Lindsay and Repatriation Commission - [2002] AATA 182

DECISION AND REASONS FOR DECISION [2002] AATA 182

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/924

VETERANS' APPEALS DIVISION       )
           Re      ROBERT LINDSAY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Dr EK Christie, Member

Date19 March 2002
PlaceBrisbane

Decision      The Tribunal affirms the decision under review. This means that Mr Lindsay's application for review is unsuccessful.
  .............….(Sgnd)..................
  Dr EK Christie
  Member
CATCHWORDS
VETERANS' AFFAIRS- Qualifying Services – entitlement to Gold Card – service in North-west Western and northern Australia – whether applicant objectively incurred danger from enemy
Veterans' Entitlements Act 1986 s 7A, s 85(4A)
Re Bastow and Repatriation Commission (2001) AATA 6
Repatriation Commission v Thompson (1988) 44 FCR 20

REASONS FOR DECISION

19 March 2002 Dr EK Christie, Member

This is an application by Robert Lindsay to review a decision of the delegate, Repatriation Commission, made on 20 July 2001, that Mr Lindsay did not qualify for a Gold Card. Mr Lindsay had applied for a Gold Card on 12 April 2001.
In reaching this decision the delegate concluded:
"In view of the above, I find that Mr Lindsay did not incur danger from hostile forces of the enemy as required in Section 7A(1)(a)(i) of the VEA and therefore does not fulfil the requirements for a Gold Card as set out in Section 85(4A) of the VEA." (T1, folio 88)

At the hearing, Mr Lindsay was represented by Counsel, Mr Norman Sheehan. The respondent was represented by Mr John Stoner, a Commission Advocate.
At the hearing the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit 1) and the following exhibits:

Exhibit 2 Statement of Robert Lindsay (10 November 2001)
Exhibit 3 Location map of Truscott (Western Australia)
Exhibit 4 Extract from "Australia in the War of 1939-1945 - Royal Australian Navy 1942-1945 (Gill) at p 548, p 556
Exhibit 5 58 Operational Base Unit Chronology from "Units of the Royal Australian Air Force – A Concise History" Vol 1, AGPS: Canberra 1995

Issues to be Decided

The parties agreed that the only issue for the Tribunal to decide was whether Mr Lindsay "incurred danger" from hostile forces of the enemy – a requirement prescribed by s 7A(1)(a)(i) of the Veterans' Entitlements Act 1986 (the "VE Act").
Facts
The general facts that were not in dispute were that Mr Lindsay enlisted in the RAAF on 15 December 1943 and was discharged on 4 October 1945. Following service training in southern Australia, Mr Lindsay was transported to Drysdale Mission to serve at Truscott Air base.
Mr Lindsay was based at 58 Operational Base Unit in the Cape Condonderry – Vansittart Bay area of Northern Western Australia, a strip generally known as "Truscott". Mr Lindsay travelled to 58 OBU from Darwin by sea on a vessel ("Liberty Ship") - a fully laden and armed munitions ship.
Mr Lindsay's RAAF duties were that of a telegrapher with Area Headquarters, other Operational Base Units, as well as…

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 Lindsay and Repatriation Commission

Details

AGLC: Lindsay and Repatriation Commission [2002] AATA 182
Case: [2002] AATA 182
Decision Date: 19 March 2002

CaseChat Overview and Summary

In the case of Lindsay and Repatriation Commission, the applicant, Mr Lindsay, sought a review of a decision made by the Repatriation Commission regarding his entitlement to a Gold Card under the Veterans' Entitlements Act 1986 (VE Act). The key issue was whether Mr Lindsay had "incurred danger" from enemy forces during his service in North-west and northern Australia, a requirement stipulated under s 7A(1)(a)(i) of the VE Act. The Tribunal was tasked with determining if Mr Lindsay's service met the statutory definition of "qualifying service" by establishing whether he objectively encountered danger from hostile forces.

The legal issue centred on interpreting the phrase "incurred danger from hostile forces of the enemy" within the context of the statutory definition of "qualifying service". The Federal Court, in Repatriation Commission v Thompson, had previously ruled that this phrase required an objective test, where a serviceman must be exposed to actual peril or risk of harm from hostile forces, rather than merely perceiving or fearing danger. This interpretation was upheld and applied by the Tribunal in reviewing Mr Lindsay's application.

The Tribunal meticulously examined Mr Lindsay's evidence regarding incidents during his service where he claimed to have incurred danger. It found that Mr Lindsay had not actually encountered or been fired upon by any enemy forces, and that while there might have been a risk of danger, this did not satisfy the objective test established in Thompson. The Tribunal concluded that Mr Lindsay's claims of incurring danger were insufficient under the statutory requirements, as they did not demonstrate that he had actually been exposed to danger from hostile forces.

Consequently, the Tribunal upheld the original decision of the Repatriation Commission, denying Mr Lindsay's application for a Gold Card. The Tribunal found that the evidence did not substantiate that Mr Lindsay had incurred danger from hostile forces during his service, and thus his service did not qualify under the statutory definition.

Orders

Orders of the court

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Background

Background to the litigation

The parties agreed that the only issue for the Tribunal to decide was whether Mr Lindsay "incurred danger" from hostile forces of the enemy – a requirement prescribed by s 7A(1)(a)(i) of the Veterans' Entitlements Act 1986 (the "VE Act").Facts The general facts that were not in dispute were that Mr Lindsay enlisted in the RAAF on 15 December 1943 and was discharged on 4 October 1945. Following service training in southern Australia, Mr Lindsay was transported to Drysdale Mission to serve at Truscott Air base. Mr Lindsay was based at 58 Operational Base Unit in the Cape Condonderry – Vansittart Bay area of Northern Western Australia, a strip generally known as "Truscott". Mr Lindsay travelled to 58 OBU from Darwin by sea on a vessel ("Liberty Ship") - a fully laden and armed munitions ship. Mr Lindsay's RAAF duties were that of a telegrapher with Area Headquarters, other Operational Base Units, as well as to be the communicating contact with operational flying units.Legal Framework Section 7A prescribes requirements for "Qualifying Service". In Mr Lindsay's application for review s 7A(1)(a)(i) is the relevant provision:"7A Qualifying service(1) For the purpose of Part III 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 of ship; or …" [Tribunal emphasis] In Repatriation Commission v Thompson (1988) 44 FCR 20; 9 AAR 199 the Federal Court of Australia (Full Court) explained the meaning of the phrase "incurred danger from hostile forces of the enemy" in the abovementioned statutory definition of "qualifying service" [which then appeared in s 36(a)(i) of the VE Act] as follows (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.…We have already stated that liability to danger in the sense of a risk of danger is not sufficient. The statutory provision required that danger be incurred." Mr Lindsay gave evidence on the following incidents in his RAAF Service in Northern Australia where he claimed he incurred danger from hostile forces of the enemy.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr Stoner concluded by acknowledging that Mr Lindsay was a witness of truth and that his credibility was not at all in issue.Consideration of the Issues The object of the Tribunal is to review administrative decisions, not only on the merits, but in accordance with the law at all times. The decision of the Full Federal Court in Repatriation Commission v Thompson has long been regarded as the benchmark for considering whether "a person incurred danger from hostile forces of the enemy". The reasoning adopted by the Tribunal in following Thompson's case, in Re Bastow and Repatriation Commission [2001] AATA 6, is relevant in deciding this application for review. In Bastow's case the Applicant served as a visual signaller on the Wadjemup, an Army target practice boat in waters off Rottnest and Garden Island, between August 1943 and October 1945. The Wadjemup would sail west of Rottnest Island up to a distance of about 22 miles. The Tribunal concluded:"As regards the issue of whether the applicant 'incurred danger from hostile forces of the enemy" when she rendered service on the vessel Wadjemup, the test to be applied by the Tribunal in accordance with Thompson is an objective one. It is not sufficient that the applicant subjectively feared that she might be in danger from hostile forces of the enemy or that there was a risk of danger from such forces. To satisfy the test, the applicant must in fact have incurred danger from such forces. On the evidence before it, the Tribunal is unable to find that that test is satisfied in the present case. On the applicant's own evidence, she was never fired upon by – indeed, she never saw or encountered – an enemy submarine, ship or aeroplane during her service on the Wadjemup. Put at its highest, the evidence was that there may have been a risk of danger from the enemy to those on board the Wadjemup, but such a risk is, of itself, insufficient to satisfy the abovementioned statutory test… [B]ut the evidence before the Tribunal does not establish that she did in fact incur danger from hostile forces of the enemy." The Tribunal concludes that on the facts before it there is no real evidence that Mr Lindsay incurred danger from the enemy. On Mr Lindsay's own evidence he was never fired upon or encountered an enemy submarine, ship or aeroplane during his service in Northern Australia. At best the Tribunal concludes, on examination of all the evidence before it, that Mr Lindsay was exposed to a "mere risk of, or liability to danger". At its highest, the evidence of the sea voyage on the munitions ship from Darwin to Truscott was that there may have been a risk of danger from the enemy to those on board the vessel, but such a risk, is of itself, insufficient to satisfy the objective test in Thompson. Moreover, the Tribunal concludes that Mr Lindsay's claim of "incurring danger from hostile forces" through air raids or as a wireless operator linked to air crew involved in operations, in themselves, do not satisfy the statutory test that Mr Lindsay himself, had in fact, incurred danger from hostile forces.