ANTHONY MOIR and REPATRIATION COMMISSION
[2013] AATA 315
[2013] AATA 315
Division VETERANS' APPEALS DIVISION File Number
2011/5117
Re
ANTHONY MOIR
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 17 May 2013 Place Brisbane The Tribunal affirms the decision under review.
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Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Pensions and benefits – Service with Royal New Zealand Navy –- Member of defence force established by a Commonwealth country – Danger not incurred by hostile forces of the enemy – Qualifying service for service pension not rendered – Decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth), ss 5C, 7A
CASES
Repatriation Commission v Smith (1987) 15 FLR 327
Repatriation Commission v Thompson (1988) 82 ALR 352
Trott and Repatriation Commission (2004) AATA 348
REASONS FOR DECISION
Mr R G Kenny, Senior Member
BACKGROUND
Anthony Moir (“the applicant”) served with the Royal New Zealand Navy (“the RNZN”) from 11 January 1962 until 16 July 1974. On 27 July 2011, he lodged with the Department of Veterans’ Affairs an “Application to Determine Qualifying Service by a Veteran or Mariner”. This was done for the purpose of ascertaining whether his service qualified him for a service pension payable under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). On 8 August 2011, a delegate of the Repatriation Commission (“the respondent”) determined that the applicant had not rendered the required qualifying service.[1] On 3 October 2011, a service pension review officer, as a delegate of the respondent, affirmed that decision.[2]
[1] See s 7A of the Act.
[2] See s 57A of the Act.
SERVICE, LEGISLATION AND ISSUE
It is not in dispute that Mr Moir served with the RNZN as noted above or that he was on HMNZS Otago (the Otago) in the period from 11 October 1965 until 31 August 1966. The applicant has identified aspects of his service on 13 May 1966, 14 July 1966 and 18 July 1966 as being relevant to his application.
In order for the applicant to have his application accepted, he must have qualifying service under the Act. In that regard, s 5C(1) of the Act gives the following definitions:
Commonwealth country means a country (other than Australia) that is, or was at the relevant time, a part of the Dominions of the Crown, and includes:
(a) a state, province or other territory that is one of 2 or more territories that together form, or formed at the relevant time, a discrete part of such a country; and
(b) a place that is, or was at the relevant time, a territory, dependency or colony (however described) of a part of such a country
qualifying service has the meaning given in section 7A.
For qualifying service, s 7A(1)(b) of the Act reads:
(1) For the purposes of Parts III and VA and sections 85 and 118V, a person has rendered qualifying service:
…
(b) if, during a period of hostilities, the person has, as a member of the defence force established by a Commonwealth country, rendered, in connection with war or war‑like operations in which the Naval, Military or Air Forces of Australia were engaged:
(i) service, in an area outside that country, at a time when the person incurred danger from hostile forces of the enemy in that area;
The issue for determination is whether Mr Moir’s RNZN service included qualifying service in accordance with those provisions. The standard of proof for determining that issue is set out in s 120(4) of the Act. This provision requires that such matters be determined to the Tribunal’s reasonable satisfaction. This imports the civil standard of proof so that matters must be determined on the balance the probabilities.[3]
[3] Repatriation Commission v Smith (1987) 15 FCR 327 at 335 per Beaumont J.
CONTENTIONS
The applicant’s case was based on previous decisions of the respondent in which service by certain crew members of the Otago was accepted as qualifying service under the Act. Their service was identical to that of the applicant who considered that his service should be recognised in the same way. Reference was also made by the applicant to the Tribunal’s decision in Trott and Repatriation Commission[4] (Trott) where a crew member of the HMS Centaur was found to have rendered qualifying service in the Malacca Straits in 1964.
[4] (2004) AATA 348.
For the respondent, Mr Williams submitted that the Tribunal was not bound by earlier decisions of the respondent and that the matter should be determined on the evidence of the applicant and that of the researcher engaged by the respondent to investigate relevant service records. He conceded that the applicant had served with a Commonwealth country but submitted that there was no evidence that the applicant incurred danger from hostile forces of the enemy at any time while serving on the Otago. In that regard, he relied on the Full Federal Court decision in Repatriation Commission and Thompson[5] (Thompson). Accordingly, Mr Williams submitted that the applicant was not eligible to receive the service pension.
EVIDENCE
[5] (1988) 82 ALR 352.
The applicant
The applicant’s evidence was that he was a crew member of the Otago as part of the Far East Strategic Reserve when it was engaged in anti-infiltration patrols by Indonesian forces. This was in the Malacca Straits and he referred to several incidents that he had become aware of and in which the Otago and its crew incurred danger from Indonesian entities.
The applicant’s service on the Otago from 1965 to 1966 was his first sea posting. He was a “control electrical artificer apprentice” at the time and described himself as a junior rating. He was positioned below deck at all times when he was on duty and when the Otago moved to higher states of readiness, such as action stations, which he believed was applicable in some of the incidents of hostility that the Otago encountered. Because he was below decks, he was not an eye-witness to any of those incidents and learned of them from others who were aware of the manoeuvres of the Otago from their positions on the upper decks. He did have some understanding of one such incident on 14 July 1966 when he was told, after the event, that the Otago had been engaged with an Indonesian gun-boat while the Otago was in the process of providing protection to the HMS Eagle (“the Eagle”), an aircraft carrier of the Royal Navy. He did not see the interaction between the vessels but was aware of “violent turns” made by the Otago at the time. He also recalled that the crew were then at action stations.
Hostile events
Incidents identified by the applicant as being relevant to his qualifying service occurred on 13 May 1966, 14 July 1966 and 18 July 1966. He relied on a statement, in which they were detailed, completed by one of the crew members whose Otago service was accepted as qualifying service under the Act.[6] These were:
13 May 1966
Otago chased off two longboats which were suspected of carrying Indonesian Special Forces but could not open fire on them because of the grave danger of hitting one of the many merchant ships and tankers in the vicinity. There was also the danger of collision. The Otago tried unsuccessfully to ram one of the longboats. The Otago was in imminent danger of being machine-gunned by Indonesian personnel on the longboats and all deck crew were required to lie flat on the deck to minimise the prospect of injury. The chief radio operator transmitted messages of the incident to the Darwin radio station.
14 July 1966
While escorting the Eagle, two Russian built Indonesian gun-boats armed with surface to surface missiles came at the Otago at high speed. The Otago’s response was to go to action stations, arm the Sea Cat missile system, load the 4-5 inch turret with high explosives and train the gun’s radar on the missile boats. The Eagle ordered the Otago to keep the gun-boats away which, because of the narrowness of the Straits, required the Otago to make violent manoeuvres to keep between the gun-boats and the Eagle. The engagement lasted for 15 minutes before the gun-boats made off at high speed.
Afterwards, the Otago intercepted a dhow and a boarding party was sent to inspect it for smuggled goods. A shot was fired by a crew member of the Otago as a warning against aggression by the dhow crew.
[6] See Exhibit 1, T-documents, pp. 20-24.
18 July 1966
While escorting the tanker RFA Gold Ranger, a Komar class missile gun-boat made threatening and aggressive manoeuvres towards the tanker and the Otago, which went to action stations State 1 Zulu. While manoeuvring to keep the gun-boat away from the tanker, HMS Fiskerton (“the Fiskerton”) arrived at high speed to assist by chasing off the gun-boat.
The statement also referred to an incident which occurred while the Otago was escorting the Eagle. The Otago detected, in Malaysian waters, an Indonesian patrol boat which it chased back to the meridian line at high speed. When in sanctuary, the patrol boat slowed and flashed “good bye” to the Otago.
Philip Mulcare (Writeway Research Service Pty Ltd)
The respondent utilised Mr Philip Mulcare, from Writeway Research Service Pty Ltd (“Writeway”), to obtain background information about the events surrounding the applicant’s service. Mr Mulcare retired from the RAN with the rank of Commodore and was serving on the HMAS Yarra in 1965 and 1966. He completed reports on 18 June 2012[7] and 24 August 2012[8] and gave evidence. His research involved a study of the Otago’s official Reports of Proceedings and Log Books for the periods referred to above. These were attached to his reports.
[7] See Exhibit 2.
[8] See Exhibit 3.
Mr Mulcare found no entries in the Otago’s records to confirm the events relied on as hostile enemy action by the applicant. Those records reveal that, on 13 May 1966, the Otago changed course several times in quick succession over several minutes while at the same time varying its speed from 8 to 20 knots and back to 8 knots. Mr Mulcare said that this was consistent with the Otago chasing boats into Indonesian waters. Also, the Otago stopped to investigate two vessels. With those actions, there is no reference in the Otago’s documents to any form of violent confrontation. Neither is there a record of an attempt to ram a longboat, which Mr Mulcare described as being in contravention of explicit instructions in MALPOS II[9]. Mr Mulcare said that if the Otago had moved to a heightened state of readiness at that time, it would be recorded in the ship’s Log. No such change is recorded.
[9] Orders for Ships Patrolling in Defence of the Western Malaysian Seaboard, Second Edition, issued 25 March 1965.
The Otago’s records for 14 July 1966 reveal that it detected an Indonesia patrol boat in Malaysian waters ahead of the Eagle and chased it back over the meridian line. The record shows that it was a high speed chase with the patrol boat maintaining distance between them until in sanctuary when it slowed and flashed a farewell “Good Bye”. Mr Mulcare said that the Otago’s records do not indicate an increase in the ship’s state of readiness during the chase which lasted for 12 minutes and no indication of aggressive manoeuvring or any other indication of hostile intent by the Indonesian vessel. Mr Mulcare noted an RAN report[10] in which the Commander Far East Fleet wrote that it was of interest to note that “there was at no time any attempt by the Indonesians deliberately to attack naval ships …”. Mr Mulcare also said that there was no record of the Otago crossing the Straits after the gun-boat chase.
[10] Naval Operations in the Malacca and Singapore Straits 1964-1966.
Mr Mulcare found no record of the incident attributed to 18 July 1966. Reference is made to the Otago speaking to an Indonesian Customs launch which, he said, would have been through means of flashing lights or loud hailer. He noted that the encounter is referred to in the ship’s Log but not the Report of Proceedings and he believed that such a vessel would pose no threat to the Otago. He said that there was no record of any guided missile patrol boat making threatening or aggressive manoeuvres toward the Otago nor of the Fiskerton coming to the assistance of the Otago. Mr Mulcare believed that any such incidents would have been recorded in both the Ship’s Log and Report of Proceedings. Mr Mulcare said that there was no record of a warning shot being fired from the Otago during the interception or search of an Indonesian vessel in 1966.
CONSIDERATION
The statement concerning the events relied on by the applicant to demonstrate that he incurred danger from Indonesian forces was not made by the applicant. The author of the statement did not give evidence. The applicant has no independent knowledge of the incidents described in the statement apart from an awareness of sudden manoeuvring of the Otago on an occasion. The evidence of Mr Mulcare is in direct contrast in most material particulars with that given in the statement relied on by the applicant. Mr Mulcare’s reports relied on official records of the Otago and these were produced in evidence. In those circumstances, I am reasonably satisfied that the evidence of Mr Mulcare should be preferred over that of the author of the statement. As noted, the applicant was not in a position where he was able to contradict Mr Mulcare’s evidence from his own observations.
In Thompson,[11] the Full Federal Court considered the expression “incurred danger from hostile forces of the enemy”. That case was concerned with s 36 of the Act but I am satisfied that the observation’s therein are applicable to the same expression as it appears in s 7A(1)(b) of the Act. There, at 356, the 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.
[11] See note 3 (above).
I am satisfied, on the balance of probabilities, that, objectively, the applicant did not incur danger from Indonesian forces in 1966. Indeed, there is no evidence that, subjectively, he sensed any such danger as his reliance was placed on versions of events recounted by others and which are inconsistent with official records of the Otago in the manner given by Mr Mulcare in his evidence.
As the applicant did not incur danger from hostile forces of the enemy, he does not satisfy the terms of s 7A(1)(b) of the Act and does not have the requisite qualifying service for the service pension. I have noted the main submission of the applicant which was that his application should be accepted because of acceptance by the respondent of other applications by crew members of the Otago who were in identical circumstances as those of the applicant. Clearly, the Tribunal is not bound to follow those determinations of the respondent. I am unaware of the evidence on which those determinations were made but it would seem that evidence of the kind provided by Mr Mulcare was not considered by the respondent in making those determinations.
In so determining, I have noted the reference by the applicant to the Tribunal decision in Trott.[12] That case was concerned with a different vessel and an earlier period in the Malacca Straits. That case was determined on the nature of the circumstances then prevailing. They can be distinguished from those of the Otago in 1966.
[12] See note 4 (above).
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member. ..........................[Sgd]..............................................
Associate
Dated 17 May 2013
Date of hearing 1 May 2013 Applicant In person Advocate for the Respondent Bruce Williams
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