Brennan and Repatriation Commission
[2010] AATA 821
•25 October 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 821
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0739
VETERANS' APPEALS DIVISION ) Re MAURICE BRENNAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr M Denovan, Member Date25 October 2010
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.................[Sgd].............................
Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – Service pension – Has applicant rendered qualifying service – Was the applicant awarded a campaign medal for service within New Zealand – Not awarded campaign medal for service within New Zealand - Did the applicant incur danger from hostile forces of the enemy while serving outside of New Zealand – Cannot be reasonably satisfied that the applicant incurred danger from hostile forces while serving outside of New Zealand – No qualifying service rendered – Decision under review affirmed.
Veterans’ Entitlement Act 1986 (Cth) ss 5B, 5C, 7A, 119, 120
Re Owens and Repatriation Commission [1989] AATA 137
Repatriation Commission v Thompson (1988) 82 ALR 352
Re Rawson and Repatriation Commission (1989) 18 ALD 31
Re Zeeno and Repatriation Commission (1988) 14 ALD 616
REASONS FOR DECISION
25 October 2010 Dr M Denovan, Member INTRODUCTION
1. Mr Maurice Brennan, the applicant, served in the Royal New Zealand Navy from 29 February 1944 to 24 April 1946. Mr Brennan was awarded the 1939-45 Star, the Pacific Star, the British War Medal and the New Zealand Service Medal.
2. Mr Brennan’s application for service pension was rejected by the respondent, the Repatriation Commission, on 25 November 2008, because he has not rendered qualifying service, within the meaning of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”). The decision was affirmed on 5 February 2009.
3. Whether a person has rendered qualifying service is determined by reference to s 7A of the Act. A member of the defence force[1] who served in World War 2[2] is deemed to have rendered qualifying service if:
· they were engaged in service outside that country, at a time when the person incurred danger from the hostile forces of the enemy in that area[3]; or,
· they were engaged in service within the country, being service in respect of which the person has been awarded a campaign medal.[4]
[1] Defence force established by a Commonwealth country means inter alia the naval force of the country: s 5C (1) of the Act.
[2] Period of hostilities means inter alia, World War 2 from its commencement 3 September 1939 to 20 October 1945: s 5B (1) of the Act.
[3] Section 7A (1) (b) (i) of the Act.
[4] Section 7A(1)(b)(ii) of the Act.
4. Mr Brennan requested a review of that decision by this Tribunal because he believes that he incurred danger of the type required under the Act. He also believes that the service medals that he has been awarded are evidence of his qualifying service.
5. Specifically, Mr Brennan contends that he incurred danger in 1944 when his ship swept a channel of mines in Wellington Harbour, and also during his service in the Solomon Islands.
6. An application for review by the Administrative Appeals Tribunal (“AAT”) was lodged and the matter was heard on 2 December 2009. At this hearing Mr Brennan claimed to have incurred danger from Japanese and German mines whilst performing minesweeping operations outside of Wellington Harbour on HMAS Pahau. The matter was adjourned on that date to allow for further enquiries to be made in relation to this claim.
7. In order to decide this matter I must determine:
· whether Mr Brennan was awarded a campaign medal for service within New Zealand; and if not,
· whether he incurred danger from hostile forces of the enemy whilst serving outside of New Zealand.
Was Mr Brennan awarded a campaign medal for service within New Zealand?
8. The Act lists the medals that would qualify. In relation to service during World War 2, the Act includes the 1939-45 Star and the Pacific Star as campaign medals[5]. The question is whether those medals were awarded for service within New Zealand. The respondent contends that Mr Brennan was awarded those medals for service outside of New Zealand.
[5] Section 7A(2) of the Act.
9. Email evidence from Mr Donald Anderson, Assistant Director Medals Policy, Personnel Branch, Headquarters New Zealand Defence Force dated 5 June 2009, indicates that neither Mr Brennan’s 1939-45 Star or Pacific Star was awarded for service within New Zealand.
10. Mr Anderson advised that Mr Brennan would have qualified for the 1939-45 Star after 180 days “service afloat”[6] in dangerous waters. Anywhere at sea outside boom-protected waters between 10 June 1940 and 8 May 1945 can be counted towards the 180 days.
[6] Service afloat is defined as service while on the pay books of the ship and excludes service in transit or as a passenger.
11. According to Mr Anderson, Mr Brennan would have qualified for the Pacific Star for his service in the Solomon Islands on HMNZS Kahu sometime in the period between 28 April 1945 and 11 July 1945, and because he was awarded the 1939-45 Star, he would have qualified for the Pacific Star with effect from his first day in the operational area in the waters near the Solomon Islands.[7]
[7] See letter of Donald Anderson dated 1 September 2009.
12. Mr Anderson referred to both the Admiralty Fleet Order and the regulations/eligibility rules for the Second World War Stars and Medals published on the New Zealand Defence Force website. Mr Anderson stated that both of these sources make it clear that land service in New Zealand definitely does not count towards the Pacific Star or the 1939-45 Star. According to Mr Anderson, theoretically some of Mr Brennan’s service on HMNZS Pahau and HMNZS Kahu could have been in New Zealand Territorial waters and count towards the 1939-45 Star, however he considered that this would be unlikely. Mr Brennan confirmed this to be the case. He stated that all of his minesweeping duties were carried out outside of the three mile limit of New Zealand waters[8].
[8] Exhibit 11.
13. On the basis of this information, I conclude that Mr Brennan was not awarded a campaign medal for service within New Zealand.
Did Mr Brennan incur danger from hostile forces of the enemy whilst serving outside of New Zealand?
14. Mr Brennan contends that he incurred danger from hostile forces whilst serving on the minesweeper and anti-submarine patrol vessel HMNZS Pahau, because he was at risk from enemy mines on the coast adjacent to Wellington Harbour.
15. Mr Brennan contends that the ship swept a channel of mines to a point where the depth was too great for mines, and that two Australian destroyers charged with the escort of two troop ships carrying reinforcements to the New Zealand division in Italy awaited the completion of this task. He also mentioned the danger he incurred whilst searching for an unidentified vessel.
16. Mr Brennan also contends that he incurred danger from hostile forces while serving on Russell Island in the Solomon Islands in 1945. It was his duty to provide escorts for ships carrying war materials for the continuing war in the Pacific and to provide anti-aircraft cover and anti-submarine protection.
(a)Were there any enemy mines around the areas that HMNZS Pahau sailed during the time that Mr Brennan served on her?
17. In response to Mr Brennan’s claim, the Respondent commissioned a historical report by an Associate Professor of the University of New South Wales at the Australian Defence Force Academy School of Humanities and Social Sciences. The author of that report, Associate Professor McCarthy, addressed the question of “whether in 1944 there were enemy mines in or around Wellington Harbour.” At the first hearing of this matter in December 2009, Mr Brennan conceded that no mines were in Wellington Harbour. He claimed that the mines were in fact along the coast. He provided the Tribunal with a hand drawn map in which he identified the locations of the relevant parts of the New Zealand Coast. The matter was adjourned and a second report was commissioned from the School of Humanities and Social Sciences. That report, also written by Professor McCarthy, dated 19 August 2010, was provided after the ships logs were examined.
18. Mr Brennan served on HMNZS Pahau between 19 August 1944 and 23 February 1945. Professor McCarthy noted from the log that HMNZS Pahau normally operated from Shelly bay and returned there after the end of her patrol. It was the procedure for HMNZS Pahau to pass the harbour boom gates and to enter open seas, and once there proceed around the coast to diverse points both on the east and the west coast lines. On several occasions she sailed to Worser Bay. She also ventured as far as Picton and some distance into Queen Charlotte Sound.
19. According to Professor McCarthy, 228 German mines were moored in the approaches to Auckland Harbour in 1940. In 1940, 230 German mines were laid off the Australian coast. Professor McCarthy identified a possibility that mines may have become unsecured and drifted to within the vicinity of Wellington Harbour.
20. German mines were laid in Lyttleton and Wellington Harbours in June 1941. These were defective devises, many ships passed over them, and their presence was not known until after the war by reference to German naval records.
21. Japanese submarines laid mines off the Australian east coast; however evidence suggests that they were never in New Zealand waters. There is also no evidence that Japanese aircraft entered New Zealand airspace, and so it is unlikely that mines laid by aircrafts occurred in New Zealand.
22. Professor McCarthy concludes:
… The log book fails to mention Pahau in the vicinity of any mines. Of course, Pahau might have been in such vicinity without the mines being detected. But this is speculation.[9]
[9] Report dated 19 August 2010.
23. Mr Stoner, for the respondent, submitted that the possibility of Mr Brennan being in danger from an enemy mine during his service on HMNZS Pahau was too remote for him to be eligible for qualifying service under the Act.
24. As explained in Thompson[10], the words “incurred danger” in the legislation 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.
[10] (1988) 82 ALR 352 at [356].
25. There have been a number of cases previously before the AAT in which it was held that the risk of exposure to mines was sufficient to satisfy the “incurred danger requirement”[11]. The distinguishing feature between the majority of those cases and this one is the actual existence of mines in the area. There is no evidence that any mines were ever placed in the areas patrolled by HMNZS Pahau during Mr Brennan’s service on that ship.
[11] Rawson and Repatriation Commission (1989) 18 ALD 31; Re Owens and Repatriation Commission [1989] AATA 137; Re Zeeno and Repatriation Commission (1988) 14 ALD 616.
26. For Mr Brennan to have incurred danger by an enemy mine, one of the mines laid by the Germans off the east coast of Australia or in the vicinity of Auckland in 1940 and 1941, would have had to have become dislodged, drifted to the waters patrolled by HMNZS Pahau, and still have been active in 1944-1945. The evidence before me is that there was only a remote possibility of that being the case. That HMNZS Pahau, a minesweeper equipped with mine detection equipment, did not locate the mine suggests that there was no objective risk of a mine during Mr Brennan’s service.
27. Mr Brennan contends that there must have been danger from enemy mines, or else minesweepers would not have been deployed. I do not agree. The decision to perform regular minesweeping would not have necessarily required knowledge of the presence of mines. Rather, in war time, the possibility was sufficient to require such precautionary activity.
28. Mr Brennan did not encounter any mines during his service and did not hear of any encounters.
29. As there is no evidence of active mines in the areas patrolled by HMNZS Pahau during Mr Brennan’s service on that ship, it cannot be said that he incurred danger.
(b)Did Mr Brennan incur danger from unidentified ships, or during an exercise involving two Australian destroyers?
30. According to Professor McCarthy the ship logs note the presence of many unidentified ships, however there is no suggestion that the HMNZS Pahau was engaged in searching for an unidentified ship. Some ships are identified in the log as ‘merchant vessel’; however there is no suggestion that any of these ships were thought to be hostile forces. There is an entry that may correspond to the incident involving two Australian destroyers, referred to by Mr Brennan. According to Professor McCarthy, parts of that entry are illegible, however there is no suggestion that the incident was one in which the crew of HMNZS Pahau incurred danger.
31. Mr Brennan contends that the log notes are incomplete and notes that they fail to include descriptions of many events that he can recall, including a man overboard incident. Whilst I accept that the logs are an incomplete record, s 119 of the Act does not empower me to find, on the balance of probabilities, that the incident referred to by Mr Brennan, involved hostile forces, and that persons on HMNZS Pahau incurred danger from those hostile forces of the enemy. Had that been the case, I consider that the log entry would have been more descriptive, and that other historical evidence of the presence of hostile forces of the enemy in the area would likely exist. The presence of hostile forces of the enemy in close proximity of New Zealand territorial waters would be a significant event in military history and I cannot accept that this occurred, but went undocumented, as Mr Brennan contends. For the s 119 provision in the legislation to be enlivened, the possibility that unidentified vessels may have been from hostile forces is not enough. There must be objective evidence not just of the fact that the person incurred danger, but also objective evidence that the danger was from hostile forces of the enemy in that area.
32. There is no evidence in this case to suggest that Mr Brennan incurred danger from unidentified ships during his service.
(c)Did Mr Brennan incur danger from hostile forces of the enemy during his service in the Solomon Islands?
33. Mr Brennan served as a crew member of HMNZS Kahu between 28 April 1945 and 11 July 1945. According to Professor McCarthy, when Mr Brennan arrived in the Solomon’s, Japanese forces did still exist, however the fighting that was taking place had become meaningless, as Japan was a defeated nation by August 1945. There was no fighting in the area of the Russell Islands at the time when Mr Brennan was serving there.
34. According to Professor McCarthy there has been no evidence that Japanese submarines were operating in the Russell Island area between April/July 1945. Most Japanese submarines had been destroyed by this point in time. Those submarines not lost by mid-1945, had been withdrawn to contribute to the defence of the homelands, which were now heavily under attack. According to Professor McCarthy:
…there was only a very slight and possibly a most improbable chance that the Veteran would have encountered Japanese aircraft, submarines, or surface forces while serving in the Solomon Islands between April and July 1945.
35. There is no objective evidence that suggests Mr Brennan incurred danger from hostile forces of the enemy whilst serving in the Solomons.
CONCLUSION
36. Decisions about qualifying service must be on the balance of probabilities[12], and on that basis I am not reasonably satisfied that Mr Brennan did incur danger from hostile forces, whilst serving outside of New Zealand.
[12] Section 120 (4) of the Act.
37. Mr Brennan was not awarded a campaign medal for service within New Zealand, and he did not incur danger from hostile forces of the enemy whilst serving outside of New Zealand. He therefore did not render qualifying service for the purpose of s 7 of the Act.
DECISION
38. The decision under review is affirmed.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member
Signed: .......................[Sgd]......................................................
Kate Slack, Research AssociateDate/s of Hearing 2 December 2009 and 6 October 2010
Date of Decision 25 October 2010
Applicant was self represented
Solicitor for the Respondent Mr John Stoner, departmental advocate
0
2
0