Floyd and Repatriation Commission [2000] AATA 519 (28 June 2000)

Last Updated: 3 July 2000

DECISION AND REASONS FOR DECISION [2000] AATA 519

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/737

VETERANS' APPEALS DIVISION )

Re ERROL ANGUS FLOYD

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date 28 June 2000

Place Sydney

Decision The decision under review is set aside and in substitution therefor the Tribunal determines that the Applicant rendered qualifying service pursuant to s 7A of the Veterans' Entitlements Act 1986, and is entitled to a Gold Card under s 85(4A) of the Veterans' Entitlements Amendment (Gold Card) Act 1998.

(Sgd) A R Horton

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

Member

CATCHWORDS

VETERANS' AFFAIRS - gold card eligibility - qualifying service - RANR service during period of hostilities - service in HMAS Samuel Benbow - operations off Sydney, in Torres Strait and Papua New Guinea area - 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

Repatriation Commission v Burton (1993) 31 ALD 475

REASONS FOR DECISION

Rear Admiral AR Horton AO, Member

1. This is an application for review of a decision made on 25 September 1998 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 23 February 1999, that Errol Angus Floyd ("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 19 May 1999.

2. At the hearing before the Tribunal on 26 May 2000, the Applicant was self-represented. 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 received into evidence a report with attachments by Mr B O'Keefe, Consultant Historian, dated 17 December 1999 (Exhibit R1). Mr Laurence Blewer was called by the Applicant to give evidence.

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 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

(ii) rendered service after 29 October 1945 in respect of which the person has been awarded, or has become eligible to be awarded, the Naval General Service Medal or the General Service Medal (Army and Royal Air Force) with the Minesweeping 1945-51 Clasp, the Bomb-Mine Clearance 1945-53 Clasp, the Bomb and Mine Clearance 1945-49 Clasp or the Bomb and Mine Clearance 1945-56 Clasp; 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

..."

2. The Respondent concedes that the Applicant is a veteran as defined in section 5C of the Act. The Applicant was aged 72 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). The issue in this matter is whether the Applicant has rendered qualifying service as defined in section 7A (1)(a) of the Act.

FACTS AND EVIDENCE

3. The Applicant enlisted in the Royal Australian Naval Reserve ("RANR") on 30 November 1943. Notwithstanding that his Statement of Service (T3) shows that he transferred to the Royal Australian Navy ("RAN") in November 1943, the Applicant stated he had remained in the RANR throughout his war service, until demobilisation on 18 July 1946. This is not seen to have any bearing on the matter under consideration. Following initial training at HMAS CERBERUS, he joined the trawler HMAS SAMUEL BENBOW (commissioned as an auxiliary minesweeper) in Sydney as a seaman on 17 June 1944, remaining in that ship until 21 October 1945, and then variously completing his service in other ships in the Papua New Guinea area.

4. The Applicant has suffered a serious injury and medical condition in the last year, and was somewhat hazy on some of the detail in regard to his service career, made more so by the fact that over 50 years has passed since the occurrence of the events that are relevant to this matter. Nonetheless, the evidence given by the Applicant and the witness, when considered with the available documentary evidence and the report by Mr O'Keefe, was sufficient to enable the Tribunal to draw reasonable conclusions as to the Applicant's service. A significant omission in documentation is the paucity of primary source material regarding the activities/operations of SAMUEL BENBOW from July 1944, shortly after the Applicant joined the ship, until 10 October 1944, when that ship joined HMAS DURRAWEEN for survey operations, as noted in the Letter of Proceedings dated 30 April 1945 for the latter ship for the period 1 July 1944 to 30 April 1945 (attachment to Exhibit R1). As far as SAMUEL BENBOW is concerned, the historian failed to find any reports of proceedings prior to July 1945 or any deck logs.

5. A ship movements list at T3 shows that SAMUEL BENBOW operated out of Sydney for most of the month of July 1944, and that the ship departed Sydney some time later, arriving in Darwin on 13 September 1944. The Applicant (and the witness) were adamant that the ship did not visit Darwin, and following cross examination, it was agreed that the most likely scenario was that the ship ceased operating in the Sydney area in late July 1944, was then fitted out for surveying duties in the tropics at Polle and Steel, Ship Repairers at Balmain, over the next few weeks, and then transitted to Torres Strait inside the Barrier Reef, arriving in the area at the end of September or early October. The Applicant considered that during the passage the ship must have passed through enemy minefields laid off Newcastle and Brisbane, and in the vicinity of allied defensive minefields, and notwithstanding that the former had been swept (Ex R1) and the latter were well defined (Ex R1), mines can drift and one cannot say there is no danger.

6. The Applicant stated that before deploying north, the ship had operated off Sydney, as a minesweeper; the witness, Mr Blewer, who had joined SAMUEL BENBOW some 12 months earlier than the Applicant, agreed, stating that minesweeping was a regular task, particularly before fleet units entered and departed Sydney Harbour. In his report (Exhibit R1, page 4), Mr O'Keefe states that there is no record of any minesweeping being undertaken in mid 1944 in the minefield known to have been laid in the Sydney/Newcastle area by the German ship PINGUIN in 1940. Mr O'Keefe then opines that:

"as there were no other enemy or allied minefields to be swept anywhere near this area, it is highly unlikely therefore that the SAMUAL BENBOW was engaged in any minesweeping operations in this period."

The report by Mr O'Keefe also notes (from Australian and New Zealand Warships 1914 - 1945 by Ross Gillett) that SAMUAL BENBOW was re-designated a General Purpose Vessel ("GPV") in about September 1944.

7. Assuming that SAMUAL BENBOW arrived in the Torres Strait area in late September/early October 1944 as postulated above, the first documented evidence of subsequent operations involving that ship is that shown in HMAS DURRAWEEN Letter of Proceedings dated 30 April 1945. That document noted (on 2 September 1944) that SAMUAL BENBOW and DURRAWEEN were to form (or be part of) Task Unit 70.5.2 under the command of Lieutenant Commander Tripp in HMAT GOOLGWAI. Accordingly DURRAWEEN undertook conversion for survey sweeping duties at Polle and Steel at Balmain, before sailing for Torres Strait on 23 September 1944. The significant entry as regards the movements of SAMUAL BENBOW is that of 10 to 17 October 1944, when the three ships of the Task Unit commenced bottom sweeping and sounding. Thereafter, the available records imply that SAMUAL BENBOW (and the other two trawlers) continued surveying operations in that general area, under the operational control (from 22 October 1944) of the survey ship, HMS CHALLENGER, the purpose undoubtedly being to confirm that shipping channels were clear and that depths were known, and to progress the surveying of poorly charted waters.

8. Thus the period in which the movements of SAMUAL BENBOW cannot be accounted for by documentary evidence is from late September/early October 1944 to 10 October 1944, a period of approximately two weeks. In his evidence, the Applicant believed that SAMUAL BENBOW had been engaged in "looking for mines and sweeping" using orepesa sweeps, otters and paravanes until about January 1945, when he thought surveying had commenced. In the light of the operational data contained in the report by Mr O'Keefe, the Applicant conceded that surveying (bottom sweeping) had commenced at least by 10 October; however, he remained of the belief that his ship had undertaken minesweeping tasks on arrival in Torres Strait. From the available evidence, Mr O'Keefe concludes that SAMUAL BENBOW "really only operated in Torres Strait", the furthest point north being in the vicinity of Sue Island, this being closer to the mainland than Papua New Guinea. In his evidence, the Applicant stated that his ship had swept an area for Japanese mines some 80 kilometres west of Papua and had visited the island of Daru located close to the Papua coast. Mr Blewer in his evidence, also stated that the ship had visited Daru (and Banks Island) but he was not aware of the purpose of the visit. The Applicant also stated that he believed there was enemy submarine activity in the area, but no evidence has been produced that might support this belief.

9. In October 1945, the Applicant was posted from SAMUAL BENBOW. In early 1946, he served in Motor Water Lighter ("MWL") 255 in New Guinea waters, and subsequently at depots in Madang, Rabaul and the Admiralty Islands. In a statement at T1, he stated that his task at Rabaul (from March to June 1946) was to supervise Japanese prisoners of war, who were very hostile at the outset. Whilst he gave no evidence of any particular incidents, he considered this to a be very stressful period, and stated that to this day, he suffers from a nervous disposition resulting from what he saw and heard during that period, and again following his minesweeping operations.

ANALYSIS OF EVIDENCE AND FINDINGS

10. The issue in this matter is whether the Applicant meets the eligibility requirements for the rendering of qualifying service. The relevant standard of proof is that of reasonable satisfaction pursuant to subsection 120(4) of the Act.

11. There is no evidence to suggest that the Applicant meets the eligibility criteria in respect of the Naval General Service Medal or General Service Medal vide section 7A(1)(a)(ii) of the Act during his period of naval service. However, the extent, if any, of involvement in minesweeping duties prior to the cessation of hostilities is a matter that has relevance to whether he incurred danger as defined in section 7A(1)(a)(i), and if so, whether he was engaged in operations against the enemy at the relevant time.

12. The Full Federal Court defined "incurred danger" 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 a 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.

..."

13. As regards "operations against the enemy", Cooper J stated in Willcocks v Repatriation Commission (1992) 39 FCR 49 at p 55:.

"...

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 service to constitute 'qualifying service' within the meaning of section 36(1) of the VE Act.

..."

At p 56, His Honour 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 services, inter alia, in military operations against the enemy, in the sense of operations in hostility or opposition to the enemy.

..."

14. Notwithstanding that Cooper J referred specifically to section 36(1) of the Act, which relates to service pension, the definition of qualifying service pursuant to section 7A(1)(a)(i) remains unchanged for Gold Card eligibility pursuant to section 85(4A).

15. In this matter, the Applicant conceded that whilst he believed his ship had been carrying out minesweeping operations during the early period, at least, of operations in the Torres Strait area, there is no evidence to support such a contention, and the available evidence more clearly points to operations in support of hydrographic surveying. However, the Applicant stated, and was supported by the witness, Mr Blewer, that SAMUAL BENBOW had operated off Sydney as an auxiliary minesweeper prior to the northern deployment, and had carried out such an activity as a regular task. Other than the record that SAMUAL BENBOW operated off Sydney for short periods during the month of July 1944 (T3), the purpose not being defined, there is no documentary evidence to support this contention. As earlier noted (paragraph 6), Mr O'Keefe for the Respondent is of the opinion that "it is highly unlikely therefore that the SAMUAL BENBOW was engaged in any minesweeping operations in the period" based on the record that no minesweeping operations were conducted in the field laid by the raider PINGUIN. In the view of the Tribunal, this is a somewhat restrictive view of the likely minesweeping operations that might have been conducted, or perhaps practiced, in the vicinity of the approaches to the major port of Sydney, minesweeping operations (or training) of such a routine nature as to not be recorded except in the relevant ship's log, a log that in the case of SAMUAL BENBOW is not available. The inference can be drawn that SAMUAL BENBOW, operating in its role of auxiliary minesweeper, was required, either independently or with other units, to conduct regular minesweeping operations off Sydney. That contention can be supported by the Letter of Proceedings of HMAS DURRAWEEN (Exhibit R1) which shows that ship, also an auxiliary minesweeper, conducting periodic minesweeping operations off Port Phillip during the same period.

16. The Tribunal is therefore reasonably satisfied that SAMUAL BENBOW was tasked to conduct minesweeping operations off the port of Sydney in the period in which the Applicant was embarked as crew. The Tribunal also takes account of the evidence given by Mr Blewer that the ship also conducted such operations off Port Kembla and Newcastle, although this may not have been the case during the limited period relevant to the Applicant's service.

17. However, given that the Tribunal accepts to its reasonable satisfaction that SAMUAL BENBOW conducted minesweeping training and/or operations out of the port of Sydney in July 1944, and indeed T3 confirms that the ship was operating in an undefined role in and out of Sydney at that time, the question arises as to whether the Applicant benefits from departmental policy in respect of "Service within Australia - Service in Coastal Waters", wherein qualifying service is conceded where a veteran has served at sea in south and south-east coastal waters (Albany to Sydney) within certain dates.

18. In considering this matter, the Tribunal draws on section 119 of the Act in respect of beneficial legislation. When considering final submissions, the Tribunal sought advice from the Respondent as to precisely what is meant in geographic terms by "Sydney" in respect of the service in Coastal Waters policy, that is, whether it might be based simplistically on "south of the Harbour entrance" for example. The Respondent stated that there was no definition to his knowledge, but that the "incurred danger" aspect as well as the operational nature of the service must be considered.

19. The Tribunal is of the opinion that the incurred danger test in this matter is subsumed by policy which accords qualifying service if the relevant conditions for service in Australian waters are met. In this matter, and accepting to its reasonable satisfaction that SAMUAL BENBOW at times operated south of Sydney, and that the provisions of Section 119 pursuant to beneficial legislation should be applied, the Tribunal is reasonably satisfied that the Applicant has qualifying service pursuant to section 7A of the Act.

20. It is not necessary to address the remaining aspects of the Applicants service, but the Tribunal does so for completeness. The submission by the Respondent that the Applicant did not incur danger during the passage to Torres Strait, the subsequent surveying operations or his later service in the islands, and did not meet the criteria as established in Thompson (supra), Willcocks (supra) and Repatriation Commission v Burton (1993) 31 ALD 475 is agreed by the Tribunal on the evidence.

21. The final question is that of the relevance of operations by SAMUAL BENBOW operating in close proximity to Daru Island, that is to the Papua New Guinea coast. The Applicant and Mr Blewer gave evidence that SAMUAL BENBOW visited the island. In the absence of primary documentary source material, there is no other evidence to confirm this visit; as earlier stated, there is no record available to the Tribunal as to the movements of SAMUAL BENBOW from the time of arriving in the Torres Strait area in late September or early October 1944, until the ship commenced survey operations in the company of DURRAWEEEN on 10 October. The Respondent submitted that there was no way of knowing whether or not SAMUAL BENBOW operated as far north as Daru, but conceded that he could but rely on the conclusion of Mr O'Keefe from his research that the ship "operated more in the southern area of the Torres Strait". The Tribunal accepts that this was most probably the case once the ship commenced operations with other units, based on reports from those other units. However, there is no such evidence to suggest that SAMUAL BENBOW could not have operated further afield in the preceding period. Accordingly, the Tribunal accepts to its reasonable satisfaction the evidence of the Applicant that the ship did visit Daru Island, or operate in the vicinity of that island.

22. However, nothing of significance is seen to arise from this visit. No evidence was given as to any hostile acts or incidents, and no benefit to the Applicant arises from departmental policy of service "Outside the Coastal Waters of Australia". That policy defines service "in Papua or New Guinea", a criteria not met by the Applicant.

23. The Tribunal therefore concludes, to its reasonable satisfaction, that the Applicant has rendered qualifying service by dint of policy in regard to service in Australian coastal waters, and specifically during his period of service in HMAS SAMUAL BENBOW in mid 1944. Accordingly, the decision under review is set aside and in substitution therefor, the Tribunal determines that the Applicant rendered qualifying service pursuant to section 7A(1)(a)(i) of the Act, and is entitled to a Gold Card under section 85(4A) of the Gold Card Act.

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

Rear Admiral A R Horton AO, Member

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

Associate

Dates of Hearing 26 May 2000

Date of Decision 28 June 2000

Solicitor for Applicant Self-represented

Advocate for the Respondent Mr J Marsh