Bailey and Repatriation Commission

[2003] AATA 745

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 745

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/866

VETERANS' APPEALS   DIVISION		)
Re		SAMUEL BAILEY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal REAR ADMIRAL A R HORTON AO, Member

Date4 August 2003 

PlaceSydney

Decision The decision under review is affirmed.

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

Rear Admiral A R Horton
  Member 

CATCHWORDS

VETERANS’ AFFAIRS – Eligibility for the Gold Card – whether Applicant rendered qualifying service – Army service during period of hostilities – service in Sydney area during Japanese submarine attacks in 1942 – service in Darwin area 1944/46 – whether Applicant incurred danger from hostile forces of the enemy – whether Applicant rendered service in operations against the enemy

LEGISLATION

Veterans’ Entitlements Act 1986 – sections 5B(1), 5C(1), 6A, 7A(1), 85(4A), 119, 120(4)

AUTHORITIES

Repatriation Commission v Thompson (1988) 44 FCR 20

Willcocks v Repatriation Commission (1992) 39 FCR 49

Repatriation Commission v Mitchell [2002] FCA 1177

Re Crawford and Repatriation Commission (1987) 14 ALD 341

Re Tiplady and Repatriation Commission (1987) 12 ALD 670

Re Carlyon and Repatriation Commission (AAT 12957, 6 May 1998)

Re Corrick and Repatriation Commission [2000] AATA 143

Re Smith and Repatriation Commission [2000] AATA 111

Re Pearse and Repatriation Commission [2000] AATA 330

Re Mirabito and Repatriation Commission [2001] AATA 453 

Re Mitchell and Repatriation Commission [2001] AATA 1055      

REASONS FOR DECISION

4 August 2003 REAR ADMIRAL A R HORTON AO       

1. This is an application for review of a decision made on 27 December 2001 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 4 April 2002, that Samuel Bailey, (“the Applicant”) did not render qualifying service for the purposes of section 7A of the Act, and hence is not eligible for the Gold Card under section 85(4A) of the Act. The Applicant lodged an application for review by the Administrative Appeals Tribunal (“the Tribunal”) on 25 June 2002.

2.      At a hearing before the Tribunal at Gosford on 9 July 2003, the Applicant was self-represented.  Mr J Marsh, Senior Advocate, appeared for the Respondent. 

3.      The Tribunal had before it as evidence the following documents:

Exhibit No	Description	Date
T1-10 pp1-26	Documents pursuant to section 37 of the     Administrative Appeals Tribunal Act 1975
A1	Applicant’s Letter to Mr Marsh	12 February 2003
R1	Historian’s Report of Mr Brendan O’Keefe	23 November 2002

LEGISLATION AND ISSUES     

4. Eligibility for the Gold Card is established pursuant to section 85(4A) of the 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."

5. The Respondent concedes that the Applicant is a veteran as defined in section 5C of the Act, that he served during the relevant period of hostilities as defined in section 5B(1) of the Act, and that he meets the criteria for age as defined in subsection 85(4A)(a) of the Act. Hence the only issue before the Tribunal is whether the Applicant rendered qualifying service. The required standard of proof is that of reasonable satisfaction, pursuant to section 120(4) of the Act.

6. "Qualifying service" is defined in section 7A of the Act which relevantly states:

"7A(1)For the purposes of Part III … , 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

..."

BACKGROUND AND EVIDENCE

7.        The Applicant was born on 18 April 1924.  Prior to his enlistment into the Citizen Military Forces (“CMF”) of the Australian Army on 16 December 1941, he was a sheet metal worker.  On 3 September 1942, he transferred to the Australian Imperial Force (“AIF”), being therefore eligible and a volunteer, as he informed the Tribunal, for overseas service.  His service record (Service and Casualty Form AF B103) shows that he was posted to the Coast Fortress Defences, also known variously as Sydney Fixed Defence Command, Sydney Fortress and Sydney Coast Artillery (Mr O’Keefe at Exhibit R1), where he served as a gunner.

8.        His service record indicates that the Applicant was stationed at North Head (Heavy Artillery) from completion of his initial two weeks induction training, that he was at Cape Solander on 24 July 1942, and that he was again at North Head on 3 September 1942.  His service record indicates he remained in Sydney, seemingly with Coast Artillery Sydney until transferred to the Darwin Coast Artillery on 17 March 1944.

9.        The Applicant sought to clarify his movements during this period.  He stated that he had at all times been a member of the Coast Fortress Defences, employed as a gunner on six inch coast defence artillery, or on three pounder guns located inside the harbour.  Whilst his Service and Casualty Form indicated that with the exception of a single entry (dated 24 July 1942) in relation to Cape Solander, he remained at North Head, this had not been the case.  His clear recollection was that after the initial two weeks at North Head, (that is in early January 1942) he had been transferred to South Head, and in about July 1942, he had been further transferred to Cape Solander.  There he remained until his transfer to Darwin.  Mr O’Keefe suggested in his report that it was quite feasible that such transfers within the same unit took place without a specific entry in his service records.  The Respondent accepted that the movement described by the Applicant had indeed happened, an acceptance the Tribunal considers to be both logical and appropriate.   

10.      Whilst stationed at South Head, the Applicant primarily lived in the army barracks, located in the vicinity of what is presently the naval establishment, HMAS Watson.  His duties alternated between manning the coastal defence six inch batteries at the cliff face, or the three pounder guns at Green Point at the southern end of Camp Cove.  In his final two weeks or so at South Head, before transferring to Cape Solander, he underwent a period of training relative to what would be his radar and gunnery responsibilities at Cape Solander.  This training took place at an army house in Dover Heights, the exact location being unknown, where he was billeted during that period.

11.      On 31 May/1 June 1942, the Japanese midget submarine attack on shipping in Sydney Harbour took place.  The details of that attack have been well documented.  One submarine became trapped in the anti-torpedo net and was destroyed by the crew; a second penetrated the harbour defences and fired two torpedoes at USS Chicago.  Both torpedoes missed, one striking Garden Island but not exploding, and the other exploding beneath HMAS KUTTABUL; this midget submarine then escaped from the harbour.  The third midget also penetrated the harbour but was attacked and sunk at about dawn on 1 June.  Mr O’Keefe explains at page 3 of Exhibit R1 that whilst the daily record of war diaries for the Sydney Fixed Defence Command for June 1942 is missing, he has been unable to find any evidence that coast artillery were in action that evening, the only firings being from vessels in the harbour.

12.      The Applicant could not recall where he was that evening, but said he might have been at Camp Cove.  However, he was not aware of his unit being engaged in any activity at that time – although he believed they should have been - and stated that he had never experienced a firing against a hostile target, his only experience being against drone targets.  He neither heard nor saw anything that he can recall.  

13.      The second and last attack on Sydney was that by submarine I–24 some eight days later, shortly after midnight on 8 June 1942, when 5.5 inch shells were fired at the Sydney Harbour Bridge from about 15 kilometres south east of Macquarie Light.  (The Applicant recalled that a third attack had taken place, but it can be assumed that this “third attack” was that on Newcastle by submarine I-21 later that evening).  The evidence the Applicant gave in respect of his recollection of his observations, what he heard, and his actions, given that he recalls being at Dover Heights, almost certainly relates to this second attack.  He heard “shells going over”, and his unit took cover in a slit trench at the back of the house.  He did not hear any explosions, but believed that he was in danger.  At no time was he closed up at any action station or required to man guns.

14.      Again, the circumstances of this attack are now well recorded.  Ten shells were fired from I–24, eight landing in the Rose Bay/Bellevue Hill area and one in Vaucluse.  It is assumed the tenth fell in the harbour off Rose Bay.  Only one exploded, that being in Rose Bay.  As stated by Mr O’Keefe, quoting from the authoritative Battle Surface! Japan’s Submarine War Against Australia 1942-1944, by David Jenkins, coastal artillery batteries did not fire at I–24.  As to the shell that landed in Vaucluse, Mr O’Keefe opines that the trajectory would have taken it over part of Dover Heights.   

15.      As earlier noted, the Applicant was transferred to Cape Solander in about July 1942, a location he found interesting and different given the absence of roads in the area, normal travel to and from being by ferry and horse.  He observed on radar, and presumably visually at times, unidentified aircraft approaching the coast, but no action took place and, as previously noted, he experienced no firings at possibly hostile targets.  In March 1944, he transferred to the Darwin Coast Artillery, travelling by train and truck.  There he was located at East Point.  He remained in the Darwin area until 27 February 1946.  Late in that period, he was re-graded as a Group 2 Cook.  During his service at East Point, he observed what he thought were reconnaissance aircraft, but no firings took place, there were no attacks to his knowledge, and he did not feel that he was in danger.  His claim for qualifying service rests on the circumstances of his service in Sydney when the Japanese submarine attacks took place.

SUBMISSIONS AND FINDINGS

16.      As acknowledged by the Applicant in summing up his position, the claim for qualifying service rests primarily on the circumstances of his service in the Sydney Fixed Defence Command during the period when the Japanese submarine attacks took place.  On those occasions he felt in danger, and vulnerable, and the incidence of hearing shells passing overhead was evidence of that danger.  The failure by Coast Artillery Sydney to respond to those attacks did not lessen the threat, but in his view, indicated command deficiencies.  As he further observed in his statement at Exhibit A1, he and his unit were vulnerable to attack at Cape Solander, not the least because of the isolation of that facility.  

17.      The Respondent submitted that the circumstances of the Applicant’s service were effectively on all fours with Re Mirabito and Repatriation Commission [2001] AATA 453. The issues revolved around the Applicant’s situation on the two occasions in which Japanese forces carried out attacks on Sydney, observing that there was no evidence before the Tribunal of any other incidents involving hostile forces. The Respondent acknowledged that the Applicant was drawing on his memory some sixty years after the events, but considered his evidence was sufficient to enable a decision to be made. Citing a “significant body of case law”, the Respondent submitted that the Applicant had not met the criteria for qualifying service as defined in section 7A of the Act.

18. The issue to be considered in this matter is whether the Applicant rendered qualifying service by meeting the “incurred danger” test pursuant to section 7A(1)(a)(i) of the Act, the other criteria required under subsection 85(4A) in respect of eligibility for the Gold Card having been met.

19.      The Respondent submitted that the relevant test was an objective one rather than a subjective one, and that the authoritative definition in respect of such a test was found in Repatriation Commission v Thompson (1998) 44 FCR 20.In that matter, the Full Court stated at 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, 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 a 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."

20.      The Respondent submitted that on the evidence available to the Tribunal, the Applicant did not meet this authoritative objective standard at any stage in his army service, and further referred the Tribunal to the following decisions in support of this contention: Willcocks v Repatriation Commission (1992) 39 FCR 49, Re Crawfordand Repatriation Commission (1987) 14 ALD 341, Re Corrick and RepatriationCommission [2000] AATA 143, Re Smith and Repatriation Commission [2000] AATA 111 and Re Pearse and Repatriation Commission [2000] AATA 330.

21.      The evidence as to the Applicant's period of service and the location of his unit in the Northern Territory, including the means by which he travelled to and from that area, is incontestable.  The evidence of the Applicant is that whilst he observed what he thought were reconnaissance aircraft, no firings took place (other than presumably drill firings), there were no attacks to his knowledge and he did not feel he was in danger.  Thus the issues revolve around his service in Sydney, and particularly the occasions of the two Japanese submarine attacks. 

22. Section 119 of the Act entitled “Commission not bound by technicalities” states in sub-section (1):

“(1)In considering, hearing or determining, and in making a decision … the Commission:

…

(h) without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:

(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and

(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities."

The Respondent is in agreement with the Tribunal decision, that where the evidence of the Applicant as to his movements and activities in the Sydney area are at variance with those recorded in the Service and Casualty Form, the former is to be preferred.

23.      In respect of the midget submarine attack on 31 May/1 June 1942, the Applicant was stationed and billeted at South Head, his duties being to man either the six inch coastal batteries or the three pounders at Camp Cove as required.  He could not recall his movements that night, although he “could have been at Camp Cove”, nor was he familiar with the circumstances of the attack.  He did not recall being closed up for action, and confirmed that, in any event, there had been no firing from the South Head batteries.  The Respondent submitted that the Applicant was in no danger, the submarines being armed only with torpedoes, and having no capability for any other form of attack.  The Respondent submitted that the decision in Re Crawford (supra), as followed in Re Pearse (supra), was relevant to the particular circumstances in this matter and should be followed.

24.      In the matter of Re Crawford (supra), the applicant had been working on the wharves in the vicinity of Woolloomooloo Bay or Rushcutters Bay. At the time of the midget submarine attack, he and his fellow servicemen were unable to work due to the absence of a crane driver and “spent the evening on the wharf “behind a shed””. The Tribunal in that matter found that “hostile forces of the enemy were in the area at the relevant time” and at 348 stated that “the nature of the "forces" and their weaponry were quite specialised and, as we have said, these special aspects would not have created any danger to persons away from the area of the harbour that we have already identified".

25.      That Tribunal concluded, to its reasonable satisfaction, that the applicant had incurred danger, being stationed (in a ”special location”) on a wharf on the south side of Sydney Harbour during the attack.  However the Tribunal went on to say at 349:

"… based on what we have already stated about the armaments of the submarines, he was unlikely to have "incurred danger" if he was at some geographical location other than in the vicinity of ships or wharves on the south side of the harbour and east of the Harbour Bridge".

26.      The evidence of the Applicant in this matter is that he cannot recall where he was that evening, and in the absence of evidence to the contrary, he was clearly not required to participate in any operations against the enemy.  Following Re Crawford (supra), there is no evidence that the Applicant was in danger and the Tribunal finds accordingly.

27.      By 8 June 1942, when the second Japanese submarine attack on Sydney took place, the Applicant had been transferred to the army house at Dover Heights, where he was undergoing a course in preparation for his forthcoming transfer to Cape Solander.  He was off duty and at the house when this second attack occurred, because that was when he heard shells coming over.  When the attack was heard, he took cover in the slit trench behind the house.  He heard no explosions.  The Respondent cited three relevant decisions in this instance.  Firstly, Re Carlyon and Repatriation Commission (AAT 12957, 6 May 1998), which provided some guidance in establishing parameters against which an incurred danger test should be considered, the relevance of which was addressed by the tribunal in Re Smith (supra), where that applicant was attached to a medium artillery regiment stationed at the Lakes Golf course, as follows: 

"20.  The circumstances in Re Carlyon and Repatriation Commission (AAT 12957, 6 May 1998) have some relevance to this matter.  In that instance, the Tribunal accepted that a bomb dropped on Townsville in July 1942 and, probably intended for the harbour, impacted elsewhere and no more than two kilometres from the Applicant. The Applicant submitted that the bomb could just as easily have landed in his position.  Noting that case law has well established that for a veteran to have incurred danger he need not have been subject to actual physical or mental injury, that Tribunal was satisfied that the veteran had incurred danger.

21.  As previously stated, the Applicant in this matter has submitted that the shells in this instance, could just as easily have landed in his vicinity. The Tribunal is not of the opinion that this matter is “on all fours" with Re Carlyon (supra), the circumstances being different. The Applicant was some eight kilometres from the area where the shells landed, and the evidence is clear that the submarine was firing specifically at a target displaced well away from the location of the Battery."

28.      As earlier stated, authoritative sources confirm that eight shells from the enemy submarine landed in the Bellevue Hill/Rose Bay area, and one landed at Vaucluse.  Mr O’Keefe gave the opinion that this shell would have passed over Dover Heights before landing in Olola Avenue.  The exact location of the army house at Dover Heights is not known, but the distance between Olola Avenue and the nominal centre of Dover Heights is in the order of two kilometres.  The Respondent accepted that, following Re Carlyon, the Applicant may have incurred danger, and the Tribunal concurs with this interpretation, and finds that the objective test has been met, and danger incurred.  

29. However, sub-section 7A(1)(a)(i) of the Act requires the “incurring of danger” to be “in the field ... in … military … operations ... against the enemy ...”.. This phrase was considered by Cooper J in Willcocks v Repatriation Commission (1992) 39 FCR 49 wherein His Honour said at 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 s36(1) of the VE Act."

His Honour went on to say, in regard to the meaning and use of the word ”against”, at 56:

"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 service, inter alia, in military operations against the enemy, in the sense of operations in hostility or opposition to the enemy."

30.This criteria was applied by Deputy President McMahon in Re Corrick andRepatriation Commission [2000] AATA 143, in which the applicant was not successful. The circumstances in Re Corrick are similar to those in this matter in respect of the Japanese submarine attacks.  Mr Corrick was asleep in bed when a shell from I-24 landed in very close proximity.  Whilst he was adjudged to have incurred danger, his activities on the night were considered by the Tribunal to be “essentially passive” and “there was nothing in his activity ... which could fairly be described as a military operation against the enemy”.  The facts in this matter are on 'all fours' with Re Corrick (supra) in respect of operations against the enemy.

31.      There is however, a more recent and relevant decision that must be considered, namely Mitchell and Repatriation Commission [2001] AATA 1055. Mr Mitchell served in the Australian Army as an anti-aircraft gunner from May 1942 until September 1946. In September 1944 he took passage from Townsville to Horn Island in the troop ship Katoomba, thence being transferred by launch to Thursday Island and again by launch to Cape York, where his unit formed part of the airfield defences at the operational airfield at Higgins Field. Some eight days later, his unit was withdrawn, travelling by launch to Thursday Island and again to Horn Island, where he embarked in the troop ship Duntroon for the passage to Brisbane. The veteran submitted that his circumstances were practically identical to those of a Mr Tiplady (Re Tiplady and Repatriation Commission (1987) 12 ALD 670), and the tribunal relied on the proceedings in that matter in reaching the conclusion that Mr Mitchell had “incurred danger” during passage in Torres Strait waters because of the risk from Japanese mines, and that he had also engaged in “naval, military or aerial operations against the enemy” because of his integral involvement in the significant operational role of the forces based at Higgins Field, and its exposure to Japanese attack by air and by landing parties. 

32.       Mr Mitchell also cited an occasion when what was thought to be a floating mine was observed from the Duntroon, about two days out of Horn Island.  The relevance of this sighting per se was not pursued by the tribunal, it reaching the decision, as mentioned above, that Mr Mitchell had incurred danger because of the presence of known Japanese minefields in the Torres Strait area.  

33.      On appeal in Repatriation Commission v Mitchell (2002)-] 71 ALD 93, Cooper J dismissed the application by the Respondent, holding that:

“(i)       Section 7A(1)(a)(i) requires a veteran to be engaged in military operations against the enemy "in an area".  … and … 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.

(ii)       The section does not require that the veteran be involved in actual personal combat against the enemy. 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.

(iii)       The tribunal formed the view, on the material available to it, that the Torres Strait and Higgins Field in Cape York Peninsula in 1944 was an area in which military and aerial operations were being conducted against the enemy. There was no demonstrable error of law in the view taken by, or in the reasoning of, the tribunal.

(iv)       The decision of the tribunal that the veteran incurred danger from hostile forces of the enemy, in the form of danger from Japanese mines laid in the waters where he was rendering operational service, was a pure question of fact, and not reviewable by the court.  …”

A subsequent application by the Repatriation Commission to the Full Federal Court was dismissed by consent. 

34.      The Respondent submitted that the circumstances in this matter differed from those in Re Mitchell (supra) primarily in that the operational circumstances at Higgins Field and in the Torres Strait area and the integral participation of that applicant, were not present in this situation.  Nor were the circumstances of being in danger from mines, or any other threat, replicated in this instance.  

35.      The Tribunal is not persuaded that the Federal Court decision in Mitchell (supra) can be applied in its entirety in this matter, but some elements have relevance.   In his judgment in Willcocks (supra), Cooper J said at 55:

“Whether or not an activity falls within the section [s36(1) of the VE Act], will depend upon determining in a practical way whether or not the conduct or the activity was an integral part of naval, military or aerial operations against the enemy”.

and in Mitchell (supra), His Honour emphasised that operations must be against the enemy “in an area”..  That was the situation in Torres Strait: it is not the case in the context of the matter before this Tribunal, where operations were not being conducted against the enemy at the time of the submarine attacks.  In essence, this was a rear base, with minimum expectation of an enemy attack, and no offensive military operations against the enemy.  Further, when the attacks on Sydney did arise, Mr Bailey was not an “integral participant” in any operational activity.

36. On the evidence, the Tribunal finds that whilst the Applicant incurred danger when stationed at Dover Heights during the Japanese submarine shell firing on 8 June 1942, he did not do so whilst rendering service in military operations against the enemy. He does not meet the criteria in section 7A(1) of the Act, and accordingly is not eligible for the gold card.

37.      The Applicant emphasised to the Tribunal the discriminatory nature of the legislation, in that many of those who served this country in a time of war and volunteered for overseas service, but were not so posted, are denied access to the benefits of the Gold Card.  The Tribunal acknowledges that the legislation is quite specific as to the relevant criteria, which has been further interpreted in numerous authoritative judgments, and that many servicemen and women who might otherwise be eligible cannot meet the qualifying service requirement and hence are denied the Gold Card.  However, the appropriateness or otherwise of the legislation is not a matter for the Tribunal, and no latitude exists in this regard.  The role of the Tribunal  is to review the material and evidence before it, and to ensure that the correct decision is reached against the relevant legislation.   

38.      The decision under review, that the Applicant does not have qualifying service and is therefore not eligible for the Gold Card, is affirmed.              

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton, Member

Signed:         C. Gregson
  Associate

Date/s of Hearing  9 July 2003
Date of Decision  4 August 2003
Solicitor for the Applicant          Self-Represented
Advocate for the Respondent   Mr J Marsh