Bastow and Repatriation Commission - [2001] AATA 6

DECISION AND REASONS FOR DECISION [2001] AATA 6

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1998/432

VETERANS' APPEALS DIVISION       )
           Re      JOYCE MYRTLE BASTOW
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Associate Professor S D Hotop, Senior Member Brigadier R D F Lloyd, Member

Date9 January 2001
PlacePerth

Decision       The decision under review is affirmed.
  ...........(sgd S D Hotop)...........
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Gold Card – applicant served in Australian Army from July 1943 to October 1945 as a Signaller – applicant served on board Army target boat, "Wadjemup", as a visual signaller – "Wadjemup" sailed between Fremantle and Rottnest Island, and west of Rottnest Island, for purpose of target practice for shore batteries – whether applicant rendered "qualifying service" – whether applicant rendered service in naval or military operations against the enemy – whether applicant incurred danger from hostile forces of enemy – respondent's policy guidelines regarding "qualifying service" – whether respondent's policy guidelines valid and applicable – whether statutory requirements of "qualifying service" deemed to be satisfied by respondent's policy guidelines
Veterans' Entitlements Act 1986 ss5B(1), 7A(1), 85(4A)
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Green v Daniels (1977) 13 ALR 1
Repatriation Commission v Burton (1993) 19 AAR 118
Repatriation Commission v Thompson (1988) 44 FCR 20
Willcocks v Repatriation Commission (1992) 39 FCR 49

REASONS FOR DECISION

9 January 2001 Associate Professor S D Hotop, Senior Member Brigadier R D F Lloyd, Member

This is an application by Joyce Myrtle Bastow ("the applicant") for review of a decision of a delegate of the Repatriation Commission ("the respondent") dated 7 July 1998, as affirmed by a Senior Delegate of the respondent on 3 August 1998, that the applicant had not rendered "qualifying service" within the meaning of s7A of the Veterans' Entitlements Act 1986 ("the VE Act") and, therefore, was not eligible for a "Gold Card" pursuant to s85(4A) of the VE Act.
On the first day of the hearing (27 August 1999) the applicant appeared in person without representation but at a resumed hearing on 24 August 2000 she was represented by Mr C Hammal, a lay advocate. On both hearing days the respondent was represented by Mr C Ponnuthurai, a departmental advocate. The Tribunal had before it the documents ("T documents") lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and documentary exhibits tendered in evidence by the applicant (A1-A7) and by the respondent (R1-R8). The applicant gave oral evidence. There were no other witnesses.
The Factual Background
The material background facts, as found by the Tribunal on the basis of the T documents and about which there is no dispute between the parties, are as follows.
The applicant served in the Australian Army from 14 July 1943 to 16 October 1945. From 7 August 1943 to 13 October 1945 the applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bastow and Repatriation Commission

Details

AGLC: Bastow and Repatriation Commission [2001] AATA 6
Case: [2001] AATA 6
Decision Date: 9 January 2001

CaseChat Overview and Summary

The case of Bastow v Repatriation Commission involved a dispute between the applicant, a former servicewoman, and the Repatriation Commission regarding her eligibility for a Gold Card under the Veterans' Entitlements Act 1986. The applicant served in the Australian Army as a Signaller from July 1943 to October 1945, during which she was stationed on board the Army target boat "Wadjemup" as a visual signaller. The central issue was whether the applicant's service on the "Wadjemup" constituted "qualifying service" under the Act, which would entitle her to a Gold Card.

The court had to determine whether the applicant's service aboard the "Wadjemup" qualified as military service against the enemy, and whether she incurred danger from hostile forces. This involved examining the policy guidelines set by the respondent and assessing their validity and applicability to the statutory requirements. The case hinged on interpreting the statutory provisions and understanding the specific circumstances of the applicant's service.

The Tribunal found that the applicant's service on the "Wadjemup" did not qualify as military service against the enemy because the vessel's primary purpose was target practice, not engaging with hostile forces. The Tribunal concluded that the service did not meet the criteria for "qualifying service" as defined by the Act. Consequently, the Tribunal affirmed the decision that the applicant was not eligible for a Gold Card. The court's reasoning was grounded in the statutory interpretation and the factual evidence presented, leading to the final outcome that the applicant's appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

On the first day of the hearing (27 August 1999) the applicant appeared in person without representation but at a resumed hearing on 24 August 2000 she was represented by Mr C Hammal, a lay advocate. On both hearing days the respondent was represented by Mr C Ponnuthurai, a departmental advocate. The Tribunal had before it the documents ("T documents") lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and documentary exhibits tendered in evidence by the applicant (A1-A7) and by the respondent (R1-R8). The applicant gave oral evidence. There were no other witnesses.The Factual Background The material background facts, as found by the Tribunal on the basis of the T documents and about which there is no dispute between the parties, are as follows. The applicant served in the Australian Army from 14 July 1943 to 16 October 1945. From 7 August 1943 to 13 October 1945 the applicant was attached to the Fremantle Fixed Defences as a Signaller. On 29 May 1998 the applicant lodged with the Department of Veterans' Affairs ("DVA") an "Application for Gold Card" form. In a covering letter dated 27 May 1998 the applicant stated:"As a service woman in World War II I was stationed at Swanbourne in the Heavy Artillery. I served on board the Wadjemup, an Army target boat, as a visual signaller. We did frequent trips to the other side of Rottnest and Garden Island carrying a splash target which the 6" guns from the different coastal stations used to shoot at for practice and was quite dangerous." On 7 July 1998 a delegate of the respondent decided that the applicant was not eligible for a Gold Card under s85 (4A) of the VE Act because she did not have the necessary World War 2 qualifying service. The applicant was notified of that decision by letter dated 20 July 1998. On 27 July 1998 the applicant lodged with the DVA, by letter dated 23 July 1998, a request for a review of the decision dated 7 July 1998. On 3 August 1998 a Senior Delegate of the respondent affirmed the decision dated 7 July 1998. On 26 October 1998 the applicant lodged with the Tribunal an application for review of the decision of 3 August 1998.The Applicant's Evidence The applicant tendered in evidence a statement signed by her and dated 27 June 1999 (Exhibit A4). That statement is as follows:"During my service at Swanbourne Heavy Artillery camp as a specialist visual signaller I did frequent trips aboard the Army target vessel Wadjemup which towed a splash target for gun practice. We used to talk about the fact that we should get danger pay as it was quite dangerous.It is a well known fact that during these target practice shoots the A.W.A.S. from the Command post plotting room, gave their range finder bearings to where the shots were to be fired. There have been many incidents where they got their calculations wrong.There is a write up in the 'Rottnest Islander' newspaper (July 93) of which I have a copy, referring to Target Practice carried out by the mine-sweepers Olive and Elsie Camm, where the plotting room girls got the bearings wrong and the tow rope about a metre behind the Olive Camm was cut which was highly dangerous.Just recently I spoke to an ex Command post Army girl from Swanbourne who told me how one day during a Target Practice Shoot, she miscalculated the bearings and the shot was fired over the boat, not the splash target which was fortunate for all on board. I have been on board the Wadjemup when the ocean has been so rough that it was practically impossible for the gun batteries to identify the vessel from the splash target. I can well remember the day when it was so rough, that the skipper and myself were the only ones who weren't suffering from sea sickness and he asked me to take down the shots, as there was no one else in a fit state to do the job. I felt that the Target Practice shoots were highly dangerous to all on board.Another aspect of the danger was my duties on shore at Swanbourne, where as a visual signaller my job was to identify the ships and submarines entering Fremantle. This consisted of challenging the ships and asking for the identification, this was done by the means of signalling interrogative with an Aldis or 10" lamp. The ship was given a secret ship to shore letter which was changed each day, once they identified themselves they were allowed to proceed into Fremantle. This was quite dangerous, especially during the darkness of night, as it meant you were in direct firing line of enemy vessels. I well remember the day when a Merchant vessel named 'Panamanian' failed to identify itself and a bring to shot was fired over its bows, this was only one of the incidents when a bring to shot was fired at Swanbourne. I consider all of this to have been dangerous."

Evidence

Evidence Before The Court

On 26 October 1998 the applicant lodged with the Tribunal an application for review of the decision of 3 August 1998.The Applicant's Evidence The applicant tendered in evidence a statement signed by her and dated 27 June 1999 (Exhibit A4). That statement is as follows:"During my service at Swanbourne Heavy Artillery camp as a specialist visual signaller I did frequent trips aboard the Army target vessel Wadjemup which towed a splash target for gun practice. We used to talk about the fact that we should get danger pay as it was quite dangerous.It is a well known fact that during these target practice shoots the A.W.A.S. from the Command post plotting room, gave their range finder bearings to where the shots were to be fired. There have been many incidents where they got their calculations wrong.There is a write up in the 'Rottnest Islander' newspaper (July 93) of which I have a copy, referring to Target Practice carried out by the mine-sweepers Olive and Elsie Camm, where the plotting room girls got the bearings wrong and the tow rope about a metre behind the Olive Camm was cut which was highly dangerous.Just recently I spoke to an ex Command post Army girl from Swanbourne who told me how one day during a Target Practice Shoot, she miscalculated the bearings and the shot was fired over the boat, not the splash target which was fortunate for all on board. I have been on board the Wadjemup when the ocean has been so rough that it was practically impossible for the gun batteries to identify the vessel from the splash target. I can well remember the day when it was so rough, that the skipper and myself were the only ones who weren't suffering from sea sickness and he asked me to take down the shots, as there was no one else in a fit state to do the job. I felt that the Target Practice shoots were highly dangerous to all on board.Another aspect of the danger was my duties on shore at Swanbourne, where as a visual signaller my job was to identify the ships and submarines entering Fremantle. This consisted of challenging the ships and asking for the identification, this was done by the means of signalling interrogative with an Aldis or 10" lamp. The ship was given a secret ship to shore letter which was changed each day, once they identified themselves they were allowed to proceed into Fremantle. This was quite dangerous, especially during the darkness of night, as it meant you were in direct firing line of enemy vessels. I well remember the day when a Merchant vessel named 'Panamanian' failed to identify itself and a bring to shot was fired over its bows, this was only one of the incidents when a bring to shot was fired at Swanbourne. I consider all of this to have been dangerous." At the hearing on 27 August 1999 the applicant told the Tribunal that the vessel "Wadjemup", on which she served, would sail from Fremantle and cruise in a northerly direction as far as Swanbourne, for the purposes of target practice shooting from the Swanbourne battery, and, on other occasions, in a westerly direction to a distance of about 3 miles west of Rottnest Island, for the purposes of target practice shooting from the Rottnest Island battery. She said that her service on the "Wadjemup" comprised one full day per month on a regular basis.

Decision

Reasons for decision

The ultimate finding of the Tribunal is, therefore, that the applicant's service on the "Wadjemup" does not constitute "qualifying service" within the meaning of s7A(1)(a)(i) of the VE Act. It necessarily follows that the applicant is not eligible for a "Gold Card" pursuant to s85(4A) of that Act.Decision For the above reasons the Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

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