Williams v Repatriation Commission

[2005] FMCA 1201

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WILLIAMS v REPATRIATION COMMISSION [2005] FMCA 1201

ADMINISTRATIVE LAW – Appeal of AAT Decision – meaning of “qualifying service” pursuant to s.7A of the Veteran’s Entitlement Act 1986 – question of fact – whether AAT applied correct test of law – appeal dismissed.

Veteran’s Entitlement Act 1986
Administrative Appeals Tribunal Act 1975

Repatriation Commission v Thompson (1988) 82 ALR 352
Repatriation Commission v Robertson (2004) FCA 173
Waterford v Commonwealth (1987) 163 CLR 54
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Mitchell (2002) 71
Re Tiplady and Repatriation Commission (1987) 12 ALD 670
Mullen v Repatriation Commission [2000] AATA 871
Gilgen and Repatriation Commission [2000] AATA 447

Applicant: ROY WILLIAMS

Respondent: REPATRIATION COMMISSION

File Number: BRG74 of 2004

Judgment of: Baumann FM

Hearing date: 14 June 2005

Date of Last Submission: 14 June 2005

Delivered at: Brisbane

Delivered on: 14 June 2005

REPRESENTATION

Counsel for the Applicant: Mr Anderson

Solicitors for the Applicant: Terrence Connor, Solicitor

Counsel for the Respondent: Ms Bowskill

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the Appeal be dismissed.

2. The Applicant shall pay a contribution to the Respondent’s costs fixed in the sum of $4,000 within 90 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 74 of 2005

ROY WILLIAMS

Applicant

And

REPATRIATION COMMISSION

Respondent

REASONS FOR JUDGMENT

(settled from the ex tempore reasons)

Background

1. In this case, it is argued on behalf of the appellant that the learned Member of the Administrative Appeals Tribunal whose decision given 8 December 2004 (“the decision”) is under review, had made the necessary factual findings to support a conclusion that the appellant did render qualifying service for the purposes of s.7A of the Veterans Entitlement Act 1986.  I had the benefit of well considered written and oral submissions.  I do not propose, in these extempore reasons, to recite large sections verbatim of those submissions but reserve the right to do so in any reasons which are required for publication.

History

1. I adopt, for these reasons, the summary given by the Member at paragraph 6 of his reasons as follows:

   “On 4 December 1943, Mr Williams embarked from Brisbane on the SS Wandana en route to Thursday Island where he arrived on 15 December 1943.  He then travelled to Horn Island as one of a group of reinforcements for 74 Mobile Search Light Battery.  He served in that category until 26 September 1944 when he left the Torres Strait by ship and disembarked in Townsville on 28 September 1944.

   During those voyages and whilst on Horn Island, Mr Williams had no direct contact with enemy forces, but Mr Anderson submitted that, nonetheless, there had been a real possibility during each of the voyages of Mr Williams' vessel making contact with an enemy mine or of being sighted by an enemy submarine.  He also submitted there was a real possibility that whilst on Horn Island, Mr Williams could have been subject to raids by Japanese aircraft.  He…