Mills and Repatriation Commission - [2000] AATA 477

DECISION AND REASONS FOR DECISION [2000] AATA 477

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/781

VETERANS'     APPEALS      DIVISION           )
           Re      GORDON WILLIAM MILLS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr A. Argent, Member

Date14 June 2000
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 of the enemy
Veterans' Entitlements Act 1986 s. 7A
Repatriation Commission v Thompson (1988) 82 ALR 352

REASONS FOR DECISION

14 June 2000 Mr A. Argent, Member

Background

This is an appeal by Mr Gordon William Mills ("the veteran") against a decision of a senior delegate of the Repatriation Commission ("the Commission") dated 5 May 1999.
That decision affirmed a previous decision of the Commission dated 21 October 1998 which determined the veteran had not rendered qualifying service during the period of hostilities of World War Two and thus was not entitled to a Gold Card.
The period of hostilities of World War Two 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 Two.
Issue
The issue before the Tribunal is whether the veteran rendered qualifying service during World War Two and specifically, on the balance of probabilities, whether he "incurred danger from hostile forces of the enemy" when he was a member of 155 Radar Station RAAF, stationed at Exmouth Gulf, in 1944.
The Evidence
The Tribunal had before it the documents ("the T documents") lodged by the Commission pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Included in these documents is material supplied by the veteran concerning his service in 155 Radar Station at Exmouth Gulf.
The Tribunal also took in as evidence:
(a)The Operations Record Book of 35 Zone Filter Centre, RAAF for the period 2-20 December 1944;
(b)Supplementary Report to the Unit History Sheet, December 1944 of 31 Radar Station;
(c)Two reports from historian, Associate Professor J. McCarthy, dated 18 January 2000 and 1 May 2000;
(d)Excerpts from:
(i)The Official History, Royal Australian Navy 1942-1945 by G. Hermon Gill;
(ii)The Official History, Air War Against Japan 1943-1945 by George Odgers;
(iii)U-boat Far from Home by David Stevens.
The veteran was represented by Mr A. Smith, solicitor, of John Ball and Sons and the Commission was represented by Mr R. Douglass, a Commission advocate.
The veteran was born on 2 August 1924 and served in the RAAF from 2 September 1942 to 4 February 1946. He was a radar operator and one of his postings was to 155 Radar Station, at Exmouth Gulf, West Australia. He claims he incurred danger from the hostile forces of the enemy during his service at Exmouth Gulf on three occasions:
(a)His journey by sea from Fremantle to Onslow (the port for Exmouth Gulf) in MV Koolinda 2-5 August 1944, when there was danger from enemy submarines,
(b)One night in September 1944 flares were seen at an estimated distance of three miles from his location. The veteran was one of an armed party of eight to investigate the occurrence. He said that next day another patrol found flare containers and evidence of a fire and slaughtered sheep on the beach. He believes an enemy force had landed and thus he incurred danger, and
(c)In December 1944 Intelligence warned there were indications of an enemy submarine operating somewhere off the West Australian coast. The next day, 7 September 1944, at about midnight, an unidentified track of a possible submarine was plotted by radar. The veteran said that small arms, ammunition and grenades were issued, extra guards were mounted, a flare was seen and the beach patrolled "to prevent a landing". He added this suspected submarine was later attacked by three British destroyers off Fremantle a few days later but without success. He believed he incurred danger due to the proximity of the enemy submarine and that it could have shelled his locality.
The veteran said the fact that the RAAF flew anti-submarine patrols also added weight to his contention there was enemy submarine activity off the West Australian coast. In addition, he said 35 Zone Filter Centre Operations Record Book showed a local Tiger Moth was sent out to investigate on 7 December 1944.
The RAN Official History and other written evidence shows a number of German U-boats were based in the Far East in 1944. Of four detailed to operate in Australian waters, one (U-168) was sunk by a Dutch submarine off the coast of Java on 5 October 1944; another (U-537) was sunk by a USN submarine off Bali on 9 November 1944; U-196 departed Jakarta 11 November 1944 according to the Official History (30 November 1944 according to U-boat Far from Home), failed to respond to recall signals sent on the day of sailing and on subsequent days and was presumed lost on 22 December 1944. The fourth submarine was U-862. This vessel departed Jakarta on 18 November 1944 and attacked Ilissos, about 120 nautical miles south of Adelaide, on 9 December 1944.
Because the outbound track of U-862 was more than 200 nautical miles west of Exmouth Gulf and the occurrences of precautionary measures taken at Exmouth Gulf on 7 December 1944 and the attack on Ilissos on 9 December 1944 and the distance between these two places (more than 2000 nautical miles), the U-862 could not have been involved at Exmouth Gulf. The veteran concedes this and postulates U-196 could have been the most likely cause leading to the events he describes.
The Commission's evidence, based on the Official Histories, the reports of Associate Professor McCarthy and U-boat Far from Home is that there were no enemy submarines operating in the waters between Fremantle and Onslow when the veteran was in MV Koolinda in early August 1944. The Operations Record Book referring to this voyage has the entry, "MV Koolinda arrived at Onslow and at 1730 hours personnel disembarked after an uneventful trip".
In his written and oral evidence, Associate Professor McCarthy stated there was no evidence in the veteran's unit Operation Record Book of any reports of enemy infiltration during the period mentioned by the veteran, i.e. in September 1944, or at any other time. One report, in November 1944, states, "This unit has been working on a standby basis since its arrival and no operational activity has taken place." Associate Professor McCarthy added it would be most unusual for a submarine commander to land a shore party and such an action would be contrary to their mission. On the hypothesis that it could have been U-196 (which sailed from Jakarta on 11 November or 30 November) in Exmouth Gulf on 7 December 1944 and which could have fired on the radar stations there or landed sailors, he said it was "persuasive rather than convincing".
He went on to say the search for enemy submarines was the role of 14 Squadron RAAF, based at Pearce, (just north of Perth) and the Unit History Sheet for December 1944 has no entry suggesting the Squadron being placed on alert. "Negative enemy sightings" occurs regularly in the History Sheets.
Associate Professor McCarthy also said there is no record of British destroyers being deployed to search for enemy submarines during December 1944 and there is no reference in other records he examined concerning enemy submarines being sighted during the period under review.
Regarding Japanese submarines and the West Australian coast he said their last operations were of a reconnaissance nature and took place in September 1943 and May 1944.
Findings
The 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:
(a)During his voyage from Fremantle to Onslow 2-5 August 1944
(b)During one night in September 1944 when he was stationed at Exmouth Gulf and was a member of an armed party investigating flares seen at night, and
(c)Around 6-7 December 1944 when there was a report indicating an enemy submarine operating somewhere off the West Australian coast, and his unit's reaction to this report.
"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."
On the veteran's claim that he incurred danger from enemy submarines during his voyage from Fremantle to Onslow 2-5 August 1944, the Tribunal believes there were no submarines operating in those waters at that time, that his journey was uneventful and free from any risk of an enemy attack. The Tribunal therefore finds the veteran did not incur danger from the hostile forces of the enemy during this voyage.
On the veteran's second claim that he incurred danger in September 1944 from an occurrence that led to him being a member of an armed party that investigated flares being seen during the night, the Tribunal believes on the balance of probabilities, that no enemy were involved in this incident as all evidence is against such a purposeless night landing. In any event, there was no hostile action against any of the Australian forces in the vicinity. The Tribunal finds the veteran incurred no danger from the hostile forces of the enemy during this particular incident.
The veteran's final claim relates to enemy submarine activity near or in Exmouth Gulf. The evidence is that Allied Intelligence know of the intended German U-boat operations and guarded warnings were sent to units along the West Australian coast and other formations. Naturally, units such as that in which the veteran served took appropriate measures.
History shows the only enemy submarine which may conceivably have been in the area was U-196 but evidence is against this. The evidence is that U-196 failed to respond to recall signals the day she sailed (and to all other signals thereafter) – whether it was 11 November or 30 November does not affect the case – and this strongly suggests U-196 perished soon after leaving Jakarta. A U-boat would not ignore an order for a position report, for example. Allied Intelligence would not have been aware of the boat's disappearance for some time – probably by about 22-24 December 1944.
Again, even assuming there was an enemy submarine in the area of Exmouth Gulf in early December 1944, there was no enemy activity against Allied forces there. The veteran was not exposed to harm or injury from the enemy and was not at risk or in peril of harm or injury from the enemy. The Tribunal therefore finds the veteran did not incur danger during this incident at Exmouth Gulf in early December 1944.
As a consequence of these three findings, the veteran did not render qualifying service and is not entitled to the issue of a Gold Card.
Decision
The decision of the Commission is affirmed.
I certify that the twenty-seven (27) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr A. Argent, Member
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  26 May 2000
Date of Decision  14 June 2000
Solicitor for the Applicant         Mr A. Smith, John Ball & Sons
Solicitor for the Respondent    Mr R. Douglass, Departmental Advocate