Settle and Repatriation Commission - [2003] AATA 775

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 775
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/102

VETERANS' APPEALS DIVISION )

Re WALTER JOHN SETTLE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member
Date11 August 2003
PlaceSydney

Decision The decision under review is affirmed.
...............................................
Rear Admiral A R Horton,
Member

CATCHWORDS
VETERANS’ AFFAIRS – Eligibility for the Gold Card – whether Applicant rendered qualifying service – RAAF service during period of hostilities – service at Rathmines Flying Boat Base – on Sydney Harbour during Japanese midget submarine attack in 1942 – stationed at Rathmines during Japanese submarine attack on Newcastle – whether Applicant incurred danger from hostile forces of the enemy – whether Applicant rendered service in operations against the enemy
LEGISLATION
Veterans’ Entitlements Act 1986 – sections 5B(1), 5C(1), 6A, 7A(1), 85(4A), 120(4)
AUTHORITIES
Repatriation Commission v Thompson (1988) 44 FCR 20
Willcocks v Repatriation Commission (1992) 39 FCR 49
Repatriation Commission v Mitchell [2002] FCA 1177
Repatriation Commission v Tiernan [2001] FCA 519
Re Crawford and Repatriation Commission (1987) 14 ALD 341
Re Tiplady and Repatriation Commission (1987) 12 ALD 670
Re Corrick and Repatriation Commission [2000] AATA 143
Re Mitchell and Repatriation Commission [2001] AATA 1055
REASONS FOR DECISION

11 August 2003 Rear Admiral A R Horton AO, Member

1. This is an application for review of a decision made on 10 July 2002 by a delegate of the Repatriation Commission (“the Respondent”), and affirmed by review under section 57 of the Veterans’ Entitlements Act 1986 (“the Act”) on 25 October 2002, that Walter John Settle (“the Applicant”) did not render qualifying service for the purposes of section 7A of the Act and hence is not eligible for the Gold Card under section 85(4A) of the Act. The Applicant lodged an application for review by the Administrative Appeals Tribunal (“the Tribunal”) on 16 January 2003.
2.      At a hearing before the Tribunal on 21 July 2003, the Applicant was self- represented. Mr M Ryan appeared for the Respondent, being instructed by Mr J Marsh, Senior Advocate.
3.      The Tribunal had before it as evidence the following documents:

Exhibit

Description

Date

T1-11     pp1-26

Documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975

A1

Letter from the Applicant

25 March 2003

R1

Extract from Australians under Seige by S L Carruthers pp 173-181 and map

R2

Page 233 of Australians: A Historical Atlas, by J C R Camm and J McQuilton

R3

Report by Lt Col C H Ducker (C H Ducker Research Service)

27 March 2000

R4

Supplementary report by Lt Col C H Ducker

8 May 2000

R5

Department of Defence Letter PC264/1/191

2 November 2001

R6

Extract from Newcastle Herald

4 June 1992

LEGISLATION AND ISSUES
4. Eligibility for the Gold Card is established pursuant to section 85(4A) of the Act, which states:
"(4A)A veteran is eligible to be provided with treatment under this Part for any injury suffered, or disease…

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.

Continue reading Settle and Repatriation Commission

Details

AGLC: Settle and Repatriation Commission [2003] AATA 775
Case: [2003] AATA 775
Decision Date: 11 August 2003

CaseChat Overview and Summary

In the case of Settle and Repatriation Commission, the applicant sought eligibility for the Gold Card, a benefit provided to veterans under the Repatriation Act. The applicant claimed that they rendered qualifying service in the RAAF during a period of hostilities, specifically during the Japanese midget submarine attack on Sydney Harbour in 1942, and a subsequent attack on Newcastle while stationed at Rathmines Flying Boat Base. The crux of the matter was whether the applicant's service qualified under the Act, specifically whether they incurred danger from hostile forces of the enemy or rendered service in operations against the enemy.

The primary legal issue was determining if the applicant's service at Rathmines Flying Boat Base, and their presence during the Japanese midget submarine attack on Sydney Harbour and the attack on Newcastle, constituted qualifying service under the Act. The court had to assess whether the applicant was directly involved in operations against the enemy or if they were merely present during incidents of enemy activity. The court's decision hinged on interpreting the statutory language and understanding the context of the applicant's service during these historical events.

The court concluded that the applicant's service did not qualify under the Act. The reasoning was that while the applicant was present during incidents of enemy activity, there was no evidence that they were directly involved in operations against the enemy or incurred danger from hostile forces. The court found that the applicant's role did not meet the criteria for qualifying service as outlined in the Act. Consequently, the decision under review was affirmed, denying the applicant eligibility for the Gold Card.

The final orders of the court affirmed the decision under review, upholding the denial of eligibility for the Gold Card. The applicant's service, though present during notable incidents of enemy activity, did not meet the statutory criteria for qualifying service under the Repatriation Act. This decision clarifies the scope of eligibility for the Gold Card and reaffirms the need for direct involvement in operations against the enemy to qualify.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Exhibit	Description	Date
T1-11 pp1-26	Documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1	Letter from the Applicant	25 March 2003
R1	Extract from Australians under Seige by S L Carruthers pp 173-181 and map
R2	Page 233 of Australians: A Historical Atlas, by J C R Camm and J McQuilton
R3	Report by Lt Col C H Ducker (C H Ducker Research Service)	27 March 2000
R4	Supplementary report by Lt Col C H Ducker	8 May 2000
R5	Department of Defence Letter PC264/1/191	2 November 2001
R6	Extract from Newcastle Herald	4 June 1992