Repatriation Commission v Ahrenfeld, D.N - [1991] FCA 312

Re: REPATRIATION COMMISSION
And: DAVID NORMAN AHRENFELD
No. G547 of 1990
FED No. 312
Administrative Law
13 AAR 302/101 ALR 86
29 FCR 556

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox(1), Gummow(1) and Hill(1) JJ.

CATCHWORDS

Administrative Law - Veterans' affairs - disability pension - whether veteran had "operational service" within Veterans' Entitlements Act, s. 6 (1) (n) - whether involved in "service in actual combat against the enemy" - meaning of "actual combat" - Commission's opinion under s. 6 (1) (n) - distinction between service in Australia and service outside Australia discussed - radio operator in Australia engaged in defensive operations to counter enemy air-raids.

Repatriation Act 1920, ss. 100, 101

Administrative Appeals Tribunal Act 1975, s. 44 (1)

Veterans' Entitlements Act 1986, s. 5 (1), s. 6 (1) (a),(f),(n), s. 9 (1) (a), s. 13, s. 120

Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986, s. 19

Repatriation Commission v Smith (1987) 15 FCR 327

Repatriation Commission v Kohn (1989) 87 ALR 511

Hunter Douglas Australia Pty Limited v Perma Blinds (1970) 122 CLR 49

Deputy Commissioner of Taxation v Truhold Benefit Pty Limited (1985) 158 CLR 678

Repatriation Commission v Bushel (Full Court of the Federal Court, 3 May 1991, unrep)

HEARING

SYDNEY

#DATE 7:6:1991

Counsel and solicitors Mr J.S. Hilton and Ms Clark instructed
for the appellant: by the Australian Government Solicitor.

Counsel and solicitors Mr M.B. Smith instructed by Mr Richardson
for the respondent: of the Legal Aid Commission of N.S.W.

ORDER

That Orders 2 and 3 made by Einfeld J. on 29 August 1990 be set aside.

Otherwise the appeal be dismissed.

That the respondent's claim be remitted to the Administrative Appeals Tribunal, to be heard and decided again.

That the appellant pay the respondent's costs of the appeal.

NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Federal Court rules.

JUDGE1

This is an appeal by the Repatriation Commission ("the Commission") from the decision of a Judge of this Court (Einfeld J.) given in the exercise of jurisdiction pursuant to s. 44 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"). Sub-section 44 (1) of the AAT Act enables a party to a proceeding before the Administrative Appeals Tribunal ("the AAT") to appeal to this Court on a question of law.

The primary Judge set aside a determination of the AAT given on 10 August 1989. The AAT, constituted by a Single Member, had affirmed a decision of the Commission (affirmed by a Veterans' Review Board), not to grant a disability pension to Mr Ahrenfeld, the present respondent. Einfeld J. ordered that Mr Ahrenfeld's claim be remitted to the AAT to be reconsidered according to his Reasons for Judgment and that, if a full re-hearing was necessary, it be conducted by a different member of the AAT.
The respondent was born on 13 August 1924 and left school in 1938 to enter an apprenticeship as a…

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: [1991] FCA 312
Decision Date: 07 JUNE 1991

CaseChat Overview and Summary

In the case of Repatriation Commission v Ahrenfeld, D.N, the dispute involved the eligibility of a veteran for a disability pension under the Veterans' Entitlements Act. The central issue was whether the veteran's service constituted "operational service" as defined by the Act, specifically in relation to "service in actual combat against the enemy." The matter was heard and determined by the Federal Court of Australia.

The legal issues before the court included the interpretation of the term "actual combat" within the context of the Act, and the distinction between service in Australia and service outside Australia. The court had to consider the opinion of the Commission under section 6(1)(n) of the Act, which required a determination of whether the veteran's activities during his service as a radio operator in Australia, engaged in defensive operations to counter enemy air-raids, qualified as "actual combat."

The court found that the Administrative Appeals Tribunal had erred in its interpretation of the Act, leading to the setting aside of Orders 2 and 3 made by Einfeld J. on 29 August 1990. The appeal was otherwise dismissed, and the respondent's claim was remitted to the Administrative Appeals Tribunal for reconsideration. Additionally, the appellant was ordered to pay the respondent's costs of the appeal. The settlement and entry of orders were governed by Order 36 of the Federal Court rules.

Orders

Orders of the court

That Orders 2 and 3 made by Einfeld J. on 29 August 1990 be set aside.

Otherwise the appeal be dismissed.

That the respondent's claim be remitted to the Administrative Appeals Tribunal, to be heard and decided again.

That the appellant pay the respondent's costs of the appeal.

NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Federal Court rules.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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