Cohn and Repatriation Commission [2000] AATA 179 (9 March 2000)

Last Updated: 13 March 2000

DECISION AND REASONS FOR DECISION [2000] AATA 179

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/1021

VETERANS' APPEALS DIVISION )

Re DESMOND RICHARD COHN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr A. Argent, Member

Date 9 March 2000

Place Melbourne

Decision The decision of the Repatriation Commission is affirmed.

(Sgnd) A Argent

Member

CATCHWORDS

VETERANS' AFFAIRS - qualifying service -- whether incurred danger -- eligibility for Gold Card - decision affirmed

Veterans' Entitlements Act 1986 - section 7A, ss 85(4A)

Repatriation Commission v Walter Harold Thompson (1988) 82 ALR 352

REASONS FOR DECISION

Mr A. Argent, Member

Background

1. This is an appeal by Mr Desmond Richard Cohn ("the veteran") against a decision of a senior delegate of the Repatriation Commission ("the Commission") dated 12 June 1999.

2. That decision affirmed a previous decision of the Commission dated 12 February 1999 which determined the veteran had not rendered qualifying service during the period of hostilities of World War Two and thus was not entitled to a Gold Card.

3. Qualifying service is defined at section 7A of the Veterans' Entitlements Act 1986 ("the Act"). Part of this section reads:

"Qualifying service

7A.(1) ... a person has rendered qualifying service:

if the person has, as a member of the Defence Force:

rendered service, during a period of hostilities ... at sea, in the field or in the air in naval, military or aerial operations against the enemy in an area, or on an aircraft or ship of war, at a time when the person incurred danger from hostile forces of the enemy in that area or on that aircraft or ship; or"

4. Section 85(4A) of the Act specifies that a veteran is eligible to be provided with treatment, that is, entitled to a Gold Card, if the veteran is aged 70 or over and has rendered qualifying service during World War Two.

Issue

5. The issue before the Tribunal is whether the veteran rendered qualifying service during World War Two.

The Evidence

6. The case was heard on the papers by consent of the parties.

7. The Tribunal had before it:

(a) The documents ("T documents") lodged by the Commission pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Included in these documents is material supplied by the veteran concerning his World War Two service.

(b) A report by Mr R. Piper, an historian, concerning Japanese air attacks on West Australian targets in 1942.

8. The veteran was born on 10 August 1923 and was taken on strength in the Citizen Military Forces on 16 January 1942, posted to 6 Field Ambulance on 12 February 1942 and served in West Australia from 27 March 1942 to 17 October 1942. He was discharged for medical reasons on 11 November 1942.

9. In his application for a Gold Card the veteran stated he faced danger in north west Australia, including Broome, from enemy air attacks. In a letter dated 24 May 1999 he said he was attached to a "Western Australia Light Horse unit when we were ordered out in Bren Gun Carriers on reconnaissance during enemy air attacks on northern Western Australia".

10. In his report dated 28 December 1999 the historian, Mr Piper, gives details of where the veteran's unit was when there were Japanese air raids in West Australia. The location of the veteran's unit is given in the War Diary of 6 Field Ambulance. The details are:

(a) Japanese raid on Carnarvon 12 May 1942 - 6 Field Ambulance was located at Geraldton, 400 km/250 miles to the south of Carnarvon.

(b) Japanese raid on Port Hedland 30 July 1942 - 6 Field Ambulance was located at Geraldton, 1000 km/625 miles, south of south west of Port Hedland.

(c) During the veteran's service in West Australia there were raids in Wyndham, Broome, Derby and Exmouth Gulf. All these places are beyond Carnarvon. 6 Field Ambulance was still in the Geraldton area.

(d) The War Diary records on 3 May 1942:

"... a low wing monoplane, single engine, pointed nose with Japanese markings on top of wings banked around MDS at approx 1035 hrs. Made off in easterly direction. RAAF Avro Anson followed at about 2 minutes interval."

There is no further information about this and no report of any hostile action.

11. There was no evidence that the veteran was not serving in 6 Field Ambulance in the Geraldton area during his service in West Australia.

Findings

12. The meaning of "incurred danger" was set out by the Full Court of the Federal Court in the case of Repatriation Commission v Thompson (1988) 82 ALR 352. Their Honours' said:

"The words "incurred danger" 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 a fearing that he may be in danger. The words "incurred danger" do not encompass a situation where there is a 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."

13. Following on from this decision of the Full Court of the Federal Court, the Tribunal finds:

(a) the veteran did not incur danger from the hostile forces of the enemy during his service in West Australia in 1942 because there was no enemy activity in the Geraldton area during that period (or any other period);

(b) the report of the Japanese aircraft recorded in the War Diary, dated 3 May 1942, was more than likely an incorrect sighting, given the presence of an Avro Anson and no other evidence to the contrary. Even if it was an enemy aircraft, there was no hostile action and therefore no danger was incurred by the veteran.

Decision

14. The decision of the Repatriation Commission is affirmed.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A. Argent, Member

Signed: Grace A Carney

Personal Assistant to Senior Member Dwyer

Date/s of Hearing 7 February 2000

Date of Decision 9 March 2000

Counsel for the Applicant Nil

Solicitor for the Applicant Nil

Counsel for the Respondent Nil

Solicitor for the Respondent Nil