Healy and Repatriation Commission [1999] AATA 689 (15 September 1999)

Last Updated: 24 September 1999

DECISION AND REASONS FOR DECISION [1999] AATA 689

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T1999/86

VETERANS' APPEALS DIVISION )

Re TERENCE SYDNEY HEALY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr C P Webster (Senior Member)

Date 15 September 1999

Place Hobart

Decision That the decision of the senior delegate of the Repatriation Commission of 8 March 1999 be set aside and be remitted back to the respondent to make a determination as to the applicant's eligibility for a personal treatment entitlement card on the basis that the applicant does have qualifying service as required by s.7A of the Veterans' Entitlements Act 1986.

.............................

Senior Member

CATCHWORDS

Veterans' Entitlements - qualifying service - whether veteran had "rendered service" during relevant period.

Veterans' Entitlements Act 1986 - s.7A

REASONS FOR DECISION

15 September 1999 Mr C P Webster (Senior Member)

The Issues

1. The applicant, Terrence Sydney Healy, seeks a review of a decision of a senior delegate of the Repatriation Commission, the respondent, of 8 March 1999 which affirmed an earlier decision of a delegate of the respondent of 2 November 1998 which refused an application of the applicant for a personal treatment entitlement card ("the gold card").

2. The issue to be determined is whether the applicant has "qualifying service" as defined by s.7A of the Veterans' Entitlements Act 1986 ("the Act").

3. The relevant legislation is contained in s.7A of the Act.

The Evidence

4. The "T" documents were tendered into evidence.

5. Mr. Healy was the only person to give evidence.

6. The evidence essentially uncontroversial.

7. The evidence not in dispute was that:-

(a) In 1939, the applicant, while living in Tasmania applied to join the RAAF. He underwent medical examinations and was told to proceed to Laverton in Victoria to enlist. At that time it was not possible to enlist in the RAAF in Tasmania.

(b) The applicant travelled from Tasmania to Victoria by sea and at that time there was actual danger existing from the presence of German submarine in Bass Strait.

(c) Subsequent to the applicant's enlistment in the RAAF he undertook four other voyages by sea between Victoria and Tasmania. On each occasion the applicant was on leave.

(d) The only evidence in dispute was the evidence of the applicant as to the circumstances of his voyage across Bass Strait in October 1943.

(e) The applicant gave evidence that in October 1943 he crossed Bass Strait by boat on leave.

(f) On boarding the vessel he was told to report to an officer on board and was allotted duties as a senior non-commissioned officer supervising movements of personnel onboard the vessel. This involved supervising servicemen moving around the vessel and at meal times.

8. Under cross-examination the applicant conceded that he had paid for the trip in October 1943 across Bass Strait himself and he had not received any instruction from his home unit as to how to conduct himself on that trip.

Findings of Fact

9. The only matter of fact in dispute is whether the applicant assisted in supervising movement of service personnel during his trip across Bass Strait in October 1943 at the request of a superior officer.

10. The Tribunal accepts the evidence of the applicant on this matter. The Tribunal found the applicant to be clear and believable. Any vagueness in the applicant's recall can be explained by the 60 year lapse in time since the incident occurred.

Application of the Law

11. The issue to be determined is whether the applicant satisfies s.7A of the Act, that is, that he rendered qualifying service.

12. Counsel for the respondent advised the Tribunal that the respondent had a policy that it would concede that a person incurred danger from hostile forces if that person crossed Bass Strait whilst on duty during the period between 3 September 1939 to 29 October 1945. In such cases (to use the words of counsel for the respondent) "...We are not going through the hassle of establishing which German submarines were in which area at whatever time ... we are going to say as a globo thing, [that] for people on duty we accept there was actual danger".

13. That concession by the respondent does not extend to servicemen on leave while crossing Bass Strait.

14. Counsel for the respondent conceded for the purpose of this review that if the Tribunal was satisfied that on any of the trips across Bass Strait the applicant was on duty or to use the words of the Act "rendered service", the respondent would concede that the applicant was entitled to receipt of a "gold card".

15. The applicant travelled by vessel during the qualifying period, across Bass Strait on a number of occasions. They can be divided into 3 types of trip:-

(a) The first trip while the applicant was on his way to Laverton, Victoria to enlist.

(b) His trip whilst on leave.

(c) His trip in October 1943 when, although on leave, he was instructed by superior officers to undertake tasks such as supervising other servicemen.

16. The term "rendered service" is not defined by the Act.

17. The term "render" is defined in the Shorter Oxford Dictionary as "to give".

18. "Service" is defined in that dictionary as "the condition of employment of a public servant".

19. In the context of s.7A the term "rendered service" means that the person was undertaking employment in the defence force during the relevant period or event.

20. The respondent argues that when the applicant travelled to Victoria to enlist he was not rendering service as he was not then employment by the RAAF during that trip. Similarly during his other trips across Bass Strait he did not "render service" as he was then on leave.

21. The Tribunal agrees that the applicant was not rendering service while his initial trip across Bass Strait was to enlist. He was not employed by the RAAF at that time, and was not employed until he actually enlisted at Laverton, Victoria.

22. Although it was unfortunate that the applicant could not enlist in the RAAF in Tasmania during 1939, his period of service could not commence until he had completed enlistment procedure in Victoria.

23. His initial trip across Bass Strait in 1939 was before the commencement of that employment.

24. The Tribunal considers that the applicant rendered service during his trip across Bass Strait in October 1943 when he was ordered to supervise and direct other servicemen.

25. During this time the applicant was actively participating in his employment as a serviceman and assuming the responsibilities of his employment. He was not simply on leave.

26. It is unnecessary to consider whether a serviceman on leave can be said to have "rendered service" during his period of leave and it is unnecessary to decide whether the applicant was rendering service on those occasions.

Determination

27. That the decision of the senior delegate of the Repatriation Commission of 8 March 1999 be set aside and be remitted back to the respondent to make a determination as to the applicant's eligibility for a personal treatment entitlement card on the basis that the applicant does have qualifying service as required by s.7A of the Veterans' Entitlements Act 1986.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Mr C P Webster (Senior Member)

Signed: .....................................................................................

Personal Assistant

Date/s of Hearing 17 August 1999

Date of Decision 15 September 1999

Solicitor for Applicant Applicant appeared in person.

Counsel for the Respondent Mr M Castle (Department of Veterans' Affairs)