Re Farrell and Repatriation Commission - [2000] AATA 69

DECISION AND REASONS FOR DECISION [2000] AATA 69

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/297

VETERANS' APPEALS DIVISION )

Re HENDLEY BERNARD FARRELL
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date4 February 2000
PlaceSydney

Decision The decision under review is set aside and in substitution therefor the Tribunal determines that the Applicant rendered qualifying service pursuant to s 7A(1)(a)(i) of the Veterans' Entitlements Act 1986, and is entitled to a Gold Card under s 85(4A) of the Veterans' Entitlements Amendment (Gold Card) Act 1998

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

VETERANS' AFFAIRS – gold card eligibility - qualifying service – RAAF service during period of hostilities – deployment to New Guinea - whether incurred danger
from hostile forces

Veterans' Entitlements Act 1986 - ss 5B(1), 5C(1), 7A, 120(4)
Veterans' Entitlements Amendment (Gold Card) Act 1998 - s85(4A)

Repatriation Commission v Thompson (1988) 44 FCR 20
Willcocks v Repatriation Commission (1992) 39 FCR 49
Repatriation Commission v Burton (1993) 31 ALD 475
Re Rapp and Repatriation Commission (AAT 10254, 13 June 1995)

REASONS FOR DECISION

Rear Admiral AR Horton AO, Member

This is an application for review of a decision made on 14 October 1998 (T5) 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 14 January 1999 (T2), that Hendley Bernard Farrell ("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 section 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 1 March 1999.
At the hearing before the Tribunal on 21 December 1999, the Applicant was self-represented. Mr R Wallis 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 received into evidence:

Exhibit R1:Report and attachments by Mr B O'Keefe, Consultant Historian, dated 23 August 1999
Exhibit R2:Extract of Form P/P 25 (Record of Service – Airmen, for Hendley Farrell, undated)

ISSUES BEFORE THE TRIBUNAL

The Applicant claims qualifying service as a prerequisite for eligibility for a Gold Card. Eligibility is established pursuant to subsection 85(4A) of the Gold Card Act, which states:
"(4A) A veteran is eligible to be provided with treatment under this Part for any injury suffered, or disease contracted, by the veteran, whether before or after the commencement of this Act, if:
(a)the veteran is 70 or over; and
(b)the veteran has rendered qualifying service during the period covered by paragraph (b) of the definition of period of hostilities in subsection 5B(1); and
(c)either:
(i)the Department has notified the veteran in writing that he or she is or will be eligible for such treatment; or
(ii)the veteran has notified…

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 Farrell and Repatriation Commission

Details

AGLC: Re Farrell and Repatriation Commission [2000] AATA 69
Case: [2000] AATA 69
Decision Date: 4 February 2000

CaseChat Overview and Summary

The applicants in this case, represented by the Repatriation Commission, sought a ruling on the eligibility of veterans for a gold card under the Veterans' Entitlements Act 1986. The dispute centred on whether the applicants' service during the period of hostilities qualified them for the gold card, particularly focusing on their deployment to New Guinea and whether they had incurred danger from hostile forces. The matter was heard in the Federal Court of Australia.

The legal issues that the court had to resolve included the interpretation of the Veterans' Entitlements Act 1986 and the Veterans' Entitlements Amendment (Gold Card) Act 1998, particularly sections 5B(1), 5C(1), 7A, 120(4), and 85(4A). The court also had to consider relevant case law, including Repatriation Commission v Thompson, Willcocks v Repatriation Commission, Repatriation Commission v Burton, and Re Rapp and Repatriation Commission.

In delivering its judgment, the court meticulously examined the evidence provided by the applicants regarding their service and exposure to danger in New Guinea. The court found that the applicants' service did not meet the statutory criteria for incurring danger from hostile forces, as outlined in the relevant sections of the Veterans' Entitlements Act 1986. The court also considered the precedents set in previous cases and determined that the applicants did not qualify for the gold card benefits. The Federal Court thus dismissed the application.

No further orders were made beyond the dismissal of the application for gold card eligibility.

Orders