Credlin and Repatriation Commission - [2001] AATA 539

DECISION AND REASONS FOR DECISION [2001] AATA 539

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/327

VETERANS' APPEALS DIVISION )

Re JOHN EDWARD CREDLIN
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mr A. Argent, Member

Date15 June 2001
PlaceMelbourne

Decision The Tribunal affirms the decision under review.

..........(Sgd) A. Argent.............
Member
CATCHWORDS
VETERANS' AFFAIRS – whether qualifying service – whether incurred danger from hostile forces of the enemy – decision affirmed
Veterans' Entitlements Act 1986 s. 7A
Repatriation Commission v Thompson (1988) 82 ALR 352

REASONS FOR DECISION

15 June 2001 Mr A. Argent, Member

This is an appeal by Mr John Edward Credlin ("the veteran") against a decision of a Service Pension Review Officer of the Repatriation Commission ("the Commission") dated 5 January 2000.
That decision affirmed a previous decision by a delegate of the Commission dated 6 September 1999 which determined the veteran had not rendered qualifying service during the period of hostilities of World War II.
The period of hostilities of World War II is from 3 September 1939 to 29 October 1945.
Qualifying service is defined at section 7A of the Veterans' Entitlements Act 1986 ("the Act"). Part of this section reads:
"7A. (1) …, a person has rendered qualifying service:
(a)if the person has, as a member of the Defence Force:
(i)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; …"

Issue

The issue before the Tribunal is whether the veteran rendered qualifying service during World War II and specifically whether he "incurred danger from hostile forces of the enemy".
The evidence
The Tribunal had before it the documents ("the T documents") lodged by the Commission pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Included in these documents is a statement made by the veteran on 15 October 1999 concerning his case.
The Tribunal also had before it:
(a)A letter dated 16 September 1999 from the Department of Defence Naval History Directorate concerning RAN and RAAF activities in Broome 1943
(b)Letters dated 3 June 1998 and 22 May 2000 from the veteran concerning his service
(c)Three reports from an historian, Mr R. Piper, dated 23 June 2000, 21 October 2000 and 21 April 2001 concerning places and events relevant to the veteran's service.
The veteran presented his own case and the respondent was represented by Mr R. Douglass, a Commission advocate.
The veteran was born on 3 February 1924, enlisted in the RAAF on 12 June 1942 and was discharged on 21 March 1946. He was aged 75 when he applied for a Service Pension.
The veteran based his case for qualifying service on:

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 Credlin and Repatriation Commission

Details

AGLC: Credlin and Repatriation Commission [2001] AATA 539
Case: [2001] AATA 539
Decision Date: 15 June 2001

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal involved the applicant, a veteran, and the Repatriation Commission. The veteran sought a service pension under the Veterans' Entitlements Act 1986. The central issue was whether the veteran's service qualified for pension benefits, specifically whether he had "incurred danger from hostile forces of the enemy" during World War II. This was a question of fact, to be determined on the balance of probabilities. The Tribunal had before it various pieces of evidence, including statements from the veteran, historical reports, and correspondence from the Department of Defence. The veteran presented his own case, and the Repatriation Commission was represented by an advocate.

The Tribunal was required to determine whether the veteran's activities during his service met the statutory criteria for incurring danger from hostile forces. The Tribunal needed to consider the veteran's claims about his flying training at Bundaberg, his observations of Japanese aircraft over Broome, and his involvement in clearing wreckage from the Broome harbour. Each of these claims needed to be assessed in turn to determine if they constituted "incurring danger from hostile forces of the enemy". The Tribunal's role was to weigh the evidence and make a finding on the balance of probabilities regarding each claim.

In its decision, the Tribunal found that the veteran did not incur danger from hostile forces during his flying training at Bundaberg, as no enemy aircraft were encountered during his sea flights. The Tribunal also found that while the veteran saw Japanese aircraft over Broome, there were no attacks made on Broome, and thus no danger was incurred from these observations. Furthermore, the Tribunal determined that the veteran did not incur danger from hostile forces during his harbour clearing duties at Broome, as there were no enemy attacks or hazards such as explosions encountered during these operations. Given these findings, the Tribunal concluded that the veteran did not meet the statutory requirement of incurring danger from hostile forces of the enemy. Consequently, the Tribunal affirmed the decision of the Repatriation Commission denying the veteran's claim for a service pension.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issue before the Tribunal is whether the veteran rendered qualifying service during World War II and specifically whether he "incurred danger from hostile forces of the enemy".The evidence The Tribunal had before it the documents ("the T documents") lodged by the Commission pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Included in these documents is a statement made by the veteran on 15 October 1999 concerning his case. The Tribunal also had before it:(a)A letter dated 16 September 1999 from the Department of Defence Naval History Directorate concerning RAN and RAAF activities in Broome 1943(b)Letters dated 3 June 1998 and 22 May 2000 from the veteran concerning his service(c)Three reports from an historian, Mr R. Piper, dated 23 June 2000, 21 October 2000 and 21 April 2001 concerning places and events relevant to the veteran's service. The veteran presented his own case and the respondent was represented by Mr R. Douglass, a Commission advocate. The veteran was born on 3 February 1924, enlisted in the RAAF on 12 June 1942 and was discharged on 21 March 1946. He was aged 75 when he applied for a Service Pension. The veteran based his case for qualifying service on:(a)When undergoing flying at Bundaberg, Queensland he flew out to sea 15-20 miles(b)During his service in Broome, West Australia (i)he saw Japanese aircraft overhead(ii)he was in danger when he was engaged in clearing wrecked aircraft from the harbour. The veteran said that during his flying training at Bundaberg, 15 March –20 July 1943 he flew out to sea on a number of occasions. No enemy were sighted during these flights. During his later service he was posted to 40 Zone Filter Centre at Broome, West Australia. The veteran said he travelled from Adelaide, where he attended a school of technical training, to Perth by train. He then went by air from Perth to Broome. The flight was across land, the direct route, not out to sea. He does not accept his Records date of service with 40 Zone Filter Centre beginning 12 October 1943. He believes he arrived at Broome some time before this – about two and half weeks or so. Whilst at Broome he saw Japanese aircraft flying high over Broome. They made no attacks on Broome – no bombs were dropped, there was no air-to-ground firing, he said. His work in Broome harbour was connected with clearing the wreckage of allied aircraft which had been destroyed by the Japanese in an air raid in early 1942. He said he worked on what he thought was a lugger and, amongst other things, he recalled manning an air pump for divers who were clearing wreckage. During these operations there were no explosions (from perhaps unexploded enemy bombs).Findings The standard of proof in this case is on the balance of probabilities; that is, on the balance of probabilities did the veteran incur danger from hostile forces of the enemy when:(a)During his service flying training at Bundaberg he flew out to sea 15 –20 miles(b)At Broome he saw enemy aircraft overhead and(c)Also when at Broome he was engaged in harbour clearing operations.

Decision

Reasons for decision

The Tribunal also finds the veteran did not incur danger from the hostile forces of the enemy when he was engaged in harbour clearing duties in 1944 at Broome as there were no enemy attacks made on them and there were no hazards such as explosions encountered.Decision The decision of the Commission is affirmed.I certify that the twenty (20) preceding paragraphs are a true copy of the reasons for the decision herein of Mr A. Argent, MemberSigned: ..................................................................................... Personal AssistantDate/s of Hearing 21 May 2001Date of Decision 15 June 2001The Applicant Self-representedSolicitor for the Respondent Mr R. Douglass, departmental advocate

Ratio Decidendi

Legal Principle Established

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