Leslie and Repatriation Commission [2000] AATA 90 (9 February 2000)

Last Updated: 15 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 90

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/593

VETERANS' APPEALS DIVISION )

Re ALFRED MERVYN LESLIE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date 9 February 2000

Place Sydney

Decision The decision under review is affirmed.

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

A R HORTON

Member

CATCHWORDS

VETERANS' AFFAIRS - gold card eligibility - service in Australian Army - passage in HMAT GORGON from Sydney to Townsville - qualifying service - whether incurred danger from hostile forces

Veterans' Entitlements Act 1986 - ss 5B(1), 5C(1), 7A, 36, 120(4)

Veterans' Entitlements Amendment (Gold Card) Act 1998 - s85(4A)

Repatriation Commission v Thompson (1988) 44 FCR 20

Willcocks v Repatriation Commission (1992) 39 FCR 49

Repatriation Commission v Burton (1993) 31 ALD 475

REASONS FOR DECISION

7 January 2000 Rear Admiral A R Horton AO, Member

1. This is an application for review of a decision dated 14 October 1998 (T18) by a delegate of the Repatriation Commission ("the Respondent"), and affirmed by review under section 57 of the Veterans' Entitlements Act 1986 ("the Act") on 24 February 1999 (T2), that Alfred Mervyn Leslie ("the Applicant") did not render qualifying service for the purposes of section 7A of the Act, and hence is not eligible for a Gold Card under s 85(4A) of the Veterans' Entitlements Amendment (Gold Card) Act 1998 ("the Gold Card Act"). The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 22 April 1999.

2. At the hearing before the Tribunal on 21 December 1999, the Applicant was represented by his daughter, Mrs Suzanne Davies. Mr J Marsh, Senior Advocate represented the Respondent. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also took into evidence a report with attachments by Mr B G O'Keefe, Consulting Historian, dated 17 November 1999 (Exhibit R1).

ISSUES BEFORE THE TRIBUNAL

3. The Applicant claims qualifying service as a prerequisite for eligibility for a Gold card. Eligibility is established pursuant to subsection 85(4A) of the Gold Card Act, which states:

"(4A) A veteran is eligible to be provided with treatment under this Part for any injury suffered, or disease contracted, by the veteran, whether before or after the commencement of this Act, if:

(a) the veteran is 70 or over; and

(b) the veteran has rendered qualifying service during the period covered by paragraph (b) of the definition of period of hostilities in subsection 5B(1); and

(c) either:

(i) the Department has notified the veteran in writing that he or she is or will be eligible for such treatment; or

(ii) the veteran has notified the Department in writing that he or she seeks eligibility for such treatment."

4. Qualifying service is defined in section 7A of the Act, which states relevantly:

"(1) ...

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

(i) rendered service during a period of hostilities specified in paragraph (a) or (b) of the definition of 'period of hostilities' in subsection 5B(1), 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

(ii) ..."

5. Subsection 5B(1) defines the period of hostilities and states, relevantly:

"(1) ....

(b) World war 2 from its commencement on 3 September 1939 to 29 October 1945 (both included); or

..."

6. The Respondent concedes that the Applicant is a veteran as defined in s 5C of the Act. The Applicant meets the age criteria for the Gold Card as defined in s 85(4A)(a), being aged 76 at the time of the application. The Respondent also concedes that the Applicant rendered service during the period of hostilities as defined in subsection 5B(1). The relevant standard of proof is that of reasonable satisfaction pursuant to subsection 120(4) of the Act.

FACTS AND EVIDENCE

7. The Applicant served with the Citizen Military Forces from 13 January 1942, and was transferred into the 2^nd Australian Imperial Force on 7 September 1943. He completed his military service on 6 December 1945. He served predominantly as an electrical fitter. From mid 1942, he was on the strength of 132 Australian General Transport Company, initially based in Sydney, but then moving north through various locations to arrive on the Atherton Tablelands in early 1943.

8. The T documents indicate much uncertainty as to the subsequent movements by the Applicant in regard to periods of leave and a passage from Sydney to Townsville. He returned to New South Wales by train in mid 1944, and after a period of leave, embarked in HMAT Gorgon for the passage to Townsville to rejoin his unit. It is in this period, given that he gave evidence that at no other stage of his service did any relevant incidents occur, that the Applicant believes he incurred danger pursuant to the criteria for qualifying service as defined in s 7A of the Act.

9. In evidence, the Applicant stated that he and four or five other members of his unit, as well as personnel from other units, took passage in GORGON. They were accommodated below decks "the whole time". Form A.F. B.103-1 Service and Casualty Form (T3) records that the Applicant embarked in the GORGON on 9 August, disembarking on 14 August. A hand written record of the ship's movements (T3) shows that GORGON sailed from Sydney at 0353 on 10 August and arrived Townsville at 2014 on 13 August. The Applicant stated that the ship sailed with a naval escort, but he was not in a position to know whether or not that escort remained in company for the duration of the voyage. There was no intercom system fitted, or at least used, in the GORGON, and no information was made available by the command as to the likely threat from enemy submarines or minefields, nor any relevant incidents. The Applicant believed the ship to be darkened; he was unable to state whether the ship was armed.

10. The Applicant recalls being informed that on leaving Sydney, the GORGON proceeded south for some six hours before turning east, then north. He believes the ship would have transited to Townsville inside the Barrier Reef. An extract of the ship's log, provided as an attachment to Exhibit R1, is of no help in this regard, providing no information as to the ship's route nor any indication of any incidents involving enemy forces.

11. Mr O'Keefe, the author of the report at Exhibit R1, was not called. The advocate for the Applicant submitted that he accepted the historical records as submitted in the report, in regard to the operations of enemy submarines and the locations of enemy minefields. However, the Applicant stated that he did not accept the conclusions as then drawn by Mr O'Keefe as they related to the degree of risk encountered by the Applicant. The advocate for the Applicant drew on numerous issues expounded in a written submission, which he considered disadvantaged the Applicant, and these are summarised as follows:

* the initial decision by the Respondent to deny eligibility for the Gold Card, as affirmed on review under s 57, was based on information gained "in hindsight" after the events of 1944;

* conclusions drawn by military historians (Mr O'Keefe at Exhibit R1 and Lieutenant Colonel Horner, as drawn on by the Respondent at the s 57 review at T2) could not absolutely preclude the possibility of the Applicant being at risk during the voyage of GORGON;

* the Respondents conclusions in regard to the effectiveness of mineclearing operations is again based on retrospect. At the time of the voyage, minelaying operations by the enemy could not be precluded, nor could further submarine operations, as was later evidenced by the sinking of the ROBERT J WALKER off Jervis Bay in September 1944

* at the time of the passage of the GORGON, the safety of vessels from enemy mines could not be guaranteed;

* the respondent's policy guidelines are discriminatory in that different criteria for eligibility are applied; and

* the intrinsic meaning of "Active Service" and "Theatre of War" have been subverted by the more recent legislation introducing specific eligibility criteria.

12. The Respondent acknowledged the perception of policy discrimination, but submitted that s 7A(1) provides the relevant legislative definition in terms of the eligibility for qualifying service, and the matter as to whether the Applicant incurred danger must be decided on the evidence. In this case, the Respondent submitted, HMAT GORGON travelled along a well used sea route from Sydney to Townsville, the evidence was clear that there were no Japanese forces in the vicinity, nor had there been for some considerable time, and the German submarine operations in south east Australian waters that resulted in the sinking of the ROBERT J WALKER occurred some months after the voyage of the GORGON. The Respondent also submitted that there had been no detection of enemy minefields, or incidents resulting from enemy minelaying operations, on the route for some years. He acknowledged that the Applicant was apprehensive, but perceived danger was insufficient to meet the objective criteria as defined in Repatriation Commission v Thompson (1988) 44 FCR 20.

ANALYSIS OF EVIDENCE AND FINDINGS

13. As conceded by the Respondent at the outset, the Applicant rendered service "during a period of hostilities" as defined in subsection 5B(1) of the Act. Section 7A (1)(a)(i) requires the Applicant to have rendered such service "in naval, military or aerial operations against the enemy". Cooper J defined the term "against the enemy" in Willcocks v Repatriation Commission (1992) 39 FCR 49 where at p56 he stated:

"...

Accordingly, in my view the word 'against' in the phrase 'military operations against the enemy' is used in the sense of 'in hostility or active opposition to'. This is the common meaning and general usage of the word 'against' in such a context. The section requires services, inter alia, in military operations against the enemy, in the sense of operations in hostility or opposition to the enemy.

..."

14. It may be that this Application could fail against that criteria, or against the relevant criteria in relation to whether the Applicant was engaged 'in naval, military or aerial operations against the enemy' as defined by Olney J in Repatriation Commission v Burton (1993) 31 ALD 475 but they are not matters for consideration unless the "incurred danger" test is met. The Full Federal Court considered the implications of the phrase "incurred danger" in Thompson (supra), their honours Davies, Wilcox and Foster JJ stating (at pp 23-24) that:

"...

The words 'incurred danger' therefore 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. In this matter, there is no evidence against the required standard of proof, that is reasonable satisfaction, that the Applicant incurred danger as defined by the Full Federal Court in Thompson (supra). There is no evidence to support the Applicant's contention that he incurred danger during the passage of HMAT GORGON from Sydney to Townsville. No incidents that might support such a contention have been evidenced, and the dated activities of enemy submarine forces and the laying of minefields, as recorded by Mr O'Keefe in his report, have not been disputed. The Tribunal acknowledges that the full detail of enemy activities emerged after the cessation of hostilities, but there is no evidence to suggest that at the time, the Applicant "encountered danger" or was "in danger'. He may have had a perception that he was in danger, particularly at that stage of the war, but that is insufficient to meet the objective criteria. That is not to say that the Applicant did not well serve his country during the period of hostilities, an acknowledgment made by the Respondent; the fact is that the Applicant has not met the objective "incurred danger" test.

16. There is no doubt in the mind of the Tribunal that the legislation as drafted, and against which this matter has been considered, lends to the perception of discrimination by some veterans in that service personnel who served overseas in similar circumstances and at a similar time to those serving in Australia, may be more likely to gain Gold Card eligibility. This view is emphasised in the minds of those with this perception in that their service postings were dictated by the whims of the service authorities rather than by any reluctance on their part to serve overseas.

17. A further issue from time to time is the perceived inconsistency in assessing eligibility for the Gold Card at the time of the primary decision, where it appears, at least to the applicant, that other persons with the same service record have been granted the Gold Card. In this matter, the Applicant referred (T8 on 14 December 1998) to the issue of the Gold Card to a veteran who "travelled on the same voyage and shared identical war service history", and again at T1 (30 May 1999) the Applicant referred to two servicemen (one being the serviceman at T8) who "(had) identical service history to my own, and who like myself were transported via ship to Townsville in April 1944". The Tribunal has no evidence in regard to these claims, but understands that one person achieved eligibility for qualifying service under previous legislation, whilst the second has more recently had eligibility for the Gold Card revoked, having failed to meet the criteria for qualifying service. The Applicant in this matter was advised during the hearing that this review of the primary decision was being undertaken against the circumstances and evidence adduced in reviewing his claim, and against extant legislation as relevant to the lodgement of the claim.

18. Thus the appeal has been considered on the facts and evidence as presented to the Tribunal, which finds that the Applicant did not meet the objective test of "incurred danger" as defined by the Full Federal Court. The decision under review is therefore affirmed.

I certify that the 18 preceding paragraphs are a true copy of the reasons for decision herein of:

Rear Admiral A R Horton AO, Member

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

Assistant

Date/s of Hearing 21 December 1999

Date of Decision 7 January 2000

Applicant Mrs S Davies (daughter)

Advocate for the Respondent Mr J Marsh