Beale and Repatriation Commission [2002] AATA 68 (5 February 2002)

Last Updated: 6 February 2002

DECISION AND REASONS FOR DECISION [2002] AATA 68

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/250

VETERANS' APPEALS DIVISION )

Re WALTER CHARLES BEALE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date 5 February 2002

Place Adelaide

Decision The Tribunal affirms the decision under review.

(Signed)

J.A. KIOSOGLOUS

(Senior Member)

CATCHWORDS

VETERANS' AFFAIRS - veterans' entitlements - qualifying service - whether applicant incurred danger from hostile forces of the enemy - sea voyage from Darwin to Truscott Airfield in December 1944.

Veterans' Entitlements Act 1986 ss.7A, 120(4)

Repatriation Commission v Thompson (1988) 82 ALR 352

Macgregor and Repatriation Commission (1992) 25 ALD 761

Buckingham and Repatriation Commission (1992) 28 ALD 412

REASONS FOR DECISION

5 February 2002 Senior Member J.A. Kiosoglous MBE

1. This is an application for review by Mr Walter Charles Beale (the applicant) for review of a decision of a senior delegate of the respondent dated 3 July 2001 (T2/5-7) which affirmed a decision of a delegate of the respondent dated 11 May 2001 (T20/42), which determined that the applicant had not rendered qualifying service in accordance with section 7A(1)(a)(i) of the Veterans' Entitlements Act 1986 (the Act).

2. The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T23), together with 9 exhibits, 4 lodged by the applicant (Exhibits A1-A4) and 5 lodged by the respondent (Exhibits R1-R5). In addition, the Tribunal heard evidence from the applicant and Mr Brendan O'Keefe, Historian, gave evidence for the respondent. The applicant represented himself and the respondent was represented by Mr Greg Doube, a departmental advocate.

3. It was not in contention between the parties that the applicant had served as a "member of the Defence Force", that he served during a "period of hostilities" and that he rendered service in "naval operations against the enemy on a ship of war". The only issue in dispute between the parties is whether or not the applicant actually "incurred danger from hostile forces of the enemy" during his service.

history of the application

4. The applicant was born on 6 December 1925 and served in the Royal Australian Air Force (RAAF) during World War 2 from 8 February 1944 until 29 April 1946. This service constituted service during a period of hostilities.

5. The applicant's record of service in the RAAF (T4/9) shows that the applicant did not serve outside Australia during World War 2, however, he did serve in the Northern Territory north of parallel 14.5 degrees south latitude from December 1944 until after the war had concluded. The importance of parallel 14.5 degrees south latitude is that this was the lowest altitude of any of the Japanese bombing raids on the Northern Territory.

6. The applicant served at Truscott Air Base on the Anjo Peninsula in Northern Western Australia during his service in the Northern Territory.

7. On 7 March 2001 the applicant lodged an informal application for a Gold Card under sub-section 85(4A) of the Act (T15/35).

8. On 21 March 2001 a delegate of the respondent rejected the applicant's claim for a Gold Card on the grounds that his service in the RAAF during World War 2 did not constitute qualifying service (T17/38). The applicant was notified of this decision in a letter dated the same day (T18/39-40).

9. On 24 March 2001, the applicant wrote a letter to the Department of Veterans' Affairs requesting a review of the delegate's decision (T19/41). As there was no right of review of a decision to reject eligibility for a Gold Card, the applicant was advised of his need to lodge a formal claim to have his service determined to be qualifying service under section 7A of the Act. His original claim for a Gold Card of 7 March 2001 was taken to be an informal application in respect of qualifying service.

10. On 20 April 2001 the applicant lodged a formal application for the respondent to determine whether or not he had qualifying service (T5/11-17).

11. On 11 May 2001, a delegate of the respondent determined that the applicant's service in the RAAF did not constitute qualifying service (T20/42) and the applicant was advised of this decision in a letter dated 14 May 2001 (T21/43-44). In his reasons for decision, the delegate stated (inter alia)(T21/43-44):

"...

Basis of Decision

Qualifying service for a member of the Australian Defence Force for service between 3 September 1939 and 29 October 1945 inclusive is to have served at sea, in the field or in the air in operations against the enemy in an area at a time when you incurred danger from hostile forces of the enemy.

...

Your service records show that you did not serve in operations against the enemy at a time when you incurred danger from the enemy, and that you were not eligible to be awarded any of the above decorations in respect of your service after 29 October 1945.

..."

12. On 3 July 2001, a senior delegate of the respondent reviewed the decision of 11 May 2001 and affirmed the decision that the applicant's service in the RAAF did not constitute qualifying service (T2/5-7). The applicant was advised of this decision by letter dated the same day (T3/8). In his reasons for decision, the senior delegate stated (inter alia)(T2/6-7):

"...

Mr Beale has advised that he was posted at 58 OBU at Truscott Airfield, following his signals training at Point Cook. On 27 December 1944, he embarked on the 'San Rafael' and travelled by sea from Darwin to Truscott Airfield.

...

In the File Mr Beale has recalled 2 incidents where he claimed his life was in danger. Mr Beale has advised that when travelling on the 'San Rafael' the ship carried stores and a large consignment of aviation fuel for the Army at Truscott Airfield. Mr Beale considers that his life was in peril due to the fact that the ship carried hi-octane aviation fuel and any attack by hostile forces would have seen the ship and those on board blown to pieces. Mr Beale has also advised that on 27 February 1945 a yellow alert was issued when an unidentified plane crossed the coast, and it was concluded that a Japanese Float Plane was conducting a probe on the Truscott base's air defences.

In order for this service to be considered as qualifying service, Mr Beale must actually have incurred danger from hostile forces of the enemy. While I accept that the possibility of danger was always present in these circumstances, there were no specific incidents with hostile forces of the enemy where Mr Beale was exposed to any real physical danger or where his life was at peril.

In the absence of any evidence of any other events in which Mr Beale was exposed to any real physical danger or where his life was at peril, I find that Mr Beale did not incur danger from hostile forces of the enemy. Therefore, it follows that he has not rendered qualifying service as defined in the VEA.

..."

13. On 10 July 2001 the applicant lodged with the Tribunal an application seeking a review of the respondent's decision of 20 April 2001 (T1/3-4).

applicant's evidence

14. The applicant was born in Mount Gambier on 6 December 1925 and enlisted in the RAAF on 8 February 1944. Prior to enlistment the applicant was in the Air Training Corps for two years to prepare him for entry into the RAAF. The applicant was discharged from the RAAF on 29 April 1946.

15. The applicant told the Tribunal that he was posted to 58 Operational Base Unit (OBU) at Truscott Airfield following his signals training at Point Cook. The applicant testified that after two days in Darwin, he departed on the SS San Raphael at dusk, heading for Truscott Airfield ("Truscott") on 26 December 1944. During his evidence, the applicant referred to a map indicating the relative positions of Darwin and Truscott (Exhibit A3).

16. The applicant stated that he incurred danger on the journey to Truscott. The applicant testified that the ship travelled southwest to Truscott, which was 300 miles from Darwin on Anjo Peninsula. The applicant testified that the cargo on board the SS San Raphael was 10,000 44-gallon drums of aviation fuel. Because Truscott was in such a remote area, everything had to be brought in by either aircraft or boat. The applicant explained that Truscott was used by aircraft basically as a refuelling base during World War 2.

17. The applicant testified that he was 19 years old at the time of the voyage and he slept for almost the entire journey, he was not awakened by any gunfire and to his knowledge there was no contact with enemy shipping or aircraft. The applicant gave evidence that during the journey he was not allowed to smoke, there were no navigational lights being used and the ship was in pitch dark. The applicant testified that he did not know that there was aviator fuel on board. When asked by the respondent if it was possible that the prohibition on smoking was a sensible precaution because of the fuel on board the applicant agreed that this was possible. However, the applicant did not smell any fumes whilst on board the ship.

18. In his written statement, the applicant detailed the circumstances of his voyage as follows (Exhibit A1, page 4):

"...

In my own case where I embarked on a ship in Darwin Harbour there was tight security everywhere. The ship of course was not identified by name for security reasons and I only found out after the war that it was called the San Raphael. Before departure we were assembled by some naval officer and told that we could only sleep up on deck and to doss down wherever we could find a spot. We were told that smoking was prohibited because the slightest match could alert the enemy to our presence. The anti-submarine boom gates in Darwin Harbour were operating as we left and we were escorted by a navy corvette. I think we all realised that at last we were in some sort of danger and although fearful, being aged only 19, that fear was tinged with a certain feeling of adventure. I can remember looking at the huge raft above one of the hatches and wondering whether, in the case of emergency, how many of us could fit upon it.

..."

19. The applicant testified that he arrived at West Bay on Anjo Peninsula just after noon on 27 December 1944 and the ship's cargo was unloaded onto barges. The applicant was one of five personnel transferred to Truscott at the time.

20. The applicant explained that his job at Truscott was to listen in for radio contact from aircraft. He was at Truscott Airfield continuously for 14 months and only once got an urgent message. During his time at Truscott, the applicant lived in a tent, his only recreation was swimming and security was very tight. The applicant told the Tribunal that he returned to South Australia in February 1946 and remained at Gawler until his discharge in Adelaide.

21. It was put to the applicant that, in the records of activity at and around at Truscott Airfield in a book entitled "Truscott" by John and Carol Beasy (a diary of Truscott from 1943 to 1946)(Exhibit A3), it was clear that despite frequent search and patrols of the waters around Truscott and northwestern Australia at that time, there was no record of any actual contact with submarines. The applicant agreed that the only sightings of submarines were on land when the submarines surfaced to recharge. The applicant further testified that the RAAF found it difficult to sight submarines but that did not mean that they were not there.

22. The applicant told the Tribunal that he incurred danger from enemy submarines during his voyage to Truscott. The applicant testified that no one knew where the famous German submarine U862 ("U862") was at the time. When it was put to him during cross-examination that on 11 January 1944, U862 was located off the coast of New Zealand, the applicant testified that at the time of the voyage he did not know that but was aware that a U-boat was attacking ships on the south and east coasts. The applicant testified that at that time, no one knew it was U862. The applicant testified that the danger was that no one knew where the submarines were - the authorities knew there were submarines in the area and had increased their surveillance of the area. The applicant stated that whilst the German submarines had been mostly destroyed, the Japanese submarines were still there. In support of his case, the applicant referred the Tribunal to an article in Probus magazine (Exhibit A2) which described the experiences of another veteran at Cape Leveque, which stated:

"...

Its location was highly secret as was radar itself. All our mail was closely censored and our first line of defence, should a Japanese submarine surface, were two 18 pounder field guns from WWI, manned by two Army Artillery sergeants with crews made up from the 40 RAAF personnel on the station.

..."

However, during cross-examination the applicant agreed that Cape Leveque was 250 miles from Truscott.

23. The applicant referred to excerpts from a book entitled "U-Boat Far From Home" by Mr David Stevens, former naval officer in the Royal Australian Navy and historian (Exhibit A4), which detailed the submarine activity at the time and how concerned the authorities were about the location of U-boats in the waters around Australia. When referred by the respondent to a further passage in Exhibit A4, which stated (at page 165) that the submarine U862 was in eastern area waters by December 1944, the applicant testified that U862 could have been anywhere.

24. When the respondent referred the applicant to the diary of Truscott (Exhibit A3, page 18) where it stated that as of 28 December 1944 the 54^th Anti-Aircraft Regiment ceased to be operational and although there for quite a while never fired a shot, the applicant testified that the San Raphael was not unloaded completely for several weeks and a corvette went back with personnel from AA Regiment but only one AA Regiment was relieved.

25. The applicant agreed that the Liberty ship RJ Walker was sunk on Christmas Day 1944 by U862 160 miles southwest of Sydney between Bateman's Bay and Jervis Bay and therefore that U862 was on the east coast of Australia at the time of the applicant's voyage. The applicant also agreed that the Liberty ship Peter Sylvester was sunk by U862 on 6 February 1945 800 miles westsouthwest of Fremantle during its return journey to Jakarta and Singapore. The applicant stated that he did not know at the time that U862 sunk the ships.

evidence of mr brendan o'keefe, historian

26. Mr O'Keefe is a consulting historian. He gave evidence by way of telephone. He referred to a report he prepared in relation to another matter which was previously before the Tribunal which was also about Truscott Airfield (Exhibit R2). In his report, Mr O'Keefe stated (inter alia)(at pages 4-5):

"5. Truscott Airbase and its Anti-Aircraft Defences

...

After the Dinah reconnaissance aircraft was shot down over the base in July 1944, No. 54 Anti-Aircraft Regiment and subunits were moved to Truscott, the unit arriving in August. The threat from enemy aircraft failed to materialise, however, and on 9 November, after only three months at Truscott, the Regiment began to pack its stores to leave. The departure commenced on 10 December and took place piecemeal over the ensuing month-and-a-half. The last elements departed Truscott on 29 January 1945. The extremely short duration of the Regiment's stay at Truscott is an indication that the threat posed to the base by enemy aircraft was regarded as negligible.

During its time at Truscott, the Regiment fired its guns several times in practice, but the unit's official War Diary as well as the Beasys' detailed book on Truscott indicate that the No. 54 Anti-Aircraft Regiment never fired its weapons in anger.

..."

27. Mr O'Keefe stated that he has prepared reports regarding the naval strength of the Japanese in the southwest pacific area and Japanese submarine operations in Darwin and Western Australia in the relevant period.

28. Mr O'Keefe told the Tribunal that he had used the book "U-Boat Far From Home" in other reports and is familiar with the voyage undertaken by U862 around Australia. Mr O'Keefe stated that U862 left Java in 1944 and underwent a journey around the coast of Western Australia, South Australia, and then the east coast. On 9 December 1944, U862 attacked a Greek tanker south east of Adelaide and continued eastward and on 25 December 1944 sank the RJ Walker off the east coast. U862 then went south, crossed the Great Australian Bight and attacked and sank the Peter Sylvester 1,300 kilometres south of Fremantle.

29. Mr O'Keefe testified that clearly U862 was not a threat to the San Raphael at the time of the applicant's voyage to Truscott and there was no record of any other German submarines in the area.

30. In relation to Japanese submarine activity, Mr O'Keefe stated that Japan had a substantial number of submarines but they were "easy pickings" for the Allies if discovered as they could not dive very deep. As a result the Japanese lost heavy numbers of submarines during the war and by mid to late 1944, the Japanese had no capacity to mount attacking operations against Australian shipping. Mr O'Keefe told the Tribunal that the last voyage of a Japanese submarine on the northwest coast of Australia was of the I165 which undertook a brief round trip of Australia before returning to Surabaya in July 1944. Mr O'Keefe stated that the source for this information was a book entitled "Battle Surface" by Mr David Jenkins, who used Japanese sources to assist him in writing his book. It was Mr O'Keefe's opinion that by December 1944 there were no Japanese submarines in the waters around northwestern Australia.

31. During examination-in-chief, Mr O'Keefe was referred to the extracts from David Stevens's "U-Boat Far From Home" (Exhibit A4), and in particular the passage (at page 191):

"...

On 15 January NOIC Darwin promulgated a message stating that no fewer than seven submarines had been sighted west of Darwin. As a result, four vessels surveying an important new channel through Scott Reef were instead detailed to carry out an anti-submarine sweep and search.

..."

32. Mr O'Keefe agreed that this passage conflicted with his evidence but stated that it was necessary to place the reported sightings in context with the rest of the book - Mr O'Keefe stated that these were false sightings not mentioned in David Jenkins's book, considered to be the authoritative source in the area. Mr O'Keefe gave evidence that there was no rationale for the Japanese to concentrate their submarines in the area at that time and if they had been there, they would have been "sitting ducks" for Allied aircraft and ships. Mr O'Keefe gave the opinion that there were lots of supposed sightings at the time and suspicious signals on radar which were later found to be unusual tidal eddies or sonic devices. Mr O'Keefe stated that he had spoken to the author of "U-Boat Far From Home", Mr David Stevens, some time ago about the possible sightings and Mr Stevens confirmed Mr O'Keefe's understanding of the passage that he was not referring to any real sightings.

33. Mr O'Keefe agreed that at the time the authorities did not know that there were no submarines in the area and undoubtedly it was justifiable to be worried about the possibility of Japanese submarines in the area.

34. Mr O'Keefe was referred to the diary which detailed day-to-day events at Truscott (Exhibit A3) and stated that the frequent search and patrol missions never mentioned contact with the enemy and submarines. Mr O'Keefe stated that this was consistent with no danger being present at that time and that the shooting down of the Dinah in July 1944 was the only major incident to occur at Truscott. Mr O'Keefe stated that the Anti-Aircraft units pulled out because there was no threat from Japanese aircraft and one Anti-Aircraft unit left Truscott on the corvette which was escorting the applicant to Truscott in December 1944.

35. Mr O'Keefe agreed during cross-examination that his evidence of submarines was given in hindsight. Mr O'Keefe stated that sources, particularly Japanese sources, were not available at the time. Mr O"Keefe agreed that it may be that there was genuine apprehension among the applicant and his colleagues whilst travelling and they had to be cautious of any risk, or any possibility of submarine activity occurring. However, sources illustrated that there were no submarines in the area at the time.

submissions of the respondent

36. Mr Doube submitted on behalf of the respondent that the issue before the Tribunal was whether the applicant had rendered qualifying service within the meaning of section 7A of the Act. Mr Doube submitted that in so far as the requirements of section 7A were concerned, the respondent had conceded that the applicant was a member of the Defence Force, that he had rendered service during a period of hostilities and that he was engaged in naval operations against the enemy on a ship of war. Mr Doube submitted that therefore the only issue before the Tribunal was whether the applicant incurred danger from hostile forces of the enemy.

37. Mr Doube submitted that the applicant and respondent were in agreement that the only time that the applicant could have incurred danger was during the voyage he undertook from Darwin to Truscott Airfield in December 1944. Mr Doube submitted that the applicant enlisted in February 1944 when his was 18 years of age, as soon as he was eligible to enlist. Mr Doube explained that the time of the applicant's enlistment was three months after the last attack on mainland Australia and he arrived in Darwin in December 1944, which was 13 months after the last attack on mainland Australia. The applicant immediately undertook a sea voyage to Truscott from 26 to 27 December 1944, a voyage of 20 hours. Mr Doube submitted that this was the only time that that applicant could have incurred danger from hostile forces of the enemy.

38. Mr Doube submitted that the fact that a corvette accompanied the ship upon which the applicant was travelling was standard operating procedure during the wartime. Mr Doube further submitted that the fact that the applicant was told not to smoke in a cargo ship carrying 10,000 barrels of fuel was also a sensible precaution. Whilst the applicant had given evidence that he was not allowed to smoke because the cigarettes could be seen at night, this did not explain why the applicant was not allowed to smoke during the day.

39. Mr Doube submitted that there had been no enemy contact at all from aircraft or submarines during the applicant's voyage. The only German submarine in Australian waters at the time was U862, which left Jakarta, sailed around the bottom of Australia, past the Great Australian Bight and attacked a ship below South Australian waters and then sank the RJ Walker on 25 December 1944, when U862 was located along the east coast of Australia. In relation to Japanese submarines, Mr Doube referred to the reports prepared regarding Japanese naval strength and the book by David Jenkins entitled "Battle Surface" which stated that the last Japanese submarine in Australian waters was the I165, which undertook a voyage concluding in July 1944, five months prior to the applicant's voyage. Therefore, at the time of the applicant's voyage, there were no Japanese submarines left in the area. Mr Doube emphasised that in preparation of his book, Mr Jenkins had consulted with Japanese sources about that fact.

40. In relation to the passage of David Stevens's book entitled "U-Boat Far From Home" where it referred to seven possible sightings of submarines west of Darwin, Mr Doube submitted that the evidence of Mr O'Keefe was that he had spoken to Mr Stevens and had ascertained that these were likely to have been false sightings and that there were many alleged sightings at the time.

41. Mr Doube further submitted that the evidence in relation to Truscott Airfield revealed that there were numerous search and patrol missions at the time but there was no sighting of or contact with submarines or enemy shipping. Mr Doube submitted that on the basis of such evidence by December 1944 such a threat no longer existed.

42. Mr Doube referred the Tribunal to the decision of the Full Federal Court in Repatriation Commission v Thompson (1988) 82 ALR 352 which set out a clear test for "incurred danger". Mr Doube submitted that the test for incurred danger was not a test of one's fears but an objective test of what actually happened and that the danger must arise as a direct result of hostile forces of the enemy.

43. Mr Doube submitted that unfortunately in this case, there was not a time during the applicant's war service that he actually encountered danger as a direct result of hostile forces of the enemy. Mr Doube referred the Tribunal to the oral decision of Deputy President Burns in the matter of Douglas Owen Jenkins and Edward Connelly & Repatriation Commission (2000) (Exhibit R5 - transcript including oral decision), a case concerning two veterans who also had war service at Truscott and based their incurred danger on their flight between Darwin and Truscott. Whilst their voyages proceeded uneventfully, the applicants had perceived that they were in danger during their respective flights and as the enemy was only 400 miles away it was possible that they could have been attacked. Mr Doube submitted that on an objective test, these applicants had not encountered the hostile forces of the enemy.

44. Mr Doube submitted that like the above applicants, the applicant in the instant case had never at any stage encountered hostile forces of the enemy and as the test in Thompson was objective and was not satisfied by mere feelings of being in danger, the applicant could not succeed.

submissions of the applicant

45. The applicant submitted that Mr Doube was setting the test too high when he stated that the applicant had not incurred danger as a direct result of enemy activity. The applicant submitted that Deputy President Burns in the case of Jenkins & Connelly had chastised the respondent in that case for using the word "direct" and the Federal Court in Thompson stated that no other words should be used.

46. The applicant submitted that it could not be denied that the authorities were worried about U-boats in the area at the time of the applicant's voyage. The applicant further submitted that risk cannot be assessed in hindsight and that therefore all post-war information regarding the location of submarines had to be disregarded and the only relevant information was the information at the time of the war. The applicant submitted that one had to look at the actual reality at the time and that liability to danger or risk was not enough, however, once one was exposed to harm or injury, that was a danger. The applicant submitted that anyone taking a voyage at the time not knowing where the submarines were was being exposed to harm or injury.

47. The applicant referred to the Tribunal's decision in Macgregor and Repatriation Commission (1992) 25 ALD 761 which held that the order by a commanding officer that crew be put on full alert and don life-jackets during the HMAS Hawkesbury's entry into Singapore harbour could not be discounted as irrelevant to the objective assessment of risk. The Tribunal stated (at paragraph 48):

"...

In pointing to the requirement that there be some objective basis for a finding to be made when an applicant has incurred danger, the Tribunal does not take this to exclude entirely the relevance of some subjective evidence going to the apprehension of risk. Concern by those engaged in an operational situation (particularly by officers in higher authority) - provided it is grounded in circumstances which give reasonable support to that concern - itself is a significant indicator of risk. Thus in the present circumstances, the fact that an order was given by the officer commanding the Hawkesbury requiring the crew to be at full alert and put on lifejackets cannot be discounted as irrelevant.

..."

48. The applicant submitted that it was not his own personal assessment of the risk but that of the authorities. The applicant further referred the Tribunal to the decision of Buckingham and Repatriation Commission (1992) 28 ALD 412, where the Tribunal stated at 421-422:

"...

To interpret the concept of "danger" as excluding purely subjective feelings of threat or dread, but as including as a relevant factor the perceptions of experts and persons with acquired experience, is consistent with contemporary theory and practice of risk-assessment. According to the latter, quantitative assessment of risk in purely physical terms based on mathematical probabilities no longer is possible: see for example, Environmental Threats: Perception, Analysis and Management (ed Jennifer Brown; London: Belhaven Press; 1989) pp 2-3, 127. As JV Rodricks: Calculated Risks (Cambridge University Press: 1992) says at p199:

Judgments about risk necessarily include factors that are very difficult to make explicit, but which are perceived to be true by experts who, depending upon their experience, have learned to weigh in some fashion large sets of data that can not easily be compared and evaluated in a completely objective way.

Transposed into the context of assessments of danger within the meaning of the Act, measures taken by those in command or procedures defined in orders may provide some basis for inferring that a situation of danger existed.

..."

discussion and findings

49. The Tribunal would indicate at the outset that it has given careful consideration to the whole of the evidence, including the various oral submissions made by the parties.

50. The issue in this matter is whether the applicant meets the eligibility requirements for the rendering of qualifying service during a period of hostilities in accordance with section 7A of the Act. The relevant standard of proof is that of reasonable satisfaction pursuant to sub-section 120(4) of the Act.

51. Section 7A reads as follows:

"7A Qualifying service

(1) For the purposes of Part III and sections 85 and 118V, 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 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

..."

52. It is not in dispute between the parties that, in accordance with the definition of "period of hostilities" as set out in the Act at section 5B(1) of the Act, the applicant served during a period of hostilities, namely during World War 2, in between 3 September 1939 and 29 October 1945 and the Tribunal so finds.

53. It is further not in dispute between the parties that the applicant was a "member of the Defence Force" at the time of his voyage to Truscott and that at that time the applicant was engaged in "naval operations against the enemy on a ship of war", and the Tribunal so finds.

54. The Tribunal therefore turns to consider the issue in dispute between the parties, namely whether or not the applicant at the time of his voyage incurred danger from hostile forces of the enemy. The Tribunal is guided by the Full Federal Court's decision in Repatriation Commission v Thompson (1988) 82 ALR 352 at 356:

"...

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 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.

..."

55. In light of this decision, the Tribunal is mindful that the test as to whether a serviceperson has incurred danger from hostile forces of the enemy is an objective test rather than a subjective test. The Tribunal is also mindful of the submissions of the applicant that in Thompson the Full Federal Court stated that it was desirable to eschew the use of adverbs and adjectives in relation to the term "danger" (at 355-356):

"...

In referring to the word 'danger', Administrative Appeals Tribunals have used adjectives such as 'real', 'actual' and 'substantial'. But the word 'danger' stands for itself. If a serviceman incurs danger from hostile enemy forces, that circumstance is sufficient to satisfy the statutory requirement. It is indeed the specified requirement. No adjective can enlighten the concept.

..."

56. The Tribunal accepts the evidence of the applicant in his description of the voyage to Truscott and of the precautions taken by the authorities at the time, namely, travelling in blackout conditions, banning smoking on board the ship and a navy corvette accompanying the ship. The Tribunal finds the applicant to be a credible witness who at all times did his best to describe the circumstances of his war service.

57. The Tribunal also accepts the historical evidence of Mr O'Keefe and in particular his evidence that at the time of the applicant's voyage:

* U862 was not in northwestern Australian waters and there were no other German submarines left in Australian waters;

* there were no more Japanese submarines in or around Australian waters; and

* the threat posed to Truscott and surrounding areas by enemy aircraft was regarded as negligible.

58. The Tribunal is mindful that Mr O'Keefe's opinion is based upon extensive historical research. The Tribunal also accepts Mr O'Keefe's explanation for the seven apparent sightings of submarines west of Darwin - that they were false or suspected sightings rather than actual sightings.

59. The Tribunal is of the view that objectively the applicant did not incur danger during his voyage to Truscott as there were no enemy forces of either sea or air in the area at that time.

60. The Tribunal accepts the applicant's submission that the attitude and behaviour of those in positions of authority could be indicators of whether a serviceman incurred danger and the Tribunal is mindful of the approach taken in Macgregor and Buckingham. However, in those cases, there was also objective evidence of danger. In Macgregor, a case in part concerning a ship travelling through the newly swept channel into Singapore in September 1945, the Tribunal held that the applicant did incur danger based not only on the concern expressed by those in the operation (particularly officers in higher authority) but also on the objective evidence as to the geographical area and the presence and condition of mines.

61. Similarly, in Buckingham, the Tribunal held that measures taken by those in command or procedures defined in orders could provide some basis for inferring that a situation of danger existed. However, the Tribunal went on to examine the objective circumstances and in particular the sighting and destruction of several mines four days after the applicant's ship left Brisbane. Therefore, whilst it could be said that certainly the attitude of those in positions in authority was relevant in the cases concerning incurred danger, it was not the only relevant evidence present before the Tribunal in relation to whether the applicant incurred danger.

62. In the instant case, the behaviour of the authorities is the only evidence before the Tribunal of danger, as there were no sightings of the enemy in that area at that time. Whilst the behaviour of the authorities (proceeding with great caution, travelling without navigational lights, the ship being escorted by corvette) is certainly relevant to whether or not the applicant was in a situation where he incurred danger, it is not the sole indicator of whether or not danger was present. It was perfectly understandable and sensible for the authorities to be concerned about submarines during the voyage to Truscott as it was not known at that time where exactly the enemy was. However, as stated by the Full Federal Court in Thompson, a serviceman does not incur danger by merely feeling or perceiving that he is in danger - he must be at risk or in peril of harm from hostile forces. The objective historical evidence establishes that at the time of the applicant's voyage there were no enemy forces in the area. Whilst he may have feared that he was in danger or felt apprehensive, he was not at risk or in peril of harm or injury from hostile forces of the enemy during the voyage.

63. The Tribunal does not agree with the applicant's argument that the Tribunal should only look to the historical evidence from the time of the voyage. The Tribunal is to ascertain whether, objectively, the applicant incurred danger from hostile forces of the enemy. This in some cases can only be ascertained after the event, as in this case, where some of the historical evidence is based upon consultation with the former enemy forces to ascertain the location of their ships, submarines and aircraft at the relevant time.

64. Having examined the whole of the evidence including the parties' oral submissions, the Tribunal is not reasonably satisfied on the evidence that the applicant incurred danger from hostile forces of the enemy during his voyage to Truscott. Accordingly, therefore, the Tribunal is not reasonably satisfied that the applicant rendered qualifying service in accordance with section 7A of the Act.

65. For these reasons, the Tribunal affirms the decision under review.

I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE.

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

Barbara Armstrong, Associate

Date/s of Hearing 27 November 2001

Date of Decision 5 February 2002

Counsel for the Applicant In person

Solicitor for the Applicant -

Counsel for the Respondent Mr G. Doube

Solicitor for the Respondent DVA