Constantinou and Repatriation Commission

[2004] AATA 89

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 89

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2003/275

VETERANS’     APPEALS       DIVISION

Re:         LAZAROS CONSTANTINOU

Applicant

And:       REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             27 January 2004

Place:            Melbourne

Decision:For reasons given orally at the hearing, the Tribunal affirms the decision under review.

(sgd) G.D. Friedman
  Member

VETERANS’ AFFAIRS - application for pharmaceutical benefits card - qualifying service - explosion on ship - whether danger incurred from hostile forces of the enemy

Veterans’ Entitlements Act 1986 s7A(1)(b)(i)

Re Buckingham and Repatriation Commission (1992) 28 ALD 412

Re McKeon and Repatriation Commission (1991) 23 ALD 745

Re Tonkin and Repatriation Commission (AAT 4966, 1 March 1989)

REASONS FOR DECISION

27 January 2004  G. D. Friedman, Member

1.      This is an application by Lazaros Constantinou (the applicant) for review of a decision of a delegate of the Repatriation Commission (the respondent) dated 10 December 2002.  The delegate affirmed a decision of the respondent dated 2 September 2002 to refuse a claim for a Repatriation Pharmaceutical Benefits Card.

2.      At the hearing of this matter on 27 January 2004 the applicant represented himself, assisted by his son Mr G. Constantinou. Mr R. Douglass, a Department of Veterans’ Affairs' advocate, represented the respondent.

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T9), together with one exhibit (Exhibit A1) lodged by the applicant and three exhibits (Exhibits R1-R3) lodged by the respondent.

BACKGROUND

4.      The applicant was born on 1 March 1925.  He enlisted in the Royal Navy on 3 September 1943 and served in Palestine and Egypt from 11 October 1943 until 26 January 1945, when he went to Bari, Italy, where he remained until 7 May 1945.  He was discharged on 12 May 1946 after a further year in Egypt and Palestine. 

5.      On 9 April 1945 the applicant was carrying out repairs at the Royal Navy’s base workshop in Bari.  At about 12 noon an explosion occurred on board a United States cargo ship that was carrying a large quantity of bombs.  The explosion caused extensive damage and a large number of service and civilian casualties..  The applicant was not injured as he was away from the dock area on his lunch break.   A subsequent Board of Inquiry was unable to determine the cause of the explosion.

6.      On 15 August 2002 the applicant lodged an Application to Determine Qualifying Service by a Veteran or Mariner in order to claim a Repatriation Pharmaceutical Benefits Card.  The basis of the application was that in April 1945 he had experienced danger from hostile enemy forces in the form of possible guerilla activity in Bari, Italy.  On 2 September 2002 a delegate of the respondent determined that the applicant  was not eligible for a service pension because he did not render qualifying  service  in  accordance with the Veterans’ Entitlements Act 1986 (the Act).  On 7 November 2002 the applicant sought review of the decision, and on 10 December 2002 a delegate of the respondent affirmed the decision.

7.      On 13 March 2003 the applicant applied to the Tribunal for review of the decision.

8.      The issue before the Tribunal is whether the applicant rendered qualifying service by incurring danger from hostile enemy forces in Bari on 9 April 1945. 

EVIDENCE

9.      In a written statement dated 6 November 2002 (T8 p32) the applicant stated that the Royal Navy base in Bari was a transport hub where bombs were stored before being transported to Allied airfields.  He said that his duties involved travelling from the base workshop to ships to carry out repairs.  The applicant explained that the explosion and fires destroyed the workshop, and he and other personnel were told that the explosion and fire were the result of sabotage by hostile forces.  He stated that, viewed objectively, personnel working at the base were exposed to, at risk of or in peril of harm and injury because of the close proximity to the bombs, which were also an obvious target for enemy forces.  He stated that he saw and heard the explosion from nearby, and the incident was a traumatic experience.

10.     In oral evidence the applicant clarified his written statement and said that in discussion with other survivors there was suspicion that the explosion may have been caused by sabotage, although he was not questioned by anyone investigating the incident. 

11.     In a written report dated 22 July 2003 (Exhibit R1) Associate Professor J. McCarthy, of the Australian Defence Force Academy, stated that, on the basis of his research, he could confirm that a ship carrying ordnance was destroyed by an explosion in Bari on 9 April 1945, and it may be reasoned that the applicant would have been in the affected area at the time.  He concluded that from available sources it has proven impossible to determine the cause of the explosion, and the applicant’s claim  of  sabotage by hostile forces cannot be confirmed or denied.  However, Professor McCarthy noted that it seems most unlikely that the ship could have been destroyed through the action of enemy land forces, as Bari had long been in Allied hands and was regarded as part of liberated Italy.  The German land forces were some three hundred miles to the north.

12.     Professor McCarthy stated that it was unlikely that the Luftwaffe, the German Air Force, caused the explosion because the Allied air forces had almost complete air supremacy at the time, and the Luftwaffe had virtually withdrawn from Italy.  He said that no evidence could be found that German U-Boats operated in Italian waters or had any strategic interest in the port of Bari in April 1945.  He noted that Germany surrendered shortly afterwards, on 7 May 1945.

13.     In oral evidence Professor McCarthy stated that he could find no evidence of attacks on Allied installations by anti-allied groups in the Bari area at the time of the explosion.  He added that accidents involving explosives were not uncommon during the war.

14.     In documents obtained from the Public Records Office (UK) (Exhibit R3) a report headed The explosion in Bari Docks - 9 April 1945, prepared by the British Army on 26 April 1945, did not refer to any enemy activity or reach any conclusion about the cause of the explosion.  Further documents dated 23 April 1945 (Exhibit R2) refer to a Board of Inquiry that convened on 11 April 1945 and adjourned on 14 April 1945 without establishing the cause of the explosion.

CONSIDERATION OF THE ISSUES

15.     Section 7A(1) of the Act provides:

7A(1)      For the purposes of Parts III and VA and sections 85 and 118V, a person has rendered qualifying service:

(a)…

(b)if, during a period of hostilities, the person has, as a member of the defence force established by a Commonwealth country, rendered, in connection with war or war-like operations in which the Naval, Military or Air Forces of Australia were engaged:

(i)service, in an area outside that country, at a time when the person incurred danger from hostile forces of the enemy in that area; or

(ii)…

16.     The applicant submitted that, according to the documents in Exhibits R1 and R2, there was no unusual activity reported immediately before the explosion.  He said that this supported the proposition that sabotage was the likely cause.  He also referred to Exhibit A1 which included extracts from a history of Italy during the war, and submitted that the country was in a state of unrest and political turmoil, so the possibility of sabotage could not be excluded.  He said that even a small number of Italians working at the naval base could have been responsible for the explosion.

17.     The applicant referred the Tribunal to the decisions of Re Buckingham and Repatriation Commission (1992) 28 ALD 412, Re McKeon and Repatriation Commission (1991) 23 ALD 745 and Re Tonkin and Repatriation Commission (AAT 4966, 1 March 1989) to support his submission.

18. Mr Douglass stated that there was no dispute that the applicant was in the vicinity of the explosion, and that, as a result, he could be said to have incurred danger. However, Mr Douglass said that the evidence demonstrates that no cause for the explosion could be determined. He also relied on the report from Professor McCarthy that it was unlikely that the explosion was the result of enemy action, and submitted that, on the balance of probabilities, the applicant did not incur danger from hostile forces of the enemy, so he failed to satisfy s7A(1)(b)(i) of the Act.

19.     Mr Douglass stated that the cases cited by the applicant support the view that probative evidence of hostile enemy action, rather than speculation, is required before an applicant is able to satisfy the relevant criteria in the Act.

20.     The Tribunal reached its decision taking into account the oral and written evidence and the submissions made at the hearing.

21.     The Tribunal accepts the evidence from the applicant that he was present in Bari at the time of the explosion.  The Tribunal also accepts the evidence from Professor McCarthy that there is nothing in any of the available historical material that would confirm or deny that the explosion was caused by sabotage by enemy forces or  was  an accident.  The Tribunal is satisfied, on the basis of the evidence from Professor McCarthy and the secondary sources consulted, that there is little likelihood that the explosion was caused by enemy ground, air or naval forces operating in the vicinity of Bari at the time.

22.     In Re Buckingham the Tribunal stated (at paragraph 28) that the danger from hostile forces of the enemy must be assessed on the basis of objective rather than subjective considerations. In this case, on the evidence provided, the Tribunal finds there is no more than speculation or conjecture that enemy forces caused the explosion. Therefore, on the balance of probabilities, the Tribunal finds that the applicant did not incur danger from hostile forces of the enemy, and he does not satisfy s7A(1)(b)(i) of the Act. Therefore, he has not rendered qualifying service.

DECISION

23.      For reasons given orally at the hearing, the Tribunal affirms the decision under review.

I certify that the twenty-three [23] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  27 January 2004

Date of decision:  27 January 2004
Advocate for applicant:                Self-represented
Advocate for respondent:            Mr R. Douglass

Solicitor for respondent:              Advocacy Section, Department of Veterans’ Affairs