Re Corrick and Repatriation Commission - [2000] AATA 143

DECISION AND REASONS FOR DECISION [2000] AATA 143

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/868

VETERANS' APPEALS DIVISION )

Re RALPH CORRICK
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mr B.J. McMahon (Deputy President)

Date28 February 2000
PlaceSydney

Decision The decision under review is affirmed.

(Sgd) BJ McMahon
..............................................
Deputy President
CATCHWORDS
VETERANS' ENTITLEMENTS – Gold Card – whether the applicant rendered qualifying service – the applicant incurred danger from hostile forces – applicant rendered service during a period of hostilities – whether service was in military operations against the enemy – applicant incurred danger by location – passive – not qualifying service
WORDS AND PHRASES – incur danger – military operations against the enemy
Veterans' Entitlements Amendment (Gold Card) Act 1998 s 85 (4A)
Veterans' Entitlements Act 1986 s 5B(1); 7; 7A; 7A(1)(a); 85(4)

Repatriation Commission v Thompson (1988) 82 ALR 352
Willcocks v Repatriation Commission (1992) 111 ALR 639 adopted
Repatriation Commission v Burton (1993) 31 ALD 475

REASONS FOR DECISION

Mr B.J. McMahon (Deputy President)

This is an application to review a decision of a delegate of the respondent refusing an application for a "Gold Card". The Veterans' Entitlements Amendment (Gold Card) Act 1998 inserted after subsection 85(4) a further subsection which prescribed the qualifications needed by a veteran to establish eligibility to be provided with treatment for any injury suffered, or disease contracted, by the veteran whether before or after the commencement of the Veterans' Entitlements Act 1986. The subsection requires that the veteran be aged 70 or more and (relevantly) that he or she has rendered qualifying service during the period covered by paragraph (b) of the definition of period of hostilities in subsection 5B(1).
Section 7 defines eligible war service. A higher degree of involvement appears in the definition of qualifying service in section 7A.
The relevant parts of that definition are 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 "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; …"

The reference to the period of hostilities is a reference to the relevant provisions of section 5B as follows:
"5B. (1) In this Act, unless the contrary intention appears:
…
"period of hostilities" means:
(a)…
(b)World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included)"

Mr Corrick rendered continuous full-time service in the Army from 19 March 1942 until he was discharged medically unfit on 31 March 1944. He served entirely within Australia. He therefore has eligible war service during…

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 Re Corrick and Repatriation Commission

Details

AGLC: Re Corrick and Repatriation Commission [2000] AATA 143
Case: [2000] AATA 143
Decision Date: 28 February 2000

CaseChat Overview and Summary

In the case of Re Corrick and Repatriation Commission, the applicant, Mr Corrick, sought to be recognised as having rendered qualifying service for the purposes of obtaining a Gold Card. The Repatriation Commission was tasked with determining whether Mr Corrick's service during a period of hostilities qualified as military operations against the enemy, as required under the relevant legislation. The case was heard by the Federal Court of Australia.

The primary legal issue before the court was whether Mr Corrick's service constituted qualifying service for a Gold Card under the Veterans' Entitlements Act 1986. This required the court to interpret the phrase "incur danger" and determine whether Mr Corrick's service involved military operations against the enemy. The court considered the definition of "incur danger" and the distinction between passive and active danger, as well as the applicability of past case law, including Repatriation Commission v Thompson and Willcocks v Repatriation Commission.

The court held that Mr Corrick's service did not amount to qualifying service for a Gold Card. The court found that Mr Corrick's exposure to danger was passive rather than active, and did not involve military operations against the enemy. The court relied on the definition of "incur danger" as used in previous cases and concluded that Mr Corrick's service did not meet the statutory requirements. The court's decision was in line with the interpretation of the relevant legislation and the applicable case law.

The Federal Court of Australia dismissed Mr Corrick's application for a Gold Card, finding that his service did not qualify as military operations against the enemy. The court's decision was based on the interpretation of the relevant statutory provisions and the applicable case law.

Orders