Miller and Repatriation Commission
[2000] AATA 331
•27 April 2000
DECISION AND REASONS FOR DECISION [2000] AATA 331
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/547
VETERANS' APPEALS DIVISION )
Re STANLEY ERNEST MILLER
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Rear Admiral A R Horton AO, Member
Date27 April 2000
PlaceSydney
Decision The decision under review, namely that of the Repatriation Commission dated 29 September 1998, is set aside and in substitution therefor the Applicant is considered to have rendered qualifying service pursuant to section 7A(1) of the Act and is therefore entitled to the Gold Card pursuant to subsection 85(4A) of the Gold Card Act.
(Sgd) A Horton
……………………….
Member
CATCHWORDS
VETERANS' AFFAIRS – gold card eligibility - whether applicant rendered qualifying service – Army service during period of hostilities – whether incurred danger in military operations against enemy during Japanese submarine gun attack on Newcastle 8 June 1942 - whether incurred danger in service outside Australia
Veterans' Entitlements Act 1986 - s 5B(1), 5C(1), 7A, 85 (4), 120(4)
Veterans' Entitlements Amendment (Gold Card) Act 1998 – s 85(4A)
Repatriation Commission v Thompson (1988) 44 FCR 20
Willcocks v Repatriation Commission (1992) 39 FCR 49
Re Crawford v Repatriation Commission (1987) 14 ALD 341
Re Carlyon and Repatriation Commission (AAT 12957, 6 May 1998)
Re Corrick and Repatriation Commission [2000] AATA 143
David Jenkins, Battle Surface! Japan's War Against Australia 1942-44, Milsons Point, Random House Australia, 1992.
REASONS FOR DECISION
Rear Admiral AR Horton AO, Member
This is an application for review of a decision dated 29 September 1998 by a delegate of the Repatriation Commission ("the Respondent"), and affirmed by review under section 57 of the Veterans' Entitlements Act 1986 ("the Act") on 20 January 1999, that Stanley Ernest Miller ("the Applicant") did not render qualifying service for the purposes of section 7A of the Act, and hence is not eligible for a Gold Card under subsection 85(4A) of the Veterans' EntitlementsAmendment (Gold Card) Act 1998 ("the Gold Card Act"). The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 14 April 1999.
The Applicant was self represented at a telephone hearing before the Tribunal on 22 November 1999, and following an adjournment requested by the Respondent to obtain further evidence, again by telephone on 10 March 2000. Mr J Marsh, Senior Advocate, appeared for the Respondent. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also took into evidence:
A marked copy of a map showing the location of the Applicant's unit on the night of 7/8 June 1942 (Exhibit A1).
An extract from World War 2 Official History Series – Royal Australian Navy 1939 – 1942 by G Hermon Gill (Exhibit R1).
A report with attachments by Colonel C H Ducker, MC, Military Historian, dated 20 October 1999 (Exhibit R2).
A report with attachments by Mr B G O'Keefe, Consultant Historian, dated 13 January 2000 (Exhibit R3).
ISSUES BEFORE THE TRIBUNAL
The Applicant claims qualifying service as a prerequisite for eligibility for a Gold Card. Eligibility is established pursuant to subsection 85(4A) of the Gold Card Act, which states:
"(4A) A veteran is eligible to be provided with treatment under this Part for any injury suffered, or disease contracted, by the veteran, whether before or after the commencement of this Act, if:
(a)the veteran is 70 or over; and
(b)the veteran has rendered qualifying service during the period covered by paragraph (b) of the definition of period of hostilities in subsection 5B(1); and
(c)either:
(i)the Department has notified the veteran in writing that he or she is or will be eligible for such treatment; or
(ii)the veteran has notified the Department in writing that he or she seeks eligibility for such treatment."
Qualifying service is defined in section 7A of the Act, which states relevantly:
"(1) …
(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; or
…"
Subsection 5B(1) defines the period of hostilities and states, relevantly:
"(1) …
(b)World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included): or
…"
FACTS AND EVIDENCE
The Respondent concedes that the Applicant is a veteran as defined in section 5C of the Act. The Applicant was aged 74 at the time of the application for the Gold Card and hence meets the criteria for age as defined in subsection 85(4A)(a) of the Gold Card Act. The Respondent also concedes that the Applicant rendered service during the period of hostilities as defined in subsection 5B(1).
The Applicant enlisted in the Citizen Military Forces ("CMF") on 26 February 1942 (T3), serving in the Australian Army from 24 March 1942 until 23 July 1946. He gave evidence that after initial training at Georges Heights, he undertook a searchlight course at Scheyville before being posted to 51 Australian Anti Aircraft Company (Searchlights) based in the Newcastle area. He was attached to this unit on the night of 7/8 June 1942 when a Japanese submarine, later identified as I-21, shelled the port of Newcastle.
Service at Newcastle
The movements and actions of I–21 are now well documented, both in the exhibits and in supporting documentation, albeit there are discrepancies between the contemporaneous reports of the attack, and the later information gained from Japanese sources ('Battle Surface! Japan's Submarine War Against Australia 1942-1944' by David Jenkin). At 0100 on 8 June, an air alert in response to an unidentified aircraft was sounded at Newcastle, the all clear being given some 25 minutes later. At 0215, I-24 fired at the city from a position some 7000 yards north east of Fort Scratchley, located just south of the southern breakwater. The submarine fired over the stern whilst proceeding north east, and Japanese records indicate that 34 shells were fired, eight being star shells to illuminate the target, the remainder being 5.5inch high explosive ("HE"). Most HE shells did not explode. Contemporary records indicate that eight shell landed in the general area of the steelworks and four in the Fort Scratchley area. The remainder landed in the harbour or fell short of the city, whilst two landed in the river behind Fort Wallace.
At issue in this matter is the location of the Applicant at the time the attack took place. In his initial evidence, the Applicant stated that his unit was detached to Pippy's Beach in support of an ("Anti-Aircraft") Battery. He believed the unit's location to be adjacent to the golf course, possibly about three miles north of Fort Wallace, which in turn was about one mile north of Stockton. At this juncture, the Respondent sought an adjournment in order that further research could be undertaken as to the location of the Applicant's unit.
In the resumed hearing on 10 March 2000, the Respondent sought to further clarify the location of the Applicant's unit on 8 June 1942, in the light of the report by Mr O'Keefe, Consultant Historian. In his report at Exhibit R3, Mr O'Keefe described the task of locating the whereabouts of the Applicant's unit and (the existence of) Pippy's Beach as being 'unexpectedly difficult'. He confirmed that Fort Wallace is in fact two miles (3.4 kilometres) north of Stockton. As to the existence of Pippy's Beach and its location, a wide search of relevant reference material failed to identify such a beach, and Mr O'Keefe concluded that the name was an informal or unofficial title. He postulated that this conclusion could be drawn from the War Diary of HQ Newcastle Anti Aircraft Searchlight Battalion which in a list of grid references for searchlight stations dated 31 May 1942, referred to Pippy (Station No 7). The Tribunal is in accord with this conclusion.
11. Mr O'Keefe was unable to locate a War Diary for 51 Anti Aircraft Company (Searchlights), but did locate a War Diary bearing the designation '51 Searchlight Battery', indicating that it may well have been the Applicant's unit, and confirming that the unit was located in the Newcastle area. However, no other information that might assist in this matter was contained therein.
12. In cross examination, the Applicant confirmed his earlier view that his unit was stationed at Pippy's Beach, north of Fort Wallace and in support of a Link AA Battery equipped with Bofors 40 millimetre guns. He believed it was adjacent to the southern edge of the golf course and mental hospital, at the foot of the sandhills backing the beach, and in the light of further consideration and research, about one mile north of Fort Wallace. The task of his unit was to co-ordinate with, and provide support to, the Link Battery; the latter unit did not fire during the Japanese submarine attack. The Applicant stated that he heard gunfire, and on walking to the crest of the sandhills, saw flashes of light from gunfire or perhaps a searchlight reflecting off the hull of I-24. His unit remained 'ready to expose', and he remained on duty until the unit was stood down. He stated that he believed he had heard the noise of enemy shells but could not observe where they landed.
13. Mr O'Keefe was called to give telephone evidence. He stated that he could not resolve the geographic location of the grid reference given in the 51 Searchlight Battery War Diary for 'Pippy' but considered the unit location, as marked by the Applicant on Exhibit A1, to be 1.36 miles north of Fort Wallace. In the absence of confirmatory data, he had perforce accepted the earlier evidence of the Applicant as to the location of his unit.
14. One other matter in regard to the Applicant's period of service in the Newcastle area was considered by the Tribunal in respect of the issue of qualifying service. The Applicant gave evidence that in July/August 1942, that is after the Japanese submarine attack, the beach north of Stockton on which his unit was located was strafed by a United States Kittyhawk aircraft, presumably on a weapons training flight. Personnel took evasive action, and in the course of clearing the beach, the Applicant ran into a tree stump, injuring himself in the stomach and knee. The Applicant acknowledged that this incident did not meet the criteria of 'incurring danger from hostile forces', but nonetheless drew on the incident as evidence that servicemen were often exposed to danger.
Service in Bougainville and Rabaul
15. From March 1943, the Applicant was employed in various Australian Workshop Companies, until transferred to 1 Floating Watercraft Workshop for service outside Australia. He took passage by air to Bougainville in early September 1945 (T3). He stated that about a month later he took passage in KALANGA to Rabaul. He recalled that the weather was heavy enroute, but no incidents took place. To his knowledge, the ship was not escorted.
16. During his service in Rabaul until his return to Australia in June 1946, the Applicant was employed guarding Japanese prisoners of war. He was armed with a rifle, but was not issued with any ammunition. He stated that whilst nothing occurred, he considered he was at risk when undertaking these guard duties, as the prisoners were issued with machetes and axes to enable them to clear jungle. In his words, 'not all Japanese were docile'.
ANALYSIS OF EVIDENCE AND FINDINGS
In considering whether the Applicant meets the criteria for qualifying service as defined in section 7A(1)(a)(i) of the Act, the Tribunal considers both his service in the Newcastle area, and in particular the events of 8 June 1942 when the Japanese submarine I-21 fired shells into Newcastle, and the subsequent service of the Applicant outside Australia from 11 September 1945. The relevant standard of proof is that of reasonable satisfaction pursuant to subsection 120(4) of the Act.
Section 7A(1)(a)(i) requires that the Applicant incur '…danger from hostile forces of the enemy…'. This term has been given an authoritative and objective definition by the Full Federal Court in Repatriation Commission vThompson (1988) 44 FCR 20, in which Davies, Wilcox and Foster JJ stated at pp23-24:
"…
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, there is mere risk of danger. Danger is not incurred unless the serviceman is exposed, at risk or in peril of harm or injury.
The danger incurred must of course be more than a merely fanciful danger or a danger so minimal that a rule of de minimus applies. But to say that is not to give a flavour to the word. Rather it is to use it in its ordinary sense.
…"In making his final submission, the advocate for the Respondent submitted that the incident at Newcastle where a United States aircraft strafed army personnel on the beach north of Stockton, whilst clearly placing the Applicant in danger, did not meet the criteria of 'operations against the enemy' nor 'incurring danger from hostile forces'. The Tribunal accords with this view, and sees no reason to address case law on this issue, on the basis of the evidence given by the Applicant.
20. In respect of the circumstances of the attack on Newcastle by I-21 on 8 June 1942, the Respondent conceded that the Applicant was serving in that locality, and was on duty at the time of the attack. The Respondent also tacitly acknowledged acceptance, that on the evidence available, the Applicant's unit was probably stationed near the Link AA Battery about one mile north of Fort Wallace.
21. The Respondent submitted that even were the Applicant's unit stationed one mile north of Fort Wallace, the only evidence available to the Tribunal in regard to the proximity of enemy shells related to the two shells that landed in the river to the west of Fort Wallace, their impact point being some one point three miles (or two point one kilometres) from the position of the Applicant. The Respondent submitted that in those circumstances, the Applicant was in no danger, as defined objectively in Thompson (supra).
22. The Tribunal is mindful of the decision of the Tribunal in Re Crawford vRepatriation Commission (1987) 14 ALD 341. The matter related to a soldier stationed on a wharf in the vicinity of the torpedoing of HMAS KUTTABUL in Sydney Harbour on 31 May 1942. That Tribunal stated at p 347:
"…It is again not sufficient for an applicant to believe, even strongly, that he or she was in danger if in reality there was in fact no danger. That is, the test of 'danger' must entail an analysis of the actual military situation quite independent of an applicant's own view or perception of it at the relevant time. There must be established an actual risk of physical or mental harm."
23. In that matter, the Tribunal found in favour of the Applicant, being satisfied that he incurred danger, being in the wharf area and 'possibly within 300 yards ' of where the torpedo detonated. In the matter presently under consideration, this Tribunal accepts the submission of the Respondent that the Applicant was not within two kilometres of the point of impact. It is considered immaterial as to whether the shells exploded or not.
24. The circumstances of Re Carlyon v Repatriation Commission (AAT 12957, 6 May 1998) have relevance to the consideration of the "incurred danger" test in this matter. In that instance, the Tribunal accepted that a bomb dropped on Townsville in July 1942 and, probably intended for the harbour, impacted elsewhere and no more than two kilometres from the Applicant. That Applicant contended that the bomb could as easily have landed in his position. Noting that case law has well established that for the veteran to have incurred danger he need not have been subject to actual physical or mental injury, that Tribunal was satisfied that the veteran had incurred danger.
25. The Applicant in this matter has submitted that he was in danger during the submarine attack on Newcastle. The Tribunal is of the opinion that this matter is on all fours with Re Carlyon (supra), to the extent that the Applicant 'incurred danger'. Notwithstanding that he suffered no injury, and indeed cannot say that he observed the impact of enemy shells, such shells landed some two point one kilometres from his location, their trajectory possibility passing about one kilometre to the south of his position. In reaching this position, the Tribunal takes account of the Respondent's stated position that to date the furthest point of proximity acceptable to the Respondent is two kilometres.
However, the Applicant is also required vide s 7(A)(1)(a) to meet the criteria of rendering service "during a period of hostilities ...in the field or...military…operations against the enemy…at a time when the person incurred danger from hostile forces..." The Respondent referred to the matter of Willcocks v Repatriation Commission (1992) 39 FCR 49, where Cooper J stated at p55:
"…It is not a correct approach to widen the category of service under s36(1)(a)(i) to include activities reasonably incidental to military operations as themselves being military operations. Whether or not an activity falls within the section will depend upon determining in a practical way whether or not the conduct or the activity was an integral part of naval, military or aerial operations against the enemy."
Cooper J went on to say at p55 :
"The phrase "naval, military or air 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 the service to constitute "qualifying service" within the meaning of section 36 (1) of the VE Act".
Cooper J went on to address the question as to the ordinary unambiguous meaning of "against" in the context of the phrase "military...operations against the enemy", concluding as follows at p56:
"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.
The Full Court decision in Ahrenfeld does not support the applicant's contention that mere "contact with" the enemy is sufficient. In that case, it was held that the expression "actual combat against the enemy" would include conduct which answered the description of integral participation in an activity directly intended for an encounter with the enemy, whether offensive or defensive in character. In my view the phrase "an encounter with the enemy" does not mean mere contact with the enemy. It refers to a hostile offensive or defensive encounter or exchange with the enemy".
28. Accordingly, the role of the Applicant on the night of 8 June 1942 is relevant to the question of whether he was engaged in "military operations against the enemy". From the adduced evidence and as conceded by the Respondent, the Applicant was "stood to" with his unit in response to the threat of enemy attack on Newcastle. His unit was tasked to provide support to the adjacent Link AA Battery. That unit did not fire, the reasons for not doing so being unknown; it could have been because of a lack of any instruction from higher authority to engage the enemy submarine, because of the difficulty in identifying the target, or because of the particular nature of the weapons available to the battery, these perhaps being unsuitable for use against distant surface targets. The reason for the battery not being ordered to engage the submarine is, in the view of the Tribunal, somewhat academic, the real point being that both the Applicant's unit and the AA Battery were "stood to" in response to an enemy attack. In that context, and notwithstanding that no offensive action was taken, that searchlight unit was a component of a "military operation" and required to participate, when ordered or when the circumstances so required, "in hostility or active opposition to" an enemy (Willcocks supra) threat.
The question as to whether the role of an applicant should be viewed in a passive manner has been addressed by the tribunal in Re Corrick and RepatriationCommission [2000] AATA 143. In that matter, the presiding member concluded that the Applicant had "incurred danger" but had not "engaged in operations against the enemy". In that matter, the Applicant was employed at Victoria Barracks, Paddington, as a clerk, sleeping each night at his parent's home in Bellevue Hill. As concluded by the Tribunal:
"…The fact is that there was nothing in his activity, either at the Barracks or at his parents' home, which could be fairly described as a military operation against the enemy. As was said in Willcocks, operation is clearly a noun of action. There is neither claim nor evidence that anything the applicant did or was required to do involved opposition to the enemy or had any colour of hostility to it."
The Tribunal concluded its reasoning at paragraph 23 as follows:
"The fact that the applicant incurred danger on one particular night coupled with the fact that he was member of the armed forces on that night is not sufficient to bring him within the definition of qualifying service. If he incurred danger he did so, not because he was engaged in operations against the enemy, but merely because he happened to be staying in an area that, at that time, was endangered. This is not sufficient for the purposes of the section."
30. As in the matter of Re Corrick (supra), this Tribunal considers it is also bound by the interpretation put upon the Act by Cooper J in Willcocks (supra). However, the circumstances of the matter differ from Re Corrick (supra) to the extent that Mr Miller was on duty with his unit in preparation for a response to an enemy threat, which in the event became a shelling of the Newcastle area. In that context, the Tribunal finds, to its reasonable satisfaction, that the Applicant meets the requirements of section 7A(1)(a)(i) in respect of qualifying service. That being the case, the matter of the Applicant's further service on passage to, and in Bougainville and Rabaul is not further considered.
31. The Tribunal therefore sets aside the decision under review, namely that of the Repatriation Commission dated 29 September 1998, and in substitution therefor determines that the Applicant rendered qualifying service as defined in section 7A(1) of the Act, and is therefore entitled to the Gold Card pursuant to subsection 85(4A) of the Gold Card Act.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of
Rear Admiral A R Horton AO, Member
Signed: .....................................................................................
AssistantDates of Hearing 22 November 1999 – 10 March 2000
Date of Decision 27 April 2000
Solicitor for Applicant Self-represented
Advocate for the Respondent Mr J Marsh
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