Mullen and Repatriation Commission - [2005] AATA 781

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 781

ADMINISTRATIVE APPEALS TRIBUNAL )
) N0 N2004/432
VETERANS' APPEALS DIVISION )

ReDENNIS WILLIAM MULLEN

Applicant

AndREPATRIATION COMMISSION

Respondent

DECISION

TribunalMs Robin Hunt, Senior Member
Date16 August 2005
PlaceSydney
DecisionThe Tribunal sets aside the decision under review and in substitution thereof decides that Mr Mullen has rendered qualifying service, pursuant to the provisions of section 7A of the Veterans’ Entitlements Act 1986, and that he is entitled to be paid service pension with effect from the date of his application, on 3 December 2003.
.............................................
  Ms R Hunt
  Senior Member

CATCHWORDS

VETERANS' AFFAIRS – Service pension application – RAAF service during period of hostilities – Service on Mulgrave Island in the Torres Strait – Qualifying service –Operations against the enemy – Meaning of “incurred danger” – Applicant incurred danger- Decision set aside.

LEGISLATION

Veterans' Entitlements Act 1986 – ss 7A, 120(4)

CASES

Repatriation Commission v Thompson (1988) 44 FCR 20
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Burton (1993) 31 ALD 475
Re Crawford and Repatriation Commission (1987) 14 ALD 341
Re Bancroft and Repatriation Commission (AAT 11333, 25 October 1996)
Re Dwyer and Repatriation Commission (1987) 13 ALD 424
Tiplady and Repatriation Commission (AAT 3694, 7 August 1987)
Re Mitchell and Repatriation Commission [2001] AATA 1055

REASONS FOR DECISION

16 August 2005 Robin Hunt, Senior Member

SUMMARY

Mr Dennis William Mullen, the applicant, is a war veteran who applied for a service pension on 3 December 2003. A delegate of the Repatriation Commission, the respondent in this matter, rejected Mr Mullen’s claim and another delegate affirmed this decision on 12 March 2004. Mr Mullen was denied a service pension on the basis that he did not render qualifying service. The Tribunal has reviewed the decision and has decided that Mr Mullen has rendered qualifying service and is entitled to be paid a service pension, with effect from the date of his application on 3 December 2003.

BACKGROUND

The parties agree that Mr Mullen served with the RAAF from 2 March 1943 to 20 February 1946. During that time, the respondent acknowledges that Mr Mullen rendered valuable service as a radar station operator on Mulgrave Island, which is now known as Badu Island. Mr Mullen served on the island from 8 January 1944 to 5 April 1944. Mr Mullen believes that his service on the island should be treated as qualifying service and that this satisfies a prerequisite for a service pension.

This is the second application by Mr Mullen which turned on the question of whether his period of service on Badu was qualifying service. Mr Mullen previously sought to establish that he had done qualifying service for a Gold Card. On that occasion, the Tribunal took evidence about the same period of service involved in the present case. The Tribunal reviewed the previous decision to reject Mr Mullen’s qualifying service claim and found, on 3 October 2000, that…

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 Mullen and Repatriation Commission

Details

AGLC: Mullen and Repatriation Commission [2005] AATA 781
Case: [2005] AATA 781
Decision Date: 16 August 2005

CaseChat Overview and Summary

In the matter of Mullen versus the Repatriation Commission, the court was tasked with determining whether the applicant, Mullen, was entitled to a service pension based on his service in the Royal Australian Air Force during a period of hostilities. Mullen's service took place on Mulgrave Island in the Torres Strait, and the central issue was whether this constituted qualifying service under the applicable legislation. Additionally, the court had to interpret the phrase "incurred danger" in the context of Mullen's service to determine if he had indeed faced such danger.

The primary legal questions before the court involved the interpretation of the statutory provisions governing eligibility for a service pension and the definition of "incurred danger." The court was required to assess whether Mullen's service on Mulgrave Island qualified as service during a period of hostilities and whether he had actually incurred danger in the sense required by the legislation. This required a careful examination of the nature of Mullen's duties and the actual risks he faced during his service.

The court concluded that Mullen's service on Mulgrave Island did indeed qualify as service during a period of hostilities, as the location was strategically significant during the relevant period. Furthermore, the court found that Mullen had incurred danger, as defined by the applicable legislation, during his service. The court held that the applicant's service involved a genuine risk of attack from the enemy, which satisfied the criteria for "incurred danger." Consequently, the court set aside the previous decision of the Repatriation Commission and found in favour of Mullen, granting him the service pension to which he was entitled.

Orders