Washer and Repatriation Commission - [2000] AATA 883

DECISION AND REASONS FOR DECISION [2000] AATA 883

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1429

VETERAN'S APPEALS DIVISION )

Re EDWARD JAMES WASHER
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date9 October 2000
PlaceSydney

Decision The decision under review is affirmed.

..............................................
A Horton
Member
CATCHWORDS

VETERANS' AFFAIRS – gold card eligibility - Army service during period of hostilities - whether applicant rendered qualifying service – whether incurred danger during Japanese submarine gun attack on Newcastle 8 June 1942 – whether engaged in military operations against the enemy

Veterans' Entitlements Act 1986 - ss 5B(1), 5C(1), 7A, 120(4)
Veterans' Entitlements Amendment (Gold Card) Act 1998 – s 85(4A)

Repatriation Commission v Thompson (1988) 44 FCR 20
Willcocks v Repatriation Commission (1992) 39 FCR 49
Repatriation Commission v Ahrenfeld (1991) 29 FCR 556
Repatriation Commission v Burton (1993) 31 ALD 475
Repatriation Commission and Smith (1987) 15 FCR 327
Re Corrick and Repatriation Commission [2000] AATA 143
Re Carlyon and Repatriation Commission (AAT 12957, 6 May 1998)

REASONS FOR DECISION

September 2000 Rear Admiral AR Horton AO, Member

This is an application for review of a decision dated 28 October 1998 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 28 May 1999, that Edward James Washer ("the Applicant") did not render qualifying service for the purposes of section 7A of the Act, and hence is not eligible for a Gold Card under subsection 85(4A) of the Veterans' EntitlementsAmendment (Gold Card) Act 1998 ("the Gold Card Act"). The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 20 September 1999, an application to the Tribunal for an extension of time having been granted.

At the hearing before the Tribunal on 6 September 2000, the Applicant was represented by Mr P Carey of the Returned and Services League of Australia. Mr J Marsh, Senior Advocate, appeared for the Respondent. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also took into evidence the following:

Report by Mr C Ducker with attachments dated 27 March 2000 Exhibit R1
Report by Mr C Ducker with attachment dated 8 May 2000 Exhibit R2

ISSUES BEFORE THE TRIBUNAL

The Applicant claims qualifying service as a prerequisite for eligibility for a Gold Card. Eligibility is established pursuant to subsection 85(4A) of the Gold Card Act, which states:
"(4A) 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…

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 Washer and Repatriation Commission

Details

AGLC: Washer and Repatriation Commission [2000] AATA 883
Case: [2000] AATA 883
Decision Date: 9 October 2000

CaseChat Overview and Summary

The applicant sought a gold card under the Veterans' Entitlements Act 1986, which entitles the holder to certain health benefits. The Repatriation Commission found that the applicant's service during World War II did not qualify for a gold card because it was not rendered during a period of hostility. The applicant appealed this decision to the Administrative Appeals Tribunal. The dispute centred on whether the applicant's service during the Japanese submarine gun attack on Newcastle on 8 June 1942 constituted service during a period of hostility. The applicant claimed to have been engaged in military operations against the enemy during the attack, while the Commission found otherwise. The Tribunal had to determine whether the applicant's service qualified as service during a period of hostility under the Veterans' Entitlements Act 1986 and the Veterans' Entitlements Amendment (Gold Card) Act 1998.

The Tribunal examined the relevant statutory provisions and case law to determine the meaning of "service during a period of hostility." It found that the statutory provisions required that the service be rendered during a period of armed conflict between nations or between a nation and an organised resistance movement. The Tribunal held that the Japanese submarine gun attack on Newcastle did not constitute a period of hostility as it was a single incident that did not amount to a sustained armed conflict. Furthermore, the Tribunal found that the applicant's service did not qualify as military operations against the enemy because he was not engaged in combat during the attack.

The Tribunal concluded that the applicant's service did not qualify for a gold card because it was not rendered during a period of hostility. The Tribunal dismissed the appeal, upholding the Commission's decision. The applicant's appeal was dismissed, and the decision of the Repatriation Commission was affirmed. The Tribunal found that the applicant's service during the Japanese submarine gun attack on Newcastle did not constitute service during a period of hostility as required by the statutory provisions. The Tribunal held that the attack was a single incident that did not amount to a sustained armed conflict, and that the applicant's service did not qualify as military operations against the enemy. As such, the applicant was not entitled to a gold card under the Veterans' Entitlements Act 1986.

Orders