ANTHONY MOIR and REPATRIATION COMMISSION

Case [2013] AATA 315

[2013] AATA 315

Division VETERANS' APPEALS DIVISION

File Number

2011/5117

Re

ANTHONY MOIR

APPLICANT

And

REPATRIATION COMMISSION

RESPONDENT

DECISION

Tribunal

Mr R G Kenny, Senior Member

Date 17 May 2013
Place Brisbane

The Tribunal affirms the decision under review.

.........................[Sgd]...............................................

Mr R G Kenny, Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Pensions and benefits  – Service with Royal New Zealand Navy –- Member of defence force established by a Commonwealth country – Danger not incurred by hostile forces of the enemy – Qualifying service for service pension not rendered – Decision under review affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth), ss 5C, 7A

CASES

Repatriation Commission v Smith (1987) 15 FLR 327

Repatriation Commission v Thompson (1988) 82 ALR 352

Trott and Repatriation Commission (2004) AATA 348

REASONS FOR DECISION

Mr R G Kenny, Senior Member

BACKGROUND

  1. Anthony Moir (“the applicant”) served with the Royal New Zealand Navy (“the RNZN”) from 11 January 1962 until 16 July 1974. On 27 July 2011, he lodged with the Department of Veterans’ Affairs an “Application to Determine Qualifying Service by a Veteran or Mariner”. This was done for the purpose of ascertaining whether his service qualified him for a service pension payable under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). On 8 August 2011, a delegate of the Repatriation Commission (“the respondent”) determined that the applicant had not rendered the required qualifying service.[1] On 3 October 2011, a service pension review officer, as a delegate of the respondent, affirmed that decision.[2]

    [1] See s 7A of the Act.

    [2] See s 57A of the Act.

    SERVICE, LEGISLATION AND ISSUE

  2. It is not in dispute that Mr Moir served with the RNZN as noted above or that he was on HMNZS Otago (the Otago) in the period from 11 October 1965 until 31 August 1966. The applicant has identified aspects of his service on 13 May 1966, 14 July 1966 and 18 July 1966 as being relevant to his application.

  3. In order for the applicant to have his application accepted, he must have qualifying service under the Act. In that regard, s 5C(1) of the Act gives the following definitions:

    Commonwealth country means a country (other than Australia) that is, or was at the relevant time, a part of the Dominions of the Crown, and includes:

    (a) a state, province or other territory that is one of 2 or more territories that together form, or formed at the relevant time, a discrete part of such a country; and

    (b) a place that is, or was at the relevant time, a territory, dependency or colony (however described) of a part of such a country

    qualifying service has the meaning given in section 7A.

  4. For qualifying service, s 7A(1)(b) of the Act reads:

    (1)   For the purposes of Parts III and VA and sections 85 and 118V, a person has rendered qualifying service:

    …

    (b) if, during a period of hostilities, the person has, as a member of the defence force established by a Commonwealth country,…

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ANTHONY MOIR and REPATRIATION COMMISSION [2013] AATA 315
Case
[2013] AATA 315
Decision Date

CaseChat Overview and Summary

The matter under consideration involved Anthony Moir, the applicant, who sought to have his eligibility for a service pension determined under the relevant legislative provisions. The Repatriation Commission, represented by the respondent, contested the applicant's claim. The case was heard and determined in the Federal Court of Australia. The central issue before the court was whether the applicant had incurred danger from hostile forces of the enemy during his service with the Royal Australian Navy on the HMAS Otago in 1966, a requirement for eligibility under the relevant legislation.

The court examined the evidence presented by both parties and considered the Full Federal Court's interpretation of the phrase "incurred danger from hostile forces of the enemy" in the case of Repatriation Commission and Thompson. The applicant argued that he had been exposed to danger based on incidents that occurred while the Otago was engaged in patrols in the Malacca Straits, although he was not an eyewitness to these events. The respondent, however, presented evidence from a researcher, Mr. Mulcare, who reviewed official records of the Otago and found no substantial evidence to support the applicant's claims of danger. The researcher's evidence was based on official logs and reports, which were produced in court.

The court ultimately found that the applicant had not objectively incurred danger from hostile forces of the enemy, as the incidents he relied upon were not substantiated by the official records. The court preferred the evidence of Mr. Mulcare, which was consistent with the official logs and reports, over the applicant's account, which was based on second-hand accounts and not supported by independent evidence. The court concluded that the applicant's claim did not meet the statutory requirement for incurring danger from hostile forces, and therefore, he was not eligible for the service pension.

The Federal Court affirmed the decision under review, upholding the Repatriation Commission's determination that the applicant was not eligible for the service pension. The court's decision was based on the lack of credible evidence that the applicant had objectively incurred danger from hostile forces of the enemy during his service on the HMAS Otago.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the respondent, Mr Williams submitted that the Tribunal was not bound by earlier decisions of the respondent and that the matter should be determined on the evidence of the applicant and that of the researcher engaged by the respondent to investigate relevant service records. He conceded that the applicant had served with a Commonwealth country but submitted that there was no evidence that the applicant incurred danger from hostile forces of the enemy at any time while serving on the Otago. In that regard, he relied on the Full Federal Court decision in Repatriation Commission and Thompson[5] (Thompson). Accordingly, Mr Williams submitted that the applicant was not eligible to receive the service pension.EVIDENCE [5] (1988) 82 ALR 352.The applicant The applicant’s evidence was that he was a crew member of the Otago as part of the Far East Strategic Reserve when it was engaged in anti-infiltration patrols by Indonesian forces. This was in the Malacca Straits and he referred to several incidents that he had become aware of and in which the Otago and its crew incurred danger from Indonesian entities. The applicant’s service on the Otago from 1965 to 1966 was his first sea posting. He was a “control electrical artificer apprentice” at the time and described himself as a junior rating. He was positioned below deck at all times when he was on duty and when the Otago moved to higher states of readiness, such as action stations, which he believed was applicable in some of the incidents of hostility that the Otago encountered. Because he was below decks, he was not an eye-witness to any of those incidents and learned of them from others who were aware of the manoeuvres of the Otago from their positions on the upper decks. He did have some understanding of one such incident on 14 July 1966 when he was told, after the event, that the Otago had been engaged with an Indonesian gun-boat while the Otago was in the process of providing protection to the HMS Eagle (“the Eagle”), an aircraft carrier of the Royal Navy. He did not see the interaction between the vessels but was aware of “violent turns” made by the Otago at the time. He also recalled that the crew were then at action stations. Hostile events Incidents identified by the applicant as being relevant to his qualifying service occurred on 13 May 1966, 14 July 1966 and 18 July 1966. He relied on a statement, in which they were detailed, completed by one of the crew members whose Otago service was accepted as qualifying service under the Act.[6] These were:13 May 1966Otago chased off two longboats which were suspected of carrying Indonesian Special Forces but could not open fire on them because of the grave danger of hitting one of the many merchant ships and tankers in the vicinity. There was also the danger of collision. The Otago tried unsuccessfully to ram one of the longboats. The Otago was in imminent danger of being machine-gunned by Indonesian personnel on the longboats and all deck crew were required to lie flat on the deck to minimise the prospect of injury. The chief radio operator transmitted messages of the incident to the Darwin radio station.14 July 1966While escorting the Eagle, two Russian built Indonesian gun-boats armed with surface to surface missiles came at the Otago at high speed. The Otago’s response was to go to action stations, arm the Sea Cat missile system, load the 4-5 inch turret with high explosives and train the gun’s radar on the missile boats. The Eagle ordered the Otago to keep the gun-boats away which, because of the narrowness of the Straits, required the Otago to make violent manoeuvres to keep between the gun-boats and the Eagle. The engagement lasted for 15 minutes before the gun-boats made off at high speed.Afterwards, the Otago intercepted a dhow and a boarding party was sent to inspect it for smuggled goods. A shot was fired by a crew member of the Otago as a warning against aggression by the dhow crew. [6] See Exhibit 1, T-documents, pp. 20-24.18 July 1966While escorting the tanker RFA Gold Ranger, a Komar class missile gun-boat made threatening and aggressive manoeuvres towards the tanker and the Otago, which went to action stations State 1 Zulu. While manoeuvring to keep the gun-boat away from the tanker, HMS Fiskerton (“the Fiskerton”) arrived at high speed to assist by chasing off the gun-boat.

Decision

Reasons for decision

In so determining, I have noted the reference by the applicant to the Tribunal decision in Trott.[12] That case was concerned with a different vessel and an earlier period in the Malacca Straits. That case was determined on the nature of the circumstances then prevailing. They can be distinguished from those of the Otago in 1966. [12] See note 4 (above).DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

Mr Mulcare found no record of the incident attributed to 18 July 1966. Reference is made to the Otago speaking to an Indonesian Customs launch which, he said, would have been through means of flashing lights or loud hailer. He noted that the encounter is referred to in the ship’s Log but not the Report of Proceedings and he believed that such a vessel would pose no threat to the Otago. He said that there was no record of any guided missile patrol boat making threatening or aggressive manoeuvres toward the Otago nor of the Fiskerton coming to the assistance of the Otago. Mr Mulcare believed that any such incidents would have been recorded in both the Ship’s Log and Report of Proceedings. Mr Mulcare said that there was no record of a warning shot being fired from the Otago during the interception or search of an Indonesian vessel in 1966. CONSIDERATION The statement concerning the events relied on by the applicant to demonstrate that he incurred danger from Indonesian forces was not made by the applicant. The author of the statement did not give evidence. The applicant has no independent knowledge of the incidents described in the statement apart from an awareness of sudden manoeuvring of the Otago on an occasion. The evidence of Mr Mulcare is in direct contrast in most material particulars with that given in the statement relied on by the applicant. Mr Mulcare’s reports relied on official records of the Otago and these were produced in evidence. In those circumstances, I am reasonably satisfied that the evidence of Mr Mulcare should be preferred over that of the author of the statement. As noted, the applicant was not in a position where he was able to contradict Mr Mulcare’s evidence from his own observations. In Thompson,[11] the Full Federal Court considered the expression “incurred danger from hostile forces of the enemy”. That case was concerned with s 36 of the Act but I am satisfied that the observation’s therein are applicable to the same expression as it appears in s 7A(1)(b) of the Act. There, at 356, the Court said:The words "incurred danger" therefore provide an objective, not a subjective, test. A serviceman incurs danger when he encounters danger, is in danger or is endangered. He incurs danger from hostile forces when he is at risk or in peril of harm from hostile forces. A serviceman does not incur danger by merely perceiving or fearing that he may be in danger. The words "incurred danger" do not encompass a situation where there is mere liability to danger, that is to say, that there is a mere risk of danger. Danger is not incurred unless the serviceman is exposed, at risk of or in peril of harm or injury.The danger incurred must of course be more than a merely fanciful danger or a danger so minimal that the rule of de minimis applies. But to say that is not to give a flavour to the word. Rather it is to use it in its ordinary sense.[11] See note 3 (above). I am satisfied, on the balance of probabilities, that, objectively, the applicant did not incur danger from Indonesian forces in 1966. Indeed, there is no evidence that, subjectively, he sensed any such danger as his reliance was placed on versions of events recounted by others and which are inconsistent with official records of the Otago in the manner given by Mr Mulcare in his evidence.