Repatriation Commission v Doessel

[1990] FCA 508

Re: THE REPATRIATION COMMISSION
And: IAN FRANCIS DOESSEL
No. Qld G62 of 1990
FED No. 508
Veterans' Affairs
12 AAR 291/21 ALD 107

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Lockhart(1), Pincus(1) and Ryan(1) JJ.

CATCHWORDS

Veterans' Affairs - whether respondent eligible to receive benefits - meaning of "allotted for duty" - whether special meaning can be ascribed to "allotted for duty" where Act ambiguous.

Veterans' Entitlements Act 1986 ss.5(12), 6(1) and (6), 7, 13(1) and 85(5)

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

HEARING

BRISBANE

#DATE 14:9:1990

Counsel for the applicant: Mr. H.G. Fryberg QC and

Mr. J.A. Logan

Solicitors for the applicant: Australian Government Solicitor

Counsel for the respondent: Mr. T.D.O.J. North

Solicitors for the respondent: Cannan and Peterson

ORDER

The appeal be dismissed.

The applicant pay the respondent's costs of and incidental to the appeal, to be taxed.

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

JUDGE1

This is an appeal from a judgment of Spender J. dismissing an appeal from a decision of the Administrative Appeals Tribunal. The latter decision affirmed decisions of the Veterans' Review Board established under the Veterans' Entitlements Act 1986 (called in those reasons "the V.E. Act" or "the Act").

1. That Board had, in effect, set aside decisions of a delegate of the Repatriation Commission determining that the respondent is not eligible to receive benefits under the Act. It will be noted that the appeal to this Court is the fifth level of consideration of the respondent's claims for benefit under the Act.

2. The Point at issue is a question of construction, namely the meaning of the words "allotted for duty" in s.6(1)(e)(i) and (ii) of the Act. The appellant says that those words mean "allotted for duty for the purposes of this Act" whereas the respondent denies that the words "for the purposes of this Act" should be read in. The legislative setting in which the question of construction arises is explained below.

3. The respondent joined the Royal Australian Navy in 1959 and was discharged in 1971. In February 1985, he made a claim for medical treatment and pension for certain conditions, said to be connected with his naval service, and in September 1985 made a further such claim in relation to other conditions. Both these claims were rejected by a delegate of the Repatriation Commission, the former rejection being based upon now repealed legislation and the latter on the current Act. The decision of the Veterans' Review Board setting those delegation decisions aside was given on 17 February 1988, the hearing and the determination by the Board having been governed by the VE Act: see s.19 of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 (the "Transitional Act"). Under s.175 of the VE Act, the Administrative Appeals Tribunal had power to review the Board's decision. The appeal from the Tribunal to this Court was based on s.44 of the