Pietsch and Repatriation Commission
[2002] AATA 735
•2 August 2002
DECISION AND REASONS FOR DECISION [2002] AATA 735
ADMINISTRATIVE APPEALS TRIBUNAL )
)No V2001/1452
VETERANS' APPEALS DIVISION )
Re EDMUND OTTO PIETSCH
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J. Handley, Senior Member
Date2 August 2002
PlaceMelbourne
Decision The decision under review is affirmed.
.........Sgd. Mr J. Handley..........
Senior Member
CATCHWORDS
Veterans' Entitlements – Gold card – whether applicant engaged in "operations against the enemy" or "incurred danger from hostile forces of the enemy"- decision affirmed.
Veterans' Entitlements Act 1986 ss. 5B, 7A(1)(a)(i) and 85(4A)
Repatriation Commission v Thompson (1988) 82 ALR 352
REASONS FOR DECISION
2 August 2002 Mr J. Handley, Senior Member
The hearing of this application was convened in Horsham on 5 July 2002. At the conclusion of the hearing, oral reasons for decision were delivered. On 24 July 2002, the applicant wrote to the Tribunal requesting written reasons for decision. These reasons are therefore delivered pursuant to s. 43(2A) of the Administrative Appeals Tribunal Act 1975.
The applicant applied to review a decision of a delegate of the respondent who decided, on 16 October 2001 that he had not rendered qualifying service pursuant to s. 7A(1)(a)(i) of the Veterans' Entitlements Act 1986 ("the Act"). By reason of that decision, the applicant was disentitled from receipt of a "Gold Card".
Mr Pietsch was a member of the Australian Army between 19 April 1941 and 23 June 1944. All of his service was within Australia. In order to have rendered "qualifying service" the above section must be satisfied namely:
"For the purposes of Part III, 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; …"
A "period of hostilities" is defined within s. 5B as the period 3 September 1939 to 29 October 1945. Mr Pietsch was therefore engaged within a "period of hostilities". The issue, however, that needs to be satisfied is whether he was engaged in "operations against the enemy…at a time when (he) incurred danger from hostile forces of the enemy…".
Mr Pietsch based his application on a journey whilst on board the vessel MV Duntroon, which travelled from Adelaide to Fremantle in March/April 1944. Mr Pietsch then travelled to Western Australia to rejoin his unit following a period of leave in Victoria.
The respondent provided historical records, confirming that Mr Pietsch was on board that vessel at that time. There is nothing, however, which points to the applicant then being engaged in "operations against the enemy" during that voyage, nor is there anything that points to him then having "incurred danger from hostile forces of the enemy."
The words "incurred danger" were defined in a decision of the Federal Court in Repatriation Commission v Thompson (1988) 82 ALR 352 at 356. The Full Court then comprising Davies, Wilcox and Foster JJ, decided:
"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. Danger is not incurred unless the serviceman is exposed, at risk of or in peril of harm or injury."
In all of the circumstances, it appears that Mr Pietsch was on board MV Duntroon in order to rejoin his unit in Western Australia. There is nothing which indicates the presence of enemy forces in the vicinity, nor that there was any engagement by him with enemy forces in any military operation.
The applicant, therefore, did not render qualifying service and entitlement to a "Gold Card" under s. 85(4A) is not permitted.
At the hearing, Mr Pietsch said that he knew of a number of persons who were engaged in service similar to him, namely persons who had travelled in transit on board the same vessel and who qualified for a "Gold Card". Indeed, in a letter dated 4 July 2002, which he lodged at the hearing, Mr Pietsch said that a number of persons who travelled on board MV Duntroon in March and April 1944 were "…recognized to have served in danger but their danger was identical to the dangers faced by each and every person onboard – me included."
I can only review the decision made by the respondent, concerning the applicant. In the circumstances of the applicant's service, having regard to his evidence and the evidence lodged by the respondent, I am obliged to find, for the reasons given above, as a matter of law, that the applicant did not render qualifying service.
The circumstances of the other persons referred to in the letter of 4 July are unknown and they are not part of the review in this application. It may be that they qualified for a "Gold Card", because of some other feature of their service or some other event, which occurred within their service.
In all of the circumstances, and for the reasons given above, the decision under review will be affirmed.
I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member.
Signed: Katherine Navarro.....................................
AssociateDate of Hearing 5 July 2002
Date of Decision 2 August 2002
Counsel for the Applicant Self represented
Solicitor for the Applicant N/a
Counsel for the Respondent Mr Douglass
Solicitor for the Respondent N/a
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