Townsend and Repatriation Commission - [2001] AATA 211

DECISION AND REASONS FOR DECISION [2001] AATA 211

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1997/211

VETERANS' APPEALS DIVISION       )
           Re      WILLIAM PETER TOWNSEND
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Associate Professor S D Hotop, Deputy President Brigadier R D F Lloyd, Member

Date20 March 2001
PlacePerth

Decision      The Tribunal affirms the decision under review.
  ...........(sgd S D Hotop)............
  Deputy President
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – applicant rendered continuous full-time service in the Citizen Military Forces and the Australian Imperial Force from March 1942 to February 1944 – applicant stationed on Garden Island establishing sites for, and operating, searchlights from January to October 1943 – applicant made numerous trips on barge carrying supplies between Fremantle and Garden Island – whether applicant rendered "qualifying service" – whether applicant incurred danger from hostile forces of the enemy – respondent's Coastal Waters Policy regarding "assumed incurred danger" – whether policy valid and applicable in applicant's case

Veterans' Entitlements Act 1986 s7A(1)(a)(i)

Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Green v Daniels (1977) 13 ALR 1
Repatriation Commission v Burton (1993) 19 AAR 118
Repatriation Commission v Thompson (1988) 44 FCR 20
Willcocks v Repatriation Commission (1992) 39 FCR 49

REASONS FOR DECISION

20 March 2001 Associate Professor S D Hotop, Deputy President Brigadier R D F Lloyd, Member

This is an application by William Peter Townsend ("the applicant") for review of a decision of a delegate of the Repatriation Commission ("the respondent") dated 26 March 1997, as affirmed by a Senior Delegate of the respondent on 1 May 1997, that the applicant had not rendered "qualifying service" within the meaning of s7A of the Veterans' Entitlements Act 1986 ("the VE Act").
At the hearing the applicant was represented by Mr H Christie, of counsel, and the respondent was represented by Dr J Schoombee, of counsel. The Tribunal had before it the documents ("T documents" – comprising T1-T16) lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and various documentary exhibits tendered in evidence by the applicant (marked A1-A9) and by the respondent (marked R1-R9). Oral evidence was given by the applicant and by Mr J Straczek.
The Factual Background
The material background facts, as found by the Tribunal on the basis of the T documents, are as follows.
The applicant enlisted for the Citizen Military Forces ("CMF") on 31 March 1942 and served on continuous full-time war service in the CMF and the Australian Imperial Force in Australia until he was discharged on 6 February 1944. (T4, p12)
The applicant, according to his Certificate of Discharge dated 7 January 1944, served with the 55th Australian Anti-Aircraft Searchlight Battery for a total effective period of 1 year and 313 days which included active service in Australia for 663 days and no…

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 Townsend and Repatriation Commission

Details

AGLC: Townsend and Repatriation Commission [2001] AATA 211
Case: [2001] AATA 211
Decision Date: 20 March 2001

CaseChat Overview and Summary

In the case of Townsend and Repatriation Commission, the applicant sought a review of the respondent's decision that he had not rendered "qualifying service" under the Veterans' Entitlements Act 1986. The applicant, who served from March 1942 to February 1944, claimed that his service establishing sites for and operating searchlights on Garden Island, as well as his trips on a barge carrying supplies between Fremantle and Garden Island from January to October 1943, qualified as service under the Act. The central legal issues were whether the applicant's service constituted "qualifying service" under s7A(1)(a)(i) of the Act and whether the respondent's Coastal Waters Policy on "assumed incurred danger" was valid and applicable to the applicant's circumstances.

The court examined the definition of "qualifying service" and considered whether the applicant's service exposed him to danger from hostile forces of the enemy. The Tribunal found that the applicant did not incur danger from hostile forces during the period in question, as he sailed outside territorial waters and there was no evidence of enemy activity in the area during his service. The court also reviewed the respondent's Coastal Waters Policy and concluded that it was valid and applicable, but it did not change the finding that the applicant did not incur danger from hostile forces.

Based on these findings, the Tribunal affirmed the decision under review, holding that the applicant did not render "qualifying service" during the relevant period. The Tribunal did not need to determine whether the applicant's service constituted service "in naval, military or aerial operations against the enemy" as it found that the applicant did not incur danger from hostile forces. The decision of the Repatriation Commission was upheld.

Orders

Orders of the court

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Background

Background to the litigation

At the hearing the applicant was represented by Mr H Christie, of counsel, and the respondent was represented by Dr J Schoombee, of counsel. The Tribunal had before it the documents ("T documents" – comprising T1-T16) lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and various documentary exhibits tendered in evidence by the applicant (marked A1-A9) and by the respondent (marked R1-R9). Oral evidence was given by the applicant and by Mr J Straczek.The Factual Background The material background facts, as found by the Tribunal on the basis of the T documents, are as follows. The applicant enlisted for the Citizen Military Forces ("CMF") on 31 March 1942 and served on continuous full-time war service in the CMF and the Australian Imperial Force in Australia until he was discharged on 6 February 1944. (T4, p12) The applicant, according to his Certificate of Discharge dated 7 January 1944, served with the 55th Australian Anti-Aircraft Searchlight Battery for a total effective period of 1 year and 313 days which included active service in Australia for 663 days and no period of service outside Australia. (T4, p12) On 29 May 1990 the applicant lodged with the Department of Veterans' Affairs ("DVA") an "Application to Determine Qualifying Service" form and associated documentation completed by him. (T4, pp 6-11) On 7 June 1990 a delegate of the respondent made a determination that the applicant had not rendered "qualifying service", as defined in the VE Act, (T5, p13) By letter dated 8 June 1990 the applicant was notified of that determination. (T6, p14) In response to a letter dated 5 November 1996 from the applicant to the Minister for Veterans' Affairs, a Senior Adviser to the Minister, by letter dated 10 February 1997, provided an explanation of the meaning of "qualifying service" for the purposes of the VE Act during the course of which he stated:"Service within Australian coastal waters at certain times during World War II may be regarded as qualifying service because of the danger posed by enemy shipping in those areas. I have enclosed a paper which outlines those areas and the times when service in coastal waters may be regarded as qualifying service." On 14 March 1997 the applicant lodged with the DVA an "Application to determine Qualifying Service by a Veteran or Mariner" form. (T8, pp 18-25) On 26 March 1997 a delegate of the respondent made a determination that the applicant had not rendered "qualifying service" in terms of s7A(1)(a)(i) of the VE Act. (T9, p26) By letter dated 1 April 1997 the applicant was notified of that determination. (T10, p27) On 28 April 1997 the applicant lodged with the DVA a request for a review of the delegate's determination of 26 March 1997. (T11, p29) On 1 May 1997 a Senior Delegate of the respondent affirmed the delegate's determination of 26 March 1997. (T2, pp 2-4) On 12 June 1997 the applicant lodged with the Tribunal an application for review of the Senior Delegate's decision of 1 May 1997. (T1, p1)The Applicant's Evidence

Evidence

Evidence Before The Court

On 12 June 1997 the applicant lodged with the Tribunal an application for review of the Senior Delegate's decision of 1 May 1997. (T1, p1)The Applicant's Evidence A document entitled "Applicant's Statement of Evidence" was tendered in evidence (Exhibit A1 (pt)). In his oral evidence the applicant confirmed that the contents of that document are true and correct. The statement reads as follows:"1.I joined the Australian Army on 10 March 1942 and was sent to Northam for basic training as a member of the CMF. On completion of my training I was transferred to the 55th Anti Aircraft Search Light Battalion. I then joined the Australian Imperial Forces. My number was WX 31777. I served for a period of one year and 313 days. I was discharged on 6 February 1944.2.In early January 1943 (approximately the 6th), 25 troops including myself from the 55th AA were transferred to Garden Island to establish a search light site at Careening Bay. To carry out this assignment it was necessary to cart or transfer all necessary equipment to the Island by barge towed by a work boat from Fremantle. I spent nearly ten months on the Island.3.Before leaving on the first trip it was necessary to obtain permission from the district naval officer as all movements in and out of Fremantle had to be approved. Our commanding officer put forward a proposed course, but was told it was too close to the mainland and was given a course which took us out past the three mile territorial waters and over the deep water of Gage Roads.4.When the captain of the work boat asked for a crew member for the barge as he only had one crew for the boat. (sic) The commanding officer asked for anyone with boating or sailing experience and as I had some. (sic) I was detailed the job of being crew on the barge, to look after the tow ropes in case of chaffing and to make sure the load did not shift during travel. I was also instructed to keep an eye out for Japanese submarines as they were known to be in the area. I was also to watch out for planes and mines as were the troops on the work boat.5.To get to Garden Island it was necessary to tow the barge out to Gage Roads from Fremantle through the submarine net which had to be lowered, then travel over deep water in a Westerly direction to a point three nautical miles out then turn south to Garden Island, pass through a submarine boom at the north end of the Island and then onto Careening Bay travelling outside territorial waters. The distance travelled according to the charts was 14.75 nautical miles from Fremantle. Each trip took 2.5 hours each way, but varied slightly according to wind and tide.6.The first trip went fairly well although there was some trouble with the cargo shifting. As I was a Trade Group 11 Classification, the officer in charge suggested I should also take charge of loading the barge. He then told me to stay as crew of the barge until the operation had been completed. Mr Houghton then sent written orders for me to remain on the barge as crew in charge of loading. He also made a joke that I was in the Navy now.7.When I got back to Fremantle I ordered rope from the main store suitable to lash the cargo to the barge. By stacking and balancing the equipment, the barge stayed on an even keel after that. It took a week to transport all the equipment including a GMC truck and the search light and generator for the first site to be completed.8.On completion of the first site we were given orders to construct another site at Sulphur Bay at the northern end of the Island, and that we had to take the same course as before. That is travelling outside territorial waters, still watching out for submarines. This was normal procedure as each trip we were advised that submarines were still in the area. Both sites were completed in ten days including transport of food and water twice a week. On my last trip I was instructed to report to Headquarters to attend a school on the American Sperry searchlights as the one at Sulphur Bay was the new type of light. I was to set up the new light and operate it as I was a TG11.9.During the time I was in charge of the barge, I travelled 235 nautical miles outside territorial waters and 60 nautical miles in the deep waters of Gage Roads. I was usually granted 24 hours leave every two weeks. To get to and from Fremantle on leave we had to travel over the same course which meant we travelled an additional 590 nautical miles in the ten months on the Island and the majority of which was outside territorial waters.10.The personnel who served on Garden Island sailed further outside the three mile limit and over deeper water than the Rottnest personnel.11.To verify Mr Dalton's statement regarding enemy ships, I have carried out considerable research regarding enemy ships around Fremantle and have found that there were six Japanese submarines outside Fremantle area from 1942 to 1944. They were I-1, I-2, I-3, I-23, I-165 and I-166. For further information see submitted evidence.12.Garden Island was armed because at the fall of Singapore in 1942 the British Admiralty was looking for a safe anchorage for the Eastern Fleet. They decided on Cockburn Sound because of its deep and wide expanse of water which would be an ideal place because it could be protected by anti-aircraft guns and search lights on Garden Island and the mainland and by building a submarine net from the north end of Garden Island to Woodman Point on the mainland.13.There was also a submarine net built from Cape Perron to the south end of Garden Island. The Parmelia Bank was dredged to make the water deeper to allow the big ships of the British Navy access to the Sound.14.The nets were built to keep submarines, fast patrol boats and torpedo boats of the enemy from entering the Sound."

Decision

Reasons for decision

The conclusion of the Tribunal in this matter is that, by reason of its finding that the applicant did not incur danger from hostile forces of the enemy in the period from January to October 1943 during which he sailed between Fremantle and Garden Island and served on Garden Island, he did not render "qualifying service", within the meaning of s7A(1)(a)(i) of the VE Act, in that period. That finding and conclusion make it unnecessary for the Tribunal to determine the other issue which was raised, but only faintly agitated, in this case – namely, whether the applicant, in the abovementioned period and circumstances, rendered service "in naval, military or aerial operations against the enemy", within the meaning of s7A(1)(a)(i) of the VE Act.Decision For the above reasons the Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

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