Wooding v Repatriation Commission

Case [2007] FCA 318

FEDERAL COURT OF AUSTRALIA

Wooding v Repatriation Commission [2007] FCA 318

VETERANS’ AFFAIRS – Ministerial determination – “representatives” of approved philanthropic organisation providing welfare services considered to be rendering continuous full-time service – whether member of a sponsored Defence Force concert party such a “representative”

STATUTORY INTERPRETATION – construction of the term “representative” – Ministerial determination having legislative force under the Veterans’ Entitlements Act 1986 (Cth) – “representative”, in context, not to be given a narrow or agency-like construction

Veterans’ Entitlements Act 1986 (Cth)
Administrative Appeals Tribunal Act 1975 s 44(1)

Iversen v Repatriation Commission (2006) 91 ALD 114 cited
Vetter v Lake Macquarie City Council (2001) 202 CLR 439 cited
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 applied

ROY WOODING v REPATRIATION COMMISSION

No SAD 265 of 2006

FINN J
13 MARCH 2007
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 265 OF 2006
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR J G SHORT

BETWEEN:

ROY WOODING
Appellant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

FINN J

DATE OF ORDER:

13 MARCH 2007

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The decision of the Administrative Appeals Tribunal be set aside.

3.The matter be remitted to the Tribunal to be heard and decided again. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 265 OF 2006
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR J G SHORT

BETWEEN:

ROY WOODING
Appellant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

FINN J

DATE:

13 MARCH 2007

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

  1. This is an appeal to this Court from a decision of the Administrative Appeals Tribunal on the issue of construction of a Ministerial Determination having legislative force under the Veterans’ Entitlements Act 1986 (Cth). That Determination applied the provisions of the Act to specified classes of persons who were not members of the Defence Forces. These persons were to be regarded if they were such members rendering continuous full-time service for the purposes of the Act. One such class were “persons who, as representatives of an approved philanthropic organisation provided welfare services to the Defence Force” (emphasis added) in specified operational areas (which included Vietnam).  The Determination specified that the Australian Forces Overseas Fund” (“AFOF”) was an “approved philanthropic organisation” for its purposes.

  2. It is accepted by the respondent Commission that the applicant, Roy Wooding, provided welfare services to the Defence Forces in Vietnam and that his provision of that service was “coordinated” (I use this as a neutral term) by AFOF.  The question the application raises is whether, on its proper construction, the term “representative” could comprehend the manner and circumstances in which he rendered his welfare services in Vietnam at AFOF’s behest (again I use this as a neutral term).

    THE AGREED FACTS

  3. The matter came before the Administrative Appeals Tribunal on a Statement of Agreed…

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AGLC
Wooding v Repatriation Commission [2007] FCA 318
Case
[2007] FCA 318
Decision Date

CaseChat Overview and Summary

In the case of Wooding v Repatriation Commission, the applicant, Roy Wooding, sought to determine whether he was entitled to benefits under the Veterans' Entitlement Act 1986 (VEA) based on his service in Vietnam. The key issue was whether Mr Wooding provided welfare services to the Defence Forces as a representative of the Australian Forces Overseas Fund (AFOF). The matter was heard by the Administrative Appeals Tribunal, which ultimately found that Mr Wooding was not a representative of AFOF and therefore not eligible for the benefits in question.

The court considered the statutory interpretation principles, including the context and objects of the legislation, to ascertain the meaning of the term "representative" as used in the Ministerial Determination. The court found that being sponsored by an organisation did not equate to being a representative of that organisation. The court held that the term "representative" connotes an entitlement to act on behalf of another and found that Mr Wooding did not meet this criterion.

As a result, the appeal was allowed, the decision of the Administrative Appeals Tribunal was set aside, and the matter was remitted to the Tribunal to be heard and decided again. The case highlights the importance of understanding the specific criteria for eligibility under the VEA and the need for a clear demonstration that an individual acted as a representative of an approved philanthropic organisation.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal be set aside.

3. The matter be remitted to the Tribunal to be heard and decided again.

Background

Background to the litigation

It is accepted by the respondent Commission that the applicant, Roy Wooding, provided welfare services to the Defence Forces in Vietnam and that his provision of that service was “coordinated” (I use this as a neutral term) by AFOF. The question the application raises is whether, on its proper construction, the term “representative” could comprehend the manner and circumstances in which he rendered his welfare services in Vietnam at AFOF’s behest (again I use this as a neutral term).THE AGREED FACTS The matter came before the Administrative Appeals Tribunal on a Statement of Agreed Facts. “1. The Applicant, ROY WOODING, was born on 5 May 1932.2.Mr Wooding served in the prescribed operational area of Vietnam (Southern Zone) on two occasions:2.1from 18 September 1969 to 1 October 1969 with the 7/69 South Australian Concert Party; and2.2from 18 February 1970 to 5 March 1970 with the 1/70 South Australian Concert Party.(T28/72).3.Mr Wooding is an entertainer and musician. His curriculum vitae appears at T20/57. As part of the Concert Parties, he provided entertainment for Australian forces in Vietnam. This entertainment took the form of a number of concerts conducted throughout what was then South Vietnam. A list of the concerts is recorded at T19/55-56. Other activities are described in the statement of Ms Jenny Loftes at T37/91-93.4.Other people who were part of the relevant Concert Parties were Johnny Mac, Susan Wills, Lorrae Desmond, Anne Wills and John Rayment.5.The entertainment provided by the South Australian Concert Party was for the purpose of contributing to the morale and welfare of the Australian military forces in Vietnam. 6.A number of contemporaneous newspaper articles recording the Concert Parties are recorded at T44/110-117. A further article is also attached to this statement as Annexure A.7.A book published at the time of the tours described Mr Wooding as follows:ROY WOODINGStaff guitarist and producer at Channel 7 Adelaide, was born in Yorkshire, England, migrated to Australia at age of 16 where he started his musical career singing with guitar on a weekly radio show which ran for 10 years. With the introduction of TV he made regular appearances on most of the most [sic] TV stations in Australia as a single act and was resident guitarist with the ABC Light Orchestra. Roy is now concentrating on the writing of music, production and guitar. At 37 he still claims to be the oldest rocker in the business. 8.The parties have not been able to find a copy of the book.9.The South Australian Concert Parties were ‘arranged’ and ‘sponsored’ by the Australian Forces Overseas Fund (‘AFOF’) (T44/111 & 114). A copy of a flier published for a concert to raise funds for the South Australian Concert Party is attached as Annexure B.10.In addition to performing in the concerts, Mr Wooding was the producer and musical director of both Concert Parties.11.The Concert Parties were assigned an escort officer. On the first tour, the officer was Major Moran. On the second tour, the officer was Major John Doyle, a member of 3rd RAR. The Army was responsible for the itinerary, travelling, and security details of the tours.12.The history and background of the Australian Forces Overseas Fund is set out in:12.1a letter dated 24 April 2006 from Major General WJ Crews (retired) to Mr R Coxon, a copy of which is attached to this statement as Annexure C; and 12.2parts of a letter dated 25 May 2006 from Mr Barry Telford to Mr R Coxon, a copy of which is attached to this statement as Annexure D.13.There is no evidence that Mr Wooding was formally attached to the Defence Forces. 14.Mr Wooding does not recall being a ‘member’ of AFOF.15.Nor does he recall undergoing an ‘accreditation process’ administered by the Army. As part of the preparations for the tours, he underwent some training in basic military matters, including weapons handling and firing.16.There is no evidence that he was allocated with a service number or has a service record. He was provided with a ‘military identification card’, which he returned to the officer in charge of the Concert Party, Major Doyle, at the completion of the tour (T43/109).17.At the time of the tours, Mr Wooding took unpaid leave from his position with Channel 7. He was paid the sum of $33.00 per week. This money was given to him by Army officials. He also received a military payment certificate (T34/82). The source of these funds is unknown; it may have been the Army or it may have been AFOF. Some detail is set out at T41/105.18.Mr Wooding’s name is recorded on the Nominal Roll of Vietnam Veterans (T10/29). He is described as one of the ‘Persons who visited Vietnam under the auspices of the Australian Forces Overseas Fund and Entertainers’ on the nominal roll website.19.Mr Wooding was also awarded the Vietnam Logistic and Support Medal (T28/73). Details of that medal appear at T29/74-75.20.Mr Wooding was awarded a certificate from the United States Military Assistance Command, Vietnam in respect of each of his two visits there, attesting to his contribution to the morale and welfare of the military forces in Vietnam (T48/49) [sic].’

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FINN J
The second letter referred to in para 12 warrants reference if only because it may have been the source of some confusion in this matter. “As you are aware, Entertainers in Vietnam who were accredited members of Australian Forces Overseas Fund (AFOF) are considered to be members of a philanthropic organisation and are covered by the instrument signed by the Honourable Ben Humphries, Minister of State for Veterans’ Affairs and are eligible for Veterans’ Entitlements Act 1986 (VEA) coverage.These personnel completed the accreditation process administered by the Army. As part of this process, they were allocated a service number, have a service record and were issued with approved identification cards. These people were permanent representatives accredited to accompany an Australian Defence Force (ADF) sponsor unit on a full time basis.Unaccredited entertainers may have been in Vietnam at the behest of the Defence Forces and may have had assisted with logistical support for Entertainers in Vietnam (Travel, etc). However, following a review by the Department of Defence, they confirmed that they were not ‘attached’ to the Forces and were not under the command of the ADF. Accordingly, these entertainers do not have VEA coverage.A number of these entertainers state that the tours were financed by the AFOF and state that their pay was handed to them by the Army acting as AFOF agents. However, this is does not prove that they were employees of the Army. Many of these entertainers have Certificates of Appreciation issued by AFOF. However, this does not indicate that they were members of an approved philanthropic organisation.As we have previously advised you if Mr Wooding or Mr Milburn-Lloyd are able to provide evidence that they completed the AFOF accreditation process, such as being allocated a service number or service record, or were issued with an approved identification card, then they may have a case for being considered an accredited member of a philanthropic organisation.”THE TRIBUNAL’S DECISION It is sufficient for present purposes if I set out in full the following paragraphs of the Tribunal’s reasons:“8.I was referred to a decision of Edmonds J in Iversen v Repatriation Commission [2006] FCA 942. This decision answered an appeal from a decision of Senior Member Kelly in Re Iversen & Repatriation Commission [2006] AATA 280. In her decision Senior Member Kelly rejected an argument to the effect that Mr Iversen (who also provided entertainment for troops serving in Vietnam under similar circumstances to Mr Wooding) should be treated as a full-time member of the Defence Force serving in an operational area.9.Senior Member Kelly noted that Mr Iversen rendered courageous and valuable service in performing for the troops in Vietnam; his service was recognised through a listing in the nominal roll of Vietnam veterans and through the awarding of a Logistics Support Medal; he was a member of a group of civilian entertainers who were, in part sponsored by the AFOF and that the AFOF is an approved philanthropic organisation. She nevertheless decided that Mr Iverson was not a representative of AFOF and consequently was not covered by the Ministerial Determination.10.On appeal Justice Edmonds rejected a submission that Mr Iversen had been a representative of AFOF:‘15.The applicant, in his written submissions, contended that “representatives” as it appears in the Determination should be given a meaning that protects those who were in fact in a war zone and thereby exposed to the risks and circumstances associated with that war. It was submitted that such “factual” emphasis on the meaning of representative would accord with the beneficial nature of the Act and the Determination made under it. But such a construction goes well beyond the natural and ordinary meaning of the word “representative” as exemplified in the dictionary meanings of the word upon which the applicant himself relies.16.In his oral submissions, the applicant articulated what is substantively, albeit not in the same terms, a similar argument, namely that if the applicant’s presence in the war zone is only explicable by reference to his participation in a concert tour co-sponsored by the AFOF and the Australian Army, then he can be a representative of the former. That might be so, but such co-sponsorship will not of itself make the applicant a representative of the co-sponsor. Indeed, as the respondent submits, even if the applicant had been an “AFOF sponsored” entertainer rather than an “Army sponsored” entertainer, being sponsored by an organisation cannot be equated with being a representative of that organisation.’11.I have carefully considered the statement of agreed facts. I have also considered a VRB decision of Milburn-Lloyd dated 30 August 2006. I have reached the view that the only way Mr Wooding could be entitled to benefits under the VE Act would be if his service in Vietnam could be considered to have been performed ‘as a representative’ of the AFOF.12.Point 9 of the statement of agreed facts indicates that the concert parties were ‘arranged and sponsored’ by the AFOF. However, as mentioned by Justice Edmond in Iversen, such sponsorship ‘cannot be equated with being a representative of that organisation’. In my view, the term ‘representative’ connotes an entitlement to act on behalf of another. Point 14 of the statement of agreed facts indicates that Mr Wooding does not recall being a ‘member of AFOF’. On the information before me, I have not been satisfied that Mr Wooding was a representative of that organisation. In these circumstances, Mr Wooding does not fall within the ambit of the 1987 Ministerial Direction. I have not been satisfied that Mr Wooding’s service, although courageous and valuable, satisfies the basic eligibility conditions for payment of a Disability Pension under the VE Act. The decision under review is affirmed.”THE APPLICATION

Ratio Decidendi

Legal Principle Established

Established by: FINN J

There was some controversy as well as to whether it could properly be said that the Tribunal actually made findings of fact at all. I am satisfied that on a fair reading of the member’s reasons, the agreed facts were the facts found. CONSIDERATION The starting point is, necessarily, with the principles of statutory interpretation. Of these, it was observed in the joint judgment in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408:“It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent”: emphasis added. The clear object of the Ministerial Determination was to extend to designated classes of person who were not members of the Defence Force the same entitlements they would have had as an actual member of the Force who was rendering continuous full-time service, for the purposes of the Veterans’ Entitlement Act, provided (for present purposes) three requirements were met. These were (i) the person provided welfare services to the Defence Force; (ii) in a prescribed operational area (here Vietnam); and (iii) as a representative of any one of six “approved philanthropic organisation[s]”. Those organisations were:(a) the Australian Red Cross Society;(b) the campaigners for Christ – Everyman’s Welfare Service;(c) the Salvation Army;(d) the Young Women’s Christian Association of Australia; and(e) the Young Men’s Christian Association of Australia; and(f) the Australian Forces Overseas Fund. While all of these conditions are required to be satisfied, it is, in my view, relatively clear that the first and second of them differ in their significance and burden from the third. They provide the reason why, as a matter of policy, a person who has satisfied those conditions should be considered as having a possibly legitimate claim to be put on the same footing as members of the Defence Force rendering continuous full-time service, for the purposes of the Veterans’ Entitlement Act.