Moran and Repatriation Commission

[2003] AATA 610

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 610

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/709

VETERANS’ APPEALS DIVISION		)
Re		JOHN MORAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr B J McCabe, Member

Date27 June 2003

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

(Sgd) B J McCabe
  Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – eligibility – whether veteran has had three years effective full-time service – effect that time in detention or whilst AWOL should have on the calculation of the required three years effective full-time service

PRACTICE AND PROCEDURE – jurisdiction – estoppel – error made by Army when calculating veteran’s date of discharge - whether Tribunal can consider an argument based on the doctrine of estoppel

Veterans’ Entitlements Act 1986

Department of Veterans’ Affairs v Smith (1991) 23 ALD 584
Re Grigg and Defence Services Homes Corporation (1990) 13 AAR 24
Bull v Attorney-General (NSW) (1913) 17 CLR 370
Khoury v Government Insurance Office of NSW (1984) 54 ALR 639
Discount and Finance Ltd v Gehrig’s NSW Wines Ltd (1940) 40 SR (NSW) 598

Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Pty Ltd (1986) 160 CLR 226

Minister for Immigration v Kurtovic (1990) 21 FCR 193

REASONS FOR DECISION

27 June 2003 Mr B J McCabe, Member  

Introduction

1. John Moran is an ex-serviceman suffering from a medical condition. He says the condition is defence-caused within the meaning of s 70 of the Veterans’ Entitlements Act 1986.. He claims he is entitled to compensation as a result. The Repatriation Commission says he is ineligible for benefits.

2.      The Commission is the respondent to these proceedings. It says the Act requires that Mr Moran have three years effective service in the defence forces before he is eligible to receive benefits. Although Mr Moran spent longer than three years in the Army, the respondent says part of that time is excluded from the calculation because the applicant was absent without leave and undergoing punishment.

3.      Mr Moran appealed the Commission’s decision to the Veterans’ Review Board. The Board affirmed the decision, and the applicant has now sought relief from the Tribunal.

The Material Before the Tribunal

4. The Tribunal was provided with the material required under s 37 of the Administrative Appeals Tribunal Act 1975. It was also provided with two statements of Mr Moran, who gave evidence at the hearing. Mr Wall, the solicitor for the applicant, also tendered his own statement that was compiled on the basis of his experience in the Army. (Fortunately there was no need for Mr Wall to give evidence or be cross-examined). A statement from Brigadier John Essex-Clark, the applicant’s former commanding officer, was also tendered. The Brigadier gave oral testimony. The respondent also provided the Tribunal with a number of documents from Mr Moran’s Army personnel file.

5.      The applicant was represented by his solicitor, Mr Wall. The Commission was represented by Mr Morrison.

The Facts

6.      The facts were not in dispute. Mr Moran enlisted in the Australian Regular Army on 12 July 1972. He was discharged on 29 July 1975. Mr Wall noted the applicant was discharged on the basis that he had served the three years for which he had been engaged.

7.      The applicant was absent without leave (AWOL) on at least seven occasions during his service. On most of those occasions, the absences were for short periods, and he was subject to disciplinary action. But on one occasion – the last referred to in his record of service - he was AWOL for 19 days between 0700 hrs on 23 September 1973 and 2350 hrs on 11 October 1973. He was sentenced to 96 hours detention on 12 October 1973 in accordance with Army procedures. His detention commenced immediately after he was sentenced. If one combines the time he spent AWOL and the time he spent in detention, Mr Moran was unavailable for duty for 23 days consecutively.

8.      Mr Moran agreed in his evidence that he was AWOL. He did not complain about the punishment administered by his commanding officer. Mr Moran said he had been dealt with fairly - even leniently.

9.      The applicant considered re-enlisting in the Army but changed his mind because his new wife was unhappy with the long absences that are a feature of Army life. He applied for discharge and he was transferred to the personnel depot at Enoggera to await his release from service.

10.     The advocates for the applicant and the respondent accepted that time spent AWOL and in detention was not counted as part of one’s service for the purposes of determining when one is to be discharged. Before he was eligible for discharge after serving three years, Mr Moran was expected to make up for the time he was unavailable for service. Mr Moran said he was aware of that requirement. The Army personnel officers responsible for these matters calculated the number of extra days that Mr Moran had to serve before he had completed three years of effective service. He was discharged from service on 29 July 1975, some three years and 17 days after he enlisted.

11. It appears there was a miscalculation. If one excludes all the time Mr Moran spent AWOL or in detention, the applicant did not render a full three years of effective service. He was discharged early. That is a problem, because s 69 of the Veterans’ Entitlements Act 1986 says the veteran must have three years of effective full-time service before he or she can be eligible for a pension under s 70. It is therefore necessary to determine precisely which periods, if any, should be excluded from the calculation.

The Dispute in this Case

12.     The dispute turns on the construction of the definition of the expression effective full-time service, which is defined in s 68. That section provides:

“effective full-time service , in relation to a member of the Defence Force, means any period of continuous full-time service of the member other than:

(a)   a period exceeding 21 consecutive days during which the member was:

(i)    on leave of absence without pay;

(ii)   absent without leave;

(iii) awaiting or undergoing trial in respect of an offence of which the member was later convicted; or

(iv) undergoing detention or imprisonment;…”

13.     The respondent says the 19-day period during which the applicant was AWOL in September-October 1973 must be combined with the four days (96 hours) of detention that he served as punishment commencing on 12 October 1973. If that 23-day period is excluded from the calculation of effective service, the applicant is several days short of three years effective full-time service.

14. The applicant says any period of time lost because it is referred to in one of four limbs of the definition in s 68 will only count for the purposes of s 70 if that period exceeds 21 days. Periods shorter than 21 days would be ignored in the calculation of effective full time service for the purposes of determining an entitlement under s 70. Mr Wall, for the applicant, says the 23 day period during which the applicant was unavailable for duty in September – October 1973 is comprised of two periods of less than 21 days duration each: 19 days spent AWOL (referred to in s 68(a)(ii)), and 4 days in detention (referred to in s 68(a)(iv)). Each limb of the definition is listed as an alternative, using the disjunctive “or”. The applicant says the time spent on each activity (being AWOL and being in detention as a consequence) cannot therefore be combined. The 21-day clock runs separately in relation to the time spent AWOL and the time spent in detention. On that approach, the applicant has in excess of three years effective full time service, with the absences and periods of detention of less than 21 days being ignored.

15.     Mr Wall did not dispute the Army was entitled to require the applicant to make up all the time he spent AWOL and in detention. As I understood the submission, the periods less then 21 days were only ignored for the purposes of calculating whether the applicant was eligible to seek benefits under s 70.

16.     The respondent says that is an absurd interpretation. It means an applicant could be unavailable for a period far in excess of 21 days and still qualify for benefits provided the decision-maker cannot attribute a single block of 21 days or more to circumstances described in one of the limbs of the definition.

17.     The Commission referred to the decision of Pincus J in Department of Veterans’ Affairs v Smith (1991) 23 ALD 584. His Honour considered the meaning of the expressions effective full time service and period exceeding twenty-one consecutive days used in s 4AAA of the Defence Services Homes Act 1918. The wording of s 4AAA(6)(a) mirrors the wording of the relevant portion of s 68 of the Veterans’ Entitlements Act 1986.  In that case, the applicant had been charged with an offence on 14 April 1985. He was convicted on the day the charge was heard on 31 May 1985, and he immediately commenced a term of detention that ended on 15 July 1985 – a period of 44 days and 18 hours in detention. The Court concluded the whole of the period spent awaiting trial after the charge was laid and the whole of the period of detention ought to be taken into consideration as both of these periods exceeded 21 days. His Honour added that where the period did exceed 21 days, all of the period – not just the period in excess of 21 days – counted for the purposes of the calculation. But the situation is different here: neither of the two periods in question is 21 days in length.

18.     The decision of the Tribunal in Re Grigg and Defence Services Homes Corporation (1990) 13 AAR 24 is of greater assistance. The Tribunal was constituted on that occasion by Moss J. The case also dealt with the interpretation of s 4AAA of the Defence Services Homes Act 1918. His Honour emphasised that s 68 (and s 69, for that matter) referred to continuous full-time service. He said the rest of the sub-section ought to be read in that light. On that approach, Mr Moran’s continuous service was interrupted for in excess of 21 consecutive days by two of the events referred to in the sub-section. It would be artificial to ignore the interruption on the basis that it was attributable to two different factors where both factors ultimately arose out of the one course of conduct. If one accepts that argument, I must treat the legislation as if it said that continuous full time service was interrupted for a period of at least 21 days by one or more of the circumstances referred to in s 68(a)(i)-(iv).

19.     I think that is the better approach. The Veterans’ Entitlements Act 1986 is designed to reward those who were available to serve their country. While the definition in s 68 makes it clear that short gaps in availability – even numerous short gaps – might be excused, a member of the defence forces would not qualify for benefits if he or she was not available for three years of effective service, as opposed to three calender years of enlistment. Since Mr Moran was in fact unavailable for 23 consecutive days in 1973, the policy of the Act suggests that period should not be counted even though part of the absence was attributable to being AWOL, and part of it was attributable to the ensuing punishment.

20.     One must not lose sight of the fact that the Veterans’ Entitlements Act 1986 is beneficial legislation. It should be given a liberal interpretation “so as to give the fullest relief which the fair meaning of its language will allow”: see Bull v Attorney-General (NSW) (1913) 17 CLR 370 at 384 per Isaacs J. The limits of the rule were explained by Mason, Brennan, Deane and Dawson JJ in Khoury v Government Insurance Office of NSW (1984) 54 ALR 639. Their Honours said (at 651):

“…the rule that remedial provisions are to be beneficially construed so as to provide the most complete remedy of the situation with which they are intended to deal must…be restrained within the confines of ‘the actual language employed’ and what is ‘fairly open’ on the words used.”

21. The rule is also presumably subject to s 15AA of the Acts Interpretation Act 1901. Section 15AA says the decision-maker must prefer a construction that promotes the object of the Act. Concluding that the legislation is beneficial does not therefore relieve the decision-maker of the obligation to ascertain the will of Parliament in relation to each provision. As the joint judgment observed in Khoury (at 651), there must be a basis for deciding the remedial function of the legislation extends to the circumstances in question, even if the construction that permits that result is not unacceptably strained.

22.     I think the construction I have given s 68 is consistent with the object of the Act, which is to reward those who provide effective service (as opposed to ineffective service, for example because they are unavailable for inappropriate reasons) to the defence forces. I do not accept the beneficial nature of the legislation means that those who may have been continuously unavailable for one or more prescribed reasons should receive the benefit of the doubt.

23.     That is a hard result for Mr Moran who was discharged early. Mr Wall says the applicant was effectively denied the opportunity to render the service he contracted to provide. If his discharge had been delayed for at least another four days – and the parties appear to agree it should have been – the applicant would not be in any difficulty. Mr Wall says the respondent must not be permitted to take advantage of the Army’s mistake to deny Mr Moran his entitlements. Mr Wall emphasised that the applicant had no control over the date on which he was discharged. The precise time and place of discharge was a matter for the Army, he said.

24.     Brigadier Essex-Clark made the unfairness of the respondent’s position plain. He said in his letter to the Tribunal:

“I can make no comment about this period of detention causing a reduction in his period of service that would cause him to be ineligible to claim DVA benefits.  All I can say is this mistake on his part, compounded by his not factoring his period of detention into his length of service, seems somewhat harsh even though it would create precedent.  It doesn’t smack of a ‘fair go’ for the Digger.  Perhaps those at the personnel depot before his discharge should have examined his record of service and advised him about the problem of his detention period not being eligible service.  Also, perhaps, he should not have been allowed to terminate his service short of his full engagement period.”

25.     Mr Wall’s argument amounts to a claim that the respondent is estopped from asserting that the applicant had not served enough extra days to complete three years effective full time service because the Army was responsible for the shortfall. It is not, of course, an argument that the Act does not apply, or that its provisions are somehow overridden. It is instead an argument that the respondent is prevented from introducing evidence of the shortfall. Jordan CJ explained in Discount and Finance Ltd v Gehrig’s NSW Wines Ltd (1940) 40 SR (NSW) 598 at 602-603 that the estoppel in such a case takes effect as:

“…a rule of evidence which, in the given circumstances, prevents a person, as a matter of law, from denying or from asserting, as the case may be, the existence of some fact, irrespectively of whether it really exists.”

26.     It is possible that the facts of this case might give rise to an estoppel by convention of the kind recognised in Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Pty Ltd (1986) 160 CLR 226. The parties did not make any submission on the relevance of those authorities. Mr Morrison for the respondent says the meaning and effect of the Act are clear, even if the Army was at fault in letting Mr Moran go early. The Act imposes a requirement as to time of service, and that requirement has not – for whatever reason – been met.

27.     The application of the doctrine of estoppel in its various guises to the realm of administrative law is a difficult issue: see, for example, the judgment of Gummow J in Minister for Immigration v Kurtovic (1990) 21 FCR 193 at 207-218. In the event, I am obliged to accept Mr Morrison’s view. The Tribunal would be straying into the realm of the courts if it sought to give relief on the basis of an estoppel. The Tribunal stands in the shoes of the decision-maker in such a case, and the decision-maker is not permitted to ignore the words of the legislation. If a claim of estoppel is to be made, it should be made before the Federal Court.

28.     I asked Mr Morrison at the conclusion of the hearing about whether there was a possibility of Mr Moran being considered for an act of grace payment to compensate him for his condition given he has only missed out on his entitlements because he had no control over the date of his own discharge. I urge the Commission to consider whether there is anything that can be done to assist Mr Moran in the circumstances.

Conclusion

29.     The decision under review is affirmed.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member

Signed:         Sarah Oliver
  Associate

Date of Hearing  17 June 2003
Date of Decision  27 June 2003
Solicitor for the Applicant          Mr Wall, Gilshenan and Luton
Solicitor for the Respondent     Mr Morrison, Departmental Advocate