Repatriation Commission v Spargo [2001] FCA 380

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Spargo [2001] FCA 380

VETERANS AFFAIRS – meaning of operational service – member of Defence Force allotted for duty in operational area, but injured en route and never actually served in that area – whether deemed to have rendered service in that area. Veterans' Entitlements Acts 1986 (Cth), s 6C. Repatriation Commission v Hawkins (1993) 45 FCR 205, considered. REPATRIATION COMMISSION v RAYMOND FRANKLIN SPARGO N 455 of 2000 WHITLAM J 4 APRIL 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 455 OF 2000

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER M D ALLEN AND REAR ADMIRAL A R HORTON

BETWEEN: REPATRIATION COMMISSION

APPLICANT

AND: RAYMOND FRANKLIN SPARGO

RESPONDENT

JUDGE: WHITLAM J

DATE OF ORDER: 4 APRIL 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal is allowed. 2. The decision of the Administrative Appeals Tribunal is set aside. 3. The case is remitted to the Administrative Appeals 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

NEW SOUTH WALES DISTRICT REGISTRY N 455 OF 2000

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER M D ALLEN AND REAR ADMIRAL A R HORTON

BETWEEN: REPATRIATION COMMISSION

APPLICANT

AND: RAYMOND FRANKLIN SPARGO

RESPONDENT

JUDGE: WHITLAM J

DATE: 4 APRIL 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") setting aside a decision made by a delegate of the applicant ("the Commission") to cancel a pension granted to the respondent under Part II of the Veterans' Entitlements Act 1986 (Cth) ("the Act"). The question of law raised on the appeal concerns the Tribunal's finding that the respondent rendered "operational service" within the meaning of s 6C of the Act. 2 The respondent was enlisted in the Navy on 8 January 1948. He became a member of the company of the aircraft carrier HMAS Sydney on 2 September 1950. HMAS Sydney was allotted for duty in Korea from 31 August 1951 to 22 February 1952. The respondent was serving in HMAS Sydney when she departed from Sydney for Korea on 31 August 1951. However, he was injured en route, and in Japan on 30 September 1951 (three days before HMAS Sydney commenced her first operational patrol off Korea) he was transferred to the British Navy vessel HMS Glory for passage to Australia. HMS Glory arrived in Fremantle on 17 October 1951, on which date the respondent was re-allotted from duty in Korea. On 8 January 1952 he was discharged from the Navy. 3 On 29 July 1996 the respondent made a claim for a pension under Part II of the Act. On 10 October 1996 the Commission's delegate granted him a pension with effect from 29 April 1996. The delegate found that the respondent was on operational service from 1 December 1950 to 1 January 1952. 4 Upon a review under s 31 of the Act, on 18 April 1998, another delegate of the Commission cancelled the payment of the pension with effect from 21 May 1998. This delegate found that, as the respondent did not serve within 100 nautical miles of the coast of Korea, he did not undertake operational service for the purposes of the Act. The respondent applied for a review of that decision. On 8 January 1999 the Veterans' Review Board ("the Board") affirmed the second delegate's decision. In its reasons for decision the Board said: "The Board felt considerable sympathy for Mr Spargo. There was no suggestion that he had acted improperly at any stage and his good faith in this matter is unquestioned. The fact that the nature of his RAN service in 1951 has been called into question over 45 years later is, to say the least, most unfortunate and, no doubt, quite distressing."