Lewis and Repatriation Commission [2000] AATA 77 (7 February 2000)

Last Updated: 15 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 77

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/553

VETERANS' APPEALS DIVISION )

Re GORDON CHARLES LEWIS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr A. Argent, Member

Date 7 February 2000

Place Melbourne

Decision The decision under review is affirmed.

(Sgd.) 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) 44 FCR 20

REASONS FOR DECISION

7 February 2000 Mr A. Argent, Member

Background

1. On 1 June 1998, Mr Gordon Lewis ("the veteran") lodged an application for a Gold Card, that is, for treatment benefits under section 85(4A) of the Veterans' Entitlements Act 1986 ("the Act").

2. On 12 August 1998 a delegate of the Repatriation Commission determined that the veteran had not rendered qualifying service and, therefore, was not entitled to a Gold Card.

3. The meaning of "qualifying service" is given at section 7A(1)(a)(i) of the Act.

4. Following a request by the veteran that the decision be reviewed, a senior delegate of the Repatriation Commission on 17 March 1999 affirmed the decision of 12 August 1998, that is, the veteran had not rendered qualifying service and therefore was not entitled to a Gold Card.

5. On 20 May 1999 the veteran appealed to the Administrative Appeals Tribunal ("the Tribunal") against the decision.

The Issue

6. The issue before the Tribunal was whether the veteran rendered qualifying service. In this case section 7A(1)(a)(i) applies. Abridged, the applicable part reads:

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

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

(i) rendered service, during a period of hostilities ... in the field ... in military operations ... against an enemy in an area ... at a time when the person incurred danger from hostile forces of the enemy in that area ...."

7. Under section 85(4A) of the Act, a veteran must be 70 years of age or over and have rendered qualifying service during the period of hostilities to be eligible for the medical treatment given by a Gold Card. The period of hostilities of World War 2 is 3 September 1939 to 29 October 1945.

The Evidence

8. The Tribunal had before it documents ("the T documents") lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and took in as evidence a statement by the veteran (Ex. A1), copies of Australian War Memorial Photographs (Ex. A2), and the Gold Card brochure (Ex. A3).

9. The veteran appeared for himself and Mr R. Douglass, a departmental advocate, appeared for the Repatriation Commission.

10. The veteran was born on 5 August 1920, enlisted in the AIF on 22 January 1942 and was discharged on 1 April 1946. He did not serve overseas until late 1945. He was initially a driver in 2/108 Australian General Transport Company based at Alice Springs from 2 April 1942 to 26 August 1943 and had subsequent postings in Victoria and Queensland. His service in Rabaul, 27 November 1945 to 14 March 1946, was after the cessation of hostilities, that is, after 29 October 1945.

11. The veteran stated that his duties took him to Katherine, Pine Creek, Adelaide River and Batchelor, all of which are north of 14 degrees 30 minutes South. In his statement (Ex. A1) the veteran states:

"I incurred danger from a hostile force when enemy aircraft forced me to disperse while I was on convoy duty."

12. The veteran further stated that in exercises off the Queensland coast he travelled in landing craft to Green Island which is 27 kilometres (about 15 nautical miles) from the mainland and beyond a 3-mile limit. There was a risk, he stated, from enemy mines.

13. In his report, Associate Professor McCarthy stated that Katherine was bombed by the Japanese on 22 March 1942, but that most of the Japanese air attacks were on Darwin. The road/rail head at Larrimah, although an attractive target, was never attacked and no road convoy in the Northern Territory was ever attacked.

14. Concerning the risk from mines off the coast of Trinity Beach (about 10 nautical miles north of Cairns), Associate Professor McCarthy reported the Japanese laid 30 mines in Torres Strait on 15 January 1942, 800 kilometres (435 nautical miles) north of where the veteran was in 1944. A long defensive minefield was laid along the Barrier Reef in October and November 1943 by the Australian Navy. It ran to the north and south of Trinity Beach and to the east of Green Island.

Findings

15. The Tribunal finds the veteran did not have three months continuous service in the Northern Territory north of 14 degrees 30 minutes South between 19 February 1942 and 12 November 1943.

16. The Tribunal accepts on occasions the convoys, in which the veteran drove trucks, dispersed. However, there is no evidence that enemy activity caused these dispersions. The Full Federal Court in Repatriation Commission v Thompson (1988) 44 FCR 20 held that:

"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."

17. The evidence is that road convoys in the Northern Territory were not attacked by the Japanese.

18. Therefore, the Tribunal finds the veteran did not incur danger from the hostile forces of the enemy during his service in the Northern Territory.

19. Turning to his service at Trinity Beach and off the coast to Green Island, the Tribunal again finds the veteran did not incur danger from the hostile forces of the enemy as there is no evidence that mines caused any damage to vessels, or injury to servicemen engaged in the exercises.

20. It therefore follows the veteran did not render qualifying service and, consequently, he is not entitled to a Gold Card.

Decision

21. The decision under review is affirmed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A. Argent, Member

Signed: Judith Holt, Associate

Date of Hearing 2 February 2000

Date of Decision 7 February 2000

Applicant Self-represented

Respondent Mr R. Douglass, Department of Veterans'

Affairs