Wyatt and Repatriation Commission - [2002] AATA 1112

DECISION AND REASONS FOR DECISION [2002] AATA 1112

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/282
VETERANS'     APPEALS       DIVISION
  Re:         CHARLES WYATT
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       M.J. Carstairs, Member
Date:             29 October 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review to reject a claim for Pharmaceutical Benefits Card under s93M(1) of the Veterans' Entitlements Act 1986.

(sgd) M.J. Carstairs
Member
VETERANS' AFFAIRS – entitlements – qualifying service - qualification for Repatriation Pharmaceutical Benefits Card under s93M(1) of the Veterans' Entitlements Act 1986 - whether applicant rendered qualifying service
Veterans' Entitlements Act 1986 ss7A(1), 93M(1)

REASONS FOR DECISION

29 October 2002 M.J. Carstairs, Member

This is an application by Charles Wyatt for review of a decision of the Repatriation Commission (the respondent) dated 27 February 2002, that the applicant was not eligible for a Repatriation Pharmaceutical Benefits Card under s93M(1) of the Veterans' Entitlements Act 1986 (the Act).
This matter was heard on the papers. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975. The Tribunal also took into account the applicant's letters dated 23 January 2002, 11 March 2002, 13 May 2002 and 12 August 2002, and the respondent's Statement of Facts and Contentions dated 21 August 2002; as well as a report (with attachments) by Associate Professor McCarthy, military historian, dated 28 July 2002.
BACKGROUND
The applicant is aged 80. He served in the Royal Air Force from 1941 to 1946. He had overseas service in Italy between 24 July 1945 and 27 November 1945 (T3). On his claim, he stated that he served an additional week (20 April 1945 to 27 April 1945) in Melsbroek in Belgium, an area about 5 miles (8 kilometres) north-east of Brussels, where he went as ground crew to recover a Lancaster bomber.
The applicant lodged his claim on 28 December 2001 (T4). On 18 January 2002, a decision was made to reject the claim. The applicant sought review of that decision. On 27 February 2002, a Service Pension Review Officer affirmed the original decision. The review officer accepted that the applicant had spent a week in Belgium in April 1945, though it was not shown on his service papers. However, he was satisfied that the applicant did not incur danger from hostile forces of the enemy in that week.
The applicant sought review of the decision with this Tribunal on 14 March 2002. In his letter of appeal, he stated that he was in danger of being shot down by enemy fighters over the English Channel and while flying into and out of the area. He said that within the United Kingdom aircrew were never issued with parachutes when flying, but they were issued with them on this operation to Belgium. He said the aircrew who flew him would have recorded it as an operation, but ground crews did not have logbooks to record their flying operations. He stated that the only proof he had of being there was a…

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 Wyatt and Repatriation Commission

Details

AGLC: Wyatt and Repatriation Commission [2002] AATA 1112
Case: [2002] AATA 1112
Decision Date: 29 October 2002

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal was an appeal by Wyatt against the decision of the Repatriation Commission to reject his claim for Pharmaceutical Benefits Card under section 93M(1) of the Veterans' Entitlements Act 1986. Wyatt, who served in the Royal Air Force from 1941 to 1946, sought recognition of his service in Melsbroek, Belgium, where he claimed to have spent a week in April 1945 recovering a Lancaster bomber. The Tribunal had before it various documents and reports, including a report by Associate Professor McCarthy, a military historian. The primary legal issue the Tribunal had to decide was whether Wyatt had incurred danger from hostile forces of the enemy during his service in Belgium.

The Tribunal concluded that the evidence, including the report by Associate Professor McCarthy, reasonably satisfied it that Wyatt did not incur danger from hostile forces of the enemy during his time in Melsbroek. The Tribunal found that while it was possible that RAF ground staff could have been sent to continental Europe for specific tasks such as the recovery of the Lancaster, there was no evidence to suggest that Wyatt was in any significant danger from enemy forces. As a result, the Tribunal affirmed the decision of the Repatriation Commission to reject Wyatt's claim for Pharmaceutical Benefits Card.

In affirming the decision, the Tribunal noted that although Wyatt had provided various details about his service, including the risks he believed he faced, the evidence did not sufficiently demonstrate that he was in danger from hostile forces. The Tribunal also highlighted that ground crews like Wyatt did not typically keep logbooks to record their operations, which further complicated the verification of his claims. The Tribunal's decision was based on the balance of probabilities and the evidence presented, leading to the conclusion that Wyatt did not meet the criteria for the Pharmaceutical Benefits Card under the Act.

Orders

Orders of the court

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Background

Background to the litigation

This matter was heard on the papers. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975. The Tribunal also took into account the applicant's letters dated 23 January 2002, 11 March 2002, 13 May 2002 and 12 August 2002, and the respondent's Statement of Facts and Contentions dated 21 August 2002; as well as a report (with attachments) by Associate Professor McCarthy, military historian, dated 28 July 2002. BACKGROUND The applicant is aged 80. He served in the Royal Air Force from 1941 to 1946. He had overseas service in Italy between 24 July 1945 and 27 November 1945 (T3). On his claim, he stated that he served an additional week (20 April 1945 to 27 April 1945) in Melsbroek in Belgium, an area about 5 miles (8 kilometres) north-east of Brussels, where he went as ground crew to recover a Lancaster bomber. The applicant lodged his claim on 28 December 2001 (T4). On 18 January 2002, a decision was made to reject the claim. The applicant sought review of that decision. On 27 February 2002, a Service Pension Review Officer affirmed the original decision. The review officer accepted that the applicant had spent a week in Belgium in April 1945, though it was not shown on his service papers. However, he was satisfied that the applicant did not incur danger from hostile forces of the enemy in that week. The applicant sought review of the decision with this Tribunal on 14 March 2002. In his letter of appeal, he stated that he was in danger of being shot down by enemy fighters over the English Channel and while flying into and out of the area. He said that within the United Kingdom aircrew were never issued with parachutes when flying, but they were issued with them on this operation to Belgium. He said the aircrew who flew him would have recorded it as an operation, but ground crews did not have logbooks to record their flying operations. He stated that the only proof he had of being there was a 10-Franc note he received in change at a pub. He said that he receives full pharmaceutical benefits with his age pension and wished only for recognition of his war service.EVIDENCE The applicant stated, in a letter (T7) dated 23 January 2002, that he was in Melsbroek airfield in Belgium to recover a Lancaster bomber. He stated that British forces had only captured the airfield a few days earlier. A Scottish regiment held it and the battlefront was only a few miles away. He said Melsbroek was a forward airfield with aircraft landing and taking off all day and there …was a real danger from intruders. He also stated that one of the engines in the Lancaster stopped before they were in the air. In the UK, he said, they were in constant danger from bombing, and from hazards such as test flights in faulty aircraft, dropped bombs, accidental gunfire, aircraft fires, and danger from propellers. In a later letter dated 12 August 2002, after receiving the report of Associate Professor McCarthy, the applicant said that he was not sure of the exact date that he was in Belgium, but thought it to be some time after 14 March 1945 when he was posted to 115 Squadron. He said that the Lancaster was parked a long way from the control tower and when he called for transport a German answered him. He said that he recalled that at the local pub there was dancing to music from BBC radio, as the locals were celebrating. When he left the pub at night he could hear rumbling in the distance which sounded like gunfire or bombs. He also said that, when they lined up on the runway to fly the Lancaster back to England, one engine died and they took off on three engines.

Evidence

Evidence Before The Court

The applicant sought review of the decision with this Tribunal on 14 March 2002. In his letter of appeal, he stated that he was in danger of being shot down by enemy fighters over the English Channel and while flying into and out of the area. He said that within the United Kingdom aircrew were never issued with parachutes when flying, but they were issued with them on this operation to Belgium. He said the aircrew who flew him would have recorded it as an operation, but ground crews did not have logbooks to record their flying operations. He stated that the only proof he had of being there was a 10-Franc note he received in change at a pub. He said that he receives full pharmaceutical benefits with his age pension and wished only for recognition of his war service.EVIDENCE The applicant stated, in a letter (T7) dated 23 January 2002, that he was in Melsbroek airfield in Belgium to recover a Lancaster bomber. He stated that British forces had only captured the airfield a few days earlier. A Scottish regiment held it and the battlefront was only a few miles away. He said Melsbroek was a forward airfield with aircraft landing and taking off all day and there …was a real danger from intruders. He also stated that one of the engines in the Lancaster stopped before they were in the air. In the UK, he said, they were in constant danger from bombing, and from hazards such as test flights in faulty aircraft, dropped bombs, accidental gunfire, aircraft fires, and danger from propellers. In a later letter dated 12 August 2002, after receiving the report of Associate Professor McCarthy, the applicant said that he was not sure of the exact date that he was in Belgium, but thought it to be some time after 14 March 1945 when he was posted to 115 Squadron. He said that the Lancaster was parked a long way from the control tower and when he called for transport a German answered him. He said that he recalled that at the local pub there was dancing to music from BBC radio, as the locals were celebrating. When he left the pub at night he could hear rumbling in the distance which sounded like gunfire or bombs. He also said that, when they lined up on the runway to fly the Lancaster back to England, one engine died and they took off on three engines. In a written report dated 28 July 2002, Associate Professor J. McCarthy stated:…As the Veteran was a member of the Royal Air Force, the records concerning the activities of his unit would be held mostly in the Public Record Office, Kew. In the documents you have forwarded, the Veteran's unit or squadron is not shown so it has been impossible given the limited secondary sources available here to be specific in research. There seems no reason to doubt, however, that RAF ground staff could have been sent to continental Europe for specific tasks and one such as described by the Veteran. It is possible that such salvage operations as the recovery of the Lancaster in question would have been under the direction of one of the four groups of RAF Maintenance Command. It does seem that the repaired Lancaster became airworthy and was flown back to Britain. …

Decision

Reasons for decision

The Tribunal is reasonably satisfied on the basis of the report of Associate Professor McCarthy that the applicant did not incur danger from hostile forces of the enemy at the time that he was in Melsbroek. For these reasons, the decision under review will be affirmed.DECISION The Tribunal affirms the decision under review to reject a claim for Pharmaceutical Benefits Card under s93M(1) of the Veterans' Entitlements Act 1986.I certify that the eighteen [18] preceding paragraphs are a true copy of the reasons for the decision herein of M.J.Carstairs, Member(sgd) Catherine Thomas ClerkDate of hearing: Nil - decision on papersDate of decision: 29 October 2002 Solicitor for applicant Nil — self-representedAdvocate for the respondent: Mr R. Douglass, Department of Veterans' Affairs

Ratio Decidendi

Legal Principle Established

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