Phyllis Ransom v Repatriation Commission - [2012] AATA 907

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2011/5447

Veterans' Appeals Division )

Re: Phyllis Ransom
Applicant

And: Repatriation Commission
Respondent
DECISION
TRIBUNAL:             Deputy President J W Constance
DATE:                      6 December 2012
PLACE:                   Melbourne
DECISION:1. The decision of the Repatriation Commission made 5 December 2011 that Ms Ransom is not eligible for benefits under section 85(4A) of the Veterans’ Entitlements Act 1986 (Cth) is set aside.
2.In substitution for the decision set aside it is decided that Ms Ransom has rendered qualifying service as defined by section 7A of the Act and is entitled to be provided with treatment in accordance with section 85(4A) of the Act.

........................[sgd].........................
Deputy President
[2012] AATA 907

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2011/5447

Re

Phyllis Ransom

APPLICANT

And

Repatriation Commission

RESPONDENT

REASONS FOR DECISION
(EDITED TRANSCRIPT OF REASONS GIVEN ORALLY)
Deputy President J W Constance
Introduction

By way of introduction, in October 2011 Mrs Ransom applied for a Gold Card for health benefits under the Veterans Entitlements Act 1986 (Cth). This application was refused and Mrs Ransom has applied to the Tribunal for a review of the decision.
The decision under review will be set aside, and in substitution it will be decided that Mrs Ransom is entitled to health benefits under section 85(4A) of the Act.
LEGISLATION
Section 85(4A) of the Act provides in part:
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).
The section goes on to provide further conditions which are not in issue in this matter. In section 7A of the Act, qualifying service is defined to include, in part:
(1) For the purposes of parts III and VA and sections 85 and 118V, a person has rendered qualifying service:
(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 subsection 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.
The section goes on to provide provisions that again are not relevant in this application.
The issues in dispute
The question before the Tribunal is whether Mrs Ransom rendered qualifying service within the meaning of section 7A(1)(a). If she did, the Commission does not dispute her entitlement to a Gold Card with revisions of the medical benefits provided for by section 85(4A). It is not in dispute that Mrs Ransom rendered service…

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 Phyllis Ransom v Repatriation Commission

Details

AGLC: Phyllis Ransom v Repatriation Commission [2012] AATA 907
Case: [2012] AATA 907
Decision Date: 6 December 2012

CaseChat Overview and Summary

Phyllis Ransom sought a review of a decision made by the Repatriation Commission that she was not eligible for benefits under section 85(4A) of the Veterans Entitlements Act 1986 (Cth). The dispute centered on whether Mrs Ransom had rendered service at sea during naval operations against the enemy and, if so, whether she had done so while incurring danger from hostile forces. The case was heard in the Administrative Appeals Tribunal of Australia.

The primary legal issues were whether Mrs Ransom's service on the hospital ship Wanganella qualified as service at sea in naval operations against the enemy, and whether she was exposed to danger from enemy forces during her voyage from Darwin to Sydney. The court needed to determine if the evidence supported the inference that Mrs Ransom's service on the Wanganella exposed her to the risk of floating mines and submarine attacks, which would qualify her for benefits under the Act.

The Tribunal found that Mrs Ransom had indeed rendered service at sea during naval operations against the enemy. The court relied on the reports from Mr Piper, which detailed the presence of Japanese submarine-laid mines in the waters through which the Wanganella travelled, and the subsequent recovery of these mines along the coast. The Tribunal concluded that the movement of these mines, influenced by tides, winds, and currents, presented a real and present danger to the Wanganella and its crew. This finding aligned with previous Tribunal decisions in similar cases. Based on this reasoning, the Tribunal set aside the Repatriation Commission's decision and found Mrs Ransom eligible for benefits under section 85(4A) of the Veterans Entitlements Act 1986 (Cth).

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issues for determination are therefore: (1) did Mrs Ransom render service at sea in naval operations against the enemy, and if so, (2) did Mrs Ransom render this service at a time when she incurred danger from the hostile forces of the enemy on that ship.The facts In this matter only documentary evidence was relied upon, and there was no cross-examination of the authors of any of the documents. Unless otherwise stated, I make the following finding of facts based on the reports of Mr Piper, from the Military and Aviation Research Services. Those reports are dated 19 March 2012, and 24 April 2012. I am satisfied of the facts found to my reasonable satisfaction, as required by section 120(4) of the Act. Mrs Ransom served as a member of the Australian Army Medical Women’s Service from 28 December 1942 to 25 June 1944, and as a member of the Australian Imperial Force from 26 January 1944 to 18 February 1947. She served as a Nursing Orderly (Acting Group III level), for approximately six and a half months. Prior to 30 November 1944, Mrs Ransom was stationed in an army hospital in Darwin. Between 30 November 1944 and 8 December 1944, Mrs Ransom travelled from Darwin to Sydney on-board the hospital ship, Wanganella. I am satisfied, by reasonable satisfaction that an inference from these Acts is that as well as Mrs Ransom, there were members of the army nursing staff on-board, together with injured and/or ill members of the armed forces. On its journey, Wanganella travelled north from Darwin to the east of Melville Island, then east to cross the Gulf of Carpentaria, around the Cape York Peninsula, and then generally south along the eastern coast to Sydney. I find the following facts, which are direct quotations from the reports of Mr Piper:Enemy mines (30) were laid by the Japanese submarine I-121 on 12 January 1942, west of Bathurst Island, near Darwin. On 16 January 1942 submarine I-124 laid 27 mines to the south of Bathurst Island. Some of these mines broke loose and were subsequently recovered in waters around Darwin in 1942.In the vicinity of Mapoon, near Weipa on the western coast of the top of the Cape York Peninsula, over some time there were recovered 18 Japanese sea mines. These were recovered by local people who had assisted in locating and dismantling the mines found along the gulf coast. It is not currently known exactly where the mines were located. On the balance of probability, I am satisfied that approximately 18 mines came ashore, and that they came from the Torres Strait submarine in early 1942. It appears that some of these 18 mines were located during 1944, 1945, and post war. Mrs Ransom’s vessel passed through the Torres Strait in December 1944. … Two Japanese submarines laid two separate fields of type 88 contact sea mines, totalling approximately sixty (some records state more), on two separate occasions in the western approaches to the Torres Strait in 1942. Details are as follows: 15 January 1942 submarine I-122 in a position 88 miles west of Thursday Island, estimated 41 mines. 25 February 1942 submarine I-123 in a position 106 miles west of Thursday Island. Estimated 20 mines (half load).…At least four mines which drifted from their moorings were found in the Torres Strait during the war under the following circumstances: September 1942 - Aureed Island, which is some 70 nautical miles (130 km) north-east of Horn and Thursday Island. 24 June 1943 - Two Japanese type 88 mines were washed ashore on Thursday Island (adjacent to Horn Island) and were subsequently exploded by Royal Australian Navy technicians. …April 1944 - Moa Island (Banks) is 20 nautical miles (30km) due north of the Thursday/Horn Islands area. A mine washed ashore and found here in this month and year. …Japanese submarine I-6 laid nine magnetic mines, which included six German TMC acoustic/magnetic mines on the approach to Brisbane River on 13 March 1942. …In March 1966 possibly one of the German mines from Brisbane drifted ashore at nearby Surfers Paradise and was destroyed on the beach by an Australian naval mine expert.…Recent research of wartime mission correspondence and records has revealed a considerable number of mines washed ashore on the eastern side of the Gulf of Carpentaria during wartime years. These mines were possibly swept there from the two fields laid by the Japanese submarines I-122 and I-123 on 15 January and 25 February 1942. …The following details illustrate the movement of winds and currents in the Gulf of Carpentaria, and would have influenced the movement of enemy mines laid near the Torres Strait in early 1942: Derelict nets are found in large numbers on parts of Australia’s northern shores and particularly within the Gulf of Carpentaria. On the eastern side of the Gulf (Cape York) the derelict nets arrive with the north-west monsoon winds of the wet season (generally November to March) and the easterly flowing surface water currents. On the western shores of the Gulf (Arnhem Land), derelict nets arrived with the south-east trade winds in the dry season (generally May and September) when surface currents flow west or west-south-west.…On 12 June 1943, the Naval Officer in Charge, Thursday Island wrote to the Secretary of the Naval Board requesting permission to requisition a lugger for the use of the Rendering Mines Safe Officer who was called upon to disarm anti-shipping explosive mines along the coast of Cape York Peninsula. The 57 foot, 17 ton ketch Viking was acquired at Thursday Island for the duties and at least five Mapoon men served with the vessel and its duties until the end of World War II. …The above facts of tide, wind, wave, water depth and storm would have influenced the breaking loose and movement of any enemy mines through the Torres Strait during World War II and especially those that came ashore in the western side of the Gulf of Carpentaria and eastern side of Cape York Peninsula. …As recently as 2003 a Clearance Dive Team from HMAS Cairns cleared wartime mines around Cape Grenville in far north Queensland, near the Torres Strait.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In summary, I am satisfied that during her voyage from Darwin to Sydney, Mrs Ransom incurred danger in that her wellbeing was at risk from (a) floating mines laid by the enemies and (b) attack by one or more enemy submarines. I note that this is consistent with the Tribunal’s decisions in Gilgen v Repatriation Commission[8], and Mullen v Repatriation Commission.[9][8] [2005] AATA 856.[9] [2005] AATA 781.CONCLUSION In conclusion: (1)the decision of the Repatriation Commission made 5 December 2011 that Mrs Ransom is not eligible for benefits under section 85(4A) of the Veterans Entitlements Act 1986 (Cth) will be set aside;(2)in substitution for the decision set aside, it will be decided that Mrs Ransom has rendered qualifying service as defined by 7A of the Act, and is entitled to be provided with treatment in accordance with section 85(4A) of the Act.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2011/5447
Re	Phyllis Ransom
APPLICANT
And	Repatriation Commission
RESPONDENT