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No.18 September 2008

Kaluza v Repatriation Commission

[2008] FCA 1365

COURT Federal Court, Sydney
JUDGE Branson J
DATE OF DECISION 9 September 2008
DECISION Appeal allowed, decision of Tribunal set aside and remitted. 
ISSUES extent of operational service – whether veteran taken to be allotted for duty in an operational area during whole of return flight from Vietnam – whether performing duties not associated with a continuing journey

Facts

Mr Kaluza served in the Royal Australian Air Force as an aircraft technician, and participated in flights to Vietnam.  Mr Kaluza made an unsuccessful claim to the Repatriation Commission (“the Commission”) for PTSD, alcohol dependence and hypertensive cardiovascular disease. The decision was affirmed on review by the Veterans’ Review Board (VRB).  Mr Kaluza sought further review by the Administrative Appeals Tribunal (Tribunal). The Tribunal varied the decision under review to a finding that Mr Kaluza suffered from anxiety disorder, alcohol abuse, and hypertension but affirmed the decision none of the conditions claimed were war-caused.  Mr Kaluza appealed that decision of the Tribunal to the Federal Court.

The Tribunal’s reasoning

A key issue before the Tribunal concerned Mr Kaluza’s operational service.  Before the Tribunal, the Commission held that Mr Kaluza rendered operational service on two trips to Vietnam, one in 1969 and another in 1970.  Mr Kaluza claimed he had rendered operational service on four to six trips between 1968 and 1971.

The relevant instrument of allotment made under s5B(2) of the VEA was that made by the Minister for Defence, Industry, Science and Personnel on23 December 1997, which provided that members of Nos 36 and 37 Squadron Richmond were taken to have been allotted for duty during the period determined according to paragraphs 1 and 2 in Schedule B of the instrument. Those paragraphs provided the start and end dates of “allotment”, and provided that the allotment commenced on the day the person left the last port of call in Australia if the person was in Australia when they commenced the journey (as was the case with Mr Kaluza), and the allotment ended when the person arrived at the first port of call in Australia on return from Vietnam unless immediately after the person left Vietnam, the person journeyed to a place outside Australia to perform duty not associated with a continuing journey to Australia. In which case, the allotment ceased on the day the person arrived at that place.

The Tribunal considered the evidence of Mr Kaluza and two reports of Air Commodore Brennan of Writeway Research Services.  The Tribunal concluded that Mr Kaluza’s recollections were not reliable and preferred the evidence of Air Commodore Brennan, who had found that there was no independent evidence of any trips other than the two trips recorded in RAAF records, and which the Commission had conceded were operational service.

In relation to the first of those trips, the Tribunal found that Mr Kaluza’s allotment ceased (and thus his operational service ceased) when he arrived at Butterworth. It said:

… after Mr Kaluza left Vietnam on 22 February 1969, he arrived in Butterworth. We did not have any evidence to satisfy us that he performed duty there associated with a continuing journey to Australia. He then travelled from Butterworth to Pearce on 24 February 1969, but he had arrived at Butterworth on 22 February 1969, and hence his journey had ended on that day as far as operational service went. …

Grounds of appeal

Mr Kaluza appealed to the Federal Court from the decision of the Tribunal on two grounds:

The Court’s Consideration

First ground – had the Tribunal erred by finding operational service was precluded if the dates of that service were not established or not confirmed by service records?

Justice Branson did not consider that the Tribunal had proceeded on the basis that it was precluded from finding that Mr Kaluza had operational service if the specific dates of that service were not established. Her Honour noted that the Tribunal had ultimately preferred to rely on the records, as researched by Air Commodore Brennan, rather than Mr Kaluza ’s recollection.  As this was a finding of fact it could not raise an error of law. It was open for the AAT to find that he had rendered operational service only on the two trips for which RAAF records existed.Rounded Rectangle: Port-to-port eligibility  Port-to-port provisions are found only in s 6C(3) and 6D(3) of the VEA. They extend the operational service of a person who has served in an operational area and who was allotted for duty or was a member of a unit that was allotted for duty in that area.  Generally, those provisions operate to extend a person’s operational service from the last port of call when leaving Australia to the first port of call on return to Australia after having served in the operational area.   However, if the person was outside Australia when the journey to the operational area commenced, or the person ceased to be allotted for duty in the operational area, or was assigned for duty in another area outside Australia after serving in the operational area, operational service will begin or end in that other area rather than the last or first port of call in Australia.   Port-to-port eligibility does not apply to warlike and non-warlike service. The relevant instruments must be examined to identify the extent of a person’s operational service.

Second ground – had the Tribunal erred by finding operational service ceased if there was no evidence as to whether Mr Kaluza performed duties associated with a continuing journey?

Justice Branson considered that the Tribunal had erred in this aspect of the appeal by misconstruing schedule B of the instrument of allotment. Her Honour held that:

The plain intention of Schedule B of the Instrument is … that a person sent from Australia on a mission to Vietnam is to be regarded as being allotted for duty in Vietnam during the whole of the period of the journey to and from Australia – unless the person was diverted to another mission immediately after leaving Vietnam. For this reason the period for which the person is taken to have been allotted for duty in Vietnam commences from the date of the last port of call in Australia (paragraph 1(a)) and ends on the day when the person arrives at the first port of call in Australia (paragraph 2(b)) unless, immediately after leaving Vietnam, the person travelled to a place other than Australia for the purpose of performing duties not associated with a continuing journey to Australia (paragraph 2(a)).

Her Honour rejected the Commission’s argument that duty in the operation area comes to an end if the person leaves Vietnam to a place outside Australia, unless there is evidence that, at that place, the person performed duties associated with a continuing journey to Australia.

Formal decision

Justice Branson considered that the Tribunal did not give consideration to the whole of the period during which Mr Kaluza is to be taken to have been allotted for duty in an operational area. As such, her Honour set aside the decision of the Tribunal and remitted the matter.

Editorial Note

The Court was not primarily interpreting section 6C(3), which extends ‘operational service’ to trips to and from the operational area, but was interpreting an instrument that determined the beginning and ending of ‘allotment for duty’. While both the instrument and s6C(3) have ‘port-to-port’ provisions, they are for different purposes and are not identical. If Mr Kaluza’s allotment had ended at Butterworth, s6C(3)(c) would have applied, not 6C(3)(d) or (e).

 

All Practice Notes