Repatriation Commission v Davis

Case [1990] FCA 70


Re: REPATRIATION COMMISSION
And: ALBERT THOMAS DAVIS
No. WA G130 of 1989
FED No. 70
Veterans' Affairs

COURT

IN THE FEDERAL COURT OF AUSTRALIA


WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)
CATCHWORDS

Veterans' Affairs - service pension - qualifying service - Malayan Emergency - allotted for duty in an operational area - whether ordinary English meaning or special meaning - legislative history - extrinsic materials - explanatory memorandum - Second Reading Speeches - ordinary meaning - question of fact - incorrect construction by Tribunal - correct factual result.

Words and Phrases - "allotted for duty" - "in accordance with administrative arrangements applicable".

Veterans' Entitlements Act 1986 sub-s.43(6), s.35, s.36

Administrative Appeals Tribunal Act 1975 sub-s.44(1)

The Australian Soldiers Repatriation Act 1950

Australian Soldiers Repatriation Act 1920-1950

Repatriation (Far East Strategic Reserve) Act 1956

Repatriation Act 1920

Repatriation (Special Overseas Service) Act 1962

Acts Interpretation Act 1901 s.15AB

Maunsell v Olins (1975) AC 373

HEARING

PERTH

#DATE 9:3:1990

Counsel for the Appellant: Mr M.D. O'Sullivan

Solicitors for the Appellant: Australian Government Solicitor

Counsel for the Respondent: Mr G. O'Hara

Solicitors for the Respondent: Kott Gunning

ORDER

The appeal is dismissed.

The appellant is to pay the respondent's costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

Introduction

In 1956 and 1957 Albert Thomas Davis was a signalman serving on the Royal Australian Navy Frigate HMAS Queenborough assigned to a joint British Commonwealth force combatting terrorist activities during the Malayan Emergency. On 22 January 1957 his ship shelled a terrorist camp in South East Johore. According to the Repatriation Commission, Mr Davis does not qualify for a service pension because, although he 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 Veterans' Entitlements Act 1986. The Administrative Appeals Tribunal has held that Mr Davis is so entitled and the Commission now appeals from that decision on the question whether the Tribunal has rightly construed the Act.

Factual History

  1. Albert Thomas Davis enlisted in the Royal Australian Navy on 18 March 1954 at the age of 16 for a period of six years. He was discharged on 5 May 1961 after the expiry of his engagement having reached the rank of Leading Tactical Operator. During his service he was posted to depots within Australia and to service on the frigates HMAS Queenborough and HMAS Quickmatch. He was posted to Queenborough from 21 April 1956 until 1 September 1957. During that time, from 21 June 1957 to 26 July 1957, he was transferred to Quickmatch. Both Queenborough and Quickmatch were assigned for service with the Far East Strategic Reserve, a British Commonwealth Force formed to assist in combatting communist insurgency during the Malayan Emergency.

  2. A report of the activities of HMAS Queenborough in the month of January 1957 was prepared by its Commanding Officer and submitted to the Flag Officer, Second in…

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AGLC
Repatriation Commission v Davis [1990] FCA 70
Case
[1990] FCA 70
Decision Date

CaseChat Overview and Summary

In the case of Repatriation Commission v Davis, the primary issue was whether the respondent was entitled to a service pension under the Repatriation Act 1949. The dispute centred on whether the respondent's service during the Malayan Emergency qualified as service in an operational area. This case came before the Federal Court of Australia, which was tasked with reviewing the decision of the Social Security Appeals Tribunal that had dismissed the respondent's claim.

The legal issues before the court involved the interpretation of the term "operational area" as it appeared in the legislation. The court had to determine whether this term should be construed according to its ordinary English meaning or if it required a special meaning in the context of the statute. Additionally, the court examined whether the Tribunal had correctly applied the relevant legislative provisions and whether the Tribunal had made an error in its factual findings. The court also considered the use of extrinsic materials, such as the explanatory memorandum and Second Reading Speeches, to assist in the interpretation of the statute.

The court found that the term "operational area" should be given its ordinary English meaning, rather than a special meaning. It held that the Tribunal had erred in its interpretation of the legislation and had incorrectly determined the facts of the case. The court concluded that the respondent's service did qualify as service in an operational area, and thus, he was entitled to the service pension. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

The appeal is dismissed.

The appellant is to pay the respondent's costs of the appeal.

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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