Wooding and Repatriation Commission - [2006] AATA 907

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 907
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2005/334

VETERANS' APPEALS DIVISION )

Re ROY WOODING

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J G Short (Member)
Date26 October 2006
PlaceAdelaide

Decision
The Tribunal affirms the decision under review.

..............................................
J G SHORT
(Member)

CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – applicant toured Vietnam (Southern Zone) as a member of a South Australian Concert Party arranged and sponsored by the Australian Forces Overseas Fund – applicant not under the command of Australian Defence Forces – applicant recorded on nominal roll of Vietnam veterans and awarded Vietnam Logistic and Support Medal – not formally attached to Australian Defence Forces and not a member of Australian Forces Overseas Fund – whether applicant is covered by the 1987 Ministerial Direction or is otherwise a veteran – decision affirmed
Veterans’ Entitlements Act 1986 ss 5C, 5(13), 5R, 5(7), 69(1), 120(4)
Ferriday v Repatriation Commission (1996) 42 ALD 526
Iversen v Repatriation Commission [2006] FCA 942
Re Iversen & Repatriation Commission [2006] AATA 280
REASONS FOR DECISION

26 October 2006   Mr J G Short (Member)

background
1.      Mr Wooding is an entertainer and musician. He was a member of a South Australian Concert Party (SACP) and toured Vietnam (Southern Zone), from 18 September 1969 until 1 October 1969 and from 18 February 1970 until 5 March 1970. The concert parties were arranged and sponsored by the Australian Forces Overseas Fund (AFOF). On 9 November 2001 Mr Wooding lodged a claim with the respondent (the Commission) for a Disability Pension. The claim was rejected on the basis that Mr Wooding was not a veteran or a member of the Australian Defence Force (the Defence Force). The decision was affirmed by the Veterans’ Review Board (VRB) on 28 September 2005.
2. Mr Wooding’s appeal proceeded by way of a statement of agreed facts (Exhibit A2). The applicant confined his submissions to a suggestion that although he was not a member of the Defence Force (in that he did not satisfy s 69(1) of the Veterans’ Entitlements Act 1986 (the VE Act)) and does not meet the definition of a veteran (being a person who served in one of the two World Wars or who has rendered operational, hazardous or peacekeeping service) he was covered by a Ministerial Determination dated 18 December 1987 which directed that certain persons be treated as members of the Defence Force who were rendering continuous full-time service for the purposes of the VE Act.
issue
3.      The issue before me is whether Mr Wooding’s visits to Vietnam, as a member of the SACP, bring him within what can be described as the deeming provisions of the Ministerial Determination dated 18 December 1987.
statement of agreed facts
4.      I will now set out the statement of agreed facts recorded as part of Exhibit A2:
“1.       The Applicant, ROY WOODING, was born on 5 May 1932.
2.Mr Wooding served in the prescribed…

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 Wooding and Repatriation Commission

Details

AGLC: Wooding and Repatriation Commission [2006] AATA 907
Case: [2006] AATA 907
Decision Date: 26 October 2006

CaseChat Overview and Summary

The case involved an applicant who served in Vietnam (Southern Zone) as part of a South Australian Concert Party, which was organised and funded by the Australian Forces Overseas Fund. Despite not being under the command of the Australian Defence Forces, the applicant was recorded on the nominal roll of Vietnam veterans and awarded the Vietnam Logistic and Support Medal. The dispute centred on whether the applicant qualified as a veteran under the Veterans' Entitlements Act 1986 or was otherwise eligible for veterans' entitlements. The matter was heard and determined by the Administrative Appeals Tribunal.

The key legal issues revolved around the interpretation and application of the Veterans' Entitlements Act 1986, particularly sections 5C, 5(13), 5R, 5(7), 69(1), and 120(4). The primary question was whether the applicant, who was not formally attached to the Australian Defence Forces and not a member of the Australian Forces Overseas Fund, was covered by the 1987 Ministerial Direction or met the criteria to be considered a veteran. This involved examining the relationship between the applicant and the Australian Defence Forces, and whether their service qualified under the relevant legislation and directions.

The Tribunal examined the evidence and the relevant legal provisions, including prior cases such as Ferriday v Repatriation Commission and Iversen v Repatriation Commission. It concluded that the applicant did not meet the statutory criteria for being a veteran or fall within the scope of the 1987 Ministerial Direction. The Tribunal affirmed the original decision, finding that the applicant was not eligible for veterans' entitlements.

The Tribunal's decision was based on the lack of formal attachment to the Australian Defence Forces and the absence of membership in the Australian Forces Overseas Fund, which were critical factors in determining veteran status under the Act. The decision was consistent with previous case law and the statutory provisions.

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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