Hannon and Repatriation Commission

[2009] AATA 251

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 251

ADMINISTRATIVE APPEALS TRIBUNAL      )   

)    No: 2008/4302

VETERANS’ APPEALS DIVISION  )   

ReRoss Alexander HANNON

Applicant

And    Repatriation Commission

Respondent

DECISION

TribunalProfessor GD Walker, Deputy President

Date17 April 2009

PlaceSydney

DecisionThe decision under review is affirmed.

.......................[sgd].......................

Professor GD Walker
  Deputy President

CATCHWORDS – eligibility for a gold card – whether applicant’s service qualifies for eligibility under the Veteran’s Entitlements Act 1986 – whether the applicant incurred danger – objective meaning of the words ‘incurred danger’ applied – decision under review is affirmed.

…

RELEVANT ACT/S:

Veterans’ Entitlements Act 1986 (Cth) (the VEA): ss 5B, 5C, 7A, 57, 85, 120

…

CITATIONS

Re Hannon and Repatriation Commission [1999] AATA 912

Repatriation Commission v Thompson (1988) 44 FCR 20

…

REASONS FOR DECISION

17 April 2009	Professor GD Walker, Deputy President
Basic facts

1. The applicant Mr Ross Alexander Hannon seeks review of a decision of a delegate of the Repatriation Commission (the respondent) dated 19 May 2008, as affirmed following a review under s 57 of the Veterans’ Entitlements Act 1986 (Cth) (the VEA) on 20 August 2008.

2.      The decision under review was that the applicant did not render qualifying service for the purposes of s 7A of the VEA and is therefore not eligible for a gold card under s 85(4A) of the VEA.  The applicant applied to this tribunal for a review of that decision on 16 September 2008.

3.      The term “gold card” is not a statutory one, but is defined under the Treatment Principles made under s 90 of the VEA as meaning an identification provided for a person who is eligible under the VEA for treatment, subject to those principles, for all injuries or diseases.

4.      The tribunal had previously determined that the applicant did not perform the necessary qualifying service in its decision of 2 December 1999 rendered by Rear Admiral A R Horton ao (Re Hannon and Repatriation Commission [1999] AATA 912).

5.      The respondent conceded that the applicant is a veteran within the meaning of s 5C of the VEA and that he meets the age criterion set out in s 85(4A)(a) of the VEA.  It is also not disputed that the applicant rendered service during the period of hostilities as defined in s 5B(1) of the VEA.

The hearing

6. At the hearing, the applicant appeared in person, while the respondent was represented by Mr Nigel Bunn, advocate instructed by Mr Robert Douglass of Department of Veterans’ Affairs. The documents before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and the applicant provided oral evidence in person.

Issues and applicable law

7.      The applicant claims qualifying service as a prerequisite for eligibility for a gold card.  Eligibility is established pursuant to s 85(4A) of the VEA, 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 (b) 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.

…

8.      Qualifying services is defined in s 7A of the VEA, which relevantly states:

…

(i)     …

(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 sub section 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)   rendered service after 29 October 1945 in respect of which the person has been awarded, or has become eligible to be awarded, the Naval General Service Medal or the General Service Medal (Army and Royal Air Force) with the Minesweeping 1945-51 Clasp, the Bomb-Mine Clearance 1945-53 Clasp, the Bomb and Mine Clearance 1945-49 Clasp or the Bomb and Mine Clearance 1945-56 Clasp; or

…

9.      Subsection 5B(1) defines the period of hostilities and relevantly states:

…

(1)     …

(b)World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included): or

…

Applicant’s evidence

10.     The applicant did not dispute the factual findings in the 1999 tribunal decision or the narrative by Mr Brendan G O'Keefe in his report dated 21 September 1999 (supplementary T documents).

11.     In oral evidence the applicant adopted his letters of 30 March 1999 and 26 June 2008 in which he pointed out that he had served overseas from 11 August 1945 to 29 October 1945.  His service outside Australia in a war zone had qualified him for a number of medals:

§The 1939–1945 Star;

§Australian Service Medal;

§Pacific Star;

§War Medal; and

§Australian Service Medal with PNG clasp.

12.     He believed that the War Medal and the Pacific Star were issued only to personnel who served a minimum of 30 days of active service in a theatre of war before the Japanese surrender on 29 October 1945.  While the 1939-1945 Star was not contingent upon any incurred danger provision, the applicant considered that to be splitting hairs.

13.     During his service from Sydney to Madang, the crew were on full alert at all times for enemy ships and mines.  While aboard HMAS Kiama after transfer at Madang, the crew were fully operational and on full alert.  During that time HMAS Kiama took the surrender of a demilitarised Japanese cruiser in Rabaul Harbour.  The applicant was unaware of what “demilitarised” meant in this context.  He believed the Japanese thought they were operational until HMAS Kiama took the surrender.

14.     At all times during his service at sea, the crew was on full alert and were particularly concerned about mines, which were still numerous well after the cessation of hostilities.

15.     During his service aboard HMAS Birchgrove Park, the captain certainly believed that they were in a serious war zone, and while he was in New Guinea, at Manus Island and aboard HMAS Kiama, they were also in a danger zone according to the officer in charge of those areas and ships.

16.     In oral evidence the applicant said he could not recall the captain of HMAS Birchgrove Park saying anything about enemy ships.  One gun was kept manned, however, although he could not recall what type of gun it was.  HMAS Kiama was a corvette and was fully armed.

17.     The applicant was not cross-examined.

Respondent’s submissions

18.     The respondent stated that its position was the same as at the first hearing in 1999, that the applicant was at the relevant time in no actual danger, as opposed to potential danger.  The law had been accurately and well stated in the earlier decision and the applicant’s evidence did not contradict Mr O'Keefe’s report or the tribunal’s earlier findings.

19.     The ships on which applicant served may well have been on full alert, but the applicant was not in any actual danger as that concept was defined by the Full Federal Court in Repatriation Commission v Thompson (1988) 44 FCR 20, at 23-24. There was no evidence of enemy activity, or of Japanese mines or rogue mines in the area. The Japanese had surrendered before HMAS Birchgrove Park sailed from Townsville for New Guinea. German mines laid along the Australian east coast near Norah Head in 1940 had by that time been well cleared.

20.     Mr Bunn stressed that the respondent did not seek to diminish the applicant’s service as rendered as a volunteer, but maintained that he had not rendered qualifying service as he had not been in actual danger.

Applicant’s submissions

21.     The applicant reiterated the contentions contained in his letters.  He added that someone must have thought there was a real risk, because they had not taken the surrender of the Japanese cruiser until November.  Rabaul Harbour had been swept for mines in September 1945, and they were there in October 1945, but the lack of danger was really a point of view.

Consideration

22.     As the applicant did not dispute the facts as found in the tribunal’s decision of 2 December 1999, I adopt those findings as set out in paragraphs 6 to 9 of that decision.

23.     The applicant enlisted in the Royal Australian Naval Reserve (RANR) on 1 February 1945.  Following his initial training, he was posted to HMAS Penguin for two months before being posted to join HMAS Madang at Madang in New Guinea.  There is no definitive record in his statement of war service as to how the applicant travelled to Madang, but the respondent accepts, and the tribunal agrees, that he took passage in HMAS Birchgrove Park.  That ship, a converted collier, sailed from Sydney for Townsville on 11 August 1945, departing thence for Madang on 19 August 1945.  Again, there is no definite record of the route then taken by HMAS Birchgrove Park, nor when the ship arrived at Madang.  Mr O'Keefe reported from his research that neither the ship's log nor the monthly report of proceedings has survived.  The respondent submitted that a reasonable date of arrival at Madang would be 26 August 1945, with which the applicant agreed, and which is the date of joining that depot as shown in the statement of war service.

24.     The applicant stated that he was not part of the crew, but merely taking passage, and hence he was not aware of the route taken, nor any specific precautions taken by the command nor any incidents that might have been relevant to enemy activities.  He assumed that the ship sailed along the Australian coast as far as Townsville.  He did recall that the ship was at sea when news of the Japanese surrender on 15 August 1945 was announced, that the ship sailed independently, that one gun was manned, and that he kept normal watches.  He also believed that the ship could have been in danger from mines during the passage.

25.     During his service at Madang, the applicant was employed on stores parties and sentry duties.  He saw no evidence of prisoners of war.  The Statement of War Service indicates that he remained at Madang until 3 October 1945, when he joined the minesweeper (or corvette) HMAS Kiama.  The applicant could not confirm that date, believing his service at Madang may have been somewhat shorter.  As HMAS Kiama arrived at Madang on 26 September 1945 and departed on 3 October, the tribunal is reasonably satisfied that the applicant joined during that period, and probably about 3 October.

26.     The applicant formed part of a gun crew in HMAS Kiama, conducting periodic practice shoots.  He stated that the ship was on full alert at all times.  He has no recollection of the ship undertaking any minesweeping duties, nor do the relevant monthly letters of proceedings indicate that any minesweeping tasks were undertaken.  The ship periodically visited Rabaul, and the applicant believed that he was present when his ship took the surrender of a Japanese cruiser in that harbour.  Mr O'Keefe suggested that the rendezvous between HMAS Kiama and the "Japanese de-militarised cruiser" Kashima off Wewak in late November may be the occasion recalled by the applicant, who agreed that was possible.

27.     In the ensuing months until his return to Australia for discharge in November 1946, the applicant served in depots at Madang and Manus Island, and in the boom defence vessel HMAS Koala.  While there is reference to HMA Ships Kalgoorlie and Bingera in the statement of service, the applicant stated that he had not served in either ship; the tribunal notes that the entry for HMAS Kalgoorlie, a minesweeper, was for a two-day period only, and that HMAS Bingera was a stores vessel.  There is no evidence before the tribunal that the applicant observed any incidents relevant to hostile acts, nor that his ship was engaged in minesweeping duties.

28.     The only issue in these proceedings is whether the applicant has met the requirements for the rendering of qualifying service within s 7A(1)(a)(i) of the VEA.  The relevant standard of proof laid down by s 120(4) of the VEA is that of reasonable satisfaction.

29.     The applicant has been awarded the four service medals listed above but has not been awarded the Naval General Service Medal, the General Service Medal or the Minesweeping or Bomb and Mine Clearance Clasps described in s 7A(1)(a)(ii) and there is no evidence to suggest he is eligible for any of them.

30.     At the hearing in the present application, the applicant did not advance any factual propositions additional to those raised in the earlier proceedings and indeed conceded that his earlier claim that his ship had taken the surrender of a Japanese battleship was incorrect, in the sense that the ship in question was a cruiser.  He explained, quite reasonably, that from the viewpoint of a seaman aboard a corvette, the imposing bulk of a cruiser could be mistaken for that of a battleship.

31.     The applicant also conceded that he could not recall the captain of HMAS Birchgrove Park saying anything about enemy ships operating anywhere near their intended track.

32.     Rather, the applicant's essential argument was that someone must have thought he was in an area of danger from Japanese operations because his ship was on full alert and did not take the surrender of the Kashima until November 1945.  The proposition that he had not “incurred danger from hostile forces” was really a point of view, he said.

33.     That amounts to an argument that the test under s 7A(1)(a)(ii) of the VEA for incurred danger is properly to be seen as subjective rather than objective.

34.     That is consistent with the applicant’s oral submission that he was not arguing that the law should be different, but that a different decision was preferable.

35.     The tribunal, however, is bound by the decision of the Full Court of Federal Court in Thompson in which that point is authoritatively settled.  Their Honours had this to say:

…

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 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 incurred must of course be more than a merely fanciful danger or a danger so minimal that a rule of de minimis applies.  But to say that is not to give a flavour to the word.  Rather it is to use it in its ordinary sense.

…

36.     The passage unambiguously establishes that the words “incurred danger” are to be applied in accordance with an objective test, not a subjective one.  The objective fact is that the Japanese surrendered before HMAS Birchgrove Park left Australian coastal waters and there was no evidence of Japanese air or naval activity in the area during the transit to Madang.  Mr O'Keefe’s report suggested that there were no unidentified enemy minefields on the likely route, that the German mines off Norah Head had been fully cleared and that the location of defensive minefields was well known and promulgated.  There was no indication of any incident or concern about danger from mines, nor were there any incidents that might have placed the applicant in actual danger during his service aboard HMA Ships Kiama or Koala.

37.     The applicant submitted that the captain of HMAS Birchgrove Park must have thought the ship was in some danger, as one gun was kept manned, and HMA Ships Kiama and Koala operated on full alert.  All crew members were concerned about mines.  He himself thought he had been exposed to danger up until the time his ship took the surrender of the Kashima in November 1945.

38.     One may well accept that such beliefs were held and also that on the information available at the time, they were quite reasonable.  But the Full Court has emphasised that the test is an objective one, and on the objective evidence available today there is no basis for concluding that the applicant incurred danger within the meaning of s 7A(1)(a)(ii) of the VEA.

39.     None of that is meant to diminish the applicant’s war service.  He volunteered for the navy at a time when Imperial Japan was still a formidable enemy.  Especially following the bitter struggle for Okinawa, the United States authorities reportedly expected 50 percent casualties in all arms from a land invasion of the Japanese home islands.  As a naval volunteer the applicant would presumably have been eligible to be sent to that theatre of operations.  But the course of the war spared him from that obligation.

40.     On all the evidence it is not possible for the tribunal to be reasonably satisfied that the applicant incurred danger from hostile forces of the enemy.  Consequently, he did not render qualifying service for the purposes of s 7A of the VEA and cannot be considered eligible for a gold card.

41.     The decision under review is affirmed.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:   ..................[sgd].........................................................
               Renee Wallace, Associate

Date/s of Hearing:                   13 March 2009
Date of Decision:  17 April 2009
Solicitor for the Applicant:      Self-represented
Solicitor for the Respondent:  Mr R Douglass, Department of Veterans’ Affairs
Counsel for the Respondent: Mr N Bunn