Trott and Repatriation Commission

[2004] AATA 348

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 348

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No Q2003/548

VETERANS' APPEALS DIVISION		)
Re		JOHN TROTT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr I R Way, Member

Date5 April 2004

PlaceBrisbane

Decision The decision under review is set aside and in substitution therefore the Tribunal determines that the applicant has rendered qualifying service pursuant to section 7A of the Veterans Entitlements Act (1986).

….(Sgd) I R Way….

Member

CATCHWORDS

VETERAN AFFAIRS – qualifying service – whether applicant incurred danger from hostile forces of the enemy during service – capacity of enemy to attack – decision set aside

Veterans Entitlements Act (1986) 7A(1)

Repatriation Commission v Thompson (1988) 44 FCR 20
Macgregor v Repatriation Commission (1992) 25 ALD 761
Mitchell v Repatriation Commission (2002) FCA 1177
Shayler v Repatriation Commission 1990 AATA 6193
Verth v Repatriation Commission (2001) AATA 715

REASONS FOR DECISION

5 April 2004 Mr I R Way, Member          

1. This is an application by John Trott for a review of a decision of the Repatriation Commission, dated 2 October 2002, which determined the applicant did not render qualifying service as defined in section 7A(1) of the Veterans’ Entitlements Act 1986 (the Act).  On 2 October 2002 a Service Pension Review Officer affirmed this decision.

2. The Tribunal had before it the documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and other documentary evidence as follows:

Exhibit A1An account of Naval Operations in the Malacca and Singapore Straits during Indonesian confrontation 1964 to 1965 (John Trott)

Exhibit A2Report of proceedings – Various RAN ships – 1964 to 1965

Exhibit A3Official documents and histories - Indonesian confrontation 1964 to 1965

Exhibit A4Notes, statements and private publishers - Indonesian confrontation 1964 to 1965

Exhibit A5Ships, Aircraft, Weapons and Plans - Indonesian confrontation 1964 to 1965

Exhibit A6Statement of Neal Francis Wallace dated 09 February 2004

Exhibit A7U.S. Department of State Historical Documents 1964 to 1968

3.       The applicant was represented by Mr A Harding, of Counsel instructed by Gilshenan and Luton and the respondent was represented by Mr A Harris, Department Advocate.  The applicant gave oral evidence.

4.       The applicant was born on 28 July 1943 and served in the Royal Navy from 5 January 1959 to 25 April 1973 including service in Far East waters on the British Aircraft Carrier HMS Centaur during various periods in 1964.

5.       There is no dispute between the parties and the Tribunal accepts that the applicant, during his period of service on HMS Centaur in Far East waters served as a member of the British Defence Force and rendered service in connection with war like operations in operational areas in which the Naval, Military or Air Forces of Australia were rendering service, in areas described in Section 5B and Schedule 2 of the Act.

Issues and Legislation

6.       The principle issue in this matter is whether the applicant incurred danger from hostile forces of the…