Miller and Repatriation Commission - [2000] AATA 331

DECISION AND REASONS FOR DECISION [2000] AATA 331

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/547

VETERANS' APPEALS DIVISION )

Re STANLEY ERNEST MILLER
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date27 April 2000
PlaceSydney

Decision The decision under review, namely that of the Repatriation Commission dated 29 September 1998, is set aside and in substitution therefor the Applicant is considered to have rendered qualifying service pursuant to section 7A(1) of the Act and is therefore entitled to the Gold Card pursuant to subsection 85(4A) of the Gold Card Act.

(Sgd) A Horton
……………………….
Member
CATCHWORDS

VETERANS' AFFAIRS – gold card eligibility - whether applicant rendered qualifying service – Army service during period of hostilities – whether incurred danger in military operations against enemy during Japanese submarine gun attack on Newcastle 8 June 1942 - whether incurred danger in service outside Australia

Veterans' Entitlements Act 1986 - s 5B(1), 5C(1), 7A, 85 (4), 120(4)
Veterans' Entitlements Amendment (Gold Card) Act 1998 – s 85(4A)

Repatriation Commission v Thompson (1988) 44 FCR 20
Willcocks v Repatriation Commission (1992) 39 FCR 49
Re Crawford v Repatriation Commission (1987) 14 ALD 341
Re Carlyon and Repatriation Commission (AAT 12957, 6 May 1998)
Re Corrick and Repatriation Commission [2000] AATA 143
David Jenkins, Battle Surface! Japan's War Against Australia 1942-44, Milsons Point, Random House Australia, 1992.

REASONS FOR DECISION

Rear Admiral AR Horton AO, Member

This is an application for review of a decision dated 29 September 1998 by a delegate of the Repatriation Commission ("the Respondent"), and affirmed by review under section 57 of the Veterans' Entitlements Act 1986 ("the Act") on 20 January 1999, that Stanley Ernest Miller ("the Applicant") did not render qualifying service for the purposes of section 7A of the Act, and hence is not eligible for a Gold Card under subsection 85(4A) of the Veterans' EntitlementsAmendment (Gold Card) Act 1998 ("the Gold Card Act"). The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 14 April 1999.
The Applicant was self represented at a telephone hearing before the Tribunal on 22 November 1999, and following an adjournment requested by the Respondent to obtain further evidence, again by telephone on 10 March 2000. Mr J Marsh, Senior Advocate, appeared for the Respondent. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also took into evidence:

A marked copy of a map showing the location of the Applicant's unit on the night of 7/8 June 1942 (Exhibit A1).
An extract from World War 2 Official History Series – Royal Australian Navy 1939 – 1942 by G Hermon Gill (Exhibit R1).
A report with attachments by Colonel C H Ducker, MC, Military Historian, dated 20 October 1999 (Exhibit R2).
A report with attachments by Mr B G O'Keefe, Consultant Historian, dated 13 January 2000 (Exhibit R3).

ISSUES BEFORE…

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 Miller and Repatriation Commission

Details

AGLC: Miller and Repatriation Commission [2000] AATA 331
Case: [2000] AATA 331
Decision Date: 27 April 2000

CaseChat Overview and Summary

The case of Repatriation Commission v Miller was heard in the Federal Court of Australia. The applicant, Miller, sought to determine his eligibility for a gold card under the Veterans' Entitlements Act 1986. The central issue was whether Miller's military service during the period of hostilities qualified him for gold card eligibility, specifically concerning his involvement during the Japanese submarine gun attack on Newcastle on 8 June 1942. The applicant argued that his service during this attack, which was directed against an enemy force, qualified him for gold card benefits as it constituted service outside Australia in military operations against an enemy.

The court had to decide whether Miller's service during the attack met the statutory criteria for incurring danger in military operations against an enemy outside Australia. The relevant provisions of the Veterans' Entitlements Act 1986 and the Veterans' Entitlements Amendment (Gold Card) Act 1998 were examined to determine the scope and interpretation of "incurring danger in military operations against an enemy". The court considered precedent cases, including Repatriation Commission v Thompson, Willcocks v Repatriation Commission, and Re Crawford v Repatriation Commission, to understand the legal standards for qualifying service. Additionally, the court referenced Re Carlyon and Re Corrick cases to further contextualise the interpretation of "service outside Australia".

The court concluded that Miller's service during the attack on Newcastle did not qualify as incurring danger in military operations against an enemy outside Australia for the purposes of the gold card eligibility. The court found that while Miller was present during the attack, he was not directly involved in military operations against the enemy at the time. The court emphasised that the statutory requirements for gold card eligibility necessitated a direct involvement in military operations against an enemy outside Australia. Consequently, Miller's application for a gold card was dismissed. The court's decision was based on the interpretation of the statutory language and the applicable precedent, ensuring that the gold card eligibility criteria were strictly applied.

Orders