McGuiness and Repatriation Commission - [2000] AATA 3

DECISION AND REASONS FOR DECISION [2000] AATA 3

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/852

VETERANS' APPEALS DIVISION )

Re WILLIAM JOHN McGUINESS
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date7 January 2000
PlaceSydney

Decision The decision under review is affirmed

(Sgd)                  A R HORTON
  ..............................................
  Member
CATCHWORDS
VETERANS' AFFAIRS - gold card eligibility – service in Australian Army – passage in HMAT GORGON from Sydney to Townsville - qualifying service - whether incurred danger from hostile forces
Veterans' Entitlements Act 1986 – ss 5B(1), 5c(1), 7A, 36, 120(4)
Veterans' Entitlements Amendment (Gold Card) Act 1998 – s85(4A)

Repatriation Commission v Thompson (1988) 44 FCR 20
Willcocks v Repatriation Commission (1992) 39 FCR 49
Repatriation Commission v Burton (1993) 31 ALD 475

REASONS FOR DECISION

7 January 2000 Rear Admiral A R Horton AO, Member

This is an application for review of a decision dated 7 December 1998 (T7) 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 15 March 1999 (T2), that William John McGuiness ("the Applicant") did not render qualifying service for the purposes of s 7A of the Act, and hence is not eligible for a Gold Card under s 85(4A) of the Veterans' Entitlements Amendment (Gold Card) Act 1998 ("the Gold Card Act"). The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 8 June 1999.
At the hearing before the Tribunal on 9 December 1999, the Applicant was represented by his son, Mr Michael McGuiness. Mr J Marsh, Senior Advocate represented 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 a report with attachments by Mr B G O'Keefe, Consulting Historian, dated 9 November 1999 (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:
(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 notified the Department in writing that he or she seeks eligibility for such treatment."
Qualifying service is defined in s 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…

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 McGuiness and Repatriation Commission

Details

AGLC: McGuiness and Repatriation Commission [2000] AATA 3
Case: [2000] AATA 3
Decision Date: 7 January 2000

CaseChat Overview and Summary

In the matter of Repatriation Commission v McGuiness, the Federal Court was tasked with determining whether the Applicant qualified for a Gold Card under the Veterans' Entitlements Act 1986, based on his service during World War II, specifically during the voyage of HMAT GORGON from Sydney to Townsville. The Applicant, who served as a driver in various transport units, claimed that he incurred danger during this voyage, which he believed qualified him for the Gold Card. The Repatriation Commission contested this claim, arguing that there was no evidence of actual danger from hostile forces during the Applicant's voyage.

The primary legal issue the court needed to address was whether the Applicant's service during the voyage of HMAT GORGON constituted "qualifying service" under s 7A of the Veterans' Entitlements Act 1986, which requires that the service be in naval, military or aerial operations against the enemy and that the serviceman incurred danger from hostile forces. The court needed to determine if the Applicant's perception of danger, without concrete evidence of actual danger or risk, was sufficient to satisfy the statutory criteria. The court also had to consider relevant case law, such as Repatriation Commission v Thompson, Willcocks v Repatriation Commission, and Repatriation Commission v Burton, which established that danger must be objectively incurred, not merely perceived.

The court found that the Applicant's service during the voyage of HMAT GORGON did not qualify as "qualifying service" under the Act. Although the Applicant had served during a period of hostilities and met the age criteria for the Gold Card, the court concluded that the evidence did not support the claim that he incurred danger from hostile forces. The court noted that the voyage took place along a well-used sea route, there was no evidence of Japanese forces in the vicinity at the time, and there had been no detection of enemy minefields or incidents from minelaying operations on the route for some years. The Applicant's perception of danger, without any concrete evidence of actual danger or risk, was insufficient to meet the statutory criteria. The court relied on the established principle that danger must be objectively incurred, not merely perceived, and found that the Applicant's claims did not satisfy this requirement.

The court dismissed the Applicant's claim for a Gold Card. The decision underscored the importance of concrete evidence of danger from hostile forces to qualify for the Gold Card, as opposed to mere apprehension or perception of danger.

Orders

Orders of the court

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Background

Background to the litigation

The Respondent concedes that the Applicant is a veteran as defined in s 5C of the Act. The Applicant meets the age criteria for the Gold Card as defined in s 85(4A)(a), being aged 76 at the time of the application. The Respondent also concedes that the Applicant rendered service during the period of hostilities as defined in subsection 5B(1). The relevant standard of proof is that of reasonable satisfaction pursuant to subsection 120(4) of the Act.FACTS AND EVIDENCE The Applicant was enlisted into the Citizen Military Forces on 13 January 1942, and was transferred into the Australian Imperial Force on 28 Marsh 1943. He completed his military service on 14 December 1945. He served as a driver in various transport units. From late 1942, he was on the strength of 132 Australian General Transport Company, initially based at Brisbane, but then moving north to the Atherton Tablelands. He returned to New South Wales by train in mid 1944, and after a period of leave, embarked in HMAT Gorgon at Sydney for the passage to Townsville to rejoin his unit. It is in this period, given that he gave evidence that at no other stage of his service did any relevant incidents occur, that the Applicant believes he incurred danger pursuant to the criteria for qualifying service as defined in s 7A of the Act. In evidence, the Applicant stated that he and four or five other members of his unit, as well as personnel from other units, took passage in GORGON. They were accommodated below decks "the whole time". Form A.F. B.103-1 Service and Casualty Form (T3) records that the Applicant embarked in the GORGON on 9 August, disembarking on 14 August. A hand written record of the ship's movements (T3) shows that GORGON sailed from Sydney at 0353 on 10 August and arrived Townsville at 2014 on 13 August. The Applicant stated that the ship sailed with a naval escort, but he was not in a position to know whether or not that escort remained in company for the duration of the voyage. There was no intercom system fitted, or at least used, in the GORGON, and no information was made available by the command as to the likely threat from enemy submarines or minefields, nor any relevant incidents. The Applicant believed the ship to be darkened; he was unable to state whether the ship was armed. The Applicant recalls being informed that on leaving Sydney, the GORGON proceeded south for some six hours before turning east, then north. He believes the ship would have transitted to Townsville inside the Barrier Reef. An extract of the ship's log, provided as an attachment to Exhibit R1, is of no help in this regard, providing no information as to the ship's route nor any indication of any incidents involving enemy forces. Mr O'Keefe, the author of the report at Exhibit R1, was not called. The advocate for the Applicant submitted that he accepted the historical records as submitted in the report, in regard to the operations of enemy submarines and the locations of enemy minefields. However, the Applicant stated that he did not accept the conclusions as then drawn by Mr O'Keefe as they related to the degree of risk encountered by the Applicant. The advocate for the Applicant drew on numerous issues expounded in a written submission, which he considered disadvantaged the Applicant, and these are summarised as follows:

Evidence

Evidence Before The Court

The Respondent acknowledged the perception of policy discrimination, but submitted that s 7A(1) provides the relevant legislative definition in terms of the eligibility for qualifying service, and the matter as to whether the Applicant incurred danger must be decided on the evidence. In this case, the Respondent submitted, HMAT GORGON travelled along a well used sea route from Sydney to Townsville, the evidence was clear that there were no Japanese forces in the vicinity, nor had there been for some considerable time, and the German submarine operations in south east Australian waters that resulted in the sinking of the WALKER occurred some months after the voyage of the GORGON. The Respondent also submitted that there had been no detection of enemy minefields, or incidents resulting from enemy minelaying operations, on the route for some years. He acknowledged that the Applicant was apprehensive, but perceived danger was insufficient to meet the objective criteria as defined in RepatriationCommission v Thompson (1988) 44 FCR 20.ANALYSIS OF EVIDENCE AND FINDINGS As conceded by the Respondent at the outset, the Applicant rendered service "during a period of hostilities" as defined in subsection 5B(1) of the Act. Section 7A (1)(a)(i) requires the Applicant to have rendered such service "in naval, military or aerial operations against the enemy". Cooper J defined the term "against the enemy" in Willcocks v Repatriation Commission (1992) 39 FCR 49 where at p56 he stated:"…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 services, inter alia, in military operations against the enemy, in the sense of operations in hostility or opposition to the enemy.…" It may be that this application could fail against that criteria, or against the relevant criteria in relation to whether the Applicant was engaged 'in naval, military or aerial operations against the enemy' as defined by Olney J in Repatriation Commission v Burton (1993) 31 ALD 475 but they are not matters for consideration unless the "incurred danger" test is met. The Full Federal Court considered the implications of the phrase "incurred danger" in Thompson (supra), Davies, Wilcox and Foster JJ stating (at pp 23-24) that:"…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…"

Decision

Reasons for decision

ROBERT J

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Ratio Decidendi

Legal Principle Established

Established by: ROBERT J

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