Norris and Repatriation Commission [2000] AATA 81 (9 February 2000)

Last Updated: 15 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 81

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/783

VETERANS' APPEALS DIVISION )

Re GORDON COLLOLO NORRIS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr A. Argent, Member

Date 9 February 2000

Place Melbourne

Decision The decision of the Repatriation Commission reviewed by the Tribunal is affirmed.

(Sgd.) A. Argent

Member

CATCHWORDS

VETERANS' AFFAIRS - qualifying service -- whether incurred danger -- eligibility for Gold Card health benefits

Veterans Entitlements Act 1986 Section 7A, subsections 85(4A)

Repatriation Commission v Thompson (1988) 82 ALR 352

REASONS FOR DECISION

Mr A. Argent, Member

1. This is an appeal by Mr Gordon Collolo Norris ("the veteran") against a decision of a senior delegate of the Repatriation Commission ("the Commission") dated 15 April 1999.

2. That decision affirmed an earlier decision of the Commission dated 26 November 1998, which determined that the veteran had not rendered qualifying service during the period of hostilities of World War 2 and, therefore, the veteran 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:

"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;"

4. The period of hostilities of World War 2 is from 3 September 1939 to 29 October 1945.

5. 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.

Issue

6. The only issue before the Tribunal is whether the veteran rendered qualifying service during world War 2 or not.

The Evidence

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

8. The veteran was born on 13 March 1920 and is over the age of 70.

9. He was taken on strength of the Citizen Military Forces from 30 September 1940 until 6 December 1940 and again taken on strength on 29 April 1941, transferred to the AIF on 15 November 1942 and discharged on 30 April 1946. He served in Victoria, New South Wales and in the Northern Territory.

10. His service in the Northern Territory in 135 Australian General Transport Company began on 24 January 1944. In his letter dated 16 March 1999 the veteran stated:

"I believe I was in danger of enemy aircraft whilst in charge of unloading operations on the wharves in Darwin."

11. Qualifying service in the Northern Territory is defined as being north of 14 degrees 30 minutes South for a continuous period of three months or more between 19 February 1942 and 12 November 1943.

12. The veteran did not serve in the Northern Territory during this period.

13. If the period in the Northern Territory was less than three months continuous service, then the veteran must have incurred danger from the hostile forces of the enemy in order to render qualifying service.

14. The Full Court of the Federal Court in the case of Repatriation Commission v Thompson (1988) 82 ALR 352 defined "incurred danger" as follows:

"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 or 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."

15. The report of Associate Professor McCarthy dated 1 November 1999, of which the veteran has a copy, is quite clear about the date of the last Japanese raid on the Northern Territory - 12 November 1943. He also mentions the 130 Australian General Transport Company War Diary on 7 April 1944 contains an entry to the effect there was a Red Alert at 2030 hours and an All Clear at 2045 hours. This is the only entry in the War Diary concerning possible enemy air activities.

Findings

16. The Tribunal finds the veteran did not serve in the Northern Territory until after 19 November 1943, the cut-off date for qualifying service.

17. The Tribunal also finds that although there was one Red Alert recorded on 7 April 1944 during his service at Darwin, the All Clear was given only 15 minutes later and there is no evidence that the veteran incurred danger from the hostile forces of the enemy during this time.

18. Therefore, the veteran did not render qualifying service during World War 2 and, in consequence, he is not entitled to a Gold Card.

Decision

19. The decision of the Repatriation Commission reviewed by the Tribunal is affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Argent, Member

Signed: Judith Holt, Associate