Dawson and Repatriation Commission [2000] AATA 31 (24 January 2000)

Last Updated: 25 January 2000

DECISION AND REASONS FOR DECISION [2000] AATA 31

ADMINISTRATIVE APPEALS TRIBUNAL )

) N1999/770

VETERANS' APPEALS DIVISION )

Re KEITH LLOYD DAWSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal RADM A R HORTON AO

Date 24 January 2000

Place Sydney

Decision The Tribunal affirms the decision under review

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

A R HORTON

Member

CATCHWORDS

VETERANS' AFFAIRS - gold card eligibility - service in Australian Army in NorthernTerritory from November 1943 - service in Timor from September 1945 - qualifying service - whether incurred danger from hostile forces

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

Willcocks v Repatriation Commission (1992) 39 FCR 49

Re Tumbers and Repatriation Commission (AAT 11003, 11 June 1996)

REASONS FOR DECISION

RADM A R HORTON AO

1. This is an application for review of a decision made on 25 November 1998 (T8) 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 30 March 1999 (T2), that Keith Lloyd Dawson ("the Applicant") did not render qualifying service for the purposes of s 7A of the Act, and hence is not eligible for a Gold Card under s 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 24 May 1999.

2. At the hearing before the Tribunal on 26 November 1999, the Applicant was self represented. Mr R Wallis appeared as advocate 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 took the following into evidence:

Exhibit A1 - Letter from Mr L Murray to Mr J Farren dated 18 November 1999

Exhibit A2 - Letter from Mr K Dawson to the Gold Card Project Officer, Department of Veterans' Affairs dated 21 December 1998

Exhibit A3 - Information papers prepared by Mr K L Dawson re Northern Territory (NT) and Timor operations dated July 1998

Exhibit A4 - Extract from a letter from Naraha Company (Robert and Misako Piper) to the Department of Veterans' Affairs dated 26 October 1998

Exhibit A5 - Unidentified and undated report on Japanese air arid No.64 over NT

Exhibit A6 - Letter from Mr L Murray to Mr K L Dawson dated 7 April 1999

Exhibit A7 - Letter from Mr L Murray to Mr K Dawson dated 25 May 1999

Exhibit A8 - Letter from Mr K L Dawson with attachments dated 9 July 1999

Exhibit R1 - Report and attachments by Mr B G O'Keefe, Consulting Historian dated 16 November 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 s 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

(ii) ..."

5. 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

..."

6. The Respondent concedes that the Applicant is a veteran as defined in section 5C of the Act. The Applicant meets the age criteria for the Gold Card as defined in section 85(4A)(a), being aged 76 at the time of the application. The Respondent also concedes that the Applicant rendered service during the period of hostilities as defined in subsection 5B(1). The relevant standard of proof is that of reasonable satisfaction pursuant to subsection 120(4) of the Act.

7. The issue in this matter is to determine whether the Applicant incurred danger during his period of service either in the Northern Territory or in transit to, or during service in, Timor.

FACTS AND ANALYSIS OF EVIDENCE

8. The Applicant served with the Citizen Military Forces from 5 November 1941 to 31 July 1942 and the 2^nd Australian Imperial Force from 1 August 1942 to 13 June 1946. He was initially posted to the 1^st Medium Regiment, from which was formed the 55^th Australian Composite AA Regiment, wherein he served variously as a clerk and as a technical storeman. In November 1943, his unit was transferred from Townsville to the Northern Territory, the Applicant's Service and Casualty Form (B 103 - 1) (T3) recording his arrival at 14 Line of Communication Sub Area (north of 14 degrees 30 minutes South) as 11 November 1943.

9. The Applicant gave evidence that he formed part of an Advance Party of the 55^th AA Regiment, under the command of the Quartermaster, Captain L Murray, the other members being Lieutenant J Farren and Gunner R Allen (since deceased). The role of the Advance Party, as described by the Applicant, was to make logistic and administrative arrangements for the support of the regiment on its arrival in the Northern Territory. The Advance Party travelled with the first rail convoy, under the command of Captain Murray, departing Townsville at 0715 on 8 November 1943 for Mt Isa (Administrative Instruction No. 5 as contained in the Unit War Diary at Exhibit R1), with three other rail convoys to follow.

10. The Unit War Diary contains no other direct evidence as to the subsequent movements of the Advance Party, other than to note that Captain Murray and Lieutenant Farren were in the Northern Territory on 14 November when they reported to the Unit Commanding Officer (Lieutenant Colonel Baglin), he having flown from Townsville for orders. However, the Tribunal notes that a facsimile from the Soldiers Career Management Agency ("SCMA") dated 4 November 1998 (T6), in response to a request for advice from the Respondent, states that "according to our records, Mr Dawson served in the prescribed operational area of the NT from 14 November 1943 ...".

11. The Applicant gave evidence that the Advance Party (and the first convoy) arrived in Mt Isa late on 8 November or early the following morning. The Advance party then departed for the Northern Territory "after a few hours" by Fargo 15 cwt utility, carrying camping gear and travelling independently via Elliott, Mataranka and Katherine (Exhibit A1), to arrive at Fenton late on 11 November. Unlike the subsequent regimental convoys, the Advance Party was not required to overnight at certain points, but could make best speed. In cross examination, the Applicant stated that the load of four personnel and gear had no effect on the performance of the vehicle, although he doubted that Captain Murray allowed the vehicle to exceed the speed limit.

12. In his report at Exhibit R1, Mr O'Keefe explored, as requested by the Respondent, issues relating to the time and date of arrival of the Advance Party north of latitude 14 degrees 30 minutes South. He addressed the claim by the Applicant at T10 that on arrival in the Northern Territory, the Advance Party was attached for rations to the 54th Composite A A Regiment. His research indicated that the advance component of that unit did not arrive in the area until 16 November, and hence could only have supported the Advance Party after that date. There is reference in the attachments to the report by Mr O'Keefe to 101 Aust AA Regiment being directed to support the 55^th on arrival, and the Applicant stated in evidence that he could have been wrong in identifying the relevant unit. Suffice that Mr O'Keefe, on the evidence available to him and taking account of the recorded meeting between the OIC Advance Party and the Unit CO on 14 November, postulated that it pointed "to a later rather than earlier date" for the arrival of the Applicant in the area north of 14 degrees 30 minutes South.

13. The evidence by Mr Dawson, supported by the OIC of the Advance Party (Mr Murray at Exhibit A1) as to his arrival date in the operational sub area of the Northern Territory, has not been overturned by the Respondent who conceded in final submission that the Applicant could have been where he claimed on 11 November and that after 50 years, the Applicant might benefit from any uncertainties in the recall of dates and events. The Tribunal notes the conflict of dates between A F B103 - 1 (11 November 1943) and the advice given by SCMA (14 November 1943), but prefers the former as contemporaneous evidence, and finds to its reasonable satisfaction that the Applicant arrived in the relevant area of the Northern Territory, as a member of the Advance Party of the 55^th AA Regiment, on 11 November 1943.

14. From the papers, there was some confusion as to the initial location of the Advance party. The Applicant's statement at T9 on 28 November 1998 indicated that he could have been at either Long Strip (adjacent to Fenton Air Base) or Pell Airstrip near the Adelaide River. In a response to a standard questionnaire by the Department of Veterans' Affairs (T10) on 9 December 1998, he stated that he was stationed at Pell Airstrip near the Adelaide River. In Exhibit A2 dated 21 December 1998, the Applicant stated he was at Fenton. In his report at Exhibit R1, Mr O'Keefe suggests that as the Regiment was to be stationed at Long, it is unlikely that the Applicant would have deployed to Pell. In evidence before the Tribunal, the Applicant stated that the Advance party had deployed initially to Fenton, and this is confirmed at Exhibits A1 and A6 by Mr Murray. Hence the Tribunal accepts that this was the location of the Advance party in the early morning of 12 November 1943, when the last Japanese bombing raid took place.

15. The Applicant gave evidence that on arrival at Fenton after dusk on 11 November 1943, the Advance Party was fed and then struck tent accommodation. During the night a "Red Alert" was sounded as a warning of a pending air raid, and the Applicant made his way to the vicinity of the slit trench area. He stated that he "stood around ready to go in the slit trench" but there were no incidents. He did not recall any bombs being dropped, but heard aircraft and "guessed he would have seen them". In cross examination, he could not confirm that he heard Japanese aircraft. At Exhibits A1 and A6, Mr Murray confirms that the Advance party was instructed to take cover in slit trenches following a Red Alert and went on to state at Exhibit A7 that "we were in a war zone. A raid was in progress, we were given clear instructions. A dangerous situation existed. This was not a question of our imagination, it was a fact and we obeyed a command by a senior authority." In his written statements, Mr Murray makes no mention of any other incidents, enemy aircraft or bombing.

16. Fenton air field was the home of several squadrons of U S Air Force B -24 Liberator bombers, and it had been the target of a number of enemy bombing raids, the last recorded attack being 18 September 1943 (Raid Number 63) (Exhibit A8). In his report at Exhibit R1, Mr O'Keefe attributes the most comprehensive report on the raid on 12 November 1943 to the contemporary 'Intelligence Officer's Composite Report on Enemy Raid No 64...' which reported that bombs were dropped on the Parap area of Darwin, the Adelaide River area and the Batchelor area. He states that the Fenton-Long area was not bombed at all and was in fact well away from any area where bombs were dropped. An undated attachment at Exhibit A8 detailing Japanese air raids on the Northern Territory in 1942-1943 confirms these target areas, as does the research paper from the Naraha Company provided by the Applicant at Exhibit A4. However the latter notes that "at one stage, bombers are observed and recorded in the Fenton area some 50 kilometres south of the Adelaide River, and this could be supported in the unidentified and undated report on Raid No. 64 tabled at Exhibit A5, which indicates that some Japanese aircraft may have passed over or near Fenton on the course in to, and out from, their targets.

17. Before addressing the matter as to whether the Applicant therefore "incurred danger" at Fenton in this environment in terms of the criteria for qualifying service pursuant to section 7A of the Act, it is necessary to consider the relevance of his further service. The Applicant gave evidence that after the arrival of the Regiment in the Northern Territory, he was transferred to the Quartermaster Section in Regimental Headquarters at Long Strip, where he undertook pay duties. He sometimes travelled on duty to the Adelaide River and Darwin. He gave no evidence of any incidents relevant to enemy activity during that period.

18. On 2 September 1945, the Applicant embarked in HMAS PARKES, which proceeded for Timor, in company with other ships and towing barges, arriving off Koepang on 10 September 1945. There was no evidence of any incidents during the passage. On arrival off Koepang, PARKES was met by Japanese craft which, after embarking AIF personnel, led the way into the harbour. The Applicant assumed this was done to ensure safe passage through minefields, but in cross examination, stated that no incidents occurred and there was no resistance. At this time the Japanese had not formally surrendered in Timor, and this took place after the arrival of the Applicant. Again, there were no incidents of which the Applicant was aware. There was also no evidence of any incidents during the ship's passage to Timor.

19. Until his return to Australia in March 1946, the Applicant was detached to a Timor Force unit as part of Headquarters Northern Territory Force, in charge of the Timor pay office. He carried a loaded revolver as he delivered pay to various units, a standard precaution for such duties. He gave no evidence of any incidents of relevance to this review during this period of service.

20. In considering the question as to whether the Applicant "incurred danger" as defined in section 7A(1)(a)(i), the Tribunal considers both the events of 12 November 1943 when the Applicant was stationed at Fenton during the Japanese Raid No.64, and the passage of HMAS PARKES, and the arrival of that vessel at Koepang.

21. The term "incurred danger", has been given an authoritative, and objective, definition by the Full Federal Court in Repatriation Commission v Thompson (1988) 44 FCR 20. At pp 23-24, Davies, Wilcox and Foster JJ stated:

"...

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, 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 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..."

22. The Applicant submitted that he met the "incurred danger" test whilst stationed at Fenton, in that he was directed to take cover in the slit trenches during an enemy bombing raid, and whilst no bombs fell at Fenton, he submitted that evidence points to the fact that enemy bombers passed overhead, exposing him and his fellow soldiers to danger. In the case of his deployment to Koepang, the ship in which he was embarked was exposed to danger from enemy minefields, this being the reason that Japanese craft provided a safe escort into the harbour.

23. In response, the Respondent submitted that the Applicant incurred no danger on the morning of 12 November 1943, relying on Exhibit A2 wherein the Applicant conceded that no attack took place on Fenton and Exhibit A5 which confirms that attacks were high level and no attacks took place at Fenton. The Respondent relies on Thompson (supra), and submitted that observation of aircraft in an area, should that have been the case, is insufficient to mean that the Applicant incurred danger.

24. On the evidence before the Tribunal, the situation at Fenton in the early morning of 12 November 1943 was such that whilst an alert was sounded, and the Applicant repaired to the slit trenches, no enemy activity took place that placed him in danger. He, like the other members of the Advance Party, may have perceived that a threat of danger existed, but notwithstanding any apprehension, no incident took place; he did not encounter danger, nor was he in danger or endangered.

25. With regard to the later occasion of the passage in HMAS PARKES to Koepang, the Respondent submitted that presence of minefields off that port was not contested. The Tribunal notes that no evidence was available to confirm the presence of a minefield. In final submission, the Respondent accepted that the ship was probably guided through a minefield, and stated that " (it would be) fair to say you would incur danger travelling through a live (mine) field". The Respondent further submitted that even if this danger was more than "de minimus" the test of "incurring danger through hostile forces of the enemy" must also be applied. In this matter, the Applicant was not engaged in operations against the enemy who had informally accepted surrender even if the formal surrender had not yet taken place, and who provided safe escort of the Australian ships into Koepang. The Respondent further submitted that no incidents of relevance occurred during the stationing of the Applicant in Timor.

26. In Willcocks v Repatriation Commission (1992) 39 FCR 49 at p55, Cooper J stated in regard to the interpretation of qualifying service vide section 7A(1)(a)(i) of the Act:

"...

The phrase ' naval, military or aerial operations against the enemy' is to be read as a whole. It includes two elements. The first is that there must be some operation which is naval, military or aerial in character. The second is that the requisite operation must be against the enemy. Both elements must be satisfied for the services to constitute 'qualifying service' within the meaning of section 36(1) of the VE Act.

..."

27. At p 56, Cooper J went on to say:

"...

Accordingly, in my view the word 'against' in the phrase 'military operations against the enemy' is used in the sense of 'in hostility or active opposition to'. This is the common meaning and general usage of the word 'against' in such a context. The section requires service, inter alia, in military operations against the enemy, in the sense of operations in hostility or opposition to the enemy.

..."

28. In this matter, the Tribunal accords with the view of the Respondent. Notwithstanding that any minefield would have been laid with hostile intent, at the time of the arrival of HMAS PARKES off Koepang, the Japanese forces had signalled their surrender and provided an escort to ensure safe passage into the harbour. The fact that AIF troops were transferred into the Japanese craft must be seen as a normal military precaution. No incidents took place and the Japanese offered no resistance as far as the Applicant is aware.

29. In considering both these issues against the relevant standard of proof, that is of reasonable satisfaction, the Tribunal concludes that the Applicant did not incur danger and hence does not meet the criteria for eligibility for a Gold Card.

30. It remains to address a matter raised on a number of occasions during the hearing by the Applicant, who submitted that he had at all relevant times in the Northern Territory been in the company of the Quartermaster, Captain L Murray, who he believed to be in receipt of the Gold Card. On this basis the Applicant believed he too should be eligible for the Gold Card. The Respondent spoke to this issue, indicating that Mr Murray had at an earlier time been granted a service pension, and thus qualifying service was conceded, which in turn led to eligibility for the Gold Card.

31. The Tribunal noted the strong views of the Applicant in this matter, but stated during the hearing that the review of the decision in respect of the Applicant would be considered on the evidence and the circumstances relating to the Applicant's service. This has been done. The Tribunal is mindful of the need for consistency of decision, and notes comment by the Tribunal in Re Tumbers and Repatriation Commission (AAT 11003, 11 June 1996) wherein that Tribunal commented as follows on the Applicant's view that other persons' serving with him had qualified for service pension:

"... Mr Tumbers said the Tribunal should be consistent in its approach and should grant him service pension as were his comrades in NSW and Queensland. Whilst that sentiment is held by me, consistency of decision making is necessarily influenced by relevant law. Because of the apparent profound effect upon qualification for service pension by the decision of Repatriation Commission v Thompson, I can only assume that a number of persons other than Mr Tumbers have also not qualified for service pension if they have applied subsequent to the decision in Thompson."

32. This Tribunal is not aware of the circumstances relating to the other members of the Advance Party of which the Applicant was a member, but again states that this matter has been dealt with on the evidence.

33. The Tribunal must therefore affirm the decision under review.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of RADM A R HORTON AO

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

Associate

Date/s of Hearing 26 November 1999

Date of Decision 24 January 2000

Self represented Applicant

Advocate for the Respondent Richard Wallis