Shute and Repatriation Commission
[2000] AATA 396
•22 May 2000
DECISION AND REASONS FOR DECISION [2000] AATA 396
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2000/73
VETERANS' APPEALS DIVISION )
Re KENNETH ROBERT SHUTE
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr A. Argent, Member
Date22 May 2000
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
………(Sgd) A. Argent............
Member
CATCHWORDS
VETERANS' AFFAIRS – Gold Card – whether qualifying service – whether incurred danger from hostile forces
Veterans' Entitlements Act 1986 s. 7A
Repatriation Commission v Thompson (1988) 82 ALR 352
REASONS FOR DECISION
22 May 2000 Mr A. Argent, Member
Background
This is an appeal by Mr Kenneth Robert Shute ("the veteran") against a decision of a Service Pension review officer of the Repatriation Commission ("the Commission") dated 21 October 1999.
That decision affirmed a previous decision of the Commission dated 23 August 1999 which determined the veteran had not rendered qualifying service during the period of hostilities of World War Two and thus was not entitled to a Gold Card.
The period of hostilities of World War Two is from 3 September 1939 to 29 October 1945.
Qualifying service is defined at section 7A of the Veterans' Entitlements Act 1986 ("the Act"). Part of this section reads:
"7A. (1) …, 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; …"
Section 85(4A) of the Act specifies that a veteran is eligible to be provided with treatment, that is, entitled to a Gold Card, if the veteran is aged 70 or over and has rendered qualifying service during World War Two.
IssueThe issue before the Tribunal is whether the veteran rendered qualifying service during World War Two and specifically whether he "incurred danger from hostile forces of the enemy".
The EvidenceThe case was heard on the papers by consent of the parties.
The Tribunal had before it the documents ("the T documents") lodged by the Commission pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Included in these documents is material supplied by the veteran concerning his World War Two service.
The Tribunal also had before it selected pages from:
(a) Australia in the War of 1939-1945 – Royal Australian Navy 1942-1945 by G. Hermon Gill;
(b) Australia in the War 1939-1945 – Air War Against Japan 1943-1945 by George Odgers.The veteran was born on 9 October 1911, enlisted in the AIF on 8 April 1942 and was discharged on 23 November 1945. He did not serve outside of Australia.
The veteran bases his claim for qualifying service on:
(a) His sighting and reporting of a submarine off Bilgola, NSW.
(b) The danger from enemy submarines during his training in amphibious vehicles (DUKW/"ducks") off the Queensland coast at Strathpine.The veteran's service records show he began his driving training on 27 January 1943 and except for attending a course in Seymour, Victoria commencing 19 February 1943, he served in NSW in transport until May 1944.
On 23 May 1944 he was transferred to Queensland and served there until 24 May 1945.
FindingsThe standard of proof in this case is on the balance of probabilities; that is, on the balance of probabilities did the veteran incur danger from the hostile forces of the enemy during his service in NSW and Queensland in 1943/45?
"Incurred danger" is defined by the Full Court of the Federal Court in Repatriation Commission v Thompson (1988) 82 ALR 352. Their Honours said:
"The words 'incurred danger' 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 a 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 considering the veteran's claim about his sighting and reporting of a submarine off Bilgola in NSW sometime in 1943 or up to May 1944, there are no records of an enemy submarine being that close to the coast at that time or of one being destroyed. In any event, the veteran did not incur danger from it and the Tribunal so finds.
Turning of his second claim – the danger from enemy submarines during his amphibious training in DUKWs off the Queensland coast at Strathpine in 1944/45 – the Tribunal finds, from its studies of the Official Histories:
(a) There were no enemy submarines operating in these waters during the period the veteran was there;
(b) The last attack by a Japanese submarine on shipping off the east coast of Australia was on 16 June 1943, about 11 months before the veteran was involved in amphibious training; and
(c) The hospital ship Centaur, mentioned by the veteran, was torpedoed on 14 May 1943 about 50 nautical miles (92 km) from the area where the amphibious training took place. Again, this was about 11 months before the veteran was in the area.The Tribunal therefore finds the veteran did not incur danger from the hostile forces of the enemy during his amphibious training service in Moreton Bay in 1944/45. Consequently, he did not render qualifying service and is not entitled to the issue of a Gold Card.
DecisionThe decision of the Commission is affirmed.
I certify that the nineteen (19) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr A. Argent, Member
Signed: .....................................................................................
Personal AssistantDate/s of Hearing Decision made on the papers
Date of Decision 22 May 2000
The Applicant Self-represented
Solicitor for the Respondent Mr R. Douglass, Departmental advocate
0
1
0