Contents Bill Rolfe appointed Repatriation Commissioner 2

Formal decision

In para [43] of her reasons in this case, Deputy President Forgie has usefully summarised the matters to which a decision-maker must have regard in determining whether a person has rendered ‘continuous full-time service outside Australia’ for the purpose of determining whether a person rendered operational service in World War 2. Setting out the matters in this form provides a useful guide or check-list for both advocates and decision-makers.

Tamberlin, Nicholson and Tracey JJ

[2007] FCAFC 36
22 March 2007

Special rate – nature of remunerative work – fact finding by Federal Court

The facts of this case were set out in (2006) 22 Verbosity 62. The issues in this case were:

1. 
   the interpretation of s 24(1)(c), in particular the phrase ‘prevented from continuing to undertake the remunerative work that the veteran was undertaking’; and
   
2. 
   the power of the Court to make findings of fact and finally determine the matter.
   

With respect to the second issue, the Full Court found that the primary Judge had made an error of law when finding facts. The Full Court found the error of law occurred by the primary Judge’s characterising the types of remunerative work that the veteran had engaged in inconsistently with the characterisation given by the Tribunal. The Full Court said:

[18] His Honour’s approach and finding as to ‘remunerative work’ within s 24(1)(c) was different to that of the Tribunal because he characterised the work as general labouring duties involving unskilled work, process work and general driving duties excluding fork lift driving. Adopting a different approach which we have found to be incorrect, the Tribunal made a finding that the veteran could also use a fork lift if the truck he was driving were equipped with lifting devices. In our view, there is an inconsistency between the actual finding made by his Honour and that made by the Tribunal. Section 44(7) provides that the Court may make findings of fact on an appeal to the Federal Court if the findings of fact are not inconsistent with findings of fact made by the Tribunal. In these circumstances, it is appropriate that there should be a further investigation by the Tribunal as to whether, having regard to the types of work that the veteran was undertaking as correctly interpreted, the war-caused injury alone prevented him from engaging in the work which he previously undertaking.

Section 44(7) of the Administrative Appeals Tribunal Act, 1974, provides as follows:

(7) If a party to a proceeding before the Tribunal appeals to the Federal Court of Australia under subsection (1), the Court may make findings of fact if:

(a) the findings of fact are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as the result of an error of law); and

(b) it appears to the Court that it is convenient for the Court to make the findings of fact, having regard to:

(i) the extent (if any) to which it is necessary for facts to be found; and

(ii) the means by which those facts might be established; and

(iii) the expeditious and efficient resolution of the whole of the matter to which the proceeding before the Tribunal relates; and

(iv) the relative expense to the parties of the Court, rather than the Tribunal, making the findings of fact; and

(v) the relative delay to the parties of the Court, rather than the Tribunal, making the findings of fact; and

(vi) whether any of the parties considers that it is appropriate for the Court, rather than the Tribunal, to make the findings of fact; and

(vii) such other matters (if any) as the Court considers relevant.

What this case means

Finn J

Mr Wooding was a member of concert party entertaining Australian forces in Vietnam as a member of the South Australian Concert Party. He presented concerts for the troops on two occasions in 1969 and 1970.

The South Australian Concert Parties were ‘arranged’ and ‘sponsored’ by the Australian Forces Overseas Fund (AFOF). AFOF was established on 26 January 1966 and tasked with coordinating a program for the provision of amenities and concert parties for troops serving in the South East Asia Region. While initially established in NSW, it soon became a national organisation on the establishment of the RSL National Council. To assist in the management and coordination of the concert parties, the Minister for Defence established The Forces Advisory Committee on Entertainment (FACE) in 1966 as a joint venture involving Defence, the RSL, and the Australian Broadcasting Commission. FACE acted as a planning committee to organise entertainment for Australian forces in Vietnam, thus removing any direct Ministerial involvement with the music industry. AFOF had accredited members who had completed an accreditation process administered by the Army. They were allotted a service number, have a service record and were issued with approved identification cards.

There was no evidence that Mr Wooding was formally attached to the Defence Force; he did not recall being a ‘member’ of AFOF; and did not recall undergoing an ‘accreditation process’. As part of the preparations for the tours, he underwent some training in basic military matters, including weapons handling and firing. There was no evidence that he was allocated with a service number or had service record. He was provided with a ‘military identification card’, which he returned to the officer in charge of the concert party on completion of the tour. He was paid $33 per week, which was given to him by Army officials. He also received a military payment certificate.