Carn and Repatriation Commission

[2001] AATA 313

DECISION AND REASONS FOR DECISION [2001] AATA 313

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No N2000/1029

VETERANS' APPEALS DIVISION          )          

Re      CECIL EDWARD CARN   

Applicant

And    REPATRIATION COMMISSION  

Respondent

DECISION

Tribunal       RADM A R HORTON AO, Member         

Date18 April 2001

PlaceSydney

Decision      The decision under review is affirmed    

[Sgd] RADM A R HORTON AO
  Member
CATCHWORDS
VETERANS' AFFAIRS  -- gold card eligibility – service in Australian Army – passage in HMAT GORGON from Brisbane to Thursday Island – service on Red Island -- qualifying service  -- whether incurred danger from hostile forces

Veterans' Entitlements Act 1986 – ss 5B(1), 5C(1), 7A, 120(4)
Veterans' Entitlements Amendment (Gold Card) Act 1998 – s 85(4A)

Repatriation Commission v Thompson (1988) 44 FCR 20
Willcocks v Repatriation Commission (1992) 39 FCR 49
McGuiness and Repatriation Commission [2000] AATA 3
Leslie and Repatriation Commission [2000] AATA 90
Floyd and Repatriation Commission [2000] AATA 519
Mullen and Repatriation Commission [2000] AATA 871
Re Dwyer and Repatriation Commission (1987) 13 ALD 424

REASONS FOR DECISION

RADM A R HORTON AO, Member   

1. This is an application for review of a decision dated 30 November 1999 by a delegate of the Repatriation Commission ("the Respondent"), and affirmed by review under s 57A of the Veterans" Entitlements Act 1986 ("the Act") on 11 May 2000, that Cecil Edward Carn ("the Applicant") did not render qualifying service for the purposes of s 7A of the Act, and hence was not eligible for a Gold Card under s 85(4A) of the Veterans' Entitlements Amendment (Gold Card) Act 1998 ("the Gold Card Act"). The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 4 July 2000.

2. At the hearing before the Tribunal in Wagga Wagga on 3 April 2001, the Applicant was assisted by Mr B Bowyer, Welfare Officer of the Returned and Services League of Australia, Lockhart Sub-Branch. Ms M Doggett represented the Respondent. The Tribunal had before it the documents provided by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also took into evidence a letter from Mr B Bowyer dated 17 September 2000 (Exhibit A1).
   ISSUES BEFORE THE TRIBUNAL

3. The Applicant claims qualifying service as a prerequisite for eligibility for a Gold Card. Eligibility is established pursuant to s 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  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." 

1. Qualifying service is defined in s 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 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

   (ii)   ……….."

2. 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 s 5C of the Act. The Applicant meets the age criteria for the Gold Card as defined in s 85(4A)(a), being aged 86 at the time of the application. The Respondent also concedes that the Applicant rendered service during the period of hostilities as defined in s 5B(1). The relevant standard of proof is that of reasonable satisfaction, that is on the balance of probabilities, pursuant to s 120(4) of the Act.
   FACTS AND EVIDENCE 

4. The Applicant was born on 20 March 1913.   He worked as a shearer prior to enlisting in the Citizen Military Forces on 17 March 1941.  He was posted and taken on strength on 5 November 1941.   He transferred into the Australian Imperial Force on 12 November 1943, and was discharged on 21 February 1945 (T3, p8).   He was trained as a gunner, serving in various tank attack and anti aircraft units in NSW, Victoria and Queensland.   There is no record of any service in the operational area of the Northern Territory, nor did he serve outside Australia (T3, p6).  

5. On 7 March 1944, as a member of 154 Light Anti-Aircraft Battery, the Applicant embarked in HMAT GORGON at Brisbane for passage to Thursday Island, where he remained for a few weeks before transferring by barge to Red Island.  He gave evidence that the passage north from Brisbane was uneventful. He stated that he was not aware of the route taken by the GORGON, and for much of the passage, was located below decks. The Applicant heard rumours to the effect that enemy submarines were operating in the general area, but there were no announcements or briefings by the command to indicate the presence of enemy forces or an expectation of any enemy threat.   He believed that GORGON had been escorted, but did not see any other ship.    No incidents of which he was aware occurred then or during the subsequent barge passage from Thursday Island to Red Island and there was no indication of any enemy threat.   His transfer from Brisbane to Red Island, and the return to the mainland, were the only occasions of deployment in Australian coastal waters during his army service.

1. The role of the Applicant's unit on Red Island was to provide defence against enemy aircraft, presumably in the event of an attack on Thursday or Horn Islands or on the mainland.   His unit was equipped with one anti-aircraft gun as well as small arms.   In evidence, the Applicant stated that practice gun drills and firings were conducted, but he neither saw nor heard any indication of enemy activity.  He did not think that the island was equipped with radar.   Allied aircraft were observed from time to time.

2. The unit remained on Red Island until October 1944, when it transferred to the mainland by barge.   Again the Applicant neither saw nor heard any evidence of enemy activity.   The unit departed Higginsfield by motor convoy on 9 October for the southern states, where the Applicant served until his discharge on 21 February 1945 at Royal Park, Melbourne.  It is in the period covering the sea passage from Brisbane and whilst serving on Red Island, that he believes he incurred danger pursuant to the criteria for qualifying service as defined in s 7A of the Act.  
   ANALYSIS OF EVIDENCE AND FINDINGS

3. As conceded by the Respondent at the outset, the Applicant is a veteran and meets the requirements of s 85(4A) of the Gold Card Act in respect of age and service during a period of hostilities. The issue is whether the Applicant has rendered qualifying service as defined in s 7A of the Act.

4. The Respondent referred the Tribunal to the authoritative decision of the Full Federal Court in Repatriation Commission v Thompson (1988) 44 FCR 20, wherein their Honours 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 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."

5. The Respondent submitted that this requirement to meet an objective test was the central issue in this matter, and that there was no evidence to suggest that such an objective test could be met.   Neither historic reports nor evidence evinced in similar cases before the Tribunal (McGuiness and Repatriation Commission [2000] AATA 3, Leslie and Repatriation Commission [2000] AATA 90, Floyd and Repatriation Commission [2000] AATA 519 and Mullen and Repatriation Commission [2000] AATA 871), could support such a contention. The Respondent submitted that accordingly the Applicant had not incurred danger and thus he does not satisfy the definition of qualifying service under s 7A of the Act.

6. As earlier stated, the Applicant did not serve in an operational area of the Northern Territory, nor outside Australia.   Red Island is part of the state of Queensland.   As noted in the section 57A review of the primary decision, the Applicant cannot benefit from

   " the Repatriation Commissions coastal waters policy (which) concedes incurred danger for voyages  in the area from Sydney to Thursday Island during the dates 3 September 1939 to 16 September 1943, the period of known enemy activity". 

The voyage of the Applicant took place some six months after this period.

1. In both McGuiness (supra) and Leslie (supra), the issue was whether the Applicant had incurred danger whilst taking passage in HMAT GORGON from Sydney to Townsville in August 1944.   In both matters, historical reports from Mr B G O'Keefe, Consulting Historian, were taken into evidence.  In both matters, the Applicant accepted the 'historical records as submitted in the (O'Keefe) report, in regard to the operations of submarines and the locations of enemy minefields'.  The records indicate that the last attack by a Japanese submarine in eastern Australian waters was in June 1943, (although a later sinking by a German submarine occurred in late 1944 off Gabo Island).  The only known minefields in the Barrier reef area were laid by allied forces, and the Respondent in those matters submitted that GORGON would have traversed a well used sea route.   Whilst the passage of GORGON in McGuiness (supra) and Leslie (supra) took place in August 1944, historical records affirm that similar circumstances existed during the earlier passage of GORGON from Brisbane to Thursday Island with the Applicant in this matter embarked.

2. The circumstances in Mullen (supra) have relevance to this matter, as submitted by the Respondent.   Mr Mullen was stationed with 341 Radar Station on Mulgrave Island, some miles north of Red Island in the Torres Strait, from January 1944 until April 1945.   Historical research and reports as to enemy activities in that period was provided by Mr O'Keefe and Lieutenant Colonel David Horner (in ReDwyer and Repatriation Commission (1987) 13 ALD 424). The Tribunal in Mullen (supra) concluded at para 18, from the historical reports, that:

   "18. The "actual" military situation pertaining at the time of the Applicant's posting to Mulgrave Island was such that whilst the Japanese forces may have had some capacity and potential to conduct air attacks against the Torres Strait – Merauke area, as evidenced in an intelligence report prepared by General Macarthur's staff in March 1944, and referred to in the report by Lieutenant Colonel Horner in Re Dwyer (supra), the fact is that no such attacks took place.   The reported incidents of detection of unidentified aircraft (which may have been friend or foe) by the radar facilities at Horn and Mulgrave Islands are minimal.  The Applicant himself neither heard nor saw any evidence of enemy activity, and whilst he was concerned that the "doover" was an easily identifiable "target" on Mulgrave Hill, the fact is that it elicited no evident enemy reaction.   Against the objective test as construed by the Full Court in Thompson (supra), the Tribunal cannot be reasonably satisfied that the Applicant  incurred danger from hostile enemy forces.

   19. A similar conclusion can be drawn as regards the threat of mines during the transfer of 341 Radar Station from Horn to Mulgrave Island, and during the unloading operations….."     

3. Given that Mulgrave and Red Islands are in close proximity, the Tribunal is reasonably satisfied that the conclusions above in respect of Mullen (supra) can be applied to this matter.  

4. There is no evidence to suggest that the Applicant incurred danger either whilst on passage from Brisbane to Thursday Island in GORGON, nor in the subsequent transfer to Red Island and the period of service on that island.   No incidents that might support a contention of danger have been evidenced.   The  Applicant himself variously stated to the Tribunal that he had no first hand knowledge of any incidents or events that might have suggested the presence of enemy forces or enemy activities.  As in other decisions on matters similar to this, the Tribunal acknowledges that the full detail of enemy activities was not to emerge until after the cessation of hostilities. However, there is no evidence to suggest that at the time, the applicant "encountered danger" or was "in danger".   He may well have had the perception of danger, fuelled perhaps by rumour such as he referred to whilst onboard GORGON, but that is insufficient to meet the objective criteria required under Thompson (supra).

5. In the circumstances, the Tribunal finds it unnecessary to consider whether the Applicant met the other components of the definition of qualifying service, such as whether operations were conducted "against the enemy", as authoritatively defined by Cooper J in Willcocks V Repatriation Commission (1992) 39 FCR 49. These are not matters for consideration unless the "incurred danger" test is met.

6. In final submission, the Respondent attested to the fine service of the Applicant in the service of his country, an acknowledgement endorsed by the Tribunal. However, the fact of the matter is that the Applicant must meet the relevant legislative requirements under the Act, and the Gold Card Act, and this he is unable to do as regards qualifying service pursuant to section 7A.

7. There is no doubt in the mind of the Tribunal that the legislation lends to the perception of discrimination against those veterans, serving in the same arm of the service, but who through no fault of their own were not posted for overseas duty, as far as eligibility for the Gold Card is concerned.   Mr Bowyer, advocating for this 88 year old veteran, spoke at some length on this issue, referring in particular to the  fact that those who were not posted overseas were nonetheless an essential part of the whole defence organisation, responsible for the provision of defence of this country should it be required, and providing the support services for those at the front.   In his view, all those in uniform during this period of hostilities should be eligible for the Gold Card.  The Tribunal acknowledges this viewpoint.

1. This review of the primary decision has been undertaken against the circumstances of the Applicant's service, the evidence adduced and extant legislation and case law.   The Tribunal finds, against the relevant standard of proof of reasonable satisfaction vide subsection 120(4) of the Act, that the Applicant has not rendered qualifying service for the purpose of section 7A and is therefore not eligible for a Gold Card.

2. The decision under review is affirmed.

   I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of RADM A R HORTON AO

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

   Date/s of Hearing  3 April 2001
   Date of Decision  18 April 2001
   Solicitor for the Applicant         Mr B Bowyer
   Solicitor for the Respondent    Ms M Doggett