Repatriation Commission v Tiernan

[2001] FCA 519

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Tiernan [2001] FCA 519

VETERANS’ AFFAIRS – veterans’ entitlements – whether locating and repatriating prisoners of war can be characterised as military operations against the enemy

ADMINISTRATIVE LAW – failure of Administrative Appeals Tribunal to deal with submission – submission advanced seriously and on a point determinative of the case – whether error of law

WORDS & PHRASES – “qualifying service”, “military operations against the enemy”

Veterans’ Entitlements Act 1986 (Cth) ss 5B(1), 7A(1)(a)(i), 85(4A)

Willcocks v Repatriation Commission (1992) 39 FCR 49, followed
Repatriation Commission v Burton (1993) 19 AAR 118, referred to
Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 99 ALR 267, applied
Repatriation Commission v Rogers [1999] FCA 489, referred to

REPATRIATION COMMISSION v RODERICK THOMAS HAMILTON TIERNAN
V 581 of 2000

GRAY J
4 MAY 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 581 OF 2000

On appeal from the Administrative Appeals Tribunal

BETWEEN:	REPATRIATION COMMISSION APPLICANT
AND:	RODERICK THOMAS HAMILTON TIERNAN RESPONDENT
JUDGE:	GRAY J
DATE OF ORDER:	4 MAY 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The appeal be allowed.

2.The decision of the Administrative Appeals Tribunal, made on 17 July 2000, be set aside.

3.The matter be remitted to the Administrative Appeals Tribunal for determination according to law.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 581 OF 2000

On appeal from the Administrative Appeals Tribunal

BETWEEN:	REPATRIATION COMMISSION APPLICANT
AND:	RODERICK THOMAS HAMILTON TIERNAN RESPONDENT

JUDGE:	GRAY J
DATE:	4 MAY 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This appeal from the Administrative Appeals Tribunal raises questions of the proper construction of s 7A(1)(a)(i) of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”).

2. Section 85(4A) of the Act provides as follows:

   “A veteran is eligible to be provided with treatment under this Part for any injury suffered, or disease contracted, by the veteran, whether before or after the commencement of this Act, if:

   (a)      the veteran is 70 or over; and

   (b)the veteran has rendered qualifying service during the period covered

   
   

   by paragraph (b) of the definition of period of hostilities in subsection 5B(1); and

   (c)either:

   (i)the Department has notified the veteran in writing that he or she

   is or will be eligible for such treatment; or

   (ii)the veteran has notified the Department in writing that he or she

   seeks eligibility for such treatment.”

   Paragraph (b) of the definition of “period of hostilities” in s 5B(1) of the Act defines the relevant period of hostilities as “World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included)”. The meaning of the phrase “rendered qualifying service” is to be found in s 7A of the Act. For present purposes, the relevant part of that section provides as follows:

   “(1)     For the purposes of Part III and sections 85…