Smith and Repatriation Commission - [2000] AATA 111

DECISION AND REASONS FOR DECISION [2000] AATA 111

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/546

VETERANS' APPEALS DIVISION )

Re ALFRED HENRY SMITH
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date16 February 2000
PlaceSydney

Decision The decision under review is affirmed

(Sgd) A Horton
..............................................
Member
CATCHWORDS

VETERANS' AFFAIRS – gold card eligibility - qualifying service – Army service during period of hostilities – qualifying service - whether incurred danger during Japanese submarine gun attack on Sydney 8 June 1942 or in Northern Territory -

Veterans' Entitlements Act 1986 - ss 5B(1), 5C(1), 7A, 120(4)
Veterans' Entitlements Amendment (Gold Card) Act 1998 - s85(4A)

Repatriation Commission v Thompson (1988) 44 FCR 20
Re Crawford and Repatriation Commission (1987) 14 ALD 341
Re Carlyon and Repatriation Commission (AAT 12957, 6 May 1998)
David Jenkins, Battle Surface! Japan's Submarine War Against Australia 1942-44, Milsons Point, Random House Australia, 1992.

REASONS FOR DECISION

Rear Admiral AR Horton AO, Member

This is an application for review of a decision dated 22 October 1998 (T7) by a Delegate of the Repatriation Commission ("the Respondent"), and affirmed by review under section 57 of the Veterans' Entitlements Act 1986 ("the Act") on 19 March 1999 (T2), that Alfred Henry Smith ("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 subsection 85(4A) of the Veterans' EntitlementsAmendment (Gold Card) Act 1998 ("the Gold Card Act"). The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 14 April 1999.
At the hearing before the Tribunal on 21 January 2000, the Applicant was self-represented. Mr J Marsh, Senior Advocate, 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 ("the T documents"). The Tribunal also took into evidence a large scale map of the Sydney area and coastline (Exhibit A1) and a report and attachments by Mr B O'Keefe, Consultant Historian, dated 18 November 1999 (Exhibit R1).
Mr E L Burton, President of 1 Medium Regiment 55th Composite AA Regimental Reunion Association gave oral evidence on behalf of the Applicant, and a submission was heard from the Applicant's son, Mr M Smith.

ISSUES BEFORE THE TRIBUNAL

The Applicant claims qualifying service as a prerequisite for eligibility for a Gold Card. Eligibility is established pursuant to subsection 85(4A) of the Gold Card 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 5B(1); and
(c)either:
(i)the Department has notified the veteran in writing that he or she is…

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 Smith and Repatriation Commission

Details

AGLC: Smith and Repatriation Commission [2000] AATA 111
Case: [2000] AATA 111
Decision Date: 16 February 2000

CaseChat Overview and Summary

In the case of Smith and Repatriation Commission, the dispute centred on the eligibility of the Applicant for a Gold Card under the Veterans' Entitlements Act 1986. The Respondent, Repatriation Commission, conceded that the Applicant was a veteran and met the age criteria for the Gold Card under the Veterans' Entitlements Amendment (Gold Card) Act 1998. However, the central issue was whether the Applicant's service during World War II qualified as service that incurred danger from hostile forces of the enemy, as required by the Act. Specifically, the question was whether the Applicant's service during a Japanese submarine gun attack on Sydney on 8 June 1942, or in the Northern Territory, qualified as incurring danger from hostile forces.

The court had to determine whether the Applicant's service during the Japanese submarine attack on Sydney on 8 June 1942 qualified as incurring danger from hostile forces, given that the Applicant did not hear any firing and was not briefed about the attack. The Applicant had been posted to 1 Medium Regiment and was deployed in the hinterland as part of the defence of Sydney. On 7 June 1942, the Applicant's Battery was ordered to a firing position near the 9th hole on the Lakes Golf Course at Mascot, where they prepared their guns but did not fire. The court had to consider whether this constituted incurring danger from hostile forces. The court noted that the War Diary of 1 Medium Regiment did not confirm that the Battery was actually located at the Lakes Golf Course on 7/8 June 1942.

The court concluded that the Applicant's service did not qualify as incurring danger from hostile forces, as he did not hear any firing and was not briefed about the attack. The court found that the Applicant's Battery was on standby but did not actually engage in combat or come under fire during the attack on Sydney. The court held that the Applicant's service did not meet the criteria for incurring danger from hostile forces, as required by the Act. Therefore, the Applicant was not eligible for a Gold Card under the Act.

The court's decision was that the Applicant was not eligible for a Gold Card under the Veterans' Entitlements Act 1986, as his service did not qualify as incurring danger from hostile forces. The court's ruling was based on the lack of evidence that the Applicant's Battery actually engaged in combat or came under fire during the Japanese submarine attack on Sydney on 8 June 1942. The court held that the Applicant's service did not meet the criteria for incurring danger from hostile forces, as required by the Act.

Orders

Orders of the court

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Background

Background to the litigation

Qualifying service is defined in section 7A of the Act, which states relevantly:"(1) …(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 sub section 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; or…" Subsection 5B(1) defines the period of hostilities and states, relevantly:"(1) …(b)World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included): or…"FACTS AND EVIDENCE The Respondent concedes that the Applicant is a veteran as defined in section 5C of the Act. The Applicant was aged 78 at the time of the application for the Gold Card and hence meets the criteria for age as defined in subsection 85(4A)(a) of the Gold Card Act. The Respondent also concedes that the Applicant rendered service during the period of hostilities as defined in subsection 5B(1). The Applicant enlisted in the Citizen Military Forces ("CMF") on 15 April 1940 (T3). He gave evidence that he was posted to 1 Medium Brigade for three months training at Newcastle in that year, and for a further three months in 1941. He was subsequently posted for full time service as a gunner to 1 Medium Regiment on 22 December 1941, his unit (2nd Battery armed with six-inch howitzers) being deployed in a mobile role in the hinterland as part of the defence of Sydney. The Battery was 'home based' at Ingleburn. The Applicant gave evidence that at about 2000 on 7 June 1942, the 2nd Battery was ordered to proceed from Ingleburn to a firing position in the vicinity of the 9th hole on the Lakes Golf Course at Mascot. On arrival, the ready use ammunition (25 rounds of 100lb high explosive shell in each gun tractor) was unloaded, and ranging shells were fused, but there was no call to fire. In cross examination, the Applicant stated that this (the fusing of shells) was not a normal procedure unless a firing was to be conducted. The Applicant further gave evidence that there was no briefing of personnel as to the reason for the callout, that he probably did not know until the following day that an enemy submarine had fired on Sydney, and that he heard nothing. He recalled that the Battery remained on standby in the cold and wet until the next morning when it returned to Ingleburn. In his report prepared for the Respondent, Mr O'Keefe stated that the War Diary of 1 Medium Regiment was not particularly useful in this matter, and it did not contain entries for each day. It contains an Operational Plan dated 11 April 1942 which indicated various coastal defensive positions; the War Diary does not confirm that these positions were actually used. Given the range and trajectory of the howitzers, and the Applicant's statement that the 2nd Battery 'roamed the hinterland', Mr O'Keefe sees no reason to doubt that the Battery was located at the Lakes Golf Course on 7/8 June 1942.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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