Credlin and Repatriation Commission
[2001] AATA 539
•15 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 539
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2000/327
VETERANS' APPEALS DIVISION )
Re JOHN EDWARD CREDLIN
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr A. Argent, Member
Date15 June 2001
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
..........(Sgd) A. Argent.............
Member
CATCHWORDS
VETERANS' AFFAIRS – whether qualifying service – whether incurred danger from hostile forces of the enemy – decision affirmed
Veterans' Entitlements Act 1986 s. 7A
Repatriation Commission v Thompson (1988) 82 ALR 352
REASONS FOR DECISION
15 June 2001 Mr A. Argent, Member
This is an appeal by Mr John Edward Credlin ("the veteran") against a decision of a Service Pension Review Officer of the Repatriation Commission ("the Commission") dated 5 January 2000.
That decision affirmed a previous decision by a delegate of the Commission dated 6 September 1999 which determined the veteran had not rendered qualifying service during the period of hostilities of World War II.
The period of hostilities of World War II is from 3 September 1939 to 29 October 1945.
Qualifying service is defined at section 7A of the Veterans' Entitlements Act 1986 ("the Act"). Part of this section reads:
"7A. (1) …, 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; …"
Issue
The issue before the Tribunal is whether the veteran rendered qualifying service during World War II and specifically whether he "incurred danger from hostile forces of the enemy".
The evidenceThe Tribunal had before it the documents ("the T documents") lodged by the Commission pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Included in these documents is a statement made by the veteran on 15 October 1999 concerning his case.
The Tribunal also had before it:
(a)A letter dated 16 September 1999 from the Department of Defence Naval History Directorate concerning RAN and RAAF activities in Broome 1943
(b)Letters dated 3 June 1998 and 22 May 2000 from the veteran concerning his service
(c)Three reports from an historian, Mr R. Piper, dated 23 June 2000, 21 October 2000 and 21 April 2001 concerning places and events relevant to the veteran's service.
The veteran presented his own case and the respondent was represented by Mr R. Douglass, a Commission advocate.
The veteran was born on 3 February 1924, enlisted in the RAAF on 12 June 1942 and was discharged on 21 March 1946. He was aged 75 when he applied for a Service Pension.
The veteran based his case for qualifying service on:
(a)When undergoing flying at Bundaberg, Queensland he flew out to sea 15-20 miles
(b)During his service in Broome, West Australia
(i)he saw Japanese aircraft overhead
(ii)he was in danger when he was engaged in clearing wrecked aircraft from the harbour.
The veteran said that during his flying training at Bundaberg, 15 March –20 July 1943 he flew out to sea on a number of occasions. No enemy were sighted during these flights.
During his later service he was posted to 40 Zone Filter Centre at Broome, West Australia. The veteran said he travelled from Adelaide, where he attended a school of technical training, to Perth by train. He then went by air from Perth to Broome. The flight was across land, the direct route, not out to sea. He does not accept his Records date of service with 40 Zone Filter Centre beginning 12 October 1943. He believes he arrived at Broome some time before this – about two and half weeks or so.
Whilst at Broome he saw Japanese aircraft flying high over Broome. They made no attacks on Broome – no bombs were dropped, there was no air-to-ground firing, he said.
His work in Broome harbour was connected with clearing the wreckage of allied aircraft which had been destroyed by the Japanese in an air raid in early 1942. He said he worked on what he thought was a lugger and, amongst other things, he recalled manning an air pump for divers who were clearing wreckage. During these operations there were no explosions (from perhaps unexploded enemy bombs).
FindingsThe standard of proof in this case is on the balance of probabilities; that is, on the balance of probabilities did the veteran incur danger from hostile forces of the enemy when:
(a)During his service flying training at Bundaberg he flew out to sea 15 –20 miles
(b)At Broome he saw enemy aircraft overhead and
(c)Also when at Broome he was engaged in harbour clearing operations.
"Incurred danger" is defined by the Full Court of the Federal Court in Repatriation Commission v Thompson (1988) 82 ALR 352. Their Honours said:
"The words 'incurred danger' 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."
The Tribunal finds the veteran did not incur danger from the hostile forces of the enemy during his flights out to sea off Bundaberg because no enemy forces were encountered during those flights.
Turning to his service in Broome, the Tribunal accepts the veteran saw high flying Japanese aircraft but as these aircraft made no attack on Broome the veteran therefore was in no danger, i.e. "a serviceman does not incur danger by merely perceiving or fearing he may be in danger". History shows the last air raid on Broome was on 16 August 1943 and, even allowing for an error in his records as the veteran contends, this date is before the veteran would have arrived in Broome. Furthermore, the Unit History Sheet of 40 Zone Filter Centre shows the advance party arrived in Broome 19 September 1943.
The Tribunal also finds the veteran did not incur danger from the hostile forces of the enemy when he was engaged in harbour clearing duties in 1944 at Broome as there were no enemy attacks made on them and there were no hazards such as explosions encountered.
DecisionThe decision of the Commission is affirmed.
I certify that the twenty (20) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr A. Argent, Member
Signed: .....................................................................................
Personal AssistantDate/s of Hearing 21 May 2001
Date of Decision 15 June 2001
The Applicant Self-represented
Solicitor for the Respondent Mr R. Douglass, departmental advocate
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