Re Corrick and Repatriation Commission

[2000] AATA 143

DECISION AND REASONS FOR DECISION [2000] AATA 143

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No N1999/868

VETERANS' APPEALS DIVISION          )          

Re      RALPH CORRICK 

Applicant

And    REPATRIATION COMMISSION  

Respondent

DECISION

Tribunal       Mr B.J. McMahon (Deputy President)     

Date28 February 2000

PlaceSydney

Decision      The decision under review is affirmed.   

(Sgd) BJ McMahon
  ..............................................
  Deputy President
CATCHWORDS
VETERANS' ENTITLEMENTS – Gold Card – whether the applicant rendered qualifying service – the applicant incurred danger from hostile forces – applicant rendered service during a period of hostilities – whether service was in military operations against the enemy – applicant incurred danger by location – passive – not qualifying service
WORDS AND PHRASES – incur danger – military operations against the enemy
Veterans' Entitlements Amendment (Gold Card) Act 1998 s 85 (4A)
Veterans' Entitlements Act 1986 s 5B(1); 7; 7A; 7A(1)(a); 85(4)

Repatriation Commission v Thompson (1988) 82 ALR 352
Willcocks v Repatriation Commission (1992) 111 ALR 639 adopted
Repatriation Commission v Burton (1993) 31 ALD 475

REASONS FOR DECISION

Mr B.J. McMahon (Deputy President)     

1. This is an application to review a decision of a delegate of the respondent refusing an application for a "Gold Card". The Veterans' Entitlements Amendment (Gold Card) Act 1998 inserted after subsection 85(4) a further subsection which prescribed the qualifications needed by a veteran to establish eligibility to be provided with treatment for any injury suffered, or disease contracted, by the veteran whether before or after the commencement of the Veterans' Entitlements Act 1986. The subsection requires that the veteran be aged 70 or more and (relevantly) that he or she has rendered qualifying service during the period covered by paragraph (b) of the definition of period of hostilities in subsection 5B(1).

2. Section 7 defines eligible war service. A higher degree of involvement appears in the definition of qualifying service in section 7A.

3. The relevant parts of that definition are as follows

   "7A. (1) 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; …"

1. The reference to the period of hostilities is a reference to the relevant provisions of section 5B as follows:

   "5B. (1) In this Act, unless the contrary intention appears:
   …
   "period of hostilities" means:

   (a)…

   (b)World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included)"

1. Mr Corrick rendered continuous full-time service in the Army from 19 March 1942 until he was discharged medically unfit on 31 March 1944. He served entirely within Australia. He therefore has eligible war service during the period of hostilities. The question to be determined is whether he rendered qualifying service.

2. From the time of his enlistment, Mr Corrick was employed as a clerk in the recruiting and mobilisation section with the rank of Corporal. This section was housed at Victoria Barracks in Paddington and comprised a large number of people. The applicant's commanding officer was Major Bartlett-Taylor.

3. It was the applicant's habit to arrive at his place of employment about 8am and to leave it at 6pm. Being a single man, he slept each night at the home of his parents at 8 Boronia Road, Bellevue Hill, one of the nearby eastern suburbs of Sydney. His evidence was that no one employed in his section stayed at the Barracks. There was no accommodation made available for them. His practice of sleeping at his parents' home was known to his commanding officer. His unquestioned evidence was that he had told his superiors when he enlisted where he would be staying in case he was needed. There was no formal document ordering his mother and father to house him, nor was there any requirement for daily applications for leave.

4. On the night of 7-8 June 1942 there was a shelling attack by a Japanese submarine which stood off Bondi and discharged 10 shells towards the city. According to an extract from a book by David Jenkins entitled "Battle Surface! Japan's Submarine War against Australia 1942-44" which was tendered in evidence, the commander of the submarine had been ordered to shell Sydney Harbour Bridge. The 10 shells that were fired, however, all landed in adjacent eastern suburbs, namely Vaucluse, Rose Bay and Bellevue Hill. The only shell to explode was one which landed in Rose Bay.

5. Another shell landed in Bunyula Road, Bellevue Hill, approximately 150 metres from the house in which Mr Corrick was sleeping, but did not explode. Prior to the first shells a siren was sounded. Mr Corrick recalled hearing a whistling sound as a shell went over his house. He recalls hearing "other explosions" although the historical evidence is that only one explosion took place.

6. He went outside and found "quite a lot of commotion". He remembered seeing air-raid wardens moving up the street telling people what was happening. At the time Mr Corrick believed that Japanese forces were attacking Sydney. He did not know how many were included in the force or how the attack was to be mounted. He felt "apprehensive and scared of the unknown". He went inside the house to comfort his mother and father.

7. The following day he resumed duty at the Barracks, travelling there by public transport, and continued with his daily routine until he was posted elsewhere some months later.

8. There was no real contest that on the night in question, Mr Corrick "incurred danger from hostile forces of the enemy". He was at risk or in peril of harm from the efforts of an enemy submarine gunner who, evidently, was unable to find his range. By any objective test, Mr Corrick was in danger on that night.

9. The phrase "incur danger" was considered by a Full Court of the Federal Court in Repatriation Commission v Thompson 82 ALR 352. At 356 their Honours 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. Danger is not incurred unless the serviceman is exposed, at risk of or in peril of harm or injury.
   The danger incurred must of course be more than a merely fanciful danger or a danger so minimal that the rule of de minimis applies. But to say that is not to give a flavour to the word. Rather it is to use it in its ordinary sense."

1. Although Mr Corrick was apprehensive, what occurred was more than a "risk of danger". The landing of a shell at a distance of 150 metres, whether or not it happened to explode, is an objective instance of the danger which the applicant incurred.

2. Incurring danger, however, is not sufficient to comply with the requirements of section 7A(1)(a). Relevantly, Mr Corrick must show, in accordance with the ordinary civil standard of proof, that he rendered service … in the field … in military … operations against the enemy in an area … at a time when he incurred danger from hostile forces of the enemy in that area. There is no question that he rendered service during a period of hostilities. The reference to service in the field (as was suggested in Thompson at 355) is a reference to the military sense in which the words are used. In that sense, Mr Corrick can be said to have rendered service in the field. The point at issue is whether that service was in military operations against the enemy.

3. The phrase is to be read as a whole. It is not sufficient to show that the applicant rendered service in military operations unless they were also against the enemy. The meaning of the phrase was considered by Cooper J in Willcocks v Repatriation Commission 111 ALR 639. At pages 646 and 647, his Honour said:

   "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 the elements must be satisfied for the service to constitute "qualifying service" within the meaning of s 36(1) of the VE Act.
   Having regard to the concession by counsel for the respondent that the applicant had, as a member of the Defence Force, rendered service during a specified period of hostilities in the field of military operations, it is only necessary to address the question what is the ordinary unambiguous meaning of "against" in the context of the phrase "military… operations against the enemy".
   The Oxford Dictionary, 2nd Ed, refers to at least a dozen common usages of the word "against", depending on its context. The usage of the word "against" which the applicant seeks to rely upon is one which the Dictionary categorises as being in respect "of motion into contact, pressure upon". In that context, "against" means "toward and into contact with; into direct collision with" (as in "I jostled against him in the crowd"); and "hence of force or pressure resisted, with push, press, lean, hang, stand, lie, etc: Supported by, in contact with" (as in "A ladder standing up against a house"). I do not consider that this is the appropriate usage of the word "against" in the phrase "military operations against the enemy". The context is not one of motion into contact, nor of pressure upon, nor of force or pressure resisted in the physical sense as appears to be required.
   The Dictionary also refers to the usage in respect "of motion or action in opposition to". In that context, the Dictionary states that the word is used generally to mean "in hostility or active opposition to", as used with the words "fight, speak, act, vote, contend, set, pit, be, etc"; and, hence:
   "expressing the adverse bearing of many verbs and nouns of action; as to legislate, protest, argue, testify; offend, sin; cry out, rage, inveigh, exclaim: a law, proclamation, declaration, protest, argument, objection, resolution, action, proceeding, accusation, complaint, evidence; sin, offence, hostility, outcry, feeling, prejudice, rage, anger, animosity, bitterness, grudge etc:".
   In s 36(1)(a)(i), the noun "operation" is clearly a noun of action; and the use of the word "against" in the phrase "military operation against the enemy" clearly expresses the adverse bearing of that noun in the context of s 36(1)(a)(I).
   Accordingly, in my view 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.
   The Full Court decision in Ahrenfeld does not support the applicant's contention that mere "contact with" the enemy is sufficient. In that case, it was held that the expression "actual combat against the enemy" would include conduct which answered the description of integral participation in an activity directly intended for an encounter with the enemy, whether offensive or defensive in character. In my view the phrase "an encounter with the enemy" does not mean mere contact with the enemy. It refers to a hostile offensive or defensive encounter or exchange with the enemy."

1. The reasoning of Cooper J was adopted and applied by Olney J in Repatriation Commission v Burton (1993) 31 ALD 475.

2. The activities of Mr Corrick on the night in question were essentially passive. It was contended on his behalf that nothing in Part II of the Act required that any person engaged in operations against an enemy meant that such a person was required to return fire when fired upon. It was submitted that in war, there are many incidents where an enemy can attack and those who are attacked cannot take decisive action such as returning fire or responding in some active fashion.

3. This may well be so. Nevertheless, it seems to me that I am bound by the interpretation put upon the Act by Cooper J. Whether or not it would have been reasonable for Mr Corrick to return fire against the submarine is not to the point. The fact is that there was nothing in his activity, either at the Barracks or at his parents' home, which could fairly be described as a military operation against the enemy. As was said in Willcocks, operation is clearly a noun of action. There is neither claim nor evidence that anything the applicant did or was required to do involved opposition to the enemy or had any colour of hostility to it.

4. The requirements of qualifying service are more stringent than those of eligible service and there is, as the Court has now established, a clear distinction between the qualifications for both types of service. Each is intended to serve a different purpose in establishing entitlements. The dichotomy between both types of service is indicated in the words and must be presumed to have been intended.

5. As the Court said in Thompson at page 355 (in relation to the same section in a re-numbered part of the Act):

   "In approaching the statutory provision, it is necessary to keep in mind that the words used are words out of ordinary parlance and are used in their ordinary sense. No word in s 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. It is true (as the applicant submitted) that the facts considered in both Willcocks and Burton occurred after the cessation of hostilities and not (as here) during a deliberate and planned attack during the period of hostilities. However the reasoning in Willcocks, particularly, compels a conclusion that the operations in which Mr Corrick was engaged (if any) on the night in question could not be said to be against the attacking enemy.

2. The fact that the applicant incurred danger on one particular night coupled with the fact that he was a member of the armed forces on that night is not sufficient to bring him in within the definition of qualifying service. If he incurred danger he did so, not because he was engaged in operations against the enemy, but merely because he happened to be staying in an area that, at that time, was endangered. This is not sufficient for the purposes of the section.

3. For these reasons the decision under review is affirmed.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President)

Signed:     J. Healy           .....................................................................................
  Jacqueline Healy, Associate

Date/s of Hearing  22 February 2000
Date of Decision  28 February 2000
Solicitor for Applicant               Mr P Carey,
  Returned Services League
Solicitor for the Respondent    Mr J Marsh,
  Department of Veterans' Affairs