Hanrahan and Repatriation Commission

[2008] AATA 369

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 369

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2006/244

VETERANS' AFFAIRS  DIVISION		)
Re		PETER HANRAHAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr S. Webb, Member
Dr P. Wilkins, Member

Date7 May 2008

PlaceCanberra

Decision The Tribunal affirms that part of the Veterans' Review Board decision concerning operational service: Mr Hanrahan rendered operational service from 29 September 1970 to 3 October 1970.

.............signed................................

Mr S. Webb, Presiding Member

CATCHWORDS

VETERANS' ENTITLEMENTS - operational service - Vietnam - supernumerary flight crew on flights from Australia - Veteran's memory imprecise - absence of official records - evidence concerning dates of departure and return of single flight - no probative evidence concerning other alleged flights - operational service decision affirmed

Veterans' Entitlements Act 1986 ss 5B, 6C, 119, 120

Briginshaw v Briginshaw (1938) 60 CLR 336

Repatriation Commission v Smith (1987) 74 ALR 537

Bater v Bater [1950] 2 All ER 458

Jakab v Repatriation Commission [2007] FCA 898

Mason v Repatriation Commission 10 October 2000 [2000] FCA 1409

Repatriation Commission v Bey (1997) 79 FCR 364

Fenner v Repatriation Commission 2 February 2005 [2005] FCA 27

REASONS FOR DECISION

7 May 2008 Mr S. Webb, Member
Dr P. Wilkins, Member       

1.      Peter Hanrahan served in the Royal Australian Air Force from 20 July 1966 to 19 July 1972.  He was mustered as a General Hand and was posted to the Richmond Air Force Base.  He was allotted duty as supernumerary flight crew on a flight to Vietnam.  Mr Hanrahan asserts that he was allotted such duty on more than one occasion.  In the period from 13 November 2002 to 10 September 2004, Mr Hanrahan lodged three claims for disability pension in relation to various conditions.[1]  Those claims were rejected by the Repatriation Commission[2] and the Veterans’ Review Board,[3] and related proceedings are presently on foot in this Tribunal.

[1] T4, T10 and T22.

[2] T2.

[3] T27.

2.      The purpose of the present hearing is to determine the period of Mr Hanrahan’s operational service.  The substantive matters of his claims will be dealt with in due course.

3.      Mr Hanrahan asserts that he was posted to 37 Squadron from 17 October 1966 to 18 July 1972[4]  and he was allotted duty as supernumerary flight crew on six flights in C130E Hercules aircraft to bases in Vietnam.  He gave evidence about the duration of such flights and the flight paths taken and described his duties and recollections of what occurred.[5]  He also gave evidence about personnel on such flights.[6]  Mr Hanrahan described his recollection of the administrative arrangements relating to such flights, especially in relation to his passport and ‘needle book’.  In Mr Hanrahan’s submission, the dates of each flight are recorded on a loose sheet in his passport.[7]  He says that these dates were verified by the Department of Defence[8]  and he was awarded the Australian Active Service Medal 1945-1975 with Clasp Vietnam and the Vietnam Logistic and Support Medal.[9]  Furthermore, Mr Hanrahan relies on statements by Mr Henry Dowse.[10]  Mr Dowse’s evidence is that he remembers Mr Hanrahan “carrying out these duties [supernumerary flight crew on flights to Vietnam] on a number of occasions”[11] and “being with me in Vietnam on more than one occasion”.[12]

[4] Exhibit A4.

[5] Exhibit A3, paragraph 5.

[6] Exhibit A3, paragraphs 8 and 9.

[7] Exhibit A2.

[8] T18 folio 129; Exhibit A7.

[9] Exhibit A6.

[10] Exhibit A8.

[11] Exhibit A8, 5 September 2007 statement, paragraph 2.

[12] Exhibit A8, undated statement, paragraph 2.

4. Mr Hanrahan contends that he should not be disentitled because of the absence of official records. In his submission, the flight manifests that would record all flight crew on any such flights have not been retained and documents that have been retained, such as Personnel Occurrence Records (“POR”) and Unit History Sheets, do not reliably record details of all flight crew on flights to Vietnam. He relies on a letter by Mrs Janet Beck, RAAF Historical records,[13] and a statement by Mr Bryan Harris[14]  on this point.  Mr Hanrahan says that it is not surprising therefore that Mr Brendan O’Keefe, a historical researcher engaged by the Commission, found only one reference to Mr Hanrahan as flight crew on a flight to Vietnam.  Mr Hanrahan submits that Mr O’Keefe’s research confirms the existence of a flight departing to Vietnam on 13 January 1968,[15] which he says is consistent with his passport records and is sufficient to establish that he was allotted duty on that flight even though his name does not appear in the POR covering this period.[16]  In Mr Hanrahan’s submission, the PORs are not reliable or conclusive evidence concerning supernumerary flight crew allotted duties on flights to Vietnam.  He says that Mr O’Keefe’s supplementary report obtained by order of the Tribunal after the hearing and dated 14 February 2008 indicates that the POR documents do not appear to record allowances that supernumerary flight crew would have been entitled to receive on flights to Vietnam.  This, Mr Hanrahan asserts, supports the proposition that the documents should not be relied upon in the manner or to the extent contended for by the Commission.

[13] Exhibit A1.

[14] Exhibit A5, paragraph 7.

[15] Exhibit R2, p1.

[16] POR No. 4/68, Exhibit R2, p5.

5.      Thus, in sum, Mr Hanrahan’s submission is that he undertook six flights to Vietnam during the period of his posting to 37 Squadron.  He says that the dates of those flights are “16 December 1968, 28 September 1970, 30 October, 25 March, 13 January and 6 October, however the years are not recorded”[17] and each flight lasted “approximately four to six days”.[18]  Mr Hanrahan submits that each of the six flights constitutes operational service.

[17] Exhibit A3, paragraph 7; Applicant’s Statement of Facts and Contentions, 15 October 2007, paragraph 19.

[18] Exhibit A3, paragraph 5.

6.      As will appear, Mr Hanrahan’s submission is not made out.

7.      The period of Mr Hanrahan’s operational service is to be determined under relevant sections of the Veterans’ Entitlements Act 1986.  Specifically, if he (or his Unit) was allotted for duty and rendered continuous full time service in an operational area, that service is taken to be operational service (subs 6C(1)).  The terms ‘allotted for duty’ and ‘operational area’ are defined (subs 5B(1)).  As can be seen, ‘operational area’ includes Vietnam Southern Zone from 31 July 1962 to 11 January 1973 (Schedule 2, item 4).  The standard of proof that applies to the determination of a veteran’s period of operational service is the reasonable satisfaction standard (subs 120(4)).

8.      Thus, in order to succeed, Mr Hanrahan’s case must be made out to the reasonable satisfaction civil standard on the balance of probabilities.  Reasonable satisfaction should not result from indefinite evidence or indirect inferences (see Briginshaw v Briginshaw (1938)[19]).  Mere possibility or conjecture alone is not sufficient.  That is so even if the possibility is real rather than fanciful.  Beaumont J discussed the meaning of the term “reasonable satisfaction” in  Repatriation Commission v Smith (1987)[20] and said:

“There is, in this connection, a distinction of substance to be drawn between probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other.”[21]

Nevertheless, as Lord Denning observed in Bater v Bater [1950][22]: “in civil cases, the case may be proved by a preponderance of probability, but there may be degrees of probability within that standard”.[23] In Cross on Evidence[24], it is said:

“Where satisfaction of the civil standard of proof depends on inference, there must be something more than mere conjecture, guesswork, or surmise. That is, there must be more than ‘conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture’. If there is, the test is as follows: ‘The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged.”[25]

[19] 60 CLR 336, at 362-363.

[20] 74 ALR 537.

[21] Ibid, at 547.

[22] 2 All ER 458.

[23] Ibid, at 459.

[24] 7^th Australian edition, 2004.

[25] Ibid, at [9055].

9.      This is an unfortunate case.  On the one hand, there is Mr Hanrahan’s evidence and his imprecise recollections of being allotted for duty on more than one flight to Vietnam as supernumerary flight crew.  On the other hand, there are the specific temporal aspects of subs 6C(3) that are required in order to determine the period of relevant service in an operational area.  The period commences on ‘the day on which the member left the last port of call in Australia for that service’ and ends, for example, on ‘the day on which the member arrived at the first port of call in Australia on returning from operational service’.  The requirement to determine specific periods of operational service is plain enough.  The Act differentiates between different types of service and a veteran’s entitlement to pension and other benefits are to be determined in relation to the particular kind of service.  Furthermore, determining whether or not a claimed condition or injury is war-caused may involve specific temporal considerations in relation to the period of operational service.  For example, it may be necessary to determine whether or not a particular event occurred during the period of operational service, or it may be necessary to determine whether or not an event occurred within a certain period before or after the period of operational service, and so forth.  Thus it can be seen that precision is required in the determination of operational service with regard to the commencement and completion of such service.

10.     It follows that in order to properly determine the period or periods of a veteran’s operational service, there must be probative evidence on which to make such specific findings or, at least, there must be evidence that is sufficient to permit appropriately detailed and specific inferences to be drawn.  Unfortunately for Mr Hanrahan, with the exception of the period from 29 September 1970 to 3 October 1970, this is not such a case.

11.      Mr Hanrahan’s evidence and his recollections are supported by the equally imprecise testimony of Mr Dowse.  However, even if we accept that Mr Hanrahan was allotted duty as supernumerary flight crew on more than one flight to Vietnam, and it is a real possibility that he was, it does not assist his case.  The dates of those flights must be established on the balance of probabilities.  As we have said, mere possibility or conjecture is not sufficient. 

12.     We note Mr Hanrahan’s submissions concerning the beneficial nature of the Act and s 119.  That section requires us to act according to substantial justice and the substantial merits of the case without being bound by any rules of evidence or legal technicalities.  It is correct that we must take into account the difficulties that lie in the way of ascertaining the dates of the flights Mr Hanrahan recalls, especially in relation to the effect of the passage of time on the availability of witnesses and the absence of or deficiency in official records.  However, it is equally clear that paragraph 119(1)(h) has a procedural character.  The settled authorities are clear enough: the beneficial nature of the Act and s 119 cannot be used to plug evidentiary gaps in a veteran’s case (Jakab v Repatriation Commission [2007][26] and Mason v Repatriation Commission [2000][27], referring to Repatriation Commission v Bey (1997)[28]).  While inferences arising from the evidence cannot be ignored, subsection 119(1) does not lower the standard of proof imposed by subs 120(4), nor does it remove our responsibility to properly apply the terms of subs 6C(3) (Fenner v Repatriation Commission [2005][29].)

[26] FCA 898, at [36].

[27] FCA 1409, at [75].

[28] 79 FCR, 364 at 373-4.

[29] FCA 27, at [29].

13.     The evidence to which we have been taken, especially that on which Mr Hanrahan relies, does not persuade our minds to the requisite degree of satisfaction of the dates of any flight on which he may have served other than the flight which departed on 29 September 1970 and returned on 3 October 1970. We are reasonably satisfied that that flight constitutes a period of operational service and so find.

14.     However, with regard to other alleged flights, the document accompanying Mr Hanrahan’s passport in Exhibit A2 is imprecise in five of the six dates it records, those being recorded with no year.  The document appears to indicate that Mr Hanrahan signed his passport out of the Squadron Headquarters Orderly Room on 16 December in an unknown year and on 28 September 1970, and that his passport was signed into the HQ Orderly Room on 3 October, 25 March, 13 January, and 6 October in unknown years.  These records are perplexing and difficult to interpret.  Nevertheless, it is safe to say that, alone, the document raises a number of possibilities that do not meet the applicable standard of proof, however tantalising or real those possibilities may appear. 

15.     As we understand Mr Hanrahan’s statement, he asserts that the record of him signing out his passport on 16 December is a reference to 16 December 1968.  However, the basis of that assertion is not clear to us.  Mr Hanrahan states that the date is “listed in my passport”.[30]  However, plainly enough it is not. All that is recorded in the accompanying document is “16 December”.  There is the Department of Defence document which purports to specify dates on which Mr Hanrahan “flew into South Vietnam”.[31]  Four of those dates do not include a year, “30 October, 25 March, 13 January, 6 October”.[32]  The remaining two dates are 16 December 1968 and 29 September 1970.  However, the document is of unknown origin and it is not signed or dated, and appears to be incomplete.  We are not satisfied that the document is reliable evidence of what it purports to state.  Furthermore, the 16 December 1968 reference does not accord with Mr O’Keefe’s historical research of 37 Squadron Operations Record Book and Unit History Sheets: he found no records of flights leaving Richmond Air Force Base for Vietnam on that day.[33] 

[30] Exhibit A3, paragraph 7.

[31] T18 folio 129; Exhibit A7.

[32] Exhibit A2.

[33] Exhibit R1, p4.

16.     In the face of those findings, as we understand Mr Hanrahan’s submissions in the alternative, the record may refer to 16 December 1967 or 16 December 1969, on which dates Mr O’Keefe found that flights departed from Richmond Air Force Base for Vietnam.  It is possible that Mr Hanrahan was supernumerary flight crew on one of these flights.  However, on the basis of Mr O’Keefe’s report it appears that a restriction was placed on Mr Hanrahan being posted to Vietnam in the period from 28 September 1967 to 3 May 1968.  Thus it appears unlikely than he would have been allotted duty as supernumerary flight crew on a flight to Vietnam on 18 December 1967.  With regard to the flight on 18 December 1969, Mr O’Keefe reports that Squadron Leader R. M. Greenwood was in command of that flight.  Mr Hanrahan did not refer to Squadron Leader Greenwood as one of the pilots he flew to Vietnam with in his Statement.[34]  Nevertheless, the possibility that Mr Hanrahan was supernumerary flight crew on that flight on 18 December 1969 lies open.

[34] Exhibit A3, paragraph 8.

17.     Mr O’Keefe gave evidence that Mr Hanrahan “would have been eligible for special pay and other entitlements” for flying into Vietnam and, on that basis, any such flight “should have been recorded in the PORs”.[35]  We accept the evidence of Mr O’Keefe and Mrs Beck that the only such record concerning Mr Hanrahan concerns the flight departing Richmond Air Force Base on 29 September 1970 and returning on 3 October 1970.  The evidence of Mr Harris supports the finding that Mr Hanrahan was on that flight.  It is also consistent with the 29 September 1970 entry in the passport records document at Exhibit A2.

[35] Exhibit R1, p5.

18.     Unfortunately for Mr Hanrahan, despite further questions being put to the Commission by the Tribunal and related investigations being undertaken after the hearing, no such corroborating evidence in relation to any other possible date on which Mr Hanrahan suggests he flew to Vietnam has emerged.  We have carefully considered the documents to which we have been taken and have not found therein sufficient material pointing to other dates on which any such flights occurred.  That is not to say that Mr Hanrahan did not undertake duties as supernumerary flight crew on other flights to Vietnam, it is a real possibility that he did.  However, we are unable to identify dates on which any such flights occurred and we are not, therefore, able to make findings to the reasonable satisfaction standard in Mr Hanrahan’s favour on this point.

19.     We are not persuaded that the PORs are comprehensive or reliable records concerning Squadron 37 supernumerary flight crew on flights to Vietnam during the period of Mr Hanrahan’s service.  However, the deficiency in those documents does not assist us to determine whether and if so when Mr Hanrahan was allotted duty on flights to Vietnam and, relevantly, the dates on which he departed and returned.  The evidence concerning Flight Authorization Books for 37 Squadron takes the matter no further.[36]

[36] Exhibits R3 and R4 refer.

20.     This is not a case in which we must decide between conflicting inferences of equal probability.  The inference that lies open is that Mr Hanrahan undertook more than one flight to Vietnam as supernumerary flight crew.  The date or dates of any such additional flights is a matter of possibility and conjecture.  The various possibilities canvassed in submissions for Mr Hanrahan cannot reasonably be inferred from the evidence we have seen.  Choosing between the possible dates contended for by Mr Hanrahan is a matter of guesswork.  As much as we may be sympathetic to Mr Hanrahan in the circumstances, and even if we accept that he was allotted for duty on more than one flight to Vietnam during the period of his service, to proceed on the basis of inferences that are not properly open on the evidence would be to proceed in error.

21.     Unfortunately, referring to the beneficial nature of the Act and subs 119(1), especially paragraph 119(1)(h), does not advance the matter and is of no assistance.  That subsection does not permit us to simply ignore the specific requirements of subs 6C(3).  Nor does it permit us to determine a period of operational service on the basis of one or more of the possible dates to which reference has been made in the absence of sufficient evidence to achieve the requisite standard of proof pursuant to subs 120(4). 

22.     In fairness to Mr Hanrahan, and with an eye to the substantial justice of his case, we put additional questions to the Commission during the hearing and required further investigative work to be undertaken.  That additional work did not take the matter further.  Even though we are concerned to note that the particularity of the additional matters raised with the Commission do not appear to have been fully dealt with in the material that has been filed, having carefully considered that material and the related submissions from both parties, we see no reasonable prospect of obtaining further relevant evidence by requiring further investigations to be undertaken.  It is not the role of this Tribunal to undertake investigative work to support the case of one party appearing before it.  The Tribunal’s role is to make the correct or preferable decision on the material that is before it.  We have taken the matter further, applying subs 119(1)(f), but no additional salient evidence has come to light.  To proceed further will result in additional delay and may be an exercise in futility.  Thus, delaying the substantive proceedings cannot be justified on that basis. 

23.     In conclusion, the only period in which we are reasonably satisfied that Mr Hanrahan rendered operational service is the period from 29 September 1970 to 3 October 1970.  That period was accepted by the Commission and affirmed by the Veterans’ Review Board.  It follows that that aspect of the Review Board’s decision, being the only matter agitated before us, will be affirmed.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member and Dr P. Wilkins, Member

Signed:       ............................................................................
  Jane Gribble
  Associate

Date of Hearing  28-29 February 2008
Date of Decision  7 May 2008
Counsel for the Applicant             Michael Perry
Solicitor for the Applicant             Rhiannon Wheeler
  KCI Lawyers
Counsel for the Respondent        Gerard Purcell
Solicitor for the Respondent        Rosalinda Casamento
  Department of Veterans’ Affairs