Mann and Repatriation Commission - [2000] AATA 582

DECISION AND REASONS FOR DECISION [2000] AATA 582

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/1195

VETERANS'   APPEALS   DIVISION )
           Re      Derry John Macfie Mann
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Deputy President B.M. Forrest Mr A. Argent, Member

Date10 July 2000
PlaceMelbourne

Decision      The decision under review is affirmed.
  .........(Sgd. B.M. Forrest)................
  Deputy President
CATCHWORDS
VETERANS' AFFAIRS – Gold Card – whether qualifying service – whether incurred danger from hostile forces of the enemy – decision affirmed.
Veterans' Entitlements Act 1986 s. 7A
Repatriation Commission v Thompson (1988) 44 FCR 20
Repatriation Commission v Burton (1993) 31 ALD 475

REASONS FOR DECISION

10 July 2000 Deputy President B.M. Forrest Mr A. Argent, Member

Introduction

This is an application by Mr Derry John Macfie Mann ("the veteran") for review of a decision of a Service Pension Review Officer of the Repatriation Commission ("the Commission") dated 19 August 1999.
That decision affirmed a previous decision of the Commission dated 16 February 1999 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.
Legislation
Qualifying service is defined in s. 7A of the Veterans' Entitlements Act 1986 ("the Act"). As relevant this section provides:
"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.
The Issue
The 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" when he was a member of 7 RDF Station, RAAF and made voyages to Wedge Island from Adelaide and return, over the period 25 May 1943 to 9 September 1944.
The Evidence
The Tribunal had before it the documents lodged by the Commission pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). Included in these documents is material supplied by the veteran concerning his service in 7 RDF Station on Wedge Island.
The Tribunal also received in evidence:
(a)Report dated 17 February 2000 of Associate Professor J. M. McCarthy, of the Australian Defence Force Academy, an historian.
(b)Extract of a brochure, "A Glimpse of Golden Days – Robe", first published 1985.
(c)Facsimile from Mr Brett Mitchell, Department of Defence, Naval History Directorate, entitled "Mines in South Australian Waters", dated 13 June 2000.
The veteran was born on 31 July 1924 and served in the RAAF from 10 August 1942 to 7 March 1946. One of his postings was to 7 RDF Station, Port Lincoln, South Australia.
In his evidence to the Tribunal the veteran said his radar station was on Wedge Island, at the entrance to Spencer Gulf and about mid-way between the southern extremities of Eyre Peninsula and Yorke Peninsula. He made the journey Port Adelaide - Port Lincoln - Wedge Island and Wedge Island – Port Lincoln – Port Adelaide twice between 25 May 1943 and 9 September 1944, i.e. he was on the waters four times. He said no mines were sighted during these journeys.
The leg Port Adelaide – Port Lincoln was by MV Minippa, about 12 to 14 hours duration, and the leg Port Lincoln – Wedge Island was by a ketch. This took 5 to 12 hours depending on weather and tides.
He said the route from Port Adelaide - Port Lincoln was around Yorke Peninsula (i.e. via Investigator Strait).
The evidence of Associate Professor McCarthy is that two German raiders laid mines in southern Australia waters in October and November 1940. Some of these mines were laid at the entrance to Spencer Gulf. These mines were moored but occasionally some broke free of their moorings. SS Hertford was damaged by a mine on 7 December 1940 and the Spencer Gulf area was then swept for mines. He quoted the Official History, The Royal Australian Navy 1939-1945, "Scarce a month of 1941 passed without one or more of the mines then laid being swept up, sighted floating, or found washed ashore on beaches to a total of forty-nine. Most of them were from, and near, the fields laid off Spencer Gulf, Hobart, Bass Strait and the New South Wales coast". Other than the damage to SS Hertford, no casualties to men or material were caused by these mines in the waters under consideration in this case.
The Naval History Directorate facsimile states the German raider Pinguin laid minefields between Kangaroo Island and Cape Spencer (i.e. in Investigator Strait) on 6 and 7 November 1940 and SS Hertford was damaged by a mine at 35º30'S 135º25'E (i.e. about 50 nautical miles south west of Wedge Island) on 7 December 1940. The facsimile gives details of minesweeping in the waters under consideration during the period 11 to 23 December 1940. A minefield was located west of Neptune Island (this Island is about 20 nautical miles south west of Wedge Island) on 22 December 1940. Two RAN ratings were killed when they were destroying a beached mine on 14 July 1941 at Beachport, (200 nautical miles south east of Wedge Island). Post war, 8 to 10 April 1946, Investigator Strait was swept by 11 RAN minesweepers.
Consideration
It was the applicant's evidence (and case) that during the voyages described in paragraphs 10, 11 and 12 he incurred danger from mines laid by enemy ships in that area of South Australian waters. The standard of proof 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 during the voyages Port Adelaide - Port Lincoln - Wedge Island and return, over the period 25 May 1943 to 9 September 1944.
In Repatriation Commission v Thompson (1988) 44 FCR 20 a Full Court of the Federal Court (Davies, Wilcox and Foster JJ.) discussed the meaning of the words "incurred danger" in the expression "incurred danger from hostile forces of the enemy". Their Honours said 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 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."
On the evidence before us, we find that, during the period 25 May 1943 to 9 September 1994, when the veteran travelled the South Australian coastal waters Port Adelaide - Port Lincoln - Wedge Island and return:
(a)There were, as a probability, enemy mines in these waters but
(b)These mines caused no casualties to Allied men and material and
(c)No mines were sighted during the voyages made by the veteran.
Having arrived at these findings, the only further matter for our consideration is whether the latent threat of these enemy mines meant the veteran incurred danger from hostile forces of the enemy.
In considering that matter we derived some assistance from the Federal Court judgment in Repatriation Commission v Burton (1993) 31 ALD 475. In this case the veteran was a crew member of a small (70 tonnes) vessel which entered the Sepik River, New Guinea on 10 October 1945. At the mouth of the Sepik a mine, of unknown origin, was sighted. The Court, (Olney J. at 484) said regarding the incident:
"In the absence of any finding that the respondent, during his period of service prior to the cessation of hostilities, in any way encountered enemy mines, there can be no basis for a conclusion that he encountered danger from hostile forces of the enemy".
In the matter before us, the veteran encountered no mines during his relatively short voyages in South Australian coastal waters and we find that he did not incur danger from hostile forces of the enemy. A subjective belief or speculation as to danger is insufficient to satisfy the test enunciated in Thompson.
As a consequence of our findings, the veteran did not render qualifying service and is therefore not entitled to the issue of a Gold Card.
Decision
For these reasons 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
Deputy President B.M. Forrest
Mr A. Argent, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  15 June 2000
Date of Decision  10 July 2000
For the Applicant  Mr B. Turner, RSL advocate
For the Respondent                 Mr R. Douglass, departmental advocate