Kingsley and Repatriation Commission
[2000] AATA 376
•17 May 2000
DECISION AND REASONS FOR DECISION [2000] AATA 376
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V1999/1513
VETERANS' APPEALS DIVISION )
Re HENRY PAUL KINGSLEY
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr A. Argent, Member
Date17 May 2000
PlaceMelbourne
Decision The reviewable decision of the Repatriation Commission is set aside and in substitution the Tribunal determines the veteran rendered qualifying service.
............(Sgd) A. Argent..............
Member
CATCHWORDS
VETERANS' AFFAIRS – Gold Card – whether qualifying service – whether incurred danger from hostile forces
Veterans' Entitlements Act 1986 s. 7A
Repatriation Commission v Thompson (1988) 82 ALR 352
Crawford and Repatriation Commission (1987) 14 ALD 341
REASONS FOR DECISION
17 May 2000 Mr A. Argent, Member
Background
This is an appeal by Mr Henry Paul Kingsley ("the veteran") against a decision of a senior delegate of the Repatriation Commission ("the Commission") dated 3 December 1999.
That decision affirmed a previous decision of the Commission dated 15 December 1998 which determined the veteran had not rendered qualifying service during the period of hostilities of World War Two and thus was not entitled to a Gold Card.
The period of hostilities of World War Two is from 3 September 1939 to 29 October 1945.
Qualifying service is defined at section 7A of the Veterans' Entitlements Act 1986 ("the Act"). Part of this section reads:
"7A. (1) …, a person has rendered qualifying service:
(a) if the person has, as a member of the Defence Force:(i)rendered service, during a period of hostilities specified in paragraph (a) or (b) of the definition of 'period of hostilities' in subsection 5B (1), at sea, in the field or in the air in naval, military or aerial operations against the enemy in an area, or on an aircraft or ship of war, at a time when the person incurred danger from hostile forces of the enemy in that area or on that aircraft or ship; …"
Section 85(4A) of the Act specifies that a veteran is eligible to be provided with treatment, that is, entitled to a Gold Card, if the veteran is aged 70 or over and has rendered qualifying service during World War Two.
IssueThe issue before the Tribunal is whether the veteran rendered qualifying service during World War Two and specifically whether he "incurred danger from hostile forces of the enemy".
The EvidenceThe Tribunal had before it:
(a) The documents ("the T documents") lodged by the Commission pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Included in these documents is material supplied by the veteran concerning his World War Two service and excerpts from Toku Tai: Japanese Submarine Operations in Australian Waters by Lew Lind.The Tribunal also took in as evidence selected pages from:
(a)Australia in the War of 1939-1945 – Royal Australian Navy 1942-1945 by G. Herman Gill
(b)The Japanese Submarine Force and World War II by Carl Boyd and Akihiko Yoshida
(c) Battle Surface by David Jenkins
(d) War Beneath the Sea – Submarine Conflict 1939-45 by Peter Padfield
The veteran presented his own case and the Commission was represented by Mr R. Douglass, a Commission advocate.
The veteran was born on 31 July 1921 and was called up for military service on 16 March 1942 and posted to 3 Labour Company, later re-designated 3 Australian Employment Company. He did not serve outside of Australia and was discharged medically unfit on 13 April 1943.
On the evening of 31 May 1942 he said he was on leave in Sydney when he heard messages on commercial wireless for troops to report to their units. He reported to his unit at Mascot at about 2330 hours and, as a junior NCO, he was placed in charge of about 30 men and they were trucked to Woolloomooloo to unload ammunition from a ship.
The veteran said they arrived at the wharf about midnight and worked on board the ship and on the wharf unloading until 0600 hours next morning (1 June 1942). They then returned to their camp at Mascot.
He said that before his detachment left Mascot at about 2330 hours for the wharves they were told the port was under attack. During the unloading he heard gunfire but he had no knowledge of the form of the attack. They worked in darkness he said and added that he was very apprehensive during his six hours there.
The veteran stated he did not know the name of the ship but based upon subsequent information he thinks it was MV Wyangarie. (Documents show this was a small vessel of 1058 gross tonnage, 623 net tonnage, which entered Sydney Harbour at 2053 hours 31 May 1942.)
Mr A. P. Crow, a friend of the veteran and who has taken an interest in this case, said USS Chicago was relatively close to the vessel being unloaded by the veteran. He believes if Chicago had been hit by Japanese torpedoes the resulting shock-waves could have caused explosions on the ship being unloaded.
The documentary evidence is that three Japanese midget submarines, each with two torpedoes but no other offensive weapons, were released seven miles east of Sydney Heads late afternoon 31 May 1942. The first was caught in an anti-torpedo net just inside the Heads and was self-destructed by the crew at 2235 hours. It fired no torpedoes.
The next midget submarine was sighted by USS Chicago at 2250 hours which opened fire upon it. HMAS Geelong also fired upon it, later at 2310 hours. At 2325 hours, on orders the graving dock lights at Garden Island were extinguished. (Other accounts give the time as 0025 hours 1 June.) At 2330 hours the submarine fired two torpedoes at Chicago. Both missed but one torpedo hit a retaining wall and the blast sank the moored, former ferry Kuttabul, killing 19 RAN ratings and wounding ten. The other torpedo ran ashore at Garden Island and did not explode.
The third submarine was fired at, at 0350 hours 1 June 1942, about 1¼ miles north east from where the veteran was. This submarine did not launch its two torpedoes and made no hostile attacks at all. It was destroyed at 0500 hours 1 June 1942 by RAN depth charges more than two miles north east of where the veteran was.
FindingsThe standard of proof in this case is on the balance of probabilities; that is, on the balance of probabilities did the veteran incur danger from the hostile forces of the enemy on the night 31 May/1 June 1942 when Japanese midget submarines entered Sydney Harbour?
"Incurred danger" is defined by the Full Court of the Federal Court in Repatriation Commission v Thompson (1988) 82 ALR 352. Their Honours said:
"The words 'incurred danger' provide an objective, not a subjective, test. A serviceman incurs danger, when he encounters danger, is in danger or is endangered. He incurs danger from hostile forces when he is at risk or in peril of harm from hostile forces. A serviceman does not incur danger by merely perceiving or fearing that he may be in danger. The words 'incurred danger' do not encompass a situation where there is a mere liability to danger, that is to say, that there is a mere risk of danger. Danger is not incurred unless the serviceman is exposed, at risk of, or in peril of harm or injury."
The only hostile weapons carried by the midget submarines were two torpedoes each. They carried no guns. Perhaps their only other danger to Allied shipping in Sydney Harbour was ramming.
The first submarine self-destructed at 2235 hours and its activities have no bearing on this case as the veteran did not arrive at the Woolloomooloo wharf until about midnight, about 90 minutes later and the submarine was about four miles from Woolloomooloo.
The third submarine did not fire its torpedoes and made no hostile attacks on Allied shipping. It was fired upon by Allied forces at 0350 hours 1 June 1942, about 1¼ miles from where the veteran was and destroyed by depth charges, more than two miles from where the veteran was at 0500 hours 1 June 1942. The Tribunal finds the veteran did not incur danger from this submarine.
This only leaves consideration of the second enemy submarine that entered the Harbour. This was the only submarine to take hostile action when it launched two torpedoes at about 2330 hours. As mentioned, one torpedo ran harmlessly on to Garden Island. Therefore, it is from the other torpedo which exploded under Kuttabul that may have posed danger to the veteran. (This submarine made no further hostile action against Allied forces that night and its fate is unknown to this day.)
The Tribunal took note of the following:
(a)The passage of time. The event under review took place 58 years ago and the veteran may well have erred in his recall of timings and the location of the ship which was unloaded. He may have been at the wharves when the torpedo that sank Kuttabul was fired. One of the explosions he mentioned may have been this one.
(b)In the Official History, Australia in the War of 1939-1945 - Royal Australian Navy 1942-1945, the author writes of the Japanese submarine raid:
"In the sorting out of events of this night of alarms and incursions, 'considerable difficulty was experienced in making out of any chronological plot. A great many ships and boats and therefore, people were concerned in these operations, and all were so busy that they had no thought for recording actual time of incidents'. "
(c)There is some debate about the timings given in the Official History. In Battle Surface the author states the Official History used Tokyo time. (Tokyo time is Greenwich plus 9, Sydney is Greenwich plus 10). If this observation is correct throughout the narrative in the Official History, then one hour should be added to all the timings given. This means the veteran may have been at the wharves when the torpedo which sank Kuttabul exploded.
(d)It is not known exactly where the ship unloaded by the veteran's detachment was berthed. For example, a northern berth at Woolloomooloo would put the veteran at about ½ mile (800 m) from Kuttabul; a southern berth, as indicated by the veteran, would put his about ¾ mile (1200 m) away.
(e)The case of Crawford and Repatriation Commission (1987) 14 ALD 341 was cited. Mr Crawford, a very young soldier with only a few days of military service, was unloading ammunition from a United States ship at the wharves on the night of 31 May/1 June 1942. The Tribunal accepted he was about 300 yards from the Kuttabul and incurred danger from the exploding torpedo. There is obviously a parallel between this case and the one under review.
In view of these point, the Tribunal finds, on the balance of probabilities, the veteran incurred danger from the hostile forces of the enemy during the Japanese midget submarine raid, in Sydney Harbour, on the night of 31 May/1 June 1942.
DecisionThe Tribunal sets aside the decision under review and decides the veteran rendered qualifying service and is therefore eligible to be provided with treatment, that is, entitled to a Gold Card.
I certify that the twenty-seven (27) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr A. Argent, Member
Signed: .....................................................................................
Personal AssistantDate/s of Hearing 13 April 2000
Date of Decision 17 May 2000
Solicitor for the Applicant Suzanne Chapman
Solicitor for the Respondent Mr R. Douglass, Departmental advocate
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