Marsh, T.J. v The Repatriation Commission [1986] FCA 300

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RESTRICTED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

) NEW SOUTH WALES DISTRICT REGISTRY ) No. G 47 of 1986

) GENERAL DIVISION )

ON APPEAL FROM THE VETERANS

APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN : THOMAS JOSEPH MARSH Applicant AND: THE REPATRIATION COMMISSION Respondent

DATE: 20 June 1986 EX TEMPORE REASONS FOR JUDGMENT

BURCHETT J. This is an appeal, brought under s. 44 of the

Administrative Appeals Tribunal Act 1975, from a decision of the

Administrative Appeals Tribunal. The Administrative Appeals Tribunal had/pumpoYted to review a purported decision of a delegate of the Repatriation Commission, Mr. R. Milligan, of 6 June 1985. Mr. Milligan had purported to review "a determination by a delegate of the Repatriation Commission on 19 December 1984 that (the present appellant) did not 'serve in a theatre of war'

as defined in s. 23 of the Repatriation Act" (see paragraph 1 of

the Statement of Reasons of Mr. Milligan, which is dated 6 June

1985).

Mr. Milligan expressed his determination in the

following terms:

"The (present appellant) did not 'serve in a

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2. theatre of war' as defined in s. 23 of the Repatriation Act, and 1s therefore not eligible for the grant of a service pension under the provisions of s. 84 of the Repatriation Act."

(It appears the reference to section 84 was in error, section 85 being intended.)

Prior to 19 December 1984 there had been an application by the present appellant for a-service pension. In relation to that application there was and is no dispute that he was at all relevant times permanently unemployable, and that he had served in the Royal Australian Air Force between February 1944 and April

1946.

The question whether he was entitled to a service pension turned on whether or not he had fulfilled' the qualification expressed in s. 85(2) by the words "has served in a