Mullen and Repatriation Commission

[2005] AATA 781

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 781

ADMINISTRATIVE APPEALS TRIBUNAL  )
  )              N0         N2004/432
VETERANS' APPEALS  DIVISION               )

ReDENNIS WILLIAM MULLEN

Applicant

AndREPATRIATION COMMISSION

Respondent

DECISION

TribunalMs Robin Hunt, Senior Member

Date16 August 2005    

PlaceSydney

DecisionThe Tribunal sets aside the decision under review and in substitution thereof decides that Mr Mullen has rendered qualifying service, pursuant to the provisions of section 7A of the Veterans’ Entitlements Act 1986, and that he is entitled to be paid service pension with effect from the date of his application, on 3 December 2003.

.............................................
  Ms R Hunt          
  Senior Member

CATCHWORDS

VETERANS' AFFAIRS – Service pension application – RAAF service during period of hostilities – Service on Mulgrave Island in the Torres Strait – Qualifying service –Operations against the enemy – Meaning of “incurred danger” – Applicant incurred danger- Decision set aside.

LEGISLATION

Veterans' Entitlements Act 1986 – ss 7A, 120(4)

CASES

Repatriation Commission v Thompson (1988) 44 FCR 20
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Burton (1993) 31 ALD 475
Re Crawford and Repatriation Commission (1987) 14 ALD 341
Re Bancroft and Repatriation Commission (AAT 11333, 25 October 1996)
Re Dwyer and Repatriation Commission (1987) 13 ALD 424
Tiplady and Repatriation Commission (AAT 3694, 7 August 1987)
Re Mitchell and Repatriation Commission [2001] AATA 1055

REASONS FOR DECISION

16 August 2005                 Robin Hunt, Senior Member

SUMMARY

1. Mr Dennis William Mullen, the applicant, is a war veteran who applied for a service pension on 3 December 2003. A delegate of the Repatriation Commission, the respondent in this matter, rejected Mr Mullen’s claim and another delegate affirmed this decision on 12 March 2004. Mr Mullen was denied a service pension on the basis that he did not render qualifying service. The Tribunal has reviewed the decision and has decided that Mr Mullen has rendered qualifying service and is entitled to be paid a service pension, with effect from the date of his application on 3 December 2003.

BACKGROUND

1. The parties agree that Mr Mullen served with the RAAF from 2 March 1943 to 20 February 1946. During that time, the respondent acknowledges that Mr Mullen rendered valuable service as a radar station operator on Mulgrave Island, which is now known as Badu Island. Mr Mullen served on the island from 8 January 1944 to 5 April 1944.  Mr Mullen believes that his service on the island should be treated as qualifying service and that this satisfies a prerequisite for a service pension.  

1. This is the second application by Mr Mullen which turned on the question of whether his period of service on Badu was qualifying service. Mr Mullen previously sought to establish that he had done qualifying service for a Gold Card. On that occasion, the Tribunal took evidence about the same period of service involved in the present case. The Tribunal reviewed the previous decision to reject Mr Mullen’s qualifying service claim and found, on 3 October 2000, that Mr Mullen did not render qualifying service. 

1. For the present review, Mr Mullen claimed he had further evidence that he incurred danger from hostile forces of the enemy, being the Japanese forces. He asked the Tribunal to consider not only whether he incurred danger from the air but also whether he incurred danger from enemy mines when he made crossings of the Torres Strait by boat. The Tribunal for the present case particularly looked into and investigated the likelihood of danger from hostile forces of the enemy during Mr Mullen’s service on Horn and Mulgrave Island, otherwise known as Badu Island, and his journeys from those places as a member of the 341 Radar Station.

ISSUE BEFORE THE TRIBUNAL

1. The issue for the Tribunal is whether Mr Mullen rendered service during a period of hostilities and incurred danger from hostile forces of the enemy in that area. This is because eligibility for a service pension must be established pursuant to subsection 7A of the Veterans’ Entitlements Act 1986 , which relevantly states, in part:

“7A (1) For the purposes of Parts III 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; or

(ii)…..”

1. The respondent concedes that Mr Mullen rendered service during a period of hostilities and that he meets the test of having served in naval, military or aerial operations against the enemy. The only issue for the Tribunal is whether Mr Mullen rendered qualifying service. The Tribunal must make its decision based on its reasonable satisfaction pursuant to subsection 120(4) of the Act, that is, proof on the balance of probabilities as explained in Repatriation Commission and Smith (1987) 15 FCR 327.

FACTS AND EVIDENCE

1. As is acknowledged by the respondent, Mr Mullen enlisted in the Royal Australian Air Force on 2 March 1943 and served on Mulgrave Island, Torres Strait from 6 December 1943 until 5 April 1945. He was posted to the island after completion of a radar operators’ course. His posting was at 341 Radar Station. The chronological detail of Mr Mullen’s service is set out in detail in the previous Tribunal decision handed down in 2000, that is, Re Mullen and Repatriation Commission [2000] AATA 871. Mr Mullen gave similar evidence to the present Tribunal and much of the detail is verified by a historian, Mr Brendan O’Keefe, who provided a written report to the Tribunal and gave additional oral evidence by telephone at the Tribunal hearing on 20 May 2005.

1. Mr Mullen gave oral evidence that he was flown with the rest of his unit to Horn Island off Cape York. There he was co-located with 88 Radar Station until embarking with his unit and its equipment on a landing barge for their ultimate destination of Mulgrave Island in December 1943. 

1. Mulgrave Island is located approximately 35 nautical miles north of Horn Island.  The unit landed all equipment on the beach and set up a base camp at the foot of Mulgrave Hill. They constructed a road to the top of Mulgrave Hill to enable access for the mobile equipment, generators and 'doover' (housing radar equipment and aerial). Mr Mullen told the Tribunal that the siting of 341 Radar Station was selected in order to provide surveillance and early warning to the north, given that 88 Radar Station on Horn Island, with a similar role, was affected by a 'blind arc' in that direction due to interference to radar coverage from off-shore islands. He said that the equipment and aerial were in an exposed position.

1. The only area of dispute for the Tribunal’s consideration is whether Mr Mullen incurred danger from enemy forces. Firstly, he believes he was exposed to danger from the air while he was posted on Mulgrave Island and, secondly, he was exposed to danger when he crossed the Torres Strait from time to time in the course of his service.

1. Mr Mullen gave oral evidence that he saw enemy aircraft on his radar “in 1944 when things were dying down”. He further told the Tribunal that they would plot which direction a plane was flying and send this information to the fighting sector on Horn Island. They would continue to monitor the flight of any plane spotted. He believed he faced danger from enemy forces in the form of planes in the area. He believed this because the radar station was constructed in a very exposed position and sent information to the fighting forces on Horn Island.

1. Mr Mullen also referred to the bombing of Darwin and the presence of the Japanese forces in New Guinea as evidence that he was exposed to danger when posted in the Torres Strait. He argued that any statement that there were no Japanese planes in the area was pure speculation. He further stated that American Intelligence found that the Japanese did have the capability to bomb the Torres Strait. Mr Mullen said that he knew of three cases where the Tribunal had found that servicemen in a similar location to his were exposed to danger from the enemy. The cases he mentioned were Tiplady and Repatriation Commission (AAT 3694, 7 August 1987), Re Dwyer and Repatriation Commission (1987) 13 ALD 424 and Re Mitchell and Repatriation Commission [2001] AATA 1055.

1. Mr Mullen also gave evidence that he believed he faced danger from the enemy at sea. He was exposed to this threat from Japanese mines laid in the Torres Strait. He suggested these may have drifted and there was the danger that, during the passage to Mulgrave Island, that the vessel on which he was travelling might come into contact with a mine. As evidence of the danger from mines, Mr Mullen referred to a mine washed up on the island. Although he did not see the mine personally, Mr Mullen called a witness in support of his case, Mr Frank Kidd. Mr Kidd gave sworn oral evidence, telling the Tribunal that he saw a mine washed up on the beach on Mulgrave Island during his service there. This was during the same period when Mr Mullen was serving on the island. Mr Mullen contended that this was first hand evidence that Japanese mines were in the area.

1. Mr Mullen explained that, each time he went on leave, he crossed the Torres Strait by boat. Therefore, he was exposed to danger from enemy mines every time he left the island by sea. For example, in September to October 1944, he went on leave and crossed from the island to Jackie Jackie, on the tip of the Cape on the Australian mainland. He returned to the island by ship from Townsville via Jackie Jackie. He said he made four crossings of the Torres Strait in total. Mr Mullen told the Tribunal that in his previous submissions made for his application for a gold card, he dwelt more on the aspect of danger from the air and didn't realise the significance of danger from the sea.  After reading the case of Mitchell, he realised that he might press his case on the danger he incurred while at sea. He had not been aware of this danger during his service. However, Mr Mitchell had achieved recognition of the danger from trips on the sea.

1. The respondent did not dispute that Mr Mullen had crossed the Torres Strait to get to and from the island. Counsel put to the Tribunal that people journeying across the Torres Strait during the War would have experienced fear of danger from the Japanese mines and attack from the air but that there were no recorded incidents. There was no proof either way.

1. Mr Brendan O'Keefe prepared a report, dated 7 June 2000, with respect to Mr Mullen’s earlier application and a further report, dated 28 January 2005, for the present proceedings. He gave further oral evidence that there was no record of any incident relating to mines in the Torres Strait area and that the area was swept of mines in May-June 1945 without any being found. He gave the Tribunal extensive evidence about the drift that existed in the Strait which resulted in most mines being swept away. Mr O'Keefe told the Tribunal that by December '43 the Japanese didn't really have the capacity to do anything about Torres Strait, in the sense that they couldn't take any action to prevent Allied shipping passing through it, and they quickly abandoned any ideas of trying to take any action against shipping in the Strait. Mr O’Keefe then told the Tribunal about the movements of the Japanese and the limited attempts to carry out bombing in the region.

1. On the question of the threat from mines, Mr O’Keefe said that in January 1942, a Japanese submarine laid about 30 mines in the western approaches to Torres Strait, about 140 kilometres west of Thursday Island.  There was probably another minefield laid further west by another Japanese submarine in the following month.  The Australian mine layer, HMAS Bungaree, laid a whole series of defensive mines. He described the laying of mines down the eastern coast of Australia and in the eastern part of Torres Strait.  In Torres Strait, they laid four minefields in locations outlined in his last report. He told the Tribunal further that the Japanese laid their mines in January and probably February of 1942, whereas the HMAS Bungaree laid its mines earlier in late 1941. As to whether they were still there in 1943, Mr O’Keefe gave evidence some were washed away but most of them were still there in late 1943 and right through until they were cleared by two Australian mine sweepers later in the war. However, he added that they were all washed out of place pretty quickly or broke free from their moorings and started floating. He said they were all over the place, wherever the tides took them. As well, there were reports of mines being washed up all around the Australian coast, or at least on the northern and eastern coasts. When asked to make particular reference to the Japanese, Mr O’Keefe said one minefield contained 30 mines. This was the one that was laid in January 1942.  Mr O’Keefe further stated that there was probably a second minefield of around the same number laid further west of the Strait in the following month. 

ANALYSIS OF EVIDENCE AND FINDINGS

1. Mr Mullen believes that enemy activity and the resulting threat to those servicemen posted at Mulgrave Island was greater than the respondent has acknowledged in his case.   Mr. Mullen gave evidence, which the Tribunal accepts, that he made several crossings of the Torrens Strait. Mr Kidd gave evidence which the Tribunal accepts that, when he was on Mulgrave Island at the same time as Mr Mullen, he saw a mine washed up on the beach. Mr O’Keefe, although he expressed doubts about the risk from Japanese mines and emphasised that there were no recorded incidents, conceded that the Japanese did lay mines in the Strait and that they were still there in late 1943. The location of these mines was more problematic later in the war. Several were known to have washed up on beaches. None were discovered by minesweepers in 1945.

1. Like the Tribunal in Mitchell, I reject any notion that to satisfy the conditions of "naval or military operations against the enemy", set out in section 7A, a veteran had to be involved in actual combat against the enemy, although this was not suggested by the respondent in the present case. When Mr Mullen was transported to Mulgrave Island, like Mr Mitchell, he was involved in an operation against the forces of Japan. He was sent there for a purpose vital to the war and the defence of Australia and Allied forces located in and around Torres Strait.

1. I take the view that, although no ships were sunk by mines in Torres Strait in 1943 and 1944 and there were no reported incidents, it does not follow that making sea crossings in the area was not dangerous. While attack from the air may not have been likely, I am satisfied, on the balance of probabilities, that there was a real danger of striking a Japanese mine at the times Mr Mullen embarked on crossings of the Strait. There were mines laid in the region and their subsequent location was uncertain, as Mr O’Keefe explained, because they were ultimately washed away or sunk. However, Mr O’Keefe gave evidence that they were still there late in 1942. It follows, that anyone who travelled on a vessel in the area incurred danger from the Japanese mines, which had been laid in 1942, for an indefinite and continuing period until the area was swept in 1945, when no mines were located or remaining. It may be that more cogent evidence of the presence of mines has been given to the Tribunal than was available to Admiral Horton in 2000. Certainly, Mr Kidd did not give his evidence in 2000 of his mine sighting. As well, consistency in decision making is desirable as was enunciated in Re Ganchov and Comcare (1990) 19 ALD 541 and I consider Mr Mullen’s position to be similar to that in Mitchell,  as well as the earlier case of Tiplady. The Tribunal found in both Tiplady and in Mitchell, that the applicants incurred danger from hostile forces in the Torres Strait when making sea passage across the Strait. It follows that Mr Mullen has rendered qualifying service and that he is entitled to be paid a service pension. 

DECISION

1. The Tribunal sets aside the decision under review and determines that Mr Mullen has rendered qualifying service, pursuant to the provisions of section 7A of the Act, and that he is entitled to be paid service pension with effect from the date of his application, on 3 December 2003.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Robin Hunt  

Signed:         .....................................................................................
Zoe McDonald
Associate

Date of Hearing: 20 May 2005 
Date of Decision: 16 August 2005
Solicitor for the Applicant: Self   

Solicitor for the Respondent: Mr Adam Halonkin