FEDERAL COURT OF AUSTRALIA

Roper v Repatriation Commission [2008] FCA 1610

VETERANS’ ENTITLEMENTS – pension – death of veteran – operational service – two flights outside the Australian Territorial zone – whether full-time continuous service outside Australia – essential character of veteran’s service

Veterans’ Entitlements Act 1986 (Cth) ss 6A, 120

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Repatriation Commission v Kohn (1989) 87 ALR 511 applied

Repatriation Commission v Ahrenfield (1991) 29 FCR 556 cited

Proctor v Repatriation Commission (1999) 54 ALD 343 cited

Roscoe v Repatriation Commission [2003] FCA 1568 cited

TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 cited

Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 applied

Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 cited

Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 cited

Comcare v Etheridge (2006) 149 FCR 522 cited

Commissioner of Taxation v Dixon (2006) 155 FCR 101 cited

Hussain v Minister for Foreign Affairs (2008) 248 ALR 456 cited

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited

Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 cited

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 cited

Director-General of Social Services v Chaney (1980) 31 ALR 571 cited

WAKN v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 40 AAR 223 cited

CORAL SYLVIA ROPER v REPATRIATION COMMISSION

VID 285 of 2007

TRACEY J

30 OCTOBER 2008

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     The appellant’s late husband, Mr David Roper, served in the Royal Australian Air Force during World War II.  The appellant (“Mrs Roper”) applied to the respondent, the Repatriation Commission (“the Commission”), for a pension pursuant to the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”). Mrs Roper’s application was unsuccessful.  Mrs Roper appealed unsuccessfully to the Veterans’ Review Board.  She then appealed to the Administrative Appeals Tribunal (“the Tribunal”).  A hearing was held to determine the preliminary issue of whether Mr Roper had rendered “operational service” within the meaning of the VE Act.  The Tribunal found that Mr Roper had not rendered “operational service”.  Mrs Roper purports to appeal from the Tribunal’s decision to this Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).

2                     The Commission objected to the competency of the appeal on the ground that Mrs Roper had failed to identify any question of law in her notice of appeal.  Mrs Roper responded by seeking leave to file an amended notice of appeal which, it was contended, had overcome any deficiency in the original notice.  Leave was granted.  Although the Commission did not oppose the granting of leave it maintained that, in its amended form, the notice of appeal still failed to identify any question of law.  In the alternative the Commission argued that the Tribunal’s decision was not, in any event, affected by legal error.

Procedural background

3                     On 29 October 2001 Mrs Roper lodged a claim with the Commission for a pension pursuant to the VE Acton the basis that the death of her husband, on 3 February 2001, was war-caused.  On 4 January 2002 the Commission determined that the death of Mr Roper was not war-caused.  The Veterans’ Review Board affirmed the Commission’s decision on 26 September 2005.  On 3 November 2005 Mrs Roper applied to the Tribunal for a merits review of the Commission’s decision. 

4                     The Tribunal held a hearing to determine the preliminary issue of whether the veteran had rendered “operational service” within the meaning of s 6A(1) the VE Act.  If Mr Roper had rendered operational service, Mrs Roper’s application for a pension would be determined according to the more favourable standard of proof specified in ss 120(1) and (3), rather than that which would apply if Mr Roper had not rendered operational service (see s 120(4)).  The Tribunal decided that Mr Roper did not render operational service and, therefore, the issues before it must be decided according to the standard of proof specified in s 120(4) of the VE Act. It is this decision that Mrs Roper now seeks to challenge.  

Background

5                     Mr Roper was born on 8 February 1926.  He served with the Royal Australian Air Force from 21 April 1944 until 24 October 1945.  His RAAF postings were all within Australia.  On 11 April 1945 and 23 April 1945, as part of his training with the No. 7 Operational Training Unit at Tocumwal, Mr Roper was an air gunner on a B-24 Liberator (a long range American bomber) which flew to or towards Middleton Reef.  These two flights took Mr Roper outside the Australian Territorial Zone.  

6                     The Tribunal had to determine whether, in flying to or towards Middleton Reef, Mr Roper had rendered operational service.

The legislation

7                     Pursuant to s 13(1)(a) and (c) of the VE Act, where the death of a veteran is war‑caused, the Commonwealth is, subject to the VE Act, liable to pay pensions by way of compensation to the dependants of that veteran in accordance with the VE Act.  A claim for a pension is made pursuant to s 14.  Under s 19, the Commission has the primary responsibility for determining a claim. 

8                     Mr Roper served in World War II as a member of the Defence Force.  The definition of operational service in s 6A of the VE Act therefore applies:

“6A  Operational service—world wars

(1)       Subject to subsection (3), a person referred to in column 2 of an item in the following table is taken to have been rendering operational service during any period during which the person was rendering continuous full‑time service of a kind referred to in column 3 of that item.

9                     Mr Roper did not serve in the Northern Territory.  As a result only paragraphs (a), (c) and (d) of Item 1 of s 6A(1) were of potential relevance.

10                  The expression “continuous full-time service” is defined in s 5C of the Act.  As Mr Roper was a member of the RAAF, it means “service in the Air Force of the Commonwealth of the kind known as continuous full-time air force service.” 

The Tribunal’s decision

11                  The Tribunal commenced its reasoning with an analysis of a number of decisions of this Court: Repatriation Commission v Kohn (1989)87 ALR 511, Repatriation Commission v Ahrenfield (1991) 29 FCR 556, Proctor v Repatriation Commission (1999) 54 ALD 343 and Roscoe v Repatriation Commission [2003] FCA 1568. Having considered these authorities, the Tribunal set out (at [43]) the principles which it considered should guide it in making a decision:

“1.       the nature of the veteran’s service overall;

  2.       the essential character of the veteran’s service during the period spent outside Australia when that essential character is determined by reference to matters such as:

(1)        the period of time for which the veteran is outside Australia;

(2)        the purpose for which the veteran was outside Australia;

(3)        events that occurred during the period in which the veteran was outside Australia including enemy activity, or likelihood of, enemy activity in the relevant area;

(4)        the veteran’s activities during the period outside Australia; and

(5)        the veteran’s activities both before and after the period of service outside Australia; and

3.         whether, having regard to its conclusions on the first two matters, the veteran’s service in the particular period can be seen to be treated as operational service.”

12                  The Tribunal applied those principles to Mr Roper’s service as follows:

“44. Mr Roper flew beyond Australia’s shoreline on eight occasions. Two of his flights took him beyond Australia’s territorial limits however they are defined. They did so on 11 and 23 April 1945 with the flights taking 12 hours and 9 hours 35 minutes respectively. In light of both the length of the Liberator course Mr Roper was attending in the period from 20 February 1945 and 14 May 1945 and Mr Stephen Roper’s evidence that his father was on “an active patrol albeit part of a broad familiarisation process with the new aircraft prior to overseas posting”, I am satisfied that the flights were taken as part of training. Also on the basis of Mr Stephen Roper’s evidence of what his father had told him, I find that the training was in preparation for his being posted overseas. That posting did not eventuate before Mr Roper was discharged from the RAAF. The aircrew were expected to, and no doubt did, undertake surveillance in relation to, for example, unidentified shipping. Certainly, activities such as surveillance might well have had relevance to operations beyond their relevance to the aircrew’s training. That they might well have had a dual purpose, does not detract from the fact that the flights were for the purpose of training aircrew and familiarising them with the Liberator.” (Emphasis in original.) (Footnote omitted.)

13                  The Tribunal was satisfied, on the balance of probabilities, that there were no enemy submarines in the waters off the east coast of Australia and that the risk that Mr Roper would have been exposed to enemy contact during the two flights was low.  It accepted that, during these flights, bombs were dropped into the sea and the aircraft’s machine gun was fired.  The Tribunal noted that the flights on 11 and 23 April 1945 were the only occasions on which Mr Roper’s duties took him outside Australia.

14                  The Tribunal concluded that:  

“47. Having regard to all of these matters, I am satisfied that the essential character of Mr Roper’s service during the periods he was outside Australia was one of training and familiarisation with the Liberator. It was not one of his being on operational service of a kind referred to in Item 1(a) or (b). That is to say, their essential character was not that of continuous full-time service outside Australia during World War II or service in the relevant geographical areas in the Northern Territory and at the times specified in Item 1(b). Therefore, Mr Roper did not have operational service and Mrs Roper must establish her claim to the reasonable satisfaction of the Tribunal rather than the more liberal reasonable hypothesis test.”

The reference to paragraph 1(b) is puzzling given that the Tribunal had earlier (at [25]) held that the paragraph had no application to Mr Roper. No reference is made to paragraphs (c) or (d) which the Tribunal had considered to be of potential relevance. It does not, however, appear that any reliance was placed on these paragraphs by Mrs Roper.

Appeal to this Court

15                  The amended notice of appeal identified five purported questions of law.  There were five matching grounds of appeal.  The Commission’s objection to the competency of the appeal makes it necessary to set out the questions and grounds in full.  They read:

“2.       THE QUESTIONS OF LAW raised on the appeal are:

2.1              Whether on the facts as found by the Tribunal it was open to the Tribunal to arrive at the conclusion that the Applicant’s late husband (“Mr Roper”) did not render operational service;

2.4              Whether it was open to the Tribunal to arrive at the conclusion that the essential character of Mr Roper’s service was not that of continuous full-time service outside Australia during World War II within the meaning of s.6A Item 1(a) of the VE Act;

2.13          whether on the findings of fact made by the Tribunal the finding that the essential character of the service rendered by Mr Roper on 11 April 1945 and 22 April 1945 was training and familiarisation with the Liberator precluded the service being operational service within s.6A Item 1(a) of the VE Act;

2.14          On the findings of fact made by the Tribunal in asking itself whether the service was for the purpose of training and familiarisation with the Liberator the Tribunal asked itself the correct question;

2.15          Whether on the correct application of s6A Item 1(a) of the VE Act to the facts as found the service of Mr Roper on 11 April 1945 and 22 April 1945 was operational service.

….    

4.         GROUNDS

            The grounds of the Appeal are as follows: 

4.1              The reasoning of the Tribunal underlying the conclusions that Mr Roper did not have operational service is inconsistent with s.6A Item 1(a) of the VE Act properly construed;

4.2              On proper construction of s.6A Item 1(a) of the VE Act, the Tribunal erred in the description of principles to be considered [43] in dealing with the question of whether a member of the Defence Force has continuous full-time service outside Australia during World War II;

4.5       The Tribunal erred in law in concluding that the essential character of Mr Roper’s service during the periods he was outside Australia was one of training and familiarisation with the Liberator;

4.6       The Tribunal erred in law in failing to ask the question as to whether the essential character of Mr Roper’s service on 11 April and 23 April 1945 was on each occasion service inside or outside Australia;

4.7       The Tribunal erred in law in identifying and applying the period of time for which Mr Roper was outside Australia as a principle relevant to the determination of the essential character of Mr Roper’s service.”   

[The non-sequential numbering results from the amendments to the original notice.]

16                  The references to “22 April 1945” appear to be errors.  They should be read as “23 April 1945”, the date of Mr Roper’s second flight to or towards Middleton Reef.

Competency of the Appeal

17                  Section 44(1) of the AAT Act provides for a right of appeal from the Tribunal “on a question of law”.  Order 53 r 3(2)(b) of the Federal Court Rules requires the notice of appeal to state “the question or questions of law to be raised on the appeal.”

18                  In TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178 Gummow J held that the existence of a question of law was not merely a qualifying condition to ground an appeal under s 44, “but also the subject matter of the appeal itself …” (Emphasis added.)

19                  It is, therefore, essential, in appeals brought under s 44 of the AAT Act, that a question or questions of law be identified.  If the notice of appeal fails to disclose a question of law the necessary subject matter of the appeal is lacking.  The Court has repeatedly emphasised the need for pure questions of law to be identified and for them to appear in the notice of appeal in order for the Court to be able to entertain an appeal: see, for example, Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at 324-325; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 at 300-302; Comcare v Etheridge (2006) 149 FCR 522 at 526-527; Commissioner of Taxation v Dixon (2006) 155 FCR 101 at 104-106; Hussain v Minister for Foreign Affairs (2008) 248 ALR 456 at 465-468.  In Birdseye Branson and Stone JJ held (at 325) that:

“… O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law.  It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal.” (Emphasis added.)

Paragraphs 2.1 and 2.4 of the Amended Notice of Appeal

20                  Questions 2.1 and 2.4 are directed to the Tribunal’s finding of fact that Mr Roper had not rendered operational service during World War II because, although he was a member of the Defence Force at relevant times, he had not rendered continuous full-time service outside Australia within the meaning of paragraph (a) of Item 1 under s 6A(1) of the VE Act.

21                  Each of the questions is fraught with ambiguity.  Each asks, in substance, whether, on the facts found by the Tribunal, it was open to it to make the finding of fact that Mr Roper did not render operational service during World War II.  The ambiguity arises, particularly in relation to question 2.4, because the questions may be understood as asking either whether there was any evidence accepted by the Tribunal which supported its finding or whether the evidence or the weight of the evidence before the Tribunal supported its finding: cf Lambroglou at 523.  A question of the latter kind is not a question of law.  As Ryan J held in Lambroglou (at 527):

“If the question, properly analysed, is not a question of law no amount of formulary like “erred in law” or “was open as a matter of law” can make it into a question of law.”

Had the questions been framed along the lines of whether there was any evidence before the Tribunal to support its findings that Mr Roper had not rendered continuous full-time service outside Australia and that, accordingly, he had not rendered operational service, appropriate questions of law would have been raised:  see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355.  There would not, however, have been grounds which linked these questions to the circumstances of the case and the orders sought by Mrs Roper.  Grounds 4.1 and 4.3 appear to allege that the Tribunal misconstrued Item 1(a) in s 6A of the VE Act rather than suggest that there was no evidence to support the findings.

22                  In any event, had the questions been framed in the manner suggested the answer to both of them must have been: no.  The Tribunal’s task, when called on to apply s 6A(1), necessarily involves questions of degree and requires the making of value judgments.  In Repatriation Commission v Kohn (1989) 87 ALR 511, Hill J provided guidance on the exercise of the Tribunal’s power under s 6A.  His Honour said (at 524-525):

“It seems to me that to give effect to what I believe to be the legislative policy behind the current legislation and indeed the policy which the foregoing analysis of the history of the legislation indicates was behind all previous manifestations of it, an interpretation of s 6(1)(a) should be advanced which would exclude mere transitory passages outside Australia from the definition of “operational service” in s 6(1)(a).

When attention is focused on the rendering of continuous full-time service outside Australia, it is not correct to look in isolation at the period of time in which the member of the defence force is outside the three mile limit to the exclusion of the periods of time immediately before and immediately after that period. Nor is the purpose for which the member of the forces comes to be outside Australia irrelevant.

Rather, it may be necessary to consider a wider period of time. How wide a band of time that is to be considered will depend upon the facts of each case. One must then ask, looking at the relevant period overall, whether it is correct to categorise the member's service in that time as being continuous full-time service inside Australia or continuous full-time service outside Australia. If the essential character of the service considered overall can be seen to be continuous full-time service outside Australia, then for the purpose of the legislation it is to be treated as operational service. If, on the other hand, looked at overall, notwithstanding that at a discrete moment of time the service of the member was outside Australia, the service is properly as a matter of ordinary English language to be seen as having an essential character of continuous full-time service within Australia, then for the purposes of the legislation it will not be treated as “operational service”.

It is obvious that there can be questions of degree involved. Service on a naval ship, where the ship was sailing to some place in the middle of the ocean to refuel planes there and then return during the war, would clearly enough be characterised as service outside Australia. The purpose of the voyage will in such a case give the service its essential character. So too, an airman piloting a plane on a mission from Australia and back, not landing in the meantime, will likewise be seen to be engaged in operational service for the purposes of the legislation because it will then, having regard to the purpose of the mission and as a matter of fact, be proper to look at this mission in isolation and characterise the airman's service by reference to it.

However, where the purpose of the journey outside Australia itself, being but brief, is merely to facilitate the performance of service which itself is continuous full-time service within Australia, the service outside Australia will not give colour to the service nor will it permit a characterisation of the service as being continuous full-time service outside Australia.” 

The definition of operational service, now found in Item (1)(a) of s 6A of the VE Act, appeared in s 6(1)(a) at the time at which Hill J’s decision was made.  Kohn has been adopted and applied by the Court in later cases: see Proctor at [16] and [24] and Roscoe at [35].

23                  Mr Roper had ventured outside Australia on only two occasions during his military service.  There was evidence before the Tribunal, including evidence from Mr Roper’s son, that the two flights formed part of the training regime for aircrew.  The training was designed to familiarise the crew (including Mr Roper) with new aircraft prior to them being posted overseas.  The possibility of any enemy contact during the flights was low.  The fact that surveillance work was undertaken during the flights did not detract from the essential training purpose which they served.  It was open to the Tribunal to determine that the relevant service of Mr Roper fell into the second category of case identified by Hill J, namely, that in which when “looked at overall, notwithstanding that at a discrete moment of time the service of the member was outside Australia, the service is properly as a matter of ordinary English language to be seen as having an essential character of continuous full-time service within Australia …”.  The training base was in Australia.  The training flights left from and returned to the Australian base.  The duration of those parts of the flights which took place outside Australian territorial limits were relatively short.  In these circumstances it cannot, in my opinion, be said that there was no evidence to support the two impugned findings.  Nor can the submission, made by counsel for Mrs Roper, that the only conclusion open on the facts found was that Mr Roper performed operational service outside Australia, be accepted.

Paragraphs 2.13 and 2.14 of the Amended Notice of Appeal   

24                  These paragraphs are both very difficult to understand.  Paragraph 2.13 appears to attribute to the Tribunal a finding which it did not make.  The Tribunal did not reason that, because the two flights were for the purposes of training and familiarisation with the new aircraft, this precluded Mr Roper’s service being operational service.  Paragraph 2.14 appears designed to raise a construction point.  It seems intended to raise the question of whether, in deciding whether or not Mr Roper had rendered continuous full time service outside Australia, the Tribunal was entitled to pose and answer the subsidiary question of whether the service was for the purpose of training and familiarisation with the new aircraft.  The Tribunal did not ask this question.  It asked whether “the essential character of Mr Roper’s service during the periods he was outside Australia was one of training and familiarisation with the Liberator.”  Neither paragraph propounds a pure question of law.

25                  These questions appear to be linked to grounds 4.5 – 4.7.  Mrs Roper submits that the question for the Tribunal was whether Mr Roper rendered service outside Australia.  By asking itself whether the essential character of the service was “one of training and familiarisation with the Liberator” the Tribunal was, so it was said, diverted from giving attention to this question.  Mrs Roper complains that the Tribunal treated the task of characterisation as being at large and that the Tribunal drew a dichotomy between service and training which was inconsistent with the terms of s 6A(1) of the VE Act.   

26                  The question for the Tribunal was not whether Mr Roper rendered service outside Australia, but whether Mr Roper rendered continuous full‑time service outside Australia within the meaning of s 6A Item 1(a) of the VE Act.  The distinction is important.  Although there is no minimum period specified in s 6A Item 1(a), as Mrs Roper properly concedes, not all service outside Australia will constitute continuous full‑time service outside Australia within the meaning of the VE Act. Ground 4.7, however, appears to suggest that the Tribunal should not have paid any regard to the length of time Mr Roper spent outside Australia.

27                  The Tribunal directed itself consistently with Hill J’s judgment in Kohn.  It was required to characterise Mr Roper’s flights to (or towards) Middleton Reef.  The amount of time Mr Roper spent outside Australia during these flights was a matter to be considered in forming this judgment.  This was a fact finding exercise.  It is clear from the principles identified by the Tribunal (see above at [11]) that it correctly understood the task it was required to perform.  It did not treat the time spent outside Australia as a relevant principle.  Rather it identified this as a matter which, in an appropriate case, would assist in determining the essential character of a veteran’s service.  The Tribunal’s reasoning at paragraphs [44] to [47] demonstrates that it considered the evidence before it in light of the principles which it had distilled from decisions of this Court.

28                  For the reasons explained above at [23], it was open to the Tribunal to find that the flights were undertaken for training purposes and that the essential character of Mr Roper’s relevant service, considered overall, was not continuous full-time service outside Australia. 

Paragraph 2.15 of the Amended Notice of Appeal  

29                  The question asked in paragraph 2.15 lacks precision.  In particular, it is not clear what is comprehended by the phrase “the correct application of s 6A Item 1(a) …”.  If paragraph 2.15 is intended to raise the question of whether, on the facts found, Mr Roper’s two flights outside Australia constituted operational service within the meaning of s 6A, a pure question of law could probably be framed.  It is another way of raising the issue to which question 2.1 seems to be directed.

30                  Mrs Roper submits that the Tribunal incorrectly applied s 6A Item 1(a) to the facts.  She contends that the questions of whether facts fully found fall within the provisions of an enactment properly construed is a question of law: see Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389. In Agfa, the High Court set out the five general propositions identified by the Full Court of this Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287, the fifth of which was: “The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law”.  As noted by the High Court, the Full Court had qualified this proposition: “when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or not is one of fact”: see Agfa at 395.       

31                  It is clear, particularly from the definition of “continuous full‑time service” in s 5C, that the words in s 6A Item 1(a) are used according to their ordinary meaning: see also Kohn at 524, quoted above at [22].  For the reasons given earlier the facts found by the Tribunal did not necessarily render Mr Roper’s service, in the course of the two flights, continuous full-time service outside Australia.  There is, therefore, no question of law raised by paragraph 2.15, even if it is broadly construed.

32                  For these reasons I do not consider that a question of law has been identified for the purposes of s 44 of the AAT Act.  Even if the necessary foundation for the Court’s jurisdiction had been established the appeal would, for the reasons given above, have failed.

Prematurity

33                  There is a further problem with the present appeal.  It is brought against what amounts to a preliminary decision on a matter of evidence.  The Tribunal has yet to determine Mrs Roper’s application to it.  There are strong policy reasons for avoiding fragmentation of and delay in proceedings before the Tribunal. 

34                  In Director-General of Social Services v Chaney (1980) 31 ALR 571 Deane J, with whom Fisher J agreed, held (at 593) that, subject to some immaterial exceptions, “an appeal under s 44(1) of the [AAT] Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review”.  His Honour held that, in the normal case, “such a decision will be the final decision formulated in accordance with the provisions of s 43 of the Act.”  In WAKN v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 40 AAR 223 at 232 French J held that “[o]rdinarily it would not seem that any s 44 appeal would lie against a ruling on a preliminary question unless it finally disposed of the application.”

35                  In the present matter the Tribunal has done no more than decide that Mr Roper did not render operational service within the meaning of s 6A(1) of the VE Act and that the issues in the case must be decided according to the standard of proof provided for in s 120(4) of the VE Act.  The Tribunal has yet to determine the ultimate question raised on Mrs Roper’s application, namely, whether or not she is entitled to a pension, under the VE Act, by reason of her husband’s service in the Defence Force during World War II.  That question may be resolved favourably to her.  The Tribunal’s decision on the standard of proof is not in any sense dispositive of the application.  If Mrs Roper succeeds in her application to the Tribunal the preliminary decisions which she presently seeks to challenge will have had no adverse bearing on the outcome of her case.

Disposition

36                  The appeal should be dismissed with costs.

Associate:

Dated:         30 October 2008