Farmer v Repatriation Commission (includes corrigendumdated 13 March 2002) [2002] FCA 199 (12 March 2002)

Last Updated: 14 March 2002

FEDERAL COURT OF AUSTRALIA

Farmer v Repatriation Commission [2002] FCA 199

JOHN FARMER v REPATRIATION COMMISSION

No Q 148 of 2001

SPENDER J

BRISBANE

12 MARCH 2002

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 148 OF 2001

BETWEEN:	JOHN FARMER APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	SPENDER J
DATE:	12 MARCH 2002
PLACE:	BRISBANE

CORRIGENDUM

In the Reasons for Judgment of His Honour Justice Spender delivered 12 March 2002 ([2002] FCA 199), on the first three pages replace 12 FEBRUARY 2002 with 12 MARCH 2002.

13 March 2002 Emma McGrath

Associate to Justice Spender

FEDERAL COURT OF AUSTRALIA

Farmer v Repatriation Commission [2002] FCA 199

Appeal pursuant to s 44 Administrative Appeals Tribunal Act 1975 (Cth) - whether applicant rendered qualifying service pursuant to s 7A Veterans' Entitlements Act 1986 (Cth) and was eligible for a Gold Card - no error of law demonstrated - applicant not entitled to challenge findings of fact made by the Administrative Appeals Tribunal

Administrative Appeals Tribunal Act 1975 (Cth), s 44

Veterans' Entitlements Act 1986 (Cth), s 7A

JOHN FARMER v REPATRIATION COMMISSION

No Q 148 of 2001

SPENDER J

BRISBANE

12 FEBRUARY 2002

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 148 OF 2001

BETWEEN:	JOHN FARMER APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	12 FEBRUARY 2002
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The appeal be dismissed, with costs.

2. A copy of the transcript of proceedings before Deputy President Breen of the Administrative Appeals Tribunal dated 10 December 1997 be provided to the applicant, with a copy of these reasons.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 148 OF 2001

BETWEEN:	JOHN FARMER APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	SPENDER J
DATE:	12 FEBRUARY 2002
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 This is an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act) from a decision of a Deputy President of the Administrative Appeals Tribunal (the Tribunal) given on 18 May 2001 in Brisbane, whereby the Tribunal affirmed a decision of the Repatriation Commission (the Commission) dated 26 August 1996, which determined that the applicant had not rendered qualifying service pursuant to s 7A of the Veterans' Entitlements Act 1986 (Cth) such as to render him eligible for a Gold Card.

2 An appeal pursuant to s 44 of the Act lies only on a question of law. Mr Farmer, who appeared for himself on the appeal, sought to challenge the correctness of the conclusion by the Tribunal affirming the decision that he did not have qualifying service. Mr Farmer contended that he had joined the army in 1942 at the age of 16 years. Even if Mr Farmer's contention is correct, the error in the Tribunal concluding to the contrary is not an error of law, and this Court has no jurisdiction to interfere with the decision of the Tribunal.

3 On 10 September 1996 the applicant made an application for qualifying service based upon his service in Japan and during the Cowra breakout. On 26 September that application was refused, the delegate of the Commission concluding that the service by Mr Farmer did not satisfy the requirements of s 7A(1)(a) of the Veterans' Entitlements Act. On 25 November 1996 Mr Farmer lodged a request for a review of that decision, and his application was again considered but refused on 5 February 1997 by a review officer of the Repatriation Commission. In the reasons for that determination, the reviewing officer noted:

"On 10 September 1996, Mr Farmer lodged a formal request to determine qualifying service. Included in the information supplied was the statement that he served in Japan between 1945 and 1948 and that in 1943 assisted in the control of the Cowra break out. A copy of his Certificate of Discharge stated that Mr Farmer enlisted in the Australian Imperial Force on 12 October 1944 and was discharged on 3 December 1947. Attached to that copy was a statement from the veteran stating `I hereby state that I wish to advise that I actually enlisted in 1942-not 1944 as shown on my certificate of Service'.

The veteran's Australian Military Forces documentation held at this office stated that Mr Farmer enlisted on 12 October 1944 and marched in for full-time duty on 16 October 1944. The document also recorded that he sailed from Sydney to Kune in Japan on 25 May 1946.

A thorough search of the documents failed to find any trace of service prior to enlistment on 12 October 1944 and an Application for Assistance for Tools of Trade completed and signed by the veteran on 9 November 1948 recorded that he enlisted at Eastwood on 12 October 1944.

4 Following that decision the applicant appealed to the Tribunal, and Deputy President Breen gave judgment in Brisbane on 18 May 2001. In the second paragraph of the Tribunal's reasons, Deputy President Breen said:

"The applicant, Mr Farmer, represented himself in this matter. The respondent Commission was represented by Mr J Stoner, Departmental Advocate. The matter was heard by me in Mackay on 10 December 1997 and was adjourned to allow the respondent to further investigate the applicant's records. Due to inaction by both parties, the matter remained in abeyance until November 2000 when a Directions Hearing was held. At this stage it was decided that the matter should resume with the respondent to tender some extra service documents. The applicant elected not to attend the later hearing and to allow submissions to be made in his absence. The matter resumed for hearing on 18 May 2001 in Brisbane."

5 Mr Farmer disputes the correctness of this account, contending that Deputy President Breen was not the person who took evidence in Mackay in 1997, but that it was "Deputy President Beddoe". Mr Beddoe is a Senior Member of the Tribunal, but the oral evidence taken from Mr Farmer and the hearing in Mackay on 10 December 1997 did in fact occur before Deputy President Breen. Those proceedings were taped. The original of the tape no longer exists, but a transcript of the proceedings was prepared by Auscript two days later on 12 December 1997. The transcript occupies some 35 pages, and its authenticity as a record of the hearing that occurred before Deputy President Breen with Mr Farmer appearing for himself and Mr Stoner for the Commission cannot be doubted. The error by Mr Farmer in believing that the proceedings were conducted by Mr Beddoe rather than by Deputy President Breen possibly arises from the circumstance which is referred to at page 10 of the transcript, which records Mr Farmer as saying:

"...I had previously asked on a telephone Tribunal to Senior Beddoe to give me the departure of the SS Westralia from Sydney, and the return of the Kanimbla in late '47 or early '48 and docking in Sydney, the same berth. And I have not had a reply to that ..."

And later at pages 13 to 14 an exchange is recorded between Deputy President Breen and Mr Farmer concerning a statement by Mr Farmer that Mr Beddoe was going to get the original of an Application for Assistance for Tools of Trade dated Tuesday 9 November 1948. Deputy President Breen asked:

"Well, what did he say as to why he was going to call for it?

MR FARMER: Well, he was going to study the inks.

THE D.PRESIDENT: Studying the inks and the pens.

MR FARMER: Yes, all that type of stuff. He is a pretty smart cookie. And further on that, I have applied, before I get on that. The date there is wrong on that - my birth date is 15 September 1926, and that it witnessed and signed by my mother, Elsie Julia Farmer. This might have been what made Senior Beddoe a bit suss about that."

6 The evidence before the Tribunal in every instance supported the finding that Mr Farmer enlisted in the army on 12 October 1944. The material included Mr Farmer's Service and Casualty Form, and the extract of his Discharge Certificate, the original of which the Court sighted, records the date of enlistment as 12 October 1944. The application by Mr Farmer in 1948 for assistance with gaining tools of trade as part of his repatriation is signed by Mr Farmer and records that his date of enlistment was 12 October 1944. The Mobilisation Attestation Form, which appears to have been signed by Mr Farmer in 1944, records his enlistment date as 12 October 1944 and states that there had been no previous service by the applicant in any branch of the armed services. The Attestation Form for Special Services lists Mr Farmer's enlistment date as 12 October 1944 and place of enlistment as Paddington. That form appears to have been signed by Mr Farmer. The Service and Casualty Forms of the soldiers whose service numbers were immediately above and below that of Mr Farmer were in evidence before the Tribunal, and each of those servicemen are shown to have enlisted at Paddington on 12 October 1944. The pay records of Mr Farmer similarly record the date of enlistment as 12 October 1944 and the first entry covers the pay period from 12 October 1944 to 2 November 1944. The original of the tools of trade folder, including the original of that application, were inspected by me, and that folder records that shortly after the application the original of the certificate of discharge was returned to Mr Farmer under "registered cover". Mr Farmer says that the Certificate of Honourable Discharge which he was given was destroyed in Western Australia many years ago, but that that document correctly recorded his enlistment as 1942. This missing document, no copy of which exists in any of the records in this case, would be at odds with every other record if it did in fact record an enlistment in 1942. The conclusion of the Tribunal was:

"The Tribunal is satisfied that the official documents correctly record the applicant's date of enlistment."

7 That finding was a finding for the Tribunal to make and, being a finding of fact, is not impeachable pursuant to the appeal to the Federal Court conferred by s 44 of the Act.

8 I think it important to note that the Tribunal stated:

"Although in accepting the historical records the Tribunal rejects the evidence of Mr Farmer, the Tribunal does not make a finding that Mr Farmer in any way intended to deceive or defraud the Department. It has been many years since these events, and time often clouds the memory. The fact that Mr Farmer has on occasions confused his date of discharge, sometimes saying it was in 1947 and other times in 1948, further suggests that this may be the case here. The Tribunal also accepts that, while it has found that Mr Farmer is incorrect in his recollection of events, it does not doubt that Mr Farmer is firmly of the view that he enlisted in 1942 and, in fact, that he completely believes that to be true. The Tribunal's findings are to the contrary of that belief."

9 It is to be noted that a further instance of faulty recollection is provided by Mr Farmer's contention that Mr Beddoe presided at the proceedings in Mackay in 1997 and not Deputy President Breen.

10 No error of law has been demonstrated in the conclusions by the Tribunal. In those circumstances, the appeal should be dismissed, with costs.

11 I will direct the provision of a transcript of the proceedings in the Administrative Appeals Tribunal before Deputy President Breen in Mackay on the afternoon of Wednesday 10 December 1997 be provided to the applicant with these reasons.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated: 12 March 2002

The Applicant appeared on his own behalf
Counsel for the Respondent:	Miss E. Ford
Solicitor for the Respondent:	Mr J. Bishop
Date of Hearing:	13 February 2002
Date of Judgment:	12 March 2002