Phyllis Ransom v Repatriation Commission
[2012] AATA 907
•6 December 2012
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2011/5447
Veterans' Appeals Division )
Re: Phyllis Ransom
Applicant
And: Repatriation Commission
RespondentDECISION
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 during the relevant period of hostilities.
Paragraph (b) of subsection 5B(1) of the Act defines period of hostilities as:
World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included).
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.
In relation to submarines in Australian waters, the report records as follows:
The veteran arrived in Sydney by boat on 8 December 1944.
When Mrs Ransom arrived in Sydney on 8th December 1944 the German submarine U-862 was travelling near Kangaroo Island, off Adelaide. By 25th December it had reached a position down the coast from Sydney, at Moruya, where it sank the United States Liberty ship Robert Walker. From there it proceeded west out to sea and on to New Zealand waters.
Determination of the issues
Issue 1: Did Mrs Ransom render service at sea in naval operations against the enemy?
The Federal Court considered section 36 of the Act, which was relevantly the same as the present section 7A in the matter of Repatriation Commission v Thompson[1]. In that case, the Court said:
In approaching the statutory provision, it is necessary to keep in mind that the words used are words of ordinary parlance and are used in their ordinary sense. No word in section 36(a)(i) is ambiguous, no ambiguity arises from the order in which the words are used and no ambiguity arises from the context in which the provision is found. The words require no juristic extrapolation. They mean what they say, no more and no less, and they should be so read.
[1] (1998) 44 FCR 20.
In Willcocks v Repatriation Commission[2], the court adopted the approach to statutory interpretation applied in Thompson. Referring to the decision in Thompson in relation to the issue of the military operations against the enemy, the court in Willcocks said:
In view of this clear statement, it is not appropriate to embark on a consideration of legislative history, explanatory memoranda or any other extrinsic material, at least in interpreting the words “military operations” and “against”.[3]
[2] (1992) 39 FCR 49.
[3] (1992) 39 FCR 49, 55.
Later the Court said:
In consequence it is not a correct approach to widen the category of service under s 36(1)(a)(i) to include activities reasonably incidental to military operations as themselves being military operations. Whether or not an activity falls within the section will depend upon determining in a practical way whether or not the conduct or the activity was an integral part of naval, military or aerial operations against the enemy.
The phrase “naval, military or aerial operations against the enemy” is to be read as a whole. It includes two elements. The first is that there must be some operation which is naval, military or aerial in character. The second is that the requisite operation must be against the enemy. Both elements must be satisfied for the service to constitute “qualifying service” within the meaning of s 36(1) of the VE Act.
…
Accordingly, … 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 service, inter alia, in military operations against the enemy, in the sense of operations in hostility or opposition to the enemy.[4]
[4] (1992) 39 FCR 49, 55-6.
I am satisfied that as a member of the army on board a hospital ship transporting incapacitated members of the forces during hostilities, Mrs Ransom was engaged in naval operations against the enemy. The Commission has argued that a hospital ship was not actively engaged in this way, that it was “a grey area” or part of a “spectrum of operations”, and in this case too remote from the operations of war.
I note that the section does not refer to any active engagement. In fact, what section 7A refers to is a requirement that the veteran has rendered service at sea in naval operations against the enemy. This does not mean that the veteran has to have been in the line of fire, but there must be operations against the enemy. I am satisfied that it was part of an operation to achieve the recovery and treatment of injured and/or ill service personnel, some of whom would probably be in a position to return to active service against the enemy, and it is to be noted that the war was continuing during this period.
The activity in which Mrs Ransom was engaged advanced the war effort against the enemy. This is to be contrasted with the situation considered in Willcocks where the activity under consideration was releasing and repatriating prisoners of war.
Issue 2: Did Mrs Ransom render service at a time when she incurred danger from hostile forces of the enemy?
The comments of the Court in Thompson also apply in interpreting the phrase “incur danger from hostile forces of the enemy” in section 7A. The court said:
In applying such provision, therefore, it is desirable to eschew the use of adverbs and adjectives, that is to say, not to read into the provision words which are not there. In referring to the word “danger”, the Administrative Appeals Tribunals have used adjectives such as “real”, “actual” and “substantial”. But the word “danger” stands for itself. If a serviceman incurs danger from hostile enemy forces, that circumstance is sufficient to satisfy the statutory requirement. It is indeed the specified requirement. No adjective can enlighten the concept. When applying the word “incurred”, some Administrative Appeals Tribunals have used the expression “reasonable expectation”. But, again, the word “incurred” is an ordinary word of the English language. It has a dictionary meaning and is used in that sense. Other words should not be substituted for it.[5]
[5] (1998) 44 FCR 20, 23.
The Court then referred to the Shorter Oxford Dictionary definition of danger as being: “Liability or exposure to harm or injury; risk, peril.”[6]
[6] (1998) 44 FCR 20, 23.
Later the Court said:
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 mere liability to danger, that is to say, that there is a mere risk of danger.[7]
[7] (1998) 44 FCR 20, 23-4.
Danger is not incurred unless the serviceman is exposed, at risk of, or in peril of harm or injury. The danger incurred must be more than a merely fanciful danger, or so minimal that the rule de minimis applies. But to say that is not to give a flavour of the word; rather it is to use it in its ordinary sense.
I am satisfied that there were enemy mines floating in the water through which the ship that Mrs Ransom was aboard travelled, particularly across the Gulf of Carpentaria, through the Torres Strait and down parts of the Eastern Seaboard of Australia.
I am satisfied also that Mrs Ransom incurred danger, in that the Wanganella was at risk from enemy submarines. I am satisfied that it is known that one such submarine was travelling around the Australian coastline at the time that Mrs Ransom was travelling. There was a danger to Mrs Ransom arising from the possible presence of other enemy submarines.
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.
I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance. .........................[sgd]...............................................
Associate
Dated 20 December 2012
Date(s) of hearing 8 October 2012 Advocate for the Applicant Bruce Turner - Bayside Veterans' Centre Advocate for the Respondent Robert Douglass - Department of Veterans' Affairs Advocacy Section
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