Howe and Repatriation Commission - [2000] AATA 1014

DECISION AND REASONS FOR DECISION [2000] AATA 1014

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/133

VETERANS' APPEALS DIVISION )

Re JOHN LLOYD HOWE
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date17 November 2000
PlaceSydney

Decision The decision under review is affirmed.

[Sgd] A Horton
Member
CATCHWORDS

VETERANS' AFFAIRS – gold card eligibility - service in Volunteer Defence Corps during period of hostilities - whether applicant rendered qualifying service – whether Australian or Allied mariner – whether incurred danger during warship sea trials – whether engaged in military operations against the enemy

Veterans' Entitlements Act 1986 - ss 5B(1), 5C(1), 7A, 120(4)
Veterans' Entitlements Amendment (Gold Card) Act 1998 – s 85(4A)

Repatriation Commission v Thompson (1988) 44 FCR 20
Willcocks v Repatriation Commission (1992) 39 FCR 49
Repatriation Commission v Smith (1987) 15 FCR 327
Re Meldrum and Repatriation Commission [1999] AATA 330

REASONS FOR DECISION

Rear Admiral AR Horton AO, Member

This is an application for review of a decision dated 30 September 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 13 January 2000, that John Lloyd Howe ("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 subsection 85(4A) of the Veterans' EntitlementsAmendment (Gold Card) Act 1998 ("the Gold Card Act"). The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 28 January 2000.

At the hearing before the Tribunal on 10 October 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 section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also took into evidence the following:

Statement by the Applicant dated 16 March 2000.       Exhibit A1
Letter from the Applicant to the Tribunal dated 19 April 2000. Exhibit A2
Statutory Declaration by the Applicant, undated, with attached copy of apprentice indenture.           Exhibit A3
Statutory Declaration by the Applicant dated 9 October 2000.          Exhibit A4
Letter from Department of Defence (Naval History Directorate), with attachments, dated 25 September.    Exhibit A5
Statement by the Applicant dated 9 October 2000.      Exhibit A6
Respondent's statement of facts and contentions dated 3 October 2000.    Exhibit R1

ISSUES BEFORE THE TRIBUNAL

The Applicant claims qualifying service as a prerequisite for eligibility for a Gold Card. Eligibility is established pursuant to subsection 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:
the veteran is 70 or over; and
the veteran has rendered qualifying service during the period covered by paragraph (b) of the definition of period of hostilities in subsection 5B(1); and
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 states relevantly:
"(1)     …
(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 sub section 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; or
…
(g)If the person is an Australian mariner as defined by sub section 5C(1) who, in the course of:
(i)any service rendered by the person in employment of a kind specified in paragraph (a), (b), (c), (e) or (g) of that definition; or
…
was on a ship or in an area at a time when the person incurred danger from hostile forces of the enemy on the ship or in the area, as the case may be; or
(h)if the person is an allied mariner who, in the course of any service rendered by the person in employment of a kind to which paragraphs (a) and (b) of the definition of allied mariner in subsection 5C(1) applies:
(i)        was detained by the enemy; or
…"
Subsection 5B(1) defines the period of hostilities and states, relevantly:
"(1) …
(b)World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included); or
…"
The Respondent concedes that the Applicant served during the relevant period of hostilities as defined in subsection 5B(1), and that he meets the criteria for age pursuant to subsection 85(4A)(a) of the Gold Card Act. The Respondent also concedes that the Applicant is a veteran as defined in section 5C of the Act, by dint of eligible war service in the Volunteer Defence Corps ("the VDC"), but submits that such eligible war service occurred only during the periods when actually serving in that capacity. The required standard of proof is that of reasonable satisfaction pursuant to subsection 120(4) of the Act, equating to the balance of probabilities as defined in Repatriation Commission v Smith (1987) 15 FCR 327. Subsection 120(6) prescribes that there is no onus of proof on either party.

FACTS AND EVIDENCE

The Applicant was apprenticed to Mort's Dock and Engineering Company ("Mort's Dock"), Balmain, on 12 May 1941, aged 16, being articled as a boilermaker. He completed his apprenticeship on 29 August 1946 (Exhibit A3). He gave evidence that he worked a five day week, normally from 0700 hours to 1600 hours and that for the first two years he was under direct supervision. On three evenings a week he attended technical college as a component of his apprenticeship. On occasions he was sent to sea by his employer in naval vessels under construction at Mort's Dock to assist in the conduct of machinery and weapon trials. These trials involved day running only, although on one occasion he remained onboard overnight. The Applicant described the usual routine as sailing from Balmain via Garden Island in the morning, passing through the Heads and proceeding in a south easterly direction until well clear of the harbour, then proceeding north for speed or other trials as required. He confirmed that "these voyages were in a civilian capacity" (Exhibit A1).

In 1943 he volunteered to join the VDC, being unable to join the Australian Imperial Force ("AIF") as he was employed in a protected industry. His Service and Casualty Form records that he was enlisted on 11 September 1943, taken on the strength of 28 Battalion on 22 September 1943 and discharged on 14 September 1945 (T3). His VDC commitments generally involved weekend training with the engineer battalion at Casula or at other army establishments, and training activities such as at the Anzac Rifle Range. In addition, he undertook military training one evening each week at the unit's facility in the Rocks area of Sydney. The Applicant gave evidence that after his enlistment in the VDC, he continued to meet the requirements of his employer to participate in sea trials of naval vessels under construction at Mort's Dock, citing the frigates Gascoyne, Lachlan and Hawkesbury as relevant ships during this period. At his induction into the VDC, he was advised of the requirement for his employers to inform the Army of any periods when he was unable to meet service commitments, and he understood that this was done by Mort's Dock. Thus the Applicant considered that his military superiors gave tacit approval for Mort's Dock to send him to sea when required, that is, the VDC "sanctioned such activities". At these times he considered himself "to be a full-time member of the Australian Defence Force" (T7) and "voyages on Gascoyne, Hawkesbury and Lachlan 1943–1945 were during my full time service with the Australian Military Force" (Exhibit A1).

The Applicant believed that his only periods at sea occurred prior to the relevant ship being commissioned, which the Tribunal assesses as builders trials, but he stated that he could have gone to sea after commissioning. In respect of his involvement in sea trials, the Applicant gave evidence that he was responsible at all times to his civilian employer, Mort's Dock, who gave all directions in regard to his duties. In cross examination, the Applicant stated that during his periods at sea there were no alerts or indications of the presence of enemy forces, nor was he aware of any incidents relating to possible enemy forces.
ANALYSIS OF EVIDENCE AND FINDINGS
The Applicant broadly based his application for review on either of two separate arguments; that he met the qualifying service criteria pursuant to section 7 of the Act by dint of being an Australian Mariner as defined in section 5C of the Act, and/or by reason of his service in the VDC, wherein such service came under the jurisdiction of the Ministerial Determination dated 18 December 1987 in respect of rendering continuous full time service. In final submission, the Respondent addressed both these issues, submitting that the Applicant did not meet the relevant conditions and had not rendered qualifying service.
Section 5C of the Act states, relevantly:
"Australian mariner means a person who was, during the period of World War 2 from its commencement to and including 29 October 1945:
(a)a master, officer or seaman employed under agreement, or an apprentice employed under indenture, in sea-going service on a ship registered in Australia that was engaged in trading between a port in a State or Territory and any other port; or
…
(e)a master, officer, seaman or apprentice employed in sea-going service on a ship owned in Australia and operating from an Australian port, being a hospital ship, troop transport, supply ship…
Allied mariner means a person who:
(a)was during the period of World War 2 from its commencement to and including 29 October 1945:
(i)a master, officer or seaman employed under agreement, or an apprentice employed under indenture, in sea-going service on a ship that was engaged in trading; or
…"
The Applicant was indentured as an apprentice to Mort's Dock to learn the trade of boilermaking. His periods at sea, which were acknowledged by the Respondent and accepted as fact by the Tribunal, were in the context of assisting in trials being conducted by his employer, Mort's Dock. The Respondent relied on the decision in ReMeldrum and Repatriation Commission [1999] AATA 330, in which the "facts are almost identical" and in which that tribunal concluded that "the Applicant was an apprentice employed under indenture to Hayden Engineering and not in sea going service on a ship registered in Australia." In this matter there is no evidence to suggest that the ships in which the Applicant undertook tasks as directed by his employers were registered in Australia, nor that those ships were engaged in trading, nor that the Applicant was "employed in a sea going ship." On the contrary, the evidence identifies that the ships were under construction for naval service. The ships did not meet the descriptive criteria in subsection 5C as hospital ship, troop transport, supply ship, etc. The Tribunal finds therefore that the Applicant cannot satisfy the definition of either an Australian or an Allied mariner.
The second leg of the claim is in respect of service in the VDC. The Applicant contended that notwithstanding his periods at sea were to meet the requirements of his employer, superior authority in the VDC sanctioned such service and hence he was effectively performing military duty at sea. The Respondent submitted that the statutory construction in the relevant document, namely the Ministerial Determination dated 18 December 1987, must preclude such an interpretation. That determination states, relevantly:
"I, …………..Minister of State for Veterans' Affairs….hereby determine that the Veterans' Entitlements Act 1986 shall apply to, and in relation to, a person included in the classes of persons, being members of the Defence Force, as if that person was, whilst rendering service during World War 2 of the kind specified in this determination, rendering continuous full time service for purpose of this Act:
(1)persons who served in the Citizen Military Force or the Volunteer Defence Corps on a part time basis during any period of such service; or
…"
The Respondent submitted that the phrase "while rendering service" can only be applied to the periods in which the Applicant was actually undertaking duties or training in the VDC. In support of this interpretation of the determination, the Respondent submitted that had the Applicant been injured at sea in the course of his work with Mort's Dock, any workers compensation would have been claimed against the company and not the Defence Force. It was further submitted that any claim for a disability against VDC service could only be considered in respect of actual periods of service in the VDC. The Tribunal notes that the explanatory memorandum accompanying the Social Security and Veterans' Affairs (Miscellaneous Amendments) Bill 1986, which introduced the authority for the Minister to make such determinations under subsection 5(13) of the Act, provides no guidance in this matter. However, the phrase "rendering continuous full time service" must logically be read in a normal sense and in the context of the phrase "shall apply to…a person…while rendering service…of the kind specified", that is, during a period of service with the VDC. On the evidence, the Applicant was not undertaking VDC duties whilst at sea; he was employed in a civilian capacity when assisting in trials for his employer, Mort's Dock. The Applicant cannot therefore benefit from the Ministerial Determination, and accordingly he does not meet the qualifying service requirements pursuant to subsection 7A(1)(a) of the Act, and hence is not eligible for the Gold Card.
For completeness, the Tribunal addresses the issue of whether the Applicant would have rendered qualifying service had it been concluded that the Determination applied to the whole period, and every part thereof, of his VDC service from 11 September 1943. The Respondent submitted that the Applicant would have to meet the two elements in subsection 7A(1)(a)(i), those being the "incurred danger" test and "the operations against the enemy" test. The meanings of these phrases have been respectively interpreted by the Full Federal Court in Repatriation Commission vThompson (1988) 44 FCR 20 and by Cooper J in Willcocks v Repatriation Commission (1992) 39 FCR 49, both authorities being followed in later decisions. In the former, their Honours stated:
"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 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."
When considering the phrase "operations against the enemy" in Re Willcocks (supra), Cooper J said:
"The phrase "naval, military or aerial operations against the enemy" is to be read as a whole. It includes two elements. The first is that there must be some operation which is naval, military or aerial in character. The second is that the requisite operation must be against the enemy. Both the elements must be satisfied for the service to constitute "qualifying service" within the meaning of s.36(1) of the VE Act".
Following a consideration of dictionary meanings, Cooper J concluded by stating:
"In s.36(1)(a)(i), the noun "operation" is clearly a noun of action; and the use of the word "against" in the phrase "military operations against the enemy" clearly expresses the adverse bearing of that noun in the context of s.36(1)(a)(i).
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 service, inter alia, in military operations against the enemy, in the sense of operations in hostility or opposition to the enemy.
…"
There is no evidence in this matter that the Applicant "incurred danger". He gave no evidence of any possible enemy activities or any incidents that might be related to enemy operations. There is neither claim nor evidence that anything the Applicant did or was required to do involved opposition to the enemy or had any colour of hostility to it. Thus the Applicant could not come within the definition of qualifying service pursuant to subsection 7A(1)(a)(i).
One matter remains to be addressed, that of the Applicant's eligibility to benefit from the Respondent's concessional policy as regards meeting the incurred danger test in certain Australian coastal waters areas. This would only be a relevant issue had the Tribunal found that the Applicant's periods at sea were under the auspices of the VDC, that is, he was undertaking duties as directed by the Defence Force. That was not the case, but as the issues were raised by the Respondent in final submission, and in subsequent discussion with the Tribunal, it is considered that the relevant issues should be addressed for completeness.
In a record of interview dated 17 November 1999 (T10), the Respondent's interviewing officer notes that:
"For Qualifying Service reasons, where a Veteran served at sea in the waters North from Sydney, the (only) period 3 September 1939 to 16 September 1943 is conceded. As Mr Howe did not travel South from Sydney, conceded dates for travel South from Sydney are not available."

From his Service and Casualty Form (T3) the Applicant was not taken on strength in the VDC until 22 September 1943. Attached to that record of interview is an extract from the ISSO Eligibility Training Manual (and included in the Repatriation Handbook published July 1999) which states that "where a veteran served at sea between the following dates (which are inclusive), and in the Australian coastal waters shown below, qualifying service is conceded." The concession period for waters south of Sydney (to Albany) is shown as 3 September 1939 to 26 March 1945. The Tribunal notes that this policy was also referred to in the later decision under the section 57 review in the following terms:

"As a matter of policy, the Repatriation Commission concedes that danger from hostile forces of the enemy has been incurred for coastal voyages from Sydney to Townsville from 3 September 1939 to 16 September 1943." (T2, p4)

The statement of the Applicant at Exhibit A1 responded to the record of interview, and in respect of this issue submitted that his sea voyages took place both north and south of Sydney, the implication being that he would therefore qualify for the qualifying service concession as it applied to service south of Sydney encompassing the period of his VDC service.

In the event, the Applicant cannot benefit from this wider application, were the Tribunal to find that his ship(s) had travelled south of Sydney, because he did not embark as a member of the Defence Force, and was not rendering duty as a member of the VDC. But resulting from the Respondent's submission, the question is raised as to the status of this policy. The Respondent referred to the policy in the following manner:
"There is the question of the operation of the Commission's former policy guidelines. My instructions are that these guidelines are simply that, that they are not binding and are and always have been subject to interpretations of the Court. The latest manifestation of the policy statement is quite dated, and it is a statement put out on 10 September 1986."

The Respondent later referred to the policy as "the former policy". He was unable to reconcile why the primary decision maker acceded to the coastal waters policy, and indeed made the policy known to veterans, and why the section 57 review decision maker also referred the Applicant to the same policy, whereas that "policy", (which clearly concedes a qualifying service concession without recourse to the veteran undergoing the 'incurred danger' test), is apparently abandoned before the Tribunal. There is clearly a marked contradiction and inconsistency in the interpretation of the status of this "policy".

Returning to the relevant matters in respect of this Applicant, the Tribunal reaffirms the finding that he cannot satisfy the definition of an Australian or an Allied mariner, nor were his seagoing duties undertaken as a member of the Defence Force, namely the Volunteer Defence Corps. Therefore the Applicant cannot meet the criteria for qualifying service pursuant to subsection 7A(1)(a)(i) as a prerequisite for eligibility for the Gold Card.
For the above reasons the decision under review is affirmed.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of
Rear Admiral A R Horton AO, Member
Signed:         .....................................................................................
  Associate
Dates of Hearing  10 October 2000
           Date of Decision  17 November 2000
           Solicitor for Applicant  Self represented
           Advocate for the Respondent      Mr J Marsh, Departmental Advocate