Dennison and Repatriation Commission - [2000] AATA 830

Administrative
Appeals
Tribunal

DECISION AND REASONS FOR DECISION [2000] AATA 830

ADMINISTRATIVE APPEALS TRIBUNAL )

) N0 N1999/1534

VETERANS' APPEALS DIVISION )

ReALLAN ROBERT DENNISON
Applicant

AndREPATRIATION COMMISSION
Respondent

DECISION

TribunalRear Admiral AR Horton AO (Member)
Date18 September 2000
PlaceSydney
DecisionThe decision under review is affirmed.
Rear Admiral A R Horton
Member

CATCHWORDS
VETERANS' AFFAIRS – Gold Card eligibility – whether Applicant rendered qualifying service – RAAF service during period of hostilities – service in Northern Territory – passage to Anjo Peninsula – incident of destruction Dinah aircraft July 1944 - whether incurred danger from hostile forces of enemy

Veterans' Entitlements Act 1986 – ss5B(1), 5C(1), 7A, 120(4)
Veterans' Entitlements Amendment (Gold Card) Act 1998 – s85(4A)

Repatriation Commission v Thompson (1988) 44 FCR 20
Re Maller and Repatriation Commission (AAT 8280, 16 September 1992)
Re Lawrie and Repatriation Commission (AAT 6359, 9 November 1990)
Repatriation Commission v Smith (1987) 15 FCR 327
Re Bancroft and Repatriation Commission (AAT 11333, 25 October 1996)
Re Kemp and Repatriation Commission (AAT 11513, 5 November 1996)
Repatriation Commission v Burton (1993) 31 ALD 475
Re Crawford and Repatriation Commission (1987) 14 ALD 341

REASONS FOR DECISION
Rear Admiral A R Horton
INTRODUCTION

This is an application for a review of a decision made on 18 February 1999 by a delegate of the Repatriation Commission ("the Respondent"), and affirmed by review under section 57 of the Veterans' Entitlements Act 1986 ("the Act") on 6 July 1999, that Allan Robert Dennison ("the Applicant") did not render qualifying service for the purposes of section 7A of the Act, and hence is not eligible for a Gold Card under section 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 7 October 1999.
At the hearing before the Tribunal on 16 June 2000, the Applicant was self represented. Mr J Marsh, Senior Advocate, appeared for 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 Tribunal also received the following documents into evidence :
Exhibit A1     Letter to the Tribunal from the Applicant dated 15 November 1999, with two page attachment.
Exhibit A2     Letter to the Tribunal from the Applicant dated 29 February 2000, with attachments.
Exhibit A3     Letter to the Tribunal from the Applicant dated 9 June 2000.
Exhibit A4     A minute dated 28 July 1944 by Flight Lieutenant J F Mahoney enclosing sketches of a Japanese Aircraft.
Exhibit R1     Report by Mr B G O'Keefe, consulting historian, dated 7 February 2000, with attachments.
Exhibit R2     Report by Mr B G O'Keefe, consulting historian, dated 7 April 2000, with attachments.
Exhibit R3     Report by Mr B G O'Keefe, consulting historian, dated 18 April 2000, with attachments.

Mr O'Keefe was called by the Respondent to give evidence.
ISSUES BEFORE THE TRIBUNAL
The Applicant claims qualifying service as a prerequisite for eligibility for a Gold Card. Eligibility is established pursuant to subsection 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 (b) 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".
The Respondent concedes that the Applicant is a veteran as defined in section 5C of the Act, that he served during the relevant period of hostilities as defined in subsection 5B(1), and that he meets the criteria for age as defined in subsection 85(4A)(a) of the Gold Card Act. Hence the only issue in this matter is whether the Applicant rendered qualifying service for the purpose of the Act. The required standard of proof is that of reasonable satisfaction pursuant to subsection 120(4) of the Act.
"Qualifying service" is defined in section 7A of the Act which relevantly states:
"7A(1) For the purposes of Part III 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
...".

FACTS AND EVIDENCE

The Applicant served in the Royal Australian Air Force from 18 May 1942 until 9 January 1946. His record of service (T3) shows that he served in the Northern Territory, north of 14.5 degrees south latitude from 1 June 1944 until 14 September 1945. His mustering was as a Radio Direction Finding Mechanic "G". He stated that in about May 1944, he travelled by road and rail from Richmond to Darwin, where he remained for some two weeks before embarking in the US Liberty Ship SS John Owen, for passage to the Anjo Peninsula, where his unit, 154 Radar Station, was to set up and operate a Ground Controlled Interception ("GCI") system in defence of the Truscott Air Base. He gave evidence that up to the point of embarkation, no incidents relating to enemy activity had occurred.
In company with HMAS Junee, the John Owen sailed from Darwin on 22 June 1944, arriving in West Bay the following day. The Applicant gave evidence that he was apprehensive as to enemy threats and did not know where the ship was heading. During the voyage he carried a Thompson sub-machine gun, and remained on deck. He was aware that the ship was carrying high octane fuel and bombs for Truscott, as well as the mobile radar unit. In terms of the threat to the John Owen, he referred to the operational enemy bases on Timor, the presence of enemy mines laid in the Darwin area, and that the Japanese submarine I – 165 was at that time on patrol in north-west Australian waters (exhibit A1). The Applicant sees that the allocation of HMAS Junee as an escort recognises that the service authorities saw a possible threat to John Owens; so too, he is of the opinion that the crew of I -165 was experienced and may well have been aware of John Owens, based on intelligence reports from Darwin. He further considered that the location of enemy minefields was not always known (Exhibit A2) and in any event, mines could have drifted and been a threat to John Owens. He agreed that the voyage was uneventful. This is confirmed in the Report of Proceedings of HMAS Junee (at Exhibit R2).
John Owens anchored in West Bay, and unloaded over the next few days. Unloading generally took place on the high tide, and the Applicant described the evolution as a "risky business". The unit subsequently moved inland with their equipment, setting up camp and in turn the radar station, some three and a half to four kilometres north east of Truscott Air Base. In the ensuing weeks, the Applicant could not recall any enemy incursions into the area, although he was aware of a Japanese scouting patrol having landed in the Kimberleys earlier that year, but noted that spitfires were scrambled on two occasions against what turned out to be friendlies. He stated that his unit guarded their equipment, and dug air raid trenches, but took no other special precautions. On 20 July 1944, a Japanese Mitsubishi Ki-46 Dinah reconnaissance aircraft overflew the Anjo Peninsula and was shot down by spitfires of 54 Squadron based at Truscott. It is this particular incident that forms a major part of the claim by the Applicant that he has meet the requirements of qualifying service.
The Applicant gave evidence that when working on the GCI equipment early in the morning, he heard the call "hostile". He observed an aircraft track on the plan position indicator of the radar, came out of the trailer, and looking "directly up, saw a 'dogfight' overhead". He could see vapour trails, but cannot remember any sound. He then saw the aircraft fall. His initial impression was that the aircraft was high, and in cross examination, he accepted that the aircraft was conducting its reconnaissance at about 26,000 feet, as recorded in 'Truscott; The Diary of Australia's Secret Wartime Kimberley Airbase, 1943 – 1946' by John and Carol Beasy, extracts of which were taken into evidence in the section 37 documents and Exhibit R2. The Ground Controller, located at Truscott but utilising the GCI radar being operated by 154 Radar Station, estimated the aircraft to be at height of 26,000 feet when intercepted, and at 6000 feet when an "explosion" occurred. The Applicant confirmed that he had not seen the Dinah until overhead, but in referring to a map, he showed the Dinah as transitting on a northerly course over Drysdale (some 20 kilometres south east of the location of 154 Radar Station), being intercepted by spitfires closer to, but south east of his unit, and then crashing into Vansittart Bay, about five kilometres north west of the Radar Station. The firings by the spitfires took place to the east of the Radar Station, but "some firing was directly overhead".
The Applicant observed the aftermath of the intercept, and saw the aircraft overhead at a relatively low altitude in a flat spin. He thought that about three feet of the fuselage had separated from the aircraft whilst it was spinning to the ground, either by centrifugal force or as a result of a fuel tank explosion. He saw no pieces falling, but was aware that debris had been found in the bush. In a combat report attached at Exhibit R3, one spitfire pilot believed the aircraft had crashed into Vansittart Bay, but he subsequently saw the port wing land in the sea 'about half a mile from the main crash. The Applicant is of the opinion that the wing landed in the bush (Exhibit A2), drawing on 'Dinah Recovery in Western Australia, After the Battle' by Stan Gadja. The issue of which wing of the aircraft broke off was the subject of some discussion at the hearing; the Applicant saw this as a matter of some consequence, tabling Exhibit A4 which in the view of the Tribunal is inconclusive, but also accepting in cross examination that most of the aircraft wreckage was recovered from Vansittart Bay, albeit he maintains the belief that some parts were found in the bush, which if true, would be nearer the location of 154 Radar Station.
In oral evidence, Mr O'Keefe stated that no records were available from SS John Owen, but that the Report of Proceedings of HMAS Junee, previously referred to, was sufficient evidence that no incidents occurred on the voyage from Darwin to West Bay. A sonar echo detected whilst anchored to seaward of John Owen, had proved to be non-submarine. As regards minefields, he amplified his reports at Exhibits R1 and R2, stating that Japanese minefields laid in 1942 had been swept and ships routed accordingly, and there were no recorded incidents of damage by mines off north western Australia. In cross examination by the Applicant, Mr O'Keefe conceded that not all known mines had been accounted for, that they might well drift out of position, but the risk of hitting a mine by 1944 was "minimal".
Mr O'Keefe confirmed that his research, based particularly on the authoritative book 'Battle Surface! Japan's Submarine War against Australia, 1942-1944' by David Jenkins, indicated that I-165 was the only submarine operating at that time off the north west coast of Australia. It was on a reconnaissance mission, and returned to Surabaya by 5 July 1944. There is no evidence to show that it used its weapons or that any incidents in respect to allied forces occurred. In cross examination, Mr O'Keefe opined that at that stage of the war, I-165 would be unlikely to use its weapons except in self defence, and that the provision of an escort for John Owen was normal procedure rather than an indication of a specific threat.
The Applicant sought comment from the historian as to enemy strength in Timor, noting that a build up of defences at Truscott was in progress in mid 1944. Mr O'Keefe responded that the Japanese strength in Timor was reducing as the war moved further north and forces were redeployed; he agreed that the build up at Truscott reflected an allied concern at a possible Japanese retaliation, but noted that the threat never eventuated.
The Respondent referred Mr O'Keefe to the details of the attack on the Japanese Dinah in the attachments to Exhibit R3., as they related to the track of the aircraft and the points of visual sighting and attack. Mr O'Keefe confirmed that this accorded with his research and the attacks took place over Napier Bay, to the east of West Bay, which the Tribunal adjudges to be some eight kilometres east of 154 Radar Station (or eight kilometres north of Drysdale vide No. 58 Operational Base Unit and 54 Squadron records). He confirmed from those records that the Dinah fired makeshift fragmentation bombs in order to deter pursuing aircraft, that no other weapon was fired, and that he has found no evidence that wreckage from the aircraft fell anywhere but in the sea. There is no record of any personal injuries.
In cross examination, Mr O'Keefe was questioned as to the nature and extent of the explosion, noted when the aircraft was at about 6000 feet. His view is that the fuel tank exploded, but it could have been the wing and attached motor separating from the aircraft. The Applicant remained of the view that the aircraft exploded whilst in the spin, the implication being that parts would have landed on the ground rather than in the sea. In response to a question as to the risk to personnel on the ground, Mr O'Keefe opined that the fragmentation devices dropped from the Dinah were of no risk to such personnel.
ANALYSIS OF EVIDENCE AND FINDINGS
In his final submission, the Applicant expressed three levels of concern. Firstly, subsection 7A(1)(a)(iv) of the Act refers to the rendering of "warlike service" as a member of the Defence Force as being sufficient to meet the qualifying service criteria, the view of the Applicant being that a Ministerial determination to that effect, in the circumstances of his service, should be in place.
Secondly, the Applicant refers to advice by the Respondent (Department of Veterans' Affairs, Deputy Commissioner, letter of 23 July 1999 at T15) whereby in certain geographical circumstances, and within certain dates, a veteran serving in Australia may be considered to have qualifying service. The Applicant submitted that the relevant periods did not relate to a proper assessment of risk and that those making sea passages on the north west coast were discriminated against compared with the situation elsewhere, such as on the south coast.
Thirdly, in relation to his particular circumstances, a number of matters were relevant. The fact that SS John Owen was escorted during the passage to the Anjo Peninsular, was recognition by higher authority of the vulnerability of the ship and the danger to which those embarked were exposed, as well as the importance of defence activities at Anjo. Submarine and mines posed a further threat. He submitted that the Dinah was shot down 'overhead', exposing troops on the ground to danger as it disintegrated, as evidenced in the explosion and the wing separation, which he believed had landed in the adjacent bush. In his view, all personnel at 154 Radar Station were exposed to danger.
In response, the Respondent submitted that the expression "warlike service" as in subsection 7A(1)(a)(iv) required a determination by the Minister for Defence vide section 5C of the Act, to be put into effect. No such determination in respect of the relevant period of hostilities has been implemented. In regard to policy discrimination between various areas on the Australian coast, the Respondent submitted that policy had been developed against risk factors and case law.
The Respondent submitted that the John Owen was at no stage at risk. There was no evidence of a submarine or mine threat; there were no incidents, as confirmed in the Report of Proceedings by HMAS Junee. The Respondent referred to Repatriation Commission v Burton (1993) 31 ALD 475, Re Bancroft and Repatriation Commission (AAT 11333, 25 October 1996), Re Maller and Repatriation Commission (AAT 8280, 16 September 1992) and Re Kemp and Repatriation Commission (AAT 11513, 5 November 1996), all of which supported the Respondents position that the Applicant did not incur danger in this phase of his service.
In considering the Dinah incident, the Respondent submitted that the Applicant was at no time in danger. The Japanese aircraft was operating at high altitude well clear of 154 Radar Station, as evidenced in exhibit R3 and the pilots reports, and there was no evidence that any part of the aircraft, when shot down landed other than in Vansittart Bay, some five kilometres from the Applicant's position. There were no injuries to personnel. He suggested the circumstances in Re Lawrie and Repatriation Commission (AAT 6359, 9 November 1990) were similar with those in this matter, (wherein the Tribunal in that matter considered Mr Lawrie had not been in danger, not being in the vicinity of the Dinah and the crash), and sufficiently different to those in Re Maller (supra), wherein that veteran was seen as having incurred danger by dint of exposure to incendiary bombs hitting the fuel dumps. In this matter, the Respondent submitted that later data showed that incendiary bombs carried by Dinah aircraft were not a danger to ground personnel, that the Applicant had been situated well clear of the aircrafts flight path, and had incurred no danger. He further considered the decision in Re Kemp (supra) to be relevant to this matter.
In response, the Applicant submitted that the circumstances in Re Laurie (supra) were not on all fours, the veteran having been situated well away from the Dinah action, whereas in this matter, the aircraft was overhead 154 Radar Station. He rejected the Respondent's comments on policy "discrimination" on the basis that the apparent criteria used in developing policy was not logical, and believed that decisions in the matter of legislation and case law in respect of qualifying service had been taken well after the event, whereas at the time, military superiors clearly believed that personnel were in danger.
On the evidence of the Applicant, the Tribunal finds that he took passage from Darwin to Anjo Peninsular in the SS John Owen, observed HMAS JUNEE acting as escort, but did not encounter evidence of any enemy activity during the passage. The Tribunal also accepts that whilst with 154 Radar Station in proximity to Truscott Air Base, he observed a Japanese Dinah reconnaissance aircraft being shot down on 20 July 1944 by fighters, crashing into Vansittart Bay. The Tribunal notes that the Applicant considers that part of that aircraft landed in bushland, but on balance, the evidence indicates that parts of the aircraft landed in the sea.
The issue in this matter is whether the Applicant meets the eligibility criteria for the rendering of qualifying service pursuant to subsection 7A(1)(a)(i) of the Act. In considering the two incidents in this matter in regard to whether the veteran rendered service "…in the field…in…military operations against the enemy", and "incurred danger from hostile forces", the Tribunal draws on the decision of the Full Federal Court in Repatriation Commission v Thompson (1988) 44 FCR 20, wherein the court 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 mere liability to danger, that is to say, that there is a mere risk of danger.
The danger must of course be more than a merely fanciful danger or a danger so minimal that a rule of de minimus applies. But to say that is not give a flavour to the word. Rather it is to use it in its ordinary sense."

The Tribunal also draws on an earlier decision in Re Crawford and RepatriationCommission (1987) 14 ALD 341, where that presidential Tribunal stated:
"That is, the test of danger must entail an analysis of the actual military situation quite independent of an applicant's own view or perception of it at the time."
In regard to the passage in SS John Owen from Darwin to Anjo Peninsula, the Respondent relied on case law as noted in paragraph 21 above. The Applicant does not have benefit of ready access to relevant case law, but the circumstances of the passage of John Owen, and other similar ships at that time, have been well addressed in the Respondent's references. On the balance of probabilities, the Tribunal cannot be satisfied that the Applicant incurred danger. There is no evidence to support the submission that he was at risk or in peril of harm in an objective sense as defined in Thompson (supra). There was no evidence of enemy operations in the area. Mr O'Keefe emphasised that I – 165 was on a reconnaissance mission, and that the submarine would in all probability only attack if threatened. There is no record that the submarine was near John Owen at any time, or took any aggressive action during the mission.
Burton (supra) is also relevant to this matter. In discussing the concept of incurred danger specifically in relation to minefields Olney J drew the conclusion that in the absence of any finding that the veteran in that case encountered mines, there could be no basis for a conclusion that he (Burton) encountered danger from hostile forces of the enemy. This matter is on all fours with Burton.
As regards the second incident when the Japanese Dinah was shot down over the Anjo Peninsular, the Tribunal weighs up the relevance of the circumstances and decisions of Re Maller (supra), Re Lawrie (supra) and Re Kemp (supra) against the import of the decisions in Thompson (supra) and Re Crawford as earlier referred to in regard to reaching a decision as to whether the veteran in this case had incurred danger from hostile forces of the enemy. Unlike Re Lawrie, the veteran did see the Dinah in the latter stages of its flight, and he was sufficiently close to observe the aircraft 'spinning' and to see part of the aircraft detach from the main fuselage. However, in the view of the Tribunal, his circumstances are sufficiently distinguishable, and different, from those of Re Maller. Whilst he observed the air combat, he did not encounter evidence of any fragmentation bombs or other weapons being discharged, there was no evidence to suggest that the Radar Station was a target, nor was evidence given that he was stationed in close proximity to a fuel stock or bomb dump.
The circumstances of Re Kemp (supra), wherein the Tribunal concluded that he had not rendered qualifying service, are closely aligned with this matter. Mr Kemp was also attached to 154 Radar Station. Unlike the Applicant, he was not on duty at the time of the Dinah incident, but observed the aircraft overhead, "twisting down into Anjo Bay". Unlike the Applicant, he did not observe any "dogfight". Nonetheless, the circumstances in Re Kemp (supra) were effectively on all fours with the Applicant.
The Tribunal accepts that the Applicant had a perception or fear of danger at the time of the Dinah incident on 20 July 1944. However, taking account of the evidence that the aircraft was undertaking a reconnaissance mission and was armed only for rudimentary self defence against air attack, and that the personnel at 154 Radar Station were located some four kilometres both from the flight path of the aircraft and the area in which the aircraft crashed, the Tribunal concludes that the objective qualifying service test, as defined authoritatively in Thompson (supra) has not been met. It is not sufficient to apprehend or fear danger; the serviceman must be at risk or in peril of harm from hostile forces. The Applicant, to the reasonable satisfaction of the Tribunal, does not meet this criteria, and hence did not render qualifying service for the purposes of section 7A of the Act.
The Tribunal acknowledges the strong views of the Applicant in respect of perceived discrimination, and the circumstances by which judgement is presently being made on matters that occurred some 55 years ago, when personnel were giving valuable service in defence of this country. However, this matter has been considered on the evidence against the legislation and the application of case law.
The decision under review is affirmed.
I certify that this and the 32 preceding paragraphs are a true copy of the decision and reasons for decision herein of
Rear Admiral AR Horton AO (Member)
Signed:         ..................................................................................
  Associate
Date/s of Hearing  16 June 2000
Date of Decision  18 September 2000
Solicitor for Applicant               Self represented
Advocate for the Respondent Mr J Marsh