Beale and Repatriation Commission - [2002] AATA 68

DECISION AND REASONS FOR DECISION [2002] AATA 68

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/250

VETERANS' APPEALS DIVISION       )
           Re      WALTER CHARLES BEALE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date5 February 2002
PlaceAdelaide

Decision      The Tribunal affirms the decision under review.
  (Signed)
  J.A. KIOSOGLOUS

(Senior Member)

CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – qualifying service – whether applicant incurred danger from hostile forces of the enemy – sea voyage from Darwin to Truscott Airfield in December 1944.
Veterans' Entitlements Act 1986 ss.7A, 120(4)
Repatriation Commission v Thompson (1988) 82 ALR 352
Macgregor and Repatriation Commission (1992) 25 ALD 761
Buckingham and Repatriation Commission (1992) 28 ALD 412

REASONS FOR DECISION

5 February 2002 Senior Member J.A. Kiosoglous MBE

This is an application for review by Mr Walter Charles Beale (the applicant) for review of a decision of a senior delegate of the respondent dated 3 July 2001 (T2/5-7) which affirmed a decision of a delegate of the respondent dated 11 May 2001 (T20/42), which determined that the applicant had not rendered qualifying service in accordance with section 7A(1)(a)(i) of the Veterans' Entitlements Act 1986 (the Act).
The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T23), together with 9 exhibits, 4 lodged by the applicant (Exhibits A1-A4) and 5 lodged by the respondent (Exhibits R1-R5). In addition, the Tribunal heard evidence from the applicant and Mr Brendan O'Keefe, Historian, gave evidence for the respondent. The applicant represented himself and the respondent was represented by Mr Greg Doube, a departmental advocate.
It was not in contention between the parties that the applicant had served as a "member of the Defence Force", that he served during a "period of hostilities" and that he rendered service in "naval operations against the enemy on a ship of war". The only issue in dispute between the parties is whether or not the applicant actually "incurred danger from hostile forces of the enemy" during his service.
history of the application
The applicant was born on 6 December 1925 and served in the Royal Australian Air Force (RAAF) during World War 2 from 8 February 1944 until 29 April 1946. This service constituted service during a period of hostilities.
The applicant's record of service in the RAAF (T4/9) shows that the applicant did not serve outside Australia during World War 2, however, he did serve in the Northern Territory north of parallel 14.5 degrees south latitude from December 1944 until after the war had concluded. The importance of parallel 14.5 degrees south latitude is that this was the lowest altitude of any of the Japanese bombing raids on the Northern Territory.
The applicant served at Truscott Air Base on the Anjo Peninsula in Northern Western Australia during his service in the Northern Territory.
On 7 March 2001 the applicant lodged an informal application for a Gold Card under sub-section 85(4A) of the Act (T15/35).
On 21 March 2001 a…

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 Beale and Repatriation Commission

Details

AGLC: Beale and Repatriation Commission [2002] AATA 68
Case: [2002] AATA 68
Decision Date: 5 February 2002

CaseChat Overview and Summary

The case of Beale and the Repatriation Commission involved an application for a review of a decision regarding the applicant's eligibility for veterans' entitlements. The applicant, a former member of the RAAF, contended that his service constituted qualifying service under the Veterans' Entitlements Act 1986, as he had been exposed to danger from hostile forces during a sea voyage from Darwin to Truscott Airfield in December 1944. The Repatriation Commission, however, determined that the applicant's service did not qualify because he had not incurred danger from hostile forces. The matter was ultimately brought before the Administrative Appeals Tribunal (AAT) for review.

The primary legal issues that the AAT had to decide were whether the applicant's service during the sea voyage constituted "qualifying service" under section 7A of the Veterans' Entitlements Act 1986, and whether the applicant had indeed incurred danger from hostile forces of the enemy during that voyage. The AAT needed to consider the evidence presented by the applicant, including his testimony regarding the conditions of the voyage and the potential risks associated with transporting aviation fuel, and to assess whether these conditions amounted to incurring danger from hostile forces as required by the legislation.

The AAT examined the evidence provided by the applicant, including his testimony and the circumstances surrounding the sea voyage. The Tribunal noted that while there was a potential for danger due to the presence of aviation fuel on board the ship, there were no specific incidents of hostile action or real physical danger experienced by the applicant during the voyage. The AAT concluded that although the possibility of danger was present, the applicant had not been exposed to any real physical danger or peril to his life from hostile forces. Consequently, the Tribunal found that the applicant's service did not constitute qualifying service under the Act.

Based on the findings, the AAT upheld the Repatriation Commission's decision that the applicant's service did not qualify for veterans' entitlements. The Tribunal's decision was that the applicant's sea voyage from Darwin to Truscott Airfield did not meet the criteria of incurring danger from hostile forces of the enemy as required by the Veterans' Entitlements Act 1986. Therefore, the applicant's application for review was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On 10 July 2001 the applicant lodged with the Tribunal an application seeking a review of the respondent's decision of 20 April 2001 (T1/3-4).applicant's evidence The applicant was born in Mount Gambier on 6 December 1925 and enlisted in the RAAF on 8 February 1944. Prior to enlistment the applicant was in the Air Training Corps for two years to prepare him for entry into the RAAF. The applicant was discharged from the RAAF on 29 April 1946. The applicant told the Tribunal that he was posted to 58 Operational Base Unit (OBU) at Truscott Airfield following his signals training at Point Cook. The applicant testified that after two days in Darwin, he departed on the SS San Raphael at dusk, heading for Truscott Airfield ("Truscott") on 26 December 1944. During his evidence, the applicant referred to a map indicating the relative positions of Darwin and Truscott (Exhibit A3). The applicant stated that he incurred danger on the journey to Truscott. The applicant testified that the ship travelled southwest to Truscott, which was 300 miles from Darwin on Anjo Peninsula. The applicant testified that the cargo on board the SS San Raphael was 10,000 44-gallon drums of aviation fuel. Because Truscott was in such a remote area, everything had to be brought in by either aircraft or boat. The applicant explained that Truscott was used by aircraft basically as a refuelling base during World War 2. The applicant testified that he was 19 years old at the time of the voyage and he slept for almost the entire journey, he was not awakened by any gunfire and to his knowledge there was no contact with enemy shipping or aircraft. The applicant gave evidence that during the journey he was not allowed to smoke, there were no navigational lights being used and the ship was in pitch dark. The applicant testified that he did not know that there was aviator fuel on board. When asked by the respondent if it was possible that the prohibition on smoking was a sensible precaution because of the fuel on board the applicant agreed that this was possible. However, the applicant did not smell any fumes whilst on board the ship. In his written statement, the applicant detailed the circumstances of his voyage as follows (Exhibit A1, page 4):"…In my own case where I embarked on a ship in Darwin Harbour there was tight security everywhere. The ship of course was not identified by name for security reasons and I only found out after the war that it was called the San Raphael. Before departure we were assembled by some naval officer and told that we could only sleep up on deck and to doss down wherever we could find a spot. We were told that smoking was prohibited because the slightest match could alert the enemy to our presence. The anti-submarine boom gates in Darwin Harbour were operating as we left and we were escorted by a navy corvette. I think we all realised that at last we were in some sort of danger and although fearful, being aged only 19, that fear was tinged with a certain feeling of adventure. I can remember looking at the huge raft above one of the hatches and wondering whether, in the case of emergency, how many of us could fit upon it.…"

Decision

Reasons for decision

On 11 May 2001, a delegate of the respondent determined that the applicant's service in the RAAF did not constitute qualifying service (T20/42) and the applicant was advised of this decision in a letter dated 14 May 2001 (T21/43-44). In his reasons for decision, the delegate stated (inter alia)(T21/43-44):"…Basis of DecisionQualifying service for a member of the Australian Defence Force for service between 3 September 1939 and 29 October 1945 inclusive is to have served at sea, in the field or in the air in operations against the enemy in an area at a time when you incurred danger from hostile forces of the enemy.…Your service records show that you did not serve in operations against the enemy at a time when you incurred danger from the enemy, and that you were not eligible to be awarded any of the above decorations in respect of your service after 29 October 1945.…" On 3 July 2001, a senior delegate of the respondent reviewed the decision of 11 May 2001 and affirmed the decision that the applicant's service in the RAAF did not constitute qualifying service (T2/5-7). The applicant was advised of this decision by letter dated the same day (T3/8). In his reasons for decision, the senior delegate stated (inter alia)(T2/6-7):"…Mr Beale has advised that he was posted at 58 OBU at Truscott Airfield, following his signals training at Point Cook. On 27 December 1944, he embarked on the 'San Rafael' and travelled by sea from Darwin to Truscott Airfield.…In the File Mr Beale has recalled 2 incidents where he claimed his life was in danger. Mr Beale has advised that when travelling on the 'San Rafael' the ship carried stores and a large consignment of aviation fuel for the Army at Truscott Airfield. Mr Beale considers that his life was in peril due to the fact that the ship carried hi-octane aviation fuel and any attack by hostile forces would have seen the ship and those on board blown to pieces. Mr Beale has also advised that on 27 February 1945 a yellow alert was issued when an unidentified plane crossed the coast, and it was concluded that a Japanese Float Plane was conducting a probe on the Truscott base's air defences.In order for this service to be considered as qualifying service, Mr Beale must actually have incurred danger from hostile forces of the enemy. While I accept that the possibility of danger was always present in these circumstances, there were no specific incidents with hostile forces of the enemy where Mr Beale was exposed to any real physical danger or where his life was at peril.In the absence of any evidence of any other events in which Mr Beale was exposed to any real physical danger or where his life was at peril, I find that Mr Beale did not incur danger from hostile forces of the enemy. Therefore, it follows that he has not rendered qualifying service as defined in the VEA.…" On 10 July 2001 the applicant lodged with the Tribunal an application seeking a review of the respondent's decision of 20 April 2001 (T1/3-4).applicant's evidence

Ratio Decidendi

Legal Principle Established

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