Lindsay and Repatriation Commission
[2002] AATA 182
•19 March 2002
DECISION AND REASONS FOR DECISION [2002] AATA 182
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/924
VETERANS' APPEALS DIVISION )
Re ROBERT LINDSAY
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr EK Christie, Member
Date19 March 2002
PlaceBrisbane
Decision The Tribunal affirms the decision under review. This means that Mr Lindsay's application for review is unsuccessful.
.............….(Sgnd)..................
Dr EK Christie
Member
CATCHWORDS
VETERANS' AFFAIRS- Qualifying Services – entitlement to Gold Card – service in North-west Western and northern Australia – whether applicant objectively incurred danger from enemy
Veterans' Entitlements Act 1986 s 7A, s 85(4A)
Re Bastow and Repatriation Commission (2001) AATA 6
Repatriation Commission v Thompson (1988) 44 FCR 20
REASONS FOR DECISION
19 March 2002 Dr EK Christie, Member
This is an application by Robert Lindsay to review a decision of the delegate, Repatriation Commission, made on 20 July 2001, that Mr Lindsay did not qualify for a Gold Card. Mr Lindsay had applied for a Gold Card on 12 April 2001.
In reaching this decision the delegate concluded:
"In view of the above, I find that Mr Lindsay did not incur danger from hostile forces of the enemy as required in Section 7A(1)(a)(i) of the VEA and therefore does not fulfil the requirements for a Gold Card as set out in Section 85(4A) of the VEA." (T1, folio 88)
At the hearing, Mr Lindsay was represented by Counsel, Mr Norman Sheehan. The respondent was represented by Mr John Stoner, a Commission Advocate.
At the hearing the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit 1) and the following exhibits:
Exhibit 2 Statement of Robert Lindsay (10 November 2001)
Exhibit 3 Location map of Truscott (Western Australia)
Exhibit 4 Extract from "Australia in the War of 1939-1945 - Royal Australian Navy 1942-1945 (Gill) at p 548, p 556
Exhibit 5 58 Operational Base Unit Chronology from "Units of the Royal Australian Air Force – A Concise History" Vol 1, AGPS: Canberra 1995
Issues to be Decided
The parties agreed that the only issue for the Tribunal to decide was whether Mr Lindsay "incurred danger" from hostile forces of the enemy – a requirement prescribed by s 7A(1)(a)(i) of the Veterans' Entitlements Act 1986 (the "VE Act").
FactsThe general facts that were not in dispute were that Mr Lindsay enlisted in the RAAF on 15 December 1943 and was discharged on 4 October 1945. Following service training in southern Australia, Mr Lindsay was transported to Drysdale Mission to serve at Truscott Air base.
Mr Lindsay was based at 58 Operational Base Unit in the Cape Condonderry – Vansittart Bay area of Northern Western Australia, a strip generally known as "Truscott". Mr Lindsay travelled to 58 OBU from Darwin by sea on a vessel ("Liberty Ship") - a fully laden and armed munitions ship.
Mr Lindsay's RAAF duties were that of a telegrapher with Area Headquarters, other Operational Base Units, as well as to be the communicating contact with operational flying units.
Legal FrameworkSection 7A prescribes requirements for "Qualifying Service". In Mr Lindsay's application for review s 7A(1)(a)(i) is the relevant provision:
"7A Qualifying service
(1) For the purpose 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 of ship; or …" [Tribunal emphasis]
In Repatriation Commission v Thompson (1988) 44 FCR 20; 9 AAR 199 the Federal Court of Australia (Full Court) explained the meaning of the phrase "incurred danger from hostile forces of the enemy" in the abovementioned statutory definition of "qualifying service" [which then appeared in s 36(a)(i) of the VE Act] as follows (at 23-24):
"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 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.
…
We have already stated that liability to danger in the sense of a risk of danger is not sufficient. The statutory provision required that danger be incurred."
The Full Federal Court concluded (at 20):
"(iii) Using the dictionary meanings of 'danger' and 'incurred', a serviceman incurred danger when he or she encountered danger, was in danger or was endangered. A serviceman incurred danger from hostile forces when he or she was exposed, at risk of, or in the peril of harm or injury from hostile forces. A mere risk of or liability to danger or danger which was fanciful or minimal was not sufficient. The test for 'incurred danger' was objective, not subjective."
Evidence of Robert Lindsay
Mr Lindsay gave evidence on the following incidents in his RAAF Service in Northern Australia where he claimed he incurred danger from hostile forces of the enemy.
Mr Lindsay said the vessel in which he sailed from Darwin to Truscott in December 1944, was a munitions ship, its sole cargo being bombs, sea mines, ammunition and detonators. The vessel had been delayed in its departure from Darwin because of the need to reload bombs and sea mines. As a consequence it did not sail with the convoy as originally intended. To make up for lost time and to catch the convoy, the vessel had travelled in a direct line to Truscott – rather than following the coastline, the route taken by the convoy. Consequently, the vessel would have been as far as 200km off land on this route. Mr Lindsay said that he was not merely a passenger on the vessel but worked, at the Captain's request, as a relief for the vessel's telegraphist.
Mr Lindsay said a submarine alert from Headquarters at Darwin was given one evening; a Japanese submarine had been reported some distance off their starboard bow. A confirmation of the reported Japanese submarine sighting was given to their ship the following morning by a US submarine that had surfaced alongside their vessel.
Historical records indicate that about a dozen U-Boats were recorded to have been operating in the Indian Ocean at that time (Exhibit 3).
Mr Lindsay stated that on two occasions at Truscott, air raid alerts had been given. The alerts varied in length from a short period to several hours.
Mr Lindsay said that in August 1944 a full anti-aircraft backing of some 600 personnel arrived at Truscott base to provide general support.
Mr Lindsay stated that his work as a telegraphist meant that he was the only link with air operations undertaken by Australian, American and Dutch squadrons based at Truscott.
Mr Lindsay then described an operation in which he was the telegraphist where a flight of US Liberators were sent out to destroy a Bomber taken from the Dutch Squadron at Truscott to Timor, in an act of sabotage. However, all the Liberators were shot down. Mr Lindsay, in manning the radio, was linked to the operation and was personally and immediately aware of the outcome when he lost all signal contact with the aircraft.
Facts and Contentions of the PartiesMr Sheehan contended that Mr Lindsay's voyage from Darwin to Truscott was consistent with "incurring danger from hostile forces" within the meaning of the statutory test [s 7A(1)(a)(i) of the VE Act] because:
The voyage from Darwin to Truscott was not a transitory passage undertaken for the purpose of training or for leave;
It had the qualities of an operational undertaking: carriage of munitions of war and personnel to a fully operational air base which was in actual combat with the enemy;
The vessel was armed and carried a complement of Army gunners;
Mr Lindsay was fully engaged in duties as a telegraphist on board: ie Mr Lindsay was not a mere passenger. He worked as a telegraphist;
The sub alert emanated from Headquarters. A US sub offered escort. These facts were not a subjective creation of Mr Lindsay;
The voyage took the ship and its passengers well beyond the 3nm territorial limit of Australia. It went "overseas".
Mr Sheehan further contended that in the above circumstances, objective evidence existed as an alert had been given, orders given for gun crews to stations, and all on board required to don life jackets and to extinguish lights and cigarettes.
Mr Sheehan submitted that there was additional objective evidence for apprehended danger at Truscott – an isolated coastal stretch, to be considered real. The nature of training in regular air raid practices created an apprehension of danger and ensured that all personnel were aware how to react to danger and to protect themselves. Mr Sheehan contended that it would not be reasonable for a base Commander to give air raid alerts other than when danger existed.
Mr Stoner acknowledged that Mr Lindsay was a member of the Defence Force and did render service during the period of hostilities as defined in sub-section 5B(I) and section 5C of the VE Act.
However, it was Mr Stoner's contention that during the period of hostilities, at no time that Mr Lindsay was at sea, or in the field did he undertake air, naval, military or aerial operations against the enemy. Accordingly, at no stage had Mr Lindsay incurred danger from hostile forces of the enemy.
Mr Stoner referred to Department of Defence records which indicated that the last air raid reported on the Australian mainland and the Northern Territory was 12 November 1943 (Exhibit 1, Folio 2) – a time well before Mr Lindsay's service at Truscott.
Mr Stoner submitted that at no stage had Mr Lindsay incurred danger. Rather the claims advanced in his evidence were perceptions of possible danger only. In none of his three claims had Mr Lindsay been subject to an attack - or had an attack eventuated.
Mr Stoner concluded by acknowledging that Mr Lindsay was a witness of truth and that his credibility was not at all in issue.
Consideration of the IssuesThe object of the Tribunal is to review administrative decisions, not only on the merits, but in accordance with the law at all times.
The decision of the Full Federal Court in Repatriation Commission v Thompson has long been regarded as the benchmark for considering whether "a person incurred danger from hostile forces of the enemy".
The reasoning adopted by the Tribunal in following Thompson's case, in Re Bastow and Repatriation Commission [2001] AATA 6, is relevant in deciding this application for review. In Bastow's case the Applicant served as a visual signaller on the Wadjemup, an Army target practice boat in waters off Rottnest and Garden Island, between August 1943 and October 1945. The Wadjemup would sail west of Rottnest Island up to a distance of about 22 miles.
The Tribunal concluded:
"As regards the issue of whether the applicant 'incurred danger from hostile forces of the enemy" when she rendered service on the vessel Wadjemup, the test to be applied by the Tribunal in accordance with Thompson is an objective one. It is not sufficient that the applicant subjectively feared that she might be in danger from hostile forces of the enemy or that there was a risk of danger from such forces. To satisfy the test, the applicant must in fact have incurred danger from such forces. On the evidence before it, the Tribunal is unable to find that that test is satisfied in the present case. On the applicant's own evidence, she was never fired upon by – indeed, she never saw or encountered – an enemy submarine, ship or aeroplane during her service on the Wadjemup. Put at its highest, the evidence was that there may have been a risk of danger from the enemy to those on board the Wadjemup, but such a risk is, of itself, insufficient to satisfy the abovementioned statutory test… [B]ut the evidence before the Tribunal does not establish that she did in fact incur danger from hostile forces of the enemy."
The Tribunal concludes that on the facts before it there is no real evidence that Mr Lindsay incurred danger from the enemy. On Mr Lindsay's own evidence he was never fired upon or encountered an enemy submarine, ship or aeroplane during his service in Northern Australia. At best the Tribunal concludes, on examination of all the evidence before it, that Mr Lindsay was exposed to a "mere risk of, or liability to danger".
At its highest, the evidence of the sea voyage on the munitions ship from Darwin to Truscott was that there may have been a risk of danger from the enemy to those on board the vessel, but such a risk, is of itself, insufficient to satisfy the objective test in Thompson.
Moreover, the Tribunal concludes that Mr Lindsay's claim of "incurring danger from hostile forces" through air raids or as a wireless operator linked to air crew involved in operations, in themselves, do not satisfy the statutory test that Mr Lindsay himself, had in fact, incurred danger from hostile forces.
Based on all of the above findings the Tribunal concludes that the statutory test that Mr Lindsay had incurred danger from hostile forces has not been satisfied.
On consideration of the above findings of facts and conclusions, the Tribunal decides to affirm the decision under review.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: .....................................................................................
AssociateDate/s of Hearing 13 February 2002 (heard in Maroochydore)
Date of Decision 19 March 2002
For the Applicant Mr J Stoner
For the Respondent Mr M Sheehan
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