BETWEEN:
ERNEST WILLIAM GRAHAM
Applicant

AND:
REPATRIATION COMMISSION
Respondent

JUDGE:
SACKVILLE J
DATE:
5 FEBRUARY 1999
PLACE:
SYDNEY

THE COURT ORDERS THAT:

1. The time for the applicant to file and serve a notice of appeal from the decision of the Administrative Appeals Tribunal given on 2 July 1998 be extended until 5 February 1999.
2. The applicant be given leave to file in Court a notice of appeal in the form handed up by counsel for the applicant.
3. The decision of the Administrative Appeals Tribunal be set aside.
4. The whole matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law.
5. Subject to any proper objections, the Administrative Appeals Tribunal should hear such further evidence presented by the parties as is relevant to the matter to be determined.
6. The respondent pay the applicant's costs of and incidental to the application, including the application for extension of time.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

DISTRICT REGISTRY
NG 1017 OF 1998

BETWEEN:
ERNEST WILLIAM GRAHAM
Applicant

AND:
REPATRIATION COMMISSION
Respondent

JUDGE:
SACKVILLE J
DATE:
5 FEBRUARY 1999
PLACE:
SYDNEY

REASONS FOR JUDGMENT

1 The applicant seeks an order extending time to file and serve a notice of appeal from a decision of the Administrative Appeals Tribunal ("AAT"), given on 2 July 1998. The AAT affirmed a decision of the Repatriation Commission, made on 9 December 1996, which determined that the applicant was not eligible for a service pension, since he had not rendered "qualifying service" as defined by s 7A(1) of the Veterans' Entitlements Act 1986 (Cth) ("VE Act"). The applicant, who was unrepresented before the AAT, filed his application for extension of time on 28 September 1996. He prepared the application without the benefit of legal representation.
2 Since then, fortunately, the applicant has obtained legal representation. Mr Smith of counsel has appeared in these proceedings on his behalf. On 28 January 1999, Mr Smith filed written submissions in support of the application for an extension of time. Those submissions canvassed the substantive issues that the applicant wished to raise, should an extension of time be granted. The submissions also attached a notice of appeal for filing in the event of such an extension of time.
3 Mr Green, who appeared for the Commission, fairly took the position that if the applicant's substantive arguments had merit, an extension of time should be granted and that the Court should address the arguments directed to whether the decision of the AAT should be set aside.
4 It was common ground that the applicant had served on HMAS Tobruk during the period 2 July 1955 to 8 July 1955. This period of operational service was in the Malayan Strategic Reserve. The AAT rejected the applicant's claim, at least in part, because it formed the view that the applicant had not been "allotted for duty" in the relevant area and thus had not rendered "qualifying service" as that expression is defined in s 7A(1)(a)(iii) of the VE Act.
5 The definition of "allotted for duty" had been amended by Schedule 2 of the Veterans' Affairs Legislation Amendment Act 1990 (Cth) ("VALA Act"), subsequent to the decisions of this Court in Repatriation Commission v Doessel (1990) 95 ALR 704 (FC) and Repatriation Commission v Davis (1990) 94 ALR 621 (French J). These decisions held that the phrase "allotted for duty" (then contained in s 5(12) of the VE Act 1991 ) was to be determined by reference to the "ordinary meaning" of the words, so that any person who was posted for service in an operational area could be regarded as "allotted for duty" in that area. The amendments introduced by the VALA Act restricted the definition of "allotted for duty" to veterans who could produce a written instrument, issued by the Defence Force, stating that they, or their unit, had been allotted for duty in an operational area.
6 Subsequent to the enactment of the VALA Act, the Veterans' Entitlements Amendment Act (Cth) and the Veterans' Entitlements (Rewrite) Transition Act 1991 (Cth) ("Transition Act") were enacted. As a result, the definition of "allotted for duty" was included in s 5B(2) of the VE Act 1918 and was in the same form as the restricted definition introduced by the VALA Act.
7 In the present case, the AAT held that, as the applicant had lodged his application in 1996 (after the VALA Act and the Transition Act came into force), his claim was to be determined under the restrictive definition of "allotted for duty" contained in s 5B(2) of the VE Act. The AAT held that, since the applicant could not produce the required instrument, he was unable to satisfy the definition.
8 The principal argument put by Mr Smith in his written submissions was that the definition of "allotted for duty" in s 5B(2) of the VE Act did not apply to the applicant. This was said to be because the applicant had the benefit of a transitional provision now contained in s 93(1) of the VALA Act (as amended by Schedule 4 to the Transition Act). Section 93(1), in its current form, provides as follows:
"93(1) If:
(a) a person has made a claim under the Veterans' Entitlement 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 s 19 of the Veterans' Entitlements (Rewrite) Transition Act 1991 (as it relates to subsection 5B(2)) had not been made."
9 Mr Smith's submission was that the applicant had applied for and received benefits under the Defence Service Homes Act (Cth) ("DSH Act 1975 ") in 1959 and that his application under the DSH Act had been granted on the basis that he had been allotted for duty in an operational area. The DSH Act (then known as the War Service Homes Act), at the relevant time, defined "Australian soldier" in s 4(2) as including personnel serving in war-like operations in or in connection with Malaya after 28 June 1950, provided
"that person was allotted for duty in an operational area in connexion with those operations."

Eligibility was conditional upon an applicant satisfying the definition of "Australian soldier". In 1959, there was no definition of the term "allotted for duty". Thus, the question of whether a person was "allotted for duty" fell to be determined in accordance with the ordinary meaning of those words and not in conformity with a more restrictive definition such as that now found in s 5B(2) of the VE Act.
10 In the course of oral argument, Mr Green, on behalf of the Commission, accepted that the AAT had not adverted in its reasons to the terms of s 93(1) of the VALA Act. He also accepted that the Commission's representative had failed to appreciate the significance of s 93(1) for the decision the AAT was required to make and thus did not invite the AAT to make findings of fact relevant to that aspect of the case. It should be noted that the unrepresented applicant, who faced the extraordinarily difficult task of finding his way through complex transitional provisions contained in a series of enactments, had specifically referred to s 93(1) in his submissions to the AAT. Indeed, a copy of the relevant provisions was before the AAT. He argued, with considerable tenacity, that his entitlement under the DSH Act necessarily meant that, by virtue of transitional provisions in the legislation, he was entitled to a pension under the VE Act.
11 Mr Green accepted that the AAT had erred in law by failing to consider whether the applicant was relieved from satisfying the restrictive definition of "allotted for duty", by virtue of the transitional provisions in s 93(1) of the VALA Act. He also conceded that, although the AAT had not made any factual findings relevant to the application of s 93(1), there was material that might have led the AAT to conclude that the applicant had satisfied the terms of s 93(1). Of course, he made no concession that the AAT was bound to reach such a conclusion.
12 In these circumstances, Mr Green stated that the Commission would consent to the matter being remitted to the AAT, on the basis that the AAT should consider only the question whether the applicant had satisfied the terms of s 93(1) of the VALA Act. However, Mr Green also frankly said that he could not oppose a wider order, directing that the whole of the matter be remitted to the AAT to be heard and determined according to law. Mr Smith submitted that the latter was the appropriate course.
13 In my view, it is clearly appropriate that the whole matter be remitted to the AAT. The AAT will then be able to consider not only whether the applicant satisfies the terms of s 93(1) of the VALA Act, but also any alternative arguments that might be put by the applicant or on his behalf in support of his claim to a service pension. These will include any arguments the applicant wishes to put relating to the effect of the instrument issued under s 6D of the VE Act (extracted at p 110 of the Relevant Documents). In my view, the appropriate course is that the AAT should consider, subject to any proper objections, any further evidence that the parties wish to adduce that is relevant to the matter requiring determination: see Administrative Appeals Tribunal Act (Cth), s 44(5).
14 I should point out that the oral submissions of counsel revealed that there may be an unresolved question of construction relating to s 93(1)(b) of the VALA Act. Mr Smith contended that the applicant satisfies s 93(1) of the VALA Act by reason of the fact that his application under the DSH Act had been granted. Under the terms of the DSH Act, the applicant could not have succeeded unless he were found to have been "allotted for duty in an operational area" in 1955. It did not matter whether the determination under the DSH Act was correct or not; even if the determination were incorrect, the application was "granted on the basis that the [applicant] was allotted for duty in an operational area". For his part, Mr Green suggested that the grant of the application under the DSH Act was not determinative of whether the applicant satisfied the terms of s 93(1). The question was whether, in truth, the applicant had been "allotted for duty in an operational area" and the answer to this question could not be foreclosed by any determination made under the DSH Act. Neither party invited me to decide this question of construction, in the absence of findings of fact relating to the circumstances in which the application served in or near Malaya in 1955 and to the basis on which his application under the DSH Act succeeded.
15 It follows from what I have said that the time for the filing of the appeal should be extended. On the appeal, the decision of the AAT should be set aside and the whole matter should be remitted for hearing and determination according to law. The AAT should receive any further relevant evidence on which the parties wish to rely.
16 The final issue is costs. In my view, the Commission should pay the applicant's costs. The applicant specifically adverted to the significance of s 93(1) of the VALA Act in his submissions to the AAT. For entirely understandable reasons, he was not able to develop his submissions in the way a skilled lawyer might have done. Nonetheless, it should have been apparent to the Commission's representative that s 93(1) of the VALA Act required consideration by the AAT if it were to address the applicant's case fully.
17 It is not the function of this Court to make a costs order designed to express disapproval of the manner in which the AAT proceedings were conducted. However, the course of the proceedings demonstrates that it should have been apparent to the Commission from the documents prepared by the applicant to support his application for an extension of time, that the proposed appeal raised the issue of whether the AAT erred by failing to consider the significance of s 93(1) of the VALA Act. The costs of the litigation would have been avoided if the Commission had adopted at that stage the stance it ultimately took at the hearing.
18 The orders that should be made are as follows:
1. Extend the time for the applicant to file and serve a notice of appeal from the decision of the AAT given on 2 July 1998 until 5 February 1999.
2. Give leave to the applicant to file in Court a notice of appeal in the form handed up by counsel for the applicant.
3. Set aside the decision of the AAT.
4. Remit the whole matter to the AAT to be heard and determined according to law.
5. Direct that, subject to any proper objections, the AAT should hear such further evidence presented by the parties as is relevant to the matter to be determined.
6. Order the Commission to pay the applicant's costs of and incidental to the application, including the application for extension of time.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:
Dated: 5 February 1999.

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BETWEEN:	ERNEST WILLIAM GRAHAM Applicant
AND:	REPATRIATION COMMISSION Respondent