Dennison and Repatriation Commission - [2000] AATA 830

Administrative
Appeals
Tribunal

DECISION AND REASONS FOR DECISION [2000] AATA 830

ADMINISTRATIVE APPEALS TRIBUNAL )

) N0 N1999/1534

VETERANS' APPEALS DIVISION )

ReALLAN ROBERT DENNISON
Applicant

AndREPATRIATION COMMISSION
Respondent

DECISION

TribunalRear Admiral AR Horton AO (Member)
Date18 September 2000
PlaceSydney
DecisionThe decision under review is affirmed.
Rear Admiral A R Horton
Member

CATCHWORDS
VETERANS' AFFAIRS – Gold Card eligibility – whether Applicant rendered qualifying service – RAAF service during period of hostilities – service in Northern Territory – passage to Anjo Peninsula – incident of destruction Dinah aircraft July 1944 - whether incurred danger from hostile forces of enemy

Veterans' Entitlements Act 1986 – ss5B(1), 5C(1), 7A, 120(4)
Veterans' Entitlements Amendment (Gold Card) Act 1998 – s85(4A)

Repatriation Commission v Thompson (1988) 44 FCR 20
Re Maller and Repatriation Commission (AAT 8280, 16 September 1992)
Re Lawrie and Repatriation Commission (AAT 6359, 9 November 1990)
Repatriation Commission v Smith (1987) 15 FCR 327
Re Bancroft and Repatriation Commission (AAT 11333, 25 October 1996)
Re Kemp and Repatriation Commission (AAT 11513, 5 November 1996)
Repatriation Commission v Burton (1993) 31 ALD 475
Re Crawford and Repatriation Commission (1987) 14 ALD 341

REASONS FOR DECISION
Rear Admiral A R Horton
INTRODUCTION

This is an application for a review of a decision made on 18 February 1999 by a delegate of the Repatriation Commission ("the Respondent"), and affirmed by review under section 57 of the Veterans' Entitlements Act 1986 ("the Act") on 6 July 1999, that Allan Robert Dennison ("the Applicant") did not render qualifying service for the purposes of section 7A of the Act, and hence is not eligible for a Gold Card under section 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 7 October 1999.
At the hearing before the Tribunal on 16 June 2000, the Applicant was self represented. Mr J Marsh, Senior Advocate, appeared for 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 Tribunal also received the following documents into evidence :
Exhibit A1     Letter to the Tribunal from the Applicant dated 15 November 1999, with two page attachment.
Exhibit A2     Letter to the Tribunal from the Applicant dated 29 February 2000, with attachments.
Exhibit A3     Letter to the Tribunal from the Applicant dated 9 June 2000.
Exhibit A4     A minute dated 28 July 1944 by Flight Lieutenant J F Mahoney enclosing sketches of a Japanese Aircraft.
Exhibit R1     Report by Mr B G O'Keefe, consulting historian, dated 7 February 2000, with attachments.
Exhibit R2     Report by Mr B G O'Keefe, consulting historian, dated 7 April 2000, with attachments.
Exhibit R3     Report by Mr B G O'Keefe, consulting historian, dated 18 April 2000, with attachments.

Mr O'Keefe was called by the Respondent to give evidence.
ISSUES BEFORE THE TRIBUNAL
The Applicant claims qualifying…

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 Dennison and Repatriation Commission

Details

AGLC: Dennison and Repatriation Commission [2000] AATA 830
Case: [2000] AATA 830
Decision Date: 18 September 2000

CaseChat Overview and Summary

In the matter of Dennison and Repatriation Commission, the court was called upon to determine the eligibility of the Applicant for a Gold Card under the Veterans' Entitlements Act 1986, specifically whether the Applicant's service rendered during the period of hostilities qualified as warlike service. The Applicant, who served in the Royal Australian Air Force (RAAF) in the Northern Territory and was involved in the passage to the Anjo Peninsula, as well as the incident involving the destruction of the Dinah aircraft in July 1944, sought to establish that he had incurred danger from hostile forces of the enemy.

The legal issues before the court included whether the Applicant's service met the criteria for warlike service as defined by the Act, and whether there was any policy discrimination in the assessment of risk for veterans serving in different geographical locations within Australia. The court was required to interpret the relevant provisions of the Act, including sections 5B(1), 5C(1), 7A, and 120(4), and the Veterans' Entitlements Amendment (Gold Card) Act 1998, in light of the evidence presented and the relevant case law.

The court found that the term "warlike service" as used in the Act required a determination by the Minister for Defence under section 5C of the Act, which had not been implemented for the relevant period of hostilities. The court also considered the policy developed by the Respondent against risk factors and relevant case law, and concluded that there was no evidence of a submarine or mine threat during the passage to the Anjo Peninsula, nor was there any evidence of incidents as confirmed in the Report of Proceedings by HMAS Junee. The court referred to several cases, including Repatriation Commission v Burton (1993) 31 ALD 475, Re Bancroft and Repatriation Commission (AAT 11333, 25 October 1996), Re Maller and Repatriation Commission (AAT 8280, 16 September 1992) and Re Kemp and Repatriation Commission (AAT 11513, 5 November 1996), which supported the Respondent's position that the Applicant did not incur danger in this phase of his service.

The court's decision was that the Applicant's service did not qualify as warlike service under the Act, and thus he was not eligible for a Gold Card. The Applicant's appeal was dismissed, and the orders of the Administrative Appeals Tribunal were affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In cross examination, Mr O'Keefe was questioned as to the nature and extent of the explosion, noted when the aircraft was at about 6000 feet. His view is that the fuel tank exploded, but it could have been the wing and attached motor separating from the aircraft. The Applicant remained of the view that the aircraft exploded whilst in the spin, the implication being that parts would have landed on the ground rather than in the sea. In response to a question as to the risk to personnel on the ground, Mr O'Keefe opined that the fragmentation devices dropped from the Dinah were of no risk to such personnel. ANALYSIS OF EVIDENCE AND FINDINGS In his final submission, the Applicant expressed three levels of concern. Firstly, subsection 7A(1)(a)(iv) of the Act refers to the rendering of "warlike service" as a member of the Defence Force as being sufficient to meet the qualifying service criteria, the view of the Applicant being that a Ministerial determination to that effect, in the circumstances of his service, should be in place. Secondly, the Applicant refers to advice by the Respondent (Department of Veterans' Affairs, Deputy Commissioner, letter of 23 July 1999 at T15) whereby in certain geographical circumstances, and within certain dates, a veteran serving in Australia may be considered to have qualifying service. The Applicant submitted that the relevant periods did not relate to a proper assessment of risk and that those making sea passages on the north west coast were discriminated against compared with the situation elsewhere, such as on the south coast. Thirdly, in relation to his particular circumstances, a number of matters were relevant. The fact that SS John Owen was escorted during the passage to the Anjo Peninsular, was recognition by higher authority of the vulnerability of the ship and the danger to which those embarked were exposed, as well as the importance of defence activities at Anjo. Submarine and mines posed a further threat. He submitted that the Dinah was shot down 'overhead', exposing troops on the ground to danger as it disintegrated, as evidenced in the explosion and the wing separation, which he believed had landed in the adjacent bush. In his view, all personnel at 154 Radar Station were exposed to danger. In response, the Respondent submitted that the expression "warlike service" as in subsection 7A(1)(a)(iv) required a determination by the Minister for Defence vide section 5C of the Act, to be put into effect. No such determination in respect of the relevant period of hostilities has been implemented. In regard to policy discrimination between various areas on the Australian coast, the Respondent submitted that policy had been developed against risk factors and case law. The Respondent submitted that the John Owen was at no stage at risk. There was no evidence of a submarine or mine threat; there were no incidents, as confirmed in the Report of Proceedings by HMAS Junee. The Respondent referred to Repatriation Commission v Burton (1993) 31 ALD 475, Re Bancroft and Repatriation Commission (AAT 11333, 25 October 1996), Re Maller and Repatriation Commission (AAT 8280, 16 September 1992) and Re Kemp and Repatriation Commission (AAT 11513, 5 November 1996), all of which supported the Respondents position that the Applicant did not incur danger in this phase of his service.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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