Lynch and Repatriation Commission
[2001] AATA 172
•8 March 2001
DECISION AND REASONS FOR DECISION [2001] AATA 172
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V1999/1083
VETERANS' APPEALS DIVISION )
Re ERNEST ROBERT LYNCH
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr A. Argent, Member
Date8 March 2001
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
………(Sgd) A. Argent……..
Member
CATCHWORDS
VETERANS' AFFAIRS – Gold Card – whether qualifying service – whether incurred danger from hostile forces – decision affirmed.
Veterans' Entitlements Act 1986 s. 7A
Repatriation Commission v Thompson (1988) 82 ALR 352
REASONS FOR DECISION
8 March 2001 Mr A. Argent, Member
Background
This is an appeal by Mr Ernest Robert Lynch ("the veteran") against a decision of a Service Pension Review Officer of the Repatriation Commission ("the Commission") dated 9 December 1998.
That decision affirmed a previous decision of the Commission dated 14 July 1998 which determined the veteran had not rendered qualifying service during the period of hostilities of World War II and thus was not entitled to a Gold Card.
The period of hostilities of World War II 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 II.
IssueThe issue before the Tribunal is whether the veteran rendered qualifying service during World War II and specifically whether he "incurred danger from hostile forces of the enemy":
(a)when he was on the Manly ferry on Sydney Harbour on 31 May 1942, the night Japanese midget submarines entered the Harbour;
(b)when he was a patient in Prince Henry Hospital 5-20 June 1942 during which time certain areas of Sydney were shelled by a Japanese submarine on the night 7/8 June 1942;
(c)during his service in 43 Squadron RAAF, 5 May 1943-8 March 1945, when he made a number of flights in Catalina flying boats; and
(d)during his service in Darwin 9 April 1944-8 March 1945 when an air raid alarm was sounded.
The Evidence
The Tribunal had before it the documents ("the T documents") lodged by the Commission pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975. Included in these documents are:
(a) material given by the veteran concerning his service in 43 Squadron RAAF;
(b) the veteran's Record of Service in the RAAF; and
(c) a copy of a page of the veteran's paybook for six months in 1944.
The Tribunal also took in as evidence:
(a)a report by Mr R. Piper, a military aviation historian, concerning flights in Catalina aircraft;
(b) a copy of the veteran's Hospital or Sick List Record Card; and
(c) a map of Sydney giving the location of Prince Henry Hospital.
The veteran was represented by Mr J. Stuart-Stevenson and the respondent by Mr R. Douglass, a Commission advocate.
The veteran was born on 8 January 1922 and enlisted in the RAAF on 19 March 1942. He was trained as an aircraft electrician at No. 3 School of Technical Training, Sydney, 22 April–7 October 1942, joined 43 Squadron at Karumba, Queensland on 5 May 1943 and moved with the Squadron to Darwin on 9 April 1944. He served in Darwin until early March 1945 and was discharged on 30 January 1946.
He was aged 76 when he claimed for a Service Pension.
The veteran said he was on leave from his course at No. 3 School of Technical Training at Ultimo and he was on a ferry on Sydney Harbour when the Japanese midget submarines entered the Harbour on night 31 May/1 June 1942. He said he had no knowledge of the raid until the next day.
The veteran stated he was a patient in Prince Henry Hospital, Sydney during June 1942 and all patients were evacuated from their beds after certain areas of Sydney were shelled by a Japanese submarine. He believes the hospital was a potential target although, at the time, he had no knowledge of the shelling. All patients remained in the hospital.
Concerning his service in 43 Squadron RAAF, when based at Karumba and then Darwin, where he was a leading aircraftsman electrician, he said he made a number of flights in Catalina flying boats. Aircraftsmen who worked on the maintenance of the Catalina's flew on the subsequent test flights. He said these flights were always to seawards and the aircraft were armed. When he and others such as he flew on these flights they were paid two shillings a day.
His paybook shows he received crew pay on 8 November 1943; 4 and 20 December 1943; 15, 16, 23 and 31 July 1944 and 5 August 1944.
He said he took part in two or three air/sea rescue flights. One was on 15 July 1944 and the duration of the flight was 5 hours. These flights were made to support B-24 Liberator raids on Japanese targets.
He said the Catalinas were positioned to rescue aircrew of B-24s should any be forced to ditch. The veteran went on to say that no enemy opposition was encountered during this 5 hour flight or any of the other flights he had in Catalinas.
He mentioned he had been in Mitchell bombers when they went on strafing practice. Again, no enemy opposition was encountered during these flights.
The veteran said that no bombs were dropped on him during his Darwin service when the air raid alarm was sounded.
In summary, the veteran said he was placed in danger from enemy forces when he was on Sydney Harbour during the night 31 May/1 June 1942; during the shelling of Sydney by a Japanese submarine when he was in hospital in Sydney; during his flights in Catalina and Mitchell aircraft and when an air raid alarm sounded in Darwin.
Mr R. Piper, a military aviation historian, gave written and oral evidence. In his research, he said, he had never come across an instance where ground crew flew on operations because the air crew was a close-knit, trained entity and passengers were not trained in life-rafts, first aid, radio, gunnery, survival and emergencies. In his opinion, the veteran would not have been involved in long distance operations and that his flights were local ones only from Karumba and Darwin. For example, on 8 December 1943 the Operations Record Book ("ORB") for 43 Squadron shows no operational flying for that day; the ORB for 4 December 1943 shows three flights all exceeding 20 hours and 5 August 1944 all flights more than 14 hours duration. There is a flight of 5 hours recorded for 15 July 1944 – an air/sea rescue patrol – with a note that the aircraft was not required to carry out a rescue.
Mr Piper also said, in relation to the air raid alarm mentioned by the veteran, that the last raid in Darwin was 12 November 1943, that the alarm may have been because of an unidentified friendly aircraft or it may have been a high flying Japanese unarmed reconnaissance aircraft at 30,000 feet.
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 Sydney Harbour during the night 31 May/1 June 1942, on 8 June 1942 when suburbs of Sydney were shelled by a Japanese submarine, during flights in RAAF aircraft from Karumba and Darwin 5 May 1943-8 March 1945 and when an air raid alarm was sounded in Darwin sometime between 9 April 1944 and 8 March 1945.
"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."
In considering the veteran's claim that he incurred danger when on the Manly ferry Sydney Harbour on the night of 31 May 1942 when the Japanese midget submarines entered the Harbour and one fired torpedoes there is no evidence the veteran was actively engaged in operations against the enemy. Indeed, his evidence is that he was on leave and that he did not know of the attack until next day.
The Tribunal finds he did not incur danger during this Japanese raid.
The veteran claims there was danger when he was a patient in Prince Henry Hospital on 8 June 1942 when shells from a Japanese submarine exploded in Sydney suburbs.
Records show the shells landed in the inner suburbs of Vaucluse and Bellevue Hill. Prince Henry Hospital, at Little Bay, is 14 km/almost 9 miles south of the points of impact.
The Tribunal therefore finds the veteran was in no danger from the enemy when he was a patient in the hospital during this enemy action.
Turning to the veteran's claim that he was in danger from the enemy when he flew in RAAF aircraft during his 43 Squadron posting, the Tribunal is aware that ground staff flew on test flights and accepts the veteran flew on, at least, eight occasions and, probably, more.
However, there is absolutely no evidence that during these flights the veteran encountered enemy forces. The Act is quite clear on this point. When Mr Lynch was in the aircraft he had to incur danger from the enemy in order to render qualifying service and thus be entitled to a Service Pension (and Gold Card).
Accordingly, the Tribunal finds the veteran did not incur danger from the hostile forces of the enemy during his flights in RAAF aircraft.
Finally, the Tribunal also finds the veteran did not incur danger from the hostile forces of the enemy during an air raid alarm at Darwin during the period 9 April 1944–8 March 1945 because the evidence is that no bombs were dropped and there was no other hostile action by the enemy aircraft.
As a consequence of these findings, the veteran did not render qualifying service and is not entitled to the issue of a Gold Card.
DecisionThe decision of the Commission is affirmed.
I certify that the thirty-five (35) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr A. Argent, MemberSigned: .....................................................................................
Personal AssistantDate/s of Hearing 1 February 2001
Date of Decision 8 March 2001
Counsel for the Applicant Mr J. Stuart-Stevenson
Solicitor for Applicant De Marchi & AssociatesFor the Respondent Mr R. Douglass, Commission advocate
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