Mullen and Repatriation Commission - [2000] AATA 871

Administrative
Appeals
Tribunal

DECISION AND REASONS FOR DECISION [2000] AATA 871

ADMINISTRATIVE APPEALS TRIBUNAL )

) N0 N2000/349

VETERANS' APPEALS DIVISION )

ReDENNIS WILLIAM MULLEN
Applicant

AndREPATRIATION COMMISSION
Respondent

DECISION

TribunalRear Admiral AR Horton AO (Member)
Date3 October 2000
PlaceSydney
DecisionThe decision under review is affirmed.
..............................................
  Rear Admiral AR Horton
  Member

CATCHWORDS

VETERANS' AFFAIRS – Gold card eligibility – whether Applicant rendered qualifying service – RAAF service during period of hostilities – service on Mulgrave Island, Torres Strait – whether incurred danger from hostile forces of enemy

Veterans' Entitlements Act 1986 – ss5B(1), 5C(1), 7A, 120(4)

Repatriation Commission v Thompson (1988) 44FCR 20
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Burton (1993) 31 ALD 475
Re Crawford and Repatriation Commission (1987) 14 ALD 341
Re Bancroft and Repatriation Commission (AAT 11333, 25 October 1996)
Re Dwyer and Repatriation Commission (1987) 13 ALD 424

REASONS FOR DECISION
September 2000 Rear Admiral A R Horton
introduction

This is an application for review of a decision made on 13 August 1999 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 13 December 1999, that Dennis William Mullen ("the Applicant") did not render qualifying service for the purposes of section 7A of the Act, and hence is not eligible for a Gold Card under section 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 6 March 2000.
At the hearing before the Tribunal on 29 August 2000, the Applicant was self represented. Mr J Marsh, Senior Advocate, appeared for 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 Tribunal also received the following documents into evidence :
Exhibit No.     Descripton     Date
A1      Statement (with attachments) by the Applicant to the Tribunal          16 August 2000
R1      Report by Mr B G O'Keefe, consulting historian 7 June 2000

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 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".

The Respondent concedes…

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 Mullen and Repatriation Commission

Details

AGLC: Mullen and Repatriation Commission [2000] AATA 871
Case: [2000] AATA 871
Decision Date: 3 October 2000

CaseChat Overview and Summary

The case of Mullen and Repatriation Commission involves the Applicant's eligibility for a Gold Card under the Veterans' Entitlements Act 1986. The Applicant served in the Royal Australian Air Force (RAAF) on Mulgrave Island, Torres Strait, during a period of hostilities and is seeking to establish that his service qualifies for the Gold Card on the basis that he incurred danger from hostile forces of an enemy. The Repatriation Commission, as the Respondent, contests the Applicant's eligibility for the Gold Card on the basis that his service did not meet the statutory requirements for incurring danger from an enemy.

The primary legal issue before the court was whether the Applicant's service on Mulgrave Island constituted "qualifying service" under the Veterans' Entitlements Act 1986. Specifically, the court had to determine if the Applicant's service involved "incurred danger" from hostile forces of an enemy. The Applicant argued that his service in an isolated and vulnerable position on Mulgrave Island constituted incurred danger, while the Commission contended that there was insufficient evidence to demonstrate that the Applicant's service met the threshold of incurred danger. The court examined the evidence presented by both parties, including the historical context of the Applicant's service, the nature of the threat posed by enemy forces, and the relevance of previous cases such as Re Dwyer and Repatriation Commission.

The court considered the evidence presented and found that the Applicant's service on Mulgrave Island did not meet the statutory requirement of incurring danger from hostile forces of an enemy. The court noted that while the Applicant's unit was stationed in a forward and isolated position, there were no recorded incidents of enemy activity during the Applicant's service period. The court also found that the evidence regarding the threat of enemy mines in the Torres Strait area did not establish a sufficient level of danger. The court further distinguished the Applicant's case from Re Dwyer and Repatriation Commission, as the evidence in the present case did not demonstrate a comparable level of threat or activity by enemy forces. As a result, the court concluded that the Applicant's service did not qualify as incurred danger under the Act.

The court's decision was that the Applicant's claim for a Gold Card was not substantiated. The Applicant's service on Mulgrave Island, while acknowledged to be in an isolated and potentially vulnerable position, did not meet the statutory requirement of incurring danger from hostile forces of an enemy. The court's findings were based on the lack of recorded enemy activity and the insufficient evidence to establish a significant level of threat during the Applicant's period of service. The court's decision was consistent with the statutory requirements of the Veterans' Entitlements Act 1986 and the relevant case law.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Applicant raised in evidence the concern that he had in regard to the threat from enemy mines laid in the Torres Strait area, and which may have drifted, both during the passage to Mulgrave Island and in the subsequent unloading. Mr O'Keefe stated that there is no record of any incident relating to mines in the Torres Strait area and that the area was swept with negative results in May-June 1945 (Exhibit R1).ANALYSIS OF EVIDENCE AND FINDINGS The Applicant contends that enemy activity, and the threat of such activity to those at Mulgrave Island, was greater in reality than now alleged. In particular, 341 Radar Station of only 35 men was established on Mulgrave Island, in a forward location, isolated, readily identifiable and "most vulnerable". The unit was located in a position dictated by the need to resolve a "blind spot" problem, to provide early warning to the mainland, and had no defences. The Applicant submitted that the significance of his unit being stationed in this forward and isolated position had not been properly taken into account in earlier considerations of his claim. The Respondent submitted that there was common ground as regards the factual issues in respect to the Applicant's service at Mulgrave Island. There had been no air raids during his period of service on the island, and no incidents that might be attributed to enemy activity. The Respondent accepted that the Applicant had apprehension and fear, but that was insufficient to meet the objective "incurred danger" test. The Respondent acknowledged the service of the Applicant in what was an isolated outpost in the defence of Australia, and that he had no choice in the matter of when and where he served, but there was insufficient material in the evidence as to the Applicant's service to satisfy the qualifying service requirements for eligibility for the Gold Card. Both parties to the hearing addressed the decision in ReDwyer and RepatriationCommission (1987) 13 ALD 424. Based on a report by the military historian, Lieutenant Colonel David Horner, that Tribunal found that Dwyer incurred danger and hence rendered qualifying service for the purpose of the service pension, because "the Japanese did have the strategic capacity to launch an attack on either Higgins Field base or Mulgrave Island (where the Applicant served from October 1943 at the former and from March 1944 to February 1945 at the latter). While with hindsight it can be said that such an attack was not probable, the capacity for, and the possibility of, an attack has been established". The Applicant in this matter served in the same unit as Dwyer, but sought to make the distinction that he had been stationed at Mulgrave for some 3 months before the arrival of the latter. The Respondent on the other hand saw Re Dwyer as being relevant to the extent that the background information and records of enemy activities accorded with the evidence given by Mr O'Keefe. The Tribunal notes one point of difference as being that Lieutenant Colonel Horner referred to relevant war diaries recording the detection on 3 March 1944 of unidentified aircraft 80 miles north west of Thursday Island, as well as the previously referred to aircraft detection on 4 March, which Horner described as a "sighting". The Tribunal takes the additional information in respect of the 3 March 1944 detection into account in considering this matter.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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