Bergman and Repatriation Commission

[2000] AATA 870

DECISION AND REASONS FOR DECISION [2000] AATA 870

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No    N1999/1105

VETERANS' APPEALS DIVISION          )          

Re      NORMAN LEONARD BERGMAN          

Applicant

And    REPATRIATION COMMISSION  

Respondent

DECISION

Tribunal       Rear Admiral A R Horton AO, Member   

Date3 October 2000

PlaceSydney

Decision      The decision under review is affirmed    

[Sgd]  A Horton
  Member

CATCHWORDS

VETERANS' AFFAIRS –  gold card eligibility -  qualifying service – RAAF service in equipment branch   - service in South Australia and Queensland – whether delivery flight took place to New Guinea - whether incurred danger during period of hostilities –  service in New Guinea from Sep 1945

Veterans' Entitlements Act 1986 - ss 5B(1), 5C(1), 7A, 120(4)
Veterans' Entitlements Amendment (Gold Card) Act 1998 - s85(4A)

Repatriation Commission v Thompson (1988) 44 FCR 20
Willcocks v Repatriation Commission (1992) 39 FCR 49
Repatriation Commission v Burton (1993) 31 ALD 475
Repatriation Commission v Smith (1987) 15 FCR 327
Re Bancroft and Repatriation Commission (1996)  AATA 11333
Re Rapp and Repatriation Commission (1995) 37 ALD 777
Re Farrell and Repatriation Commission [2000] AATA 69.

REASONS FOR DECISION

September 2000   Rear Admiral AR Horton AO, Member    

1. This is an application for review of a decision dated 30 September 1998 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 11 April 1999, that Norman Leonard Bergman ("the Applicant") did not render qualifying service for the purposes of section 7A of the Act, and hence is not eligible for a Gold Card under subsection 85(4A) of the Veterans' EntitlementsAmendment (Gold Card) Act 1998 ("the Gold Card Act"). The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 22 July 1999, an application to the Tribunal for an extension of time having been granted.

2. At the hearing before the Tribunal on 3 March 2000, the Applicant was self-represented. Mr J Marsh, Senior Advocate, appeared for the Respondent. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also took into evidence the following:

Exhibit No.     Description    Date   
A1      Statutory declaration by the Applicant.    28 February 2000   
R1      Statement of service of Norman Leonard Bergman.     Undated        

1. In the course of the hearing, the Respondent sought an adjournment in order to undertake further investigation in respect of the Applicant's claim that he participated in an aircraft delivery flight to New Guinea.   Accordingly, the matter was adjourned.   Prior to the resumed hearing, the Applicant advised the Tribunal (vide his letter of 16 August 2000) that he would not attend the resumed hearing, which accordingly proceeded in his absence on 31 August 2000.  At the resumption, the following additional documentation was made available to the Tribunal and taken into evidence:

Exhibit No.     Description    Date   
R2      Letter from Department of Defence (RAAF Records).   4 May 2000  
R3      Report by Mr R Piper, historian.    21 March 2000        

ISSUES BEFORE THE TRIBUNAL

1. The Applicant claims qualifying service as a prerequisite for eligibility for a Gold Card. Eligibility is established pursuant to subsection 85(4A) of the Gold Card Act, which states:

   "(4A)    A veteran is eligible to be provided with treatment under this Part for any injury suffered, or disease contracted, by the veteran, whether before or after the commencement of this Act, if:

   (a)the veteran is 70 or over; and

   (b)the veteran has rendered qualifying service during the period covered by paragraph (b) of the definition of period of hostilities in subsection 5B(1); and

   (c)either:

   (i)the Department has notified the veteran in writing that he or she is or will be eligible for such treatment; or

   (ii)the veteran has notified the Department in writing that he or she seeks eligibility for such treatment."

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

   "(1)     …

   (a)       if the person has, as a member of the Defence Force:

   (i)rendered service during a period of hostilities specified in paragraph (a) or (b) of the definition of 'period of hostilities' in sub section 5B(1), at sea, in the field or in the air in naval, military or aerial operations against the enemy in an area, or on an aircraft or ship of war, at a time when the person incurred danger from hostile forces of the enemy in that area or on that aircraft or ship; or

   …"
   Subsection 5B(1) defines the period of hostilities and states, relevantly:

   "(1)      …

   (b)World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included): or

   …"

3. 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 subsection 5B(1), and that he meets the criteria for age pursuant to subsection 85(4A)(a) of the Gold Card Act. Hence the only issue in this matter is whether the Applicant rendered qualifying service for the purpose of the Act. The required standard of proof is that of reasonable satisfaction pursuant to subsection 120(4) of the Act, equating to the balance of probabilities as defined in Repatriation Commission and Smith (1987)15 FCR 327. Subsection 120(6) prescribes that there is no onus of proof on either party.

FACTS AND EVIDENCE

1. The Applicant's claim is based on a number of issues, including four  instances where danger was incurred; they being the detection of an unidentified aircraft at Parafield in 1941/42, being in close proximity to Townsville when Japanese attacks occurred, a flight to New Guinea in 1943 and a posting to New Guinea in September 1945, that is within the defined period of hostilities pursuant to subsection 5B(1).   The Applicant also made reference to the dangers incurred in flying training and the loss of aircrew, the implication being that this was directly attributable to the war against Japan (T7).

1. The Applicant was born in 1915.   He enlisted in the militia in 1937 and was posted to 14 Field Brigade. His civilian qualifications lay in efficiency expertise and accountancy.    He applied to join the RAAF, and was called up for full time service on 11 December 1939.   He was appointed to a commission in the Equipment Branch, having been found medically unfit for pilot training.   In the ensuing three years he served variously in RAAF establishments at Laverton, Wagga, Parafield and Sydney, as recorded in his Statement of Service (Exhibit R1).

1. In amplification of Exhibit A1, the Applicant gave evidence that whilst stationed at No 1 Elementary Flying School, Parafield (from September 1941 until June 1942) he was the Duty Officer on a night when an unidentified aircraft was detected overflying Adelaide by the airfield radar.   This aircraft "was not one of ours", he stated, and was assessed by the Commanding Officer, the Tower crew and himself as being from a Japanese submarine.   The aircraft did not respond to radio calls, and was not sighted.   There were no RAAF aircraft available to investigate or intercept, nor any evidence of a submarine in the area.   The Applicant further stated that the incident was not publicly reported to his knowledge, but he considered it probable that the aircraft would have been armed.

1. The Applicant was stationed as a Squadron Leader with the newly formed No 13 Aircraft Repair Depot ("13 ARD") at Tucomwal from March to August 1943.   He gave evidence that in that period he flew to Breddan near Charters Towers to assist in setting up that facility.   The unit moved to Breddan in August 1943, the role being to repair unserviceable or damaged aircraft, which were then returned to operating bases.   The Applicant remained with the unit until February 1944 (Exhibit R1), stating that the period was very busy, with the construction of a new hangar and runway, and developing the repair operations.   In cross examination he accepted that Japanese air attacks on Townsville had occurred in 1942, prior to his posting to the Townsville area.

1. In evidence, the Applicant stated that on one occasion he flew from Breddan to Port Moresby in a newly repaired Wirraway aircraft, remaining in Port Moresby for two nights before returning in a communication flight.   He was "too busy" to do this more than once, but saw it as an important part of his duty as on each occasion a repaired aircraft was returned to its parent unit, one of his staff undertook the flight in order to effect an administrative handover.    To support this statement, he referred the Tribunal to the occasion when a flight sergeant from his unit was killed in an Anson or Wirraway when undertaking such a flight.

1. The Applicant flew as a passenger to Port Moresby.   In evidence, he stated that during his RAAF service, he had the opportunity to pilot various types of aircraft, and that he went solo in a Tiger Moth when stationed in New Guinea in 1945.    He agreed that these occasions were unofficial and that there was no record of him undertaking these flights.   He did not undertake such flights at Tucomwal or Breddan.

1. The Applicant returned to RAAF and Army Headquarters in Melbourne in February 1944, and was subsequently posted as second in command of 15 Aircraft Repair Depot in Port Moresby in September 1945.   He remained in New Guinea until January 1946.     He considered that he had incurred danger, being in that country prior to the cessation of hostilities as defined in legislation.   The Applicant gave no evidence of any incidents in respect of enemy forces at Port Moresby or Madang, a visit to the latter being confirmed in Exhibit R1, but drew the attention of the Tribunal to the dangers inherent in flying in the poorly charted areas of New Guinea.

1. At the resumed hearing, a report by Mr R Piper, historian, was entered by the Respondent (Exhibit R3).    The Respondent had provided this report to the Applicant by letter on 24 March 2000.   Mr Piper stated that the practice of sending 13 ARD members to New Guinea with repaired aircraft could not be confirmed from the War Diary (Form A-50, Operations Record Book) of 13 ARD, documentation at the Australian War Memorial or his own RAAF records.   He stated that delivery flights were normally undertaken by unit or ferry pilots, "who carried the necessary transfer paperwork".   Such flights were not recorded in 13 ARD Diary.  In respect of the sergeant reported to have been killed undertaking such a flight (paragraph 11), Mr Piper stated that such an accident had occurred in November 1943, the aircraft being a transport departing Port Moresby for Australia;  the reason for him being in Port Moresby has not been ascertained.

1. The report by Mr Piper states that there is no record of the Applicant undertaking a flight to hand over a repaired aircraft.   He further states that the last recorded enemy activity over Port Moresby was Air Raid No. 113 on 20 September 1943, four weeks after the 13 ARD arrived at Breddan and commenced repairing aircraft for return to their parent units.   At Exhibit R2, RAAF records advise that there is no evidence in Personnel Occurrence Reports of 13 ARD that the Applicant "participated in one flight to Port Moresby during 1943 – 44" or of him claiming "aircrew pay" or "flight pay", to which the Tribunal understands he would have been entitled.

ANALYSIS OF EVIDENCE AND FINDINGS

1. The issue in this matter is whether the Applicant meets the eligibility criteria for qualifying service pursuant to section 7A of the Act. The Applicant must have "incurred danger from the enemy" whilst rendering service "at sea, in the field or in the air in naval, military or aerial operations against the enemy…" as defined in subsection 7A(i)(a)(i) of the Act. However, should the evidence be sufficient for the Tribunal to conclude, to its reasonable satisfaction, that the Applicant participated in the delivery flight post repair of an aircraft to Port Moresby, then the Applicant might benefit from procedural policy in terms of the classification of New Guinea as a War Zone until the formal cessation of hostilities on 15 August 1945, as held in Re Rappand Repatriation Commission (1995) 37 ALD 777 and later in Re Farrelland Repatriation Commission [2000] AATA 69.

2. The final submission by the Respondent, made in the absence of the Applicant at the hearing on 31 August 2000,  addressed each of the issues raised in support of the claim by the Applicant, as summarised in paragraph 7.   The Respondent submitted that there was no evidence of any enemy activity nor threat to the Applicant on the occasion of the unidentified radar detection at Parafield in 1942, citing Re Bancroft and Repatriation Commission (1996) AATA 11333, nor was their any evidence to support the claim that the applicant had incurred danger from enemy aircraft over Townsville. As earlier noted, the Applicant accepted in cross examination that Japanese attacks had occurred in 1942, some time before he first visited the Townsville area. As regards the Applicant's reference to the dangers inherent in aviation training for war (T7), the Respondent submitted that this did not meet the criteria in subsection 7A(1)(a)(i) of the Act, wherein service had to be rendered "in operations against the enemy" and danger was "incurred from hostile forces". The Respondent submitted that this had not been the case.

3. Two issues are relevant in respect of New Guinea service. The later occasion involved the posting to Port Moresby commencing on 9 September 1945, within the period of hostilities but outside the period when the Applicant might benefit from procedural policy. The Applicant must accordingly meet the criteria for qualifying service as defined in subsection 7A(1)(a)(i). The Respondent submitted that there was no evidence that any incidents occurred that might be construed as having led to the Applicant incurring danger, nor was there any evidence that the Applicant was involved in operations against hostile forces of the enemy, citing Willcocks v RepatriationCommission (1992) 39 FCR 49 and Repatriation Commission v Burton (1993) 31 ALD 475 as relevant authorities.

4. Finally, the Respondent addressed the claim by the Applicant that he had participated in the post repair delivery flight of a Wirraway to New Guinea during the period when he was stationed at Breddan, that is between August 1943 and February 1944. The Respondent submitted that there was no evidence to corroborate that such a flight took place; the historian, Mr Piper had failed to find any reference to the Applicant or any equipment branch personnel participating in such flights, that had the Applicant done so there would have been some notation, in view of his position and rank, in the unit War Diary, and there was no evidence of aircrew or flight pay being paid. The Respondent submitted that whilst the significant passage of time since the period under consideration was acknowledged, there were too many inaccuracies or non relevant matters given in the evidence, such as valuable air resources being used to provide unofficial pilot training for the Applicant, that the flight sergeant from his unit had not been killed in a Wirraway or Anson but had died in a transport aircraft and that the applicant had not been in Townsville during enemy raids. The Respondent submitted that in all the circumstances, the Applicant had not met the criteria for qualifying service pursuant to section 7A of the Act.

5. In considering the latter issue, of the claimed flight to New Guinea from Braddon, the Tribunal is in accord with the submission of the Respondent. Against the relevant standard of proof of reasonable satisfaction, and taking account of subsection 120(6) of the Act that no onus of proof is necessary, there is nonetheless no evidence available to the Tribunal that might support and corroborate the submission by the Applicant. In reaching this conclusion the Tribunal accepts that the absence of a record of flight pay being paid is not conclusive. Hence this review of the primary decision hinges on whether the Applicant rendered qualifying service pursuant to subsection 7A(1)(a)(i) of the Act.

6. In considering whether the Applicant "incurred danger" during his period of service, and on the particular occasions referred to herein, the Tribunal draws on the authoritative decision by the Full Federal Court in Repatriation Commission vThompson (1988) 44 FCR 20, wherein Davies, Wilcox and Foster JJ stated at pp 23-24:

   "…the words 'incurred danger' therefore provide an objective, not a subjective, test.   A serviceman incurs danger when he encounters danger, is in danger or is endangered.   He incurs danger from hostile forces when he is at risk or in peril of harm from hostile forces.   A serviceman does not incur danger by merely perceiving or fearing that he may be in danger.   The words 'incurred danger' do not encompass a situation where there is mere liability to danger, that is to say, there is mere risk of danger.   Danger is not incurred unless the serviceman is exposed, at risk or in peril of harm or injury.
   The danger incurred must of course be more than a merely fanciful danger or a danger so minimal that a rule of de minimus applies.   But to say that is not to give a flavour to the word.   Rather it is to use it in its ordinary sense.
   …"     

7. The Applicant must satisfy the objective test as defined above.   On the material before the Tribunal there is insufficient evidence to support the claim, to the required standard of proof of reasonable satisfaction, that the Applicant incurred such danger.   There is no evidence that the detection of the unidentified aircraft whilst stationed at Parafield resulted in the Applicant being exposed, at risk or in peril of harm or injury.   As regards enemy raids on Townsville, there is no evidence to suggest the Applicant was in the Townsville area at the time, as conceded in the hearing by the Applicant.   There is also no evidence to suggest that the Applicant incurred danger during his posting to New Guinea.   He may well have perceived or feared he was in danger, but even were the Tribunal to accept that he incurred danger in an objective sense, on the evidence available to the Tribunal the Applicant would not meet the criteria for "operations against the enemy" nor that danger was incurred "from hostile forces of the enemy" as defined in the authorities referred to by the Respondent, namely Willcocks (supra) and Burton (supra). Accordingly, the Tribunal cannot be reasonably satisfied that the Applicant rendered qualifying service for the purposes of section 7A of the Act.

8. It remains to record the concerns of the Applicant in respect of this matter.  At T1, T7 and in his letter dated 16 August 2000, he variously refers to deficiencies in the records of his service, and that the legislation and subsequent interpretation fails to take account of events and circumstances at the time.   He expresses particular dissatisfaction that whilst he volunteered for overseas duty, service requirements dictated that he remain in Australia for virtually the full period of the war, and hence he is required to meet more stringent eligibility requirements for the Gold Card.  He finds this demeaning, which is understood by the Tribunal noting that his war service, following two years in the militia, lasted for the full period of the war.  The Tribunal is however bound by the legislation, and this review has been conducted accordingly.                  

9. The decision under review is affirmed.

   I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of

   Rear Admiral A R Horton AO, Member

   Signed:         .....................................................................................
     Associate

   Dates of Hearing  3 March and 31 August 2000
              Date of Decision  3 October 2000
              Solicitor for Applicant  Self-represented
              Advocate for the Respondent      Mr J. Marsh