Whiteman, P R v Secretary, Department of Veterans Affairs [1996] FCA 845

CATCHWORDS ADMINISTRATIVE LAW - REVIEW OF ADMINISTRATIVE ACTION - Defence Service Homes Act 1918 (Cth), s 4AAA - JURISDICTION - whether Secretary has power to go beyond the military's stated reason for discharge to determine eligibility ADMINISTRATIVE LAW - REVIEW OF ADMINISTRATIVE ACTION - Defence Service Homes Act 1918 (Cth), s 4AAA - STATUTORY INTERPRETATION - whether "incapacity to perform duties" means incapacity to perform any military duty at all

Defence Act 1903 (Cth): s 44 Defence Force Retirement & Death Benefits Act 1973 (Cth) Defence Service Homes Act 1918 (Cth): s 4AAA Veterans Entitlements Act 1986 (Cth)

Defence Force Retirement & Death Benefits Authority v Britt (1984) 57 ALR 199 Graham v Repatriation Commission (Administrative Appeals Tribunal, Handley, 7 March 1996) Gransbury v Repatriation Commission (Administrative Appeals Tribunal, Purcell, Hancock, Davies, 11 March 1993) Re Medcalf and Department of Veterans' Affairs (1991) 23 ALD 502 Repatriation Commission v Hawkins (1993) 117 ALR 225 Sillitoe v Department of Veterans Affairs (Administrative Appeals Tribunal, Purvis J, 21 November 1990) Starcevich v Repatriation Commission (1987) 18 FCR 221 Trusty v Repatriation Commission (Administrative Appeals Tribunal, McMahon, 5 May 1993) PAUL RAYMOND WHITEMAN v. SECRETARY, DEPARTMENT OF VETERANS AFFAIRS NG 752 of 1995 CORAM: MADGWICK J PLACE: SYDNEY DATE: 17 SEPTEMBER 1996

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. NG 752 of 1995 BETWEEN PAUL RAYMOND WHITEMAN Applicant AND THE SECRETARY, DEPARTMENT OF VETERAN'S AFFAIRS Respondent CORAM: MADGWICK J PLACE: SYDNEY DATE: 17 SEPTEMBER 1996 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The decision of the Tribunal be set aside, and the matter be remitted to the respondent for further consideration in accordance with the direction that the applicant is a "regular serviceman" within s 4AAA of the Defence Service Homes Act 1918 (Cth). 3. The cross-appeal be dismissed. 4. The respondent is to pay the applicant's costs of the appeal and cross-appeal.