Langton and Repatriation Commission

[2000] AATA 702

DECISION AND REASONS FOR DECISION [2000] AATA 702

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q1999/971 

VETERANS' APPEALS DIVISION        )          
           Re      JOHN LANGTON  
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Miss WJF Purcell (Senior Member)        

Date17 August 2000 

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.         

(Sgd) WJF Purcell
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – Qualifying Service – whether the veteran travelled on the "Duntroon" in December 1942 - whether the veteran incurred danger 

Veterans' Entitlements Act 1986 ss 5B, 7A, 120(4)
Drake v Minister for Immigration and Ethnic Affairs 2 ALD 60

REASONS FOR DECISION

Miss WJF Purcell (Senior Member)                    

This is an application for review of a decision of a Delegate of the respondent (the Commission) of 16 December 1998, which determined that the applicant had not rendered qualifying service within the meaning of section 7A of the Veterans' Entitlements Act 1986 (the Act). The decision was affirmed by the Commission pursuant to section 57 of the Act, on 1 June 1999.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), together with the exhibits tendered by the Commission. Mr J McDonagh of Brisbane Legacy represented the applicant, who gave oral evidence. Mr Loftus represented the Commission.
Mr Langton was born on 21 December 1920, and is 79 years of age.  He served with the Australian Army in the 12th Australian Army Troop (Engineers) from 29 April 1942 to 12 April 1944 at various locations within Australia.  He lodged an application for qualifying service on 15 June 1998 and stated that he did not serve outside Australia, and that he did not experience danger from hostile enemy forces during his service. [T3/17]  In answer to question 16, at T3/20, the applicant stated that he had travelled on the vessel the "Duntroon" in December 1942, embarking in Brisbane and disembarking at Townsville.  His statutory declaration reads, as follows:

"I previously applied for service pension in April 1997, but this was rejected.  Attached is an application to determine qualifying service as I definitely travelled by ship from Brisbane to Townsville in late December 1942.  While stationed at Grovely, Brisbane Dec 1942, we were advised that the 12th Australian Army Troop (Engineers) of which I was a member, will be boarding the Ship "Duntroon" and were heading for Darwin to relieve a Victorian unit.  We boarded the "Duntroon" in Brisbane (approx 50 members of our unit) and were heading to Darwin.  We were at sea approx 3-4 days and we arrived at Townsville as the ship was needed to transport men to New Guinea.  My service records do not record this embarkation but I make this statement as totally and truthfully that I did travel by ship "Duntroon" to Townsville in December 1942."

The delegate sought information from various Government sources over the following 6 months in an attempt to verify the applicant's claim that he had been transported by the "Duntroon" in late December 1942.  On 16 December 1998 the delegate determined that the applicant had not rendered qualifying service, as there was no indication that the applicant incurred danger from hostile forces, and the delegate's letter of advice to the applicant reads in part:

"  WHAT DOES "INCURRED DANGER" MEAN?
The Federal Court has considered the term "incurred danger" and found that the test was an objective, not a subjective test.  The Court decided that incurring danger does not encompass a situation where there is a mere liability to danger, that is, a mere risk of danger.  Danger is not incurred unless the person who served is exposed to, at risk of, or in peril of harm or injury.

Extensive investigation has failed to find any record of a voyage aboard the "Duntroon" in late 1942 and a search of your unit records at the Australian War Memorial has located a troop movement order stating that you departed from Roma Street station, Brisbane for Sellheim on 20 December 1942."  [T18/48]

On 3 March 1999 the applicant applied for review of the decision, and stated, in part:

"I base my appeal on the grounds that in (sic) I was transported to Townsville per the ship Duntroon.  Also on the Duntroon at this time was a Spr AJ Golding who I remember very well as he was very sea sick for most of the journey, and I took it upon myself to look after him as he was so ill.
I believe Spr Golding may currently be in receipt of a benefit from Veterans' Affairs.
I completely and honestly declare that myself and Spr Golding definately (sic) travelled to Townsville by the ship "Duntroon" and did not travel by train as I believe your records show."   [T19/49]

The T documents contain a file note at T20/50 recording a telephone conversation between an officer of the Commission and Mr Golding on 1 June 1999.  The entry reads:

"Rang Mr Golding re his method of transport.  Could not definitely remember but thought it was by rail.  He is a very bad sailor and felt that he would have remembered travelling by boat."

On 1 June 1999, the Commission affirmed the determination and informed the applicant in part as follows:

"Mr Langton service records show that he served with the Australian Army from 29 April 1942 to 12 April 1944 and that he served at various locations within Australia.
A record on the veterans' AFB 103 dated 20 December 1942 is as follows:
"m/out to Duty Atherton".
There is no record of how Mr Langton travelled to Atherton from Grovely where he had previously been based.
A search of army records conducted by the Soldier Career Management Centre (SCMA) failed to establish whether or not Mr Langton travelled by sea in 1942.  Enquiries with the Australian Maritime Safety Authority and the Australian Archives also failed to produce any evidence of the veteran travelling by sea.  A search of the Australian War Memorial produced a Movement Order for the veteran and six (6) others to travel from Roma Street Railway Station on 20 December 1942.  The records of the other veterans' listed on the order failed to confirm or deny the means of transport used.
A telephone conversation with one of the surviving veterans however, allowing for the distance of time since this period, appears to confirm transport by rail, thereby supporting the movement order.  That veteran later went by sea to New Guinea but does not recall any earlier voyages, which he feels that he would, as he is an extremely bad sailor.
Based on the evidence available I have determined that Mr Langton does not have qualifying service in terms of section 7A of the Veterans' Entitlements Act 1986.
I do not wish to detract, in any way, from Mr Langton's service, but it is simply the case that I am required to consider his application for review in accordance with the requirements of that part of the legislation which qualifying service.
Accordingly, I affirm the decision of the Delegate of the Repatriation Commission dated 16 December 1998."   [T21/52-3]

1. "Qualifying Service" is defined in section 7A(1) of the Act as follows:

   "7A Qualifying service

   (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:

1. 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;"

Subsection 5B of the Act, as far as is relevant for the purposes of this review, provides:

"5B      War and operational area related definitions
(b)       World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included);"

The standard of proof is that of reasonable satisfaction, in accordance with section 120(4) of the Act, which provides:

"120 Standard of proof

(4)       Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the Regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note:   This subsection is affected by section 120B."

The applicant submits that he sailed on the "Duntroon" in December 1942, during a period of hostilities.  In accordance with Departmental policy such service at sea in the coastal waters of the east and north of Australia (Sydney to Thursday Island), is regarded by the Commission as qualifying service for the purposes of the Act.  His sailing on the "Duntroon" satisfies therefore section 7A of the Act.
The Commission maintains that the applicant's memory of events is unreliable and the documentary evidence should be preferred.  If, on the other hand the Tribunal was to be reasonably satisfied that the applicant sailed on the "Duntroon", then the policy document upon which he relies is a relevant factor to be taken into account; but on the facts in this matter the applicant did not incur danger from hostile forces of the enemy, and his service does not satisfy section 7A of the Act.
The applicant gave evidence that he was a wood machinist by trade, and that as a member of the Armed Forces he was involved in construction work such as roads and bridges, and that troops would be assigned in fairly small groups to carry out construction work in various locations.  He said that there were about 50 men in the group which boarded the "Duntroon" in December 1942, and they were told that they would relieve a group of Victorians.  The trip was uneventful except that he remembered vividly that Spr AJ Golding was so seasick.
The applicant said in evidence that when he met Mr Golding on a train in Brisbane in 1946, Mr Golding said words to the effect "I want to thank you for looking after me on the "Duntroon" when I was so ill".  This conversation the applicant contrasted with a recent telephone conversation when he informed Mr Golding that he was applying for a service pension, and Mr Golding said that he could not remember the voyage, but that when he was in the Islands he was sea sick.  Mr Golding stated several times then, that he would give the applicant his telephone number whereas the applicant had the telephone number already,  which Mr Golding appeared to have forgotten.
The applicant said in evidence also, that many of the entries on his Record of Service are incorrect, such as the notations between 16 November 1942 and 15 December 1942 which recorded his movement between Ascot and St Lucia, whereas he says that he was never stationed in either area; the notation [T2/15] "M/out to Duty Atherton" dated 20 December 1942 is also inaccurate.  At about this time he was aboard the "Duntroon", because he says, he celebrated his birthday, (on 21 December 1942), at Sellheim.  Sellheim is about 150 kms south west of Townsville.  He says that he never travelled to Atherton by train with six other soldiers from Roma Street Station.  He certainly did not travel by train on 20 December 1942, as appears to be the case according to the Movement Order dated 20 December 1942 [T6/45].
The Commission requested a report from Professor McCarthy of the Australian Defence Studies Centre.  Professor McCarthy reported on 1 January 2000 [Exhibit R1] that the only voyage the "Duntroon" undertook from Brisbane in late 1942 was on 19 November 1992 when it sailed at 1 pm, and arrived in Townsville at 2pm on 22 November 1942.  It departed then for Port Moresby, on 1 December 1942.  He stated in part:

"Duntroon did not arrive back in Eastern Australian waters until 30 January 1943 when she arrived in Sydney, ex-Cairns on 30 January 1943.  She sailed ex-Brisbane and arrived at Townsville at 1300 hrs on 27 February 1943.  On this occasion she carried 1028 ORs.  Again the lists of personnel are not available
….
The original movement order is contained in the War Diary appendices.  At first glance therefore it might seem obvious that the Veteran must have travelled by train.  An inspection of the much clearer original shows, however, that while there is a tick against the name of six of this seven man party, there is no tick alongside the name of the Veteran.  Why this is so remains a mystery.  One explanation, however, is that Q.145578 Spr. Langton, J. failed to appear and thus missed the train.
The Veteran's Service Record is little help.  It does show that he marched out for duty at Atherton on 20 December 1942.  In a letter on the file, the Veteran argues that he 'was never anywhere near Atherton'. Rather, he argues, he was at Sellheim.  The War Diary of 12 Australian Army Group Engineers does not mention any detachment of this unit at Atherton but it does record a detachment of 1 Officer and 36 Other Ranks located at Sellheim.  Sellheim is located in the Charters Towers region and today about a six hour drive from Atherton. One explanation for this confusion might be that Atherton could have been the administrative centre for the many units training around the Atherton Tablelands in the second world war.  It could thus be regarded as a generic term perhaps.
The fact remains, however, that the Veteran could not have travelled by Duntroon to Townsville in December 1942 and yet the Veteran is sure that he did.  There must be doubt that he travelled by train ex-Roma Street on 20 December 1942 as there is no tick alongside his name on the movement order."

It would appear that if, as Professor McCarthy surmises, the lack of a tick alongside the applicant's name could indicate that he did not travel by train to Sellheim on 20 December 1942; the tick alongside Spr Golding's name would indicate equally, that he travelled with the other soldiers by rail to Sellheim, and not aboard the "Duntroon" with the applicant.  The documentary evidence however, does not contain any reference to the applicant travelling by sea at any time during his service.
The standard of proof in this matter is that of reasonable satisfaction, and having examined the whole of the evidence and taken into account the parties' submissions, I am not reasonably satisfied that the applicant sailed in the "Duntroon" in late 1942.  Had I been so satisfied, the policy document relating to Departmental policy that service in coastal waters would be regarded as qualifying service for the purposes of the Act [Exhibit R2] would have become relevant.  It would have been a relevant factor in determining whether the applicant had rendered qualifying service.  In Drake v Minister for Immigration and Ethnic Affairs 2 ALD 60 the Full Court of the Federal Court said at pp 69-70.

"In a matter such as the present where it was permissible for the decision-maker to take relevant government policy into account in making his decision, but where the Tribunal is not under a statutory duty to regard itself as being bound by that policy, the Tribunal is entitled to treat such government policy as a relevant factor in the determination of an application for review of that decision.  It would be contrary to common sense to preclude the Tribunal, in its review of a decision, from paying any regard to what was a relevant and proper factor in the making of the decision itself.  If the original decision-maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the Tribunal to take into account in reviewing the decision.  On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be."

In this matter, the applicant has never asserted that he incurred danger from hostile forces; and on his own evidence, the voyage on the "Duntroon" was unremarkable except for the seasickness of Spr Golding.  Had I been reasonably satisfied that the applicant undertook the sea voyage, and had I applied the principles outlined in Drake, I would not have been reasonably satisfied, on the evidence, that the applicant incurred danger from hostile forces of the enemy. He would thus not have rendered qualifying service in accordance with section 7A of the Act, in any event. I am not reasonably satisfied on the whole of the evidence that the applicant rendered qualifying service.
For these reasons the Tribunal affirms the decision under review.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WJF Purcell (Senior Member)

Signed:         .....................................................................................
  Associate

Date/s of Hearing  20 June 2000 
Date of Decision  17 August 2000
Representative for Applicant   Mr J McDonagh 
Advocate for Respondent       Mr R Loftus, Departmental Advocate