Mirabito and Repatriation Commission - [2001] AATA 453

Administrative
Appeals
Tribunal

DECISION AND REASONS FOR DECISION [2001] AATA 453

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/107

VETERANS' APPEALS DIVISION )

ReREGINALD MIRABITO
Applicant

AndREPATRIATION COMMISSION
Respondent

DECISION

TribunalRear Admiral A R Horton, AO RAN, Member
Date28 May 2001
PlaceSydney
DecisionThe decision under review is affirmed
[sgd] Rear Admiral A R Horton
Member

CATCHWORDS

VETERANS' AFFAIRS – gold card eligibility - whether Applicant rendered qualifying service – Army service during period of hostilities – service in the Sydney area during Japanese submarine attacks in 1942 – service in Darwin area 1944/45 – whether Applicant incurred danger from hostile forces of the enemy

Veterans' Entitlements Act 1986 – ss 5B(1), 5C(1), 7A, 119, 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 and Repatriation Commission (1987) 14 ALD 341,
Re Halstead and Repatriation Commission [2000] AATA 597
Re Smith and Repatriation Commission [2000] AATA 111
Re Corrick and Repatriation Commission [2000] AATA 143
Re Pearse and Repatriation Commission [2000] AATA 330
Re Carlyon and Repatriation Commission (AAT 12957, 6 May 1998)

REASONS FOR DECISION
Rear Admiral A R Horton, Member

Introduction

This is an application for review of a decision made on 13 June 2000 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 27 October 2000, that Reginald Mirabito ("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 section 85(4A) of the Veterans' Entitlements Amendment (Gold Card) Act 1998 ("the Gold Card Act"). The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 25 January 2001.
At the hearing before the Tribunal on 3 May 2001, the Applicant was self represented. 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 received into evidence a report by Mr B G O'Keefe, consulting historian, dated 3 April 2001 (Exhibit R1).

Issues before the tribunal

The Applicant claims qualifying service as a prerequisite for eligibility for a Gold Card. Eligibility is established pursuant to section 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:
the veteran is 70 or over; and
the veteran has rendered qualifying service during the period covered by paragraph 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."

The Respondent concedes that the Applicant is a veteran as defined in section 5C of the Act, that he served during the relevant period of hostilities as defined in section 5B(1) of the Act, and that he meets that criteria for age as defined in section 85(4A)(a) of the Gold Card Act. Hence, the only issue in this matter is whether the Applicant rendered qualifying service for the purposes of the Act. The required standard of proof is that of reasonable satisfaction, pursuant to section 120(4) of the Act.

Facts and evidence

The Applicant was born in 1918. He gave evidence that he was conscripted into the Citizen Military Forces ("CMF") in early 1940, (which is confirmed in the Service and Casualty Form at T3, folio 9), thereafter being required to undertake periodic training periods with 17 Infantry Battalion, which he described as 'three months in – three months out'. The Applicant believed the training took place at French's Forest. There is uncertainty as to where these periods of training actually took place, but the Tribunal is of the opinion that nothing hangs on these uncertainties during this period.
On 23 December 1941, the Applicant marched in to 17 Battalion for full time CMF service. In evidence he stated that during general military and weapon training at Ingleburn, he was classified as a cook, although he never served in such capacity. (T3, folio 9 indicates that the cook categorisation was withdrawn on 26 March 1942). The Applicant remained with 17 Battalion until late 1942 when he transferred to artillery wherein he was variously employed in anti-aircraft and fortress signals duties.
The Applicant gave evidence that 17 Battalion moved from Ingleburn to Balmoral, this being sometime in the period prior to the Japanese midget submarine attack on shipping in Sydney Harbour on 31 May/1 June 1942. He stated that he did not physically remain with the battalion at Balmoral, but was out-posted to Georges Heights, where he undertook a specialist driving course. The Applicant further stated that he was at Georges Heights, and on guard duty, when the midget submarine attack occurred. He believed 108 Light Anti-Aircraft Battery was stationed at Georges Heights. He also gave evidence that he was the driver for Major Chipman, the Officer Commanding D Company. A photograph of that Company labelled 'Balmoral' appears to confirm that both he and Major Chipman were attached to D Company.
In a report dated 3 April 2001, Mr O'Keefe reports on the results of his research into the whereabouts and movements of 17 Battalion during 1942 (Exhibit R1). He states that the unit's War Diary shows that it was based at Wallgrove Camp, on the western outskirts of Sydney, at the beginning of May 1942. On 30 May, an advance party proceeded to French's Forest Cadre Camp, and the next entry (for 1 June) reports the movement of the main body of the battalion. The War Diary of 9 Infantry Brigade, of which 17 Battalion was a part, confirms these movements, and records that the main body left Wallgrove Camp at 0600 on 1 June, by which time the attacks in Sydney Harbour were well over.
The War Diary of 9 Infantry Brigade records that this Brigade was tasked with relieving 8 Infantry Brigade at various positions north of Sydney Harbour, and that 17 Battalion did not complete its relief of elements of the latter brigade, at posts located at Long Reef and Turrimetta Head, until 6 June. Mr O'Keefe records that no mention is made in the War Diaries, of any battalion or brigade personnel being stationed at Georges Heights or guarding the artillery units located there. Mr O'Keefe also researched the War Diaries of various artillery units finding that 108 Light Anti-Aircraft Battery was not formed until August 1942. Further, he found that the diaries of 1 Heavy Anti-Aircraft Battery, (which was stationed at Georges Heights in May/June 1942), and various relevant command organisations, do not make any reference to 17 Battalion.
On 8 June, Japanese submarine I-24 shelled Sydney from a position some 14.5 kilometres south east of Macquarie Light as recorded in 'Battle Surface! Japan's Submarine War against Australia 1942-1944' by David Jenkins, based on authoritative Australian and Japanese sources. At that time 17 Battalion, from the records, was stationed in the northern beaches areas as previously referred to. Again there was no reference from the research of Mr O'Keefe to 17 Battalion, or any members thereof, being stationed at Georges Heights.
The Applicant did not resile from his position, that he had been on course at Georges Heights and carrying out perimeter guard duty when the midget submarine attack took place. He gave evidence that whilst he was not aware until the following day that the attack had been by a midget submarine, he did hear and feel an explosion which he thought was not far from Georges Heights. In regard to the later shelling of Sydney by I-24, he was still at Georges Heights, but on that occasion was not on duty and hence was in bed. The Applicant was not aware of the attack until the following day.
From the evidence and the records it is unclear when the Applicant was then posted to the Newcastle area. His Service and Casualty Form (T3) indicates that he served at Georges Heights from early November 1942 in 17 Battalion, and his military driving licence confirms that he was at that location at that time. The Applicant believes this was a separate occasion to the earlier period when he was so stationed at the time of the Japanese submarine raids. The Applicant gave evidence that he then transferred to 108 Australian Light Anti-Aircraft Regiment in late 1942 – the Service and Casualty Form supports this posting but at a later time.
It seems that the Applicant then transferred to the Newcastle area, his postings variously being in an Anti-Aircraft Regiment and Fortress Signals. He gave evidence that his employment was in the fields of telegraphic mechanics and line working and cable joining. He lived in an orphanage just outside the city. The Applicant could recall no incidents that might have been related to enemy activities. In December 1943 he transferred to the Australian Imperial Force ("the AIF"), and in his own words, 'was willing to be posted, and to die, for the cause'.
From 14 September 1944, as recorded by the Central Army Records Office (T5, folio 13), Mr Mirabito served in the prescribed operational area of the Northern Territory, north of 14.5 degrees south latitude. He was stationed at East Point, Darwin, and his transfer to that location took place by train and trucks. He continued to serve in the fields of artillery (anti-aircraft) and fortress signals. He referred the Tribunal to medical problems that arose at the outset of that period of service. He gave no evidence of any enemy activities, although he indicated his concerns at the time, of threat from enemy submarines.
Central Army Records Office records that the Applicant's service in the Northern Territory concluded on 27 February 1945 (T5, folio 13). The Applicant cannot recall by what means he travelled south. He was discharged from the army on 1 September 1945.

Analysis of evidence and findings

The issue to be considered in this matter is whether the Applicant rendered qualifying service by meeting the 'incurred danger' test pursuant to section 7A(1)(a)(i) of the Act, the other criteria required under subsection 85(4A) in respect of eligibility for the Gold Card having been met.
"Qualifying service" is defined in section 7A of the Act which relevantly provides:-

"7A.(1)For the purposes of Part III, a person has rendered qualifying service:
(a)if the person has, as a member of the Defence Force:

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

..."

The Respondent submitted that the relevant test was an objective one rather than a subjective one, and that the authoritative definition in respect of such a test was found in Repatriation Commission v Thompson (1988) 44 FCR 20. In that matter, the Full Court stated 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 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."
The danger incurred must of course be more than a merely fanciful danger or a danger so minimal that a rule of de minimis applies. But to say that is not to give a flavour to the word. Rather it is to use it in its ordinary sense…"

The Respondent submitted that on the evidence available to the Tribunal, the Applicant did not meet this authoritative objective standard at any stage in his army service, and further referred the Tribunal to the following decisions in support of this contention: Re Crawfordand Repatriation Commission (1987) 14 ALD 341; Re Smith and RepatriationCommission [2000] AATA 111 and Re Pearse and Repatriation Commission [2000] AATA 330.
The evidence as to the Applicant's period of service and the location of his unit in the Northern Territory, including the means by which he travelled to and from that area, is incontestable. The Tribunal can thus consider the available evidence in that context, as to whether the Applicant met the requirements for qualifying service. The situation within the Sydney area is less clear. Section 119 of the Act states that the 'Commission is not bound by technicalities' and in particular section (1)(h) states:

"(h) without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of the veteran, or a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities."

In this matter, the evidence is that the Applicant was a member of 17 Battalion. Based on the evidence of Mr O'Keefe, members of the battalion were either at French's Forest (advance party) or still at Wallgrove, when the Japanese midget submarine attack took place in Sydney Harbour on 31 May/1 June 1942. When the shelling of Sydney by a Japanese submarine occurred eight days later, the unit's headquarters were located at French's Forest, and the relief of elements of 8 Brigade on the northern beaches had been completed. On that evidence, the Applicant was not in the vicinity of Sydney Harbour, nor the eastern suburbs where the attacks respectively occurred.
The evidence of the Applicant, on the contrary, is that he was stationed at Georges Heights on both occasions, and that his unit was at Balmoral. The Tribunal accepts that the battalion command may well have overlooked the recording of this individual detachment, and is reasonably satisfied that the Applicant could have been at Georges Heights as claimed. The Tribunal therefore addresses the issue of 'incurred danger' accordingly.
The Respondent submitted that on the occasion of the Japanese midget submarine attack, the Applicant was in no danger, even if he were on duty at Georges Heights. The submarines were armed with torpedoes, and had no capability for any other form of attack. The Respondent submitted that the decision in Re Crawford (supra), as followed in Re Pearse (supra), was relevant to the particular circumstances in this matter and should be followed.
In the matter of Re Crawford (supra), the applicant had been working on the wharves in the vicinity of Woolloomooloo Bay or Rushcutters Bay. At the time of the midget submarine attack, he and his fellow servicemen were unable to work in the absence of a crane driver and 'spent the evening on the wharf behind a shed'. The Tribunal in that matter found that 'hostile forces of the enemy were in the area at the relevant time' and at ALD 348 that:

'the nature of the "forces" and their weaponry were quite specialised, and as we have said, these special aspects would not have created any danger to persons away from the area of the harbour that we have already identified".

That Tribunal concluded, to its reasonable satisfaction, that the applicant had incurred danger, being stationed (in a 'special location') on a wharf on the south side of Sydney Harbour during the attack. However the Tribunal went on to say at ALD 349:

"based on what we have already said about the armaments of the submarines, he was unlikely to have "incurred danger" if he was at some geographical location other than in the vicinity of ships or wharves on the south side of the harbour and east of the Harbour Bridge".

The evidence of the Applicant in this matter is that whilst he heard and felt an explosion, he had no idea where that originated. He saw nothing by way of enemy forces, and in the absence of evidence to the contrary, was clearly not required to participate in any operations against the enemy. His guard duties were apparently part of normal military activities. The Tribunal accordingly finds that the Applicant did not incur danger in these circumstances.
On the second occasion of a Japanese submarine attack on Sydney, the applicant was off duty and in bed at Georges Heights. He neither saw nor heard any activity and was not aware of the shelling until the following morning. The Respondent again referred the Tribunal to the decisions in Re Crawford (supra), as followed in Re Smith (supra) and Re Pearse (supra). In the opinion of the Tribunal, Re Crawford (supra) has relevance as it establishes the necessary geographic relationship between the location of an applicant, the type of weapon available to, and used by, the enemy, and the impact area of such weapons. The Respondent also drew on Re Carlyon and Repatriation Commission (AAT 12957, 6 May 1998), as establishing parameters against which an incurred danger test should be considered.
In the matter of Re Smith (supra), which was in respect of an applicant attached to a medium artillery regiment stationed on the Lakes Golf Course, the Tribunal rejected the submission that the applicant had incurred danger, stating at 20 and 21:

"20. The circumstances in Re Carlyon and Repatriation Commission (AAT 12957, 6 May 1998) have some relevance 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. The Applicant submitted that the bomb could just have easily have landed in his position. Noting that case law has well established that for a 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.
21. As previously stated, the Applicant in this matter has submitted that the shells in this instance, could just as easily have landed in his vicinity. The Tribunal is not of the opinion that this matter is on "all fours" with Re Carlyon (supra), the circumstances being different. The Applicant was some eight kilometres from the area where the shells landed, and the evidence is clear that the submarine was firing specifically at a target displaced well away from the location of the Battery…"

Authoritative sources confirm that shells from the enemy submarine landed only in the eastern suburbs of Sydney, that is some kilometres from the Applicant's location. In the circumstances, the Tribunal must find, to its reasonable satisfaction, that the Applicant incurred no danger.
Even had the Applicant incurred danger, section 7A(1)(a)(i) requires it be 'in the field …in military operations …against the enemy ….' This phrase was considered by Cooper J in Willcocks v Repatriation Commission (1992) 39 FCR 49. His Honour said at 55:

"The phrase 'naval, military and 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 operations 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."

His honour went on to say, in regard to the meaning and use of the word 'against', at 56:

"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 services, inter alia, in military operations against the enemy, in the sense of hostility or opposition to the enemy."

This criteria was applied by Deputy President McMahon in Re Corrick andRepatriation Commission [2000] AATA 143, in which the applicant was not successful. The circumstances in Corrick are similar to those in this matter in respect of the Japanese submarine attacks. Mr Corrick was asleep in bed when a shell from I-24 landed in very close proximity. Whilst he was adjudged to have 'incurred danger', his activities on the night were considered by the Tribunal to be 'essentially passive' and 'there was nothing in his activity …which could fairly be described as a military operation against the enemy'. The facts in this matter are on 'all fours' with Re Corrick (supra) in respect of 'operations against the enemy', the Tribunal finding that the Applicant did not participate in any operations 'against the enemy' during his service in the Sydney area.
There was no evidence put before the Tribunal in respect of the Applicant incurring danger during his subsequent period of service in the Newcastle area.
As far as service in the Northern Territory is concerned, the Applicant arrived in the area well after the last air attack on Darwin, authoritatively accepted as being on 12 November 1943. Whilst occasional flights by Japanese reconnaissance aircraft in the vicinity of Darwin subsequently occurred (Re Halsteadand Repatriation Commission [2000] AATA 597), the Applicant gave no evidence that he either saw such aircraft, or was aware of any incidents. The Respondent submitted that there was no specific claim of any danger, and that reliance on the potential for enemy attack, when there was no evidence that any such attacks occurred, was insufficient to meet the incurred danger test. Fear and/or apprehension was not sufficient to meet the criteria defined in Thompson (supra). The Tribunal accords with this submission, and finds to its reasonable satisfaction that the Applicant did not incur danger as required by section 7A(1)(a)(i) of the Act.
The Respondent acknowledged the service of the Applicant in the defence of this country, as does the Tribunal. The Tribunal also recognises that a self represented applicant generally will not have the ability nor resources to research case law that might be of assistance in the presentation of evidence and submissions. However, the legislation as referred to in this decision is quite specific, and the case law drawn on by the Respondent, and in turn addressed by the Tribunal, has resulted from considerations of matters relating to that legislation and the military events and activities impacting on the eligibility for the Gold Card.
In the course of the hearing and in final submission, the Applicant stated his objections to the fact that such words as 'danger' and 'qualifying', as adequately defined in dictionaries, had been given further, and more restrictive, meanings through legislation and resultant interpretations. He considered that these more restrictive interpretations disadvantaged those servicemen, such as himself, who had volunteered for service in any theatre, but had been denied the opportunity. He spoke of the frustration of being transferred to the AIF but not subsequently serving overseas. He questioned the value of training a man to undertake full military operations, and then not putting that training to good use. He referred to his 'Active Service', recorded on his Certificate of Discharge as 1116 days, as providing an entitlement for proper recognition, whereas current legislation accords no such recognition. The Tribunal can but acknowledge these views, and emphasise the decision in this matter has been taken against the extant legislation.
The decision under review is affirmed.
I certify that this and the 35 preceding pages are a true copy of the decision and reasons for decision herein of
Rear Admiral A R Horton, AO RAN, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  3 May 2001
Date of Decision  28 May 2001
Advocate for Applicant             Self represented
Advocate for the Respondent Mr J Marsh
  Department of Veterans' Affairs