McGrath and Repatraition Commission - [2000] AATA 806

DECISION AND REASONS FOR DECISION [2000] AATA 806

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T99/126

VETERANS' APPEALS DIVISION          )
           Re      MICHAEL McGRATH
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date12 September 2000
PlaceHobart

Decision The application is remitted to the respondent for reconsideration in accordance with these reasons.

..……………………….
Senior Member

VETERANS' ENTITLEMENTS; Whether applicant 'allotted for duty'; whether engaged in 'special service'; application remitted for reconsideration by the respondent.

Veterans Entitlements Act 1986 s7A
Administrative Appeals Tribunal Act 1975 s37, s7A(1)(a)(iii)

REASONS FOR DECISION

12 September 2000 Mr J. Handley, Senior Member

The applicant applies to review a decision, made by the a senior delegate of the respondent, on 18 March February 1999, who decided that he had not rendered qualifying service within the meaning of s7A Veterans' Entitlements Act 1986.
At page 5 of the documents filed by the respondent pursuant to s37 Administrative Appeals Tribunal Act 1975 the delegate acknowledged that the applicant satisfied Schedule 2 of the Act, however, there was no satisfaction of s7A(1)(a)(iii) because the applicant was not "allotted for duty".
The hearing of the application was convened in Launceston on 30 August 2000. The applicant was represented by Mr Hart and Mr Castle represented the respondent. The applicant did not appear and neither party called evidence.
It was not in dispute that the applicant relevantly served between 8 March 1965 and 26 June 1966. These dates are obtained from the record of service found at page 14 of the T documents.
The issue in dispute was whether the applicant was engaged in "special service". If he was, it is acknowledged that he would "have been allotted for duty".
At page 14 of the T Documents the applicant's record of service records that he was engaged in "special service Malaysia/Singapore commenced 7 July 1965" as a member of Artillery Division 1026. That notation however has a line drawn through it with the word "cancelled" added. On the same document (2 lines below) is the entry "RO ARTY 1026/14 is cancelled".
The numerals "14" appear against the earlier notation against cancellation of special service and are referred in the documents exhibited as "entry number". The numerals "16" appear against the other entry on the service record at page 14 and this is also a reference to an entry number which will also have relevance later in these reasons.
Mr Hart on behalf of Mr McGrath submitted that the entry in the service records amounts to a record of special service. He submitted that the applicant was engaged in "qualifying service" and by reason of having been engaged in "special service" it should be found, as a fact, that Mr McGrath was "allotted for duty". He submitted that a cancellation cannot as a fact occur because to do so would be the equivalent of having decided that the applicant did not serve. He submitted that the Tribunal was obliged to find as a fact that the applicant was allotted for duty by reason of having engaged in special service and submitted that a cancellation could not – subsequent to completion of that service – be cancelled because to do so would deny the applicant's entitlements.
Mr Hart submitted that the Veterans' Entitlements Act was beneficial in nature, that it should be interpreted liberally and, in the absence of any or any adequate explanation by the respondent, the cancellation as alleged, should not be permitted to deny entitlement.
Mr Castle submitted that the word "cancelled" should be given its ordinary plain meaning of either "being negated" or "having no effect". He relied on documents filed on the day prior to the commencement of the hearing being extracts from Artillery Division 1026 of which the applicant was a member. On 3 February 1966 the records record that 12 persons, being members of that division, were noted as having special service cancelled.
Mr Castle submitted that the applicant may have been part of the unit he alleged but that only part of his unit was engaged in the patrol of the Malaysian border whereas the applicant and others may have been engaged in other duties which do not constitute being "allotted for duty".
conclusion
The presentation of this application was sadly deficient.
The applicant did not appear. His representative said that he had been contacted 2 weeks prior to the day of hearing and it was then learnt that the applicant was on holidays in Northern New South Wales.
The applicant's attendance was critical to these proceedings because both parties submitted that I should make a finding of fact as to whether the applicant was allotted for duty. In the absence of the applicant it was submitted that I should make a finding on the documents filed and by reference to the submissions made.
I was not prepared to accede to these submissions in the absence of the applicant's evidence and/or more detail being made available as to the applicant's service.
On 30 July 1999 Mr McGrath filed a sworn affidavit which in part recorded as follows:`
"I hereby declare that I actually partook in such duties that would constitute being allotted for duty during the period March 1965 until July 1965.
During that time I and other members on my gun detachment as well as other gun detachments from time to time were given live ammunition and orders to patrol the Thai/Malay border as Indonesian insurgents were reported to be in the area. A member of my gun detachment, Mr Siegfried – Ziggy – Zangl can verify this as he was also there with me at the time.
We were flown to a Malaysian jungle outpost by helicopter early one morning and from there conducted our day and night patrol duties in association with the Malay Field Police. Even though we never engaged the Indonesians on our patrols I believe this constituted being allotted for duty under the Act as we were engaged on active patrol in a hostile environment under threat of engagement by armed hostile forces during this time".
That affidavit would on its face appear to recant an accurate and truthful account of the applicant's service and would – if accurate – amount to the applicant being "allotted for duty".
The respondent however has filed a document from the Department of Defence (dated 3 February 1966) which purported to cancel special service. No explanation was given as to why the entries were cancelled. Similarly, no explanation was given as to the content of a document dated 8 December 1965, which records the applicant and others being members of Artillery Division 1026 were engaged in special service.
The status of these documents continues to be a mystery, because on the one hand, the document dated 8 December 1965, grants or deems special service for 34 members of Artillery Division 1026, yet the document dated 3 February 1966 purports to cancel special service to 12 members of Artillery Division 1026. The numerals "14" appear against the applicant's name in the document deeming special service and the numerals "16" appear against the applicant's name cancelling special service. These are the same numerals that appear in the service records where there is an entry of special service but which has been crossed out with the word "cancelled" written over it.
The applicant, in his affidavit filed on 5 August 1999, said that his colleague Mr Zangl could verify the service, because Mr Zangl and the applicant served at the same time. Apparently no attempt was made to obtain the records of Mr Zangl. This is a critical omission, because by reference to the documents filed on the evening prior to the commencement of the hearing, Mr Zangl is recorded on 8 December 1965 as having been engaged in special service yet, by the document of 3 February 1966 his name does not appear on the list of persons who have their special service cancelled. This would suggest that his records would not record special service having been cancelled.
In any event, the reason for what purports to be a cancellation of special service was absent from the submissions at the hearing, indeed the process of granting and then cancelling special service was not explained.
Mr Castle submitted that an entry in the commander's diary which was taken into evidence (at page 4) records that when a "Battery leaves Butterworth for exercise etc, it will be necessary to leave behind a portion of the Battery in order that our part of the responsibility for the defence of the airfield should not be completely absent". He suggested that this might explain part of the applicant's Division as having been engaged on border patrols yet another part remaining for guard purposes. That may be an explanation but it can only have the status of speculation.
In submissions Mr Castle argued that an allotment for duty would be made prior to duty commencing except in the cases of emergency. Mr Hart submitted that an allotment must always occur after the fact and could not, as a matter of normal construction, occur before duty. Whether these submissions amount to an interpretation of a veterans' service being made after completion of it, so as to determine whether there was an allotment of duty, might have some credence because the entry in the document of 8 December 1965, granting special service is numbered "14", which would suggest that the recording of special service in July 1965 was made following the document of 8 December 1965 being completed. That would suggest that an allotment for duty can only be made after the duty has concluded and then the decision to allot only being made after consideration has been given to the nature of the service previously undertaken.
In a letter to the respondent of 28 August 2000 from the Department of Defence reference is made to the applicant as follows:
"Examination of the specific artillery routine orders part 2 for 111LAA BTY and for the above named individual show that routine order ARTY1026 dated 8 December 1965 records former Gunner McGrath as being allocated for special service Malaysia/Singapore commencing with effect 07 July 1965.
However routine order part 2 ARTY 089 dated 3 February1966 cancelled this entry concerning special service in Malaysia/Singapore. Whether the initial entry was actually issued in error is not recorded on subsequent cancellation routine orders. A detachment of 111 LAY BTY was attached to 3RAR for operations on the Northern Border of the Malay Peninsula near Thailand however that period of service was 23 October 1964 until 21 November 1964 prior to Gunner McGrath's posting and service in Malaya. No period of special service is recorded for the former solder".
This letter appears to be misleading. A period of special service was recorded for Mr McGrath but was subsequently cancelled. Reference is made to a detachment of the 111LAA Battery in October/November 1964 yet the relevant service of the applicant commenced In July 1965.
The letter also queries "whether the initial entry was actually issued in error" but does not explain how 31 persons could be deemed on 8 December 1965, as having been engaged in special service, yet 3 months later 12 of those 31 persons were deemed not to have been on special service and that service was cancelled. It does not explain whether the other 19 members of that Division were permitted to continue to retain the status of having engaged in special service, and if so, why. No explanation is given as to the source of the information given to the persons who completed the document on 8 December 1965 and/or the accuracy of the records to permit completion of the document.
Nonetheless, most of the above amounts to speculation, which I am not prepared to convert to the status of fact, for the purposes of making a decision.
The applicant should be appraised of the above and of the documents filed at the hearing. Additionally, I would urge the respondent to have greater consideration to the applicant's affidavit (which he swore on oath) and, I would also urge the respondent to provide a better and more comprehensive explanation, as to why the applicant was deemed to have engaged in special service and why it was decided to cancel that service.
For the reasons given above I cannot conclude this review.
I direct that the application be remitted to the respondent for reconsideration in accordance with the above decision.

I certify that the thirty (30) preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed:    Linda Nemeth    ............................................
                 Secretary
Date of Hearing  29 August 2000
Date of Decision
Counsel for the Applicant        Mr Hart
Solicitor for the Applicant
Counsel for the Respondent    Mr Castle
Solicitor for the Respondent