Lamperd and Repatriation Commission [2003] AATA 30 (15 January 2003)

Last Updated: 16 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 30

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/800

VETERANS' APPEALS DIVISION

Re: GEOFFREY CYRIL LAMPERD

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: M.J. Carstairs, Member

Date: 15 January 2003

Place: Melbourne

Decision: The Tribunal affirms the decision under review.

(sgd) M.J. Carstairs

Member

VETERANS' AFFAIRS - entitlement to Gold Card - risk of harm - claim to have witnessed Japanese air attack - whether applicant rendered qualifying service

Veterans' Entitlements Act 1986 ss7A(1)(a)(i), 85(4A), 120(4)

Repatriation Commission v Thompson (1988) 44 FCR 20

REASONS FOR DECISION

15 January 2003 M.J. Carstairs, Member

1. This is an application by Geoffrey Cyril Lamperd (the applicant) for review of a decision of the Repatriation Commission (the respondent) dated 2 May 2002, that the applicant was not eligible for treatment for any injury suffered, or disease contracted (entitlement to Gold Card) under s85(4A) of the Veterans' Entitlements Act 1986 (the Act).

2. With the consent of the parties, the Tribunal decided to make a decision on the review application without holding a hearing. The material before the Tribunal comprised the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T12) and a statement of facts and contentions (with attachments) dated 9 December 2002 lodged on behalf of the respondent. The Tribunal also had before it a report dated 1 December 2002 (Exhibit R1) written by Associate Professor J. McCarthy, Australian Defence Force Academy.

BACKGROUND

3. The applicant was born on 8 April 1919. He served in the Australian Army on a continuous full-time basis from 9 January 1942 to 2 November 1945, having served previously on a part-time and intermittent full-time basis. Service records show that he served in several locations in Victoria before arriving in the Northern Territory on 5 August 1943. He served north of 14 degrees 30 minutes South latitude, in the Darwin area, from 9 October 1944 to 6 May 1945 as a driver with 119^th Australian General Transport Company (AGTC) based in Alice Springs.

4. On 23 April 2001 the applicant lodged an application for a Gold Card, following similar applications on 5 June 1998, 11 January 1999 and 21 August 2000. On 2 May 2002 a delegate of the respondent refused the claim because the applicant had not rendered qualifying service under the Act, as he did not incur danger from hostile forces of the enemy. The applicant sought review of that decision. On 18 June 2002 a senior delegate of the respondent affirmed the decision. On 29 July 2002 the applicant lodged an application with the Tribunal for review of the decision.

EVIDENCE

5. In written material provided by the applicant and his daughter, the applicant stated that he served in the Northern Territory from 5 August 1943 to 6 May 1945 and was exposed to the risk of enemy air attacks. He said that he was based in Alice Springs and made fortnightly trips to Darwin, and on one occasion in about 1943 he witnessed an enemy attack on Darwin. He said that bombs were dropped half a mile from him, mostly over water. The applicant stated that he was not subjected to enemy gunfire or to direct personal danger as a result of the attack. He did not witness any other attacks.

6. In a letter to the Tribunal dated 22 July 2002, the applicant's daughter stated that the applicant:

...served 1299 days in the Army and could have been posted anywhere that he could have 'incurred danger'. He went where he was told and served time in Darwin he could have 'incurred danger' he just wasn't at the place of the bombings on those particular days. ...

7. In his report (Exhibit R1), Professor McCarthy stated that the activities of the AGTC based at Alice Springs involved transporting supplies to the railhead at Larrimah and directly to Darwin. He said that records for the 119^th AGTC were in existence only for the period until May 1943, and  according to the applicant's service records he arrived in Alice Springs on 5 August 1943. However, Professor McCarthy noted that the applicant must have begun convoy duties before the last of the Japanese air raids on Darwin, which occurred on 12 November 1943. He said that for geographical reasons the applicant would probably not have incurred danger from Japanese incursions in the Northern Territory in 1944, and that Alice Springs was never under Japanese air attack.

8. Professor McCarthy noted that the applicant served in the prescribed operational area of the Northern Territory from 9 October 1944 to 6 May 1945, but by this time the possibility of actual danger from hostile forces of the enemy appeared to have passed. He added that an examination of official records failed to show that General Transport Companies were attacked at any time.

CONSIDERATION OF THE ISSUES

9. Section 85(4A) of the Act provides:

85(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.

10. Section 7A(1)(a)(i) of the Act provides that a person has rendered qualifying service if the person has:

...

(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;

11. In its Statement of Facts and Contentions, the respondent referred the Tribunal to Repatriation Commission v Thompson (1988) 44 FCR 20 in which the Full Federal Court considered the meaning of the words incurred danger and stated at pp23-24 that the words 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 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.

The danger incurred must of course be more than a merely fanciful danger or a danger so minimal that the rule of de minimis applies. But to say that is not to give a flavour to the word. Rather it is to use it in its ordinary sense.

12. In reaching its decision, the Tribunal takes into account the relevant documents and the written submissions. The standard of proof to be applied by the Tribunal in determining this matter is specified in s120(4) of the Act, namely, to the Tribunal's reasonable satisfaction.

13. The Tribunal accepts the evidence from Professor McCarthy that official records suggest that 119^th AGTC was not subject to enemy attack in the Darwin area of the Northern Territory. The Tribunal finds that, even by the applicant's own description of the attack that he claims to have witnessed in Darwin, he was some distance away, and was not exposed to direct personal danger. In applying the incurred danger test as set out in Thompson, the Tribunal finds that the applicant was not exposed, at risk of or in peril of harm or injury. The Tribunal concludes that the applicant did not incur danger from hostile forces of the enemy in the area in which he was located. Therefore, the Tribunal finds that the applicant did not render qualifying service as defined in s7A(1)(a)(i) of the Act and does not satisfy s85(4A)(b) of the Act. Consequently, the applicant is unable to satisfy s85(4A) and there is no necessity for the Tribunal to consider the factors in s85(4A)(a) or s85(4A)(c).

DECISION

14. The Tribunal affirms the decision under review.

I certify that the fourteen [14] preceding paragraphs are a true copy of the reasons for the decision of:

M.J. Carstairs, Member

(sgd) Catherine Thomas

Clerk

Date of hearing: Nil -- decision on papers

Date of decision: 15 January 2003