Wightman and Repatriation Commission - [2001] AATA 835

DECISION AND REASONS FOR DECISION [2001] AATA 835

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/109

VETERANS' AFFAIRS DIVISION         )
           Re      JOAN WIGHTMAN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date4 October 2001
PlaceAdelaide

Decision      The Tribunal sets aside the decision under review and in substitution therefor decides that the applicant has rendered qualifying service pursuant to section 7A(1)(a)(i) of the Veterans' Entitlements Act 1986.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – qualifying service – whether applicant a full-time member of the Forces – whether applicant incurred danger from hostile forces of the enemy.
Veterans' Entitlements Act 1986 ss. 5B, 7A, 5C, 120(4)

Repatriation Commission v Thompson (1988) 82 ALR 352

REASONS FOR DECISION

4 October 2001 Senior Member J.A. Kiosoglous MBE

This is an application for review by Mrs Joan Wightman (the applicant) for review of a decision of a senior delegate of the respondent dated 17 January 2001 (T16/38-42) which affirmed a decision of a delegate of the respondent dated 31 May 2000 (T2/5), which determined that the applicant had not rendered Qualifying Service and, therefore, was not entitled to receive a Gold Card.
The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T19), together with 3 exhibits, 2 lodged by the applicant (Exhibits A1-A2) and 1 lodged by the respondent (Exhibit R1). In addition, the Tribunal heard evidence from the applicant and her husband, Mr T. Wightman. The applicant was assisted by her husband, Mr T. Wightman at the hearing, who spoke on her behalf, and the respondent was represented by Mr G. Doube, a departmental advocate.
The issues before the Tribunal are:

whether or not the applicant undertook a voyage on the MV Corinda from Adelaide to Melbourne between the dates of 29 March 1943 and 1 April 1943;
whether or not at the time of the voyage, the applicant was a member of the Forces, undertaking full time duty in the Royal Australian Navy (RAN);
whether or not the applicant incurred danger from hostile forces of the enemy during the above voyage and, as such, whether her war service in the RAN constituted qualifying service under section 7A of the Veterans' Entitlements Act 1986 (the Act).

history of the application

On 20 April 1999, the applicant lodged an informal application for a Gold Card under section 85(4A) of the Act (T5/16-17). The applicant lodged a formal application on 24 November 1999 (T7/21-22) in which she claimed that she had enlisted in the Women's Royal Australian Naval Service in April 1943 and had travelled by ship from HMAS Torrens in South Australia to HMAS Lonsdale in Victoria in 1943.
On 13 March 2000, the Income Support Service Officer from the Department of Veterans' Affairs advised the applicant that she was not eligible for a Gold Card under subsection 85(4A) of the Act because she did not have the necessary World War 2 qualifying service (T11/31-32).…

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 Wightman and Repatriation Commission

Details

AGLC: Wightman and Repatriation Commission [2001] AATA 835
Case: [2001] AATA 835
Decision Date: 4 October 2001

CaseChat Overview and Summary

The case of Wightman and the Repatriation Commission involved a dispute over whether the applicant was entitled to veterans' benefits under the Veterans' Entitlements Act 1986. The applicant argued that she qualified for benefits as she had served in the Navy during World War II and had been exposed to the danger of enemy action. The Repatriation Commission had previously denied her claim, leading to the applicant seeking a review by the Tribunal.

The primary legal issues before the Tribunal were whether the applicant had rendered qualifying service under the Act and whether she had been exposed to danger from hostile forces during her service. Qualifying service is defined under section 7A of the Act and requires service during a period of hostilities, such as World War II, and exposure to danger from hostile forces. The Tribunal needed to determine if the applicant's service and experiences met these criteria.

The Tribunal found that the applicant had indeed rendered qualifying service, as her service in the Royal Australian Naval Reserves constituted continuous full-time naval service, in line with the Act's definition. Additionally, the Tribunal concluded that the applicant had incurred danger from hostile forces, as evidenced by the known submarine and mine threats in the waters she traveled through, and the subsequent losses of ships and lives during that period. The Tribunal relied on the Full Federal Court decision in Repatriation Commission v Thompson to affirm that incurring danger requires actual exposure to risk of harm, not merely the perception of danger.

The Tribunal ruled in favour of the applicant, setting aside the previous decision of the Repatriation Commission and substituting it with a decision that the applicant had rendered qualifying service under section 7A(1)(a)(i) of the Veterans' Entitlements Act 1986. The Tribunal's decision was based on the evidence presented by the applicant, which demonstrated her service during a period of hostilities and her exposure to real danger from enemy forces.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

On 19 March 2001, the applicant lodged with the Tribunal an application seeking a review of the respondent's decision of 31 May 2000 (T1/3-4).evidence of the applicant The applicant was born on 22 April 1925. She referred to a written statement she had prepared for the hearing and which she read out as part of her evidence. The applicant told the Tribunal that she volunteered to join the Navy in Adelaide in February 1943 and reported for duty at the Birkenhead Naval Depot, also known as HMAS Torrens. The applicant testified that after a medical examination and the writers' branch qualification tests at HMAS Torrens, she was informed that she had been accepted and would be officially "called up". The applicant gave evidence that she was subsequently "called up" in March 1943 and entered the Navy at HMAS Torrens, Adelaide and was immediately drafted to Melbourne. The applicant explained that she could not remain in Adelaide because her father was the Commanding Officer of the Depot in Adelaide and Navy regulations at the time specified that relatives could not serve in the same place. The applicant testified that between the time of her medical examination on 26 February 1943 and 29 March 1943, she was working as a shorthand typist for Elders-Smith. The applicant testified that she was taken aboard the MV Corinda, a merchant vessel conscripted by the Navy, for the trip to Melbourne on 29 March 1943. The applicant testified that she was the only Navy person on the MV Corinda, apart from two naval gunners, which was standard practice at the time. The applicant told the Tribunal that she was from a naval family - her father and three of her brothers all served in the Navy permanently during World War 2. The applicant testified that for that reason, she was well aware of the dangers of sea travel at that time and had more of an understanding than the general community of Naval matters. The applicant testified that she was aware that at the time there were mines off the South Australian coast. The applicant told the Tribunal that she vividly recalled the death of two sailors from the depot where she and her family lived at the time, when a mine exploded on the beach at Beachport, South Australia. The applicant explained that her father was leading the demolition party to destroy the mine. The applicant gave evidence that the incident was extremely stressful within the depot and it was one that she would never forget. The applicant told the Tribunal that the minefield laid by the German submarines along the south coast had not been swept prior to her voyage despite requests from the Navy in Adelaide because minesweepers were not available. The applicant testified that apart from the minefield, she also knew of Japanese submarine activity still evident after the raid on Sydney Harbour in 1942. The applicant testified that her fears were proved correct when nine ships and 395 lives were lost between April and June 1943, including the "Recina" which was sunk off the Victorian coast with the loss of 32 lives, only a few days after her voyage in the MS Corinda. The applicant testified that the hospital ship "Centaur", which was unarmed and unescorted, was also sunk during the period.

Decision

Reasons for decision

Having taken into account the whole of the evidence before the Tribunal, and taking into account the parties' submissions, the Tribunal is therefore reasonably satisfied that the applicant has, as a member of the Defence Force, rendered service, during a period of hostilities at sea at a time when the applicant incurred danger from hostile forces of the enemy. The Tribunal is therefore satisfied that the applicant rendered qualifying service in accordance with section 7A of the Act.decision For these reasons the Tribunal sets aside the decision under review and in substitution therefor decides that the applicant has rendered qualifying service pursuant to section 7A(1)(a)(i) of the Veterans' Entitlements Act 1986.

Ratio Decidendi

Legal Principle Established

Turning to section 5B of the Act, various terms in section 7A are defined:"5B War and operational area related definitions(1) In this Act, unless the contrary intention appears:…period of hostilities means:…(b)World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included); or…" It is not in dispute between the parties that the applicant served during a period of hostilities, namely during World War 2, in between 3 September 1939 and 29 October 1945, and the Tribunal so finds. Further relevant definitions are found at section 5C of the Act:"5C Eligibility related definitions(1)In this Act, unless the contrary intention appears:…member of the Defence Force includes a person appointed for continuous full-time service with a unit of the Defence Force.…continuous full-time service means:(a)in relation to a member of the Defence Force:(i)service in the Naval Forces of the Commonwealth of the kind known as continuous full-time naval service;…" The Tribunal now turns to consider whether or not the applicant was a member of the Forces who rendered continuous full-time service in the Navy at the time that she boarded the MV Corinda. The Tribunal is satisfied that, as the applicant explained, the Royal Australian Naval Reserves were not considered to be the "part-time" branch of the RAN during the war, but rather consisted of those servicemen and women who were called up for service during the war time only – from the moment World War 2 broke out all Reserves Forces were considered to be active. The respondent called no evidence to refute this interpretation and in the absence of contrary evidence, the Tribunal finds that the applicant's service in the Royal Australian Naval Reserves consisted of continuous full-time naval service from the moment that she stepped aboard the MV Corinda. In addition, the Tribunal considers it highly unlikely that the Navy would have avoided responsibility for the applicant if the ship had not arrived safely in Melbourne and had in fact been torpedoed or hit a mine. In relation to her period of waiting at Melbourne, this was through no choice of her own – she was told to go to Melbourne at a particular time because that was when a ship was available to transport her and she was told to wait in Melbourne so that a group of recruits could be trained at the same time as her. In considering the question as to whether or not the applicant "incurred danger" as defined in sub-section 7A(1)(a)(i), the Tribunal refers to the authoritative Full Federal Court decision in Repatriation Commission v Thompson (1988) 82 ALR 352 at 356:"The words 'incurred danger' therefore provide an objective, not a subjective, test. A serviceman incurs danger when he encounters danger, is in danger or is endangered. He incurs danger from hostile forces when he is at risk or in peril of harm from hostile forces. A serviceman does not incur danger by merely perceiving or fearing that he may be in danger. The words "incurred danger" do not encompass a situation where there is mere liability to danger, that is to say, that there is a mere risk of danger. Danger is not incurred unless the serviceman is exposed, at risk of or in peril of harm or injury.The danger incurred must of course be more than a merely fanciful danger or a danger so minimal that the rule of de minimus applies. But to say that is not to give a flavour to the word. Rather it is to use it in its ordinary sense.…"