Coombes and Repatriation Commission

[2005] AATA 197

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 197

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/1191

VETERANS'      APPEALS      DIVISION

Re:         LESLIE JAMES COOMBES

Applicant

And:       REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       Mr C. Ermert, Member

Date:             10 March 2005

Place:            Melbourne

Decision:      The decision under review is affirmed.

(sgd) C. Ermert

Member

VETERANS' AFFAIRS – - entitlement to Gold Card - definition of veteran met under s 85(4A) of the Veterans' Entitlements Act 1986 - veteran's performance within defined period of hostilities - whether applicant rendered qualifying service

Veterans’ Entitlements Act 1986 ss 5B, 7, 85(4A)

Repatriation Commission v Thompson (1988) 44 FCR 20

Willcocks v Repatriation Commission (1992) 39 FCR 49

REASONS FOR DECISION

10 February 2005   Mr C. Ermert, Member

INTRODUCTION

1.      This is an application by Mr Leslie James Coombes (the veteran) for review of a decision of a delegate of the Repatriation Commission (the Commission) dated 20 July 2004.

2. That decision affirmed an earlier decision of the Commission, dated 28 May 2004, which determined that the veteran had not rendered qualifying service within the meaning of s 7A of the Veterans’ Entitlement Act 1986 (the Act) and accordingly did not comply with the criteria for health benefits under s 85(4B) of the Act.

3.      At the hearing the veteran represented himself and the Commission was represented by Mr R Douglass, an advocate with the Department of Veterans' Affairs.

BACKGROUND

4.      The veteran enlisted in the Australian Army (the army) on 25 April 1945 and commenced training in Cowra, New South Wales.  There was a prisoner of war camp nearby at which Japanese prisoners had rioted and from which some prisoners had escaped; although this was prior to the veteran’s arrival.  Some Italians prisoners of war were still in the camp at Cowra.  However, by then, Italy was no longer an enemy nation.  During the period of his training at Cowra, the war against Germany ended.  After his recruit training at Cowra, the veteran was posted to Bonegilla, near Albury, to undertake further training.  During this period of his service the war against Japan also ended.

5.      On completion of his training at Bonegilla the veteran was posted to Moorebank.  While there, the veteran applied for service in Japan with the British Commonwealth Occupation Forces (BCOF).  However, he later withdrew the application.  The veteran then responded to a call for volunteers to go to China on escort duties.  On 27 September 1946 he embarked at Sydney on SS Reynella and sailed to Port Moresby.  Ten days later he embarked on HMAS Barwon and sailed to Rabaul where he undertook some further training.  Japanese prisoners of war were still in Rabaul at the time, being employed as labourers.

6.      On 18 December 1946 he re-embarked on the SS Reynella for the voyage to Shanghai.  The ship carried approximately 1300 Chinese prisoners of war, Korean labourers and a Japanese Camp Commander.  The veteran’s role was to provide guard duties.  As part of his duties, he was issued with an Owen sub-machine gun and acted as the № 2 on a Bren machine gun situated outside the forward hold doorway.  In one incident on board he was required to escort one of the ship’s crew back to quarters.  While at Shanghai, Chinese Army troops patrolled the streets with weapons.  During the voyage the veteran was also concerned by reports of pirates raiding ships in the area.

7.      The SS Reynella returned to Melbourne.  The veteran transferred to Sydney by rail and was subsequently discharged from the army on 18 March 1947 on demobilization.

THE LEGISLATION

8.      By making an application for a “Gold Card”, Mr Coombes has sought eligibility for the cost of medical treatment.

9. Section 85(4A) of the Act provides that a veteran is eligible for provision of treatment if the veteran is 70 years of age or over and has rendered “qualifying service during the period covered by paragraph (v) of the definition of period of hostilities in sub-section 5B(1) …”.

10.     Section 85(4B) of the Act provides for service after the period of hostilities if the veteran is 70 years of age or over and has rendered qualifying service within the meaning of subparagraph 7A(1)(a)(ii), (iii) or (iv) or paragraph 7A(1)(b), (c) or (f) of the Act.

11.     Section 5B defines “period of hostilities” (in so far as it applies to World War II) as the period between 3 September 1939 and 29 October 1945.

12. Section 7A refers to “qualifying service” and deems that a person has rendered qualifying service (relevantly) in the following circumstances:

7A Qualifying service

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

(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)rendered service after 29 October 1945 in respect of which the person has been awarded, or has become eligible to be awarded, the Naval General Service Medal or the General Service Medal (Army and Royal Air Force) with the Minesweeping 1945-51 Clasp, the Bomb-Mine Clearance 1945-53 Clasp, the Bomb and Mine Clearance 1945-49 Clasp or the Bomb and Mine Clearance 1945-56 Clasp;”.

13. The respondent submitted (see paragraph 30 below) that s 7A(1)(a)(ii), (iii) and (iv) and s 7A(1)(b), (c) and (f) of the Act were not relevant to this case. This submission was not contested by the veteran and was accepted by the Tribunal. The specific requirements of these sub-sections are not considered further in these reasons.

THE ISSUES

14. Arising from the legislation, the issues for determination are the veteran’s age, whether the veteran rendered qualifying service in accordance with s 7A(1)(a)(i) of the Act during the period of hostilities, or whether the veteran rendered qualifying service in accordance with s 7A(1)(a)(ii) after 29 October 1945.

15.     The standard of proof for the consideration of these issues is on the balance of probabilities.

DOCUMENTS

16. 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). Included in these documents is a letter from the veteran to the Commission dated 12 July 2004 (T11), requesting a review of the Commission’s decision of 28 May 2004. This letter also contains his account of his service with details of his training and voyages.

17.     The veteran also had with him copies of articles from journals and newspapers and a media release.  As copies were already included in the T‑documents (attachments to T11), there was no need to separately take them into evidence.

EVIDENCE FOR THE APPLICANT

18.     In his evidence, the veteran provided the details of his service including his training at Cowra and Bonegilla and his later voyages to Port Moresby, Rabaul and Shanghai, as contained in paragraphs 4 to 7 above.

19.     In response to questions from Mr Douglass, the veteran elaborated on some of the details of his statement.  The veteran said that, by the time he arrived at Cowra, the Japanese prisoners of war had been transferred to Hay.  He told the Tribunal the Italians were still being held at Cowra but they did not cause any trouble.  They were being treated as prisoners and were employed as labourers.  He stated that he “he had nothing to do with them at all”.  The veteran confirmed that he was undergoing training while at Cowra and was not involved in guard duties.

20.     The veteran recounted an incident that occurred while he was in Rabaul that gave him concern.  While he and some companions were walking along a track they heard voices from the top of the valley.  He said “Well I had the wind up to be honest”.

21.     On board SS Reynella, although there was an expectation that the prisoners might riot, there were no such incidents.  The only incident in which the veteran was involved was when he and another guard were required to escort two crew members, who wanted to sleep on deck, back to their quarters.  He reiterated his concerns over reports of pirates and on one occasion he saw a signal lamp flashing in the dark but he had no knowledge of who was trying to make contact.  In Shanghai there were also no incidents that affected the veteran.

EVIDENCE FOR THE RESPONDENT

22.     Mr Douglass submitted no evidence in this matter.

SUBMISSIONS

23.     Mr Douglass conceded that Mr Coombes was a veteran as defined in the Act and that he is over 70 years of age. The veteran had met all the requirements for the proper lodgement of the claim.

24. Mr Douglass submitted that for this case the relevant provision of the Act is s 7A(1)(a)(i), which states that a person has rendered qualifying service if that person has, as a member of the Defence Force:

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.

25.     The veteran’s period of service from (his enlistment on) 25 April 1945 to 29 October 1945 is included in the definition of "period of hostilities".  However, the Mr Douglass submitted that the veteran did not meet the other elements of qualifying service, namely being engaged in military operations and incurring danger from hostile forces of the enemy. 

26.     During the prescribed period of hostilities, the veteran served at Cowra and Bonegilla.  While at Cowra the veteran was under training and not involved in operations against the enemy.  The breakout of Japanese prisoners of war had occurred prior to the veteran’s enlistment.  The Italians in Cowra at the time were no longer an enemy, Italy having been at war against Germany for approximately one and a half years.  In any case, the veteran’s evidence was that "he had nothing to do with them".  While at Bonegilla the veteran continued to undergo training and was not involved in operations of any kind.  There were no incidents that could be considered as incurring danger during the veteran’s period of service at Cowra and Bonegilla.

27.     In regard to the veteran’s service after 29 October 1945, Mr Douglass submitted that this period of service falls outside the period of hostilities described in s 5B(1) and therefore can not amount to qualifying service under s 7A(1)(a)(i) of the Act. Further, there was no evidence that the veteran incurred danger during his period of service. The Mr Douglass went on to say that, even had there been riots in Shanghai at the time of the veteran’s presence, he would not have incurred danger from enemy forces as there were no forces in the area that could be classed as enemy forces.  In regard to the veteran’s evidence of the presence of Japanese prisoners of war loading supplies at Rabaul, Mr Douglass submitted that this was outside the period of hostilities and in any case there were no incidents from which the veteran could have incurred danger.

28.     Mr Douglass referred the Tribunal to the consideration of the "incurred danger" test by the full bench of the Federal Court in Repatriation Commission v Thompson (1988) 44 FCR 20. At pages 23‑24, the Court held that:

…

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 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.

29.     *Mr Douglass referred to the provisions of s 85(4B)(b) which provides for eligibility outside the period of hostilities, under prescribed circumstances. He submitted that the only category that could possibly apply would be s 7A(1)(a)(ii) of the Act which provides for service after 29 October 1945, in respect of which the veteran has been awarded, or has become eligible to be awarded, one of a number of medals with clasps for bomb or mine clearance. Mr Douglass submitted that the veteran was not involved in such activities and is not eligible for any of the prescribed medals.

30.     Mr Douglass concluded by summarising the requirements of each of the other sub-sections of s 7A and submitting that the veteran’s circumstances did not fit into any of the categories so described.

31.     Mr Coombes submitted that his case was a special one.  His reaction to the incident in the valley at Rabaul where he heard the voices of unknown people was that he “had the wind up”.  He also referred the Tribunal to a newspaper article (T‑documents, page18) recounting the difficulties being faced by ex‑members of BCOF in their applications for war pensions “because their tour of duty to Japan was not regarded as “war-like” service”.

32.     In answer to a question from the Tribunal, Mr Coombes said that he brought the appeal to the Tribunal because up to this point “…it was all done by letter, you know.  There was no contact with anybody to talk about it and I felt a bit – to put it plainly, I felt I was a bit fobbed off.”.

CONSIDERATION

Issues

33. As stated in paragraph 14 above, the issues for determination are the veteran’s age, whether the veteran rendered qualifying service in accordance with s 7A(1)(a)(i) of the Act during the period of hostilities; or whether the veteran rendered qualifying service in accordance with s 7A(1)(a)(ii) after 29 October 1945, that is after the period of hostilities.

34. The records show the veteran’s date of birth as 25 March 1927. There was no dispute on this issue and the Tribunal finds that his age is over 70 years and he therefore satisfies that requirements of s 85(4A) and s 85(4B) of the Act.

35.     This leaves for consideration the issues of qualifying service within and after the period of hostilities.

Qualifying Service

36. Section 7A of the Act prescribes the requirements for qualifying service. The sub-sections that apply in this case differentiate between whether the service was rendered during the period of hostilities (s 7A(1)(a)(i)) or after 29 October 1945 (s 7A(1)(a)(ii)). The veteran’s service was from 25 April 1945 to 18 March 1947 thus he served both during and after the period of hostilities. In considering the requirements of qualifying service each of the sub-sections is taken in turn.

During the Period of Hostilities

37.     Section 7A(1)(a)(i) of the Act requires the veteran to have “rendered service, during a period of hostilities…in operations against the enemy…at a time when the person incurred danger from hostile forces of the enemy…”.  It was the veteran’s evidence that during his period of service from 25 April 1945 to 29 October 1945 he was undergoing training at Cowra and later at Bonegilla.  While at Cowra, the veteran undertook picket duty at night for “perhaps two hour…to watch for flares” from the camp occupied by the Italians.  In considering whether this could constitute operations against the enemy reference was made to Willcocks v Repatriation Commission (1992) 39 FCR 49 where Cooper J said (at 55):

…

The phrase “naval, military or aerial operations against the enemy” is to be read as a whole.  It includes two elements.  The first is that there must be some operation which is naval, military or aerial in character.  The second is that the requisite operation must be against the enemy.  Both elements must be satisfied for service to constitute “qualifying service” within the meaning of s 36 of the VE Act.

38.     In this case training and picket duty can not be construed as military operations against the enemy.  Further, the Italians in the adjacent camp at the time of the veteran’s service were no longer an enemy, Italy having surrendered on 3 September 1943 and declared war on Germany on 13 October 1943.

39.     The veteran submitted no evidence of incidents during his period of service up to 29 October 1945 from which he could have incurred danger from hostile forces of the enemy.

40.     The period of the veteran’s service in Rabaul and on board the SS Reynella, during which he encountered incidents of concern, did not commence until 27 September 1946 some 11 months after the end of the period of hostilities.

41.     On the basis of the veteran’s evidence the Tribunal finds that, during the period of hostilities, the veteran was not engaged in operations against the enemy and did not incur danger from hostile forces of the enemy.  The veteran does not meet the requirements for qualifying service as prescribed in s 7A(1)(a)(i).

After the Period of Hostilities

42. Section 7A(1)(a)(ii) of the Act requires the veteran to have rendered service after 29 October 1945 in respect of which the veteran has been awarded, or has become eligible to be awarded, one of a number of medals with clasps for minesweeping or bomb and mine clearance. There is no evidence of the veteran being awarded or being eligible for the requisite medals or clasps.

43.     It was the veteran’s case that, during his time in Rabaul, Japanese prisoners of war were loading supplies on to the ship.  In a particular incident “he had the wind up” as a result of hearing unknown voices at night in a valley.  While on the SS Reynella, he was worried about the possibility of pirates attacking the ship in the vicinity of Indonesia.  Also on the SS Reynella he saw signal lamps flashing from an unknown source and on one occasion he was required to escort crew members back to their quarters.  The Tribunal accepts the concerns experienced by the veteran at these times however the incidents described have no connection with the mine and bomb clearance requirements of this section of the Act.

44.     The Tribunal finds that the veteran does not meet the requirements for qualifying service as prescribed in s 7A(1)(a)(ii).

45. There was no claim by the veteran of compliance with the provisions of s 7A(1)(a)(ii), (iii) or (iv) or s 7A(1)(b), (c) or (f) of the Act. The Tribunal accepts the submission by the Mr Douglass that these sub-sections are not relevant to this case and finds that the veteran’s service was not qualifying service under the provisions of those sections.

FINDINGS

46.     The Tribunal finds that the veteran has not rendered qualifying service during the period of hostilities as required under s 7A(1)(a)(i) and that the veteran is not eligible for treatment in accordance with s 85(4A) of the Act.

47.     The Tribunal also finds that the veteran has not rendered qualifying service within the meaning of s 7A(1)(a)(ii), (iii) or (iv) or s 7A(1)(b), (c) or (f) of the Act and that the veteran is not eligible for treatment in accordance with s 85(4B) of the Act.

48.     As a consequence of these findings, the veteran is therefore not entitled to the issue of a “Gold Card”.

DECISION

49.     The decision under review is affirmed.

I certify that the forty-nine [49] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr C. Ermert, Member

(sgd)     Catherine Thomas
            Clerk

Date of Hearing:  12 January 2005

Date of Decision:  10 March 2005
Advocate for applicant:                Self‑represented
Counsel for the respondent:        Mr R. Douglass

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