Robertson and Repatriation Commission - [2002] AATA 1013

DECISION AND REASONS FOR DECISION [2002] AATA 1013

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/290

VETERANS' APPEALS DIVISION       )
           Re      BRUCE JOHN GRAY ROBERTSON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date25 October 2002
PlaceSydney

Decision The Tribunal sets aside the reviewable decision of the Repatriation Commission dated 31 July 2001 and in substitution therefor decides that Mr Bruce John Gray Robertson is eligible for a Gold Card under section 85(4A) of the Veterans' Entitlements Act 1986.

[SGD] Rear Admiral A R Horton AO
Member
CATCHWORDS
VETERANS' AFFAIRS - Gold Card eligibility - whether Applicant rendered qualifying service - RAN service during period of hostilities - service onboard HMAS BOWEN – whether Applicant rendered service in operations against enemy - whether Applicant incurred danger from the enemy
Veterans' Entitlements Act 1986 - ss 5B(1), 5C(1), 7A, 85(4A), 120(4)
Re Farnsworth and Repatriation Commission [1999] AATA 911
Repatriation Commission v Thompson (1988) 44 FCR 20
Marsh v Repatriation Commission (No 2) (1987) 15 FCR 503
Willcocks v Repatriation Commission (1992) 39 FCR 49
Repatriation Commission v Mitchell [2002] FCA 1177
Re Crawford and Repatriation Commission (1987) 14 ALD 341
Re Jones (AE) and Repatriation Commission (1993) 31 ALD 542

REASONS FOR DECISION

25 October 2002 Rear Admiral A R Horton AO, Member

This is an application for review of a decision made on 31 July 2001 by a delegate of the Repatriation Commission ("the Respondent"), and affirmed by review under section 57A of the Veterans' Entitlements Act 1986 ("the Act") on 30 November 2001, that Bruce John Gray Robertson ("the Applicant") did not render qualifying service for the purposes of section 7A of the Act, and hence is not eligible for a Gold Card under section 85(4A) of the Act. The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 26 February 2002.
At the hearing on 6 September 2002, the Applicant was represented by Mr N Dawson of Counsel. Miss P Hook appeared for the Respondent. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T documents"). The Tribunal also received into evidence a report from Ms C Carter, Historian, dated 15 May 2002 (Exhibit A1). The Tribunal heard evidence from the Applicant and Mr D Webster.
LEGISLATION AND ISSUES BEFORE THE TRIBUNAL
The Applicant claims eligibility for a Gold Card under section 85(4A) of the Act, which states:
"(4A)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 5(B)(1); and
(c) either:
(i)the department has notified the veteran in writing that he or she is or will be…

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 Robertson and Repatriation Commission

Details

AGLC: Robertson and Repatriation Commission [2002] AATA 1013
Case: [2002] AATA 1013
Decision Date: 25 October 2002

CaseChat Overview and Summary

The case before the tribunal was brought by Mr Bruce John Gray Robertson, who sought eligibility for a Gold Card under the Veterans' Entitlements Act 1986. The dispute centred around whether Mr Robertson rendered qualifying service during his time in the Royal Australian Naval Reserve (RANR) between 1945 and 1946. Specifically, the tribunal had to determine whether Mr Robertson's service onboard HMAS BOWEN during Operation Talaud constituted service in operations against the enemy and whether he incurred danger from hostile forces during that period.

The legal issues that the tribunal had to address included the interpretation of "qualifying service" as defined in section 7A(1)(a) of the Veterans' Entitlements Act 1986, which requires service during a period of hostilities, in operations against the enemy, and incurring danger from hostile forces. Additionally, the tribunal needed to consider whether Mr Robertson's service onboard HMAS BOWEN during Operation Talaud met these criteria. The tribunal also had to consider previous case law, such as Re Farnsworth and Repatriation Commission [1999] AATA 911, and authorities like Repatriation Commission v Thompson (1988) 44 FCR 20, Marsh v Repatriation Commission (No 2) (1987) 15 FCR 503, Willcocks v Repatriation Commission (1992) 39 FCR 49, Repatriation Commission v Mitchell [2002] FCA 1177, Re Crawford and Repatriation Commission (1987) 14 ALD 341, and Re Jones (AE) and Repatriation Commission (1993) 31 ALD 542.

The tribunal concluded that Mr Robertson rendered qualifying service for the purpose of section 7A of the Act, and thus, he was eligible for a Gold Card under section 85(4A) of the Veterans' Entitlements Act 1986. The tribunal was satisfied that Mr Robertson's service in HMAS BOWEN during Operation Talaud constituted service in operations against the enemy and that he incurred danger from hostile forces. This conclusion was based on the evidence provided by Mr Robertson and his fellow serviceman, Mr Webster, and the historian Ms Carter. The tribunal set aside the reviewable decision of the Repatriation Commission dated 31 July 2001 and decided that Mr Bruce John Gray Robertson was eligible for a Gold Card under section 85(4A) of the Veterans' Entitlements Act 1986.

Orders

Orders of the court

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Background

Background to the litigation

The standard of proof in this matter is that of reasonable satisfaction, pursuant to section 120(4) of the Act. FACTS AND EVIDENCE Mr Robertson was born in March 1926. His Certificate of Service at T3 p11 confirms that he served in the Royal Australian Naval Reserve ("the RANR") from 11 January 1945 until 6 November 1946, during which period he served in various ships and establishments. Based on his evidence, the Record of Mobilized Service (T3 p14) and details of ships movements (T8 pp 41-45), it is evident that the Certificate of Service does not adequately record his service, particularly in respect of seagoing service outside the coastal waters of Australia, the latter being relevant to the issue of whether qualifying service was rendered. From the records and as confirmed in a letter from Mr Robertson on 29 October 2002, he served in HMAS KYBRA for two days in August 1945. He gave no evidence of any incidents during that period, nor is he able to benefit from the Respondents "coastal waters" policy, his service being outside the relevant period. Mr Robertson gave evidence that in company with other naval personnel being deployed to join various ships, he took passage from Australia to Morotai in HMAS BUNGAREE, arriving on 12 October 1945. A list of relevant dates for the passage of that ship (at T8 p 41) does not indicate that the ship called at Morotai, but it can be confirmed from the evidence provided in Re Farnsworth and RepatriationCommission [1999] AATA 911, and by the Applicant himself. In response to the Tribunal, Mr Robertson stated that he was a passenger on that ship, but was unaware of any incidents that might be related to enemy activities. On arrival at Morotai, Mr Robertson joined HMAS BOWEN. The ship sailed later that day to undertake Operation Talaud in the Talaud-Sangihe island group, an operation described by the historian Ms Carter (Exhibit A1) as "a surveillance mission…part of the process of supervising and effecting the terms of surrender in the Australian area of responsibility". The operation lasted until 20 October 1945 when the ship returned to Morotai. Whilst the Instrument of Surrender of Japanese forces had been signed on 2 September 1945, Ms Carter notes in referring to the Official Historian, Gavin Long, that there were concerns that some Japanese units would not accept the surrender, or in the outlying islands, would not be aware of the decision by the Emperor of Japan to surrender. So it was that some six weeks later, on 12 October 1945, that HMAS BOWEN sailed from Morotai to transport the personnel forming Talaud Force (Exhibit A1) to various islands to enable them to effect the surrender. Mr Robertson described his role as being that of a seaman required to undertake normal ship board duties, but also to form part of an armed naval landing party required to land at various islands to escort the Talaud Force, to effect the surrender of local Japanese forces, to escort Japanese personnel onboard HMAS BOWEN as ordered, and to collect arms and ammunition. The naval landing party was accompanied by army personnel. On all occasions of landing, and he gave evidence that he landed on all but one island during the eight day operation, the landing parties carried loaded rifles or sub machine guns, with the safety catch on. He recounted that army and naval personnel were going to and from the ship to shore, but could not recall whether sentries were maintained ashore.

Evidence

Evidence Before The Court

In response, Counsel for the Applicant submitted that the evidence of the witness could not be interpreted as implying that only rogue elements, to use the literal meaning of the word, were a consideration. All the activities in which the Applicant was engaged during Operation Talaud had an element of danger, demonstrated by the fact that a prime role was to disarm enemy forces.ANALYSIS OF EVIDENCE AND FINDINGS There was no evidence before the Tribunal, nor indeed did the Applicant argue otherwise, to suggest that the Applicant "incurred danger" vide section 7A(1)(a)(i) of the Act outside the eight day period when Operation Talaud was carried out from Morotai by HMAS BOWEN. The Applicant stated that he was unaware of any incidents that might be construed as resulting from enemy activities, during the passage north in HMAS BUNGAREE from Australia in late September/early October 1945. The Applicant also gave no evidence as to any incidents after HMAS BOWEN returned to Morotai on 20 October 1945, nor during the subsequent return passage to Australia. The witness, Mr Webster, who served with the Applicant from 12 October 1945 when the latter joined HMAS BOWEN, referred in a wider sense to fears of rogue elements, but gave no evidence in support of those fears as far as the activities of HMAS BOWEN after 20 October 1945 were concerned. A letter from the Defence Personnel Executive dated 30 July 1997 (T3 p10) confirms that the Applicant was eligible for the Pacific Star, 1939-45 Star, War Medal and Australia Service Medal. There is no evidence before the Tribunal to suggest that the Applicant rendered such service after 29 October 1945 that would make him eligible for the Naval General Service Medal or General Service Medal with Minesweeping or Bomb-Mine Clearance Clasp vide section 7A(1)(a)(ii) of the Act. The issue therefore rests with whether he meets the criteria for rendering qualifying service in accordance with section 7A(1)(a)(i) of the Act, the period under consideration being that between 12 and 20 October 1945 when serving in HMAS BOWEN during Operation Talaud. There are effectively three broad components of section 7A(1)(a)(i) of the Act, service during the "period of hostilities", that such service took place in operations "against the enemy", and that the person "incurred danger from hostile forces" of the enemy. The former was conceded at the outset by the Respondent and is agreed by the Tribunal. The phrase "rendered service…at sea, in the field or…in naval, military or …operations against the enemy…" was considered by Cooper J in Willcocks (supra). At page 55, His Honour said:"The phrase 'naval, military and 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 section 36(1) of the VE Act."

Decision

Reasons for decision

The Tribune therefore concludes to its reasonable satisfaction that the Applicant rendered qualifying service for the purpose of section 7A of the Act, and is eligible for the Gold Card pursuant to section 85(4A) of the Act.DECISION The Tribunal sets aside the reviewable decision of the Repatriation Commission dated 31 July 2001 and in substitution therefor decides that Mr Bruce John Gray Robertson is eligible for a Gold Card under section 85(4A) of the Veterans' Entitlements Act 1986.

Ratio Decidendi

Legal Principle Established

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