Goesch and Repatriation Commission - [2002] AATA 191

DECISION AND REASONS FOR DECISION [2002] AATA 191

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/572

VETERANS' APPEALS DIVISION )

Re GODFREY HENRY GOESCH
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date22 March 2002
PlaceSydney

Decision The decision under review is affirmed.

..............................................
Rear Admiral A R Horton AO
Member
CATCHWORDS
VETERANS' AFFAIRS – Gold Card eligibility – service in Royal Australian Air Force – service in Northern Territory – whether Applicant rendered qualifying service – whether incurred danger from hostile forces

Veterans' Entitlements Act 1986 – sections 5B(1), 5C(1), 7A, 36, 120(4)
Veterans' Entitlements Amendment (Gold Card) Act 1998 – section 85(4A)

Repatriation Commission v Thompson (1988) 44 FCR 20
Willcocks v Repatriation Commission (1992) 39 FCR 49
Repatriation Commission v Burton (1993) 31 ALD 475
Repatriation Commission v Tiernan [2001] FCA 519

REASONS FOR DECISION

Rear Admiral A R Horton AO, Member

This is an application for review of a decision dated 31 August 2000 by a delegate of the Repatriation Commission ("the Respondent"), and affirmed by review under section 57A of the Veterans' Entitlements Act 1986 ("the Act") on 22 March 2001, that Godfrey Henry Goesch ("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 3 May 2001.
At the hearing before the Tribunal on 7 February 2002, 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 section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also took into evidence a report by Mr R Piper of Military Aviation Research Services, with Annexures A to E, dated 14 September 2001 (Exhibit R1). Mr Piper was called by the Respondent to give oral evidence before the Tribunal.
ISSUES BEFORE THE TRIBUNAL
The Applicant claims qualifying service as a prerequisite for eligibility for a Gold Card. Eligibility is established pursuant to section 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 for such treatment."

Qualifying service is defined in section 7A of the Act, which…

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 Goesch and Repatriation Commission

Details

AGLC: Goesch and Repatriation Commission [2002] AATA 191
Case: [2002] AATA 191
Decision Date: 22 March 2002

CaseChat Overview and Summary

The applicant, who served in the Royal Australian Air Force during World War II, sought eligibility for a Gold Card under the Veterans' Entitlements Act 1986. The dispute centred on whether the applicant rendered qualifying service, specifically whether he incurred danger from hostile forces. The case was heard and determined by Rear Admiral A R Horton AO, a member of the relevant tribunal. The primary legal issue was whether the applicant had rendered qualifying service as defined by section 85(4A)(b) of the Veterans' Entitlements Amendment (Gold Card) Act 1998. The court had to decide if the applicant had served in military or aerial operations against the enemy and whether he had incurred danger from hostile forces, as required by section 7A of the Act.

The court examined the evidence and found that while the applicant had served in the RAAF during a period of hostilities, there was insufficient evidence to prove that he had incurred danger from hostile forces. The applicant's recollection of an incident involving an attacking aircraft was not substantiated by other evidence. The court relied on previous decisions such as Repatriation Commission v Thompson, Willcocks v Repatriation Commission, and Repatriation Commission v Burton, which emphasized that 'incurred danger' requires actual exposure to risk of harm from hostile forces, not merely the perception or fear of danger. The court concluded that the applicant had not met the required standard of proof, i.e., reasonable satisfaction, to establish that he had engaged in operations against the enemy. Therefore, the applicant did not qualify for the Gold Card.

The tribunal affirmed the decision under review, holding that the applicant was not eligible for the Gold Card. The member certified that the provided paragraphs accurately reflected the reasons for the decision. The applicant, who was self-represented, and the advocate for the respondent, Mr. J Marsh, participated in the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

The issue to be determined in this application is whether the Applicant rendered qualifying service pursuant to section 85(4A)(b) of the Gold Card Act. The relevant standard of proof is that of reasonable satisfaction, that is on the balance of probabilities, pursuant to subsection 120(4) of the Act.FACTS AND EVIDENCE The Applicant enlisted in the Royal Australian Air Force ("RAAF") on 10 June 1941 (T3) having been working in the haulage industry since leaving school. Following three months initial training in Sydney, he was posted to Melbourne for training as an armourer. In September 1942 he was posted to Wagga and qualified as a turner, remaining in that mustering for the duration of his service. His service record shows that he was subsequently posted to 14 Aircraft Repair Depot ("14 ARD") in Melbourne on 29 March 1943. As confirmed by RAAF Records (T11), the Applicant was deployed with an advance party of the unit to Gorrie in the Northern Territory commencing on 11 April 1943. He gave evidence that he travelled by train to Alice Springs and then truck through Larrimah to Gorrie, and that the date 'sounded about right'. The main body of the unit moved from Melbourne for Gorrie on 5 May 1943. The Applicant remained with 14 ARD until July 1944, when he was posted to the Sydney area where he remained until discharge on 19 November 1945. The Applicant did not serve outside Australia at any time. In a letter to the Tribunal dated 25 April 2001 (T1), that is after his application for review had been lodged, the Applicant expressed concern that the section 57 review concluded he had not been in danger in spite of his discharge papers recording 'Returned for Active Service'. He went on to suggest that his service records might not be showing full details of his service in the Northern Territory, describing his service thus (T1, pp2-3):"…I can understand things were confusing in those early days of my posting to 14 ARD and the effort everyone was giving to get 14 ARD under full production, as this was a new repair depot and was of utmost urgency…My mustering was a turner which put me in (G.E.S) General Engineering Section and my duties would have been given from there in most cases. The machine shop was still waiting for a machine lathe, tools etc, in making the machine shop complete…In those early days of my arrival at 14 ARD 1943, things would happen and quickly change. One day I was told to get my gear ready… I was then given movement orders, taken to the railway, and put on the train… and told when you get to Adelaide River a tender will pick you up from the train. I was there at Adelaide River for some time and was about to be taken back to 14 ARD by RAAF tender, but those things changed and I was taken north up past airstrips army and air force equipment…Returning back to 14 ARD somewhere north of Batchelor, we were going along OK when out of nowhere, aircraft noise, it seemed to be coming directly at us, followed by machine gun noise..."

Evidence

Evidence Before The Court

An extract of the Applicant's Members Pay Book (T9) refers to a NWA Group. Mr Piper was unable to find any record of such an organisation, and considered it had no operational significance, but was used in a co-ordinating role for pay purposes. The Applicant accepted this conclusion.ANALYSIS OF EVIDENCE AND FINDINGS As conceded by the Respondent at the outset, the Applicant is a veteran and rendered service "during a period of hostilities" as defined in section 5B(1) of the Act. The issue is whether the Applicant rendered qualifying service as defined in section 7 of the Act, noting that such service must be "in military or aerial operations against the enemy… at a time when the person incurred danger from hostile forces of the enemy…" The Full Federal Court considered the implications of 'incurred danger' in Repatriation Commission v Thompson (1988) 44 FCR 20, wherein their Honours stated at 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." In Willcocks v Repatriation Commission (1992) 39 FCR 49, Cooper J defined the term "operations against the enemy" at 56 thus:"Accordingly, in my view the word 'against' in the phrase 'military operations against the enemy' is used in the sense of 'in hostility or active opposition to'. This is the common meaning and general usage of the word 'against' in such a context. The section requires services, inter alia, in military operations against the enemy, in the sense of operations in hostility or opposition to the enemy." In this matter, the Respondent submitted that whilst it could be argued that the Applicant had incurred danger when faced with an apparently attacking aircraft whilst en route from Coomallie Creek to Gorrie, this was not from enemy forces. He submitted that there was no evidence to suggest that the Applicant had been in operations against the enemy, nor that he had been under threat from enemy action such that he would meet the incurred danger test. The Respondent referred to the Federal Court decision in Willcocks (supra), followed in Repatriation Commission v Burton (1993) 31 ALD 475 and Repatriation Commissionv Tiernan [2001] FCA 519, as being relevant to the issue of whether the Applicant in this matter was involved in operations against the enemy. The Respondent submitted that these decisions were binding on the Tribunal, and that the Applicant could not be said to have engaged in operations against the enemy, and hence he could not satisfy the definition of qualifying service under section 7A of the Act.

Decision

Reasons for decision

In this matter, there is no evidence against the required standard of proof, that is of reasonable satisfaction, that the Applicant incurred danger in operations against the enemy during his service in the RAAF. Accordingly, the Applicant has not met the conditions pursuant to section 7A of the Act in respect of qualifying service, and is therefore not eligible for the Gold Card as defined in section 85(4A) of the Gold Card Act. DECISION The decision under review must therefore be affirmed.I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton AO, Member Signed: O. Caragianni ..................................................................................... AssociateDate of Hearing 7 February 2002 Date of Decision 22 March 2002Self-represented Applicant Advocate for the Respondent Mr J Marsh

Ratio Decidendi

Legal Principle Established

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