Ipson and Repatriation Commission

[2014] AATA 67

[2014] AATA  67

Division	VETERANS' APPEALS DIVISION
File Number	2013/3221
Re	Leonard Ipson
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Mr R G Kenny, Senior Member
Date	13 February 2014
Place	Brisbane

The Tribunal affirms the decision under review.

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Mr R G Kenny, Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Pensions and benefits  – Service in Australia as Ammunition Examiner with Australian Army – Danger not incurred by hostile forces of the enemy – Qualifying service for service pension not rendered – Decision under review affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth), ss 5C, 7A, 36

CASES

Repatriation Commission v Smith (1987) 15 FLR 327

Repatriation Commission v Thompson (1988) 82 ALR 352

REASONS FOR DECISION

Mr R G Kenny, Senior Member

BACKGROUND

1. Leonard Ipson served in the Australian Army (“the army”) from 18 August 1942 until 2 May 1946. On 4 April 2013, he lodged with the Department of Veterans’ Affairs an “Application to Determine Qualifying Service by a Veteran or Mariner”. This was done for the purpose of ascertaining whether his service qualified him for a service pension payable under the Veterans’ Entitlements Act 1986 (Cth). On 19 April 2013, a delegate of the Repatriation Commission (“the respondent”) determined that Mr Ipson had not rendered the required qualifying service.[1] On 20 May 2013, a service pension review officer, as a delegate of the respondent, affirmed that decision.[2]

   [1] See s 7A of the Act.

   [2] See s 57A of the Act.

   SERVICE, LEGISLATION AND ISSUE

2. It is not in dispute that Mr Ipson served with the army as noted above or that he carried out the duties of an Ammunition Examiner. In order for his application to be accepted, he must have qualifying service under the Act. In that regard, s 5C(1) of the Act provides that “qualifying service” has the meaning given in section 7A of the Act which, in so far as relevant, reads:

   (1)    For the purposes of Parts III and VA and sections 85 and 118V, a person has rendered qualifying service:

   …

   (b) if, during a period of hostilities, the person has, as a member of the defence force established by a Commonwealth country, rendered, in connection with war or war‑like operations in which the Naval, Military or Air Forces of Australia were engaged:

   (i) service, in an area outside that country, at a time when the person incurred danger from hostile forces of the enemy in that area;

3. The issue for determination is whether Mr Ipson’s army service included qualifying service in accordance with that provision. The standard of proof for determining that issue is set out in s 120(4) of the Act which requires that such matters be determined to the Tribunal’s reasonable satisfaction. This imports the civil standard of proof so that matters must be determined on the balance the probabilities.[3] 

   [3] Repatriation Commission v Smith (1987) 15 FCR 327 at 335 per Beaumont J.

   CONTENTIONS

4. Mr Ipson’s case was based on the dangerous nature of the duties he performed as an Ammunition Examiner. He was required to carry out a wide range of duties involving the neutralisation of live ammunition. This included artillery shells which had been fired on a practice range but which had failed to detonate. He would locate the shell, secure it with an earth mound and then attach to it an explosive device which, when detonated, would cause the shell to explode. All of his service was within Australia although he had requested at times that he be selected for overseas service. He submitted that the role of the Ammunition Examiner was a very dangerous one such that he incurred danger as required by s 7A of the Act. He also submitted that, if his circumstances did not come within that provision, the Act should be amended to recognise the dangerous work he and others undertook.

5. For the respondent, Mr Adrian Crowe conceded that the duties of an Ammunition Examiner as performed by Mr Ipson were dangerous and that, accordingly, he incurred danger during his army service. However, he submitted that the terms of s 7A of the Act require that the danger be incurred from hostile forces of the enemy and that this was not so in Mr Ipson’s case.

   CONSIDERATION

6. In Repatriation Commission v Thompson[4] the Full Federal Court considered the expression “incurred danger from hostile forces of the enemy”. That case was concerned with s 36 of the Act but I am satisfied that the observations therein are applicable to the same expression as it appears in s 7A(1)(b) of the Act. There, the Court said:

   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.

   The danger incurred must of course be more than a merely fanciful danger or a danger so minimal that the rule of de minimis applies. But to say that is not to give a flavour to the word. Rather it is to use it in its ordinary sense.

   [4] (1988) 82 ALR 352 at 356.

7. I am satisfied, on the balance of probabilities, that, whether considered objectively or subjectively, Mr Ipson incurred danger in carrying out the duties of an Ammunition Examiner. However, despite his wish to serve overseas, he rendered his army service within Australia and the undoubted danger which he incurred was not from hostile forces of the enemy as required by s 7A of the Act. Therefore, he did not have qualifying service under the Act and the decision under review must be affirmed.

8. I have noted Mr Ipson’s submission concerning the failure of the Act to recognise the service he rendered but, clearly, the Tribunal is required to apply the legislation as it stands. The only relevant provision is s 7A of the Act and it is limited in the manner set out above.

   DECISION

9. The Tribunal affirms the decision under review.

I certify that the preceding 9 (nine) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member

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Associate

Dated 13 February 2014

Date of hearing	10 February 2014
Applicant	In person
Advocate for the Respondent	Adrian Crowe