Carn and Repatriation Commission - [2001] AATA 313

DECISION AND REASONS FOR DECISION [2001] AATA 313

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1029

VETERANS' APPEALS DIVISION )

Re CECIL EDWARD CARN
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal RADM A R HORTON AO, Member

Date18 April 2001
PlaceSydney

Decision The decision under review is affirmed

[Sgd] RADM A R HORTON AO
Member
CATCHWORDS
VETERANS' AFFAIRS -- gold card eligibility – service in Australian Army – passage in HMAT GORGON from Brisbane to Thursday Island – service on Red Island -- qualifying service -- whether incurred danger from hostile forces

Veterans' Entitlements Act 1986 – ss 5B(1), 5C(1), 7A, 120(4)
Veterans' Entitlements Amendment (Gold Card) Act 1998 – s 85(4A)

Repatriation Commission v Thompson (1988) 44 FCR 20
Willcocks v Repatriation Commission (1992) 39 FCR 49
McGuiness and Repatriation Commission [2000] AATA 3
Leslie and Repatriation Commission [2000] AATA 90
Floyd and Repatriation Commission [2000] AATA 519
Mullen and Repatriation Commission [2000] AATA 871
Re Dwyer and Repatriation Commission (1987) 13 ALD 424

REASONS FOR DECISION

RADM A R HORTON AO, Member

This is an application for review of a decision dated 30 November 1999 by a delegate of the Repatriation Commission ("the Respondent"), and affirmed by review under s 57A of the Veterans" Entitlements Act 1986 ("the Act") on 11 May 2000, that Cecil Edward Carn ("the Applicant") did not render qualifying service for the purposes of s 7A of the Act, and hence was not eligible for a Gold Card under s 85(4A) of the Veterans' Entitlements Amendment (Gold Card) Act 1998 ("the Gold Card Act"). The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 4 July 2000.
At the hearing before the Tribunal in Wagga Wagga on 3 April 2001, the Applicant was assisted by Mr B Bowyer, Welfare Officer of the Returned and Services League of Australia, Lockhart Sub-Branch. Ms M Doggett represented the Respondent. The Tribunal had before it the documents provided by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also took into evidence a letter from Mr B Bowyer dated 17 September 2000 (Exhibit A1).
ISSUES BEFORE THE TRIBUNAL
The Applicant claims qualifying service as a prerequisite for eligibility for a Gold Card. Eligibility is established pursuant to s 85(4A) of the Gold Card Act, which states:
"(4A) A veteran is eligible to be provided with treatment under this Part for any injury suffered, or disease contracted, by the veteran, whether before or after the commencement of this Act, if:

(a) the veteran is 70 or over; and

(b) the veteran has rendered qualifying service during the period covered by paragraph of the definition of period of hostilities in subsection 5B(1); and

(c) either:
(i) the Department has notified the veteran in writing that he or she is or will be eligible for such treatment; or
(ii) the veteran has notified the Department in writing that he or she seeks eligibility…

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 Carn and Repatriation Commission

Details

AGLC: Carn and Repatriation Commission [2001] AATA 313
Case: [2001] AATA 313
Decision Date: 18 April 2001

CaseChat Overview and Summary

The case of Carn and Repatriation Commission involved a veteran seeking eligibility for a Gold Card under the Veterans' Entitlements Act 1986. The Applicant, who had served in the Australian Army, sought to prove that he had incurred danger from hostile forces during his service in order to qualify for the Gold Card. The dispute centred on whether the Applicant's service during a sea passage from Brisbane to Thursday Island and his subsequent service on Red Island qualified as 'qualifying service' under the Act. The Applicant was born on 20 March 1913 and enlisted in the Citizen Military Forces on 17 March 1941, transferring to the Australian Imperial Force on 12 November 1943. He was discharged on 21 February 1945. He served in various units in New South Wales, Victoria, and Queensland, but did not serve outside Australia or in the Northern Territory.

The primary legal issue before the court was whether the Applicant's service qualified as 'qualifying service' under section 7A of the Act. The court considered whether the Applicant had actually incurred danger from hostile forces during his service in Australian coastal waters. The Applicant argued that he had incurred danger during his sea passage from Brisbane to Thursday Island in HMAT GORGON and while serving on Red Island. The Respondent argued that the Applicant had not met the objective test of incurring danger from hostile forces as he had not been exposed, at risk of, or in peril of harm or injury from such forces. The court examined the evidence presented by the Applicant and compared it to historical records and previous cases, such as McGuiness and Repatriation Commission and Leslie and Repatriation Commission.

The court concluded that the Applicant had not incurred danger from hostile forces during his service. There was no evidence to suggest that the Applicant was exposed, at risk of, or in peril of harm or injury from hostile forces during his sea passage from Brisbane to Thursday Island or while serving on Red Island. The court found that the Applicant's claims were based on rumours and perceptions rather than actual encounters with danger from hostile forces. The court relied on the authoritative decision in Repatriation Commission v Thompson, which established that the term 'incurred danger' required an objective test to be met. As the Applicant had not met this objective test, he did not qualify for the Gold Card.

The court ordered that the Applicant's application for a Gold Card be dismissed as he had not rendered qualifying service as defined in section 7A of the Act.

Orders

Orders of the court

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Background

Background to the litigation

The Respondent concedes that the Applicant is a veteran as defined in s 5C of the Act. The Applicant meets the age criteria for the Gold Card as defined in s 85(4A)(a), being aged 86 at the time of the application. The Respondent also concedes that the Applicant rendered service during the period of hostilities as defined in s 5B(1). The relevant standard of proof is that of reasonable satisfaction, that is on the balance of probabilities, pursuant to s 120(4) of the Act.FACTS AND EVIDENCE The Applicant was born on 20 March 1913. He worked as a shearer prior to enlisting in the Citizen Military Forces on 17 March 1941. He was posted and taken on strength on 5 November 1941. He transferred into the Australian Imperial Force on 12 November 1943, and was discharged on 21 February 1945 (T3, p8). He was trained as a gunner, serving in various tank attack and anti aircraft units in NSW, Victoria and Queensland. There is no record of any service in the operational area of the Northern Territory, nor did he serve outside Australia (T3, p6). On 7 March 1944, as a member of 154 Light Anti-Aircraft Battery, the Applicant embarked in HMAT GORGON at Brisbane for passage to Thursday Island, where he remained for a few weeks before transferring by barge to Red Island. He gave evidence that the passage north from Brisbane was uneventful. He stated that he was not aware of the route taken by the GORGON, and for much of the passage, was located below decks. The Applicant heard rumours to the effect that enemy submarines were operating in the general area, but there were no announcements or briefings by the command to indicate the presence of enemy forces or an expectation of any enemy threat. He believed that GORGON had been escorted, but did not see any other ship. No incidents of which he was aware occurred then or during the subsequent barge passage from Thursday Island to Red Island and there was no indication of any enemy threat. His transfer from Brisbane to Red Island, and the return to the mainland, were the only occasions of deployment in Australian coastal waters during his army service. The role of the Applicant's unit on Red Island was to provide defence against enemy aircraft, presumably in the event of an attack on Thursday or Horn Islands or on the mainland. His unit was equipped with one anti-aircraft gun as well as small arms. In evidence, the Applicant stated that practice gun drills and firings were conducted, but he neither saw nor heard any indication of enemy activity. He did not think that the island was equipped with radar. Allied aircraft were observed from time to time. The unit remained on Red Island until October 1944, when it transferred to the mainland by barge. Again the Applicant neither saw nor heard any evidence of enemy activity. The unit departed Higginsfield by motor convoy on 9 October for the southern states, where the Applicant served until his discharge on 21 February 1945 at Royal Park, Melbourne. It is in the period covering the sea passage from Brisbane and whilst serving on Red Island, that he believes he incurred danger pursuant to the criteria for qualifying service as defined in s 7A of the Act. ANALYSIS OF EVIDENCE AND FINDINGS

Evidence

Evidence Before The Court

The unit remained on Red Island until October 1944, when it transferred to the mainland by barge. Again the Applicant neither saw nor heard any evidence of enemy activity. The unit departed Higginsfield by motor convoy on 9 October for the southern states, where the Applicant served until his discharge on 21 February 1945 at Royal Park, Melbourne. It is in the period covering the sea passage from Brisbane and whilst serving on Red Island, that he believes he incurred danger pursuant to the criteria for qualifying service as defined in s 7A of the Act. ANALYSIS OF EVIDENCE AND FINDINGS As conceded by the Respondent at the outset, the Applicant is a veteran and meets the requirements of s 85(4A) of the Gold Card Act in respect of age and service during a period of hostilities. The issue is whether the Applicant has rendered qualifying service as defined in s 7A of the Act. The Respondent referred the Tribunal to the authoritative decision of the Full Federal Court in Repatriation Commission v Thompson (1988) 44 FCR 20, wherein their Honours stated at pp 23-24:"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 a 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 Respondent submitted that this requirement to meet an objective test was the central issue in this matter, and that there was no evidence to suggest that such an objective test could be met. Neither historic reports nor evidence evinced in similar cases before the Tribunal (McGuiness and Repatriation Commission [2000] AATA 3, Leslie and Repatriation Commission [2000] AATA 90, Floyd and Repatriation Commission [2000] AATA 519 and Mullen and Repatriation Commission [2000] AATA 871), could support such a contention. The Respondent submitted that accordingly the Applicant had not incurred danger and thus he does not satisfy the definition of qualifying service under s 7A of the Act. As earlier stated, the Applicant did not serve in an operational area of the Northern Territory, nor outside Australia. Red Island is part of the state of Queensland. As noted in the section 57A review of the primary decision, the Applicant cannot benefit from" the Repatriation Commissions coastal waters policy (which) concedes incurred danger for voyages in the area from Sydney to Thursday Island during the dates 3 September 1939 to 16 September 1943, the period of known enemy activity". In both McGuiness (supra) and Leslie (supra), the issue was whether the Applicant had incurred danger whilst taking passage in HMAT GORGON from Sydney to Townsville in August 1944. In both matters, historical reports from Mr B G O'Keefe, Consulting Historian, were taken into evidence. In both matters, the Applicant accepted the 'historical records as submitted in the (O'Keefe) report, in regard to the operations of submarines and the locations of enemy minefields'. The records indicate that the last attack by a Japanese submarine in eastern Australian waters was in June 1943, (although a later sinking by a German submarine occurred in late 1944 off Gabo Island). The only known minefields in the Barrier reef area were laid by allied forces, and the Respondent in those matters submitted that GORGON would have traversed a well used sea route. Whilst the passage of GORGON in McGuiness (supra) and Leslie (supra) took place in August 1944, historical records affirm that similar circumstances existed during the earlier passage of GORGON from Brisbane to Thursday Island with the Applicant in this matter embarked.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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