Hadley and Repatriation Commission - [2000] AATA 375

DECISION AND REASONS FOR DECISION [2000] AATA 375

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/523

VETERANS'       APPEALS      DIVISION       )
           Re      RONALD STANLEY HADLEY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr A. Argent, Member

Date17 May 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
Veterans' Entitlements Act 1986 s. 7A
Repatriation Commission v Thompson (1988) 82 ALR 352
Jones and Repatriation Commission (1993) 31 ALD 542

REASONS FOR DECISION

17 May 2000 Mr A. Argent, Member

This is an appeal by Mr Ronald Stanley Hadley ("the veteran") against a decision of a Service Pension review officer of the Repatriation Commission ("the Commission") dated 5 February 1999.
That decision affirmed a previous decision of the Commission dated 9 September 1998 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.
The period of hostilities of World War Two is from 3 September 1939 to 29 October 1945.
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; …"
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
The issue before the Tribunal is whether the veteran rendered qualifying service during World War Two and specifically whether he "incurred danger from the hostile forces of the enemy".
The Evidence
The case was heard on the papers by consent of both parties.
The Tribunal had before it:
(a)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 given by the veteran;
(b)a report from Associate Professor John McCarthy giving details of units in which the veteran served.
The veteran was born on 2 February 1924 and served in the Australian Army from 16 March 1943 to 1 July 1946. He did not serve outside of Australia.
He served in Army Service Corps transport units in New South Wales and then in the Northern Territory beginning 24 January 1944. Research of the unit's war diary by Associate Professor McCarthy show the veteran's transport company arrived at Katherine on 3 February 1944, Adelaide River the next day and Darwin on 1 April 1944.
The veteran has stated he drove large trucks to the Darwin wharves. On at least two occasions, he said there were air raid alerts sounded when he was there. He mentioned Spitfire squadrons were in the Darwin area because of the threat of Japanese air raids.
Records show the last Japanese air raid in the Northern Territory in which bombs were dropped was 12 November 1943. This was about three months before the veteran arrived in the Northern Territory.
There is no evidence from the veteran that he saw enemy aircraft or heard Australian anti aircraft guns firing at enemy aircraft during his duties in the Northern Territory in 1944/45.
The evidence of Associate Professor McCarthy is that there was one Red Alert recorded by the veteran's unit. This was on 7 April 1944 and only lasted 15 minutes, from 2040 hours to 2045 hours when the All Clear was sounded. There was no air attack and presumably the Red Alert was a false alarm.
Findings
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 during his service in the Northern Territory in 1944/45?
"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."
Based upon the evidence available to it, the Tribunal finds the veteran served in the Northern Territory including Darwin from the period 3 February 1944 to mid June 1946. The Tribunal also finds there were no Japanese air raids in the Northern Territory including Darwin after 12 November 1943.
The Tribunal further finds any Red Alerts after 12 November 1943 in Darwin were false alarms as no enemy activity ensued.
The Tribunal notes the case of Jones and Repatriation Commission (1993) 31 ALD 542. In that case the applicant served in the Navy in small ships in the Darwin area beginning December 1943, i.e. after the qualifying cut-off date of 12 November 1943. That Tribunal found the applicant incurred danger because he was close to enemy aircraft, he heard anti-aircraft guns firing and on another occasion he saw enemy aircraft from the small ship in which he was serving in Darwin Harbour. The Tribunal reviewing Mr Hadley's application find the circumstances in Jones and Repatriation Commission to be quite different to those under consideration.
Based on the foregoing, the Tribunal finds the veteran did not incur danger from the hostile forces of the enemy during his Army service in Darwin and other localities in the Northern Territory and consequently did not render qualifying service and is therefore not entitled to the issue of a Gold Card.
Decision
The decision of the Commission is affirmed.
I certify that the twenty-one (21) 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  Decision made on the papers
Date of Decision  17 May 2000
The Applicant  Self-represented
Solicitor for the Respondent    Mr R. Douglass, Departmental advocate