Langley and Repatriation Commission
[2004] AATA 983
•21 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 983
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V03/1015
VETERANS' APPEALS DIVISION ) Re JOHN LANGLEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date21 September 2004
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (Sgd) J Handley
Senior Member
VETERANS’ ENTITLEMENTS – Application for Gold Card – whether veteran rendered qualifying service – service in Northern Territory commenced 12 months after last Japanese bombing – whether incurred danger from hostile forces of the enemy – objective test – decision affirmed
Veterans’ Entitlements Act 1986 (Cth) s5B, s7A and s85(4A)
Re McKeon and Repatriation Commission (1991) 23 ALD 745
Repatriation Commission v Thompson (1988) 82 ALR 352
REASONS FOR DECISION
21 September 2004 Mr John Handley, Senior Member 1. The applicant applies to review a decision of a delegate of the respondent who decided on 3 February 2003 that he did not render “qualifying service” within the meaning of the Veterans’ Entitlements Act 1986 (“the Act”).
2. The application has an unusual history and may be briefly summarised as follows.
3. Mr Langley applied to the respondent for a “Gold Card” on 26 November 2002. The respondent rejected the application on 2 December 2002. Mr Langley applied to reconsider that decision in January 2003 and the delegate’s decision – which is under review in these proceedings – was made on 3 February 2003. Mr Langley then applied to this Tribunal to review the affirmation of the primary decision on 25 February 2003 by application V2003/222. The application was eventually fixed for hearing during a Warrnambool circuit in July 2003. However, after the matter was listed for hearing, but before the date of hearing, Mr Langley withdrew his appeal. On 28 August 2003 he made application to reinstate the application which was opposed by the respondent but a consent was forthcoming to treat the application to reinstate as a new application. A consequent consent was also given by the respondent to extend the time to lodge the proceedings. Accordingly the application was allocated Tribunal file number V2003/1015 and the matter was listed for hearing again in Warrnambool on 7 September 2004. A listing notice was forwarded to Mr Langley on 27 July 2004. On the day of hearing Mr Langley did not appear. Advice received from him by telephone indicated that he did not understand that he was required to appear and in further discussion he consented to the application proceeding by a decision being made upon the documents lodged. Those documents comprised documents and papers lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”), a report of Mr Piper, a historian, dated 18 June 2003, a Statement of Facts and Contentions completed by Mr Douglass (who did appear on behalf of the respondent) dated 27 February 2004 and a number of letters written by Mr Langley to both the Repatriation Commission and to the Tribunal.
the legislation
4. By making an application for a “Gold Card” Mr Langley has sought eligibility for the cost of medical treatment.
5. Section 85(4A) of the Act provides that a veteran is eligible for provision of treatment if he or she is over 70 years of age (Mr Langley is presently 79 years) and the veteran has rendered “qualifying service during the period covered by paragraph (b) of the definition of period of hostilities in sub-section 5B(1) . . .”.
6. Section 5B defines “period of hostilities” (in so far as it applies to World War II) as being the period 3 September 1939 until 29 October 1945.
7. Section 7A refers to “qualifying service” and deems that a person has rendered qualifying service (relevantly) in the following circumstances:
7A Qualifying service
(1)For the purposes of Parts III and VA 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; 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
the documents lodged
8. The respondent lodged a number of documents pursuant to s37 of the AAT Act which included a number of references to the applicant’s service. It would appear from those documents that Mr Langley enlisted in the Australian Army on 19 May 1943 and was discharged on 14 March 1946. He served in the Northern Territory between 14 November 1944 until 13 February 1946.
9. The report of Mr Piper has interpreted the records and a summary of the relevant postings within the Northern Territory are found at page 2 of his report as follows:
Date of arrival
Unit – full name.
Place – location.
14 November 1944
2 Reserve Personnel Pool
54 Mile – the distance south of Darwin on the main road to Alice Springs.
16 November 1944
5 Replenishing Centre
Batchelor – 38 miles south of Darwin.
3 January 1945
5 Central Reserve
Darwin
12 August 1945
2 Reserve Personnel Pool
54 Mile.
12 September 1945
“ “ “
Moved to Winellie (Darwin).
12 November 1945
No. 99 Squadron
Darwin (Liberator bombers)
1 March 1946
Discharged.
Ransford (Sydney).
10. Mr Piper reported that the first Japanese air raid over the Northern Territory was on 19 February 1942 and the last was on 12 November 1943. On that occasion nine Japanese bombers were reported and two were shot down. The penultimate air raid over the Northern Territory was on 18 September 1943 where nine bombers were reported.
11. On the last episode on 12 November 1943, nine bomber aircraft dropped 24 bombs on Darwin, 16 were dropped at Adelaide River and 3 at Batchelor. Four motor trucks were reported as having been damaged and associated damage was caused to telephone, power and water lines, railway workshops and a power station. Six defence personnel were injured at Darwin and one was injured at Batchelor.
12. Mr Piper further reported that after November 1943 there continued to be “a regular number of high speed high flying Japanese photo reconnaissance aircraft over the Northern Territory. These aircraft, . . . posed no danger or threat to those below. Liaison with ex-members of the Japanese 70th (Direct Control) Squadron, in recent years, has provided indepth details of their intent, flights, aircraft and capability.”
13. In a letter from Mr Langley and received by the Tribunal on 25 February 2003 (the letter had apparently been directed to the Repatriation Commission) he wrote in the following terms (T-documents page 1):
In reply to your very disappointing findings in regard to my application for a gold pass.
I feel the units I served with in Darwin was of a dangerous [sic] especially the gas unit situated 88 mile from Darwin – you will find that the unit being 88 mile from Darwin was a dangerous camp seeing what it held – RAAF bombers were still operating, bombing from Fenton some 20 mile down the road passing over our camp on way to missions & back.
The people of Darwin have found fit to issue me with a patch showing where I served in Darwin which is now hanging & on show in the Darwin Library.
14. In another letter written by Mr Langley to the Repatriation Commission, found at page 27 of the T-documents, he reported as follows:
In reply to your letter 2nd Dec 2002 – regarding not qualifying for a gold pass, my explanation is – in your questions of review you stated what does incurred danger mean.
Danger is not incurred unless the person who served is at exposed at risk or in peril of harm or injury.
My posting to Darwin in 1944 was to a camp which was a bomb dump & another camp which handled gas bombs. That was at 88 mile.
I received my 3 Medals from active service upon also my active on my honourable discharge – Service Badge.
Hoping this letter will give you more light on my service in the RAAF.
15. In Repatriation Commission v Thompson (1988) 82 ALR 352 (“Thompson”) at 356 the Full Federal Court considered an application for service pension by a veteran where the issue concerned whether he had incurred danger from hostile forces of the enemy under the former Repatriation legislation. At page 356 the Court found as follows:
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 of 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 the 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.
16. In Thompson the Court recited part of the findings and reasons of the Tribunal (with apparent approval) namely (page 354) that service personnel on the ground probably would not have known on 13 November 1943 that on the previous day the Japanese completed their last bombing raid. However the Court found that it would be reasonable to assume that with the passage of time – and the consequent absence of their raids – that such an assumption as to cessation of hostilities in the South Pacific would be reasonable. In any event the Court found that whether that assumption was made or not was irrelevant because subsequent to 12 November 1943 there were no air raids. It was also noted that the veteran, was posted to Peron Island, in June 1944, being eights months after the last raid.
17. When the Court considered the veteran’s service – at a radar post on Peron Island – the Court decided that it could understand that servicemen on the Island being isolated and without regular radio or other mainland news and with little knowledge of the situation externally could have felt a degree of apprehension. Nonetheless it was found that danger was not then incurred.
18. In Re McKeon and Repatriation Commission (1991) 23 ALD 745 the Tribunal considered an application by a veteran who travelled by sea to Morotai. The Tribunal heard evidence that off the coast of Cairns in far North Queensland two mines were sighted but which were disposed by gun fire. The Tribunal found – upon hearing evidence from a military historian – that the mines had probably been laid by Australian Forces but had broken free. The Tribunal acknowledged that the veteran would have been apprehensive of being in the vicinity of mines but concluded that there was no evidence at any time during the voyage to Morotai that the veteran had incurred danger from hostile forces of the enemy.
19. Mr Langley in his letters refers to being located in proximity to an RAAF base and to another area where bombs were dumped and gas and other fuel was stored. If there was continuing Japanese air raids in the proximity of those locations and in the event that bombs had been dropped in the vicinity of those locations it may be that Mr Langley could successfully have asserted that he did incur danger from hostile forces of the enemy.
20. The test however is objective and having regard to the facts which are not in dispute in this application, the last Japanese air raid occurred more than 12 months before Mr Langley was posted to the Northern Territory and his service thereafter in proximity to an RAAF base and other fuel and bomb storage depots did not cause him to incur danger, from hostile forces of the enemy.
21. To the extent that Mr Langley served in the Northern Territory after 29 October 1945 (refer s7A(1)(a)(ii)) qualifying service will only be found if he had been awarded or had become eligible to be awarded the medals or clasps as referred to in that sub-section. There is no evidence pointing to such eligibility and that sub-section has not been satisfied.
22. This review is completed, of course on the applicable law. The decision, which will inevitably cause unhappiness, should not be understood as any reflection or diminution of Mr Langley’s service. Subjectively, Mr Langley may have felt danger or have been fearful of attack. As will hopefully be apparent from the above whether danger was incurred must be objectively determined.
23. In the circumstances the decision under review is affirmed.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: Holly Weston
AssociateDate of Hearing 7 September 2004 on the documents lodged
Date of Decision 21 September 2004
Departmental Advocate Mr R Douglass
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