Re: THE REPATRIATION COMMISSION And: WALTER HAROLD THOMPSON No. G205 of 1988 Administrative Law (1993) 44 FCR 20
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION Davies(1), Wilcox(1) and Foster(1) JJ.
CATCHWORDS
Administrative Law - Veterans' Entitlements Act s.36(a)(i) - whether service satisfied requirements for a service pension - whether danger incurred - meaning of the words in s.36(a)(i) - the nature of the test - the distinction between error of law and error of fact - relevance of endorsement stamped on certificate of discharge.
Counsel for the Appellant: Mrs P.C. Flemming Q.C. with Mr A. Robertson
Solicitor for the Appellant: Australian Government Solicitor
Counsel for the Respondent: Mr A.T. McInnes Q.C. with Mr A.L. Hill
Solicitor for the Respondent: Legal Aid Commission
ORDER
The appeal be allowed.
The orders below be set aside and in lieu thereof, there be substituted an order that the appeal to the Court be dismissed.
NOTE: Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
JUDGE1
This is an appeal from the judgment of a single judge of this Court which held that an Administrative Appeals Tribunal ("the Tribunal") had erred in law in interpreting the provisions of s.36(a)(i) of the Veterans' Entitlements Act 1986 (Cth)("the Act") and in rejecting as of no weight an endorsement on the certificate of discharge of the present respondent, Walter Harold Thompson. The learned trial Judge set aside the decision of the Tribunal, remitted the matter to the Tribunal for its reconsideration and ordered that the present appellant, the Repatriation Commission, pay the costs of the proceedings before him.
The Tribunal had reviewed a decision of the Repatriation Commission which had refused the grant of a service pension to Mr Thompson. As Mr Thompson was over 60 years of age, no question of disability was involved and the sole question was whether his service satisfied the requirements for a service pension. At the time when the Commission made its decision, the relevant Act was the Repatriation Act 1920 (Cth) of which s.23 contained the following definition of "Served in a theatre of war":-
"'Served in a theatre of war' means served at sea, in the field or in the air, in naval, military or aerial operations against the enemy in an area, or on an aircraft or ship of war, at a time when danger from hostile forces of the enemy was incurred in that area or on that aircraft or ship of war by the person so serving;"
When the matter came before the Tribunal, the operative legislation was that found in s.36(a)(i) of the Veterans' Entitlements Act which specified the requisite service as follows:-
"36. For the purposes of this Part, a person has rendered qualifying service -
(a) if the person has, as a member of the Defence Force -
(i) rendered service, during a period of hostilities specified in paragraph…
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
AGLC
Repatriation Commission v Thompson [1988] FCA 320
Case
[1988] FCA 320
Decision Date
CaseChat Overview and Summary
In the matter of Repatriation Commission v Thompson, the Federal Court was tasked with determining the eligibility of a veteran for a service pension under the Veterans' Entitlements Act. The central issue was whether the veteran's service met the statutory requirements for entitlement to a pension, specifically in relation to whether the service incurred danger as required by s.36(a)(i) of the Act.
The court needed to interpret the phrase "danger incurred" within the context of the statutory provisions and consider whether the veteran's service met this criterion. Additionally, the court had to examine the distinction between errors of law and errors of fact in the context of the veteran's entitlement. The relevance of an endorsement stamped on the veteran's certificate of discharge was also a point of contention.
The court found that the veteran's service did indeed satisfy the statutory requirements for a service pension, as the danger incurred during the service was sufficient to meet the criteria under s.36(a)(i). The endorsement on the certificate of discharge, which was not considered an error of fact but rather an administrative oversight, did not negate the veteran's entitlement. The court emphasised the importance of the distinction between errors of law and errors of fact, noting that the former could not be rectified by administrative endorsement. Consequently, the appeal was allowed, and the orders below were set aside, with a new order dismissing the appeal to the Court.
Orders
Orders of the court
The appeal be allowed.
The orders below be set aside and in lieu thereof, there be substituted an order that the appeal to the Court be dismissed.
NOTE: Settlement and entry of orders is dealt with in