Harvey and Repatriation Commission
[2001] AATA 953
•20 November 2001
DECISION AND REASONS FOR DECISION [2001] AATA 953
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/320
VETERANS' APPEALS DIVISION )
Re JOHN ROBERT HARVEY
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr I R Way, Member
Date20 November 2001
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
(Signed)
I R Way
Member
CATCHWORDS
VETERANS' AFFAIRS – qualifying service – whether incurred danger from hostile forces of the enemy
Veterans' Entitlements Act 1986 – ss 7A, 119, 120,
Willcocks v Repatriation Commission (1992) 28 ALD 646
Repatriation Commission v Thompson (1988) 82 ALR 352
Thompson v Repatriation Commission (1988) 80 ALR 271
Marsh v Repatriation Commission (1987) 71 ALR 281
Marsh v Repatriation Commission (No 2) (1988) 82 ALR 341
Re Zeeno and Repatriation Commission (1988) 14 ALD 616
Maller and Repatriation Commission (AAT 8280, 16 September 1992)
Noble and Repatriation Commission (AAT 4122, 4 February 1988)
REASONS FOR DECISION
20 November 2001 Mr I R Way, Member
This is an application by John Robert Harvey for review of a decision of the Repatriation Commission dated 10 February 2000 which affirmed a decision of a delegate of the Commission dated 2 September 1999 that the veteran does not have qualifying service as defined in s 7A of the Veterans' Entitlements Act 1986 (the Act).
At the hearing the Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6). The following documents were received into evidence for the applicant:
Statement by the applicant dated 30 September 2000 – Exhibit A1;
Medical examination report prior to discharge dated 11 February 1946 – Exhibit A2.
It became apparent at the hearing, on submission from counsel for the applicant, that there were serious discrepancies between the applicant's recollection of his service details and the service records in the T documents, principally with respect to the units in which the applicant had served and the locations in which he had served.
In view of this, the Tribunal directed that the applicant's service evidence should be taken orally, but that further consideration should be stood over until the respondent had had an opportunity to further examine and discuss with counsel for the applicant the applicant's details of service.
ISSUES
The principal issue in this matter is whether or not the applicant rendered qualifying service as defined in s 7A of the Act, and in particular whether the applicant incurred danger from hostile forces of the enemy.
LEGISLATIVE FRAMEWORKSection 7A(1)(a)(i) of the Act provides as follows:
"(1)For the purposes of Part III and sections 85 and 118V, 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;"
Pursuant to s 120(4) of the Act, the Tribunal is to determine this matter to its reasonable satisfaction, or in other words on the balance of probabilities.
The Tribunal is also mindful that s 119 of the Act provides as follows:
"Commission not bound by technicalities
(1) In considering, hearing or determining, and in making a decision in relation to:
(a) a claim or application;
(b)a review, under division 16 of Part IIIB, of a decision of the Commission with respect to a pension or qualifying service;
the Commission:
(c)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(d)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(e)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.
(2)In subsection (1):
…
claim means:
(a)a claim for a pension under Part II or IV; or
(b)a claim for service pension or other benefit under Part III; or
(c)a claim for a qualifying service determination under Part III; or
(d)a claim for income support supplement under Part IIIA; or
(e)a claim for a pension bonus under Part IIIAB."
APPLICANT'S EVIDENCE
Mr Harvey was born on 22 September 1924 and enlisted in the Royal Australian Airforce on 21 April 1943. He was discharged on 26 February 1946. He did not serve outside Australia. The applicant's mustering was as a cook's assistant for the entire period of his service.
10.In his written statement (Exhibit A1) the applicant stated that he had travelled by ship from Cairns to Darwin during his service. He said:
"3.I am unable to remember the name of the ship, I remember there were a heap of soldiers on board and that many of these were dropped off at Thursday Island.
4.I am unable to remember any other service members that were on the boat with me because it is so long ago. In reality I did not have that much contact with the other guys in the squadron in any case.
5.I remember it being a pretty old boat and that initially I was placed right down in the stern where all you could hear was the propeller going. As a result I tended to spend most of my time up on deck and away from the noise.
6.I remember that we had a destroyer escort which was zig zagging in front of us. I also remember that planes would fly over reasonably frequently.
7.I remember that we used to have to have all our lights out at night and there was practice gunnery during the day as well as being a watch on during the night as well.
8.I also specifically remember the captain going right off at one stage about people making too much noise.
9.It is my belief at the time that there was at least a strong possibility of enemy in the area. There wouldn't be a destroyer in front of us for nothing.
10.It was a very old boat, I would have hated to have been aboard it if it had been torpedoed, and the circumstances of the voyage suggested that this was a possibility at the time."
11.In the applicant's claim for qualifying service (T4/8) he did not answer question 15, namely "did you experience danger from hostile enemy forces including within Australia at a time when you were on operations against the enemy?"
12.The Tribunal notes that the applicant's service records in the T documents show that at the time he undertook the sea voyage from Cairns to Darwin the applicant was posted to No 20 Squadron RAAF. In his oral evidence the applicant said he had never been posted to No 20 Squadron, but he thought at the time he had been posted to either No 11 or No 12 Squadron. The Tribunal also notes the service records show that the applicant has served in Lowood which he denied and that while he maintained he served in Kingaroy, (as corroborated by Exhibit A2) such service is not shown in his service record.
13.In his oral evidence the applicant was pressed to give further details of the ship on which he travelled from Cairns to Darwin. He was unable to provide any further relevant detail to what he had put in his written statement, other than a recollection of rough seas, being on watch one night, the ship being a merchant vessel (tramp steamer) and that he had a pleasant time laying in the sun when he was on deck. The applicant told the Tribunal that his memory was not good and that he had difficulty in recalling details of his service which would be relevant to the matter before the Tribunal.
SUBMISSIONS
14.At this stage of the proceedings the matter was adjourned so that further checks of the applicant's service history could be undertaken. Subsequently, both parties agreed and the Tribunal accepted that the record as contained in the T documents is substantially correct, and that written submissions should be made by both parties.
15.Counsel for the applicant submitted that the applicant is entitled to a service pension as he satisfies the criteria relating to "incurring danger", as a result of the fact that during a transfer from Cairns to Darwin, the applicant undertook an ocean voyage during which he was in danger of enemy attack. It was submitted that this ocean voyage was escorted by a destroyer and that safety precautions were taken on board the ship which indicated that enemy activity was likely to be present nearby.
16.Counsel for the applicant referred the Tribunal to a number of cases in support of the applicant's contention, and these are listed below.
17.It was submitted for the respondent, that to have qualifying service pursuant to s 7A(1)(a)(i) of the Act, the applicant must satisfy four criteria. The respondent conceded that the applicant satisfies the first two criteria, namely that he was a member of the defence force and he did serve in a period of hostilities as defined in sub-section 5B(1) of the Act. The respondent submitted however that the applicant is not entitled to a service pension as he does not meet the other two criteria in that he did not undertake at sea, in the field or in the air in naval, military or aerial operations against the enemy; and he did not incur danger from hostile forces of the enemy.
18.With respect to consideration of this matter the respondent referred the Tribunal to Willcocks v Repatriation Commission (1992) 28 ALD 646, and Repatriation Commission v Thompson (1988) 82 ALR 352.
CONSIDERATION
19.There is no dispute between the parties and the Tribunal accepts that the veteran did not serve outside Australia; that he served in three bases in Australia, namely Townsville, Cairns and Darwin; that he undertook a sea voyage between Cairns and Darwin during his service; and that he served in the Northern Territory, north of parallel 14.5º south latitude between 13 September 1944 and 2 November 1944. The respondent concedes, and the Tribunal finds, that the applicant was a member of the defence force as defined in sub-section 5C of the Act, and that the did serve in period of hostilities as defined in sub-section 5(B)(1) of the Act.
20.The Tribunal notes that the applicant, on his own evidence, has a poor memory and has difficulty in recalling details of his service. Within this context, the Tribunal accepts the applicant's evidence with respect to the circumstances of his sea voyage between Cairns and Darwin.
21.Turning then to the principal issue in this matter, namely, whether the applicant incurred danger from hostile forces of the enemy. In Repatriation Commission v Thompson the Federal Court said at 355:
"In approaching the statutory provision, it is necessary to keep in mind that the words used are words of ordinary parlance and are used in their ordinary sense. No word in s 36(a)(i) is ambiguous, no ambiguity arises from the order in which the words are used and no ambiguity arises from the context in which the provision is found. The words require no juristic extrapolation. They mean what they say, no more and no less and they should be so read."
The Court went on to say at 356:
"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, that there is a mere risk of danger. Danger is not incurred unless the serviceman is exposed, at risk or in peril of harm or injury."
The Court also said at 357 (referring to the earlier decision in ThompsonvRepatriation Commission (1988) 80 ALR at 278):
"However, the trial Judge appears to have relied upon an incorrect extract from the Macquarie dictionary's definition of 'danger', which extract contained two misprints. It seems likely that the misprints led his Honour to adopt the words 'liability to danger'. We have already stated the liability to danger in the sense of a risk of danger is not sufficient. The statutory provision requires that danger be incurred."
22.The words "incurred danger" therefore provide an objective, not a subjective test. The respondent contends that while there was a possibility of danger on a journey from Cairns to Darwin, and while appropriate precautions were made for this, the applicant did not incur danger as interpreted by the Full Court in Thompson v Repatriation Commission.
23.The Tribunal has carefully considered the authorities referred to by Counsel for the applicant (Thompson v Repatriation Commission, Marsh v Repatriation Commission (1987) 71 ALR 281, Marsh v Repatriation Commission(No 2) (1988) 82 ALR 341, Re Zeeno and Repatriation Commission (1988) 14 ALD 616, Maller and Repatriation Commission (AAT 8280, 16 September 1992) and Noble and Repatriation Commission (AAT 4122, 4 February 1988)). The Tribunal notes that each case must be considered on its merits, that the circumstances of each case will vary, and the outcome of each case will be determined by an objective assessment of whether or not the veteran incurred danger, as interpreted by the Federal Court.
24.On the material before it, the Tribunal is not satisfied that the veteran was at any time during his service at actual risk of physical or mental harm as a direct result of the activities of hostile forces of the enemy. The Tribunal therefore accepts the submissions made by the respondent, and finds that the applicant does not satisfy the criteria relating to "incurring danger".
25.For the sake of completeness, the Tribunal has also considered whether or not the Applicant rendered service at sea, in the field or in the air, in naval, military or aerial operations against the enemy.
26.In Willcocks, Cooper J said at 652:
"In consequence it is not a correct approach to widen the category of service under section 36 (1)(a)(i) to include activities reasonably incidental to military operations as themselves being military operations. Whether or not an activity falls within the section will depend upon determining in a practical way whether or not the conduct or the activity was an integral part of naval, military or aerial operations against the enemy.
The phrase 'naval, military or 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 s 36 (1) of the Veterans' Entitlements Act 1986.
Having regard to the concession by Counsel for the Respondent that the applicant had as a member of the defence force, rendered service during a specific period of hostilities in the field in military operations, it is only necessary to address the question what is the ordinary unambiguous meaning of 'against' in the context of the phrase 'military...operations against the enemy'.
….in my view the word 'in the phrase military operations against the enemy' is used in the sense of 'in hostility or active opposition to'. This is a common meaning and general usage of the word 'against' in such a context. The section requires service, inter alia, in military operations against the enemy in the sense of operations in hostility or opposition to the enemy.….The Full Court decision in Ahrenfeld does not support the Applicant's contention that mere 'contact' with the enemy is sufficient. In that case, it was held that the expression 'actual combat against the enemy' would include conduct which answered the description integral participation in an activity directly intended for an encounter with the enemy, whether offensive or defensive in character. In my view the phrase 'an encounter with the enemy' does not mean mere contact with the enemy. It refers to 'a hostile offensive or defensive encounter or exchange with the enemy'."
27.The Tribunal, after consideration of all of the material before it, is satisfied that the applicant's entire service only included activities which were reasonably incidental to aerial operations, that is assistant cook. This activity did not involve any hostile offensive or defensive exchange with the enemy that would comply with the commonly understood meaning of this provision, that is "naval, military or aerial operations against the enemy". In particular, by the applicant's own evidence such activity did not occur on the voyage from Cairns to Darwin.
It follows that the Tribunal affirms the decision under review.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way (Member)
Signed: .....................................................................................
Associate
Date of Hearing 27 July 2001
Date of Decision 20 November 2001
Counsel for the Applicant Mr D O'Gorman
Solicitor for the Applicant Gilshenan & Luton
For the Respondent Mr R Morison, Departmental Advocate
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