Leplaw and Repatriation Commission
[2006] AATA 936
•3 November 2006
-
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 936
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/297
VETERANS’ APPEALS DIVISION )
Re NORMAN LEPLAW Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr KS Levy, Senior Member Date3 November 2006
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
. ............[Sgd]..........
KS Levy
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – service pension – application for Gold Card – applicant involved in patrols following outbreak of POW camp at Cowra – no qualifying service – whether applicant incurred danger from hostile forces of the enemy – decision affirmed
Veterans’ Entitlements Act 1986 ss 5B, 7A, 57, 85 (4A), 120(4)
Repatriation Commission v Thompson (1988) 44 FCR 20; (1988) 82 ALR 352; (1988) 15 ALD 501; (1988) 9 AAR 199
Re Saxton and Repatriation Commission (1998) 51 ALD 167; (AAT 12787, 9 April 1998)REASONS FOR DECISION
3 November 2006 Dr KS Levy, Senior Member 1. This is an application by Norman Leplaw for review of a decision to reject his application for a Gold Card for Veterans of Australia’s Defence Force. The applicant made an initial application for a Gold Card in February 2000, which was rejected in March 2000 for not having “qualifying service” as required by the legislation. The applicant made a further application for a Gold Card, the subject of this appeal, in July 2005, which was rejected by the Repatriation Commission by decision dated 8 August 2005. That decision was affirmed by a Delegate of the Repatriation Commission on 10 March 2006. It was again determined that the applicant did not have the necessary “qualifying service”.
2. This matter has been decided on the papers in accordance with the agreement between the parties.
Background
3. The applicant is 80 years of age, his date of birth being 21 May 1926. He enlisted in the Army during World War II on 9 June 1944. He was transferred to the Army Recruit Training Battalion on 5 August 1944, which was in close proximity to the Prisoner of War (POW) camp at Cowra. Mr Leplaw served in the Citizen Military Forces from 9 June 1944 to 27 September 1944, and in the Australian Imperial Force from 28 September 1944 to 2 January 1947. During that period, he also served in Papua New Guinea, having embarked, in Sydney, on the HMAS Kanimbla on 23 March 1946 and disembarked at Rabaul on 31 March 1946. He served there until he embarked on the SS Duntroon on 11 December 1946. He disembarked at Sydney, Australia, on 17 December 1946.
4. His application for a Gold card is premised on his eligibility for “qualifying service”, under section 7A of the Veterans Entitlement Act 1986 ("the Act."). This application is being assessed by virtue of section 57 of the Act.
Issue
5. The issue in this case is whether the applicant has "qualifying service" under section 7A of the Act, by having “...incurred danger from hostile forces of the enemy."
Legislation
6. The following provisions of the Act are relevant to determination of this matter.
“Sect 5B
War and operational area related definitions
(1) In this Act, unless the contrary intention appears…
"period of hostilities" means:
(a) World War 1 from its commencement on 4 August 1914 to 11 November 1918 (both included); or
(b) World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included); or
(c) the period of hostilities in respect of Korea from 27 June 1950 to 19 April 1956 (both included); or
(d) the period of hostilities in respect of Malaya from 29 June 1950 to 31 August 1957 (both included); or
(e)he period of hostilities in respect of war‑like operations in operational areas from 31 July 1962 to 11 January 1973 (both included).
…
Sect 7A
Qualifying service
(1) For the purposes of Parts III and VA and sections 85 and 118V, a person has rendered qualifying service:
(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 subsection 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
(ii) rendered service after 29 October 1945 in respect of which the person has been awarded, or has become eligible to be awarded, the Naval General Service Medal or the General Service Medal (Army and Royal Air Force) with the Minesweeping 1945‑51 Clasp, the Bomb‑Mine Clearance 1945‑53 Clasp, the Bomb and Mine Clearance 1945‑49 Clasp or the Bomb and Mine Clearance 1945‑56 Clasp; or
(iii) rendered service outside Australia in an area described in column 1 of Schedule 2 during the period specified in column 2 of that Schedule opposite to that description, as a member of a unit of the Defence Force that was allotted for duty, or as a person who was allotted for duty, in that area; or
(iv) rendered warlike service; or
(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; or
(ii) service within that country, being service in respect of which the person has been awarded, or has become eligible to be awarded, a campaign medal; or
(c) if the person is an allied veteran who, during a period of hostilities, has, as a member of the defence force established by an allied country, rendered, in connection with a war, or war‑like operations, in which the Naval, Military or Air Forces of Australia were engaged, service in an area within or outside the country in which the person enlisted in those forces, being service in respect of which the person incurred danger from hostile forces of the enemy; or
(d) if the person was, during a period of hostilities specified in paragraph (a) or (b) of the definition of period of hostilities in subsection 5B(1), employed by the Commonwealth on a special mission outside Australia, and, in the course of carrying out that mission, incurred danger from hostile forces of the enemy; or
(e) if the person is an eligible civilian within the meaning of subsection 5C(1) who was, during a period of hostilities specified in paragraph 5B(1)(b) of the definition of period of hostilities, detained by the enemy; or
(f) if the person is a person in respect of whom a pension is payable in pursuance of subsection 13(6); or
(g) if the person is an Australian mariner as defined by subsection 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
(ii) any service rendered by the person as a pilot referred to in paragraph (d) of that definition; or
(iii) any service rendered by the person as a member or employee of the Commonwealth Salvage Board;
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
(ii) was in an area service in which would, if the person had been a member of the Defence Force, have entitled the person to the award of a campaign medal and incurred, while he or she was in that area, danger from hostile forces of the enemy.
Note 1: For period of hostilities see subsection 5B(1) and for allotted for duty in an operational area see subsection 5B(2).
Note 2: For allied mariner , allied veteran , Australian mariner , defence force established by a Commonwealth country , defence force established by an allied country , eligible civilian , enemy , member of a unit of the Defence Force , member of the Defence Force and special mission see subsection 5C(1).
(2) In subparagraphs (1)(b)(ii) and (1)(h)(ii):
"campaign medal" , in relation to service during the period of World War 2 from its commencement to and including 29 October 1945, means:
(a) any of the following medals:
(i) 1939‑45 Star;
(ii) Atlantic Star;
(iii) Air Crew Europe Star;
(iv) Africa Star;
(v) Pacific Star;
(vi) Burma Star;
(vii) Italy Star;
(viii) France and Germany Star; or
(b) any other medal declared by the regulations to be a campaign medal in relation to service during that period.
Sect 85
Veterans eligible to be provided with treatment
(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 (b) 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, by written document lodged at an office of the Department in Australia in accordance with section 5T, notified the Department that he or she seeks eligibility for such treatment.”
Evidence
7. The following documentary evidence was available to the Tribunal – documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents); Certificates of Consent by both Mr Leplaw and the respondent to have the matter determined in the absence of the parties; and the respondent's statement of facts and contentions.
8. The applicant was stationed at the Army Recruitment Training Battalion, near Cowra in August 1944, when there was a break out of some 400 Japanese prisoners, from the nearby prisoner of war camp. Of the escapees, 234 Japanese were killed, 108 were wounded, and, 334 were recaptured. This occurred at over a 9 day period following the breakout on 5 August 1944.
9. The applicant's evidence is that while at 1st Australian Recruitment Training Battalion, he was taken to an area rear of the action, where they were in groups of four or five at the rear of the compound and in nearby farms. He was posted on the side of a hill and did not personally encounter any escaped Japanese (see applicant’s statements of 26 February 2000, 27 July 2005 and 20 October 2005).
10. Since the decision and review was made, which is now subject to application to this Tribunal, the applicant has provided a further letter dated 30 April 2006, where he claimed that he confronted a prisoner of war, whilst armed, in that he, while as a NCO and returning to Australia on SS Duntroon in January 1947 (approximately), he was required to mount a guard of a Japanese Colonel, who was being escorted to Australia. The applicant understood that this prisoner was being conveyed to Australia, in connection with investigations into war crimes. His statement refers to having undertaken this duty, several times, and being on guard outside the prisoner's cabin door and being armed with a side arm. He also accompanied the Japanese officer when being permitted to exercise on the boat deck. His submission is that he was in danger because of the "mindset of a Japanese officer at that time" and that "anything could have happened on that boat deck". He also refers to having accompanied to other NCOs into a POW compound to organise work party details, and that they were unarmed.
Findings of Fact
11. The following findings of fact are made:
a.The original application lodged with the Department of Veteran’s Affairs for a Gold Card was rejected initially on 8 August 2005 and was affirmed on review to the Repatriation Commission on 10 March 2006.
b.An application to review those decisions was lodged with the Administrative Appeals Tribunal on 10 May 2006.
c.The applicant's description of his involvement at Cowra indicates a perception of danger and that there was a potential for danger. This is in the context of a young man, who was not fully trained as a soldier, or even weapons for which he may have been untrained. The facts he describes, however, described a mere risk of danger, not actual danger.
d.In respect of guarding a Japanese officer who was already in confinement and unarmed, and in the context of being on board SS Duntroon with others around or in support if necessary, indicates a potential for danger, but the circumstances described are de minimis. In any case, the events described fall outside the "period of hostilities" from 3 September 1939 to 29 October 1945, as defined in section 5B(1) of the Act.
Consideration
12. The Tribunal has considered all of the written evidence as well as the statutory and case law material relevant to this matter in determining the correct or preferable decision.
13. The applicant's claims, to be successful, must satisfy the provisions of section 85(4A) of the Act, that is, he would meet the eligibility criteria for a gold card if he satisfies the requirements of being over 70 years of age (which he does) and if he rendered “qualifying service” during the “period of hostilities”. His claim must fundamentally fall within the “period of hostilities" as defined in section 5B(1) of the Act, which is defined as the period commencing on 3 September 1939 and ceasing on 29 October 1945 (both dates inclusive). He generally satisfies that latter condition (except for the incident on SS Duntroon described above which falls outside the statutorily defined period).
14. The applicant must also have rendered "qualifying service" as required by section 7A of the Act. To satisfy the definition of “qualifying service”, the applicant must have rendered service, during a period of hostilities as defined in section 5B(1), at sea, in the field or in the air, in naval, military or aerial operations against the enemy at a time when the person incurred danger from hostile forces of the enemy in that area or on that aircraft or ship.
15. The question to be answered by the Tribunal then is whether the applicant “incurred danger from hostile forces of the enemy”. The statutory provisions, as amplified by the case law in relation to danger incurred, must be satisfied to the “reasonable satisfaction standard” as required of section 120(4) of the Act.
16. It is apparent that the more recent submissions of the applicant, where he has described guarding a Japanese prisoner of war on SS Duntroon, fall outside the definition of “period of hostilities”. He therefore does not qualify on the basis of that submission. In any event, the tribunal's assessment of the actual danger involved would have been de minimis, based on the reasoning provided by the Federal Court, as outlined below.
17. In relation to his initial and main submission that he had incurred danger in the period after the break out of Japanese prisoners of war from the Cowra compound, the Tribunal has considered those submissions in light of the meaning of the term “incurred danger”, as set out in Repatriation Commission v Thompson(1988) 44 FCR 20; (1988) 82 ALR 352; (1988) 15 ALD 501; (1988) 9 AAR 199.
18. In Thompson the Full Court at 355 explained the meaning of incurring danger as follows -
“.. 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… 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.”
19. That reasoning was followed in Re Saxton and Repatriation Commission (1998) 51 ALD 167; (AAT 12787, 9 April 1998).
20. While the decision in Saxton was decided in favour of the applicant in that case, the applicant there had been exposed to danger by encountering a prisoner alone and having grappled with him. The applicant in Saxton was young and inexperienced (as was the applicant in this case), however the applicant in Saxton encountered a Japanese prisoner, who potentially had a weapon, and a sharpened file was found on the ground soon after the prisoner was apprehended. While it was not clear in that case that the prisoner had intended to use the sharpened file as a weapon, the probability that the applicant was in danger was such that the Tribunal felt that that applicant was dealing with an enemy who was hostile to him.
21. Mr Leplaw’s evidence falls considerably short of the circumstances set out in Saxton. Mr Leplaw did not have any contact with a prisoner and was not in circumstances at any time during the period of hostilities, particularly at Cowra, where he was alone with a prisoner, or in actual danger. Indeed, he did not encounter any Japanese prisoner at Cowra or at least not in any serious or threatening situation. As submitted by the respondent, the applicant may have subjectively felt himself to be in danger - and that is not to discount his recollection of his feelings at that age and lack of training and military competence. However, the test in Thompson’s case is an objective test and refers to actual danger. To ‘incur danger’ does not encompass danger which is merely perceived, or the potential to be endangered or danger which is only minimal. The applicant has also submitted that his case has similarities to the case of Saxton. The Tribunal agrees that the applicant had similarities in age, level of training, geographic location, timing of his posting and training to the Army training and recruitment Battalion at Cowra in 1944. However, the Tribunal cannot find any real similarity in the level of danger or circumstances which Mr Leplaw experienced, compared with that of Mr Saxton.
22. In assessing the facts of this case against the legal requirements, both statutory and case law, the Tribunal finds that the evidence does not meet the test of "incurred danger", according to the standard of "reasonable satisfaction".
23. Consequently, the Tribunal affirms the decision under review.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Senior Member
Signed: Michelle Brazier
Legal Research OfficerHearing on the Papers
Date of Decision 3 November 2006
The Applicant was self represented
For the Respondent Mr J Stoner, Departmental Advocate
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