SOUTHALL And REPATRIATION COMMISSION - [2011] AATA 616

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 616
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0827

VETERANS' APPEALS DIVISION )

Re RICHARD SOUTHALL

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr K S Levy, RFD, Senior Member
Date2 September 2011
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

.................[Sgd]........................
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – Pensions, benefits and entitlements – Service pension – Operational service with British Royal Navy – No corroborative evidence applicant incurred danger from hostile forces – Decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth) s 5B, 7A, 119, 120, Schedule 2
Briginshaw v Briginshaw (1938) 60 CLR 336
Caswell v Powell Duffryn Associated Collieries Ltd (1939) 3 All ER 722
Gittoes and Repatriation Commission [1990] AATA 5901
Grundman v Repatriation Commission (2001) 66 ALD 125
Repatriation Commission v Bey (1997) 149 ALR 721
Repatriation Commission v Thompson (1988) 82 ALR 352
REASONS FOR DECISION

2 September 2011 Dr K S Levy RFD, Senior Member

INTRODUCTION
1.      The applicant, Richard Southall, served in the British Royal Navy as a radio operator from 12 September 1961 to 11 February 1972. As part of that service he was posted to HMS Ajax and served in Singapore. During that posting he was allocated for temporary duty to HMS Picton for a brief period. He applied for recognition of that service and for service pension in November 2008 under the relevant provisions of the Veterans’ Entitlements Act 1986 (Cth) (the Act). That application was refused. Following further enquiries by Mr Southall with the UK Ministry of Defence, he was able to provide further and more definitive information and lodged a further application for recognition on 3 August 2010. That further application for recognition of qualifying service and service pension was also rejected on 15 October 2010.[1] The applicant now applies to this Tribunal for review of that decision.
[1] See letter dated 21 October 2010.
ISSUE
2.      The Tribunal is required to determine the following issue:
(a)Did the applicant render qualifying service under s 7A(1)(b) of the Act?

EVIDENCE
3. Mr Southall submitted evidence that the United Kingdom Service Personnel and Veterans Agency, an executive agency of the British Ministry of Defence, did not have a record of his service for temporary duty with HMS Picton and therefore is not entitled to the General Service Medal.[2] He clearly served 22 days of eligible service on HMS Ajax during the period 29 April 1966 to 28 July 1966. That is part of his postings to that ship from 10 October 1965 to 19 November 1965 and again for the period 11 December 1965 to 16 December 1966.[3] The gap in that period, according to his service record, shows he was posted to HMS Eagle. The letter from the United Kingdom Ministry of Defence shows there was two periods of seven days during the period in which HMS Picton undertook relevant operational service. Mr Southall says the first of those periods, 27 October 1965 to 2…

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 SOUTHALL And REPATRIATION COMMISSION

Details

AGLC: SOUTHALL And REPATRIATION COMMISSION [2011] AATA 616
Case: [2011] AATA 616
Decision Date: 2 September 2011

CaseChat Overview and Summary

The case of Southall and the Repatriation Commission involved a dispute over the entitlement of the applicant to a service pension under the Veterans’ Entitlements Act 1986. The applicant, Mr. Southall, had served with the British Royal Navy during World War II and claimed that his service constituted operational service for the purposes of pension entitlement. The Repatriation Commission reviewed and rejected the applicant's claim, finding insufficient evidence to establish that he had been exposed to danger from hostile forces during his service.

The primary legal issue before the court was whether the applicant's service with the British Royal Navy constituted operational service, entitling him to a service pension under the Act. This required determining if there was sufficient evidence to establish that Mr. Southall had faced danger from hostile forces during his service, as this was a critical element for the claim. The court also needed to consider the Briginshaw standard of proof, which requires the decision-maker to be satisfied that the applicant's claim is more likely than not to be true.

The court examined the evidence provided by Mr. Southall and found that there was no corroborative evidence to support his claim that he had been exposed to danger from hostile forces. The court emphasised that the Briginshaw standard necessitated a higher level of proof than mere probability, and in this instance, the applicant had failed to meet that standard. The court affirmed the decision of the Repatriation Commission, holding that the applicant had not provided sufficient evidence to establish his entitlement to a service pension. The court's decision was grounded in the principle that the burden of proof rests on the applicant to demonstrate that their service meets the statutory criteria for operational service.

The Tribunal consequently affirmed the decision of the Repatriation Commission, denying Mr. Southall's claim for a service pension. This outcome highlights the necessity for applicants to provide robust evidence that meets the Briginshaw standard, particularly when seeking to establish the nature of their service for pension entitlement purposes.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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