) of the Act, and not in any respect in accordance with the provisions of sub-sections 120(1) and 120(3).

The determination that Mr. McKeown had not rendered operational service was said by counsel for the applicant on the appeal to have been vitiated by an erroneous construction of paragraph 6(1)(n) of the Act. Some of the provisions of sub-section 6(1) are:

"For the purposes of this Act:
(a)a person who has rendered, as a member of the Defence Force, continuous full-time service outside Australia during a war to which this Act applies shall be taken to have been rendering operational service while the person was so rendering continuous…

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 McKeown v Repatriation Commission

Details

AGLC: McKeown v Repatriation Commission [1995] FCA 856
Case: [1995] FCA 856
Decision Date: 25 OCTOBER 1995

CaseChat Overview and Summary

Dorothy May McKeown appealed a decision of the Administrative Appeals Tribunal, which had affirmed a decision of the Repatriation Commission to refuse her late husband's claim for a pension under Part II of the Veterans' Entitlements Act 1986. The Tribunal had found that Mr. McKeown had not rendered operational service during World War 2, and thus his claim for pension was determined under the provisions of s.120(4) of the Act, rather than s.120(1) and 120(3). The appeal focused on the Tribunal's interpretation of paragraph 6(1)(n) of the Act, which states that a person who rendered continuous full-time service within Australia during World War 2 in circumstances that should, in the opinion of the Commission, be treated as service in actual combat against the enemy shall be taken to have been rendering operational service.

The legal issues in this case were whether the Tribunal had correctly interpreted paragraph 6(1)(n) of the Act and whether the Tribunal had erred in its consideration of Mr. McKeown's service as it related to actual combat against the enemy. Counsel for the applicant argued that the Tribunal had misconceived the requirement of paragraph 6(1)(n) and should have understood it as concerned with any period, however short, throughout which circumstances attracting the opinion obtained. The applicant further argued that the Tribunal had incorrectly focused on the "essential character of the veteran's service" and should have considered the applicability of paragraph 6(1)(n) to any period of service, of whatever duration, throughout which the circumstances were such as to result in the formation of the specified opinion.

The Court found that the Tribunal had indeed erred in its interpretation of paragraph 6(1)(n) of the Act, and that the Tribunal should have considered the applicability of the paragraph to any period of service, regardless of duration, throughout which the circumstances were such as to result in the formation of the specified opinion. The Court further found that there was evidence before the Tribunal to justify a finding that, during each of the periods on board ship, when watch was kept for mines, submarines and enemy aircraft, and guns were manned, the members of Mr. McKeown's unit were engaging in conduct which answered the description of integral participation in an activity directly intended for an encounter with the enemy, whether offensive or defensive. The Court held that the matter must be remitted to the Tribunal for hearing and determination according to law, and that the parties should have leave to adduce further evidence.

In conclusion, the Court allowed the appeal, set aside the decision of the Administrative Appeals Tribunal, and remitted the matter to the Tribunal to be heard and determined according to law. The Court also ordered that the Repatriation Commission pay the applicant's costs of the appeal.

Orders