Newton and Repatriation Commission - [2000] AATA 715

DECISION AND REASONS FOR DECISION [2000] AATA 715

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/475

VETERANS' APPEALS DIVISION )

ReWESLEY NEWTON
Applicant

AndREPATRIATION COMMISSION
Respondent

DECISION

TribunalRear Admiral A R Horton, AO RAN (Rtd), Member
Date18 August 2000
PlaceSydney
DecisionThe decision under review is set aside and in substitution therefor the Tribunal determines that the Applicant rendered qualifying service pursuant to section 7A(1)(a)(i) of the Veterans' Entitlements Act 1986 and is entitled to a Gold Card under section 85(4A) of the Veterans' Entitlements Amendment (Gold Card) Act 1998.
…[Sgd] Rear Admiral A R Horton…
Member

CATCHWORDS

VETERANS' AFFAIRS – gold card eligibility - whether Applicant rendered qualifying service – RAAF service during period of hostilities – service in Northern Territory from June 1944 as Fitter Armourer- whether flight to Hollandia (Dutch New Guinea) – whether Applicant incurred danger from hostile forces of the enemy

Veterans' Entitlements Act 1986 – ss 5B(1), 5C(1), 7A, 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
Re Rapp and Repatriation Commission [1995] AATA 10254
Re Farrell and Repatriation Commission [2000] AATA 69

REASONS FOR DECISION
Rear Admiral A R Horton, Member

Introduction

This is an application for review of a decision made on 8 October 1998 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 14 January 1999, that Wesley Newton ("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 1 April 1999.
At the hearing before the Tribunal on 9 June 2000, the Applicant was self represented. Mr Jim 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:

Statutory Declaration by Mr D J Washbourne undated (exhibit A1);
Letter from Mr L A McDonald dated 6 June 1999 with aircrew logbook extracts (exhibit A2);
RAAF Records letter AF/35858 dated 25 February 2000 with attachment (exhibit A3);
Report by Mr R Piper (Naraha Company), Historian, dated 1 December 1999 with attachments (exhibit R1);
Supplementary report by Mr R Piper (Naraha Company), Historian, dated 23 March 2000 with attachments (exhibit R2);
Supplementary report by Mr R Piper (Naraha Company), Historian, dated 5 April 2000 with attachments (exhibit R3)

Mr Piper was called by the Respondent to give evidence.
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,…

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 Newton and Repatriation Commission

Details

AGLC: Newton and Repatriation Commission [2000] AATA 715
Case: [2000] AATA 715
Decision Date: 18 August 2000

CaseChat Overview and Summary

In the matter of Newton and the Repatriation Commission, the primary issue before the tribunal was whether the applicant, Newton, met the eligibility requirements for a gold card under the Veterans' Entitlements Act 1986. Newton claimed that he had rendered qualifying service by flying to Hollandia (Dutch New Guinea) in August 1944 and being exposed to danger from enemy forces. The tribunal was required to determine if Newton's service met the criteria for gold card eligibility under the Act, specifically whether he had served in a theatre of operations during World War II and had been exposed to the danger of attack by hostile forces.

The tribunal carefully considered the evidence presented, which included the Personnel Occurrence Report, testimonies from Mr. Piper and Mr. McDonald, and the Unit History Sheets and Narrative Reports. The tribunal found that while direct evidence confirming Newton's deployment to Hollandia was lacking, there was sufficient circumstantial evidence to support his claim. This evidence included the deployment of three aircraft from Newton's squadron to Hollandia, the practice of deploying ground crews to forward bases, and the critical role of Newton as a fitter/armourer in ensuring aircraft serviceability. Given these factors, the tribunal concluded that it was reasonable to infer that Newton had indeed flown to Hollandia as part of a B24 crew in August 1944.

Based on this finding, the tribunal determined that Newton met the eligibility criteria for a gold card under the Veterans' Entitlements Act 1986. The tribunal also acknowledged the difficulty Newton faced in obtaining corroborating evidence due to the passage of time and the benefits provided under section 119 of the Act. Consequently, the tribunal upheld Newton's claim for gold card eligibility.

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 believes that this occasion when crew pay was authorised related to the deployment of squadron aircraft to a forward base in north-west Australia (Truscott), the purpose being to provide greater range and flexibility for the conduct of combat missions, as was the case with the earlier deployments to Hollandia. As with Hollandia, components of the ground crews were deployed in the squadron aircraft to the forward base. In his evidence, Mr Piper accepted that ground crew might have been taken to Truscott, noting that the inclusion of the armourer category would be important given the number of weapons in the B24. ANALYSIS OF EVIDENCE AND FINDINGS The issue in this matter is whether the Applicant meets the eligibility requirements for the rendering of qualifying service pursuant to subsection 7A(1)(a)(i) of the Act. In his final submission, the Applicant reaffirmed that his claim was based on the fact that he flew to Hollandia in a Liberator aircraft, and was thus exposed to extreme danger from enemy forces during the flight and whilst stationed at Hollandia. Whilst his evidence at the primary decision point and the subsequent section 57 review was based on the belief that he must have flown to Hollandia in Liberator A72-44, the aircraft that he was normally attached to, he now believes that his flight took place in another aircraft of the squadron. The Respondent questioned whether there was sufficient evidence to enable a conclusion to be reached that the Applicant did indeed fly to Hollandia. The Personnel Occurrence Report (exhibit A3) provided evidence by way of an authorisation to draw crew pay that the Applicant was deployed with 24 Squadron for a period in February 1945; the Respondent accepted that this may well have been to Truscott airbase, but this was not sufficient to meet the qualifying service test. The Respondent submitted that no such "crew pay" record was available in support of the claim by the Applicant that he undertook a similar support mission to Hollandia. Notwithstanding that records were inadequate to ascertain the full composition of crews on the relevant flights, the authority to draw crew pay might have been expected to have been recorded for such a mission. The Respondent further expressed reservations that RAAF aircraft deploying to Hollandia would be required to take their own ground crew, given the presence of substantial American forces in that locality, but accepted the evidence of Mr Piper that such a possibility could not be ruled out, and further accepted the evidence of Mr McDonald (exhibit A2) that ground crews travelled in the aircraft on the flights to Hollandia. In summary, the Respondent accepted the possibility that the Applicant flew to Hollandia as claimed, and submitted that the beneficial provisions of section 119 of the Act might be considered. There is no direct evidence to confirm that the Applicant deployed to Hollandia in August 1944. There is evidence to confirm that three aircraft of his squadron did deploy for operations to Hollandia at that time and that a nucleus of ground crew accompanied aircraft to Hollandia, (and that such a practice was in use for other deployments by the squadron from Manbullo or Fenton, such as to Truscott). It can also be assumed that at times, ground crew allocated to a particular aircraft may not have been available to undertake such deployments, and a replacement with the relevant qualifications would be drawn from another aircraft's ground crew. Unit History Sheets and Narrative Reports in this instance are of little use as regards the identification of crew members, other than the aircraft captain. The Tribunal agrees with the Respondent that the Applicant should desirably have taken greater steps to seek corroboration from Liberator organisations and aircrew of his claim that he flew as a member of the crew to Hollandia, but recognises the difficulties in such a task, particularly given the passage of time since the operations were undertaken. Taking due account of the evidence given as regards squadron operations and procedures, the importance of the role of the Applicant (as a fitter/armourer) to ensure aircraft operational serviceability, the evidence that ground crew did deploy to forward bases, the passing of time, and the latitude contained within the beneficial legislation in section 119 of the Act as acknowledged by the Respondent, the Tribunal finds to its reasonable satisfaction that the Applicant flew to Hollandia in New Guinea in August 1944 as part of a B24 crew, remaining in that locality for about six days.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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