Johnson and Repatriation Commission [2000] AATA 129 (22 February 2000)

Last Updated: 1 March 2000

DECISION AND REASONS FOR DECISION [2000] AATA 129

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1813

GENERAL ADMINISTRATIVE DIVISION )

Re HAROLD JOSEPH JOHNSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date 22 February 2000

Place Sydney

Decision The decision is affirmed

(Sgd) A R Horton AO

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

Member

CATCHWORDS

VETERANS' AFFAIRS - gold card eligibility - qualifying service - army service - service during period of hostilities - operations against enemy - whether incurred danger from hostile forces

Veterans' Entitlements Act 1986 - s 5B(1), 5C(1), 7A, 85(4A), 120(4)

Veterans' Entitlements Amendment (Gold Card) Act 1998 - s 85(4A)

Repatriation Commission v Thompson (1988) 44 FCR 20

REASONS FOR DECISION

Rear Admiral AR Horton Member

1. This is an application for review of a decision made on 30 October 1998 by a Delegate of the Repatriation Commission ("the Respondent"), which was affirmed on 2 December 1998 under section 57 of the Veterans' Entitlements Act 1986 ("the Act"), that Harold Joseph Johnson ("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 section 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 16 December 1998.

2. The Applicant represented himself at a telephone hearing before the Tribunal on 12 November 1999, and following an adjournment requested by the Respondent to obtain further evidence, again by telephone on 4 February 2000. 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:

Exhibit A1 Letter to the Department of Veterans' Affairs by the Applicant dated 8 December 1999

Exhibit R1 Report and attachments by Mr B G O'Keefe, Consultant Historian, dated 1 December 1999

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"

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

"(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 75 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.

7. Prior to enlistment in the Australian Army in December 1941, the Applicant was employed as a farm hand. The Applicant confirmed he served 1118 days in Australia before completing his service in the Citizen Military Forces and the Australian Imperial Forces on 5 May 1945 (T4). Whilst he volunteered for overseas service, he did not serve outside the mainland of Australia; all his service took place in New South Wales and Queensland.

8. In evidence to the Tribunal, the Applicant considered he was under threat from attack launched from Japanese submarines, which were operating at various times on the eastern seaboard of Australia. He referred to east coast towns being shelled at times, and specifically to an attack on Coffs Harbour. He gave evidence that his unit, 12 Light Horse Regiment, arrived at Coffs Harbour in March or April 1942, its prime role being to guard the airfield. He stated that in May or June 1942, a Japanese submarine fired shells at the airfield, over the top of the gun emplacement on the beach in which he was manning a bren gun. He heard the shells land and assumed that United States aircraft at the airfield were the possible targets of the attack.

9. The Applicant gave further evidence of known enemy activity during his service at Coffs Harbour; that signals personnel in his unit identified a Japanese spy in the area, leading to his capture, and that other personnel in the Regiment observed periscopes off shore.

10. The Applicant transferred to Queensland with 12 Armoured Car Regiment (the successor to 12 Light Horse Regiment) in late 1942 where he undertook reconnaissance work as a driver/mechanic, before being transferred to 4 Australian Ordnance Field Park in January 1944 (T3). He gave evidence that he undertook occasional train trips from Brisbane to Townsville as part of his role in the Unit, being responsible for the safety of vehicles being transhipped.

11. The Applicant stated that he incurred danger while undertaking this convoy work on vehicle trains proceeding north to Townsville when such convoys and their personnel "were always under threat from Japanese submarines on the east coast from Newcastle up", and whilst undertaking patrols in Queensland with various army units (T7). He specifically referred to the shelling of a train in which he was travelling in May 1944. He believed this attack was carried out by an enemy submarine, and that "a couple of vehicles were damaged". The train did not stop and to his knowledge no one was injured.

12. Neither the attack on Coffs Harbour nor the attack on a train in which he was travelling had been raised at the primary hearing or the review under section 57, and the Respondent sought an adjournment in order to obtain supporting evidence. Mr B O'Keefe, Consultant Historian, provided a report with attachments (Exhibit R1).

13. The report by Mr O'Keefe stated that War Diaries for the relevant periods for 12 Light Horse Regiment and 4 Ordnance Vehicle Park do not exist. However by research of various official war histories, other historical publications and archival material, Mr O'Keefe drew the conclusion that there is no evidence to support either the Coffs Harbour or Queensland shellings.

14. In the case of the former, Mr O'Keefe drew on a publication entitled Coffs Harbour - On Full War Alert 1942 - 1943 by Edgar J. Ovens. The book makes no mention of any incident of the kind stated by the Applicant, although a section on the Royal Australian Air Force at Coffs Harbour refers to two Japanese submarines operating in the waters east of Coffs Harbour in May-June 1943. The book also containS reminiscences by an A B ('Sandy') Betts who served as a member of 12 Light Horse Regiment. The latter confirms the location and role of the Regiment, but again makes no mention of any incident as regards the airfield or submarine activities. In cross examination, the Applicant considered that Mr Betts, being attached to the regimental headquarters, would not necessarily know of incidents relating to the airfield. In the view of the Applicant, the "shelling was not made public" and such matters were kept secret.

15. In regard to the incident in north Queensland, when the Applicant states that the train on which he was escorting vehicles in May 1944 was shelled, the report by Mr O'Keefe fails to produce any evidence that such an event occurred. The report also notes, from historical sources which the Tribunal considers accurate, that Japanese submarines were withdrawn from the east coast of Australia in June 1943, some 11 months prior to the reported incident. In cross examination, the Applicant agreed that he could not refer to any record of the incident, but believed it had happened as he described.

16. In summary, the Applicant stated that these were the only two incidents relating to specific enemy activities in which he was placed in danger, but as a serviceman stationed along the east coast, he was in danger at all times.

ANALYSIS OF EVIDENCE AND FINDINGS

17. The issue in this matter is whether the Applicant meets the eligibility criteria for the rendering of qualifying service as defined in section 7A(1)(a)(i) of the Act. The standard of proof is that of reasonable satisfaction pursuant to subsection 120(4) of the Act.

18. In regard to whether the Applicant 'incurred danger', the Tribunal draws on the decision of the Full Federal Court in Repatriation Commission v Thompson (1988) 44 FCR 20 wherein Davies, Wilcox and Foster JJ stated at pp 23-24:

"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.

..."

19. In this matter, no evidence has been adduced that supports the Applicant's contention that Japanese submarines fired shells over his position adjacent to the airfield at Coffs Harbour, nor indeed that any such event occurred at any time in the vicinity of that town. It may be that the some shells were fired inadvertently by Australian forces, but again there is no record that any such incident occurred. Even if there were, that would not meet the criteria of 'incurred danger from hostile forces ...". In the absence of some corroborating evidence, the Tribunal is unable, to its reasonable satisfaction, to reach a conclusion that the Applicant 'incurred danger'.

20. In regard to the shelling of a vehicle train in North Queensland, there is no evidence to support the claim that the incident actually took place. Again, in the absence of any supporting evidence, the Tribunal is unable, to its reasonable satisfaction, to reach the conclusion that the Applicant 'incurred danger'. The Applicant stated to the Tribunal at the resumed hearing that he believed the incident happened, but in the fullness of time since 1944, it may be that he was mistaken.

21. In the totality of the Applicant's service, there is no other evidence that might support the claim that he 'incurred danger' from hostile forces as defined in Thompson (supra). Certainly the Applicant perceived he was in danger during his service and believed he was exposed to danger at various times. He saw the threat of enemy submarine attack as very real. That is insufficient however, to meet the criteria of subsection 7A(1)(a)(i) of the Act.

22. This application for review by the Tribunal must be considered against the relevant legislation as previously outlined. That specifically requires the veteran to have rendered service "...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...". Notwithstanding the fine service to his country during his three and a half years of Army service, the Applicant does not meet that criteria, and hence is not eligible for the Gold Card.

23. The decision under review is therefore affirmed.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Date/s of Hearing 12 November 1999 and 4 February 2000

Date of Decision 22 February 2000

Representative for Applicant Self Represented

Representative for the Respondent Mr J Marsh, Senior Advocate