Blackall and Repatriation Commission

[2001] AATA 4

DECISION AND REASONS FOR DECISION [2001] AATA 4

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No. N1999/1421

VETERANS' APPEALS DIVISION          )          

Re      William Richard BLACKALL      

Applicant

And    REPATRIATION COMMISSION  

Respondent

DECISION

Tribunal       Mrs M T Lewis, Senior Member    

Date3 January 2001

PlaceSydney

Decision      The decision under review is affirmed.   

..............................................
  M T Lewis
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Gold Card – whether Applicant rendered qualifying service – whether Applicant served on Rottnest Island continuously for at least three months within the period 3 September 1939 to 6 May 1944

Veterans' Entitlements Act 1986 s 7A

REASONS FOR DECISION

Mrs M T Lewis, Senior Member                

1. This is a review of a reconsideration decision of a Delegate of the Repatriation Commission ("the Respondent") dated 30 April 1999 that determined that William Richard Blackall ("the Applicant") had not rendered qualifying service pursuant to s7A of the Veterans' Entitlements Act 1986 ("the Act"). A primary decision determining that the Applicant had not rendered qualifying service had been made on 26 October 1998.

2. The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Respondent tendered reports from Mr Brendan G. O'Keefe, consulting historian, dated 17 April 2000 and 30 June 2000 (exhibit 1), and an electronic mail message from Mr O'Keefe to the Respondent's representative dated 1 December 2000 (exhibit 2). The Applicant gave oral evidence at the hearing.

3. There is no dispute that the Applicant served in the Australian Army from 18 August 1941 to 16 April 1946 in various locations within Australia. The Applicant said in his evidence that at no time during his service did he encounter danger from hostile forces of the enemy. He also agreed that his service in Darwin, which was after he left Western Australia and returned to Wagga Wagga, was not service for which he sought to claim "qualifying service". The Tribunal also notes that the Applicant's service in Darwin is not that which would qualify him pursuant to s7A of the Act.

4. The Applicant was posted to an engineering Field Company of the First Australian Armoured Division.  He stated in a handwritten statement dated 10 January 1982 (T6) that he graduated as a commissioned officer having attended the School of Military engineering at Liverpool in September 1944, but in his oral evidence at the hearing in these proceedings he said that he attended the School of Military Engineering in 1942.  He also said in that statement of 10 January 1982 –

   I joined this unit in January 1945 & was sent to Rottnest Island, with a platoon of sappers, for six months, to construct gun emplacements, build roads & jetties.  The unit was then sent to Wagga Wagga for disbandment, after the Rottnest work was completed. 
   I was then posted to an engineering unit in Darwin;  during that service, I was seconded to a Water Transport Co. under the command of Lieut. A TROTT & spent three months visiting Melville Island, by launch, to improve the Water Supply thereto.
   Armistace was declared whilst I was at Darwin …

In a further handwritten statement dated 26 February 1982 (T7) the Applicant stated:

A platoon of sappers & myself embarked from Freemantle Harbour on 25 January 1945 in an Amphibious Landing Vessel supplied by the Perth Water Transport Company.  This vessel was necessary to convey engineering equipment to ROTTNEST ISLAND, for we engineers to construct new gun emplacements. 
We worked on Rottnest Island until 2 July 1945 when the platoon & equipment returned to the mainland in the similar landing craft.  The whole unit was then posted to WAGGA (N.S.W.) for disbandment.

In a further handwritten statement dated 19 April 1982 (T8) he wrote –

I was on Rottnest Island with a platoon of sappers for six months or more.
The 22 Field Co. was a Western Australian Unit which I joined at KARRAKATA during 1944.

1. In his Gold Card application form dated 2 June 1998, that initiated the current application for review, the Applicant stated that he served on Rottnest Island from 5 May 1942 to 1 September 1942 (T10).

2. In his oral evidence at the hearing of these proceedings, however, he said he had made an error in his 1982 statement and that he had gone to Western Australia with his unit in January 1943, not January 1945.  The Tribunal notes that when the Applicant had lodged his earlier application in 1981 in respect of qualifying service he had advised an officer of the Respondent that he had served on Rottnest Island during 1943.  No records of the Applicant having served in 1943 at Rottnest Island could be located by the Respondent. 

3. In his oral evidence the Applicant said he served in Western Australia "all '43", and that his first visit to Rottnest Island was in March 1943.  He said that Captain Punch was the second in charge of the Unit.  He recalled that the first visit to Rottnest Island was for five to six weeks.  He said that at the end of that time another platoon replaced them to carry on the work.  He said he returned to Karrakatta where he remained for a month, and then returned to Rottnest Island to replace the platoon that was there.  He said that the second visit was also for six weeks.  He said he had only two visits to Rottnest Island.  Initially he said he returned to New South Wales in September 1943, but later in his evidence he changed that to November 1943, having recalled an incident when he met his wife (then his fiance) en route.

4. The Applicant's evidence to the Tribunal relied on dates when he served in Western Australia which were different from those provided by the Applicant prior to the hearing, and on which Mr O'Keefe had based his research.  The hearing was therefore adjourned for Mr O'Keefe to undertake further research to cover the whole of 1943.

5. Research was initially undertaken by Mr Brendan O'Keefe, consulting historian, using war diaries of the 52 Australian Field Park Company (exhibit 1).  It was noted that the unit was located in the Indarra area during a brief period when the Applicant served with it, but there was no reference to Rottnest Island.  There were two references to "Lieut. Blackall" in the diary, one dated 13 August 1943 and one on 23 August 1943.  In the war diary of 22 Australian Field Company, which was the main unit in which the Applicant served in Western Australia, there were three references to "Lieut. Blackall" dated respectively 1 September 1943, 11 December 1943 and 22 December 1943.  The war diary shows that the unit was based at Guildford when the Applicant joined it, and that it moved to Karakatta in December 1943, and remained at Karakatta until April 1944 when the unit left Western Australia and returned to Wagga Wagga in New South Wales. 

6. Prior to the hearing the Applicant advised that he served in Western Australia from September 1943 to April 1944.  Mr O'Keefe noted that for that entire period there were only two references in the War Diaries to Rottnest Island, viz –

   28 Dec [43] '1 offr, Lieut Fisher M/O to Rottnest Island – salvage of cargo of "Uribes" '

   31 Dec [43]'1 offr Capt Punch & 1 O/R M/O to Rottnest

   '1 offr Lieut Fisher M/O from Rottnest'.

Mr O'Keefe concluded from this data that while 22 Australian Field Company had some involvement with Rottnest Island, the context did not suggest that it was substantial or ongoing.  It was not possible to confirm that the Applicant had ever served on Rottnest Island.

1. Mr O'Keefe subsequently advised (exhibit 2), when asked to research the Applicant's service throughout 1943 after the Applicant gave his oral evidence –

   On re-checking his file, I found that it is pretty clear from his Service and Casualty Form and from his Officers Record of Service that he did not go to Western Australia until July 1943.  From the time he enlisted in August 1941 until early June 1943, he served in NSW.  He was then briefly in Victoria, possibly on his way to WA, in June.  …
   From 8 August 1942 until 15 May 1943, he was at the Engineers Training Centre at Wagga.  …
   The short answer to all this is that he simply did not go to WA until mid-1943, as his records show.

consideration of the evidence and findings of fact

1. It was noted by the Delegate in the reviewable decision that the Respondent's policy was to concede qualifying service if a veteran served on Rottnest Island continuously for at least three months between 3 September 1939 and 6 May 1944.  It is clear, therefore, that the earlier information provided by the Applicant in 1982 in respect of being in Rottnest Island in 1945 did not assist him in meeting the Respondent's policy.  Moreover, there was no indication on the available service documents that he had undertaken service on Rottnest Island at any time.

2. The Applicant's recollection of the dates and events of his service in Western Australia has been subject to considerable variation from 1981 to the present time.  Without challenging the Applicant's credibility, the Tribunal is nonetheless very concerned about the reliability of his evidence.  Even the evidence about his service on Rottnest Island has changed.  In 1982 he stated on more than one occasion that he served on Rottnest Island for six months.  However, in his oral evidence at the hearing he was quite clear that he spent two periods, each of about six weeks, on Rottnest Island, interspersed by an interval of one month. 

3. On the evidence before the Tribunal I find that the Applicant did not serve on Rottnest Island "continuously for at least three months" within the period 3 September 1939 to 6 May 1944.  Moreover, and importantly, the Applicant did not incur danger from hostile forces of the enemy at any time during his service in the Army. 

4. The Respondent noted at the hearing that through no fault of the Applicant's, his service was entirely within Australia, and the Tribunal would reiterate that. The fact remains, however, that there is no evidence that the Applicant met any of the provisions of s7A(1) of the Act, and therefore he did not render qualifying service. Therefore, the Tribunal will affirm the decision under review.

   I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member

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

   Dates of Hearing  27 October 2000 and 19 December 2000
   Date of Decision  3 January 2001
   Solicitor for the Applicant         unrepresented

   Solicitor for the Respondent    Mr J Marsh and Mr S Modder, Dept. of Veterans' Affairs