Gilgen and Repatriation Commission
[2005] AATA 856
•2 September 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 856
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2005/37
VETERANS' APPEALS DIVISION ) Re ROBERT NEVILLE GILGEN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr JG Short (Member) Date2 September 2005
PlaceAdelaide
Decision The Tribunal sets aside the decision under review, and in substitution therefore determines that Mr Gilgen has satisfied the requirements of s7A(1)(a)(i) of the Veterans’ Entitlements Act 1986 with effect from 18 June 2004.
..............................................
JG SHORT
(Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Gold Card – applicant rendered qualifying service having “incurred danger” from hostile forces of the enemy – decision set aside
Veterans’ Entitlements Act 1986 ss 7A, 85, 120
Re Gilgen and Repatriation Commission [2000] AATA 447
Re Gilgen and Repatriation Commission [2001] AATA 1048
Re Tiplady and Repatriation Commission (AAT 3694, 7 August 1987)
Repatriation Commission v Thompson (1988) 82 ALR 352
Repatriation Commission v Mitchell [2002] FCA 1177
Repatriation Commission v Robertson [2004] FCA 173REASONS FOR DECISION
2 September 2005 Mr JG Short (Member) 1. Mr Gilgen served as a wireless operator in and around the Torres Strait Islands, including service on Horn Island, from 11 May 1943 until 18 December 1945. Unfortunately, the Repatriation Commission continued to advise Mr Gilgen, as late as 29 July 2004, that his service records were unable to support his claim to have served in this area. This led to a great deal of frustration being experienced by Mr Gilgen.
2. Mr Gilgen’s frustration was compounded when he discovered that applications lodged by two other veterans seeking a determination that those veterans had qualifying service, and made in respect of shorter periods of service in the Torres Strait Islands, had been successful. Mr Gilgen referred the cases of Re Tiplady and Repatriation Commission (AAT 3694, 7 August 1987) and Repatriation Commission v Mitchell [2002] FCA 1177. Mr Gilgen lodged his third application to determine qualifying service by a veteran or mariner on 18 June 2004.
3. The evidence tendered by the respondent (the Commission) included the T documents, which included a report of Military Historian, Mr Robert Piper, dated 2 August 1999 [T29/103-126]. The evidence also included a more recent report from Mr Piper dated 26 April 2005 [Exhibit R3] and the letter of referral from the Department of Veterans’ Affairs to Mr Piper dated 4 April 2005 [Exhibit R2].
4. Mr Gilgen noted that Mr Piper’s second report differed from the first in that Mr Piper now advised that Mr Gilgen’s evidence of travel to and around the Torres Strait Islands, including service on Horn Island, and at Higgins Field, had now been confirmed. At page 2 of his most recent report Mr Piper refers to his discovery of records confirming the accuracy of the evidence Mr Gilgen had been providing for some years. He stated “… The results were quite amazing, confirmed Mr Gilgen’s May 1944 movement claim and revealed that Air Force Office had overlooked a POR entry and provided two partially incorrect Statements of Service. …”. The final sentence on page 3 of this last mentioned report reads “The veteran’s memory of general postings at this time is now confirmed.”.
5. Mr Gilgen’s service is no longer in dispute. He served in the Royal Australian Air Force from 11 May 1943 until 2 April 1946. His service can be conveniently divided into three periods. The first in Cairns between 14 November 1943 and 5 May 1944; the second from 6 May 1944 until 10 May 1944 (travelling on SS Thedens from Townsville via Cairns to Thursday Island); the third from 11 May 1944 until 18 December 1945 (Mr Gilgen was stationed at Horn Island and at Higgins Field during this period and made a number of trips by ship/launch in and around the Torres Strait Islands during this period).
evidence before the tribunal
6. Mr Gilgen told the Tribunal of his frustration at the Commission’s apparent inability, as late as 29 July 2004, to agree with his claim to have served in the Torres Strait Islands. Mr Gilgen did not suggest that his first period of service until 5 May 1944 included any period during which he incurred danger from hostile forces of the enemy. He did however say that during the second period of service (his trip by sea from Townsville via Cairns to Thursday Island) he did encounter such danger. Mr Gilgen suggested that the danger came from enemy ships or submarines and/or mines. Mr Gilgen said that at the start of the voyage he, along with the other passengers, had been told to keep his life jacket on at all times and to refrain from smoking on the ship’s deck at night. Mr Gilgen’s evidence was that he had not in fact sighted any enemy mines, ships or submarines during this voyage and that the voyage had been uneventful. He did state that contrary to an impression previously held by Military Historian, Mr Piper, Mr Gilgen’s trip from Townsville to Thursday Island had been through the outer reef passage rather than the inner reef.
7. In reference to his third period of service from 11 May 1944 until 18 December 1945, Mr Gilgen explained that he had arrived in the Torres Strait aboard SS Thedens on 10 May 1944 and had been transferred to Thursday Island by launch. He said that on 11 May 1944 he travelled to Horn Island where he remained until 14 July 1944, thereafter transferring to Higgins Field Base on 14 July 1944, remaining at that Base until 18 December 1945. Mr Gilgen said that he made a number of trips in and around the Torres Strait Islands during this period of service, including three return trips from Higgins Field to Thursday Island and approximately four trips as a radio operator on an air/sea rescue boat in and around the Torres Strait Islands. Mr Gilgen said that although air raid sirens sounded from time to time he had not experienced any air raids. He contended however that he had incurred danger from hostile forces of the enemy during this period, in the form of exposure to Japanese sea mines. Mr Gilgen referred to the cases of Re Tiplady and Mitchell (above) as examples of cases in which the Administrative Appeals Tribunal had found that veterans, in similar circumstances to those of Mr Gilgen, had incurred danger from hostile forces of the enemy in the form of enemy sea mines.
8. The Commission called Military Historian, Mr Robert Piper. Mr Piper referred to his most recent report [Exhibit R3]. Mr Piper explained that in relation to Mr Gilgen’s second period of service (his voyage), it was his opinion that at the time when this voyage was made, in May 1944, Mr Gilgen did not incur danger from hostile forces of the enemy. He said that no enemy mines had been laid by the Japanese or Germans off the east coast of Australia such as may have been encountered in a voyage from Townsville to Thursday Island. Similarly, he said that no records of enemy ships or submarines presenting danger to allied shipping on a voyage from Townsville to Thursday Island at this time had been discovered. He also said that in making the voyage from Townsville to the Torres Strait, the SS Thedens approached from the eastern side rather than the west, and consequently did not travel through an area where Japanese mines had been laid. He said there were no German mines or Japanese mines laid in any area east of Thursday Island extending as far down as Townsville.
9. Mr Piper confirmed that Japanese submarines had laid mines to the west of Thursday Island. His report dated 26 April 2005 at page 7 reads as follows:
“ …
It has now been established that two Japanese submarines laid two separate fields of type 88 contact sea mines, totalling approximately 60, on two separate occasions in the western approaches to Torres Strait in 1942. Details are as follows:
15 January 1942 Submarine I-122 in a position 88 miles west of Thursday Island. Estimated 41 mines.
25 February 1942 Submarine I-123 in a position 106 miles west of Thursday Island. Estimated 20 mines (half load).
…”
He said that the Japanese submarines which had laid these mine fields had approached form the western side of Thursday Island and returned the same way.
10. In cross-examination, Mr Piper was taken to page 5 of his most recent report. At paragraph 3 Mr Piper had stated:
“Moored mines, by their very design and the influence of the elements, eventually move. Mines when placed are designed not to move otherwise they can become just as dangerous to the power that lay them as the enemy that it is planned to damage or destroy. A drifting mine can cover huge distances with the tide, current and wind and will be a danger to all shipping, regardless of whether it is friend or foe.” (Emphasis mine)
11. Mr Piper said that he had no particular expertise concerning currents in the Torres Strait Islands. However the first two sentences of paragraph 6 of page 5 of Mr Piper’s most recent report reads as follows:
“The very nature of the sea and its constant movement (influenced by wind, current and tide) moved mines attached to cables. Eventually these cables severed and the mine began to drift. This, according to the sea influences and cable used, could happen in a very short period or years later. Some of these mines automatically disarmed …. But there were others that remained fully armed and dangerous which would explode on impact with a ship, when washed ashore on rocks or by directed rifle fire. …”
12. Mr Piper went on to explain that in the 1960s he personally sighted two mines while in New Guinea, one half buried in sand at Hood Point and the other washed up on a mud flat 50 kilometres east of Port Moresby.
13. Mr Piper expressed the opinion that a mine washed ashore approximately one mile south of Red Island Point jetty (the jetty which serviced Higgins Field) was likely to have been an allied mine, being greater in diameter than the Japanese mines commonly used. Appendix E to Mr Piper’s second report is a photograph of a mine washed ashore near Darwin in June 1943. The caption below the photograph includes the following comment: “The mine had broken away from its moorings and drifted ashore”.
the law
14. Section 7A(1)(a)(i) of the Veterans’ Entitlements Act 1986 (the Act) defines qualifying service for purposes, amongst other things, of entitlement to the Gold Card. This section requires service, during a period of hostilities (from 3 September 1939 until 29 October 1945) in operations against the enemy, at a time when the person incurred danger from hostile forces of the enemy.
15. The case of Repatriation Commission v Thompson (1988) 82 ALR 352 made it clear that in considering whether a person incurred danger from hostile forces of the enemy, one must judge the circumstances objectively. It is not necessary or sufficient therefore that a veteran experiences feelings of fear or apprehension at the time.
16. All three elements of the definition of “qualifying service” contained in s7A(1)(a)(i) of the Act must be satisfied.
consideration
17. The Commission has accepted and the Tribunal finds on the evidence that Mr Gilgen did provide service during a period of hostilities. The Tribunal also finds that his service was in operations against the enemy. In these circumstances the only remaining element for qualification under s 7A(1)(a)(i) of the Act is that, at the time Mr Gilgen was engaged in operations against the enemy, he incurred danger from hostile forces of the enemy.
18. The Commission submitted that no danger was in fact incurred by Mr Gilgen. The Commission relied upon the reports of Mr Robert Piper, Military Historian.
19. Mr Gilgen submitted that in respect of his second period of service, that is his journey from Townsville to the Torres Strait Islands on board SS Thedens, he did incur such danger. He disputed Mr Piper’s opinion to the effect that at the time the trip was made, Japanese and German ships and submarines had withdrawn from the relevant portion of the east coast of Australia and that the only mines which may have been in the area were allied mines. In this regard I remind myself that danger from allied mines cannot be a considered a danger “from hostile forces of the enemy”. While I accept that Mr Gilgen may have felt anxious and was instructed to wear a life jacket at all times and not to smoke at night on the deck of the SS Thedens, I am not satisfied on the balance of probabilities that Mr Gilgen did incur danger from hostile forces of the enemy during his second period of service.
20. In respect of Mr Gilgen’s third period of service, his contention is that he did face the relevant danger in the form of Japanese sea mines. In his well argued submissions, Mr Doube pointed out that the only Japanese mines now known to have been laid in the area were those laid in mine fields 88 miles and 106 miles west of Thursday Island. Mr Doube said that it was speculation to suggest that any of those mines were likely to have been in seas traversed by Mr Gilgen during his service in and around the Torres Strait Islands.
21. I accept that Mr Gilgen did not encounter any Japanese mines. This however is not the test. I must ask myself two questions in relation to this issue. They are questions similar to those considered by Mr Justice Cooper in Mitchell (above) and approved by the Federal Court of Australia in Repatriation Commission v Robertson [2004] FCA 173, paragraphs 29 and 30. The first is whether, from the date of Mr Gilgen’s arrival in the Torres Strait on 6 May 1944 until the end of hostilities on 29 October 1945, there were enemy mines in the waters of Torres Strait over which Mr Gilgen travelled while rendering his service. The second question arises if the answer to the first is in the affirmative. It is whether the veteran while on a vessel plying those waters (I accept Mr Gilgen’s evidence that he made at least three return journeys from Higgins Field to Thursday Island and approximately four trips on a search and rescue vessel in those waters) and while rendering operational service, incurred danger from those mines in the sense explained by the Federal Court in Thompson’s case (above). In that case the Full Court said that the relevant issue is “was the veteran exposed to, at risk of or in peril of harm or injury from mines laid by hostile forces in 1942”. In submissions Mr Gilgen referred to the fact that in the case of Mitchell, the Administrative Appeals Tribunal found that Mr Mitchell’s service, which did not last as long as did Mr Gilgen’s, at least in the Torres Strait, was exposed to the relevant danger. The Federal Court commented that the Tribunal’s finding in this regard was a finding of fact.
22. Both parties made submissions as to what evidence was available to the Administrative Appeals Tribunal at the time Mitchell was decided. Mr Doube suggested that the Administrative Appeals Tribunal was then operating on an understanding that the mines laid by two submarines in 1942 were closer to Thursday Island than now appeared to be the case. Whatever the understanding the Administrative Appeals Tribunal held in deciding Mitchell, and while conceding that Mr Gilgen’s case is perhaps appropriately described as a borderline case, nevertheless I have found that the appropriate answer to the first question posed in Robertson is yes. I am reasonably satisfied (on the balance of probabilities) that Japanese mines were in the waters of Torres Strait at a time when Mr Gilgen made his voyages in and around that area. It is now certain that at least 60 mines were laid by two Japanese submarines in the first two months of 1942. This, together with the information provided by Military Historian, Mr Robert Piper, that “A drifting mine can cover huge distances with the tide, current and wind and will be a danger to all shipping, regardless of whether it is friend or foe” [Exhibit R3/5 para 3], along with Mr Piper’s opinion expressed at paragraph 6 on page 5 that “Eventually these cables severed and the mine began to drift. This … could happen in a very short period or years later” have led me to an affirmative answer to the first question. I have also noted Mr Piper’s comment in the second half of page 8 of his second report to the effect that any mines, allied or enemy, are mostly influenced by the rise and fall of tides rather than currents, and that this would be the greatest contributing factor to the cables wearing and mines breaking loose. I understand this area to be well known for significant rises and falls in tides rather than currents. It is in these circumstances that I have found that it is more likely than not that one or more of the Japanese mines laid in two mine fields in 1942 at least 88 miles west of Thursday Island were present in the waters traversed by Mr Gilgen.
23. The second question is whether such mines were more likely than not to have presented a danger to Mr Gilgen. In this regard I note that Mr Gilgen made a number of trips in and around the Torres Strait Islands. There is no question that a floating mine does present a danger to shipping, and I answer this second question in the affirmative.
24. In the light of the above mentioned findings of fact I am satisfied that Mr Gilgen does satisfy the requirements of s 7A(1)(a)(i) of the Act. Mr Gilgen’s most recent application was lodged on 18 June 2004, and consequently that is the date of effect of this decision. For these reasons the Tribunal sets aside the decision under review, and in substitution therefore determines that Mr Gilgen has satisfied the requirements of s 7A(1)(a)(i) of the Veterans’ Entitlements Act 1986 with effect from 18 June 2004.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr JG Short (Member)
Signed: .....................................................................................
AssociateDate/s of Hearing 29 July 2005
Date of Decision 2 September 2005
Counsel for the Applicant In person
Solicitor for the Applicant -
Counsel for the Respondent Mr G Doube
Solicitor for the Respondent DVA
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