Pearse and Repatriation Commission - [2000] AATA 330

DECISION AND REASONS FOR DECISION [2000] AATA 330

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/867

VETERANS' APPEALS DIVISION )

Re JOAN ELIZABETH PEARSE
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date27 April 2000
PlaceSydney

Decision The decision under review is affirmed

(Sgd) A Horton
……………………………..
Member
CATCHWORDS

VETERANS' AFFAIRS – gold card eligibility - service in Womens Auxiliary Australian Air Force during period of hostilities – whether incurred danger during Japanese midget submarine attack on Sydney 31 May 1942 -

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 Crawford and Repatriation Commission (1987) 14 ALD 341
Re Corrick and Repatriation Commission [2000] AATA 143

REASONS FOR DECISION

Rear Admiral AR Horton AO, Member

This is an application for review of a decision dated 12 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 11 April 1999, that Joan Elizabeth Pearse ("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 subsection 85(4A) of the Veterans' EntitlementsAmendment (Gold Card) Act 1998 ("the Gold Card Act"). The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 9 June 1999.
At the hearing before the Tribunal on 17 April 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 T documents"). The Tribunal also took into evidence a photocopy of a newspaper extract form the Illawarra Mercury, dated 3 December 1999 (Exhibit A1).

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 section 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 (a) or (b)…

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 Pearse and Repatriation Commission

Details

AGLC: Pearse and Repatriation Commission [2000] AATA 330
Case: [2000] AATA 330
Decision Date: 27 April 2000

CaseChat Overview and Summary

In the case of Pearse v Repatriation Commission, the applicant sought eligibility for a gold card under the Veterans' Entitlements Act 1986, claiming she rendered service during World War II and incurred danger from hostile forces of the enemy during the Japanese midget submarine attack on Sydney on 31 May 1942. The Repatriation Commission contested the applicant's claim that she incurred danger during the attack, which was central to her eligibility for the gold card. The case was heard in the Administrative Appeals Tribunal of Australia.

The legal issue before the Tribunal was whether the applicant had indeed incurred danger from hostile forces of the enemy during the specified attack, as required by the statutory definition of qualifying service under the Veterans' Entitlements Act 1986. The Tribunal had to determine whether the applicant's belief that she was in danger during the attack constituted actual danger under the objective test, as established in prior case law. The relevant statutory provisions included sections 5B(1), 5C(1), 7A, 120(4) of the Veterans' Entitlements Act 1986 and section 85(4A) of the Veterans' Entitlements Amendment (Gold Card) Act 1998.

The Tribunal found that the applicant's belief that she was in danger, even strongly held, was not sufficient to meet the statutory requirement of actual incurred danger from hostile forces of the enemy. The Tribunal emphasised that the test of "danger" must be objective and based on the actual military situation, independent of the applicant's perception or belief. The Tribunal concluded that the applicant's presence at Central Station during the attack, while she observed searchlights and heard aircraft noise, did not establish an actual risk of physical or mental harm from the enemy forces. Therefore, the Tribunal determined that the applicant did not incur danger from hostile forces of the enemy during the attack on 31 May 1942, and her claim for gold card eligibility was rejected.

The Tribunal ordered that the application for the gold card be dismissed. The Tribunal's decision was based on the applicant's failure to demonstrate actual incurred danger from hostile forces of the enemy during the attack, in accordance with the statutory definition and relevant case law. The Tribunal's reasoning highlighted the importance of an objective assessment of danger, independent of the applicant's personal beliefs or perceptions.

Orders

Orders of the court

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Background

Background to the litigation

Qualifying service is defined in section 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 (a) or (b) of the definition of 'period of hostilities' in sub section 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 or ship; or…" Subsection 5B(1) defines the period of hostilities and states, relevantly:"(1) …(b)World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included): or…"FACTS AND EVIDENCE The Respondent concedes that the Applicant is a veteran as defined in section 5C of the Act. The Applicant was aged over 70 at the time of the application for the Gold Card and hence meets the criteria for age as defined in subsection 85(4A)(a) of the Gold Card Act. The Respondent also concedes that the Applicant rendered service during the period of hostilities as defined in subsection 5B(1). The Applicant enrolled in the Womens Auxiliary Air Force on 14 May 1942 (T3). She gave evidence that her subsequent period of service until discharge on 7 December 1945 in the rank of corporal, was confined to New South Wales and Victoria. She did not serve outside Australia, nor in the Northern Territory, as confirmed in T3. The Applicant gave evidence that following her enlistment, she undertook initial training at Ultimo, prior to being posted to Melbourne for cook category training of some three to four months duration. She subsequently served for an extensive period at Bradfield Park, with shorter deployments to other Air Force facilities in the Sydney area and at Parkes. On the night of 31 May-1 June 1942, when the Japanese midget submarine attack took place in Sydney Harbour, the Applicant was returning after the evening meal from leave at her parents residence to her unit at Bradfield Park. She stated she was at Central Station when the sirens sounded, and on the direction of military police, waited for some time at that location before travelling by train across the Sydney Harbour Bridge to Killara or Roseville, from whence she was transferred to Bradfield Park by bus. On arrival, she was directed to an air raid shelter. Whilst at Central Station, she recalled seeing searchlights and hearing the noise of aircraft. She stated to the Tribunal her strong belief that she was in danger from enemy activities, particularly as she was unaware of the type and details of any attack being carried out by enemy forces. The Applicant was stationed in Sydney at the time of the subsequent gunfire attack by Japanese submarine on 8 June 1942, but was not aware of that attack at the time. No other incidents involving enemy forces apparently took place in her vicinity during her period of service. ANALYSIS OF EVIDENCE AND FINDINGS

Evidence

Evidence Before The Court

The Applicant was stationed in Sydney at the time of the subsequent gunfire attack by Japanese submarine on 8 June 1942, but was not aware of that attack at the time. No other incidents involving enemy forces apparently took place in her vicinity during her period of service. ANALYSIS OF EVIDENCE AND FINDINGS In that decision, which predated the decision in Re Thompson (supra) by the Full Federal Court, the Tribunal went on to say at page 347, and in reference to other considerations of the meaning of 'incurred danger from hostile forces of the enemy,': "The principle emerging from the above mentioned Tribunal decisions is that the test of "danger" must be an objective one and not subjective or fanciful. A feeling of dread or fear, for example, is not sufficient…It is again not sufficient for an applicant to believe, even strongly, that he or she was in danger if in reality there was in fact no danger. That is, the test of "danger" must entail an analysis of the actual military situation quite independent of an applicant's own view or perception of it at the relevant time. There must be established an actual risk of physical or mental harm."

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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