Goesch and Repatriation Commission - [2002] AATA 191

DECISION AND REASONS FOR DECISION [2002] AATA 191

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/572

VETERANS' APPEALS DIVISION )

Re GODFREY HENRY GOESCH
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date22 March 2002
PlaceSydney

Decision The decision under review is affirmed.

..............................................
Rear Admiral A R Horton AO
Member
CATCHWORDS
VETERANS' AFFAIRS – Gold Card eligibility – service in Royal Australian Air Force – service in Northern Territory – whether Applicant rendered qualifying service – whether incurred danger from hostile forces

Veterans' Entitlements Act 1986 – sections 5B(1), 5C(1), 7A, 36, 120(4)
Veterans' Entitlements Amendment (Gold Card) Act 1998 – section 85(4A)

Repatriation Commission v Thompson (1988) 44 FCR 20
Willcocks v Repatriation Commission (1992) 39 FCR 49
Repatriation Commission v Burton (1993) 31 ALD 475
Repatriation Commission v Tiernan [2001] FCA 519

REASONS FOR DECISION

Rear Admiral A R Horton AO, Member

This is an application for review of a decision dated 31 August 2000 by a delegate of the Repatriation Commission ("the Respondent"), and affirmed by review under section 57A of the Veterans' Entitlements Act 1986 ("the Act") on 22 March 2001, that Godfrey Henry Goesch ("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 3 May 2001.
At the hearing before the Tribunal on 7 February 2002, 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 section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also took into evidence a report by Mr R Piper of Military Aviation Research Services, with Annexures A to E, dated 14 September 2001 (Exhibit R1). Mr Piper was called by the Respondent to give oral evidence before the Tribunal.
ISSUES BEFORE THE TRIBUNAL
The Applicant claims qualifying service as a prerequisite for eligibility for a Gold Card. Eligibility is established pursuant to section 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 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."

Qualifying service is defined in section 7A of the Act, which states relevantly:
"(1) …
(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) …"
Section 5B(1) defines the period of hostilities and states, relevantly:
"(1) ….
(b) World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included); or
…"
The Respondent concedes that the Applicant is a veteran as defined in section 5C of the Act. The Applicant meets the age criteria for the Gold Card as defined in section 85(4A)(a) of the Gold Card Act, being aged 79 at the time of the application. The Respondent also concedes that the Applicant rendered service during the period of hostilities as defined in section 5B(1) of the Act.
The issue to be determined in this application is whether the Applicant rendered qualifying service pursuant to section 85(4A)(b) of the Gold Card Act. The relevant standard of proof is that of reasonable satisfaction, that is on the balance of probabilities, pursuant to subsection 120(4) of the Act.
FACTS AND EVIDENCE
The Applicant enlisted in the Royal Australian Air Force ("RAAF") on 10 June 1941 (T3) having been working in the haulage industry since leaving school. Following three months initial training in Sydney, he was posted to Melbourne for training as an armourer. In September 1942 he was posted to Wagga and qualified as a turner, remaining in that mustering for the duration of his service. His service record shows that he was subsequently posted to 14 Aircraft Repair Depot ("14 ARD") in Melbourne on 29 March 1943.
As confirmed by RAAF Records (T11), the Applicant was deployed with an advance party of the unit to Gorrie in the Northern Territory commencing on 11 April 1943. He gave evidence that he travelled by train to Alice Springs and then truck through Larrimah to Gorrie, and that the date 'sounded about right'. The main body of the unit moved from Melbourne for Gorrie on 5 May 1943. The Applicant remained with 14 ARD until July 1944, when he was posted to the Sydney area where he remained until discharge on 19 November 1945. The Applicant did not serve outside Australia at any time.
In a letter to the Tribunal dated 25 April 2001 (T1), that is after his application for review had been lodged, the Applicant expressed concern that the section 57 review concluded he had not been in danger in spite of his discharge papers recording 'Returned for Active Service'. He went on to suggest that his service records might not be showing full details of his service in the Northern Territory, describing his service thus (T1, pp2-3):
"…I can understand things were confusing in those early days of my posting to 14 ARD and the effort everyone was giving to get 14 ARD under full production, as this was a new repair depot and was of utmost urgency…
My mustering was a turner which put me in (G.E.S) General Engineering Section and my duties would have been given from there in most cases. The machine shop was still waiting for a machine lathe, tools etc, in making the machine shop complete…
In those early days of my arrival at 14 ARD 1943, things would happen and quickly change. One day I was told to get my gear ready… I was then given movement orders, taken to the railway, and put on the train… and told when you get to Adelaide River a tender will pick you up from the train. I was there at Adelaide River for some time and was about to be taken back to 14 ARD by RAAF tender, but those things changed and I was taken north up past airstrips army and air force equipment…
Returning back to 14 ARD somewhere north of Batchelor, we were going along OK when out of nowhere, aircraft noise, it seemed to be coming directly at us, followed by machine gun noise..."
In oral evidence before the Tribunal, the Applicant stated that in the first 'couple of months' at Gorrie, he was sent to various units to provide assistance, each occasion being for only one or two days. Most units were in the local area, but he stated that he did go as far as Adelaide River. Movement records available to the Tribunal, and notably in the form of Personnel Occurrence Reports examined by Mr Piper (Exhibit R1 Annexure E), record that the Applicant left the unit area on only one occasion, that being when he was admitted to hospital at No 1 Medical Receiving Station ("1 MRS") located at Coomalie Creek near the Adelaide River between 31 May 1943 and 17 June 1943. In cross examination, the Applicant believed it was difficult, particularly in the early stages of setting up 14 ARD, for superiors to keep track of, and record, temporary deployments of personnel. He also stated that at times the Orderly Office, responsible for compiling the Personnel Occurrence Reports, may not have been aware of temporary detachments authorised at section level. The Applicant reaffirmed, however, that when he was deployed to another unit, it was of short duration in the order of one or two days.
In evidence, the Applicant recalled that when discharged from 1 MRS, he was sent by truck to Bachelor and Fenton, where he remained for a few days, before returning to 14 ARD. Enroute, he believed the truck was under attack by aircraft. He observed a single engine aircraft flying towards the truck, and heard cannon fire. He learned shortly after that it was an allied aircraft clearing its guns.
At no time during his service in the Northern Territory did the Applicant encounter enemy activity. On occasions, sirens were sounded, but no enemy activity eventuated. He assumed that the sounding of sirens resulted from false alarms or were for practice purposes.
In his report at Exhibit R1, Mr Piper stated that during the period of the Applicant's service in the Northern Territory, no air raids occurred in the Gorrie area. He further stated that no air raids occurred in the Northern Territory whilst the Applicant was at 1 MRS, Air Raid No. 54 being on 2 May 1943, and Air Raid No. 55 being on 20 June 1943. In response to the Tribunal's inquiries, Mr Piper confirmed that the records of air raids in the Northern Territory were considered to be accurate, and indeed reflected the details he himself had researched in Japan. Mr Piper had been unable to find any reference to the Applicant being deployed away from 14 ARD, except for the period in June 1943 at 1 MRS. Whilst the Personnel Occurrence Reports of the unit referred to various detachments of personnel for work, training and sporting duties, the Applicant was not listed on any of those occasions.
As to whether the Applicant may have been attached to other units, the details of which may not have been recorded, Mr Piper gave evidence that the Personnel Occurrence Reports, maintained in the Orderly Room, would be expected to cover the entire staff of the unit. In his experience, Personnel Occurrence Reports were generally good, and in the case of 14ARD, 'quite good'. He accepted that daily attachments to other units might not have been recorded, these having been arranged at section level. He stated he had no experience of informal arrangements.
An extract of the Applicant's Members Pay Book (T9) refers to a NWA Group. Mr Piper was unable to find any record of such an organisation, and considered it had no operational significance, but was used in a co-ordinating role for pay purposes. The Applicant accepted this conclusion.
ANALYSIS OF EVIDENCE AND FINDINGS
As conceded by the Respondent at the outset, the Applicant is a veteran and rendered service "during a period of hostilities" as defined in section 5B(1) of the Act. The issue is whether the Applicant rendered qualifying service as defined in section 7 of the Act, noting that such service must be "in military or aerial operations against the enemy… at a time when the person incurred danger from hostile forces of the enemy…"
The Full Federal Court considered the implications of 'incurred danger' in Repatriation Commission v Thompson (1988) 44 FCR 20, wherein their Honours stated at 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 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."
In Willcocks v Repatriation Commission (1992) 39 FCR 49, Cooper J defined the term "operations against the enemy" at 56 thus:
"Accordingly, in my view the word 'against' in the phrase 'military operations against the enemy' is used in the sense of 'in hostility or active opposition to'. This is the common meaning and general usage of the word 'against' in such a context. The section requires services, inter alia, in military operations against the enemy, in the sense of operations in hostility or opposition to the enemy."
In this matter, the Respondent submitted that whilst it could be argued that the Applicant had incurred danger when faced with an apparently attacking aircraft whilst en route from Coomallie Creek to Gorrie, this was not from enemy forces. He submitted that there was no evidence to suggest that the Applicant had been in operations against the enemy, nor that he had been under threat from enemy action such that he would meet the incurred danger test.
The Respondent referred to the Federal Court decision in Willcocks (supra), followed in Repatriation Commission v Burton (1993) 31 ALD 475 and Repatriation Commissionv Tiernan [2001] FCA 519, as being relevant to the issue of whether the Applicant in this matter was involved in operations against the enemy. The Respondent submitted that these decisions were binding on the Tribunal, and that the Applicant could not be said to have engaged in operations against the enemy, and hence he could not satisfy the definition of qualifying service under section 7A of the Act.
The Applicant gave evidence that, particularly in the early periods of his deployment to the Northern Territory, he was detached for short periods in support of other units, which included one or more in the vicinity of the Adelaide River. The Tribunal accepts that such detachments might well have been instigated at section level, and hence may not have been known in the Orderly Room and thus not recorded in the unit Personnel Occurrence Reports. Notwithstanding this, the Applicants evidence was that whilst he reacted to siren alert on some occasions, at no time was he aware of, nor observed nor heard, any activity that might indicate enemy activity.
It may be that the Applicant was in danger when he experienced machine gun fire in his vicinity whilst returning from 1 MRS to his unit at Gorrie in June 1943. But his evidence was that the aircraft in question was a friendly aircraft. The evidence of Mr Piper was that Air Raid No 55 took place on 20 June 1943, but the target for that air raid is not identified. The movement record (Personnel Occurrence Report) at Exhibit R1 Annexure E indicates that the Applicant was discharged from 1 MRS on 17 June 1943, and hence he could have been 'on the road' on that date, particularly as his evidence was that he returned to Gorrie via Bachelor and Fenton. But the Applicant's evidence was that he neither saw nor heard any enemy activity.
This review of the primary decision has been undertaken against the circumstances of the Applicant's service, the evidence adduced and extant legislation and case law. The relevance of the 'Return from Active Service Badge', awarded on 27 November 1945 (T9) was raised by the Applicant. Mr Piper stated in Exhibit R1 that from his understanding, that badge was awarded to all personnel who had served in the Northern Territory. The Act, however, is quite specific as to the conditions that must be met for eligibility for the Gold Card, the award or otherwise of the Return from Active Service Badge not being a factor. The Act requires that specific conditions be met in order for the Applicant to qualify for the Gold Card, conditions which have been discussed above in these reasons for decision.
In this matter, there is no evidence against the required standard of proof, that is of reasonable satisfaction, that the Applicant incurred danger in operations against the enemy during his service in the RAAF. Accordingly, the Applicant has not met the conditions pursuant to section 7A of the Act in respect of qualifying service, and is therefore not eligible for the Gold Card as defined in section 85(4A) of the Gold Card Act.
DECISION
The decision under review must therefore be affirmed.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton AO, Member
Signed: O. Caragianni           .....................................................................................
  Associate
Date of Hearing  7 February 2002
Date of Decision  22 March 2002
Self-represented Applicant
Advocate for the Respondent Mr J Marsh