Grandy and Repatriation Commission

Case •

[2000] AATA 593

•

20 July 2000

DECISION AND REASONS FOR DECISION [2000] AATA 593

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V1999/1199

VETERANS'     APPEALS      DIVISION           )          
           Re      RONALD FREDERICK JAMES GRANDY         
  Applicant
           And    REPATRIATION COMMISSION  
  Respondent

DECISION

Tribunal       Mr A. Argent, Member        

Date20 July 2000

PlaceMelbourne

Decision      The Tribunal affirms the decision under review.

.....…..(Sgd) A. Argent………
  Member
CATCHWORDS
VETERANS' AFFAIRS – Gold Card – whether qualifying service – whether incurred danger from hostile forces of the enemy
Veterans' Entitlements Act 1986 s. 7A
Repatriation Commission v Thompson (1988) 82 ALR 352

REASONS FOR DECISION

20 July 2000            Mr A. Argent, Member        

Background

  1. This is an appeal by Mr Ronald Frederick James Grandy ("the veteran") against a decision of a senior delegate of the Repatriation Commission ("the Commission") dated 23 July 1999.

  2. That decision affirmed a previous decision of the Commission dated 12 April 1999 which determined the veteran had not rendered qualifying service during the period of hostilities of World War Two and thus was not entitled to a Gold Card.

  3. The period of hostilities of World War Two is from 3 September 1939 to 29 October 1945.

  4. 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; …"

  5. Section 85(4A) of the Act specifies that a veteran is eligible to be provided with treatment, that is, entitled to a Gold Card, if the veteran is aged 70 or over and has rendered qualifying service during World War Two.
    Issue

  6. The issue before the Tribunal is whether the veteran rendered qualifying service during World War Two and specifically, on the balance of probabilities, whether he "incurred danger from hostile forces of the enemy" when he was a member of 42 Squadron and

    (a)Travelled by ship from Darwin to Melville Bay in late December 1944;

    (b)Flew in aircraft from Gove and Melville Island in air/sea rescue operations between December 1944 and May 1945.

The Evidence

  1. The 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 material supplied by the veteran concerning his service in the RAAF in the Northern Territory in 1944 and 1945.

  2. The Tribunal also took in as evidence:

    (a)Reports by Mr R. K. Piper, an historian, dated 16 February 2000 and 5 May 2000;

    (b)The Movement Card of Alma Doepel 1942-1945;

    (c)An excerpt from Australian Army Watercraft by Brian Alsop, Topmill Pty Ltd, Marrickville NSW, 1996;

  3. The veteran appeared for himself and the Commission was represented by Mr R. Douglass, a Commission advocate.

  4. The veteran was born on 23 January 1925 and enlisted in the RAAF on 28 January 1943, soon after his 18th birthday.  He was mustered as a medical orderly and served in the Northern Territory at Gorrie and Pell from 11 February 1944 to 19 December 1944, at Melville Bay from 22 December 1944 to 17 May 1945 and from 18 May – 19 May 1945 he was on the strength of a Personnel Depot at 54 Mile.

  5. In his evidence the veteran said he incurred danger during a sea voyage from Darwin to Melville Island in late December 1944.  He could not recall the name of the vessel but it had a Lascar crew.  He was told they were sailing through dangerous waters, they had lifeboat drill and wore life jackets most of the time.  He said they stood-to once, for about one hour, because of a submarine scare but during the whole voyage there was no enemy activity.  He further said the ship arrived at Melville Bay before Christmas Day 1944 and during the voyage the ship berthed once "at what appeared to be a rather busy port".

  6. At Melville Bay he joined 42 Squadron RAAF which flew Catalina flying boats.  He also spent time with 13 Squadron which flew Ventura bombers from nearby Gove airfield.

  7. He claims he incurred danger when

    (a)He accompanied a burns patient in a Ventura flight from Gove to a Medical Receiving Station at Batchelor;

    (b)At short notice he flew in an aircraft – he was not sure whether it was a Catalina or a Ventura – from the Melville Bay area to the Wessel Islands where an aircraft had forced landed; and

    (c)Again at short notice, he flew in a Catalina some distance from Melville Bay, perhaps to the Arafura Sea or the Timor Sea or the Banda Sea to rescue the crew of a ditched Catalina.

The veteran said that on none of these sorties was there any enemy activity.

  1. The evidence of the historian, Mr Piper, is that at the times mentioned by the veteran – December 1944 – May 1945 – there was no enemy naval activity in the seas between Darwin and Melville Bay.  The last hostile enemy air activity in the Northern Territory was on 13 November 1943.  Thereafter, there were a few high flying, unarmed enemy reconnaissance aircraft flights over the Northern Territory but no hostile action.  By the end of 1944 the war had receded from this area and the surrounding areas.

  2. The reports provided by Mr Piper:

    (a)Indicate the veteran travelled direct Darwin – Melville Bay on the SS Montoro, leaving Darwin at 2123 hours 19 December 1944 and arriving at Melville Bay 2100 hours 21 December 1944;

    (b)Do not show the name of the veteran on Ventura and Catalina flights under the heading of "crew".

  3. Mr Piper also added that:

    "It would seem unusual for an LAC medical orderly to participate in any flights, …  Operational and rescue flights were an extremely serious and dangerous business with aircrew highly trained and working as a team to enable those on board to have the best chance of survival."

Findings

  1. The 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 the hostile forces of the enemy:

    (a)During his voyage Darwin – Melville Bay;

    (b)During flights in RAAF aircraft when he was stationed at Melville Bay.

  2. "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."

  3. The Tribunal finds the veteran did not incur danger on the two-day voyage Darwin – Melville Bay because no enemy activity was encountered during this voyage and official histories show the war was well to the north at the time of this unescorted voyage. 

  4. On the Ventura flight, when the veteran accompanied a burns patient from Gove to Batchelor, the Tribunal finds the veteran did not incur danger because the 360 nautical mile flight was across Arnhem Land and no enemy activity was met during this flight.

  5. Turning to his flight to the Wessel Islands which are only about 60 nautical miles north of Melville Bay, the Tribunal finds the veteran did not incur danger because again no enemy activity was reported or encountered.  It was a flight hundreds of miles distant from possible enemy interference.

  6. On the veteran's final claim – when he was on a Catalina flight that went some distance north or north west of Melville Bay to pick up a ditched crew - the Tribunal notes the veteran's name is not given on the crew lists where Air/Sea Rescues are recorded in Operations Record Book ("ORB") of 42 Squadron.

  7. The veteran gave evidence that he was on this flight on short notice which may explain the omission.  However, the ORBs were typed up some time after the event when all facts were known, so it could be assumed initial omissions might have been rectified.

  8. Regardless of this, given the imprecise location of the rescue site and the fact that the sortie did not encounter any enemy forces or hostile activity, the Tribunal finds the veteran did not incur danger.

  9. As a consequence of these four findings, the veteran did not render qualifying service and is not entitled to the issue of a Gold Card.
    Decision

  10. The decision of the Commission is affirmed.

    I certify that the twenty-six (26) preceding paragraphs are a true copy of the reasons for the decision herein of

    Mr A. Argent, Member

    Signed:         .....................................................................................
      Personal Assistant

    Date/s of Hearing  6 July 2000
    Date of Decision  20 July 2000
    The Applicant  Self-represented
    Solicitor for the Respondent    Mr R. Douglass, Departmental advocate

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Gilgen and Repatriation Commission [2000] AATA 447
Gilgen and Repatriation Commission [2000] AATA 447