Roper v Repatriation Commission

Case [2008] FCA 1610

FEDERAL COURT OF AUSTRALIA

Roper v Repatriation Commission [2008] FCA 1610

VETERANS’ ENTITLEMENTS – pension – death of veteran – operational service – two flights outside the Australian Territorial zone – whether full-time continuous service outside Australia – essential character of veteran’s service

Veterans’ Entitlements Act 1986 (Cth) ss 6A, 120
Administrative Appeals Tribunal Act 1975 (Cth) s 44

Repatriation Commission v Kohn (1989) 87 ALR 511 applied
Repatriation Commission v Ahrenfield (1991) 29 FCR 556 cited
Proctor v Repatriation Commission (1999) 54 ALD 343 cited
Roscoe v Repatriation Commission [2003] FCA 1568 cited
TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 cited
Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 applied
Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 cited
Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 cited
Comcare v Etheridge (2006) 149 FCR 522 cited
Commissioner of Taxation v Dixon (2006) 155 FCR 101 cited
Hussain v Minister for Foreign Affairs (2008) 248 ALR 456 cited
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 cited
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 cited
Director-General of Social Services v Chaney (1980) 31 ALR 571 cited
WAKN v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 40 AAR 223 cited

CORAL SYLVIA ROPER v REPATRIATION COMMISSION

VID 285 OF 2007

TRACEY J
30 OCTOBER 2008
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 285 OF 2007

BETWEEN:

CORAL SYLVIA ROPER
Appellant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

30 OCTOBER 2008

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

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

VID 285 OF 2007

BETWEEN:

CORAL SYLVIA ROPER
Appellant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

TRACEY J

DATE:

30 OCTOBER 2008

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

  1. The appellant’s late husband, Mr David Roper, served in the Royal Australian Air Force during World War II.  The appellant (“Mrs Roper”) applied to the respondent, the Repatriation Commission (“the Commission”), for a pension pursuant to the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”). Mrs Roper’s application was unsuccessful. Mrs Roper appealed unsuccessfully to the Veterans’ Review Board. She then appealed to the Administrative Appeals Tribunal (“the Tribunal”). A hearing was held to determine the preliminary issue of whether Mr Roper had rendered “operational service” within the meaning of the VE Act. The Tribunal found that Mr Roper had not rendered “operational service”. Mrs Roper purports to appeal from the Tribunal’s decision to this Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).

  2. The Commission objected to the competency of the appeal on the ground that Mrs Roper had failed to…

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Details
AGLC
Roper v Repatriation Commission [2008] FCA 1610
Case
[2008] FCA 1610
Decision Date

CaseChat Overview and Summary

The case of Roper v Repatriation Commission involved Mrs Roper challenging the Tribunal’s determination that her late husband, Mr Roper, did not render "operational service" as defined in section 6A(1) of the Veterans' Entitlements Act 1986 (Cth). The Tribunal's decision was significant because it determined that Mrs Roper’s pension application would be assessed under the less favourable standard of proof specified in section 120(4) of the Act, rather than the more favourable standard applicable to operational service. The primary issue for the court was whether Mr Roper’s flights to and towards Middleton Reef constituted operational service.

The court examined the definition of "operational service" and relevant case law to determine the appropriate criteria for assessing whether Mr Roper’s service was operational. The court considered factors such as the nature of Mr Roper's overall service, the essential character of his service during the period outside Australia, and whether his service could be seen as operational based on the circumstances. The court applied these criteria to the facts of Mr Roper's service, concluding that his flights were part of training and preparation for a potential overseas posting, rather than operational service.

In reaching its decision, the court highlighted that the flights were conducted within the context of training and were preparatory in nature. The court noted that while the aircrew might have undertaken surveillance activities, the primary purpose of the flights was training. Consequently, the court found that Mr Roper did not render operational service. The appeal was dismissed with costs, affirming the Tribunal’s decision.

Orders

Orders of the court

1. The appeal be dismissed with costs.

Background

Background to the litigation

The Tribunal held a hearing to determine the preliminary issue of whether the veteran had rendered “operational service” within the meaning of s 6A(1) the VE Act. If Mr Roper had rendered operational service, Mrs Roper’s application for a pension would be determined according to the more favourable standard of proof specified in ss 120(1) and (3), rather than that which would apply if Mr Roper had not rendered operational service (see s 120(4)). The Tribunal decided that Mr Roper did not render operational service and, therefore, the issues before it must be decided according to the standard of proof specified in s 120(4) of the VE Act. It is this decision that Mrs Roper now seeks to challenge. Background Mr Roper was born on 8 February 1926. He served with the Royal Australian Air Force from 21 April 1944 until 24 October 1945. His RAAF postings were all within Australia. On 11 April 1945 and 23 April 1945, as part of his training with the No. 7 Operational Training Unit at Tocumwal, Mr Roper was an air gunner on a B-24 Liberator (a long range American bomber) which flew to or towards Middleton Reef. These two flights took Mr Roper outside the Australian Territorial Zone. The Tribunal had to determine whether, in flying to or towards Middleton Reef, Mr Roper had rendered operational service.The legislation Pursuant to s 13(1)(a) and (c) of the VE Act, where the death of a veteran is war‑caused, the Commonwealth is, subject to the VE Act, liable to pay pensions by way of compensation to the dependants of that veteran in accordance with the VE Act. A claim for a pension is made pursuant to s 14. Under s 19, the Commission has the primary responsibility for determining a claim. Mr Roper served in World War II as a member of the Defence Force. The definition of operational service in s 6A of the VE Act therefore applies: “6A Operational service—world wars(1)Subject to subsection (3), a person referred to in column 2 of an item in the following table is taken to have been rendering operational service during any period during which the person was rendering continuous full‑time service of a kind referred to in column 3 of that item. Mr Roper did not serve in the Northern Territory. As a result only paragraphs (a), (c) and (d) of Item 1 of s 6A(1) were of potential relevance. The expression “continuous full-time service” is defined in s 5C of the Act. As Mr Roper was a member of the RAAF, it means “service in the Air Force of the Commonwealth of the kind known as continuous full-time air force service.” The Tribunal’s decision The Tribunal commenced its reasoning with an analysis of a number of decisions of this Court: Repatriation Commission v Kohn (1989) 87 ALR 511, Repatriation Commission v Ahrenfield (1991) 29 FCR 556, Proctor v Repatriation Commission (1999) 54 ALD 343 and Roscoe v Repatriation Commission [2003] FCA 1568.Having considered these authorities, the Tribunal set out (at [43]) the principles which it considered should guide it in making a decision: “1. the nature of the veteran’s service overall;2.the essential character of the veteran’s service during the period spent outside Australia when that essential character is determined by reference to matters such as:(1) the period of time for which the veteran is outside Australia;(2) the purpose for which the veteran was outside Australia;(3)events that occurred during the period in which the veteran was outside Australia including enemy activity, or likelihood of, enemy activity in the relevant area;(4) the veteran’s activities during the period outside Australia; and(5)the veteran’s activities both before and after the period of service outside Australia; and3.whether, having regard to its conclusions on the first two matters, the veteran’s service in the particular period can be seen to be treated as operational service.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

TRACEY J
The expression “continuous full-time service” is defined in s 5C of the Act. As Mr Roper was a member of the RAAF, it means “service in the Air Force of the Commonwealth of the kind known as continuous full-time air force service.” The Tribunal’s decision The Tribunal commenced its reasoning with an analysis of a number of decisions of this Court: Repatriation Commission v Kohn (1989) 87 ALR 511, Repatriation Commission v Ahrenfield (1991) 29 FCR 556, Proctor v Repatriation Commission (1999) 54 ALD 343 and Roscoe v Repatriation Commission [2003] FCA 1568.Having considered these authorities, the Tribunal set out (at [43]) the principles which it considered should guide it in making a decision: “1. the nature of the veteran’s service overall;2.the essential character of the veteran’s service during the period spent outside Australia when that essential character is determined by reference to matters such as:(1) the period of time for which the veteran is outside Australia;(2) the purpose for which the veteran was outside Australia;(3)events that occurred during the period in which the veteran was outside Australia including enemy activity, or likelihood of, enemy activity in the relevant area;(4) the veteran’s activities during the period outside Australia; and(5)the veteran’s activities both before and after the period of service outside Australia; and3.whether, having regard to its conclusions on the first two matters, the veteran’s service in the particular period can be seen to be treated as operational service.” The Tribunal applied those principles to Mr Roper’s service as follows: “44. Mr Roper flew beyond Australia’s shoreline on eight occasions. Two of his flights took him beyond Australia’s territorial limits however they are defined. They did so on 11 and 23 April 1945 with the flights taking 12 hours and 9 hours 35 minutes respectively. In light of both the length of the Liberator course Mr Roper was attending in the period from 20 February 1945 and 14 May 1945 and Mr Stephen Roper’s evidence that his father was on “an active patrol albeit part of a broad familiarisation process with the new aircraft prior to overseas posting”, I am satisfied that the flights were taken as part of training. Also on the basis of Mr Stephen Roper’s evidence of what his father had told him, I find that the training was in preparation for his being posted overseas. That posting did not eventuate before Mr Roper was discharged from the RAAF. The aircrew were expected to, and no doubt did, undertake surveillance in relation to, for example, unidentified shipping. Certainly, activities such as surveillance might well have had relevance to operations beyond their relevance to the aircrew’s training. That they might well have had a dual purpose, does not detract from the fact that the flights were for the purpose of training aircrew and familiarising them with the Liberator.” (Emphasis in original.) (Footnote omitted.)

Ratio Decidendi

Legal Principle Established

Established by: TRACEY J

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