Halstead and Repatriation Commission - [2000] AATA 597

Administrative
Appeals
Tribunal

DECISION AND REASONS FOR DECISION [2000] AATA 597

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/388

VETERANS' APPEALS DIVISION )

ReVICTOR HALSTEAD
Applicant

AndREPATRIATION COMMISSION
Respondent

DECISION
TribunalRear Admiral A R Horton, AO RAN (Rtd), Member
Date25 July 2000
PlaceSydney
DecisionThe decision under review is affirmed

..............................................
Rear Admiral A R Horton
Member

CATCHWORDS

VETERANS' AFFAIRS – gold card eligibility - whether Applicant rendered qualifying service – Army service during period of hostilities – service in Sydney during Japanese submarine attacks in 1942 – service in Darwin area 1944/45 – whether Applicant incurred danger from hostile forces of the enemy

Veterans' Entitlements Act 1986 – ss 5B(1), 5C(1), 7A, 120(4)
Veterans' Entitlements Amendment (Gold Card) Act – s85(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
Re Crawford and Repatriation Commission (1987) 14 ALD 341
Re Nethery and Repatriation Commission (AAT 4530, 3 August 1988)
Re Jones and Repatriation Commission (1993) 31 ALD 542
Re Bancroft and Repatriation Commission (AAT 11333, 25 October 1996)
Re Pearse and Repatriation Commission [2000] AATA 330
Re Corrick and Repatriation Commission [2000] AATA 143

REASONS FOR DECISION
Rear Admiral A R Horton, Member

Introduction

This is an application for review of a decision made on 6 November 1998 by a delegate of the Repatriation Commission ("the Respondent"), and affirmed by review under section 57 of the Veterans' Entitlements Act 1986 ("the Act") on 6 March 1999, that Victor Halstead ("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 16 March 1999.
At the hearing before the Tribunal on 22 May 2000, the Applicant was represented by his Grandson, Mr Adam Halstead. Mr Jim 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 Tribunal also received the following documents into evidence:

Map of Sydney marked to show Chowder Bay and Georges Heights (exhibit A1);
Copy of a map of Darwin showing workshop and barracks (exhibit A2);
Report by Mr Brendan O'Keefe, Consultant Historian, dated 28 February 2000 (exhibit R1).

Mr O'Keefe was called by the Applicant for cross examination by telephone.

ISSUES BEFORE THE TRIBUNAL

The Applicant claims qualifying service as a prerequisite for eligibility for a Gold Card. Eligibility is established pursuant to subsection 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:
the veteran is 70 or over; and
the veteran has rendered qualifying service during the period covered by paragraph (b) of the definition of period of hostilities in subsection 5(B(1); and
either:
the department has notified the veteran in writing that he or she is or will be eligible for such treatment; or
the veteran has notified the department in writing that he or she seeks eligibility for such treatment."

The Respondent concedes that the Applicant is a veteran as defined in section 5C of the Act, that he served during the relevant period of hostilities as defined in subsection 5B(1), and that he meets the criteria for age as defined in subsection 85(4A)(a) of the Gold Card Act. Hence the only issue in this matter is whether the Applicant rendered qualifying service for the purposes of the Act. The required standard of proof is that of reasonable satisfaction pursuant to subsection 120(4) of the Act.
"Qualifying Service" is defined in section 7A of the Act which relevantly provides:-

"7A.(1)For the purposes of Part III, 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; or

…"
FACTS AND EVIDENCE

The Applicant served in the militia (17th Battalion and 1st Anti-Aircraft Battalion) for two years prior to joining the Citizen Military Forces ("CMF") in February 1939. Following six months recruit training at Queenscliff in Victoria, travelling from and to Sydney by train, he was stationed with the Royal Australian Engineers ("RAE") in the Fortress Engineers Unit at Chowder Bay, Sydney. His place of work was at the workshops alongside the harbour at Chowder Bay, and his sleeping quarters were located in the barracks/married quarters area at Georges Heights, located on the ridge "about three quarters of a mile" above and behind Chowder Bay. Between the workshop and his sleeping quarters were located three or four navy fuel tanks. The Applicant gave evidence that on the night of 31 May 1942, when the Japanese midget submarine attack in Sydney Harbour took place, he was sleeping in a semi detached house at Georges Heights, which was used to house members of the Chowder Bay unit. He stated that he could remember the "whole house shaking" and a "terrible noise" but had no idea what was going on until learning later ("the next morning or maybe the day after") that a submarine had penetrated the harbour and sunk HMAS KUTTABUL. His unit was not called out.
In evidence, the Applicant stated that he was in the same quarters at Georges Heights when the Japanese submarine shelled Sydney on 8 June 1942. Whilst he could view South Head and the eastern suburbs, he gave no evidence that he was aware at the time that an attack was taking place. In exhibit R1, Mr O'Keefe states that all the enemy shells, fired from south east of Sydney, fell short of the harbour in the eastern suburbs, this being a well established and accepted fact.
From his service record at T3, the Applicant was transferred to the Australian Imperial Force ("AIF") on 23 August 1942, and posted to Signal Hill near South Head on attachment to the Signal Battery in May 1943. No incidents took place whilst stationed at Signal Hill, but the Applicant gave evidence that on one occasion whilst on night duty he thought he saw a periscope, but did not report it as no one else in the observation post saw it. During this period he undertook a motor transport course at Geelong and a bomb disposal course at Kapooka, in preparation for a posting to the Northern Territory.
The Applicant arrived in the Darwin area in March 1944 (T3), having proceeded by rail and road via Port Augusta and Alice Springs. He was sergeant in charge of an RAE unit of 23 men which was co-located with a coastal artillery battery unit at East Point, the prime purpose being to install 9.2 inch guns. The Applicant stated that "as an engineer unit, we had to install the engines and supply the men to do that", and also had to provide engineering support to the coastal battery whose task it was to keep the port open. Both the workshop and barracks were located at East Point. From his evidence, he remained at East Point until much later in the war, and continued his service in the Darwin area until February 1946, when he returned to Sydney onboard HMAS KANIMBLA for discharge.
The Applicant gave evidence that he thought the coastal battery had two six inch guns, and searchlights. He was unaware of any anti-aircraft guns being located at East Point. The advocate for the Applicant drew the attention of the Tribunal to the geographic location of East Point and that of West Point; the former is about six kilometres north of Darwin, guarding the eastern side of the entrance to the port of Darwin, the latter some six kilometres west south west, marking the western side of the entrance to the port. The Applicant stated that unit personnel were issued with a rifle and five rounds of ammunition, but took no particular precautions other than manning search lights at night on a watchkeeping basis, and manning the observation tower. In his view, the nature of the terrain and the facilities at East Point would have placed him in a dangerous situation in the event of an enemy air attack. He never heard any air raid warnings, and was unaware of any directions or standing orders as to action to be taken in the event of an air raid or attack. He stated that even had air raid warnings been sounded in Darwin, they would not have been heard at East Point. In cross examination, the Applicant stated that to his knowledge there were no enemy air attacks on Darwin during his time in the area. He gave no evidence of hearing or seeing any enemy activity.
In his report at exhibit R1, Mr O'Keefe stated that no war diary could be found for the unit in which the Applicant served in Sydney, but the war diary for his parent unit, Sydney Fixed Defence Command (Coast Artillery), made no reference to any action by the commands units during the attacks on Sydney. In response to a question by the Applicant as to whether the Chowder Bay fuel tanks would have been a target for the Japanese attack inside Sydney Harbour, Mr O'Keefe stated that the Japanese interest was only in shipping. In respect of the Japanese gun attack on 8 June, Mr O'Keefe opined that the Applicant was stationed some miles from where the shell landed.
As regards events in the Darwin area, Mr O'Keefe stated in his report that the last enemy air attack on Darwin occurred on 12 November 1943, some four months before the Applicant arrived in the area. Again, this date has been accepted as the authoritative date of the last attack. Mr O'Keefe went on to detail subsequent known enemy flights over northern Australia, stating that these were "single aircraft identified as reconnaissance missions". Where physically identified, the aircraft were Mitsubishi Ki-46 Dinah aircraft, and Mr O'Keefe considered it likely that the unidentified aircraft (two flights) were the same type, armed only for self defence in aerial combat with a 7.7 mm gun and possibly crude fragmentation devices to be used against pursuing fighter aircraft. In cross examination, Mr O'Keefe stated that Dinahs generally operated at high altitude; in his report, he notes that the reconnaissance flight over Darwin on 16 April 1944 was at a height of 31,000 feet.
In response to further questions from the advocate for the Applicant, Mr O'Keefe discounted the suggestion that other, non-recorded flights could have taken place over Darwin. Whilst he accepted that enemy long range fighters could reach Darwin from Flores or Timor, there was no evidence that such flights took place after the last raid in November 1943.
ANALYSIS OF EVIDENCE AND FINDINGS
The issue to be considered is whether the Applicant "incurred danger" pursuant to section 7A(1)(a)(i) of the Act. The Advocate for the Applicant submitted that the Applicant had incurred danger both during his service in Sydney and in the course of his subsequent service in the Northern Territory. In each case, he submitted he was serving "in the field….in operations against the enemy" and "incurring danger from hostile forces" pursuant to section 7A(1)(a)(i). It was submitted that the Applicant did not have to be aware of danger at the time in order for his claim to succeed, nor was it necessary that a "bomb be dropped on his head". The advocate further submitted that the definition of 'incurred danger' as defined in Repatriation Commission v Thompson (1988) 44 FCR 20 by the Full Federal Court was being given an unnecessarily narrow interpretation by the Respondent.
Service in Sydney
The advocate for the Applicant submitted that the circumstances of the Applicant's service saw him incurring danger and being at risk of harm as a member of the Defence Force. It was submitted that such was the case when the applicant was living and working in close proximity to the fuel tanks at Chowder Bay, and the advocate drew on the decision in Re Crawford andRepatriation Commission (1987) 14 ALD 341 which related to the midget submarine attack. Various passages of the decision by that Tribunal, presided over by Purvis J, were quoted, those considered relevant in the context of the claim by this Applicant being as follows (and as taken from paragraphs 19, 30 and 35 of the decision):

"USS CHICAGO and HMAS GEELONG opened fire, most of their shells ricocheted off the thick walls of the old Pinchgut Fort and flew into the suburbs on the north shore and Bellevue Hill";
"Sydney harbour was accepted to be a theatre of war on that evening"; and
"It was accepted on the night of 31 May, hostile forces of the enemy were in the area at the relevant time."

The advocate for the Applicant submitted that whilst that Tribunal had stated (at paragraph 38), and it was accepted, that persons in the outer suburbs were not subject to danger, those in closer proximity "certainly had exposure to danger". He also referred to the evidence that the house in which Applicant was sleeping was shaking, and that it was located in close proximity to the strategic oil tanks at Chowder Bay.
The same situation in regard to the close proximity of the oil tanks was submitted as a factor in demonstrating that the Applicant incurred danger during the Japanese submarine gun attack on 8 June. Quoting the evidence of Mr O'Keefe that the submarine captain was keen to complete his attack and dive, it was submitted that the Applicant's location was on the line of fire from the submarine notwithstanding that the shells landed in the eastern suburbs. It was submitted that the shells "could have fallen anywhere", and hence the Applicant was in danger.
In response, the Respondent also relied on the decision in Re Crawford (supra), as far as the midget submarine attack was concerned. The Respondent submitted that whilst that Tribunal had held that Crawford had incurred danger, the observation was made (paragraph 44) that it was:

"unlikely that Crawford would have incurred danger if he was at some geographical location other than in the vicinity of ships or wharves…".

The Respondent submitted that this view had been upheld in later decisions, the most recent being Re Pearse and Repatriation Commission (2000) AATA 330.

The extract from the decision in Re Crawford (supra) by the advocate for the Applicant, that "Sydney harbour was accepted to be a theatre of war on that evening", requires clarification.The Tribunal in Re Crawford noted that the expression had no relevance to the review under the Act, it having been used in the now repealed Repatriation Act 1920 in regard to the granting of service pension under section 84(1). The Tribunal went on to state that the expression "lingered on in general discussion". That situation applies in this matter; the expression does not form part of the eligibility criteria for qualifying service (or the Gold Card).
The Respondent further drew the attention of the Tribunal to the implications of the full meaning of subsection 7A(1)(a)(i) of the Act, wherein the veteran has to be "rendering service...in operations against the enemy", citing Re Corrick and Repatriation Commission [2000] AATA 143 as a relevant authority. In that matter, shells fired from the Japanese submarine on 8 June 1942 landed within close proximity (to within 150 metres) of where the Applicant was sleeping. Deputy President McMahon adjudged that the Applicant had "incurred danger from hostile forces of the enemy", by application of the objective "incurred danger" test as defined by the Full Federal Court in Thompson (supra), but he had not "rendered service…in the field…in military…operations against the enemy".
The latter phrase was considered by Cooper J in Willcocks v RepatriationCommission (1992) 39 FCR 49. At page 55 his Honour said:

"The phrase 'naval, military and aerial operations against the enemy' is to be read as a whole. It includes two elements. The first is that there must be some operation which is naval, military or aerial in character. The second is that the requisite operation must be against the enemy. Both elements must be satisfied for the service to constitute 'qualifying service' within the meaning of section 36(1) of the VE Act"

At page 56, and after considering the meaning and uses of the word 'against', his Honour went on to say:

"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".

Applying this criteria, and noting that the reasoning of Cooper J was applied by Olney J in Repatriation Commission v Burton (1993) 31 ALD 475, the activities of Mr Corrick on the night in question were found to be "essentially passive" in that "there was nothing in his activity…which could be fairly described as a military operation against the enemy" and hence that Tribunal found that he had not met the criteria for qualifying service.
As regards the question of "rendering service…in operations…against the enemy", this matter, in the context of the Japanese midget submarine attack on 31 May 1942 and the Japanese submarine gun attack on 8 June 1942 is on all fours with Re Corrick (supra) and hence the Tribunal finds that the Applicant does not meet this criteria for qualifying service.
Whether or not the Applicant incurred danger during this phase of his military service therefore has no bearing on the outcome. However, the Tribunal sees it appropriate to reach a conclusion for completeness, and as an essential pre-requisite before consideration of the Applicants later service in the Northern Territory. Both the Applicant and the Respondent drew on Re Crawford (supra) in final submissions. In that matter, the Tribunal was satisfied that the Applicant had incurred danger and was therefore entitled to a service pension. But as earlier noted, that Tribunal also considered that he was unlikely to have incurred danger had he been stationed at a place other than in the vicinity of ships and wharves (where the attack occurred), and also took into account the specialised nature of the weapons (that is, torpedoes for attacks against shipping) available to the submarine. Applying Re Crawford (supra) to this matter as regards the midget submarine attack, the Tribunal finds that the Applicant did not incur danger.
In the matter of the later submarine gun attack on Sydney, neither party drew on any authority in final submission. For the Applicant it was emphasised that he was in danger, being located along the line of fire of the submarine, in close proximity to oil tanks, and that the shells could have landed anywhere. The Respondent submitted that the Applicant' submission focussed on the potential rather than the actual events, and that no shells landed other than in the eastern suburbs, some miles away. The Full Federal Court in Thompson (supra) gave an authoritative and objective definition to the phrase "incurred danger", Davies, Wilcox and Foster JJ stating at pp23-24:

"…
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 no encompass a situation where there is a mere liability to danger, that is to say, there is mere risk of danger. Danger is not incurred unless the serviceman is exposed, at risk or in peril of harm or injury.
The danger must of course be more than a merely fanciful danger or a danger so minimal that a rule of de minimus applies. But to say that is not to give a flavour to the word. Rather it is to use it in its ordinary sense".

The Tribunal in Re Crawford (supra) drew on the above and other authorities, and stated at paragraph 27:

"It is again not sufficient for an applicant to believe, even strongly, that he or she was in danger if in reality there was, in fact, no danger. That is, the test of "danger" must entail an analysis of the actual military situation quite independent of an applicant's on view or perception of it at the relevant time. There must be established an actual risk of physical; or mental harm".

There is no evidence to suggest that the Applicant was at risk or in peril of harm from hostile forces. He may have perceived or feared at the time, or in hindsight, that he may be in danger, but that is insufficient to meet the objective test. On both occasions during the Japanese submarine attacks on Sydney he was situated well away from the scene of the attack and saw no evidence of enemy activity, albeit that he recalled his quarters (house) shaking and a "terrible noise"; in the case of the midget submarine attack, the weapons available to the enemy also constrained their operations to attacks on shipping only. The advocate for the Applicant opined that the Respondent took a somewhat simplistic view of danger in these matters in implying that to be in danger, the Applicant must be bombed. Whilst the Respondent did not specifically address this comment, the Tribunal notes that case law has well established that for a veteran to have incurred danger he need not have been subject to actual physical or mental injury.
Service in the Northern Territory
The advocate for the Applicant relied extensively on the decision in Re Jones andRepatriation Commission (1993) 31 ALD 542. That matter, presided over by Deputy President Burns, reviewed a decision of the Repatriation Commission not to grant a service pension, the singular issue being whether he had rendered qualifying service as defined in section 7A of the Act. That Tribunal found in favour of the Applicant.
Mr Jones served in the Royal Australian Navy ("RAN") from mid 1943; on 13 December 1943, he was posted to HMAS MELVILLE, a shore depot located at Darwin. During his subsequent service in Darwin, he was attached for various periods of sea service to harbour defence vessels. His claim was that he incurred danger from hostile forces of the enemy during this period.
As described by that Tribunal, he gave evidence that whilst at MELVILLE until 21 March 1944, "enemy activity was most apparent", that there were "many air raid alerts", his estimate being about two per week, and that he "had sighted silhouettes of enemy aircraft and had heard artillery fire at those silhouettes". Mr Jones was then transferred to the boom defence vessel HMAS KOOKABURRA which operated each day within Darwin Harbour in the vicinity of the defensive boom, apparently laid between West Point and Dudley Point (adjacent to East Point). He gave evidence that on one occasion an aircraft with Japanese markings flew down the harbour at a low height whereby the pilot could be seen waving. He believed this to be sometime between 22 March and 3 April, but also stated that it could have been whilst he was serving on either the KOOKABURRA or HMAS KOOMPARTOO, also a boom defence vessel. The shore based anti-aircraft guns did not fire, nor did his ship react by direction (of the command), on the basis that it was lightly armed and any reaction could have led to retaliatory action by the aircraft. In May, Mr Jones was posted to KOOMPARTOO, which was stationed in proximity to the boom gate near West Point. Whilst embarked, he "saw silhouettes of enemy aircraft, in groups of three to five at a time" and heard the ack-ack guns on West Point. These aircraft did not approach his vessel. He further heard a rumour that an enemy submarine was in the area at that time, but there was no evidence to support this conjecture. His evidence was that from April-May 1944, enemy activity "petered out" and air raids and ack-ack fire ceased.
Mr Jones called a military historian, Mr Whiley, who gave detailed evidence as to enemy strengths, capabilities and activities. The Tribunal in Re Jones (supra) found him to be 'an impressive witness'.
In his final submission, the advocate for the Applicant before this Tribunal placed much emphasis on the evidence given by both the Applicant and the historian in Re Jones (supra) submitting in essence that the facts in this matter are similar, that the Applicant was in "close proximity" to the incidents, and in the same period, where the Tribunal in Re Jones had accepted that Mr Jones had incurred danger. The Respondent submitted that on the evidence, the circumstances in this matter can be distinguished from the Re Jones decision, notably in the conflicting evidence by the relevant historians, the non-specific evidence given by both Mr Jones and Mr Wiley, and on the facts as presented by the Applicant. The latter included evidence that the Applicant was unaware of any air raids on Darwin, that he heard no air raid alerts nor anti-aircraft firings, and witnessed no incidents. He made no claim to having seen low flying aircraft.
In terms of military historical research and conclusions as to Japanese forces, intentions and activities, the Applicant relied on the evidence given by Mr Whiley in Re Jones (supra) and the interpretations placed on that evidence by the Tribunal in that matter. The Applicant also referred to a report by Dr David Horner, military historian, cited in Thompson (supra), suggesting that whilst some excerpts from that report supported the argument that the Japanese had the capability of carrying out raids on northern Australia in early 1944, the Respondent was selectively using part of that report out of context (as evidenced in the section 57 decision). The Respondent on the other hand provided a report by Mr O'Keefe to which the Tribunal must accord some currency as reflecting current research and conclusions, in the absence of any contemporary evidence from the Applicant to the contrary.
The issue at hand in this matter is the enemy activity in the vicinity of Darwin that could have relevance as to whether the Applicant incurred danger from those hostile forces whilst rendering service "in…operations…against the enemy" as defined in section 7A of the Act, rather than whether the enemy had the potential to conduct operations over the Darwin area during the period in which the Applicant served in that location. There is common ground among the historians that the last bombing raid occurred in November 1943, but different interpretations of subsequent events. From Re Jones (supra), the Applicant draws on the opinion of Mr Whiley, who in commenting on reconnaissance flights (by Mitsubishi K46 Dinah aircraft) after November 1943, responded to a question from that Tribunal as to whether it was practice from his research that most of these reconnaissance aircraft then had some fighter cover to give some assurance of safe return, by stating:

"There are certainly records of the reconnaissance aircraft being supported by anywhere up to six fighter aircraft to come down and give them some form of defence against the aircraft which were based in the Darwin area."

In response to a further question from that Tribunal, Mr Whiley agreed that:

"a considerable amount of the reconnaissance activity over the Darwin area may have been under fighter aircraft due to its vulnerability."

In his report in this matter, Mr O'Keefe listed five recorded flights by Japanese aircraft over north and north western Australia after 12 November 1943. He stated that prior to June 1944, the only recorded flight was by an unidentified aircraft over Darwin at 31,000 feet; he was unable to produce any evidence of a low level reconnaissance flight over Darwin harbour in that period, nor of any incursions by Japanese fighter aircraft.. He considered it highly likely that all reconnaissance aircraft were Dinahs. The Tribunal notes that Mr O'Keefe prepared a report and gave evidence in Re Bancroft and Repatriation Commission (AAT 11333, 25 October 1996), in which he stated that enemy aircraft were detected 14 times over the Darwin area between 17 November 1943 and August 1944, also noting that the records generally provided no positive identification or indication of height. This earlier report and oral evidence seem to be at variance with the data provided by Mr O'Keefe in this matter in respect of recorded aircraft detections over the Darwin area.
In Re Bancroft (supra), which has some similarity to this matter, the military historian, Dr David Horner, spoke in evidence as to a report he prepared for the matter of Re Nethery and Repatriation Commission (AAT 4530, 3 August 1988) a report he considered relevant to Re Bancroft. Dr Horner was asked to comment on the statement by Mr Whiley in Re Jones (supra) (repeated at paragraph 36 above) regarding evidence of reconnaissance aircraft being supported by up to six fighter aircraft. Dr Horner opined that from documents and war diaries, there was no evidence of fighter support for any enemy incursions into the Darwin area.
Thus there is some difference of opinion between historians as to the extent and composition of Japanese air activity over the Darwin area during the first half of 1944. The advocate for the Applicant relies on the circumstances of Re Jones (supra) particularly in respect of the occasion where Jones was onboard a boom defence ship over which a Japanese aircraft, possibly armed, which flew at low height. In his submission he stressed that Jones was "in close proximity to where the Applicant was at precisely the same time". The Tribunal in Re Jones considered that Applicant to have incurred danger on three occasions, two on the basis of "armed enemy planes being within sight and at the same time, ack-ack guns being fired", with a concomitant risk of harm or injury from enemy aircraft retaliation, the third being the occasion of being overflown by a low flying enemy aircraft, "capable of causing harm", this being enough to establish risk of harm or injury. That Tribunal found that there was insufficient evidence to suggest that Jones 'incurred danger' from any submarine threat, and such threat would in any event not have existed whilst he was ashore at HMAS MELVILLE. For the same reasons, this Tribunal finds that the Applicant did not incur danger from any submarine threat during his period of service in Darwin.
The Tribunal in Re Jones (supra) acknowledged that the leading authority on the meaning of the phrase "incurred danger from hostile forces of the enemy" is the decision of the Full Federal Court in Thompson (supra), and applied it accordingly. The Federal Court defined "incurred danger" as being subject to an objective, not a subjective, test (as at paragraph 26 above). It also emphasised (page 24), that "liability to danger in the sense of a risk of danger is not sufficient. The statutory provision requires that danger be incurred". On the evidence available to it, that Tribunal concluded that the Applicant had met the objective test on the occasions noted above.
The advocate in this matter submitted not only that the Applicant was on all fours with Re Jones (supra), but that the wider implications of the country being at war, of the Applicant being stationed in Darwin (and Sydney) and exposed to risk or harm from hostile forces must be taken into account. The latter are insufficient to meet the objective criteria, which is not to say that the Applicant must be subject to 'bombing' or physical attack, but that he must be exposed, at risk or in peril of harm or injury.
The Applicant has given evidence that during his period of service in Darwin, he neither saw nor heard any enemy aircraft to his knowledge, that no incidents occurred that could be related to enemy activity, that he took no special precautions other than being required to watchkeep in a lookout capacity. He gave no evidence that he was aware of the occasion when KOOKABURRA (or KOOMPARTOO) was overflown by an enemy aircraft, nor is there any evidence that he was stationed in close proximity at the time. He may well have perceived danger given that he was in a military installation located in for the forward defence of the country, but there is no evidence to suggest that he incurred danger in an objective sense.
The reliance on Re Jones (supra) by the Applicant in this matter has been given some prominence. In that decision, the Tribunal made a more general observation (in the context of commenting on a patrol outside Darwin harbour) as follows:

"Further, the Tribunal finds that Mr Jones was not at risk of suffering injury or harm from attack by enemy aircraft on that day. Mr Jones gave evidence that he neither saw nor heard any enemy aircraft, and there is no evidence before this Tribunal that enemy aircraft were in the vicinity on that day. Although the Tribunal accepts that reconnaissance flights over the Darwin area took place on a number of occasions, they were not so frequent that the Tribunal can find that there existed a risk of harm or injury on each or every day of the relevant period during which enemy activities were most prevalent in 1943 and 1944. The Tribunal is of the view that if Mr Jones had sighted enemy aircraft during the time he was outside of the harbour, he would have incurred danger. However, Mr Jones' evidence was that 'nothing untoward' occurred on that day.''

A similar conclusion as regards the "incurring of danger" in the absence of any relevant enemy activity can be drawn in this matter, and the Tribunal so finds that the Applicant did not incur danger during his period of service in the Northern Territory.

Given that the Tribunal finds that danger was not incurred, the matter of whether the Applicant meets other complementary phrases in the criteria of qualifying service pursuant to section 7A(1)(a)(i), such as "operations against the enemy", is not further addressed.
In final submissions, both the Applicant and the Respondent referred to difficulties encountered in obtaining documentation or information from the other party relevant to the preparation of reports and submissions. The advocate for the Applicant had sought from the Commonwealth under a Freedom of Information request, all documentation relating to the Applicant, but conceded to the Tribunal that he could not say what, if any, might have been relevant to this application for a Gold Card. In the view of the Tribunal, it is most unlikely that any other relevant information would have been forthcoming, given that matters relating to service dates and postings for instance, are not in dispute. However, the Tribunal notes with concern that such requests were apparently not actioned in a timely manner.
The Respondent in turn considered that the Applicant had not provided a statement with sufficient detail to enable proper historical research to be undertaken in respect of the matters on which the Applicant sought to rely. The Tribunal acknowledges that this situation is not uncommon with non-legally represented applicants, but does not consider it a significant factor in this matter.
Notwithstanding his fine service to his country, as acknowledged by the Respondent, and endorsed by the Tribunal, the Applicant has not met the requirements of section 7A(1)(a)(i) as regards qualifying service, and is therefore not eligible for the Gold Card. The decision under review is affirmed.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of A R Horton, Member.
Signed:         .....................................................................................
  Associate
Date of Hearing  22 May 2000
Date of Decision  25 July 2000
Representative for the Applicant              Mr Adam Halstead
Representative for the Respondent Mr Jim Marsh

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Halstead and Repatriation Commission [2000] AATA 597

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