Opinion Number. 736

Subject

ESTATE DUTY: DEFENCE FORCES WHETHER ESTATE OF MEMBER OF THURSDAY ISLAND GARRISON IS EXEMPT FROM DUTY: EXEMPTION WHERE DEATH OCCURS ON ACTIVE SERVICE: WHETHER MEMBER WAS ON ACTIVE SERVICE AT TIME OF DEATH: TEST FOR BEING ON ACTIVE SERVICE

Key Legislation

ESTATE DUTY ASSESSMENT ACT 1914. s. 9

Date
Client
The Commissioner of Taxation

The Commissioner of Taxation has forwarded the following memorandum for advice:

Section 9 of the Estate Duty Assessment Act reads as follows:

Nothing in this Act shall apply to the estate of any person who during the present war or within one year after its termination dies on active service or as a result of injuries received or disease contracted on active service with the military or naval forces of the Commonwealth or any part of the King's Dominions.

The case has arisen of a doctor who was mobilised for duty at Thursday Island during the present war and died from blood poisoning, stated to have been assisted by the generally low state of his health due to over-work while carrying out his duties as an officer of the Army Medical Corps.

The matter was referred to the Secretary,Department of Defence, who stated that the doctor was not considered to be on active service, and the executors were informed that the exemption did not apply.

Messrs King & Gill, Proctors for the estate, claim reconsideration of the decision

and support their contention as follows:

It is undoubted that the late Dr Wassell was mobilised for duty at Thursday Island by the Defence authorities and was on duty at the date of his death.The cases seem to indicate that when a man is placed under military orders he is on active service and that when an order for mobilisation has been received and acted upon by a member of the Defence Force he is practically in expeditione or 'on actual military service': Gattward v.Knee [1902] Probate 99; In re Hiscock [1901] Probate 78.

The test of whether the late Dr Wassell was on active service is whether he had received orders from the Military authorities and whether he was acting under those orders. Major J.E. Robertson his Commanding Officer will be able to testify on both these matters. He was under orders to prepare the garrison and make hospital arrangement for troops under the Thursday Island Defence Scheme, and acted under those orders at a time when it was possible that the garrison would be called upon to resist an attack of German cruisers then in the vicinity. His case falls within the words of Sir F.H. Jeune: 'In case of invasion ... the step (i.e. a step under orders) might be merely that a man was taken from his home to man the walls or defences of his own native town. In the case of invasion, I should imagine, for instance, that a man living at Dover, and who was called upon to go into the fortifications at Dover and to assist in the defence, would have been within the meaning of the term in expeditions or "actual military service", although the movement made or step taken by him would be small in point both of time and locality or distance(1)

I should be glad to be favoured with your advice in the matter.

As 'active service' is not defined in the Estate Duty Assessment Act it must be given its ordinary meaning.

In Halsbury's Laws of England, Vol. 25, pp. 94 and 95 it is stated that a soldier is on active military service(2) when he is on an expedition, i.e. when a state of war exists and he has taken some step towards joining the field forces (In the Goods of Hiscock [1901] P.78; Gattward v. Knee [1902] P.99 and May v. May [1902] P. 103).

I assume that Dr Wassell was a member of the Army Medical Corps Reserve and was mobilised at the outbreak of war.

On mobilisation and joining the forces at Thursday Island, I think that Dr Wassell had actually joined the field forces, and was within the rule laid down in Halsbury's Laws of England.

I do not think that there can be any doubt that the garrison at Thursday Island was, under the circumstances which existed immediately after the outbreak of war, part of the field forces of the Commonwealth.

In my opinion, Dr Wassell was on active service at the time of his death.

[Vol. 14, p. 417]

(1)In the Goods of Hiscock [1901] P.78, at p.83.

(2)The term used, in footnote (r), on p.94 (1st edn), is 'actual military service'.