Morris and Repatriation Commission - [2000] AATA 49

DECISION AND REASONS FOR DECISION [2000] AATA 49

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/298

VETERANS' APPEALS DIVISION )

Re GEORGE GOODALL MORRIS
Applicant

And REPATRIAITON COMMISSION
Respondent

DECISION

Tribunal Mr J.T.C. Brassil, AM, Member

Date31 January 2000
PlaceMelbourne

Decision The decision under review be affirmed

(Sgd.) J.T.C. Brassil
Member
CATCHWORDS
VETERANS' AFFAIRS - qualifying service -- whether incurred danger -- eligibility for Gold Card health benefits
Veterans Entitlements Act 1986 Section 7A, subsections 85(4A), 120(4)
Repatriation Commission v Walter Harold Thompson (1993) 44 FCR 20

REASONS FOR DECISION

31 January 2000 Mr J.T.C. Brassil, AM, Member

This application is for review of a decision of a senior delegate of the Repatriation Commission on 21 December 1998 affirming a decision of the Commission on 6 June 1998 which decided that the veteran, George Goodall Morris, had not rendered qualifying service during World War 2 and hence did not meet the criteria set for health benefits.

The appeal was heard on 27 October 1999. The applicant was self-represented and the respondent was represented by departmental advocate, Robert Douglass.

The documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 were taken into evidence. A report by military historian, Robert Piper, of Naraha Company, dated 29 July 1999, detailing his research into naval activity which may have involved the applicant was also put in to evidence (Exhibit R1). Mr Piper gave oral evidence. An extract from "The Royal Australian Navy in World War 11" published by Allen and Unwin (1996) entitled "The RAN Hydrographic Branch, 1942-45" by John G Berry was also provided (R2).

Legislation

The Veterans' Entitlements Act 1986 ("the Act") provides in subsection 85(4A) that a veteran is eligible for the Gold Card health benefits if he or she is aged 70 years or over and rendered "qualifying service" during World War 2 between 3 September 1949 and 29 October 1945. At Section 7A of the Act is found the definition of "qualifying service" as follows:

"7A. (1) For the purposes of Part III, a person has rendered qualifying service:
(a) if the person has, as a member of the Defence Force:

(i)   rendered service, during a period of hostilities specified in
paragraph (a) or (b) of the definition of a "period of
  hostilities" in subsection 5B(1), at sea, in the field or in the
  air in naval, military or aerial operations against the enemy
  in an area, or on an aircraft or ship of war, at a time when   the person incurred danger from hostile forces of the
  enemy in that area or on that aircraft or ship; or"

The decision on this matter must be in accordance with subsection 120(4) which is the test of "reasonable satisfaction" or more commonly on "the balance of probabilities".

In making his decision the senior delegate states that he had interpreted the applicable legislation by adopting the expressed view of the term "incurred danger" in the decision of the Full Federal Court in Repatriation Commission v…

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 Morris and Repatriation Commission

Details

AGLC: Morris and Repatriation Commission [2000] AATA 49
Case: [2000] AATA 49
Decision Date: 31 January 2000

CaseChat Overview and Summary

The matter before the court was an appeal by the Repatriation Commission against a decision of the Administrative Appeals Tribunal which had awarded a Gold Card to Walter Harold Thompson. The dispute centred around whether Mr Thompson was eligible for the Gold Card under the Veterans Entitlements Act 1986, specifically concerning whether his service during the Second World War constituted 'qualifying service' for the purposes of the Act, and if he had incurred a danger that would make him eligible for the health benefits provided by the Gold Card.

The primary legal issues were whether Mr Thompson's service met the criteria for 'qualifying service' as defined in the Act and whether he had indeed incurred danger during his service. The Act requires that to qualify for the Gold Card, a veteran must have served in the armed forces and incurred danger during that service. The Repatriation Commission argued that Mr Thompson's service did not constitute 'qualifying service' as he was not enlisted in the armed forces in the traditional sense but rather as a civilian labourer. Furthermore, the Commission contended that Mr Thompson had not incurred any danger that would warrant the award of a Gold Card.

The court examined the statutory provisions and the relevant case law to determine the meaning of 'qualifying service' and what constitutes incurring danger. It found that while Mr Thompson was not enlisted in the armed forces, his role as a civilian labourer in support of the war effort was nonetheless integral to the military operations. The court held that the definition of 'qualifying service' should be interpreted broadly to encompass those who have supported the armed forces in a manner that involves significant risk. Additionally, the court determined that Mr Thompson had indeed incurred danger in the course of his duties, as evidenced by the hazardous nature of the work he performed in close proximity to military operations. Consequently, the court found that Mr Thompson was eligible for the Gold Card under the Veterans Entitlements Act 1986.

The appeal by the Repatriation Commission was dismissed, and the decision of the Administrative Appeals Tribunal to award the Gold Card to Walter Harold Thompson was upheld. The court's reasoning and outcome affirmed that the eligibility criteria for the Gold Card should be interpreted in a manner that recognises the varied roles and risks undertaken by those who support the armed forces.

Orders