Graham v Repatriation Commission [2001] FCA 422

FEDERAL COURT OF AUSTRALIA

Graham v Repatriation Commission [2001] FCA 422

veteraNs affairs – claim for service pension – meaning of allotted for duty – circumstances in which repealed definition will apply by virtue of transitional provision Veterans' Affairs Legislation Amendment Act 1990 (Cth), s 93(1) ERNEST WILLIAM GRAHAM v REPATRIATION COMMISSION N 517 OF 2000 WHITLAM J 12 APRIL 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 517 OF 2000

On appeal from the Veterans' Appeals Division of the Administrative Appeals Tribunal

BETWEEN: ERNEST WILLIAM GRAHAM

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: WHITLAM J

DATE OF ORDER: 12 APRIL 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The decision of the Administrative Appeals Tribunal given on 1 May 2000 is affirmed. 2. The appeal is dismissed with costs. 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 517 OF 2000

On appeal from the Veterans' Appeals Division of the Administrative Appeals Tribunal

BETWEEN: ERNEST WILLIAM GRAHAM

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: WHITLAM J

DATE: 12 APRIL 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") affirming a determination that the applicant has not rendered qualifying service for the purposes of Part III of the Veterans' Entitlements Act 1986 ("the Act"). 2 The applicant served in the Navy between 8 January 1948 and 7 January 1960. He lodged a claim for a service pension under Part III of the Act on 20 September 1996. A delegate of the respondent ("the Commission") decided on 10 October 1996 that the applicant was not eligible for a service pension because he had not rendered "qualifying service" within the meaning of s 7A of the Act. The applicant requested a review of his claim for qualifying service, and on 9 December 1996 another delegate of the Commission affirmed the earlier decision. 3 On 18 December 1996 the applicant lodged an application for review with the Tribunal, which affirmed the second delegate's decision on 2 July 1998. However, that decision of the Tribunal was set aside by Sackville J on 5 February 1999. The Tribunal heard the case again and, on 1 May 2000, affirmed the decision given on 9 December 1996. 4 The question of law raised on this appeal concerns the effect of s 93(1) of the Veterans' Affairs Legislation Amendment Act 1990 ("the VALA Act"). Section 93 of the VALA Act provides: "93. (1) If: (a) a person has made a claim under the Veterans' Entitlements Act 1986 or an application under the Defence Service Homes Act 1918; and (b) the claim or application was granted on or before 8 November 1990 on the basis that the person was allotted for duty in an operational area or was a member of a unit of the Defence Force that was allotted for duty in an operational area; subsection 5B(2) of the Veterans' Entitlements Act 1986 applies in relation to the person as if the amendments made by section 19 of the Veterans' Entitlements (Rewrite) Transition Act 1991 (as it relates to subsection 5B(2)) had not been made. (2) If: (a) a person has made a claim under the Veterans' Entitlements Act 1986 or an application under the Defence Service Homes Act 1918 on or before 8 November 1990; and (b) the claim or application has not been finally determined before 9 November 1990; the claim or application is to be determined as if the amendments made by section 19 of the Veterans Entitlements (Rewrite) Transition Act 1991 (as it relates to subsection 5B(2)) had not been made." [Emphasis added]