Long and Repatriation Commission

[2008] AATA 139

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 139

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N200600953

VETERANS’ APPEALS DIVISION		)
Re		LORRAINE SMITH as executor of the Estate of William Thompson Long (deceased)

Applicant

And REPATRIATION COMMISSION  

Respondent

DECISION

Tribunal Senior Member M D Allen
Rear Admiral A R Horton, AO, RAN (Rtd), Member

Date22 February 2008

PlaceSydney

Decision The decision under review is affirmed.

.................[sgd]........................

M D Allen   Presiding Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – review of decision by respondent that determined veteran had not rendered qualifying service and was ineligible for a gold card entitling veteran to provision of medical treatment at the respondent’s expense – entitled to gold card if rendered qualifying service during a period of hostilities and incurred danger from hostile forces of the enemy – civil standard of proof – decision under review affirmed

LEGISLATION

Veterans' Entitlements Act 1986 sections 5B, 6A, 7A, 7A(1), 85(4A), 119, 120(4), 120(6) and 126

CASE LAW

Repatriation Commission v Thompson (1988) 82 ALR 352

Repatriation Commission v Smith (1987) 15 FCR 327

Repatriation Commission v Farley-Smith [2007] FCA 1058

REASONS FOR DECISION

22 February 2008 Senior Member M D Allen
Rear Admiral A R Horton, AO, RAN (Rtd), Member

1.      By application filed the 28^th day of July 2006 on behalf of William Thompson Long review was sought of a determination by the Respondent that the Veteran had not rendered Qualifying Service as that time is defined in section 7A of the Veterans’ Entitlements Act 1986.

2. The Veteran died prior to the matter coming on for hearing. On 19 January 2007 the late Veteran’s daughter Lorraine Irene Smith, the executrix of his estate was approved by the Respondent pursuant to s 126 VEA to pursue her late father’s application to the Administrative Appeals Tribunal.

3. On 22 October 2004 the late Veteran made an application for what is known as a “Gold Card”. The grant of that card entitles a Veteran to the provision of medical treatment at the expense of the Department of Veterans’ Affairs. Subsection 85(4A) VEA states inter alia that the late Veteran is entitled to treatment at the expense of the DVA if he or she is over 70 and has rendered qualifying service as that term is defined in s 7A VEA during a period of hostilities.

4. There is no dispute that the late Veteran served during a period of hostilities as that term is defined in s 5B VEA, namely during the period of World War II. To have rendered “qualifying service” however he would have had to render service in an area at a time when he incurred danger from hostile forces of the enemy, s 7A(1) VEA.

5.      The term “incurred danger from hostile forces of the enemy” was considered by the Full court of the Federal Court in Re Repatriation Commission v Thompson (1988) 82 ALR 352. At p 356 the Court said:

“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, 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.”

6. The standard of proof in this matter is that mandated by ss 120(4) VEA namely that of to the Tribunal’s “reasonable satisfaction”. In Repatriation Commission v Smith (1987) 15 FCR 327 the Full Court of the Federal court equated that to the civil standard of proof namely proof on the balance of probabilities. Subsection 120(6) VEA provides that neither party to the review bares any onus of proof.

7.      Paragraph 119(1)(h) states that in making any decision in relation to a claim the Repatriation Commission (and hence this Tribunal)… shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, course 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.”

As was pointed out in Repatriation Commission v Farley-Smith [2007] FCA 1058 no reliance can be placed upon s 119 to fill in gaps where there is no evidence to support the veteran’s case.

8.      In this matter the Respondent relied predominantly upon two reports by historian Mr Brendan O’Keefe. Mr O’Keefe has had recourse not only to the veteran’s record of service as held at the Central Army Records Office but also to the war diary of the 134^th Australian General Transport company, the unit in which the late veteran spent most of his army service.

9. The period during which the Northern Territory was subjected to air raids during World War Two was 19 February 1942 to 12 November 1943. This is reflected in the designation of the operational service area in s 6A VEA.

10.     Army records make it clear that the veteran transferred in to 134 AGTC on 4 October 1942. That unit transferred from Emerald Hill in NSW to Mt Isa Queensland in the period 21 March 1943 to 30 March 1943. The unit then remained at Mt Isa until January 1944.

11.     Mr O’Keefe concluded his report of 16 February 2007 by stating:

“No evidence could be found to show that Mr Long was in Darwin or in any other location in the Northern Territory that was subject to aerial attack by Japanese aircraft during the period that these attacks occurred (19 February 1942 - 12 November 1943). The most northerly point that Mr Long would have gone to in the Territory in this period would have been Larrimah. He would not have gone to Katherine or anywhere north of that point until 11 January 1944, two months after the Japanese air raids ceased.

12.     Representing her late father, Mrs Smith raised several points in two submissions.

13.     Reference was made to a book “The Long Road North” which stated that at times stores were ferried by road north of the railhead at Larrimah (actually Birdum) and delivered direct to units in the designated operational area. This may be so but as to whether the late veteran took part in this activity is unknown.

14.     Two specific items of evidence referred to by Mrs Smith were:

(a) A telegram sent to the deceased veteran’s future wife which reads: “Bill in       hospital not serious address mail Katherine” signed. Keith

(b) A letter written by a Captain H J Mason stating: “This is to certify that    VX136797 private pte.LONG w.t. was a member of this company coy from 6      Oct.1942 to 19 Feb.1946 and served in the Northern Territory from 21      Mar.1943 to 10 Jul.1945. His duties was in the NT necessitated his presence       in the Darwin area.”

15.     So far as the telegram is concerned it is dated in 1943. The Veteran’s service records disclose that he was hospitalised in 74 Camp Hospital between 17 August to 3 September 1943. The war diary of that unit shows that it was located at Mt Isa at that time and did not relocate to Katherine until mid November 1944. The telegram cannot be taken as evidence that the deceased was at Katherine at the time it was sent. Similarly the war diary of 134 AGTC shows that it was based at Mt Isa at this time.

16.     The letter signed by Captain Mason proves nothing. It does not say when the deceased was in Darwin or for how long. Further as pointed out by Mr O’Keefe it is in error in stating that the deceased was a member of 134 AGTC until 10 July 1945. The service records of the deceased show that he was transferred to the 2/110 AGTC effective 27 July 1945.

17.     There are claims by the deceased veteran that he had been in Darwin but at no stage in his correspondence with the DVA did he give particulars of where he was and when, nor what his duties were.  The deceased service records show that he only served in the designated operational area from 11 January 1944 well after the cessation of any air raids.

18.     On 23 March 2006 a Service Pension Review Officer wrote to the late veteran stating inter alia:  

“I believe from discussions with your daughter that you have evidence or may be able to obtain evidence that can conclusively prove you were in Darwin at the time of the Japanese bombing raids. If you have such evidence would you please send it to me at the address below. Any original documents you send to the department will be copied and returned to you registered post.”

No such evidence was ever received by the Respondent.

19.     Annexure K to Mrs Smith’s submissions of 23 January 2008 refers to discussions with her aunt regarding her late father’s war service. We give more credence to the records pertaining to the deceased service and the unit war diaries.

20.     After examining all the material before us we can only conclude that there exists insufficient evidence to say that we are reasonably satisfied that the late William Thompson Long was at any time during his service in danger from hostile forces of the enemy.   

21.     Subsequent to the hearing in this matter the Applicant lodged further submissions with the Tribunal. Accompanying those submissions was a Statutory Declaration by the Applicant. There is nothing in that document that evidences that the deceased was in Darwin or in any other location in the Northern Territory that was subjected to attack by Japanese aircraft during the period in which these attacks occurred.

22.     The decision under review is affirmed.  

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Rear Admiral A R Horton, AO, RAN (Rtd), Member

Signed:   ...........[sgd].....................
               Mwela Kapapa, Associate

Date/s of Hearing:  24 January 2008
Date of Decision:  22 February 2008
Solicitor for the Applicant:                  Self-represented
Advocate for the Respondent:          Department of Veterans Affairs