Pietsch and Repatriation Commission - [2002] AATA 735

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,…

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 Pietsch and Repatriation Commission

Details

AGLC: Pietsch and Repatriation Commission [2002] AATA 735
Case: [2002] AATA 735
Decision Date: 2 August 2002

CaseChat Overview and Summary

The case involved Pietsch, an applicant for veterans' entitlements, and the Repatriation Commission, the respondent. The dispute centred around Pietsch's eligibility for a gold card under the Veterans' Entitlements Act 1986, specifically whether he had engaged in operations against the enemy or incurred danger from hostile forces of the enemy. The matter was heard in the court of appeal, which had to decide on the legal issues concerning the interpretation of the relevant provisions of the Act and their application to Pietsch's circumstances.

The court was required to determine the meaning of the terms "engaged in operations against the enemy" and "incurred danger from hostile forces of the enemy" in the context of the Act. It also had to assess whether Pietsch's service and experiences qualified under these definitions, and whether the Commission's decision to deny him a gold card was legally sound. The court considered the relevant case law, including Repatriation Commission v Thompson, to provide a comprehensive analysis of the statutory language and its implications for the applicant's entitlements.

In delivering the judgment, the court affirmed the Commission's decision, finding that Pietsch did not meet the criteria for a gold card. The court held that the term "engaged in operations against the enemy" required more than just the presence in a war zone; it needed to be demonstrated that the individual actively participated in operations against the enemy. Similarly, "incurred danger from hostile forces of the enemy" required exposure to a real and significant risk of harm from enemy forces. Pietsch's service, while in a conflict zone, did not sufficiently establish active engagement or significant risk as required by the Act. The court's reasoning was based on a meticulous examination of the statutory language, the relevant case law, and the facts of the case.

The appeal was dismissed, and the decision of the Repatriation Commission was upheld. Pietsch was not entitled to a gold card under the Veterans' Entitlements Act 1986.

Orders