Clota and Repatriation Commission - [2002] AATA 140

DECISION AND REASONS FOR DECISION [2002] AATA 140

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/298

VETERANS' APPEALS DIVISION       )
           Re      John Clota
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Mr D.J Trowse (Member)

Date5 March 2002
PlaceAdelaide

Decision      The decision under review is affirmed.
  (signed)
  D.J TROWSE
  (Member)
CATCHWORDS
VETERANS' AFFAIRS - qualifying service - gold card – whether the applicant incurred danger from hostile forces of the enemy
Veterans' Entitlements Act 1986, s5B(1)(b), s7A(1)(a)(i), s85(4A), s120(4)
Repatriation Commission v Thompson (1988) 82 ALR 352
Repatriation Commission v Smith (1987) 74 ALR 537

REASONS FOR DECISION

5 March 2002 Mr D.J Trowse (Member)

The decision to be reviewed in this matter is that of a delegate of the respondent dated 15 December 2000 who found that the applicant had not rendered 'qualifying service' during World War 2 and therefore was not eligible for the issue of a Gold Card.
The Tribunal had before it the T Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, and the documents tendered, namely the respondent's statement of facts, issues and contentions dated 8 January 2002, and a statement from Robert Piper, Military and Aviation Historian, dated 9 January 2002 with Annexures A and B. Also, the Tribunal had the benefit of oral evidence from Mr Clota and Mr Piper. Mr Clota, with the assistance of his son, represented himself. The respondent was represented by Mr G. Doube.
Legislation
A veteran's entitlement to the Gold Card is determined in accordance with the provisions contained in sub-section 85(4A) of the Veterans' Entitlements Act 1986 (the Act) which requires, inter alia, that the veteran has rendered qualifying service during the period covered by paragraph (b) of the definition of period of hostilities in sub-section 5B(1). For present purposes, paragraph (b) of sub-section 5B(1) defines 'period of hostilities' as
"(b) World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included);"
Relevant to this reference is sub-section 7A(1)(a)(i) which provides that a person has rendered qualifying service if the person has, as a member of the Defence Force:
"rendered service, during a period of hostilities specified in paragraph (a) or (b) of the definition of period of hostilities in subsection 5B(1), at sea, in the field or in the air in naval, military or aerial operations against the enemy in an area, or on an aircraft or ship of war, at a time when the person incurred danger from hostile forces of the enemy in that area or on that aircraft or ship;
…"

According to views expressed on the respondent's behalf at the hearing, and which the Tribunal shares, the above sub-section contains two limbs, both of which require compliance. It was contended that, in addition to the veteran incurring danger from enemy forces, he must have been engaged in direct operations against the enemy. Notwithstanding the two limb hypothesis, it is clear that the decision of the delegate was foundered solely on the absence…

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 Clota and Repatriation Commission

Details

AGLC: Clota and Repatriation Commission [2002] AATA 140
Case: [2002] AATA 140
Decision Date: 5 March 2002

CaseChat Overview and Summary

Clota sought to have a Gold Card issued under the Veterans' Entitlements Act 1986, which would recognise his service and entitle him to certain benefits. The Repatriation Commission refused to issue the Gold Card, holding that Clota's service did not qualify as it did not involve danger from hostile forces of the enemy. Clota appealed the Commission's decision to the Administrative Appeals Tribunal (AAT).

The legal issues before the AAT were whether Clota's service at 76 Operational Base Unit qualified as "qualifying service" under the Act, specifically whether he incurred danger from hostile forces of the enemy. The evidence showed that Clota's duties involved coding and decoding messages, and that during his service an unidentified aircraft was detected but no contact or conflict occurred. Clota argued this incident constituted incurring danger as required by the Act.

The AAT found that Clota's service did not meet the requirements of incurring danger from hostile forces of the enemy as per section 7A(1)(a)(i) of the Act. The evidence showed there were no air raids or enemy forces operating in the Exmouth Gulf area during Clota's service. While Clota perceived a danger during the unidentified aircraft incident, the AAT found this did not constitute incurring danger from hostile forces of the enemy as required by the Act.

The AAT affirmed the Repatriation Commission's decision that Clota's service did not qualify as "qualifying service" under the Act and that he was not entitled to a Gold Card. The AAT found that Clota's service did not involve incurring danger from hostile forces of the enemy as required by the Act. The appeal was therefore dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Throughout the whole of his service at 76 Operational Base Unit, the applicant's duties related solely to the coding and de-coding of messages and their transmission. Indeed, it was while engaged in those activities in February 1945 that a telephone call was received at 10.00 pm from the radar station advising that an unidentified aircraft was in the region. The alert was raised and a total black-out lasting one hour was imposed during which the applicant remained at his desk. Upon the lifting of the ban, the applicant immediately resumed his duties. The aircraft was never identified nor did contact or conflict of any kind ensue. According to the applicant, it is this incident that caused him to incur danger of the kind envisaged by the sub-section.Evidence of Mr R Piper Mr Piper, who impressed with his general knowledge and depth of detail, gave an overview of events occurring in the Exmouth Gulf area during World War 2. On the issue of air attacks he advised of three air raids and supplied the following detail:"20 May 1943 - Two aircraft at between 2255 and 2350 hours. Exmouth Gulf area. No bombs dropped. Reconnaissance.21 May 1943 - One aircraft in the Onslow area which also flew over 74 OBU during the period 2255 to 2355 hours. No bombs dropped.15-16 September 1943 - One aircraft around midnight. Eight bombs dropped on a tidal flat 4 to 5 miles south west of Onslow." Mr Piper had no record of the flight of the unidentified aircraft in February 1945. However, he did refer to the common error of some allied pilots of not activating the instrument called "IFF" which stands for Identification, Friend or Foe. This equipment emits a small electronic pulse, which is picked up by radar. Failure to switch on will lead to a friend being treated as a foe and the raising of an alarm. Having regard to the state of the war then being waged and the improbability of enemy aircraft being so distant from the actual battle lines, Mr Piper expressed the view that the February alert may have resulted from the kind of error as described. When asked as to the possibility of the applicant having contact with enemy forces during his service at Exmouth Gulf, the witness replied that there is no record of enemy forces, ships or aircraft operating in that area during 1944-45. Therefore, it was the opinion of Mr Piper that the applicant could not have been in direct or indirect contact with enemy forces during the stipulated period. He continued on with the statement that the Exmouth Gulf area was considered a quiet backwater by 1944-45 as the war against Japan had reached the Philippines and Japan itself.Applicant's Case Ostensibly, the applicant relies on the February 1945 incident and the resultant perceived danger. Nevertheless, the Tribunal is left with the distinct impression that the applicant was more concerned with the need to proclaim his conception of the unfairness of the legislation. Clearly, the applicant seeks acknowledgment of his service, including the receipt of a Gold Card. A denial is viewed as discriminatory because of the command structure that dictated a serviceman's posting. By reason of that structure, it was contended that exposure to hostilities should not be a pre-requisite to the issue of a Gold Card and that to apply the law in the current manner is not in the spirit of the legislation. Furthermore, the applicant submitted that he had been disadvantaged by a change of the relevant legislation in 1991 and that, had he applied for a Gold Card prior to that alteration, he would have been so entitled.The Tribunal's Conclusion

Decision

Reasons for decision

It is the Tribunal's conclusion that the service rendered by the applicant does not meet the requirements of sub-section 7A(1)(a)(i) of the Act and thus he is not entitled to be issued with a Gold Card.Decision Accordingly, for the reasons stated, the Tribunal affirms the decision under review. I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr D.J Trowse (Member)Signed: ..................................................................................... AssociateDate/s of Hearing 15 January 2002 Date of Decision 5 March 2002Counsel for the Applicant In personSolicitor for the Applicant - Counsel for the Respondent Mr G. Doube Solicitor for the Respondent Repatriation Commission

Ratio Decidendi

Legal Principle Established

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