Stringer and Repatriation Commission - [2002] AATA 520

DECISION AND REASONS FOR DECISION [2002] AATA 520

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/1427
VETERANS'      APPEALS     DIVISION
  Re:         PAMELA LEONDRA STRINGER
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       Mr A. Argent, Member
Date:             28 June 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) A. Argen.
Member
VETERANS' AFFAIRS – service pension entitlement – qualifying service
Veterans' Entitlements Act 1986

Re Repatriation Commission v Thompson (1988) 82 ALR 352

REASONS FOR DECISION

28 June 2002 Mr. A. Argent, Member

This is an appeal by Pamela Leondra Stringer ("the veteran") against a decision of a Service Pension Review Officer of the Repatriation Commission ("the Commission") dated 7 August 2001. That decision confirmed a previous decision made by a delegate of the Commission who determined the veteran had not rendered qualifying service during the period of hostilities of World War II. This decision means the veteran is not eligible for a Service Pension or a Gold Card.
The veteran presented her own case and was assisted by her husband. The respondent was represented by Mr R. Douglass, an advocate with the Department of Veterans' Affairs.
ISSUE
The issue before the Tribunal is whether the veteran rendered qualifying service during World War II and specifically whether she "incurred danger from hostile forces of the enemy".
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 areas or on that aircraft or ship;
(ii)rendered service after 29 October 1945 in respect of which the person has been awarded, or has become eligible to be awarded, the Naval General Service Medal or the General Service Medal (Army and Royal Air Force) with the Minesweeping 1945-51 Clasp, the Bomb-Mine Clearance 1945-53 Clasp, or the Bomb and Mine Clearance 1945 -56 Clasp;
The period of hostilities of World War II is from 3 September 1939 to 29 October 1945.
THE EVIDENCE
The case was heard in a telephone hook-up.
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 a statement made by the veteran on 19 February 1996 concerning her case.
The Tribunal also took in as evidence:
(a)a letter from Mr K. Hargraves dated 11 February 2001; and
(b)a report from Associate Professor J. McCarthy dated 7 March 2002
The veteran was born on 15 December 1923, enlisted in the Australian Army Medical Women's Service…

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 Stringer and Repatriation Commission

Details

AGLC: Stringer and Repatriation Commission [2002] AATA 520
Case: [2002] AATA 520
Decision Date: 28 June 2002

CaseChat Overview and Summary

In the case of Stringer and the Repatriation Commission, the veteran, Mrs Stringer, sought a determination of her qualifying service under the Repatriation Act. Mrs Stringer enlisted in the Australian Army Medical Women's Service in 1945 and served until 1947, including a voyage on the "Taroona" from Sydney to Jacquinot Bay, New Britain, and service in Rabaul. The veteran argued that she was in qualifying service due to the risk of attack by hostile submarines during the voyage and the presence of a large number of Japanese troops in Rabaul. The Repatriation Commission denied her claim, and the matter was brought before the Administrative Appeals Tribunal for review.

The primary legal issue before the Tribunal was whether the veteran's service constituted qualifying service under the Repatriation Act. Qualifying service is defined as service in the armed forces during a period of war or in circumstances of actual or apprehended danger. The Tribunal needed to determine if the veteran's service met the criteria for qualifying service based on the evidence presented.

The Tribunal considered the evidence provided, including statements from the veteran, a letter from Mr K. Hargraves, and a report from Associate Professor J. McCarthy. The Tribunal acknowledged the veteran's anxiety during the voyage and the conditions in Rabaul but noted that there was no hostile action against the "Taroona" or any attacks on Australian service personnel during her service. The Tribunal concluded that it had no discretion in these matters and was bound by the law. Consequently, the Tribunal affirmed the decision of the Repatriation Commission, denying the veteran's claim for qualifying service.

The final orders of the Tribunal were that the decision of the Repatriation Commission to deny the veteran's claim for qualifying service was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The period of hostilities of World War II is from 3 September 1939 to 29 October 1945.THE EVIDENCE The case was heard in a telephone hook-up. 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 a statement made by the veteran on 19 February 1996 concerning her case. The Tribunal also took in as evidence:(a)a letter from Mr K. Hargraves dated 11 February 2001; and(b)a report from Associate Professor J. McCarthy dated 7 March 2002 The veteran was born on 15 December 1923, enlisted in the Australian Army Medical Women's Service ("AAMWS") on 16 March 1945 and was discharged on 8 April 1947. She was aged 74 when she made an application to determine qualifying service. The veteran based her case for qualifying service on:(a)the risk of an attack on the "Taroona" by hostile submarines during her voyage from Sydney to Jacquinot Bay, New Britain.(b)danger from the large number of Japanese troops who were in close proximity to her when she served in Rabaul. The veteran said she embarked in "Taroona" at Sydney on 25 August 1945 and arrived at Jacquinot Bay in 10 September 1945. She said the ship was blacked out during the voyage which indicated that the authorities believed there was risk or danger during the voyage. If there was not, then why was the ship blacked out? Service records in the T documents show the veteran arrived in Rabaul from Jacquinot Bay on 26 October 1945 (or perhaps earlier). During her service with 118 Australian General Hospital at Rabaul from October 1945 to 29 March 1946, she said there were more that 90,000 Japanese troops in the area and she and others of her unit were confined to a narrow section of beach near her hospital. She said she was apprehensive and anxious both during the sea voyage to Jacquinot Bay and during her service at Rabaul because there was no way of knowing what the Japanese might do. She confirmed there were no attacks on "Taroona" during the voyage to Jacquinot Bay and no hostile action by the Japanese against her or her unit at Rabaul. The veteran also said she thought the legislation concerning qualifying service took a very narrow approach. Both she and her husband, Mr Stringer, who had extensive World War II service in 2/14 Battalion, believe that fearing to be in danger from the enemy arouses just as much anxiety as real and experienced danger from enemy action. They both stressed that there must have been danger from the Japanese forces because the ship sailed blacked out and she was confined to a small area in Rabaul. In his report Associate Professor McCarthy states there was no hostile action against "Taroona" on the voyage Sydney–Jacquinot Bay when the veteran was a passenger. Japanese submarines had long departed these waters. The War Diary of 118 Australian General Hospital, the veteran's unit, has no record of any hostile action by Japanese forces against Australian service men and women in New Britain during the veteran's duty there.FINDINGS

Decision

Reasons for decision

The Tribunal understands the points made by Mrs Stringer and her husband and acknowledges her anxiety during the voyage to New Britain and the prevailing conditions at Rabaul during her service there. However, the Tribunal has no discretion in these cases and must be bound by the law.DECISION The Tribunal affirms the decision under review.I certify that the twenty-four [24] preceding paragraphs are a true copy of the reasons for the decision herein of (sgd)Natalie HorwoodClerkDate of Hearing: 13 June 2002Date of Decision: 20 June 2002Counsel for the Applicant: Nil – self representedCounsel for the Respondent: Mr R. Douglass, advocate with Department of Veterans' Affairs

Ratio Decidendi

Legal Principle Established

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