Millar and Repatriation Commission
[2004] AATA 1263
•30 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1263
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/557
VETERANS' APPEALS DIVISION
Re: CLIVE JOHN MILLAR
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Mr C. Ermert, Member
Date: 30 November 2004
Place: Melbourne
Decision: The decision under review is affirmed.
(sgd) C. Ermert
Member
VETERANS' AFFAIRS – - entitlement to Gold Card - definition of veteran met under s 85(4A) of the Veterans' Entitlements Act 1986 - veteran's performance within defined period of hostilities - whether applicant rendered qualifying service
Veterans’ Entitlements Act 1986 ss 5B, 7, 85(4A),
Re Holmes and Repatriation Commission (2003) AATA 993
Re Mann and Repatriation Commission (2000) AATA 582
ReMeldrum and Repatriation Commission (1999) AATA 330
Repatriation Commission v Burton (1993) 31 ALD 475
Repatriation Commission v Thompson (1988) 44 FCR 20
Thompson v Repatriation Commission (1988) 17 FCR 266
Willcocks v Repatriation Commission (1992) 39 FCR 49
REASONS FOR DECISION
30 November 2004 Mr C. Ermert, Member
INTRODUCTION
1. This is an application by Mr Clive John Millar (the veteran) for review of a decision of a delegate of the Repatriation Commission (the Commission) dated 19 September 2002.
2. That decision affirmed an earlier decision of the Commission, dated 22 May 2002, which determined the veteran did not have the necessary World War II qualifying service and thus was not entitled to a Gold Card.
3. At the hearing the veteran was represented by Mr De Marchi, solicitor and the Commission by Mr Purcell of counsel. The veteran appeared at the hearing to give his evidence.
THE LEGISLATION
4. By making an application for a “Gold Card” Mr Millar has sought eligibility for the cost of medical treatment.
5. Section 85(4A) of the Veterans’ Entitlement Act 1986 (the Act) provides that a veteran is eligible for provision of treatment if he or she is over 70 years of age and has rendered “qualifying service during the period covered by paragraph (v) of the definition of period of hostilities in sub-section 5B(1) …”.
6. Section 5B defines “period of hostilities” (in so far as it applies to World War II) as the period between 3 September 1939 and 29 October 1945.
7. Section 7A refers to “qualifying service” and deems that a person has rendered qualifying service (relevantly) in the following circumstances:
7A Qualifying service
(1) For the purposes of Parts lll and VA 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 or ship;
THE ISSUES
8. Arising from the legislation, there are three issues for determination: the veteran’s age, whether the veteran’s service was performed within the defined period of hostilities and whether the veteran rendered qualifying service.
9. The records show the veteran’s date of birth as 12 January 1925. There was no dispute on this issue and the Tribunal finds that his age is over 70 years and he therefore satisfies the requirements of s 85(4A) of the Act.
10. The veteran’s period of service from 25 April 1942 to 14 July 1945 is encompassed by the defined period of hostilities. This issue was not disputed by the respondent. Accordingly, the Tribunal finds that the veteran’s service is within the period of hostilities defined in s 5B.
11. The issue remaining to be decided is whether the veteran meets the requirements for qualifying service in that he incurred danger from hostile forces of the enemy when, as a member of the Royal Australian Air Force, he made voyages across Bass Strait between June 1944 and December 1944, or possibly January 1945. As can be seen from the evidence, there is some doubt regarding the date of the veteran’s last voyage. However, this did not become a critical issue in the determination of the matter.
DOCUMENTS
12. The Tribunal had before it the documents provided by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents). Included in these documents is a letter from the veteran to the Commission dated 9 August 2002, containing material relating to his voyages across Bass Strait on the SS Nairana.
13. The Tribunal also received in evidence:
(a)An extract from “Royal Australian Navy 1942-1945” by G. Hermon Gill, one of the series of “Australia in the War of 1939-1945”, comprising a title page, Contents and pages 546 to 557 (Exhibit R1);
(b)An extract from “The Royal Australian Navy in World War II” edited by David Stevens, comprising a Foreword and pages 86 to 99 (Exhibit R2); and
(c)A report by Robert Piper from Military Aviation Research Services, dated 6 October 2003, comprising nine pages with Annexes A to F (Exhibit R3).
14. Mr Purcell sought to tender an extract from the book “U-Boat Far From Home”, by D. Stevens. Mr De Marchi objected on the grounds that he had not received a copy of this document prior to the hearing; and as the extract comprised 180 pages, he would not have a reasonable opportunity to acquaint himself with the contents for the hearing in progress. Mr Purcell stated that a copy had been sent to Mr De Marchi. He did not identify any particular material within the document upon which he wanted to rely; rather he stated that the document was in the nature of additional ancillary material to be called upon if required. The Tribunal decided not to admit the document, unless during the course of the hearing it became preferable to do so.
EVIDENCE FOR THE APPLICANT
15. The veteran gave oral evidence at the hearing. He joined the Australian Army on 25 April 1942 and served until 26 January 1944, when he left to join the Royal Australian Air Force. He was posted to 1 Initial Flying Training School, Somers, to undertake an introductory course for training pilot-navigators and wireless operators. On 26 June 1944 the veteran was posted to 7 Elementary Flying Training School, Western Junction, Tasmania. He travelled to Tasmania as a passenger on board the SS Nairana. When asked whether the ship was armed with a 4 inch gun, the veteran could not recall that detail. However extracts from the ship’s records contained in Exhibit 3 show that the ship was fitted with a 4 inch gun and Bofors guns.
16. The veteran made four separate trips between Melbourne and Tasmania, all on the Nairana. He could not recall the exact dates but could deduce approximate dates from entries in his flying log book. The first sailing from Melbourne to Launceston was around 26 June 1944, the second from Launceston to Melbourne around 8 November 1944, returning to Launceston around 24 November 1944. According to the veteran his final trip from Launceston to Melbourne took place “some time after December the 3rd and before Christmas”. After his return from Tasmania the veteran served in Shepparton and Melbourne and was discharged on 14 July 1945.
17. In cross‑examination the veteran was taken to the list of sailings of the SS Nairana contained in Exhibit 3 and agreed that it looked “reasonable” that his final sailing date was probably 9 December from Launceston to Melbourne. This date also coincided with an entry in the Personnel Occurrence Report 86/44 dated 12/44 of No. 7 Elementary Flying Training School, Western Junction in which LAC Millar C.J. was shown as having “Completed No. 52 Course at No. 7 E.F.T.S. granted special leave and posted to No. 1 Personnel Depot (Tempost) wef 23/12/44. Departed 9/12/44.”. He stated he was just a passenger on the ship and did not man any weapons. His flying training was conducted on Tiger Moth aircraft which were unarmed and did not involve flights over Bass Strait.
18. In re-examination the veteran was asked whether it was possible that he may have left Tasmania later than he thought. He replied “Quite possibly. I can’t recall. I have got no recollection at all of how shortly after the abandonment of the course that I came back to Melbourne. I can figure no reason for them to keep me there.”
EVIDENCE FOR THE RESPONDENT
19. Mr Purcell had intended to call the historian, Mr Piper, the author of the report taken in as Exhibit 3, to give evidence. However, he was unwell and unable to speak at that time. Mr Purcell submitted that the hearing proceed on the basis of his written report. Mr De Marchi asked the Tribunal to take into account the fact that he was unable to cross-examine Mr Piper during the course of the proceedings and that might be detrimental to the veteran’s case. The Tribunal asked Mr De Marchi if he wished to make a submission to cross-examine Mr Piper. After receiving instructions, Mr De Marchi stated that it was unsatisfactory that Mr Piper was not available; however, his instructions were that his client did not want to adjourn to another date because of the cost involved. The Tribunal asked Mr De Marchi if there were any aspects of the material provided by Mr Piper with which he had an issue. His response was that on one point the applicant was not in any way disadvantaged; and although there may be others, his instructions were to complete the proceedings today.
20. Some relevant extracts from Mr Piper’s report follow:
(a)“I am unable to determine from the veteran’s records the exact date when he made his final trip back to Australia in December 1944. He may have travelled after going on leave on 9 December or at any time during the ensuing 14 days until he resumed duties at 1 Personnel Depot on the 23 (or 28th) December 1944”.
(b)“The wartime Movements Schedule for Nairana records that the vessel was regularly scheduled between the ports of Melbourne, Burnie, Devonport and Launceston, but not Hobart”.
(c)“15/12 – U-862 German submarine is off Hobart”.
(d)There is no record of the vessel being fired at, encountering enemy mines or being placed in direct danger from enemy surface or air forces during World War II. The submarine U-862 was off Hobart when the Nairana was travelling between Launceston and Melbourne and on the opposite side of Tasmania.
At this same time, 9 December 1944 onwards, Mr Millar was still either on leave and possibly still in Tasmania, enroute to Melbourne from Launceston or already in Melbourne on leave.”
(e)“…some forty mines were washed ashore at various parts of the Australian coast during World War II. … In Bass Strait the last one drifting ashore during the war was in December 1943, west of Cape Otway”.
(f)“Four Allied vessels were sunk and one was damaged by German mines during World War II, around the coast of Australia. All these sinkings occurred over a period of five months between November 1940 and March 1941. … The areas of mine laying operations … were between Sydney and Newcastle, in Bass Strait, off Hobart and in Spencer Gulf, South Australia.”
(g)“On the night of 29 October 1940 the German vessel Passat laid 30 mines in Banks strait between the Furneaux group and the Tasmanian mainland, then 30 more between Deal and Cliffy islands and 10 off Wilsons Promontory. Finally, again at night, on 31 October she laid a further 40 off Cape Otway.”
(h)“Japanese submarine attacks around the Australian coast commenced in January 1942 and ceased in June 1943, with the departure of the I-174”.
(i)“In December 1944 and January 1945 the German submarine U 862 patrolled off the southern coast of Australia, Tasmania then cruised to New Zealand and returned to its base at Batavia in Indonesia, via the Great Southern Ocean. On 9 December it fired four shots from its deck fun at the Greek motor vessel Illosis, off Kingston in South Australia, before diving and escaping.
The U 862 passed south and below Tasmania (not through Bass Strait) and up to Hobart on 15 December. The submarine then cruised to below the Gabo Island area sinking the U.S. Liberty ship Robert J. Walker on Christmas Eve 1944, 160 mile south east of Sydney. U 862 then headed for New Zealand.”
(j)“I do not believe the veteran or the vessel he travelled on in Bass Strait was in the proximity of this particular submarine, when he returned permanently to the mainland from Launceston in December 1944.
15 December 1944 – the veteran was on leave in Tasmania, enroute to Melbourne by sea or already in Melbourne when the U 862 was off Hobart. It was not until the end of the month (28th) that he resumed duties at Ransford, in Melbourne. At this time U 862 was east of the New South Wales coast and enroute to New Zealand.”.
(k)“The U 862 did not operate in the Bass Strait shipping lanes.”.
SUBMISSIONS
21. Mr De Marchi submitted that at the time the veteran was at sea, in Bass Strait, a German submarine patrolled the area with hostile intentions. He said it was also known that mines had been laid in Bass Strait by another German U-boat. He stated that the question was not whether the veteran felt in danger from enemy forces, but whether objectively he was in danger from enemy forces. The veteran did not even know that enemy forces were there. Shipping in the area was a target of the enemy at that time and the proximity of the U-boat brought the veteran into danger and within the definition of having been engaged against activities with the enemy pursuant to the Act.
22. Mr De Marchi submitted further that enemy mines were laid in the area where the veteran’s ship had to travel, with one mine drifting ashore in December 1943, west of Cape Otway. He noted that there was no evidence from Mr Piper that the mines had been cleared and therefore the veteran was in danger of his ship colliding with one of those mines. He said that the possible presence of mines was an enemy activity that the veteran had to confront on his voyages to Melbourne. He submitted that clearly the veteran faced a real danger; and therefore he should be given the same compensation that his comrades received, that is a gold card, so that his medical treatment can be paid for.
23. Mr Purcell commenced his submission by stating that he did not challenge the veteran’s evidence. The veteran had a very good recollection of dates and events and who spoke very candidly about what he could or could not remember. He said that it was unfortunate that some veterans, like Mr Millar, were put in a position of perceiving some form of discrimination, because some of their friends have been granted qualifying service and they had not. However, the issue is whether he meets the requirements of qualifying service.
24. The respondent relied on Mr Piper’s report of 6 October (Exhibit 3) and conceded that the veteran would have travelled aboard the SS Nairana on four occasions between 26 June 1944 and 9 December 1944.
25. In regard to qualifying service as defined in the Act there are two parts to the test. The first is whether the veteran "rendered service…at sea…in naval…operations against the enemy”. In Willcocks v Repatriation Commission (1992) 39 FCR 49 (“Willcocks”) the Federal Court interpreted this phrase as referring to an involvement in military operations, in hostility or opposition to the enemy. The mere fact of someone being in uniform and being in an area where the military were does not bring them necessarily into opposition. Cooper J said (at 55):
…
The phrase “naval, military or aerial operations against the enemy” is to be read as a whole. It includes two elements. The first is that there must be some operation which is naval, military or aerial in character. The second is that the requisite operation must be against the enemy. Both elements must be satisfied for service to constitute “qualifying service” within the meaning of s 36 or s 7A of the VE Act.
26. Mr Purcell referred the Tribunal to Repatriation Commission v Burton (1993) 31 ALD 475 (“Burton”) in which the question of qualifying service was under consideration. On p.481 Olney J referred to Willcocks in which Cooper J concluded:
Accordingly, in my view the word “against” in the phrase “military operations against the enemy” is used in the sense of “in hostility or active opposition to”. This is the common meaning and general usage of the word “against” in such a context. The section requires service, inter alia, in military operations against the enemy, in the sense of operations in hostility or opposition to the enemy.
Olney J followed by stating: “With respect, I adopt the foregoing reasoning.”
27. The respondent submitted that the veteran’s travel as a passenger aboard a commercial transport ship does not constitute the performance of duties in a military operation against the enemy, as the concept has been interpreted by the Federal Court.
28. The second consideration in regard to “qualifying service” is the “incurred danger” test. Mr Purcell submitted that there were two possible dangers. One was from mines; the other was from submarines. The historical material established that there were no Japanese submarines in the area. The German U-boat, U 862, was, at the time of the veteran’s voyages, many miles distant from the route taken by the SS Nairana, reducing the risk to minimal.
29. Mr Purcell submitted that Mr Piper’s report indicated that mines were a problem in Bass Strait early during World War II, particularly during 1940 and 1941; but that by 1944 the threat from mines on the route taken by the Nairana was minimal.
30. Mr Purcell submitted that there were no enemy forces operating in the area between Victorian and Tasmania at the time the veteran travelled through the area and that the veteran therefore could not have incurred danger from hostile forces of the enemy at that time. Mr Purcell referred the Tribunal to Re Holmes and Repatriation Commission (2003) AATA 993 (“Holmes”). That matter also deals with the ship Nairana, travelling between Tasmania and Victoria on four occasions between 1943 and 1946. However, unlike the present case, the issue was the apprehension of danger. That is not an issue in this case as the veteran’s evidence was that he was unaware of any risk at the time.
31. Mr Purcell then referred the Tribunal to Repatriation Commission v Thompson (1988) 44 FCR 20 (“Thompson”) in which the Full Federal Court considered an application for service pension by a veteran where the issue was whether he had incurred danger from hostile forces of the enemy under the former Repatriation legislation. The Court said (at 22‑23):
In approaching the statutory provision, it is necessary to keep in mind that the words used are words of ordinary parlance and are used in their ordinary sense. No word in s 36(a)(i) is ambiguous, no ambiguity arises from the order in which the words are used and no ambiguity arises from the context in which the provision is found. The words require no juristic extrapolation. They mean what they say, no more and no less, and they should be so read.
…
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.
32. Mr Purcell referred the Tribunal to two further decisions of the Administrative Appeals Tribunal, Re Mann and Repatriation Commission (2000) AATA 582 (“Mann”) and Re Meldrum and Repatriation Commission (1999) AATA 330 (“Meldrum”), both of which relied on the test of incurred danger as set out in Thompson.
33. In summary, the respondent’s submission was that the claim fails the two tests above. The primary basis was that at the time the veteran was crossing Bass Strait he was not engaged in operations against the enemy. The secondary basis was that there was minimal risk of danger incurred at that time on board the SS Nairana.
34. In response, Mr De Marchi referred the Tribunal to s 120(6) of the Act which stipulates that the veteran has no onus of proving his case. Given the passage of time since the events occurred and the incomplete records in this case, he said the Tribunal should also take into account the operation of s 119(1) of the Act. Being beneficial legislation the doubt should be given to the veteran.
35. Mr De Marchi referred to the respondent’s evidence showing that mines had been laid in Bass Strait by the enemy, so acting in a hostile manner towards our forces. There was a dual danger of a direct confrontation with the U-boat and of being blown up from one of the mines laid earlier in Bass Strait. He referred to the Court’s finding in Thompson in which it said (at 23):
The words “incurred danger” therefore provide an objective test … A serviceman incurs danger when he encounters danger, is in danger or is endangered.
Mr De Marchi submitted that being on a ship where it can hit a mine is in danger or being endangered.
36. Mr De Marchi agreed that there is no issue of the veteran perceiving danger or fearing that he may be in danger. In this case the veteran was oblivious to the danger. However, there was a real risk from the submarine, which in fact sank a ship 400 kilometres away on 9 December; and could have been in the area where Mr Millar was sailing.
37. Referring again to Thompson, Mr De Marchi drew attention to page 24 of the decision where the trial judge was found by the Full Court to have relied on an extract from the Macquarie Dictionary definition of “danger” which contained two misprints, which was one of the reasons the decision was overturned.
38. Mr De Marchi then referred the Tribunal to Burton where Olney J decided (at 484):
In view of the foregoing it is unnecessary to deal in any detail with the applicant’s assertion that the tribunal erred in law in treating the risk posed by non-enemy mines as equivalent to danger from hostile forces of the enemy … it would not have mattered whether the mines being sought were enemy or allied, nor indeed, if no mines were ever detected by the vessel on which the respondent served. 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.
Mr De Marchi submitted that that shows a clear misunderstanding of mine warfare in general and the threat that mines pose.
39. The Tribunal was then referred to the decision of a single judge of the Federal Court in Thompson v Repatriation Commission (1988) 17 FCR 266 (“Thompson 1”) which overturned the Tribunal on appeal and in which the Court examined the question of incurred danger. In that case the Commission argued that the words “incurred danger from hostile forces” should be read literally so that the word “potential” is not inserted before the word “danger”. However, this view was rejected by Einfeld J, who decided that “it is sufficient if, looked at objectively, the veteran was in a situation of real danger or liability to danger from the hostilities in which he/she was called upon to participate” (emphasis added). Mr De Marchi submitted that, in overturning the decision in Thompson 1, the Full Federal Court in Thompson was not really dealing with the issue of potential danger or liability to danger, rather it was dealing with a question of error of law related to an incorrect extract from the Macquarie Dictionary’s definition of “danger”.
40. Mr De Marchi concluded his submission by opining that it is ridiculous to think that danger may be minimal. You are either in danger or you are not in danger. In this case, he submitted, there is clear evidence that the veteran was indeed in danger, although blissfully unaware of it.
CONSIDERATION
Issues
41. Section 85(4A) of the Act provides that a veteran is eligible for provision of treatment (a “gold card”) if he or she is over 70 years of age, and has rendered “qualifying service during the period covered by paragraph (v) of the definition of period of hostilities in sub-section 5B(1)”.
42. The issue of age has been covered in paragraph 9 in which I found that the veteran complied with this requirement. The remaining issue is the one of qualifying service.
Qualifying Service
43. It was the applicant’s case that during the voyages across Bass Strait, between June and December 1944 that the veteran rendered qualifying service in that he incurred danger both from enemy submarine attack and from mines earlier laid by the enemy. The standard of proof is on the balance of probabilities.
44. Section 7A of the Act requires each of the following elements to be satisfied:
(a)the service must have been during a defined period of hostilities, and
(b)the service must have been in operations against the enemy, and
(c)the person must have incurred danger from hostile forces of the enemy.
Each element is considered in turn.
Period of Hostilities
45. As stated in paragraph 11 above, the veteran’s service is within the period of hostilities defined in s 5B.
Operations Against the Enemy
46. The issue of whether the veteran was engaged in “operations against the enemy” was not addressed by the applicant in evidence or in submissions. In Willcocks, Cooper J said:
…
The phrase “naval, military or aerial operations against the enemy” is to be read as a whole. It includes two elements. The first is that there must be some operation which is naval, military or aerial in character. The second is that the requisite operation must be against the enemy. Both elements must be satisfied for service to constitute “qualifying service” within the meaning of s 36 or s 7A of the VE Act.
This decision was followed and adopted by Olney J in Burton.
47. In this case, the veteran’s evidence, supported by the historical research, was that he was a passenger on a vessel engaged in regular voyages between Melbourne and Tasmania. Mr Piper’s report showed that the SS Nairana was armed with a 4 inch gun. However, the veteran stated that he had no such recollection. Further, the veteran had no knowledge of boats being sunk by enemy activity or of submarine activity in Bass Strait. He wore a uniform because he “didn’t have anything else to wear anyhow”. He did not have to man any weapons on board the ship and was “just a passenger”.
48. There was no evidence presented that the Nairana was engaged in any form of naval operations or in naval operations in hostility or opposition to the enemy. Indeed, the evidence shows the vessel to have been engaged on routine passages across Bass Strait. This view is consistent with the findings in Holmes, which also related to a veteran who travelled across Bass Strait in the SS Nairana. In that case the Tribunal found that:
At no stage during these journeys was the applicant actively engaged against the enemy nor was he partaking in naval military or aerial operations against the enemy. He was being transported on ‘open decks’ from one location to another.
49. In this case, the Tribunal accepts the respondent’s submission and finds that during his passages across Bass Strait on the SS Nairana, the veteran did not render service “in naval, military or aerial operations against the enemy”.
Incurred Danger
50. The effect of the finding that the veteran did not render service in operations against the enemy is that the veteran therefore did not render qualifying service. However, as the principal case put for the applicant was that the veteran “incurred danger”, the Tribunal went on to consider this element.
Danger from Submarines
51. Mr De Marchi submitted that the veteran did incur danger from enemy submarines in the area and from mines previously laid by the enemy in the area. In regard to danger from submarines, the evidence presented is that there was only one enemy submarine around Tasmania during the relevant period, that being the German U-boat U862. In Mr Piper’s evidence:
…On 9 December it fired four shots from its deck gun at the Greek motor vessel Ilossos, off Kingston in South Australia, before diving and escaping.
The U 862 passed south and below Tasmania (not through Bass Strait) and up to Hobart on 15 December. The submarine then cruised to below the Gabo Island area sinking the U.S. Liberty ship Robert J. Walker on Christmas Eve 1944, 160 miles south east of Sydney. [The] U 862 then headed for New Zealand.
Mr Piper went on to say:
I do not believe the veteran or the vessel he travelled on in Bass Strait was in the proximity of this particular submarine, when he returned permanently to the mainland from Launceston in December 1944.
and:
The U 862 did not operate in the Bass Strait shipping lanes.
52. In Thompson the Full Federal Court considered, in detail, the meaning of the phrase “incurred danger from hostile forces of the enemy” and found:
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.
53. This finding was applied by the Tribunal in Holmes. The Tribunal found that Japanese submarine activities in Australian waters had ceased in 1943 and that, based on the test in Thompson, the veteran did not meet the test of “incurred danger” under the relevant section of the Act. This Tribunal notes that in Holmes there was no evidence regarding the presence in southern Australian waters of the German submarine U 862 in December 1944.
54. In this case there was no evidence produced by the veteran that enemy submarines were operating in Bass Strait at the time of the his passages. The Tribunal finds that the veteran did not incur danger from enemy submarines while on the Nairana.
Danger from Mines
55. In regard to danger from mines, Mr De Marchi submitted that being on a ship where it can hit a mine is in danger or being endangered. Mr Piper presented evidence in regard to mines:
… some forty mines were washed ashore at various parts of the Australian coast during World War II.…In Bass Strait the last one drifting ashore during the war was in December 1943, west of Cape Otway.
Four Allied vessels were sunk and one was damaged by German mines during World War II, around the coast of Australia. All these sinkings occurred over a period of five months between November 1940 and March 1941.
…
Bass Strait and Deal Island
On the night of 29 October 1940 the German vessel Passat laid 30 mines in Banks Strait between the Furneaux group and Tasmanian mainland, then 30 more between Deal and Cliffy islands and 10 off Wilsons Promontory. Finally, again at night, on 31 October she laid a further 40 off Cape Otway.
Referring to the vessel SS Nairana, Mr Piper further stated “…There is no record of the vessel…encountering enemy mines…during World War II.”.
56. In Mann the Tribunal considered whether danger was incurred by the veteran during his voyages between Wedge Island, at the entrance to Spencer Gulf, and Adelaide. The Tribunal found that there were, as a probability, enemy mines in these waters but the mines caused no casualties to Allied men and material, and no mines were sighted during the voyages made by the veteran. In reaching its decision the Tribunal derived assistance from Burton, a case involving a veteran on a small vessel from which was sighted a mine of unknown origin at the mouth of the Sepik River. In Burton Olney J said:
…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 Mann the Tribunal went on (at para 20):
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.
57. In this case no evidence was produced that the veteran encountered enemy mines during his passages across Bass Strait. As found in Thompson “a mere risk of or liability to danger…was not sufficient”. In the absence of evidence of an encounter with enemy mines there can only remain “a risk of or liability to danger”. The Tribunal finds that the veteran did not incur danger from enemy mines while on board the Nairana.
Thompson 1
58. The Tribunal considered the submission by Mr De Marchi (in paragraph 39 above) that the Full Federal Court in Thompson did not really overturn the decision by Einfeld J in Thompson 1 that it was sufficient for the veteran to be in a situation of liability to danger. This Tribunal notes the extract from Thompson, (at 24):
…The learned trial judge rejected the approach taken by the tribunal and said:
“…it is sufficient if, looked at objectively, the veteran was in a situation of real danger or liability to danger from the hostilities in which he/she was called upon to participate.”
However, the trial judge appears to have relied upon an incorrect extract from the Macquarie Dictionary’s definition of “danger”, which extract contained two misprints. It seems likely that the misprints led his Honour to adopt the words “liability to danger”. We have already stated that the liability to danger in the sense of a risk of danger is not sufficient. The statutory provision requires that danger be incurred.” (emphasis added).
This Tribunal accepts that the Full Federal Court clearly overturned the decision of Einfeld J in regard to the sufficiency of a liability to danger.
FINDINGS
59. The Tribunal has found that the veteran did not incur danger from enemy submarines nor from enemy mines during his passages across Bass Strait. These were the only causes of incurred danger presented on behalf of the veteran. The Tribunal finds that the veteran did not incur danger from hostile forces of the enemy. As with the finding in paragraph 50, the effect of this finding is that the veteran did not render qualifying service as defined in the Act. As a consequence of these findings, the veteran is therefore not entitled to the issue of a Gold Card.
DECISION
60. The decision under review is affirmed.
I certify that the sixty [60] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr C. Ermert, Member
(sgd) Catherine Thomas
ClerkDate of Hearing: 23 September 2004
Date of Decision: 30 November 2004
Advocate for applicant: Mr D. De Marchi
Solicitor for the applicant: De Marchi & Associates
Counsel for the respondent: Mr G. PurcellSolicitor for the respondent: Advocacy Section, Department of Veterans’ Affairs
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