Smith and Repatriation Commission [2000] AATA 111 (16 February 2000)

Last Updated: 1 March 2000

DECISION AND REASONS FOR DECISION [2000] AATA 111

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/546

VETERANS' APPEALS DIVISION )

Re ALFRED HENRY SMITH

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date 16 February 2000

Place Sydney

Decision The decision under review is affirmed

(Sgd) A Horton

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

Member

CATCHWORDS

VETERANS' AFFAIRS - gold card eligibility - qualifying service - Army service during period of hostilities - qualifying service - whether incurred danger during Japanese submarine gun attack on Sydney 8 June 1942 or in Northern Territory -

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

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

Repatriation Commission v Thompson (1988) 44 FCR 20

Re Crawford and Repatriation Commission (1987) 14 ALD 341

Re Carlyon and Repatriation Commission (AAT 12957, 6 May 1998)

David Jenkins, Battle Surface! Japan's Submarine War Against Australia 1942-44, Milsons Point, Random House Australia, 1992.

REASONS FOR DECISION

Rear Admiral AR Horton AO, Member

1. This is an application for review of a decision dated 22 October 1998 (T7) 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 19 March 1999 (T2), that Alfred Henry Smith ("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 subsection 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 14 April 1999.

2. At the hearing before the Tribunal on 21 January 2000, the Applicant was self-represented. Mr J Marsh, Senior Advocate, appeared for 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 large scale map of the Sydney area and coastline (Exhibit A1) and a report and attachments by Mr B O'Keefe, Consultant Historian, dated 18 November 1999 (Exhibit R1).

3. Mr E L Burton, President of 1 Medium Regiment 55^th Composite AA Regimental Reunion Association gave oral evidence on behalf of the Applicant, and a submission was heard from the Applicant's son, Mr M Smith.

ISSUES BEFORE THE TRIBUNAL

4. 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."

5. 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 sub section 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

..."

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

..."

FACTS AND EVIDENCE

6. The Respondent concedes that the Applicant is a veteran as defined in section 5C of the Act. The Applicant was aged 78 at the time of the application for the Gold Card and hence meets the criteria for age as defined in subsection 85(4A)(a) of the Gold Card Act. The Respondent also concedes that the Applicant rendered service during the period of hostilities as defined in subsection 5B(1).

7. The Applicant enlisted in the Citizen Military Forces ("CMF") on 15 April 1940 (T3). He gave evidence that he was posted to 1 Medium Brigade for three months training at Newcastle in that year, and for a further three months in 1941. He was subsequently posted for full time service as a gunner to 1 Medium Regiment on 22 December 1941, his unit (2^nd Battery armed with six-inch howitzers) being deployed in a mobile role in the hinterland as part of the defence of Sydney. The Battery was 'home based' at Ingleburn.

8. The Applicant gave evidence that at about 2000 on 7 June 1942, the 2^nd Battery was ordered to proceed from Ingleburn to a firing position in the vicinity of the 9^th hole on the Lakes Golf Course at Mascot. On arrival, the ready use ammunition (25 rounds of 100lb high explosive shell in each gun tractor) was unloaded, and ranging shells were fused, but there was no call to fire. In cross examination, the Applicant stated that this (the fusing of shells) was not a normal procedure unless a firing was to be conducted. The Applicant further gave evidence that there was no briefing of personnel as to the reason for the callout, that he probably did not know until the following day that an enemy submarine had fired on Sydney, and that he heard nothing. He recalled that the Battery remained on standby in the cold and wet until the next morning when it returned to Ingleburn.

9. In his report prepared for the Respondent, Mr O'Keefe stated that the War Diary of 1 Medium Regiment was not particularly useful in this matter, and it did not contain entries for each day. It contains an Operational Plan dated 11 April 1942 which indicated various coastal defensive positions; the War Diary does not confirm that these positions were actually used. Given the range and trajectory of the howitzers, and the Applicant's statement that the 2^nd Battery 'roamed the hinterland', Mr O'Keefe sees no reason to doubt that the Battery was located at the Lakes Golf Course on 7/8 June 1942.

10. From authoritative Australian and Japanese sources, and as detailed in 'Battle Surface! Japan's Submarine War against Australia 1942-44' by David Jenkins, the submarine I-24 fired ten 140 millimetre shells over the bow whilst proceeding north west, from a position about 14.5 kilometres south-east of Macquarie Light in the early morning of 8 June 1942, the target being Sydney Harbour Bridge. With the exception of one shell which landed in Vaucluse, all shells landed in the Bellevue Hill/Rose Bay area, only one exploding. As noted, the Applicant was unaware of this action until later that day.

11. In about September 1942, 1 Medium Regiment moved to Queensland. Guns were calibrated by firing out to sea at Caloundra, the purpose in the view of the Applicant being to gain experience in engaging seaborne targets for the protection of shipping. In early 1943, the regiment moved to Toowoomba, to be disbanded in mid year and reformed and re-equipped as the 55^th Composite AA Regiment after personnel underwent anti-aircraft training in Victoria. The Applicant was posted to 136 Battery. As confirmed in evidence by Mr E L Burton, President of 1 Med Regiment 55^th Composite AA Regiment Reunion Association, who was also posted to the 55^th Composite AA Regiment at that time, the unit was stationed at Garbutt for a short period before deployment to the Northern Territory.

12. In November 1943, the Regiment transited through Mt Isa, to arrive at Long Strip (adjacent to Fenton Air Base) north of 14.5 degrees south latitude in the Northern Territory on about 20 November, as evidenced in a statement of operational service at T4, confirmed by Mr Burton and agreed by the Applicant. The Applicant stated that Fenton was the home of several squadrons of United States B-24 bombers, which were conducting operations against Borneo and other islands to the north. He could not recall any attacks by Japanese aircraft during his period of service. The Tribunal notes that the last Japanese attack on the Northern Territory took place on 12 November 1943, some eight days before the arrival of the main party of 55^th Composite AA Regiment.

13. In evidence, the Applicant stated that he was aware that a few Japanese reconnaissance flights occurred in the vicinity of Long Strip. The alert was sounded when Identification Friend or Foe ("IFF") failed to identify approaching aircraft. Unidentified aircraft were tracked, but no firings took place. On one occasion, he and other Australian servicemen were recalled from the movies at the adjacent US Headquarters, in response to an air alert. Whilst no enemy incident took place, one serviceman was killed in a motor accident resulting from the recall. The Applicant saw this as being 'part of the danger' that was faced at all times.

14. In his evidence, Mr Burton stated that 'about a fortnight after arrival at Long Strip', an alert was sounded because Japanese aircraft were trailing US aircraft returning to Fenton. 136 Battery was alerted for open sight firing, but nothing was observed and no incidents occurred. On another occasion in March 1945, a Japanese reconnaissance aircraft was detected over the Stuart Highway and turned away, Mr Burton's belief being that this reconnaissance was being undertaken in preparation for an attack. No incidents occurred. Mr Burton also cited an accident near Noosa involving the Applicant being placed in danger from high explosives, but agreed this was not a hostile act by enemy forces, albeit that it demonstrated the danger faced by servicemen.

15. The Applicant continued to serve in the operational area of the Northern Territory until August 1945 (T4) when he returned to NSW for discharge in December 1945.

ANALYSIS OF EVIDENCE AND FINDINGS

16. In considering whether the Applicant meets the criteria for qualifying service as defined in section 7A(1)(a)(i) of the Act, the Tribunal considers both the events of 7/8 June 1942, when the Japanese submarine fired shells into Sydney, and the subsequent service of the Applicant in the Northern Territory.

17. Section 7A(1)(a)(i) requires that the Applicant incur '...danger from hostile forces of the enemy...'. This term has been given an authoritative and objective definition by the Full Federal Court in Repatriation Commission v Thompson (1988) 44 FCR 20, in which Davies, Wilcox and Foster JJ stated at pp23-24:

"...

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 mere liability to danger, that is to say, there is mere risk of danger. Danger is not incurred unless the serviceman is exposed, at risk 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 a rule of de minimus applies. But to say that is not to give a flavour to the word. Rather it is to use it in its ordinary sense.

..."

18. In a statement, Mr Mark Smith, son of the Applicant, addressed the matter of the accuracy of submarine gunnery, particularly in the extant weather conditions of 8 June 1942, submitting that the Applicant had indeed incurred danger. He drew the attention of the Tribunal to the work by David Jenkins previously referred to (R1) wherein the historian noted that I-24 was operating in a heavy swell, the inadequacies of submarine gunnery, that the shells were fired 'from an unstable platform', and that a Japanese submarine captain considered it useless to aim for a small target (Sydney Harbour Bridge). He submitted that the angular displacement between the main group of shells landing in the Bellevue Hill/Rose Bay area and the single shell landing at Vaucluse (as shown on A1) was evidence of the inaccuracies of the submarine gunnery, and such displacement could equally well have been in the opposite direction and in the vicinity of Mascot, particularly had the submarine rolled at the moment of firing.

19. The Respondent submitted that notwithstanding that the Applicant could have encountered a dangerous situation, the 'incurred danger' test is quite specific. The Respondent accepted that the 2^nd Battery of 1 Medium Regiment had been located on the Lakes Golf Course on the night of the Japanese submarine gunnery attack, although whether this was in response to an alert of a Japanese threat was unclear. In drawing on the evidence of Mr O'Keefe, the Respondent noted that the location of the Battery at the Lakes Golf Club was some eight kilometres from the area where the shells landed, that there is no suggestion the shells passed over the Battery position, that nothing was heard at the Battery, and that the issue of the likelihood of the submarine hitting the selected target of the Harbour Bridge was irrelevant. The Respondent submitted that the Applicant was not endangered.

20. The circumstances in Re Carylon and Repatriation Commission (AAT 12957, 6 May 1998) have some relevance to this matter. In that instance, the Tribunal accepted that a bomb dropped on Townsville in July 1942 and, probably intended for the harbour, impacted elsewhere and no more than two kilometres from the Applicant. The Applicant submitted that the bomb could just as easily have landed in his position. Noting that case law has well established that for a veteran to have incurred danger he need not have been subject to actual physical or mental injury, that Tribunal was satisfied that the veteran had incurred danger.

21. As previously stated, the Applicant in this matter has submitted that the shells in this instance, could just as easily have landed in his vicinity. The Tribunal is not of the opinion that this matter is "on all fours" with Re Carlyon (supra), the circumstances being different. The Applicant was some eight kilometres from the area where the shells landed, and the evidence is clear that the submarine was firing specifically at a target displaced well away from the location of the Battery. Further, the Tribunal adduces that the nearest point of the shell trajectory to the Applicant's position was in the order of seven kilometres.

22. The Tribunal is also mindful of the decision of the Tribunal in Re Crawford v Repatriation Commission (1987) 14 ALD 341. That matter related to a soldier stationed on a wharf in the vicinity of the torpedoing of HMAS KUTTABUL in Sydney Harbour on 31 May 1942. That Tribunal stated at p 347:

"...It is again not sufficient for an applicant to believe, even strongly, that he or she was in danger if in reality there was in fact no danger. That is, the test of "danger" must entail an analysis of the actual military situation quite independent of an applicant's own view or perception of it at the relevant time. There must be established an actual risk of physical or mental harm.

..."

23. In this matter, there is no evidence that the Applicant was at risk or in peril of injury, and accordingly, the Tribunal concludes to its reasonable satisfaction that the Applicant did not incur danger on this occasion.

24. In respect of the Applicant's service in the Northern Territory, the Respondent submitted that Applicant's unit arrived in the area on 20 November 1943, eight days after the last Japanese attack, and whilst alerts were sounded on occasions, the only subsequent flights over the Northern Territory had been by unarmed reconnaissance aircraft. Again, whilst the Applicant may have perceived danger, there is no evidence to suggest that he incurred danger in an objective sense. The Tribunal is in agreement with this submission, concluding to its reasonable satisfaction that the Applicant did not incur danger as defined.

25. During the course of the hearing, in correspondence from the Applicant available to the Tribunal and in final summation of his position, the Applicant stressed many factors in regard to the imminent threat in the early stages of the war to Australia (and the allies) and that all Australian forces were 'in dire peril and exposed to danger'. He considered the emphasis on meeting the specific criteria of "incurring danger' for those servicemen who volunteered but did not serve overseas gave no recognition for years of service in defence of this country, and that the Act of 1986, as subsequently judicially interpreted in various cases amended eligibility criteria to the detriment of many servicemen. The Respondent addressed the issue of the 1986 Act in his final summary, noting that the legislation took up the same provisions as in the previous act, and that the criteria for eligibility for the Gold Card was tailored accordingly.

26. The Respondent acknowledged the service of the Applicant, as does the Tribunal. In doing so, the Tribunal also recognises the strong views of the Applicant that the legislation in regard to qualifying service for the Gold Card, as interpreted by the Court and implemented by the Respondent, discriminates against some personnel who volunteered for overseas service but remained in Australia. Notwithstanding, this review is conducted against the extant legislation, and hence on the basis of the evidence before it the Tribunal cannot be reasonably satisfied that the Applicant rendered qualifying service for the purpose of section 7A of the Act.

27. The decision under review is therefore affirmed.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of

Rear Admiral A R Horton AO, Member

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

Assistant

Dates of Hearing 21 January 2000

Date of Decision 16 February 2000

Solicitor for Applicant Self-represented

Advocate for the Respondent Mr J Marsh