High Court of Australia
Martin v. Commonwealth of Australia
and the Repatriation Commission
Case stated
Before Mason, Wilson, Brennan, Deane and Dawson JJ
Heard - 5 February 1987 - Canberra
Orders - 5 February 1987 - Canberra
Orders made conceding eligibility under the Veterans' Entitlements Act 1986
By a notice filed in the High Court on 6 May 1986 a case was stated to the High Court by Dawson J in the following terms:
Pursuant to Section 18 of the Judiciary Act 1903 the following Statement of Facts and Questions of Law are stated for the opinion of the Full Court of the High Court of Australia.
Statement of facts agreed by the parties
1. The Plaintiff in 1965 and at all material times was a member of the Naval Forces of the Commonwealth of Australia and served on duty during that period as a member of a Detachment of the Naval Forces being the crew of the Troop Carrier "HMAS Sydney".
2. Whilst he was so serving on duty on the "HMAS Sydney" it carried members of the Armed Forces of the Commonwealth of Australia together with arms, stores, equipment and supplies for the use of such Armed Forces to Vung Tau which was outside Australia and in Vietnam (Southern Zone).
3. Vietnam (Southern Zone) was a "special area" for the purposes of the Repatriation (Special Overseas Service) Act 1962 ("the S.O.S. Act") as prescribed by the Repatriation (Special Overseas Service) (Special Areas) Regulations, No.154 of 1965 because of a gazettal therein of a state of disturbance.
4. The operations referred to in paragraph 2 were directly related to the state of disturbance referred to in paragraph 3 hereof.
5. The firstnamed Defendant, had at all material times implemented a procedure which the Defendants contend and the Plaintiff denies was a procedure of allotment of members of the Armed Forces for "special duty" within the meaning of Section 3 of the S.O.S. Act, details whereof are set out in Schedule "A".
6. The Plaintiff has made application to the secondnamed Defendant for a pension under the S.O.S. Act.
7. The secondnamed Defendant has refused to consider the Plaintiff's application solely on the ground that it is contended that the Plaintiff was not a member of the Forces within the meaning of the S.O.S. Act because it is contended that he was not allotted for special duty, since no decision in accordance with the aforesaid procedure was made to allot him for such special duty.
In the circumstances the Full Court is asked the following question:
Was the Plaintiff a member of the Forces within the meaning of Section 3 of the Repatriation (Special Overseas Service) Act?
Schedule "A"
(i) During the relevant period the decision to allot members of the Navy for special duty was made solely by the Naval Board.
(ii) The Naval Board only considered whether a decision of this nature was to be made if a written submission requesting that such a decision be made was presented to the second naval member of the Naval Board. As a matter of practice such a submission was made, in the case of Naval personnel, by the personnel branch of the Department of the Navy.
(iii) The personnel branch of the Department of the Navy decided not to make such submissions to the Naval Board with respect to the crew of "HMAS Sydney" and the Naval Board did not receive any such submission and did not make a decision to allot the crew of "HMAS Sydney" for special duty.
(iv) If a decision to the contrary had been reached and a decision had been made to allot the Plaintiff for "special duty" as a member of the crew of "HMAS Sydney" the usual practice ensured that notification of the allotment would have been promulgated in the Australian Navy Orders. No such promulgation was made.
(v) Allotment procedures were in existence at the time of the Malayan and Korean conflicts in 1951 and were implemented up until the passing of the S.O.S. Act.
The Veterans' Entitlements Act 1986 commenced on 22 May 1986.
Mr Martin was represented by Mr BKC Thomson QC with Mr CB Thomson, instructed by Vaccaro & Associates
The Commission was represented by Mr AR Castan QC with Mr N Moshinsky, instructed by the Australian Government Solicitor.
Bruce Topperwien
The following is an edited transcript of the proceedings on 12 June 1987 -
Mr Castan QC: Your Honours, after the case stated was ordered last year remedial legislation came into effect which had the effect of, in substance, rendering the questions posed in the case stated and the issues between the parties, academic or hypothetical. The position is that the plaintiff had claimed an entitlement to claim a pension by reason of the fact that the plaintiff said he had been allotted for duty in Vietnam and the question that was raised in the case stated was whether, in the circumstances, he was properly to be categorised as a person who had been allotted in the relevant statutory sense.
The new legislation has had the effect of treating the plaintiff, undoubtedly, as entitled to apply for a pension and has the effect of abrogating any rights which he may or may not have had under the previous legislation and substituting, therefor, undoubted rights to apply for a pension under the new legislation.
In those circumstances, what is sought is liberty to amend the defence so as to raise the enactment of the new legislation and to concede, in effect, in those amendments the existence of the entitlement to apply for a pension under the new legislation. If that leave were granted then the defendants are prepared to concede to or agree to declarations in the form suggested in the proposed minutes which, I understand, have been supplied to the registry.
What is sought is that, by consent, the defendants be granted leave to amend the defence in accordance with the proposed amendments which have been made available to my learned friend and also were provided to the registry in anticipation. Then, in lieu of answers to the questions asked in the stated case that, by consent, there be a declaration that the plaintiff is entitled to have his application for a pension determined under the Veterans' Entitlements Act 1986, as if it had been made under that Act. Then a consent order that the defendants pay the plaintiff's costs.
I should briefly indicate that the proposed amendments to the defence would simply state that "The application for a pension which was originally lodged is in the class of applications for a pension that does come within the remedial legislation and that the defendant concedes that the plaintiff is therefore entitled under the new legislation to have the application determined".
MASON J. Mr Castan, we have looked at the proposed minutes of order and the Court is prepared to make orders in terms of the proposed minutes.
The Court will make orders in terms of the proposed minutes of order which I shall initial and place with the papers.