Gilgen and Repatriation Commission
[2000] AATA 447
•7 June 2000
DECISION AND REASONS FOR DECISION [2000] AATA 447
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2000/48
VETERANS' APPEALS DIVISION )
Re ROBERT GILGEN
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member W.H. Eyre
Date7 June 2000
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
(Signed)
W.H. EYRE
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – Veterans' entitlements - Gold Card – whether applicant rendered qualifying service – decision affirmed
Veterans' Entitlements Act 1986 ss. 5B, 7A, 85, 120
Repatriation Commission v Thompson (1988) 82 ALR 352
Smith v Repatriation Commission (1987) 74 ALR 537
Hinkins and Repatriation Commission [1999] AATA 666
REASONS FOR DECISION
7 June 2000 Senior Member W.H. Eyre
This is an application for review of a decision of a delegate of the respondent made on 2 September 1998, affirmed by a senior delegate of the respondent on 9 March 1999, that the applicant had not rendered "qualifying service" and therefore was not eligible for the issue of a Gold Card.
The Tribunal has before it the T documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, and the documents tendered at the hearing, namely Exhibit A1 comprising Mr Gilgen's statement dated 31 March 2000 with attachments; Exhibit R1 being the respondent's statement of facts, issues and contentions dated 12 October 1999; and Exhibit R2 being a statement from Robert Piper, military historian, dated 2 August 1999 with annexures A-D. Mr Gilgen represented himself at the hearing. The respondent was represented by Mr Greg Doube.
On the day following the hearing, Mr Gilgen lodged a further three page statement he wished the Tribunal to consider. The Tribunal gave leave for this to be put before it and invited the respondent to make comment. The respondent's written submission in response, dated 25 April 2000, is also before the Tribunal as is Mr Gilgen's reply dated 14 May 2000.
legislationFor a veteran to qualify for a Gold Card, section 85(4A) of the Veterans' Entitlements Act 1986 (the Act) requires that, amongst other things, "… the veteran has rendered qualifying service during the period covered by paragraph (b) of the definition of period of hostilities in subsection 5B(1); …". Paragraph (b) of sub-section 5B(1) of the Act defines "period of hostilities", for the purposes of the present application, as "World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included); …".
Section 7A(1)(a)(i) of the Act provides that a person has rendered qualifying service if the person has:
"rendered service, during a period of hostilities … 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; …" (Tribunal's emphasis)
The issue before the Tribunal is confined to whether Mr Gilgen rendered qualifying service, in particular whether he "incurred danger from hostile forces of the enemy".
The words "incurred danger" have been held by the Full Federal Court in Repatriation Commission v Thompson (1988) 82 ALR 352 to provide an objective test. The Court held at p 356:
"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 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 standard of proof to be applied by the Tribunal in determining this matter is specified in sub-section 120(4) of the Act, that is to the Tribunal's reasonable satisfaction. A standard of proof on the balance of probabilities is therefore applicable (Repatriation Commission v Smith (1987) 74 ALR 537).
mr gilgen's serviceMr Gilgen, born 28 January 1925, enlisted in the RAAF on 11 May 1943 and was discharged on 2 April 1946. He did not serve outside Australia nor did he serve in an area during a time which the Repatriation Commission is prepared to concede veterans incurred danger from hostile forces.
Mr Gilgen criticised the respondent's coastal waters policy, but it is not relevant to these proceedings. Mr Gilgen submits that it should not be considered by the Tribunal in making its determination. It has not been.
In Exhibit A1 Mr Gilgen states:
"For the tribunal to have an understanding of the period of my service during the 6 months from Cairns (19/1/44) to Higginsfield (14/7/44), I would confirm the following:
I, and other RAAF personnel were posted from Cairns to a Radar Station (believe RS311 Archer River in Gulf of Carpentaria). We went from Cairns to Townsville and embarked on a Dutch freighter (unnamed). When on board, we were supplied with and told to wear life jackets at all times due to the risks from enemy shipping and sea mines. (Produce Photo). We were on ship for several days and when in Torres Strait, we were off-loaded and taken by launch to Thursday Island. After 2-3 days, we were taken by launch to Horn Island (28 OBU), where I spent the next 5-6 months. The next posting was from Horn Island to the mainland at Higginsfield, again by launch (14/7/44) where I remained until January, 1946.
It is the journey by ship to Torres Strait and subsequent movements by launch to Torres Strait, on which I base my appeal for Qualifying Service in accordance with Clause 7a(1)(a) of the VE Act." (Mr Gilgen's emphasis)Mr Gilgen showed the Tribunal a photograph showing several men on a boat wearing life jackets. The Tribunal accepts Mr Gilgen's sworn evidence that he is one of the men shown and that the photograph was taken on the ship that took him from Townsville to Torres Strait in January 1944.
The record of service at T4/9-10 makes no reference to Horn Island, but shows Mr Gilgen was posted to No. 25 O.B.U. Cairns on 14 November 1943, to No. 76 Wing HQ Cairns on 19 January 1944 and to No. 33 O.B.U. Higginsfield on 14 July 1944. The Tribunal accepts Mr Gilgen's account of his movements, namely that on or about 14 January 1944 he boarded ship for Torres Strait, was off-loaded by launch to Thursday Island and then taken by launch to Horn Island. There was also travel by launch between Horn and Thursday Islands and the mainland.
respondent's caseThe respondent contends that when Mr Gilgen undertook the voyage from North Queensland to the Torres Strait in January 1944, he did not incur danger from hostile forces.
As to the coastal waters journey from Townsville to near Thursday Island, the respondent says that:
"History records that during World War 2 no ship was ever sunk or damaged on coastal waters voyages in the area from Townsville to Darwin. History also records that by January 1944 when the applicant undertook his coastal waters voyage, the Japanese had withdrawn all its submarines from the eastern coast of Australia. The Portmar was the last ship either sunk or damaged by enemy forces along the Australian coast and this occurred on 16 June 1943 off the coast of New South Wales, some 7 months prior to the applicant undertaking his voyage." (Exhibit R1/para 9)
Mr Piper's report (Exhibit R2) states that "Japanese submarine attacks around the Australian coast ceased in June 1943 with the departure of the 1-174". He quotes from a study of Lieutenant Commander David Stevens, Director Naval Historic Studies at the Department of Defence in Canberra "1-174 : The last Japanese submarine off Australia":
"With the departure of I-174 the Japanese campaign off Australia effectively came to an end. Though I-177 and I-180 were despatched in mid June for further action in the region their deployment coincided with a renewed Allied offensive against the central Solomon Islands. When they had all but reached their operating area the two submarines were ordered to return north to augment the Japanese forces despatched to New Georgia. The Japanese were never again able to spare submarines to operate off eastern Australia. …"
Mr Piper continues:
"It is important to note that Japanese submarine attacks during that first half of 1943 occurred from Bundaberg, north of Brisbane, to the NSW - Victoria border near Mallacoota. The only exception was the United States vessel Charles S. Jones which had torpedoes fired at it near Cairns … on 18 March 1943 … [N]o allied vessel was ever sunk by Japanese submarines on the Townsville to Darwin section of our shipping routes during World War II. Shallow waters in the Gulf of Carpentaria and through the Torres Strait were then followed by the natural obstacle of the Great Barrier Reef, with its shoals and numerous islands. All acted to keep the enemy submarines in the deeper and safer waters between Brisbane and the NSW - Victorian border, off Mallacoota."
Mr Gilgen does not contend that he incurred danger while on Horn Island. For completeness the Tribunal notes that Mr Piper stated that "The 8th and last air raid [of Horn Island] was on the night of 17/18 June 1943". (Exhibit R2)
In addition to potential danger from Japanese naval attack, the potential danger from hostile mines must also be considered.
It appears from Mr Piper's report that two German vessels laid mines between Sydney and Newcastle, in Bass Strait, off Hobart and in Spencer Gulf; another German vessel "Orion" laid mines in September 1940 off Albany.
Closer to the area in which Mr Gilgen undertook his voyages, Mr Piper states "the specially equipped Japanese submarine 1-124 was caught mine laying in shallow waters, 60 miles west of Darwin, and was subsequently sunk by allied vessels on 20 January 1942. Mr Piper also states that Royal Australian Naval Records state "no enemy mines were laid in the Barrier Reef area", the HMAS Warrnambool having been sunk by a mine laid by the minelayer HMAS Bungaree.
Mr Piper's report regarding mine laying in the Torres Strait should be set out in full. At page 4 of Exhibit R1 Mr Piper states:
"Submarine mine laying in the Torres Strait is recorded in the recently released book Torres Strait Force by Reg Ball, released by Australian Military History Publication (AMHP), which states at page 17:
In early January 1942 Japanese submarine I-122 was ordered to the waters off north Australia to lay mines at the western approaches to Torres Strait. However, it could not approach close enough to effect laying the mines because of shallow water and strong tides.
It should be noted that the book Sensuikan I-124 contradicts the above and states at page 29 that the I-122 laid 30 mines in the Torres Strait area on 15 January 1942, then joined the I-121 and headed to the north of Timor.
However, original Japanese records and their English translation state that in actual fact the submarine that went to the Torres Strait was the I-123 which laid 40 mines on 25 February 1942.
The discovery of a mine as recorded in Torres Strait Force, is confirmed. Details are: "17 December (1943) – 4th Australian Division advised finding mine on a beach approx. 1 mile south of Red Island Point jetty – 3 foot six inches in diameter. The navy was advised and dispatched R.M.S. Officer to investigate"."The mine found a mile south of the Red Island Point jetty was found shortly before Mr Gilgen's arrival north of this point. There is no information before the Tribunal as to whether this was an enemy mine. This is crucial as the danger incurred must have been "from hostile forces of the enemy" – danger from Australian or allied mines is not included in the statutory definition. Also there is no information as to how the mine in question "probably" got there – that is, there is no evidence of currents or tides that might indicate whether it had probably been in the area later traversed by Mr Gilgen or whether others were probably in the area when Mr Gilgen traversed it.
Moreover it appears from page 5 of Mr Piper's report that "army and air force launches plied regularly during the war around the Horn Island, Thursday Island and nearby tip of Cape York Peninsula at Red Island Point (a road ran from here to Higginsfield)". The Tribunal infers that none of these vessels came to grief from enemy mines.
Mr Piper's opinion is expressed thus (at page 5 of his report):
"Based on the aforementioned World War II records and historic details covering both the navy, army and air force (from Australian, American and Japanese sources) it can be deduced that the Horn Island, Thursday Island and Higginsfield areas were quite safe from hostile forces from July 1943 onwards. This similarly applies to the Townsville to Horn Island shipping routes.
Japanese submarines had withdrawn from the area, air raids had ceased and no ships were being damaged or sunk by mines."
mr gilgen's case
The Tribunal refers to paragraph 11 above, in particular, the sentence underlined.
The Tribunal accepts that Mr Gilgen not having seen any mines on his voyages is not to the point as mines are laid below the surface. The Tribunal accepts, for the purposes of this application, that there are "three main types of sea mines, viz – acoustic, magnetic and contact, none of which were visible on the surface unless they had broken free" (see Mr Gilgen's statement of 18 April 2000).
The Tribunal refers to paragraph 15 above. Mr Gilgen disputed the respondent's contention that the Portmar was the last ship either sunk or damaged by enemy forces along the Australian coast. Mr Gilgen in Exhibit A1 attaches an extract from Sandpipes September/October 1999 which states "… U-862 left on a long patrol and ended up off Jervis Bay. On Boxing Day, 1944 it sank the "ROBERT J WALKER". It was the last submarine attack off the Australian coast."
Accepting the Robert J. Walker was the victim of the last submarine attack off the Australian coast, the Tribunal observes that this occurred a long distance south of Mr Gilgen's voyage and nearly 12 months later. That is, this does not assist Mr Gilgen. Mr Gilgen, in his reply dated 14 May 2000, also states the "HMAS Matafele was sunk off the east coast out from Cairns". The Tribunal was not provided with details and cannot surmise that HMAS Matafele was destroyed by enemy mines or enemy attack or when or where it sank.
At the hearing Mr Gilgen stated that he did not think the historical records were complete. He stated that surveillance would not get all the facts and safety could not have been guaranteed. In cross-examination he stated that he did "not have any evidence, nor does the Department". In relation to mines particularly, he said in cross-examination that there was no guarantee that they were removed. The Tribunal observes that for Mr Gilgen to succeed the Tribunal must be reasonably satisfied that Mr Gilgen incurred danger.
Mr Gilgen submitted that he met the objective test of "incurred danger". He submitted that Mr Thompson (in Thompson (above)) did not have much of a case, relying on crocodiles and dark paths. Mr Gilgen argued that Hinkins' case spelled out what was meant by incurred danger and involved a situation similar to his own.
the tribunal's conclusionsThe Tribunal has read Hinkins' case (Hinkins and Repatriation Commission [1999] AATA 666). In Hinkins the Tribunal set out the passage from Thompson (above) as set out in paragraph 7 above. The Tribunal stated at para 16:
" … it is acknowledged that there may have been Japanese forces in the areas over which Mr Hinkins flew, but Mr Hinkins does not, however, mention any incident where these forces displayed hostility. Nor is there any evidence that they were in fact hostile to the point where Mr Hinkins was in danger of harm or injury from them".
The Tribunal concluded, "In the circumstances it cannot be said that Mr Hinkins incurred danger from hostile forces of the enemy …". Mr Hinkins' appeal failed. The Tribunal cannot see that this case assists Mr Gilgen.
The meaning of "incurred danger" is set out in Thompson. That decision of the Full Federal Court is binding on this Tribunal. The Federal Court as well as deciding that "the words "incurred danger" therefore provide an objective test", also made it clear that the danger must have been from hostile forces. It observed that the Administrative Appeals Tribunal had been correct in making a distinction between danger from hostile forces and such danger as may have existed on Peron Island from crocodiles and unlit paths.
It is incorrect to say that any danger from crocodiles and unlit paths that Mr Thompson may have experienced affected the Full Federal Court's binding explanation of what is meant by "incurred danger".
The Tribunal is reasonably satisfied that Mr Gilgen did not incur danger within the meaning of section 7A(1)(a)(i) of the Act.
More particularly:
the Tribunal finds that Mr Gilgen did not incur danger from hostile forces prior to embarking for Torres Strait (and notes this was not contended by Mr Gilgen);
the Tribunal finds that Mr Gilgen did not incur danger from hostile forces on the voyage from North Queensland to Thursday Island and from there to Horn Island;
the Tribunal finds that Mr Gilgen did not incur danger from hostile forces on the voyage from Horn Island to the mainland and thence to Higginsfield and while at Higginsfield; and
the Tribunal finds that Mr Gilgen did not incur danger from hostile forces on other voyages by launch he may have undertaken in the area during his service prior to stationing at Higginsfield.
It is of course possible that the areas traversed by Mr Gilgen may have had enemy mines in place or an enemy mine or enemy mines may have broken free and been present but unobserved at the time of his voyages. The material before the Tribunal does not however allow the Tribunal to find that this possibility is translated by known facts into something more than a possibility. Danger from enemy naval or air attack was, on the material before the Tribunal, an even more remote possibility.
The Tribunal should say that it does not consider that the compulsory wearing of life jackets on the voyage to Torres Strait warrants a conclusion that this was due to the presence of hostile forces or enemy mines. It may be that at the time such dangers were perceived. However with the benefit of hindsight and historical researches the Tribunal, on what is before it, is reasonably satisfied that such dangers were not incurred by Mr Gilgen.
On the material before the Tribunal it cannot be said that Mr Gilgen incurred danger from hostile forces of the enemy within the meaning of section 7A(1)(a)(i) of the Act.
decisionAccordingly, for the reasons given above, the Tribunal affirms the decision under review.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member W.H. Eyre
Signed: .....................................................................................
Personal AssistantDate/s of Hearing 17 April 2000
Date of Decision 7 June 2000
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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