Dibbs and Repatriation Commission
[2001] AATA 526
•15 May 2001
DECISION AND REASONS FOR DECISION [2001] AATA 526
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/406
VETERANS' APPEALS DIVISION )
Re anthony vernon dibbs
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date15 May 2001
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2001/406
)
VETERANS' APPEALS DIVISION )
Re: ANTHONY VERNON DIBBS
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date 15 May 2001
Place Sydney
DecisionPursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975, on an application dated 6 April 2001 for an extension of time, it is ordered that the time for the lodging of an application by the Applicant for a review of a decision made by the Respondent not be extended.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Extension of time. Refused on basis application had no prospects of success. Whether Applicant rendered qualifying service. Application of an objective test. Although German submarine sighted no evidence of actual danger being incurred.
Veterans' Entitlements Act 1986
Hunter Valley Developments Pty Ltd v Cohen 3 FCR 344
Windshuttle v Deputy Federal Commissioner of Taxation 46 FCR 235
Re Commonwealth of Australia and Another; Ex parte Marks 177 ALR 491
Gallo v Dawson 64 ALJR 458
Repatriation Commission v Thompson 82 ALR 352
REASONS FOR DECISION
Senior Member M D Allen
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed: Kwai-Ling Wong
..................................................................................……………………………….Associate
Date of Hearing 15 May 2001
Date of Decision 15 May 2001Solicitor for Applicant Applicant was self-represented
Advocate for Respondent Mr Peter Godwin,
Department of Veterans' Affairs
DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2001/406
By MR M.D. ALLEN, Senior Member
DIBBS and REPATRIATION COMMISSION
SYDNEY, TUESDAY, 15 MAY 2001MR ALLEN: Well, in this matter the applicant seeks, pursuant to subsection 7 of section 29 of the Administrative Appeals Tribunal Act (1975) an extension of time in which to seek a review of a decision by the respondent, Repatriation Commission. The decision in question is to the effect that he did not render qualifying service in accordance with section 7A of the Veterans' Entitlements Act (1986). The effect of that is that the applicant is ineligible for what is termed a "Gold Card".
The applicant, it is conceded by the respondent, served in the Royal Australian Air Force, during the period of the Second World War. Indeed, he served from 13 November 1942 to 6 November 1945, and his mustering was that of a navigator. Unfortunately for Mr Dibbs, although he enlisted for active service, the exigencies of the service were such that he did not serve outside Australia, nor did he serve in the Northern Territory above the 14.5 degree parallel.
To have rendered qualifying service pursuant to section 7A, a person must have rendered service during a period of hostilities, which in this case it is clear that the applicant did, and in his case in the air, in aerial operations against an enemy at a time when the person incurred danger from hostile forces of the enemy. The decision of the Repatriation Commission is dated 31 July 2000. The application for review was lodged with the Tribunal on 30 March 2001, so that it would, on the face of it, appear that the applicant is out of time.
It is not clear from the material before me just when the applicant received the copy of the decision which he now seeks to have reviewed, however in his application to extend time he says, approximately late 2000. Before me this morning the applicant said that at the time he was suffering from a severe medical condition and lost track of things. In the case of elderly veterans that is more than understandable, and one can certainly take that into account, and it certainly ameliorates some of the harshness, or apparent harshness, of some of the provisions as to extensions of time.
In considering whether an extension of time should be granted, I have regard to what have been termed the non exhaustive guiding principles enunciated by his Honour, Wilcox J, in Hunter Valley Developments Pty Ltd v Cohen, 3 FCR 344 at 348/349. The first of those principles is that special circumstances need not be shown, however an extension of time will not be
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©Auscript Pty Ltd 2001granted unless the court or indeed the Tribunal is positively satisfied that it is proper to do so.
The applicant should show an explanation for the delay. In this case, as I said earlier, in the case of an elderly veteran, I am more than happy to accept as an acceptable explanation for the delay that because of his medical condition, he lost count of things. There is also a reference to whether the applicant has made the decision maker aware that he continues to dispute the decision, and in this case this has not been the case. The third principle is prejudice, and prejudice I take it to have meant prejudice in the sense discussed by his Honour Von Dousa J, in Windshuttle v Deputy Federal Commissioner of Taxation 46 FCR 235.
In the case of veterans' matters it seems to me that there can never really be prejudice in the Windshuttle sense because invariably the matters referred to will have taken place in the past. However, the fifth principle referred to by his Honour Wilcox J, is the merits of the substantial application. That merits are important has been made clear by recent decision of his Honour, McHugh J, in the High Court. I refer to re Commonwealth of Australia and Another; Ex parte Marks 2000 HCA 67. There, his Honour followed his previous decision in Gallo v Dawson, 64 ALJR 458 or 93 ALR 479.
However, in ex parte Marks, his Honour said at paragraph 13:
"In Gallo v Dawson, I said that the grant of an extension of time under … is not automatic. … I also said that, when the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. A similar inquiry must be made when the application is for an extension of time in which to commence s75(v) proceedings to quash an act, decision or judgment. A "a case would need to be exceptional" before the time for commencing proceedings was enlarged by many months.
His Honour also said, significantly:
The explanation for such a delay is also a relevant consideration.
In this matter, the applicant seeks an extension of time in which to review a decision that he did not render qualifying service. That requires him to show that he incurred danger from hostile forces of the enemy. His statement to the respondent, Repatriation Commission and to me today is that he was on an anti submarine patrol, flying out of South Australia, when he sighted a submarine. It would appear from other material that most likely it was a German submarine and there is certainly some evidence that there was a German submarine, U862, operating off the western and southern areas of Australia and through Bass Strait at the relevant time.
dibrepj 15.5.01 P-2
©Auscript Pty Ltd 2001The applicant said, and I have no reason whatsoever to doubt him in this, that they saw the submarine, there was a gun crew on deck, and the Anson aircraft in which he was the navigator, made a pass across the submarine such as to bring it within the range of the deck armament. However, apparently nothing occurred as he said the gun crew went below and the submarine submerged. In Repatriation Commission v Thompson 82 ALR 352, the Full Court of the Federal Court pointed out that the test of incurring danger is such a serviceman incurred danger, that he or she encountered danger, was in danger or was endangered.
The serviceman incurred danger from hostile forces when he or she was exposed to, at risk of, or in the peril of harm or injury from hostile forces. A mere risk of or liability to danger or danger which was minimal was not sufficient. The test for incurred danger was objective. Now, in this matter, although the applicant was on an operational flight and observed an enemy submarine, that was the end of it. There is no material before me which suggests that the applicant actually incurred danger at that time in the objective sense referred to in Thompson's case.
It is therefore most unlikely that the applicant would succeed in any substantive appeal. When one takes that into account together with the prima facie rule, as mentioned by his Honour Wilcox J, in Hunter Valley Developments Supra, that prima facie proceedings begun out of time will not be entertained. In my opinion this is a case where it is not proper to extend the time in which to review the impugned decision. The application will therefore be dismissed.
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©Auscript Pty Ltd 2001
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