Spargo and Repatriation Commission
[2000] AATA 356
•10 April 2000
DECISION AND REASONS FOR DECISION [2000] AATA 356
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/365
VETERANS' APPEALS DIVISION )
Re RAYMOND FRANKLIN SPARGO
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen Rear Admiral a r Horton AO, RAN (Rtd), Member
Date10 April 2000
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N1999/365
)
GENERAL ADMINISTRATIVE DIVISION )
Re RAYMOND FRANKLIN SPARGO
Applicant
AndREPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M.D. Allen, Rear Admiral A Horton
Date 10 April 2000
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE. This matter is remitted to the Respondent with the following directions:
1.The Applicant, Raymond Franklin Spargo is a veteran who had operational service for the purposes of the Veterans' Entitlements Act 1986 and
2.The Applicant, Raymond Franklin Spargo is entitled to pension for war caused injuries and diseases as from 21 May 1999.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - whether applicant a veteran allotted for duty aboard HMAS Sydney during Korean War. Status of veteran gained when Sydney left last port of call in Australia.
Veterans' Entitlements Act 1986 - subs5B(2), s6C
Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc and Ors [2000] NSW CA 65
Repatriation Commission v Hawkins 18 AAR 93
REASONS FOR DECISION
Senior Member M D Allen
Rear Admiral a r Horton AO, RAN (Rtd), Member
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed: Ivanka Mamic
....................................................................................Associate
Date of Hearing 10 April 2000
Date of Decision 10 April 2000Solicitor for Applicant Ms J Buchanan, Legal Aid Commission
Advocate for Respondent Mr G Wright, Department of Veterans' AffairsDRAFT JUDGMENT
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N99/365
By MR ALLEN, Senior Member and
REAR ADMIRAL HORTON, Member
SPARG0 and REPATRIATION COMMISSION
Sydney, 10 APRIL 2000MR ALLEN: In this matter pursuant to an application lodged with the Tribunal on 11 March 1999, the applicant seeks review of a decision by the respondent made 18 April 1998 and affirmed by Veteran's Review Board to the effect that he was not a member of the Defence Forces as provided for in the Veterans' Entitlements Act 1986 and consequently a disability pension which was then being paid to him was cancelled with effect from 21 May 1998. There was prepared for the Tribunal the documents which were before the decision-maker and they were taken in as documents T1 to T18. Exhibit A1 is a statement of agreed facts signed by both the applicant's representative and the respondent's representative.
The factual matters are indeed within a relatively small compass. Taking it from the statement of agreed facts, I read, beginning at paragraph 7:
The applicant was allotted for duty in an operational area, Korea, as a member of a unit of the Defence Forces on HMAS Sydney, it was allotted for duty in that area; 8: HMAS Sydney was allotted for duty in an operational area, Korea, from 31 August 1951 to 22 February 1952; 9: The applicant was serving on HMAS Sydney when she departed for Australia for Korea on 31 August 1995; 10: The applicant was seriously injured en route to Japan and on arrival at Kurai was transferred to HMAS Glory on 30 September 1951 for passage to Australia and arrived in Australia on 17 October 1951; 11: The applicant did not serve a distance of 185 kilometres seaward from the coast of Korea.
Section 5B(2) of the Veterans' Entitlements Act reads:
Allotted for Duty. A reference in this Act to a person or a unit of the Defence Force that was allotted for duty in an operational area is a reference. (a) in the case of duty that was carried out in an operational area described in item 1, 2, 3, 4, 5, 6, 7 or 8 of schedule 2 (in column 1) to a person or unit of the Defence Force that is allotted to duty in the area (whether retrospectively or
sparepJ 10.4.00 P-1
©Auscript Pty Ltd 2000otherwise) by written instrument issued by the Defence Force for use by the Commission in determining a person's eligibility for entitlements under this Act.
As stated, both parties agree the applicant was allotted for duty in an operational area, namely, Korea, as a member of a unit of the Defence Force, namely, HMAS Sydney, it was allotted for duty in that area. The period of Sydney's allotment was from 31 August 1951 to 22 February 1952 and I was informed by the bar table without objection that in fact HMAS Sydney left the port of Fremantle on 31 August 1951. Section 6C of the Veterans' Entitlements Act reads inter alia:
(1) Subject to this section, a member of the Defence Force who has rendered continuous full time service in an operational area as (a) a member who was allotted for duty in that area or (b) a member of a unit of the Defence Force that was allotted for duty in that area is taken to have been rendering operational service in the operational area while the member was so rendering continuous full time service. (3) For the purposes of subsection (1) a member of the Defence Force is subject to subsection (4) taken to have rendered continuous full time service in an operational area during the period commencing on (a) if the member was in Australia on the day (relevant day) from which the member or the unit of the member was allotted for duty in that area on the day on which the member left the last port of call in Australia for that service.
I would only add subsection (4) of section 6C refers to short visits on return to Australia such as the rest and recuperation arrangements. It is, therefore, a matter of interpretation of the relevant station. In making that interpretation there are two aspects to be kept in mind. The first of those is the general approach to statutory interpretation and I would refer to the discussion by Speigelman CJ in Repatriation Commission v Vietnam Veterans Association of Australia NSW Branch Incorporated and Others (2000) NSWCA 65. At paragraph 107 the learned Chief Justice says:
The Australian law a statutory interpretation requires a court to consider context in the first instance not merely after ambiguity is identified, see The Crown v Wilson ex parte Tish (1934) 53 CLR 234 at 244. Cooper Brooks Wollongong Pty Ltd v Commissioner of Taxation Commonwealth (1980-81) 147 CLR 297 at 304, 319, 320 and other cases there cited.
His Honour continued at para 108:
sparepJ 10.4.00 P-2
©Auscript Pty Ltd 2000As Sir Anthony Mason put it in Kay v S. Lake City Freighters Super at 315 (in dissent but not with respect to the law of statutory interpretation, subquote: Problems of legal interpretation are not sold satisfactorily by ritual incantations which emphasise the clarity of meaning which words have when viewed in isolation divorced from the context. The modern approach to interpretation insists that the context be considered in the first instance especially in the case of general words and not merely at some later stage when ambiguity might be thought to arise.
In this matter that the Veterans' Entitlements Act is beneficial legislation cannot be doubted and in particular I would refer to this discussion of the Act in Repatriation Commission v Hawkins 18 AAR 93 page 99. At page 100, however, the court being Burchett, Einfeld and Beazley JJ said in relation to a section which equates to subsection (3) of section 6C.
It will be observed that the expression, subquote, those persons, end subquotes, is unlimited and does not leave out so many of them perhaps the majority as were taken to have been rendering operational service because they were members of units that had been allotted for duty in an operational area. Accordingly, subsection (5) section 6 operates to fix the period of the respondent's operational service by reference to the day on which he departed from the last port of call in Australia for that service and by reference to the day on which he arrived on the first port of call in Australia on returning from that service.
I note subsection (3) of section 6C there are similar wording namely:
A member of the Defence Force is taken to have rendered continuous full time service in an operational area during the period commencing on the day on which the member left the last port of call in Australia for that service.
My attention has been drawn to the various amendments since Hawkins was decided. The section was amended firstly, by the Veteran Affairs (1995-96 Budget Measures) Legislation Amendment Act 1997 being Act 128 of 1995 and is found in its present form by the amendments of the Veterans' Entitlements Act 1986 occasioned by the Veteran Affairs Legislation Amendment (Budget and Compensation Measures) Act 1997 being Act 157 of 1997. Both those Acts were passed after the decision of the Full Court of the Federal Court in Repatriation Commission v Hawkins Super. As I have stated at page 100 the court drew a conclusion as to the particular wording at that stage of subsection (5) of
sparepJ 10.4.00 P-3
©Auscript Pty Ltd 2000Section 6 noting that that conclusion would in itself have been sufficient to justify the judge at first instance, Davies J, in allowing the appeal from the Tribunal. That case, by the way, concerned a sailor who had started smoking on the way to Vietnam but before arrival in Vietnamese waters. It is quite clear that the decision in Repatriation Commission v Hawkins Super would have been before the legislature when the various amendments to the Veterans' Entitlements Act 1986, I have referred to the formulated. Subsection (3) of section 6C quite clearly reads in unambiguous language:
That for the purposes of subsection (1) a member of the Defence Forces is rendering continuous full time service in an operational area on the day in which he left the last port of call in Australia.
In this case, the applicant's last port of call in Australia was Fremantle from whence he departed as a member of the crew of HMAS Sydney on 31 August 1951. It is quite clear therefore that for the purposes of his voyage on that ship until he arrived back in Australia, being a casualty on board HMAS Glory, for the whole of that period he was on operational service. Therefore, the decision under review is set aside and this matter remitted to the respondent with the directions that the applicant is a veteran as that term is defined in the Veterans' Entitlements Act 1986 and he is entitled to the pension previously paid to him as and from the 21st day of May, if it was cancelled from that day, as and from the 21st day of May 1998. Thank you.
sparepJ 10.4.00 P-4
©Auscript Pty Ltd 2000
0
0
0