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Administrative Appeals Tribunal of Australia |
Last Updated: 21 August 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
VETERANS' APPEALS DIVISION |
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Re |
William Thompson |
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And |
Repatriation Commission |
Tribunal |
Mr RP Handley, Deputy President |
Decision
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The Tribunal affirms the decision under review. |
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Deputy President
CATCHWORDS
VETERANS ENTITLEMENTS - eligibility for Gold Card - whether Applicant qualifies for Gold Card - "qualifying service" - examination of Applicant's service record - examination of Army war records for attack on Newcastle in June 1942 - held that the Applicant did not render "qualifying service" and is not eligible for a Gold Card - decision of the Respondent affirmed.
Veterans Entitlement Act 1962 ss 5B(I), 7A, 85(4A), 120(4)
Repatriation Commission v Mitchell [2002] FCA 1177
Repatriation Commission v Thompson (1988) ALR 352
Willcocks v Repatriation Commission (1962) 111 ALR 639
21 August 2003 |
Mr RP Handley, Deputy President |
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1. This is an application by William Thompson ("the Applicant") for a review of a decision of a delegate of the Repatriation Commission ("the Respondent") made on 20 September 2002 to refuse the grant of a Gold Card to the Applicant.
2. At the hearing, which was held at Wallsend near Newcastle, the Applicant was assisted by his son Peter Thompson and the Respondent was represented by Michael Ryan, Advocate, of the Department of Veterans' Affairs. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents") together with the documents tendered by the parties at the hearing. The Applicant gave evidence in person.
Background
3. The Applicant, William Thompson, was born in West Wallsend on 12 May 1912 and is aged 91. He is married to Thelma Catherine Thompson and has one son, Peter.
4. On 31 January 1942, Mr Thompson enlisted in the Australian Army (T p6) in which he served from 2 March 1942 until 27 January 1945 (T p23). During this period, Mr Thompson's Army service was wholly within Australia (T p23). In June 1942, Mr Thompson was stationed at Speers Point, on Lake Macquarie, south of Newcastle, with the 20th Field Regiment as a dispatch rider.
5. During the early hours of the morning on 8 June 1942, a Japanese submarine attacked Newcastle, firing 34 shells into the port and city areas from a distance of approximately nine kilometres northeast of the city: eight of the shells were star shells for illumination; 26 were high explosive shells. In response, the coastal battery at Fort Scratchley fired four rounds in the direction from which the enemy shells were coming. It is estimated that the shelling lasted for approximately 21 minutes, with only superficial damage being sustained to the city environment (T p18). The location of where 19 of the shells landed is known. It is thought that the remainder probably landed short in the sea. Most of the shells that landed failed to explode.
6. On the night of the attack, Mr Thompson was with his Regiment at Speers Point. Not long before the shelling commenced, he was ordered to deliver a dispatch to Fort Scratchley in Newcastle, a distance of approximately 15 kilometres (T p5), to await a reply and then to return to his base. Mr Thompson reported that not long after he arrived at Fort Scratchley, the shelling commenced. He saw damage caused by an exploded shell in Parnell Place, behind Fort Scratchley, on his return journey to Speers Point.
7. On 9 September 2002, Mr Thompson lodged an application for a Gold Card, claiming that in June 1942, whilst serving with his unit, he was in danger from exploding shells (T p11). On 20 September 2002, Mr Thompson was advised by an officer of the Respondent that he did not qualify for a Gold Card as he did not meet the requirement of "qualifying service" because he did not serve outside Australia between 3 September 1939 and 29 October 1945, and because he "did not incur danger from hostile forces whilst serving inside Australia" during this period (T p12).
8. On 11 October 2002, Mr Thompson lodged an application for a review of that decision (T p14). On 19 December 2002, a delegate of the Respondent affirmed the decision of 20 September 2002, on the basis that Mr Thompson had not rendered qualifying service (T p23). On 21 January 2003, Mr Thompson lodged an application for a review of this decision with the Tribunal.
Applicable Legislation
9. Section 85(4A) of the Veterans Entitlement Act 1986 ("the Act") sets out the provisions relating to the Gold Card as relevant to World War 2 service as follows:
(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.
"Period of Hostilities" is defined in relation to World War 2 in subsection 5B(i) as commencing on 3 September 1939 and ending on 29 October 1945.
10. To be eligible for a Gold Card, a veteran must have rendered "qualifying service", defined in s 7A as follows:
Qualifying service
(1) For the purposes of Parts III and VA 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 ...
11. The standard of proof is that of reasonable satisfaction as set out in s 120(4) of the Act:
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
12. Since Mr Thompson served in the Defence Force from 2 March 1942 to 27 January 1945, the issue for the Tribunal to determine is whether he rendered qualifying service.
Evidence
William Thompson (the Applicant)
13. Mr Thompson said that at the time of his conscription, he was a professional speedway rider. Not long after he had married and purchased a house, he was called up and asked to report to the Drill Hall in King Street, Newcastle. At first, the new recruits had no uniform or boots and had to undergo training in their civilian clothing and shoes. The new recruits - about 900 men - were sent to the Regimental Headquarters in a public park near Speers Point.
14. Mr Thompson was given the rank of Bombardier and put in charge of training about 20 motor cycle dispatch riders. When their initial training was complete, the men were divided into three battalions which went on separate training exercises. Mr Thompson stayed at the Regimental Headquarters at Speers Point as their dispatch rider. He would also sometimes act as Orderly Sergeant.
15. At Speers Point, the men slept eight to a tent. In the early hours of the morning on 8 June 1942, Mr Thompson was woken by the duty Orderly Sergeant and asked to take a dispatch to Fort Scratchley in Newcastle. The Orderly gave him an envelope and indicated that the dispatch was from the Second in Command at Speers Point, Captain Turner. It was dark at the time he was woken and the other men in Mr Thompson's tent were left to sleep. There were lights on in the park as usual and Mr Thompson did not hear any sirens.
16. Mr Thompson said he would have dressed, got his motor bike out from under the tarpaulin and checked the fuel in readiness for leaving. He thought it might have taken up to 45 minutes to get ready. Being a native of Newcastle, he knew the roads in the vicinity well and would have ridden fast to Newcastle, taking about 20 minutes. On arriving in Newcastle, he noticed nothing unusual - it was very quiet and there was virtually no traffic on the road. He cannot remember whether or not the street lights were on.
17. Mr Thompson rode straight to Fort Scratchley and in through the gate. He handed the dispatch to the Orderly Sergeant and then waited with his motor bike for a reply. People in the Fort seemed to be unusually active and running around. About 15 minutes after he arrived, he heard something whizz past in the air and then an explosion. He assumed this was an incoming shell. He remembers dogs barking. He "was frightened as blazes" and thought they were going to be shelled. Everybody seemed to be racing around. He remembers the battery guns firing - about 100 yards from where he was - but he cannot remember for how long.
18. Eventually, Mr Thompson received a reply from the Orderly Sergeant and, as soon as he could, he left to return to Speers Point. His way took him through Parnell Place at the back of Fort Scratchley, where the shell had exploded. He stopped to see if he could render assistance - but there were lots of people there and nothing he could do, so he continued on his way to Speers Point.
19. On arriving at Speers Point, he rode past the guards, who were the only soldiers with rifles, who stood with rifles and bayonets attached. He cannot remember there being any unusual activity at the camp on his return or whether any vehicles had been dispersed. The vehicles - mostly four-wheel drive gun carriages - were usually dispersed any way. Mr Thompson said he would have delivered the return dispatch to the Orderly Sergeant and then went back to bed in his tent. He cannot remember if the soldiers were "stood to" at 05.30 hours that morning.
20. Mr Thompson said he did not go back to Fort Scratchley that day. Indeed, the trip in the early morning of 8 June 1942 is the only occasion he can remember delivering a dispatch to Fort Scratchley. Most of his dispatch riding involved delivering dispatches to the Regiment's three battalions while they were out on exercises in the surrounding area. Mr Thompson could not remember there being radio communication equipment or field telephones. They were poorly equipped. He also could not remember keeping a diary when he acted as Orderly Sergeant although it is possible the Orderly Officer might have done so.
Submissions
Respondent
21. Mr Ryan, for the Respondent, acknowledged that Mr Thompson's Regiment may not have had a field telephone or radio communication equipment. It is possible someone at Speers Point might have heard the air alert sirens sound in Newcastle at 12.35am, after the shelling of Sydney by a submarine, and that Mr Thompson might have been dispatched to Fort Scratchley to find out what was happening there. Mr Ryan said he accepts the time frame outlined by Mr Thompson: if he was woken at around 12.55am and had left Speers Point to ride to Newcastle at about 1.40am, he would have arrived at Fort Scratchley at about 2.00am. The records show that the shelling by the Japanese Submarine commenced between 2.15am and 2.20am and lasted for about 20 minutes, during which time the Fort Scratchley gun battery fired four rounds over a period of about five minutes. Mr Ryan conceded that Mr Thompson's Regiment's sending of a dispatch rider to Fort Scratchley might not have been recorded.
22. Mr Ryan said the issue is whether the Applicant rendered "qualifying service" as defined in s 7A of the Act. The Respondent contends that Mr Thompson was not rendering service "in naval, military or aerial operations against the enemy" when Newcastle came under attack: Willcocks v Repatriation Commission (1962) 111 ALR 639 at 646 - 647. Moreover, Mr Thompson did not incur danger from hostile forces of the enemy at that time or at any other time during his Army Service. Mr Ryan noted that the words "incurred danger" provide an objective test. "A serviceman does not incur danger by merely perceiving or fearing that he may be in danger": Repatriation Commission v Thompson (1988) 82 ALR 352 at 356.
23. In conclusion, Mr Ryan said the Respondent contends that Mr Thompson did not have qualifying service as defined in s 7A. He was not involved in operations against the enemy. He fulfilled his duty as a dispatch rider and returned promptly to his Regiment at Speers Point.
Applicant
24. Mr Peter Thompson, speaking on behalf of his father, contended that his father did have qualifying service. He incurred danger and was present at Fort Scratchley during the shelling by a Japanese submarine. If the action had gone on, Mr Thompson would have been called on to undertake other roles.
25. Mr Peter Thompson said after the Japanese midget submarine attack in Sydney Harbour on 31 May 1942 and the shelling of Sydney by a submarine shortly after midnight on the night of 7 and 8 June, and after the sounding of the air alert siren in Newcastle at 1.00am that night, there was a heightened sense of alert. Nevertheless, he acknowledged that it is not clear how the Regiment at Speers Point knew something was going on. He noted that the Fort Scratchley War Diary (R4) records very little detail of the events of that time, and thus the lack of any record of a dispatch being sent to Speers Point is not of any consequence.
26. Mr Peter Thompson said his father was in close proximity to the shell exploding in Parnell Place - he was about 120 metres away - and was engaged in operations against the enemy. He is therefore qualified for a Gold Card.
Consideration of the Law and Findings
27. As stated above, the issue for the Tribunal to determine is whether Mr Thompson rendered "qualifying service" pursuant to s 7A of the Act so as to be eligible for a Gold Card. This requires, first, that Mr Thompson rendered service "in naval, military or aerial operations against the enemy in an area" and, second, incurred danger from hostile forces of the enemy in that area.
28. In Willcocks (supra) at 646-647, Cooper J discussed the meaning the phrase "naval, military or aerial operations against the enemy". At 647, he said:
In my view, the word "against" ... is used in the sense of "in hostility or active opposition to" ... The section requires service, inter alia, in military operations against the enemy, in the sense of operations in hostility or opposition to the enemy.
29. In Repatriation Commission v Mitchell [2002] FCA 1177 at paras 23-24, Cooper J said:
23. The correct question to be addressed for the purpose of s 7A(1)(a)(i), is whether the veteran rendered military service in an area where naval, military or aerial operations against the enemy occurred, and if so, whether in a practical way the service of the veteran was an integral part of those naval, military or aerial operations against the enemy in that area. Those operations, as I indicated in Willcocks, must be in hostility or opposition to the enemy.
24. The section does not require that the veteran be involved in actual personal combat against the enemy. Even the phrase "actual combat against the enemy" does not require direct and personal engagement with the enemy and it is sufficient that the conduct in question is an integral participation in an activity intended for an encounter with the enemy, whether offensive or defensive in character: Repatriation Commission v Ahrenfeld (1991) 29 FCR 556 (FC) at 562 - 563.
30. The second requirement is that the person incurred danger from hostile forces of the enemy in that area. In Thompson (supra) at 356, the Full Federal Court said:
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 minimis applies. But to say that is not to give a flavour to the word. Rather it is to use it in its ordinary sense.
31. The Tribunal accepts Mr Thompson's evidence that he was at Fort Scratchley at the time the Japanese submarine commenced its shelling of Newcastle, and that he heard a shell exploding in Parnell Place behind Fort Scratchley, approximately 120 metres from where Mr Thompson was at the time. The expert evidence of the Respondent's historian Brendan O'Keefe (R1, R2 and R3) supports a finding that Mr Thompson was probably asked to take a dispatch from Speers Point to Fort Scratchley after the air alert sirens had sounded in Newcastle at 12.35am that night to find out what was happening, and that it was for this reason that at the time of the shelling he was waiting with his motor bike for a return dispatch.
32. The Tribunal also accepts that Mr Thompson would have heard the battery at Fort Scratchley returning fire - although the records show that only four rounds were fired from about 2.26am.
33. When Mr Thompson received the return dispatch, he started the journey back to Speers Point, stopping in Parnell Place to see if he could render assistance. He said there was nothing he could do - there were many others already there - and so he resumed his ride to Speers Point. The War Diary for Speers Point records that at 3.30am on 8 June 1942 a message was received that Newcastle had been shelled at 02.25 hours (R1). The message form itself (R1) indicates that the message was received at Speers Point at 03.30 hours which is consistent with the time at which Mr Thompson would probably have arrived back at Speers Point. Thus, Mr Thompson's account of what happened to him in the early hours of the morning of 8 June 1942 are essentially consistent with the historical records.
34. Turning to the application of the law, the first issue is whether Mr Thompson rendered service in military operations against the enemy. In the Tribunal's view, although Mr Thompson was undoubtedly present at Fort Scratchley during the time of the shelling and return fire, his presence was not an integral part of the military operation against the enemy. He was there to deliver a dispatch and convey a response to his Regiment at Speers Point. This is not in any way to belittle Mr Thompson's wartime service. It is just that he did not, in the Tribunal's view, play an integral part in military operations against the enemy.
35. The second issue is whether Mr Thompson incurred danger from hostile forces of the enemy in that area. This is an objective test. In the Tribunal's view, the risk of danger to Mr Thompson was minimal. Nineteen shells are known to have landed of the 34 shells fired from the submarine. Of those 34 shells, eight were star shells for illumination and 26 were high explosive shells. The shelling occurred over a period of just over 20 minutes (R1, R2). The main target was probably the shipyard and the Steel Works. Only two of the high explosive shells are known to have exploded - the one in Parnell Place (R1) heard by Mr Thompson, and another near the BHP Steel Works. A shell also landed about 50 metres from Parnell Place, smashing a train terminus, but failed to explode. Nobody was injured by the shell exploding in Parnell Place although houses were struck by shrapnel (R1 and A1).
36. While it is understandable that Mr Thompson was frightened by the shell exploding in Parnell Place and, possibly, by the sound of a second shell which hit the nearby tram terminus but did not explode, and by the four rounds fired by the battery in reply, in the Tribunal's view, objectively, he did not incur danger from hostile forces of the enemy. Thus, while acknowledging Mr Thompson's wartime service, he did not render "qualifying service" pursuant to s 7A of the Act and is not eligible for a Gold Card. The Tribunal therefore affirms the decision under review.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .......................................................................................
Associate
Date/s of Hearing 8 August 2003
Date of Decision 21 August 2003
Representative for the Applicant Mr P Thompson
Representative for the Respondent Mr M Ryan, Advocate
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