Colclough and Repatriation Commission - [2000] AATA 1043

DECISION AND REASONS FOR DECISION [2000] AATA 1043

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/1409

VETERANS' APPEALS DIVISION          )
           Re      MURRAY COLCLOUGH
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member
Dr C Re, Member

Date17 November 2000
PlaceMelbourne

Decision The decision under review is affirmed.

………………………….…
Senior Member
VETERANS' ENTITLEMENTS : Service in Northern Territory in 1944; whether incurred danger; whether service records accurate; decision affirmed.

Veterans' Entitlements Act 1986 s85(4)(A), s7A

REASONS FOR DECISION

17 November 2000 Mr J. Handley, Senior Member
Dr C Re, Member

The applicant applies to review a decision of the respondent made on 29 September 1999. The respondent then determined that the applicant had not rendered qualifying service during a period of hostilities of World War 2 and was not entitled to a "Gold Card". The Veterans' Entitlements Act 1986 ('the Act') defines a "period of hostilities" as occurring between 3 September 1939 and 29 October 1945.
Qualification for a "Gold Card" is found at s85(4)(A) of the Act. All of the qualifying criteria are satisfied except it is disputed whether Mr Colclough "incurred danger from hostile forces of the enemy" during his service. This criteria must be satisfied in order to demonstrate "qualifying service" within the meaning of s7A of the Act.
The hearing of the application commenced in Wodonga on 26 July 2000 and resumed in Melbourne on 1 August 2000. Subsequently, there were a number of telephone hearings to inquire into the whereabouts of Mr Nissan and to ascertain whether the service documents needed to complete the Service History remained available. Mr Colclough was assisted throughout these proceedings by his daughter. The respondent was represented by Mr Douglass. We had available to us documents provided by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act which relevantly included a copy of the applicant's service records. Additionally, we were provided with a copy of a report from Professor McCarthy of the Australian Defence Force Academy.
Mr Colclough is presently 80 years of age having been born on 13 November 1920. He was a member of the Australian Army between 1 October 1941 and 9 October 1944.
Mr Colclough said that he was stationed in the Northern Territory as a member of the 8th Cavalry Regiment between March or April 1943 and February 1944. During that time he said he was exposed to air attacks from Japanese bombers. He said within this period he was stationed near the Fenton Air Field which was bombed. He recalled attending a race meeting in the Northern Territory in August or September of 1943 and confirmed the date of his arrival by recalling the bombing of the Winnalle Football Field approximately five months after arriving in the Northern Territory. He recalled being a passenger in a Liberator Bomber and also recalled undertaking reconnaissance work with Aboriginal trackers.
The respondent relied on the service records which demonstrated that Mr Colclough was "taken on strength" from the 18th Australian Infantry Training Battalion in Queensland on 25 November 1943 and was "delivered for duty" to the Northern Territory on 14 January 1944. It was submitted that the last Japanese bombing raid in Fenton was on 18 September 1943 and thereafter persons in the Northern Territory did not "íncur danger". It was submitted, therefore, that Mr Colclough was not eligible for a Gold Card.
Mr Colclough was adamant that the service records were incorrect. He said as a member of the 8th Cavalry Regiment that his former service colleagues would be able to confirm his arrival in the Northern Territory. Mr Colclough told us of colleagues with the surname Bond, Nissen, McGill and Francis. Mr Douglass undertook to obtain the records of the above persons. Mr Colclough was able to obtain the records of Mr McGill. These records were discussed at the resumed hearing on 1 August 2000.
A summary of the records disclosed that Mr McGill marched into the Northern Territory on 8 August 1943. Mr Francis marched into the Northern Territory on 9 August 1943. The date of entry by Mr Nissen into the Northern Territory is unclear however he marched out of the Queensland line of communication on 28 July 1943.
Professor McCarthy reported that the diaries of the 8th Cavalry Regiment are incomplete however the above records would suggest that the 8th Cavalry Regiment did not arrive in the Northern Territory before August 1943.
The records of Mr Colclough indicate that at August 1943 he marched into the Australian Armoured Corps Training Regiment and marched out to the 18th Australian Infantry Training Battalion in October. He was transferred eventually to the 31st Australian Infantry Training Battalion and was engaged as a weapons and/or small arms instructor in Queensland until he rejoined the 8th Cavalry Regiment in November 1943 preparatory to travelling to the Northern Territory in January 1944.
It would appear from the records and from information we learned at the hearing that the 8th Cavalry Regiment was previously known as the 8th Light Horse Regiment. The records indicate that Mr Colclough was a member of this regiment for a short time after his enlistment.
Mr Colclough remained adamant at the resumed hearing that the records were incorrect. He said "someone is trying to cover up". In the alternative he surmised that the records were incorrect because of "carelessness".
With respect we can find no evidence of error or carelessness nor was any evidence given of an error in the record keeping. We understand that the service records are a memorial of the movements of a service person. It would appear that the person entering data into the service records receives reports from elsewhere. It would appear from an observation of the records (so far as may be gleaned by the handwriting) that the entries between 23 August 1943 and 11 November 1943 were recorded in the same hand and may have been recorded at the same time. Nonetheless this would suggest that a number of reports concerning the movements of Mr Colclough were recorded at or about the same time. We profess no forensic expertise yet we doubt anything turns on this issue.
The fact remains that from the records at August 1943 when the applicant's colleagues Bond, Nissen and McGill were all in the Northern Territory, Mr Colclough was a member of the 31st Australian Infantry Training Battalion which was based in Queensland.
Having heard that the applicant was taken for a "joy ride" in a Liberator Bomber in the Northern Territory Mr Douglass undertook to research the history of Liberator Bombers in Australia. From documents tendered prior to the resumed hearing, Australian Liberator Bombers were not deployed to the Northern Territory until February 1944. Apparently United States Liberator Bombers had operated out of the Northern Territory from 1942 until early 1944 and it may be that Mr Colclough flew in an American Liberator. Whilst Mr Colclough said the Winnalle Football Field was bombed 5 months after he arrived in the Northern Territory, Professor McCarthy reported that 'a railway truck and a motor transport and two others damaged" on 20 June 1943.
Whilst all of the above occurred within the "period of hostilities" the last Japanese bombing in the Northern Territory occurred on 18 September 1943.
During the telephone hearings subsequent to 1 August it was learnt-
i) Mr Nissen is the only survivor of the persons named at paragraph 7.
ii) He has spoken with Mr Douglass and has advised that he can recall the applicant
· being in the Northern Territory but not when
· attending a race meeting believed to be on 26 September 1943, in the Northern Territory, but he cannot confirm the date
· serving in another unit as an instructor.
The service documents for entry of data into the service records – 'Routine Orders' are in part available. They record the applicant rejoined the 8th Australian Cavalry Regiment on 25 November 1943 from the 18th Australian Infantry Training Battalion, having previously served at Singleton & Puckapunyal, prior to marching out to the Northern Territory. Whilst the 8th Australian Cavalry Regiment arrived in the relevant part of the Northern Territory (to establish 'qualifying service'), Mr Colclough did not join this unit until after 25 November 1943.
The last bombing raid in the Northern Territory was reported on 18 September 1943.
If Mr Nissen's recollection is correct – both of the applicant attending the race meeting and it being held on 26 September 1943 the applicant did not, then incur danger from hostile forces of the enemy.
The Routine Orders are more likely to be correct and therefore to be preferred. They are contemporaneous with service and corroborate the service history. In June 1943, when Winnalle was bombed, Mr Colclough was based at Singleton.
We are satisfied and find as a fact that the service records of Mr Colclough forming part of the Tribunal documents are an accurate record of his movements and in those circumstances we find as a fact that he did not report for duty in the Northern Territory until 14 January 1944. There is nothing to indicate that he "incurred danger" after 18 September 1943.
It therefore follows that Mr Colclough cannot meet the standard of "qualifying service" which he must do in order to qualify for issue of a Gold Card.
Less there be any misunderstanding we have for the purpose of this decision concluded that with the passage of time – these events occurred 57 years ago – and with failing memory that Mr Colclough has been mistaken as to the time that he arrived in the Northern Territory.
The decision under review must be affirmed.
I certify that the twenty-five (25) preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed:    Carolyn Irons    ............................................
                 Secretary
Date of Hearing  26 July 2000. 1 August, 6 October, 9 November
Date of Decision
Counsel for the Applicant        Not Represented
Solicitor for the Applicant
Counsel for the Respondent    Mr Douglass
Solicitor for the Respondent