Morris and Repatriation Commission [2000] AATA 49 (31 January 2000)

Last Updated: 4 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 49

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/298

VETERANS' APPEALS DIVISION )

Re GEORGE GOODALL MORRIS

Applicant

And REPATRIAITON COMMISSION

Respondent

DECISION

Tribunal Mr J.T.C. Brassil, AM, Member

Date 31 January 2000

Place Melbourne

Decision The decision under review be affirmed

(Sgd.) J.T.C. Brassil

Member

CATCHWORDS

VETERANS' AFFAIRS - qualifying service -- whether incurred danger -- eligibility for Gold Card health benefits

Veterans Entitlements Act 1986 Section 7A, subsections 85(4A), 120(4)

Repatriation Commission v Walter Harold Thompson (1993) 44 FCR 20

REASONS FOR DECISION

31 January 2000 Mr J.T.C. Brassil, AM, Member

1. This application is for review of a decision of a senior delegate of the Repatriation Commission on 21 December 1998 affirming a decision of the Commission on 6 June 1998 which decided that the veteran, George Goodall Morris, had not rendered qualifying service during World War 2 and hence did not meet the criteria set for health benefits.

2. The appeal was heard on 27 October 1999. The applicant was self-represented and the respondent was represented by departmental advocate, Robert Douglass.

3. The documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 were taken into evidence. A report by military historian, Robert Piper, of Naraha Company, dated 29 July 1999, detailing his research into naval activity which may have involved the applicant was also put in to evidence (Exhibit R1). Mr Piper gave oral evidence. An extract from "The Royal Australian Navy in World War 11" published by Allen and Unwin (1996) entitled "The RAN Hydrographic Branch, 1942-45" by John G Berry was also provided (R2).

Legislation

4. The Veterans' Entitlements Act 1986 ("the Act") provides in subsection 85(4A) that a veteran is eligible for the Gold Card health benefits if he or she is aged 70 years or over and rendered "qualifying service" during World War 2 between 3 September 1949 and 29 October 1945. At Section 7A of the Act is found the definition of "qualifying service" as follows:

"7A. (1) For the purposes of Part III, 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 a "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. The decision on this matter must be in accordance with subsection 120(4) which is the test of "reasonable satisfaction" or more commonly on "the balance of probabilities".

6. In making his decision the senior delegate states that he had interpreted the applicable legislation by adopting the expressed view of the term "incurred danger" in the decision of the Full Federal Court in Repatriation Commission v Walter Harold Thompson (1993) 44 FCR 20 which stated:

"The words 'incurred danger' 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 is in danger. The words 'incurred

danger' do not encompass a situation where there is a 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."

Facts

7. The applicant was born on 26 January 1926 and served in the Royal Australian Navy from 4 January 1944 to 10 October 1945 when he was discharged.

8. He served on HMAS Echuca for a period in 1944 and service records show he was on that ship from 15 September 1944 to 29 September 1944. Records released to the applicant under Freedom of Information show that in 1944 HMAS Echuca sailed from Darwin on 15 September, returning on 29 September and visited Scott's Reef which is located in the Timor Sea some 180 miles off the North West coast of Australia.

9. The veteran provided a letter dated 7 April 1999 from the Naval History Directorate of the Department of Defence confirming that HMAS Echuca left Darwin on 15 September 1944 for Scott's Reef for survey operations to prove a safe shipping route for an expected transit of the British Pacific Fleet. HMA ships Moresby, Castlemaine and Junee were with HMAS Echuca and HMAS Horsham later joined them at Scott's Reef. This was confirmed in the history of the RAN Hydrographic Branch (R2) in this passage on page 160:

"In July 1944, TU 70.5.3 under the direction of Commander Little in "Moresby", commenced work on the survey of a channel approximately 60 nautical miles wide through the Timor Sea from Scott Reef to Darwin. The work included a detailed survey of Scott Reef and harbour surveys at Darwin, Port Nelson and Snake Bay in Melville Island. Four Australian survey ships were involved ("Moresby", "Shepparton", Stella" and "Sleuth") assisted by a further four AMS (HMA Ships "Castlemaine", "Echuca", Horsham" and "Junee") as consorts for the sounding of the 650 nautical mile long channel."

Evidence

10. Mr Robert Piper in evidence stated he was military historian and had been with the Department of Defence for 22 Years. He has published on aspects of Australian military history.

11. Mr Piper said Scott's Reef was also known as Scott Reef. He stated that the general area of the Ashmore Islands, Cartier Island, Scott Reef and Browse Island were used both by the Japanese and the allies during World War. He described them as a "no man's land", convenient stepping stones and navigation aids for friend and foe.

12. He referred to his book "The Hidden Chapters", Chapter 15 entitled "The Enemy Trod our Shores", and extracts from the RAAF Official History to give instances of enemy activity in the general region around Scott's Reef and the waters of the Timor Sea between the reef and Darwin. He agreed Japanese naval vessels were within range and also were Japanese aircraft but stated that there was no record of any operations in the area at the relevant time. However he believed that the Japanese 70 DCS photo reconnaissance aircraft would have been exercising surveillance over the area.

13. He stated that Japanese submarines had been withdrawn from around Australia from June 1943.

14. He stated that the last Japanese air raid on Darwin was in December 1943 and from that time the Japanese air strength was run down. It operated from New Guinea but at low ebb. Any attacks would have been reported in log books and diaries but there is no discernible record for the relevant period.

15. He agreed in cross-examination that many records had been destroyed but said many records had turned up in Japan. He had had access to these as well as the opportunity to speak with Japanese servicemen who had served in this area.

16. He stated that while the Japanese could have attacked, they had the ability to attack ships in the area, there was no available record to confirm that there was any attack.

Submissions

17. The veteran submitted that he travelled on HMAS Echuca across the Timor Sea to Scott's Reef. They were an escort to HMAS Moresby which was a survey vessel and their task was to make sure the passage was clear for the British ships. The records that have been presented show that there was potential for this Australian naval group to be attacked either by surface ship or submarine if not by enemy aircraft. "That was how we felt on board the Echuca at the time."

18. He submitted that records were incomplete, that the respondent's expert witness agreed this was so hence there could have been danger incurred on this voyage.

19. Mr Douglass, on behalf of the respondent, submitted there were forces in what was then the occupied Netherlands East Indies (now Indonesia) but they were several hundred kilometres away from the Scott's Reef area. All indications are that Japanese naval and air forces were in a depleted state in the area in September 1944.

20. He submitted there were a number of Australian vessels involved in the survey exercise in which the veteran took part so it is highly likely that any enemy activity would have been noted officially in log books and diaries. The respondent relied on the evidence of the historian, Mr Piper, that there is no such report on the available records from Australian or Japanese sources.

21. He said there was no doubt that the veteran had served in the area and there could have been a potential risk but the Tribunal should apply the standard of Thompson where the Full Federal Court stated a serviceman "does not incur danger by merely perceiving or fearing that he is in danger". Taken at its best the veteran's submission is only of a "mere risk of danger" and that would not satisfy the requirements of the Federal Court judgment.

Consideration of the Issues

22. On all the evidence available the Tribunal must decide, on the balance of probabilities, whether the veteran had incurred danger on the voyage on HMAS Echuca in September 1944 from Darwin to Scott's Reef and return. If this cannot be found then the veteran cannot have had the qualifying service necessary to be granted a Gold Card.

23. On the evidence before it the Tribunal finds that in the period in 1944 from 15 September to 29 September while the veteran was serving on HMAS Echuca there was no reported enemy activity which would have put at risk personnel serving on that Australian ship. While the Tribunal accepts that there may have been potential risk of enemy attack it finds that the veteran did not incur danger at this time.

24. As this was the only period of the veteran's service in which he has claimed that he had qualifying service the Tribunal finds that he is not eligible for issue of a Gold Card.

Decision

25. The Tribunal will affirm the decision under review.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.T.C. Brassil, AM, Member

Signed: Judith Holt, Associate

Date of Hearing 27 October 1999

Date of Decision 31 January 2000

Applicant Self-represented

Respondent Mr R. Douglass, Advocacy Section,

Department of Veterans' Affairs