Repatriation Commission v Burton

Case [1993] FCA 976

REPATRIATION COMMISSION v. MOSTEN RAY BURTON
No. SG60 of 1993
FED No. 976/93
Number of pages - 11
Veterans Affairs - Administrative Law
(1993) 19 AAR 118

COURT

IN THE FEDERAL COURT OF AUSTRALIA


SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
OLNEY J
CATCHWORDS

Veterans Affairs - service pension - qualifying service - whether veteran was engaged in operations against the enemy - whether veteran incurred danger from hostile forces of the enemy.

Administrative Law - appeal on question of law from AAT - appeal allowed - disposal of review application without remitting to AAT.

Administrative Appeals Tribunal Act 1975, ss 37, 44(1)

Veterans' Entitlement Act 1986, ss 5B, 7A, 7A(1)

Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services, 111 ALR 1

Marsh v Repatriation Commission (1987), 15 FCR 503

Repatriation Commission v Thompson (1988), 82 ALR 352

Willcocks v Repatriation Commission (1992), 39 FCR 49

HEARING

ADELAIDE, 26 November 1993

#DATE 23:12:1993, MELBOURNE

Mr P. Hanks (instructed by Australian Government Solicitor) appeared for the applicant.

Mr S. Walsh QC with Mr S. Micallef (instructed by Ward and Partners) appeared for the respondent.

ORDER

The Court orders that:

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal made on 14 April 1993 be set aside.

3. The decision of the applicant made on 12 March 1992 be affirmed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

On appeal from the Veterans' Appeals Division of the Administrative Appeals Tribunal constituted by Mr J.A. Kiosoglous (Senior Member)

OLNEY J This is an appeal pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) against a decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal (the Tribunal) given on 14 April 1993.

  1. Subsection 44(1) provides that a party to a proceeding before the Tribunal may appeal to the Federal Court from any decision of the Tribunal in that proceeding on a question of law.

  2. In the relevant proceeding the Tribunal found that the respondent had rendered qualifying service within the meaning of s 7A(1) of the Veterans' Entitlement Act 1986 (the VEA) and set aside a decision of the applicant made on 12 March 1992 that the respondent had not rendered qualifying service.

BACKGROUND
4. The respondent enlisted in the Australian Navy on 3 April 1945, and served until his discharge on 2 January 1947. He left Sydney in September 1945 and travelled to Madang in Papua-New Guinea as a passenger aboard HMAS Bungaree (Bungaree). The journey took approximately one week. The respondent arrived in Madang on 5 October 1945. During the course of the trip from Sydney to Madang Bungaree stopped at Jacquinot Bay and Rabaul, both in New Britain. The respondent was attached to a depot outside Australia, HMAS Madang, from 5 October 1945, and was engaged on duties aboard HMA Motor Patrol Potrero (Potrero) from 10 October 1945 to 31 October…

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Details
AGLC
Repatriation Commission v. Burton, M.R. [1993] FCA 976 ((1993) 19 AAR 118)
Case
[1993] FCA 976
Decision Date

CaseChat Overview and Summary

The case before the court involved the Repatriation Commission as the appellant and Burton as the respondent. The central issue was the eligibility of the respondent for a service pension under the Repatriation Act 1948 (Cth). Specifically, the court had to determine whether the respondent had engaged in operations against the enemy and whether he had incurred danger from hostile forces of the enemy during his service. This determination was crucial for establishing his eligibility for a service pension.

The legal questions the court addressed included whether the actions taken by the respondent during his service met the statutory definition of engaging in operations against the enemy, and whether the dangers he faced were from hostile forces of the enemy. The court had to interpret the relevant provisions of the Repatriation Act and apply them to the facts of the case. The respondent argued that his service did not meet the statutory criteria, while the Commission contended that it did.

The court found that the respondent had indeed engaged in operations against the enemy and had incurred danger from hostile forces. The respondent's actions were deemed to be in direct conflict with the enemy, and the dangers he faced were from the enemy's forces. The court concluded that the respondent met the statutory criteria for eligibility for a service pension. Consequently, the appeal was allowed, the decision of the Administrative Appeals Tribunal was set aside, and the original decision of the applicant was affirmed.

The court's orders included allowing the appeal, setting aside the decision of the Administrative Appeals Tribunal made on 14 April 1993, and affirming the decision of the applicant made on 12 March 1992. The settlement and entry of these orders were governed by Order 36 of the Federal Court Rules.

Orders

Orders of the court

The Court orders that:

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal made on 14 April 1993 be set aside.

3. The decision of the applicant made on 12 March 1992 be affirmed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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