Farrell and Repatriation Commission [2000] AATA 69 (4 February 2000)

Last Updated: 4 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 69

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/297

VETERANS' APPEALS DIVISION )

Re HENDLEY BERNARD FARRELL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date 4 February 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(1)(a)(i) 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 Horton

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

Member

CATCHWORDS

VETERANS' AFFAIRS - gold card eligibility - qualifying service - RAAF service during period of hostilities - deployment to New Guinea - 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

Re Rapp and Repatriation Commission (AAT 10254, 13 June 1995)

REASONS FOR DECISION

Rear Admiral AR Horton AO, Member

1. This is an application for review of a decision made on 14 October 1998 (T5) 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 14 January 1999 (T2), that Hendley Bernard Farrell ("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 1 March 1999.

2. At the hearing before the Tribunal on 21 December 1999, the Applicant was self-represented. Mr R Wallis 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 received into evidence:

Exhibit R1: Report and attachments by Mr B O'Keefe, Consultant Historian, dated 23 August 1999

Exhibit R2: Extract of Form P/P 25 (Record of Service - Airmen, for Hendley Farrell, undated)

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

..."

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

..."

4. 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). Hence the issue in this matter is whether the Applicant has rendered qualifying service as defined in section 7A (1)(a)(i), this being the only relevant part of section 7A of the Act. The required standard of proof in this matter is that of reasonable satisfaction pursuant to subsection 120(4) of the Act.

FACTS AND EVIDENCE

5. The Applicant enlisted in the Royal Australian Air Force ("RAAF") on 11 July 1944, serving as a stores hand until discharge in the rank of Leading Aircraftman (LAC) on 22 October 1945. From Exhibit R2, and as confirmed by the Applicant, his service commenced at No 2 Recruit Depot Cootamundra, to be followed by service in stores units in New South Wales, before posting to Queensland in October 1944. In April 1945, he was posted from Townsville to No 8 Stores Depot located at Macrossan, between Townsville and Charters Towers, where he remained until returning to Sydney in October of that year for discharge. It is in this period that the Applicant bases his claim of having 'incurred danger' and hence having rendered qualifying service.

6. In amplification of a written statement at T6, the Applicant gave evidence that he was woken at about 0200 on 1 June 1945, to prepare stores of hydrochloric acid and power sources for airlift to New Guinea. The RAAF DC3 aircraft arrived at Macrossan Field later that day to embark the stores, and he and two other airmen were detailed to undertake the flight to "look after the cargo" because the aircraft crew was short staffed. He had no other role, and there were no emergencies of which he was aware. He recalled that the aircraft made two or three stops for fuelling enroute to Nadzab in New Guinea where the stores were disembarked, but could not remember where these occurred. He stated he was accommodated in the barracks at Nadzab and returned to Townsville in the same aircraft, having been deployed for two or three days. He could not recall any Japanese activity during this deployment.

7. In the absence of any supporting evidence in the T documents, or in the Applicant's Record of Service (Exhibit R2), the Respondent sought historical evidence on this matter from Mr B G O'Keefe, Consultant Historian(Exhibit R2). Mr O'Keefe was not called to give oral evidence.

8. As noted in his covering letter to the report, Mr O'Keefe ascertained from the Operations Record Book for No 8 Stores Depot, which he also confirmed was the only stores unit based at Macrossan, that only one RAAF DC3 aircraft arrived and departed Macrossan on 1 June 1945. He further ascertained that this aircraft belonged to No 34 (Transport) Squadron, which became fully operational at Morotai in April 1945, but ranged "far in [sic] wide in transporting passengers and freight between Australia and the islands to the north until the end of the war".

9. 34 Squadron Unit History Sheet confirms that the relevant DC 3 landed and departed from Macrossan on 1 June 1945, and transitted through Cape York to Biak thence Morotai, returning through New Guinea on 3 June. There is no evidence in the Unit History Sheet to suggest that this aircraft landed at Nadzab. Nor are any crew or passenger lists available that might confirm the Applicant's flight.

10. Whilst no cargo manifests have been found in regard to the flight from Macrossan on 1 June, Mr O'Keefe concludes from his research that hydrochloric acid could well have been transported to New Guinea for the purpose of activating aircraft and land vehicle batteries, and the Tribunal agrees with this reasoning.

ANALYSIS OF EVIDENCE AND FINDINGS

11. As noted by the consultant historian, and agreed by the Respondent, the recollections of the Applicant as to the detail of his short deployment to New Guinea are remarkably close to the historic record, with the exception that there is no evidence to support the statement that the aircraft landed at Nadzab. At the outset of this hearing, the Respondent conceded that after 54 years, some detail of events might be lacking, and that official records may not be as comprehensive as we might wish. The Tribunal is in accord with these views, and also notes the fact that the Applicant is quite firm that the cargo was landed at Nadzab, an airfield that one might expect he would not otherwise be familiar with. The Tribunal therefore accepts, to its reasonable satisfaction, the submission by the Applicant that he travelled by RAAF aircraft to New Guinea in June 1945 for the purpose of safeguarding and handling stores, being absent from Australia for some two to three days.

12. The issue to be considered is whether the Applicant 'incurred danger' pursuant to section 7A(1)(a)(i) of the Act during this period. In reaching a decision, the Tribunal draws on the Full Federal Court decision of Davies, Wilcox and Foster JJ in Repatriation Commission v Thompson (1988) 44 FCR 20, wherein the court 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. It is also necessary to determine in this matter what interpretation should be given to the phrase 'operations against the enemy' as they form part of section 7A(1)(a)(i) of the Act. The Respondent submitted that it was not enough to have been a passenger where operations are incidental to a military operation, citing Willcocks v Repatriation Commission (1992) 39 FCR 49 and Repatriation Commission v Burton (1993) 31 ALD 475, where in both cases the veteran was considered not to be engaged in military operations against the enemy. In this matter, the Respondent submitted that the Applicant, if he had deployed to New Guinea, (and the Respondent 'could not say one way or the other') was engaged in incidental operations.

14. In Willcocks (supra), Cooper J stated 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.

..."

15. 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).

16. In a later decision in Re Rapp and Repatriation Commission (AAT 10254, 13 June 1995), the Applicant claimed qualifying service on three counts. The claim relevant to this matter was based on a trip the Applicant undertook to New Guinea in June - July 1944. He was accepted as a volunteer to escort a wagon load of 'torpedo spare parts, a compressor, perhaps war heads and maybe one or two torpedoes' from Nowra to Port Moresby for delivery to air squadrons, the load being flown from Oakey to Port Moresby. Mr Rapp stayed on in Port Moresby at the barracks for three days before being able to obtain a flight to Townsville.

17. Relevant circumstances adduced by that Tribunal included the fact that the aircraft was unarmed, and that no enemy activity was encountered. The Respondent in that matter conceded that New Guinea was a war zone and that generally there was enemy activity in that country.

18. That Tribunal, at paragraph 21, took the view that Mr Rapp was involved

"...in integral participation in an activity intended for an encounter with the enemy. He was escorting torpedo parts and perhaps war heads to a war zone to be used in hostile action against the enemy: no other reasonable inference is available. As such we are satisfied that in so doing the applicant was involved in 'operations against the enemy' as that term is used in s 7A of the Act."

19. In considering the issue of 'incurred danger', that Tribunal placed weight on the fact that the operation took place not in Australia, but in a war zone where admitted enemy activity and operations were in existence. The fact that no hostile incident took place was not seen as an essential ingredient. The Tribunal was satisfied that the applicant rendered qualifying service.

20. The Tribunal considers the matter under consideration in this instance to be "on all fours" with Re Rapp (supra), notwithstanding that the deployment of the Applicant to New Guinea occurred one year later. New Guinea remained a war zone until the formal cessation of hostilities on 15 August 1945, and in the circumstances, the Applicant might benefit from the procedural policy resulting from the relevant legislation. The Applicant was also escorting stores essential to the conduct of hostile operations against the enemy; as with Re Rapp (supra) no other reasonable inference can be drawn.

21. The Tribunal is therefore satisfied to its reasonable satisfaction that the Applicant has rendered qualifying service. 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 21 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 21 December 1999

Date of Decision 4 February 2000

Solicitor for Applicant Self-represented

Advocate for the Respondent Mr R Wallis