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Gutheridge and Repatriation Commission [1989] AATA 528 (23 August 1989)

Last Updated: 8 April 2008

ADMINISTRATIVE APPEALS TRIBUNAL

Veterans' Affairs - service pension - whether applicant rendered qualifying service

Veterans' Entitlements Act 1986 ss 5(1) & (6), 36, 38

DECISION AND REASONS

Re: CHARLES LOUIS GUTHERIDGE

And: REPATRIATION COMMISSION
No. V89/201
AAT Decision No 5324

Deputy President I. R. Thompson

Date: 23 August 1989

ADMINISTRATIVE APPEALS TRIBUNAL )
) No. V89/201 VETERANS' APPEALS DIVISION )

Re: CHARLES LOUIS GUTHERIDGE

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal : Deputy President I. R. Thompson
Date : 23 August 1989
Place : Melbourne
Decision : The decision under review is affirmed.

(Sgd I. R. Thompson)

Deputy President

ADMINISTRATIVE APPEALS TRIBUNAL )
) No. V89/201 VETERANS' APPEALS DIVISION )

Re: CHARLES LOUIS GUTHERIDGE

Applicant

And: REPATRIATION COMMISSION

Respondent

REASONS FOR DECISION

23 August 1989 Deputy President I. R. Thompson

1. The decision under review is a decision of the Repatriation Commission rejecting a claim by the applicant for a service pension to be paid to him under the provisions of the Veterans' Entitlements Act 1986 ("the Act"). The applicant has died since he made his application to the Tribunal. His widow has been substituted for him for the purpose of continuing with these proceedings. She has written to the Tribunal stating that she has no further evidence to present other than that contained in the documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") and requesting that the matter be heard in her absence. At the hearing the respondent was represented by Mr M. Molloy, a departmental officer. In addition to the T documents the Tribunal received documentary evidence relating to the conditions for the award of the Naval General Service Medal.
2. Provision for the granting of service pensions is made in Part III of the Act. Section 38 provides that a veteran who has rendered qualifying service and has attained, in the case of a male veteran, the age of 60 years is eligible to receive a service pension. The meaning of qualifying service is stated in section 36. The expression "veteran" is defined in section 5(1) of the Act.
3. The T documents establish that the applicant served in the Royal Australian Naval Reserve from 5 June 1945 to 9 July 1947. Until after 29 October 1945 he served at a shore station in Victoria. He did not leave Australia until April 1946 when he became a member of the crew of the HMAS Manoora, a troop transport. The applicant sailed in her from Australia to New Guinea and back and also from Australia to Japan and back via Indonesia and the Indian Ocean. He stated in correspondence with the respondent that the ship had been exposed to danger from mines during those voyages. Mr Molloy did not dispute those assertions.
4. There is no doubt that the applicant was a veteran as defined in section 5(1) of the Act. He rendered eligible war service as that expression is defined in section 7 of the Act. It is not in dispute that he attained the age of 60 in December 1987 more than eight months before he submitted his claim for a service pension. What is in issue is whether he rendered qualifying service.
5. There is no doubt that the applicant did not render the service referred to in paragraph (b) or (c) of section 36, as he was a member of the Royal Australian Naval Reserve and so not a member of the Defence Force established by a Commonwealth country or an allied veteran. He was not employed by the Commonwealth on a special mission outside Australia and so did not render the service referred to in paragraph (d). He was not an eligible civilian as defined in section 5(6), was not involved in operations on and after 31 July 1962, and was not an Australian mariner as defined in section 35(1) or an allied mariner, so that none of paragraphs (e), (f), (g) and (h) applied to him.

6. That leaves only paragraph (a) of section 36 to be considered. The applicant did not render service outside Australia after 1947, so that neither of sub-paragraphs (iii) and (iv) of that paragraph is applicable. Sub-paragraphs (i) and (ii) of paragraph (a) are as follows:-

"36. For the purposes of this Part, 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 specified in paragraph (a) or (b) of the definition of 'period of hostilities' in sub-section 35(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;

(ii) rendered service after 29 October 1945 in respect of which the person has been awarded, or has become eligible to be awarded, the Naval General Service Medal or the Army General Service Medal (Army and Royal Air Force) with the Minesweeping 1945-51 Clasp, the Bomb-Mine Clearance 1945-53 Clasp, the Bomb and Mine Clearance 1945-49 Clasp or the Bomb and Mine Clearance 1945-56 Clasp;"

7. So far as is relevant in these proceedings, the expression "period of hostilities" is defined in section 35(1) of the Act as meaning "World War 2 from its commencement to and including 29 October 1945". Although the applicant was serving in the Royal Australian Naval Reserve before 29 October 1945, before that date, as already noted, he served entirely at a shore station in Victoria and so did not serve in operations against the enemy or in circumstances where he incurred danger from hostile forces of the enemy. Sub-paragraph (i) of paragraph (a) is, therefore, not applicable in his case. Only if he met the requirements of paragraph (ii) of paragraph (a) was he eligible to receive a service pension.
8. The Naval General Service Medal has never been awarded without a bar or clasp. For the period of the applicant's naval service the medal was awarded only with the South-East Asia 1945-56 Clasp, the Minesweeping 1945-51 Clasp, the Palestine 1945-48 Clasp, the Bomb and Mine Clearance 1945-53 Clasp and the Bomb and Mine Clearance 1945-56 Clasp. Service qualifying a person for the Minesweeping Clasp had to include minesweeping; that qualifying for the Bomb and Mine Clearance Clasps had to include work clearing bombs and mines ashore. To qualify for the South-East Asia Clasp a person's naval service had to include service as a member of the crew of the frigate HMAS Macquarie between 4 July 1946 and 30 August 1946.
9. Undoubtedly the applicant rendered service after 29 October 1945 but he was not awarded, and did not become eligible to be awarded the Naval General Service Medal with any of the Clasps referred in sub-paragraph (ii). The ship on which he sailed may well have been exposed to danger from mines but it was not engaged in minesweeping; nor did the applicant undertake work of clearing bombs or mines. He did not serve in HMAS Macquarie or in Palestine. He, therefore, did not meet the requirements of sub-paragraph (ii) of paragraph (a). That being so, he did not render qualifying service. As he did not do so, he did not meet that criterion of eligibility to receive a service pension set by section 38.
10. Accordingly the decision under review is affirmed.