Newton and Repatriation Commission - [2000] AATA 715

DECISION AND REASONS FOR DECISION [2000] AATA 715

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/475

VETERANS' APPEALS DIVISION )

ReWESLEY NEWTON
Applicant

AndREPATRIATION COMMISSION
Respondent

DECISION

TribunalRear Admiral A R Horton, AO RAN (Rtd), Member
Date18 August 2000
PlaceSydney
DecisionThe decision under review is set aside and in substitution therefor the Tribunal determines that the Applicant rendered qualifying service pursuant to section 7A(1)(a)(i) of the Veterans' Entitlements Act 1986 and is entitled to a Gold Card under section 85(4A) of the Veterans' Entitlements Amendment (Gold Card) Act 1998.
…[Sgd] Rear Admiral A R Horton…
Member

CATCHWORDS

VETERANS' AFFAIRS – gold card eligibility - whether Applicant rendered qualifying service – RAAF service during period of hostilities – service in Northern Territory from June 1944 as Fitter Armourer- whether flight to Hollandia (Dutch New Guinea) – whether Applicant incurred danger from hostile forces of the enemy

Veterans' Entitlements Act 1986 – ss 5B(1), 5C(1), 7A, 120(4)
Veterans' Entitlements Amendment (Gold Card) Act 1998– s85(4A)

Repatriation Commission v Thompson (1988) 44 FCR 20
Willcocks v Repatriation Commission (1992) 39 FCR 49
Re Rapp and Repatriation Commission [1995] AATA 10254
Re Farrell and Repatriation Commission [2000] AATA 69

REASONS FOR DECISION
Rear Admiral A R Horton, Member

Introduction

This is an application for review of a decision made on 8 October 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 14 January 1999, that Wesley Newton ("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 1 April 1999.
At the hearing before the Tribunal on 9 June 2000, the Applicant was self represented. Mr Jim 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 Tribunal also received the following documents into evidence:

Statutory Declaration by Mr D J Washbourne undated (exhibit A1);
Letter from Mr L A McDonald dated 6 June 1999 with aircrew logbook extracts (exhibit A2);
RAAF Records letter AF/35858 dated 25 February 2000 with attachment (exhibit A3);
Report by Mr R Piper (Naraha Company), Historian, dated 1 December 1999 with attachments (exhibit R1);
Supplementary report by Mr R Piper (Naraha Company), Historian, dated 23 March 2000 with attachments (exhibit R2);
Supplementary report by Mr R Piper (Naraha Company), Historian, dated 5 April 2000 with attachments (exhibit R3)

Mr Piper was called by the Respondent to give evidence.
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.
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 subsection 5B(1), and that he meets the criteria for age as defined in subsection 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 subsection 120(4) of the Act.
"Qualifying service" is defined in section 7A of the Act which relevantly provides:-

7A.(1)For the purposes of Part III and sections 85 and 118V, 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

…
FACTS AND EVIDENCE

The Applicant served in the Royal Australian Air Force ("RAAF") from 8 April 1941 until 19 December 1945. Prior to joining he was an apprentice fitter and turner, and following his initial training, he qualified initially as an armourer and then as a fitter/armourer. Following specialist courses at Tucomwal in the maintenance of B24 Liberator aircraft, he was posted to No. 24 Squadron which was reforming at Lowood in Queensland in May 1945 with B24 aircraft. In June 1944, the Squadron moved to Manbullo in the Northern Territory, north of 14.5 degrees south latitude. In September, the Squadron moved to the nearby strip at Fenton.
The Applicant described his duties in No. 24 Squadron as being a member of the ground crew, responsible for the maintenance and repair of weapons and armaments such as turrets, bombs and machine guns. He was nominally attached to one aircraft, in his case Liberator A72–44, which he stated was usually flown by Flight Lieutenant McCombe, but on occasions was required to maintain and service other aircraft of the Squadron. In seeking review of the primary decision that he had not "incurred danger from hostile forces of the enemy", the Applicant claimed (T7) that he had been required to fly from Fenton to Hollandia (Dutch New Guinea) in Liberator A72-44 in order to provide maintenance and servicing facilities to enable that aircraft to undertake bombing missions from Hollandia and, accordingly, he had met the requirements of qualifying service. Were that to be the case, then the Applicant could benefit from departmental policy in respect of service in New Guinea.
RAAF Discharged Personnel Records failed to reveal any documentary evidence to substantiate this claim (T9). At T1 dated 26 March 1999, that is after the decision following the review under section 57 of the Act, the Applicant reiterated his claim, stating that "at the time, 24 Squadron was the only RAAF Liberator squadron on active service …..and was operated in conjunction with the American Air Force. Consequently, when 24 Squadron operated from places other than Fenton, the ground staff attached to each aircraft travelled with the aircraft to maintain same…..". In further investigation of this claim, the Respondent sought a report from Mr R Piper, Historian, as to whether Liberator A72-44 made such a flight in August 1944, whether McCombe had made flights to Hollandia and whether there was any record of a flight by the Applicant. The response in exhibit R1 was 'no' to all questions. However, the report and attachments confirmed that special missions to Hollandia were undertaken by three aircraft and that Flight Lieutenant McCombe was posted to the Squadron. The latter was promoted acting Squadron Leader and posted as temporary Commanding Officer in August 1944, leading Mr Piper to opine that in those circumstances he would be unlikely to detach to Hollandia.
The Applicant acknowledged that this report seemed to preclude that he flew in Liberator A72-44 to Hollandia and that his memory may be at fault after some fifty-five years. He re-affirmed, however, that he had undertaken the flight (from Manbullo rather than Fenton), but it would seem in another aircraft, which was not unusual should a member of the ground crew allocated to a particular aircraft not be available. He stated that about six ground crew accompanied aircraft to forward bases, as in the situation at Hollandia, but the ground crew did not fly on combat missions operating from the forward bases. He described the conditions as he recalled them in Hollandia: the heat, replacing a firing charging cable in an aircraft, off-ground accommodation in tents with mosquito netting, remaining in Hollandia for 6 days and eating in a US Army/Air Force mess.
At exhibit A1, Mr D J Washbourne, also a member of No. 24 Squadron, stated that the Applicant was a member of a "specially selected group of squadron personnel sent to Hollandia in August 1944 to conduct operations ….". More detailed comment was provided by Mr L A McDonald (exhibit A2) who was the Flight Engineer/Air Gunner in one of the Liberators that undertook armed flights to Hollandia in August 1944. He stated that ground staff accompanied the aircraft on the flights, but noted that the names of such personnel were not recorded on the Form EE77. At exhibits R2 and R3, Mr Piper stated that only the name of the captain of the aircraft was recorded in the War Diary and Squadron Narrative Reports of No. 24 Squadron; in his oral evidence he confirmed that Forms EE77 were no longer available. Mr McDonald also assumes or believes that Squadron Leader McCombe had undertaken these flights; accordingly he assumes that the Applicant would have also deployed to Hollandia, but he makes no claim to having personal knowledge that he did so.
In considering the recorded flights to Hollandia in August 1944, the Respondent questioned the need for ground crew to accompany deploying aircraft when American forces in that locality, operating the same Liberator aircraft, would be expected to have adequate ground based maintenance resources. The Applicant was not in a position to respond, but assumed that the Command saw the need for RAAF ground crew.
In his oral evidence, Mr Piper stated that he had no experience of ground crews proceeding overseas in the manner being postulated. Given the substantial American forces based at Hollandia, he assumed that adequate maintenance and ground staff resources would have been available to support deploying RAAF aircraft. He also believed that a RAAF Kittyhawk squadron may have been based at Hollandia at the time, and if so, it could have had the potential to provide support for aircraft in transit. Nonetheless, he could not rule out that ground crews accompanied flights to Hollandia. In respect of the matter of crew pay for ground crews, Mr Piper was not in a position to comment as to the possible circumstances in which the Applicant was authorised to receive crew pay, as no adequate crew records were available in respect of any flights he might have made.
On 24 February 2000, the applicant contacted RAAF Records in regard to the drawing of "crew pay". The response at exhibit A3 confirms from the Personnel Occurrence Reports of 24 Squadron (as attached) that the Applicant was authorised to draw "Crew Pay at 2/- per diem from 4 September 1945 to 9 February 1945 (inclusive)". The Tribunal assumes the correct dates to be 5 to 9 February 1945, as opined by Mr Piper in exhibit R3. This is the only period in respect of the Applicants service recorded in the Personnel Occurrence Reports.
The Applicant believes that this occasion when crew pay was authorised related to the deployment of squadron aircraft to a forward base in north-west Australia (Truscott), the purpose being to provide greater range and flexibility for the conduct of combat missions, as was the case with the earlier deployments to Hollandia. As with Hollandia, components of the ground crews were deployed in the squadron aircraft to the forward base. In his evidence, Mr Piper accepted that ground crew might have been taken to Truscott, noting that the inclusion of the armourer category would be important given the number of weapons in the B24.
ANALYSIS OF EVIDENCE AND FINDINGS
The issue in this matter is whether the Applicant meets the eligibility requirements for the rendering of qualifying service pursuant to subsection 7A(1)(a)(i) of the Act.
In his final submission, the Applicant reaffirmed that his claim was based on the fact that he flew to Hollandia in a Liberator aircraft, and was thus exposed to extreme danger from enemy forces during the flight and whilst stationed at Hollandia. Whilst his evidence at the primary decision point and the subsequent section 57 review was based on the belief that he must have flown to Hollandia in Liberator A72-44, the aircraft that he was normally attached to, he now believes that his flight took place in another aircraft of the squadron.
The Respondent questioned whether there was sufficient evidence to enable a conclusion to be reached that the Applicant did indeed fly to Hollandia. The Personnel Occurrence Report (exhibit A3) provided evidence by way of an authorisation to draw crew pay that the Applicant was deployed with 24 Squadron for a period in February 1945; the Respondent accepted that this may well have been to Truscott airbase, but this was not sufficient to meet the qualifying service test. The Respondent submitted that no such "crew pay" record was available in support of the claim by the Applicant that he undertook a similar support mission to Hollandia. Notwithstanding that records were inadequate to ascertain the full composition of crews on the relevant flights, the authority to draw crew pay might have been expected to have been recorded for such a mission. The Respondent further expressed reservations that RAAF aircraft deploying to Hollandia would be required to take their own ground crew, given the presence of substantial American forces in that locality, but accepted the evidence of Mr Piper that such a possibility could not be ruled out, and further accepted the evidence of Mr McDonald (exhibit A2) that ground crews travelled in the aircraft on the flights to Hollandia. In summary, the Respondent accepted the possibility that the Applicant flew to Hollandia as claimed, and submitted that the beneficial provisions of section 119 of the Act might be considered.
There is no direct evidence to confirm that the Applicant deployed to Hollandia in August 1944. There is evidence to confirm that three aircraft of his squadron did deploy for operations to Hollandia at that time and that a nucleus of ground crew accompanied aircraft to Hollandia, (and that such a practice was in use for other deployments by the squadron from Manbullo or Fenton, such as to Truscott). It can also be assumed that at times, ground crew allocated to a particular aircraft may not have been available to undertake such deployments, and a replacement with the relevant qualifications would be drawn from another aircraft's ground crew. Unit History Sheets and Narrative Reports in this instance are of little use as regards the identification of crew members, other than the aircraft captain. The Tribunal agrees with the Respondent that the Applicant should desirably have taken greater steps to seek corroboration from Liberator organisations and aircrew of his claim that he flew as a member of the crew to Hollandia, but recognises the difficulties in such a task, particularly given the passage of time since the operations were undertaken. Taking due account of the evidence given as regards squadron operations and procedures, the importance of the role of the Applicant (as a fitter/armourer) to ensure aircraft operational serviceability, the evidence that ground crew did deploy to forward bases, the passing of time, and the latitude contained within the beneficial legislation in section 119 of the Act as acknowledged by the Respondent, the Tribunal finds to its reasonable satisfaction that the Applicant flew to Hollandia in New Guinea in August 1944 as part of a B24 crew, remaining in that locality for about six days.
In considering whether the Applicant "incurred danger" during that period pursuant to section 7A(1)(a)(i) of the Act, the Tribunal must draw on the Full Federal Court decision of Davies, Wilcox and Foster JJ in Repatriation Commission     vThompson (1988) 44 FCR 20, wherein the court stated at pp 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, there is a mere risk of danger.   Danger is not incurred unless the serviceman is exposed, at risk or in peril of harm or injury.
The danger 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.

The phrase "naval, military or aerial operations against the enemy" also forms part of section 7A(1)(a)(i) of the Act. Cooper J provided an authority in respect of this phrase in Willcocks v Repatriation Commission (1992) 39 FCR 49, stating 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 the service to constitute "qualifying service" ……

At 56, his Honour went on to say:

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 operations in hostility or opposition to the enemy.

In the matter of Re Willcocks, the veteran was considered not to have been engaged in military operations. In a later decision in Re Rapp and RepatriationCommission [1995] AATA 10254, the applicant claimed qualifying service based on a flight from Nowra to Port Moresby in June – July 1944 in an aircraft carrying torpedo spare parts and perhaps warheads. No enemy activity was encountered and the aircraft was unarmed. The respondent conceded that New Guinea was a war zone and that there was generally enemy activity in the country. That Tribunal concluded at paragraph 21 that Mr Rapp was involved:
…in integral participation in an activity intended for an encounter with the enemy. He was escorting torpedo parts and perhaps war heads to a war zone to be used in hostile action against the enemy: no other reasonable inference is available. As such we are satisfied that in so doing the applicant was involved in "operations against the enemy" as that term is used in s 7A of the Act.
In paragraph 22, the Tribunal concluded objectively that in the circumstances of entering a war zone where enemy operations were in existence, Mr Rapp incurred danger that was neither fanciful or minimal. The Tribunal stated:
We do not regard the occurrence of some hostile incident (such as took place in Crawford's case, supra) as being an essential ingredient of one's being satisfied that a serviceperson "incurred danger" within the meaning of section 7A of the Act. It all depends on the circumstances of each individual case.

The Tribunal was satisfied that Mr Rapp rendered qualifying service. A later decision in favour of the Applicant in Re Farrell and Repatriation Commission [2000] AATA 69 drew on the Re Rapp decision.
This matter is on all fours with Re Rapp and Re Farrell. New Guinea remained a war zone until 15 August 1945. In finding to its reasonable satisfaction that the Applicant flew to Hollandia as crew in an armed B24 aircraft deploying for later combat missions, the Tribunal accepts that he was "involved in operations against the enemy" and "incurred danger". The Tribunal notes that in his final submission, the Respondent stated that should the Tribunal find that the Applicant deployed to Hollandia as claimed, then both limbs of section 7A(1)(a)(i) would be satisfied.
Accordingly, the decision under review is set aside and in substitution thereof, the Tribunal determines that the Applicant rendered qualifying service pursuant to section 7A(1)(a)(i) of the Act, and is entitled to a Gold Card under section 85(4A) of the Gold Card Act.
I certify that this and the 26 preceding paragraphs are a true copy of the decision and reasons for decision herein of Rear Admiral A R Horton, AO RAN (Rtd), Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  9 June 2000
Date of Decision  18 August 2000
Representative for the Applicant             Self-represented
Representative for the Respondent        Mr Jim Marsh