Re Graham (No2) and Repatriation Commission - [2000] AATA 337

DECISION AND REASONS FOR DECISION [2000] AATA 337

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/381

VETERANS' APPEALS DIVISION )

Re Ernest William GRAHAM
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date1 May 2000
PlaceSydney

Decision      The Tribunal affirms the decision under review.
  _______________________
  M T Lewis
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – service pension - whether applicant rendered qualifying service - whether applicant was allotted for duty in an operational area – application of transitional provisions – definition of "allotted for duty" - whether applicant's loan under Defence Service Homes Act was granted on basis that he was allotted for duty in an operational area - whether written instrument issued pursuant to s6D Veterans' Entitlements Act 1986 for determining eligibility satisfies definition of "allotted for duty" in s5B.
Veterans' Entitlements Act 1986 (Cth) – ss 5B(2), 7A(1)(a)(iii), 36(b), 6D
Veterans' Affairs Legislation Amendment Act 1990 (Cth)- s 93(1), Schedule 2
Veterans' Entitlements Amendment Act 1991 (Cth)- s3
Veterans' Entitlements (Rewrite) Transition Act 1991 (Cth)- s19, Schedule 4
Defence Service Homes Act 1918 (Cth)- s 4

Graham v Repatriation Commission [1999] FCA 66
Repatriation Commission v Doessel (1990) 95 ALR 704
Repatriation Commission v Davis (1990) 94 ALR 621
Repatriation Commission v Hawkins (1993) 45 FCR 205
Secretary, Department of Social Security v Clear (1991) 28 FCR 405
Re King and Repatriation Commission (1995) 39 ALD 156
Re Paterson and Repatriation Commission (1998) 54 ALD 75
Blair v Curran (1939) 62 CLR 464

REASONS FOR DECISION

1 May 2000 Mrs M T Lewis, Senior Member

This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 9 December 1996, which determined that Ernest William Graham ("the Applicant") had not rendered qualifying service as defined in s 7A(1) of the Veterans' Entitlements Act 1986 ("the VEA Act"). That decision affirmed an earlier decision of the Respondent dated 10 October 1996. The Applicant lodged an application for review by the Administrative Appeals Tribunal on 18 December 1996. The Tribunal decided on 2 July 1998 to affirm the decision under review.
The Applicant subsequently lodged an out of time appeal against that decision to the Federal Court under s 44 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"). On 5 February 1999 His Honour Sackville J granted an extension of time and also considered the substantive issues: Graham v Repatriation Commission [1999] FCA 66. The decision of the Tribunal was set aside and remitted to the Tribunal to be heard and determined according to law, on the basis that the Tribunal had erred by failing to consider whether the Applicant was relieved from satisfying the restrictive definition of "allotted for duty" which was introduced by the Veterans' Affairs Legislation Amendment Act 1990 (Cth) (No 2 of 1991) ("the VALA Act"). His Honour accepted the Tribunal had not considered the applicability of s 93(1) of the VALA Act and considered there was material that might…

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.

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Details

Case: [2000] AATA 337
Decision Date: 1 May 2000

CaseChat Overview and Summary

In the case of Re Graham (No 2) and Repatriation Commission, the applicant, a former member of the Royal Australian Navy, sought a service pension under the Veterans' Entitlements Act 1986 (Cth). The primary issue before the tribunal was whether the applicant had rendered qualifying service, specifically if he had been allotted for duty in an operational area during his service. The case hinged on the interpretation of the transitional provisions in the Veterans' Affairs Legislation Amendment Act 1990 (Cth) and whether they protected the applicant's right to a service pension. The tribunal had to determine if the applicant's prior entitlement to a war service home loan under the Defence Service Homes Act 1918 (Cth) meant he was allotted for duty in an operational area for the purposes of the Veterans' Entitlements Act.

The tribunal considered the definition of "allotted for duty" and whether the applicant's loan, granted on the basis he was allotted for duty, satisfied this definition. The tribunal noted that the applicant had been granted a war service homes loan in 1963 on the basis he was allotted for duty in an operational area, which was confirmed by a letter from Defence Service Homes. The tribunal found that while there was no precise evidence to support that the applicant was allotted for duty in an operational area, the function of section 93 of the Veterans' Affairs Legislation Amendment Act clearly protected his right to the loan. The key issue was whether this section provided broader protection beyond preserving the loan entitlement.

The tribunal concluded that the transitional provisions in section 93(1) of the Veterans' Affairs Legislation Amendment Act were not intended to exempt the applicant from satisfying the restrictive definition of "allotted for duty" in the Veterans' Entitlements Act. The tribunal found that the applicant's entitlement to the loan did not necessarily mean he was allotted for duty in an operational area under the statutory definition. As a result, the applicant did not meet the requirements for qualifying service under the Veterans' Entitlements Act, and his application for a service pension was dismissed.

In summary, the tribunal held that the transitional provisions in section 93(1) of the Veterans' Affairs Legislation Amendment Act were limited to preserving the applicant's entitlement to a war service home loan. The tribunal found that the applicant had not rendered qualifying service as defined in the Veterans' Entitlements Act, and his application for a service pension was unsuccessful.

Orders

Orders of the court

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Background

Background to the litigation

The Applicant served in the Royal Australian Navy from 8 January 1948 until 7 January 1960. On 20 September 1996 he lodged a claim for service pension (T1, T4). He noted in his claim that he served overseas in HMAS Tobruk in the "Malayan emergency" from 1 June 1955 to 3 July 1955. He also noted he had qualified as an "Australian Soldier" for benefits under the Repatriation Act 1920 and the War Service Homes Act 1918 ("the WSH Act") as it then was. He noted that he was granted a War Service Homes loan in 1963 on the basis that he had been "Allotted for Duty in an Operational Area namely Malayan waters with the Strategic Reserve" (T1, T3 and T2, p42). legislative background Section 36 of the VEA Act provides that a person is eligible for service pension if the person:is a veteran; andhas rendered qualifying service; andhas reached pension age. The only issue before the Tribunal is whether he has rendered qualifying service. It is common ground this matter falls for consideration only in respect of s 7A(1)(a)(iii) of the VEA Act which makes provision for "qualifying service". The Tribunal notes the Applicant also served in HMAS Shoalhaven from 19 July 1948 to 30 September 1949, and arising from that service he was determined by the Respondent to have had operational service as defined in ss 5C(1) and 6A of the VEA Act. He also qualified for a further period of operational service in Korea in HMAS Tobruk from 2 to 8 July 1955 (exhibit R1 before the previous Tribunal and exhibit 2). It is agreed between the parties that this does not constitute qualifying service pursuant to subparagraph (iii) of s 7A(1)(a). Section 7A(1)(a)(iii) of the VEA Act provides, insofar as is relevant – (1)For the purposes of Part III, a person has rendered qualifying service:If the person has, as a member of the Defence Force:……..……subject to subsection (1A), rendered service outside Australia in an area described in column 1 of Schedule 2 during the period specified in column 2 of that Schedule opposite to that description, as a member of a unit of the Defence Force that was allotted for duty in that area;……….. The term "allotted for duty" as it is used in s 7A(1)(a)(iii) is defined in s 5B(2)(a) of the VEA Act, viz –(2)A reference in this Act to a person, or a unit of the Defence Force, that was allotted for duty in an operational area is a reference:(a) in the case of duty that was carried out in an operational area described in item 1, 2, 3, 4, 5, 6, 7 or 8 of Schedule 2 (in column1) – to a person, or unit of the Defence Force, that is allotted for duty in the area (whether retrospectively or otherwise) by written instrument issued by the Defence Force for use by the Commission in determining a person's eligibility for entitlements under this Act; or …. A letter to the Applicant from Defence Service Homes dated 5 June 1992 (T2, p42) stated –This letter is to confirm that Ernest William Graham is an eligible person under the Defence Service Homes Act (formerly the War Service Homes Act) and he received a War Service Homes loan in 1963 to purchase a home at Revesby.Mr Graham served on the HMAS "Tobruk" from 23 September 1954 to 26 September 1955. During this period "Tobruk" served in Malayan waters which was an operational area in connection with the warlike operations in Malaya. I enclose a copy of the information received from the Navy Office in 1959 regarding Mr Graham's service.

Evidence

Evidence Before The Court

It was submitted for the Respondent that the abovementioned material falls well short of answering the description that the Applicant's home loan was granted on the basis of his being allotted for duty. It was submitted this material represents the high water mark on which the Applicant would rely to make good the contention that in respect of s 93 of the VALA Act he brings himself within the provision. It was submitted for the Respondent that the Applicant cannot bring himself within the provisions of s 93. In reply, it was submitted for the Applicant that the abovementioned documents are irrelevant as they relate to manuals referring to current eligibility for Defence Service Home loans.consideration of evidence and findings of fact The Applicant made an application for a war service home loan under the DSH Act in 1963 and it was granted before 8 November 1990. The Respondent submitted there was no evidence that the loan was granted on the basis of the Applicant having been allotted for duty in an operational area, or being a member of a unit of the Defence Force that was allotted for duty in an operational area. The Tribunal would agree the documentary evidence from the Defence Service Homes on this issue is less than precise. Undoubtedly, when Sackville J. commented in the Federal Court proceedings (transcript p.17) –…. There may be material which would justify the Tribunal in deciding that the applicant did indeed have an application that was granted on the basis that he was allotted for duty in an operational area – Notwithstanding that there is no evidence before the Tribunal to support a finding that the Applicant was "allotted for duty in an operational area", the Tribunal finds, and there appears to be no dispute, that the Applicant was granted a war service homes loan on the basis that he was "allotted for duty in an operational area". The function of s 93 of the VALA Act clearly protects the Applicant's right to that loan. The issue is whether s 93(1) has any function beyond that of a savings provision. The Tribunal notes paragraph 14 of His Honour's judgment where, after recording the submissions made by both parties on the construction of s 93(1), he stated –Neither party invited me to decide this question of construction, in the absence of findings of fact relating to the circumstances in which the application served in or near Malaya in 1955 and to the basis on which his application under the DSH Act succeeded. The Tribunal does not accept the submissions on behalf of the Applicant in respect of issue estoppel, and would distinguish this matter from the decision of the High Court in Blair & Ors and Curran & Ors (1939) 62 CLR 464. The Federal Court in Davis (supra) held the concept of "allotted for duty" had no special meaning, but raised in each case a question of fact. It was also held that in the absence of evidence of any special allotment process in the area in question, the Tribunal's finding, that having regard to Mr Davis's operational service he had been allotted for duty, was justified. Mr Davis served on HMAS Queenborough during the Malayan Emergency. In that matter the Repatriation Commission submitted that although Mr Davis had rendered service in an operational area he was not "allotted for duty" in that area within a special meaning to be attributed to that phrase under the VEA Act. French J. noted that –Given that Davis had no choice but to participate in the operation under review, he had been in the opinion of the Tribunal, "allotted for duty". The factual material relied upon by the Commission to the contrary was virtually non-existent comprising no more than a paragraph from the letter of 23 January 1988 in which the Department of Defence advised the Commission in relation to the activities of HMAS Queenborough and HMAS Quickmatch as part of the British Commonwealth Far East Strategic Reserve:"The above deployments of HMAS Queenborough and Quickmatch are not recognised as allotted for operational service although it is recognised by the Defence Service Homes Corporation for the purposes of Defence Service Home Loans."

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The primary question for the Tribunal to consider is whether the Applicant is relieved from satisfying the restrictive definition of "allotted for duty" in s 5B(2) of the VEA Act. The Tribunal must first consider the application of s 93(1) and in doing so, the Tribunal's task is to determine whether the Applicant's application for a loan under the DSH Act was granted before 8 November 1990 on the basis that the Applicant was allotted for duty in an operational area, for the purposes of s 93(1)(b) of the VALA Act.It does not appear to be in contention that an application was made and loan was granted under the DSH Act before 8 November 1990. If the section is applicable, the Tribunal must then examine the scope of protection afforded by s93(1) as a matter of statutory construction. The Applicant's case is that he is exempt from satisfying the requirements in s 5B(2) of the VEA Act by reason of the transitional provisions provided in s 93(1) of the VALA Act. As an issue of statutory construction, the phrase "allotted for duty" in s 93(1)(b) of the VALA Act is to be construed in accordance with the ordinary meaning associated with those words as opposed to any technical meaning as denoted by the Respondent. Following from that then, by virtue of those transitional provisions, the Applicant's case is that he has proved "qualifying service" because he already has a DSH loan that was granted on the basis he was allotted for duty in an operational area. The Respondent 's primary argument is that the Applicant has never rendered qualifying service; at no time has he been eligible for the service pension that he is currently seeking. With respect to s 93(1)(b) of the VALA Act, it is the Respondent's argument that there is no conceivable basis upon which the Applicant can satisfy the requirements posed in that provision. That section is only concerned to preserve the Applicant's entitlement under the DSH Act, which is the loan. Essentially, benefits gained under the DSH Act do not translate automatically into benefits for the Applicant under the VEA Act. Further, the fact that it was determined previously that the Applicant was entitled to a war service loan, on its own, does not necessarily indicate an application was granted on the basis he was allotted for duty in an operational area. The meaning to be given to the phrase "allotted for duty" in s 93(1)(b) is, whether in truth he was allotted for duty in an operational area, and so if the loan previously granted was made in error or based upon a false premise, then the Applicant would not satisfy s 93 (1)(b) of the VALA Act. These respective arguments were explicated in detail by way of submissions made on behalf of both the Applicant and the Respondent.submissions It was the Applicant's case he met the requirements for qualifying service in s 7A(1)(a)(iii) of the VEA Act, namely that he was allotted for duty in an operational area while on service on HMAS Tobruk in Malayan waters in 1955 since that fact had already been recognised by his entitlement under the WSH Act for a home loan that was granted in 1963.