Verth and Repatriation Commission - [2001] AATA 715

DECISION AND REASONS FOR DECISION [2001] AATA 715

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2001/17

VETERANS' APPEALS DIVISION       )
           Re      WALTER VERTH
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Associate Professor B W Davis A M (Part-time Member)

Date15 August 2001
PlaceHobart

Decision      The decision under review is affirmed.
  [B W Davis]
  Part-Time Member
CATCHWORDS
Qualifying service – operational area – hostilities – war-like state – RAF – Malaysia – incurred danger – determinations – Repatriation Commission.

Legislation

Veterans' Entitlements Act 1986 and Amendments – ss.5B, 5C and 7A, 36A

Authority

Thompson and Repatriation Commission (1988) 82 ALR 352

REASONS FOR DECISION

15 August 2001 Associate Professor B W Davis A M (Part-time Member)

The Issue

This is an appeal against a decision of a senior delegate of the Repatriation Commission dated 7 February 2001, affirming a decision of a delegate of the Repatriation Commission of 15 December 2000 which found that the applicant (Walter Verth) had not rendered qualifying service within the meaning of s.7A of the Veterans' Entitlements Act 1986 ("the Act").
Background
Walter Verth served in the RAF (Royal Air Force) from 23 May 1961 until discharged on 22 May 1978. During this period he served in Sarawak, Malaysia from 1 October 1963 until 1 October 1964. His stated role was as an assistant air traffic controller, which involved a range of duties. He was informed that the airfields involved were targets for the enemy, as the confrontation with Indonesia was in operation at the time. He therefore believes he has served qualifying service and seeks recognition of this.
Evidence
At the Tribunal hearing on 26 July 2001, Mr Verth gave evidence and was represented by Mr R Webster as counsel. The respondent was represented by Mr M Castle.
Mr Verth stated that after initial service in the Royal Air Force in the United Kingdom he was assigned to service in Malaysia from 1 October 1963 until 1 October 1964, during the period of confrontation between Malaysia and Indonesia. He travelled out to Singapore in a civil aircraft, was transported to Sarawak by landing ship, arrived at Kuching and later spent one month at another airfield at Simmangang, which was a forward landing strip about 15 kilometres from the Indonesian border. At the airfields there were jet fighters and helicopters which were used to monitor the situation and scare Indonesian insurgents at or near the border.
The applicant claimed that at both Kuching and Simmangang airfields armed guards patrolled the perimeter, while the risk at Simmangang was such that he was required to obtain arms and sleep in the control tower at night. He was informed he was on active service and received briefings on incidents occurring at other localities.
Counsel drew attention to a page from the official history of the Malaysian – Indonesian confrontation, in a chapter titled "Borneo: The First Phase 1963-64", outlining a clash which occurred overlooking the Kuching – Simmangang Road, during which Indonesian and Ghurka casualties occurred.
The Tribunal…

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 Verth and Repatriation Commission

Details

AGLC: Verth and Repatriation Commission [2001] AATA 715
Case: [2001] AATA 715
Decision Date: 15 August 2001

CaseChat Overview and Summary

The case of Verth and Repatriation Commission involved Walter Verth, a former member of the Royal Air Force (RAF), appealing a decision by the Repatriation Commission that he had not rendered qualifying service under section 7A of the Veterans' Entitlements Act 1986. The Commission found that Verth's service in Malaysia during the period of confrontation with Indonesia did not amount to incurring danger from hostile forces. Verth argued that his service as an assistant air traffic controller in Kuching and Simmangang, where armed guards patrolled the airfields, constituted qualifying service.

The central legal issue in this case was whether Verth's service in Malaysia between 1 October 1963 and 1 October 1964 qualified as "service in an operational area at a time of hostilities" within the meaning of section 7A of the Act. Specifically, the court had to determine if Verth's role as an assistant air traffic controller in Malaysia, where he was informed that the airfields were targets for the enemy, amounted to incurring danger from hostile forces. This required an objective assessment of whether Verth had indeed been exposed to danger from hostile forces or merely felt himself to be in danger.

The Court considered the evidence provided by Verth and the arguments made by both parties. Verth testified that he had been on active service, aware that the airfields were targets and that he had been required to obtain arms and sleep in the control tower at night due to the risk. However, the Court noted that Verth did not witness or participate in any hostile action or armed conflict during his service. While Verth felt himself to be in danger, the Court had to apply an objective test to determine if he actually incurred danger from hostile forces, as per the decision in Repatriation Commission v Thompson. The Court concluded that Verth's service, although in an operational area during hostilities, did not meet the objective criterion of incurring danger from hostile forces, as there was no evidence of actual danger or hostile action.

The Court's decision was that Walter Verth's service in Malaysia did not constitute qualifying service under the Veterans' Entitlements Act. The appeal was dismissed, and the original decision of the Repatriation Commission was upheld.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal against a decision of a senior delegate of the Repatriation Commission dated 7 February 2001, affirming a decision of a delegate of the Repatriation Commission of 15 December 2000 which found that the applicant (Walter Verth) had not rendered qualifying service within the meaning of s.7A of the Veterans' Entitlements Act 1986 ("the Act").Background Walter Verth served in the RAF (Royal Air Force) from 23 May 1961 until discharged on 22 May 1978. During this period he served in Sarawak, Malaysia from 1 October 1963 until 1 October 1964. His stated role was as an assistant air traffic controller, which involved a range of duties. He was informed that the airfields involved were targets for the enemy, as the confrontation with Indonesia was in operation at the time. He therefore believes he has served qualifying service and seeks recognition of this.Evidence At the Tribunal hearing on 26 July 2001, Mr Verth gave evidence and was represented by Mr R Webster as counsel. The respondent was represented by Mr M Castle. Mr Verth stated that after initial service in the Royal Air Force in the United Kingdom he was assigned to service in Malaysia from 1 October 1963 until 1 October 1964, during the period of confrontation between Malaysia and Indonesia. He travelled out to Singapore in a civil aircraft, was transported to Sarawak by landing ship, arrived at Kuching and later spent one month at another airfield at Simmangang, which was a forward landing strip about 15 kilometres from the Indonesian border. At the airfields there were jet fighters and helicopters which were used to monitor the situation and scare Indonesian insurgents at or near the border. The applicant claimed that at both Kuching and Simmangang airfields armed guards patrolled the perimeter, while the risk at Simmangang was such that he was required to obtain arms and sleep in the control tower at night. He was informed he was on active service and received briefings on incidents occurring at other localities. Counsel drew attention to a page from the official history of the Malaysian – Indonesian confrontation, in a chapter titled "Borneo: The First Phase 1963-64", outlining a clash which occurred overlooking the Kuching – Simmangang Road, during which Indonesian and Ghurka casualties occurred. The Tribunal asked Mr Verth whether he had witnessed or been involved in any hostile action or armed conflict at Simmangang airport or in the near vicinity. He stated no incidents had occurred during his period there. Counsel for the respondent noted that Mr Verth had agreed that Simmangang airport was used for both civilian and armed forces purposes and no hostilities were recorded there. He accepted that Mr Verth was on operational service, but there was not any evidence Mr Verth had suffered danger or action arising from hostile forces. Counsel for the applicant stated that Mr Verth clearly felt himself to be in danger and his period at Simmangang and Kuching should be regarded as qualifying service. Attention was drawn to the Federal Court decision in Repatriation Commission v Thompson (1988) 82 ALR 352 which stressed that the expression "incurred danger from hostile forces of the enemy" involved an objective test, with words taken in accordance with their everyday English meaning.Analysis

Evidence

Evidence Before The Court

Walter Verth served in the RAF (Royal Air Force) from 23 May 1961 until discharged on 22 May 1978. During this period he served in Sarawak, Malaysia from 1 October 1963 until 1 October 1964. His stated role was as an assistant air traffic controller, which involved a range of duties. He was informed that the airfields involved were targets for the enemy, as the confrontation with Indonesia was in operation at the time. He therefore believes he has served qualifying service and seeks recognition of this.Evidence At the Tribunal hearing on 26 July 2001, Mr Verth gave evidence and was represented by Mr R Webster as counsel. The respondent was represented by Mr M Castle. Mr Verth stated that after initial service in the Royal Air Force in the United Kingdom he was assigned to service in Malaysia from 1 October 1963 until 1 October 1964, during the period of confrontation between Malaysia and Indonesia. He travelled out to Singapore in a civil aircraft, was transported to Sarawak by landing ship, arrived at Kuching and later spent one month at another airfield at Simmangang, which was a forward landing strip about 15 kilometres from the Indonesian border. At the airfields there were jet fighters and helicopters which were used to monitor the situation and scare Indonesian insurgents at or near the border. The applicant claimed that at both Kuching and Simmangang airfields armed guards patrolled the perimeter, while the risk at Simmangang was such that he was required to obtain arms and sleep in the control tower at night. He was informed he was on active service and received briefings on incidents occurring at other localities. Counsel drew attention to a page from the official history of the Malaysian – Indonesian confrontation, in a chapter titled "Borneo: The First Phase 1963-64", outlining a clash which occurred overlooking the Kuching – Simmangang Road, during which Indonesian and Ghurka casualties occurred. The Tribunal asked Mr Verth whether he had witnessed or been involved in any hostile action or armed conflict at Simmangang airport or in the near vicinity. He stated no incidents had occurred during his period there. Counsel for the respondent noted that Mr Verth had agreed that Simmangang airport was used for both civilian and armed forces purposes and no hostilities were recorded there. He accepted that Mr Verth was on operational service, but there was not any evidence Mr Verth had suffered danger or action arising from hostile forces. Counsel for the applicant stated that Mr Verth clearly felt himself to be in danger and his period at Simmangang and Kuching should be regarded as qualifying service. Attention was drawn to the Federal Court decision in Repatriation Commission v Thompson (1988) 82 ALR 352 which stressed that the expression "incurred danger from hostile forces of the enemy" involved an objective test, with words taken in accordance with their everyday English meaning.Analysis Mr Verth served as a member of the Royal Air Force in Malaysia during the period 1 October 1963 to 1 October 1964. He therefore meets the initial test of s.5B of the Act, in terms of operational duties in an area and at a time of hostilities recognised in Schedule 2 of the Act.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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