O'Brien and Repatriation Commission
[2000] AATA 876
•4 October 2000
DECISION AND REASONS FOR DECISION [2000] AATA 876
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1998/1766
VETERANS' APPEALS DIVISION )
Re James Eric O'Brien
Applicant
And Repatriation Commission
Respondent
DECISION
Tribunal Mrs M T Lewis, Senior Member
Date4 October 2000
PlaceSydney
Decision The decision under review is affirmed.
..............................................
M T Lewis
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Gold Card – whether Applicant rendered qualifying service – whether Applicant incurred danger from hostile forces of the enemy
Veterans' Entitlements Act 1986 ss 7A, 85(4A)
Repatriation Commission v Burton (1993) 31 ALD 475
Re Lawrie v Repatriation Commission AAT No. 6359 (9 November 1990)
Re Maller v Repatriation Commission AAT No. 8280 (16 September 1992)
Re Kemp v Repatriation Commission AAT No. 11513 (5 November 1996)
Repatriation Commission v Thompson (1988) 82 ALR 352
Re Bancroft v Repatriation Commission AAT No. 11333 (25 October 1996)
REASONS FOR DECISION
4 October 2000 Mrs M T Lewis, Senior Member
This is a review of a reconsideration decision of the Repatriation Commission ("the Respondent) dated 20 November 1998 which determined that James Eric O'Brien ("the Applicant") was not eligible for a Gold Card on the basis that he did not render qualifying service as defined in section 7A of the Veterans' Entitlements Act 1986 ("the Act").
The Tribunal had before it documents provided pursuant to s37 of the Administrative Appeals Tribunal Act 1975. In addition the Applicant tendered a statement dated 1 November 1999 (exhibit A). The Respondent tendered reports of Mr Brendan O'Keefe, historian, dated 6 October 1999 (exhibit 1) and 13 November 1999 (exhibit 2). The Applicant was unrepresented and gave oral evidence at the hearing. Mr O'Keefe gave oral evidence at the request of the Respondent. The Respondent was represented by a Departmental advocate.
The only issue in these proceedings is whether the Applicant incurred danger from hostile forces of the enemy. The Respondent concedes that the Applicant satisfies all other criteria for eligibility for the Gold Card.
The standard of proof is that of reasonable satisfaction pursuant to s120(4) of the Act.
the relevant legislation
Eligibility for the Gold Card is set out in s85(4A) of the Act, and stipulates that the veteran must have rendered "qualifying service" during the period of hostilities for World War II, which is defined as 3 September 1939 to 29 October 1945. The definition of "qualifying service" is set out in s7A(1)(a) of the Act:
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:(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) …
(iii)
applicants evidence
The Applicant was born on 22 January 1925. He enlisted in the RAAF on 16 February 1943 and went to Darwin on 28 May 1944. He was discharged from the RAAF on 15 January 1946; he did not serve outside Australia.
The Applicant's unit sailed from Darwin en route to Truscott Airfield aboard the US Liberty Ship SS John Owen on 21 June 1944. The ship was loaded with approximately 3000 tons of 500 pound bombs as well as drums of aviation fuel. The Applicant said they departed Darwin around 4am and arrived at West Bay at approximately 11am on 23 June 1944.
During the voyage they were advised that there were enemy submarines still operating in the area, and were given the appropriate drill instructions in case of an attack. The ship was escorted by an RAN destroyer, and at times an aerial escort. The Applicant was unaware of the specific route taken by the ship. He said that they did not see any enemy aircraft, shipping or submarines on the journey. The Applicant said he was told there were mines in the area.
The Applicant's duties at the 154 radar station at Truscott were as a motor transport driver. He was in charge of diesel engines that generated the power to operate the radar, and he was also a pit driver. The 154 Radar Station was located to the north east of Truscott.
On arriving at Truscott the trucks and valuable equipment were removed from the ship that was anchored a mile off shore. They were in unchartered waters and had to bring the equipment to shore on landing barges. For the first three to four days they could work only eight hours per day due to the 27 foot rise and fall of the tide when landing barges could not negotiate the sand bar. The Applicant said that after four days it was believed there was going to be an enemy raid from Timor. The crew of the SS John Owen threw the remaining drums of petrol in the ocean and left the area. The Applicant said that he was involved in retrieving the drums of petrol that were floating for 30 or 40 miles along the coast.
After the ship was unloaded they built their camp about three miles from the new airstrip which was finished soon after they arrived. He said the camp was operational in 28 days.
The Applicant said that Truscott was considered "a combat area" at the time and many bombing raids started from there to adjacent enemy locations. There had been several alerts for enemy aircraft and on 20 July 1944, nine days after the work on the camp had been completed, his unit was a main link in tracking and shooting down a Japanese 'Dinah' aircraft over the camp.
The Applicant said that the radar was located "either three miles or three kilometres" south-east of the airstrip, and his camp was about half a kilometre from the radar which was "in the bush". They could not see the airstrip as the area was timbered, except for the clearance for the airstrip.
The Applicant said that the action started at about 8.30am on 20 July, when he was servicing the diesel engines where the radar was located. He said "there was all this rushing around and the next thing we knew we heard the spitfires take off". He said when the spitfires intercepted the Dinah –
It seemed quite a while but it was probably only a minute or so, back south of where we were, we heard the spitfires take off and go up, because they sent them up ten minutes before the plane was – they were tracking it 50 miles away on the radar, and first sight we got of it – see, it was only a speck, they're not very big aircraft and it was 27,000 feet, and we could just see it, and then we saw the spitfires go up and the next thing we saw were explosions going out the back of the enemy aircraft, and they tell you in these papers [referring to the documents before the Tribunal] they were, the bloke thought they were hand grenades, but they were some sort of a thing they had that they used to let out the back and fly away …
… I saw the explosions go out, I don't know how many, half a dozen or so, a lot of smoke, like little bombs going off.The Applicant said -
… the thing flew right over the top of us. The wing was shot off. On the second attack the wing was shot off and definitely it didn't go out on a shallow dive, it came almost straight down after they finished up knocking the wing off and the last time we saw it it burst into flames and went behind the hill and we thought it was on the ground but it was 150 yards out to sea. As you know, there is a 27 foot rise and fall of the tide and the next day or the day after they found it out sitting on the sand.
The Applicant described the weather as a "clear morning", with a "strong breeze" going out towards the bay. He could not hear the noise of the explosion in the air, nor could he hear when the Dinah crashed into the bay. He did not see it hit the bay as it "went over the trees". However, he was able to see the wing fall off when it was attacked by the Spitfire. He said that the wing came off at about 20,000 feet, as a result of a second attack. He said –
There is no way a plane can glide down after its wing is gone. It just tipped over like a falling leaf and then it went straight down. As they say in the report, the momentum it was travelling carried that another three kilometres away from us or four kilometres.
The Applicant did not know where the wing landed.
The wreckage was found in Vansittart Bay, about three kilometres from the camp. The Applicant said that he viewed the wreckage the next morning when it was retrieved. No debris from the wreckage was found around the camp.
The Applicant said that the Spitfires that took off from Truscott had been based at Drysdale until two weeks before this incident when they were moved to Truscott.
Evidence of Mr O'Keefe, historian
Mr O'Keefe's evidence was that there were three mine fields laid in the sea in the general area of Darwin. One was straight to the North East and the others were around Bathurst Island. They were discovered fairly early and there were mine sweeping and other operations looking out for mines. Mr O'Keefe opined that taking into account the route the SS John Owen would have taken from Darwin to Truscott and the time the voyage took place, there would not have been any danger from mines.
Mr O'Keefe said there was an enemy submarine that carried out a brief recognisance mission to the north-western part of Australia between June and early July 1944 about which there was scant information available. It had returned to Japan by 5 July 1944. He noted that the Japanese had lost large numbers of submarines through poor use, and given the poor quality of the submarines in general he considered that the submarine would not have carried out any sort of offensive operation, nor were they intended to do that. He was not aware of the route taken by the submarine, nor was he aware of any reports of contact with this submarine. He noted that "it was only fairly recently that evidence came to light from Japanese sources that this voyage had taken place".
Mr O'Keefe said that the Dinah was intercepted in the general region of Drysdale/Truscott. He said that the only sources that refer to it noted that it was flying north. However, he opined that it might actually have been flying in a more north-westerly direction to take it over Truscott, because the purpose of the flight was recognisance - to examine the RAAF airfields and photograph them.
The record indicates that the Dinah was flying at 27,000 feet when the Spitfires intercepted it. It was travelling from Drysdale, north or north-west, towards Timor. Mr O'Keefe noted that whilst one report says the Dinah exploded mid-air, other reports indicated that it "dived into Vansittart Bay north of Truscott". He referred to an aviation historian who viewed the wreckage and noted that it was remarkably intact; that writer believed therefore that it was intact when it had dived into the Bay. However, it was agreed that the port wing or at least the port engine was shot off during the incident. Mr O'Keefe agreed that it was possible that when people referred to it as "exploding in mid-air" it could refer to the fact that a wing flew of or was shot off. However he noted that the reports of the incident in the records have been fairly sparse and lack detail.
The records show that the Dinah landed in Vansittart Bay some distance from the short in the water. There was no report of the wing ever being recovered in any of the inland areas around Truscott Mr O'Keefe considered that it did not land in that area. He noted that the publication by Beazely is very detailed and would have noted if the wing had been recovered. There was no mention of any other debris from the plane in the records, apart from the wing being shot of.
In relation to armament on the Dinah, Mr O'Keefe said –
… they had 7.7mm gun which was mounted so that it could fire to the rear but it actually – there was no report that it ever used the gun in this episode over Truscott … there were various reports of them with makeshift grenades or fragmentation devices which it ejected from a tube out the back and the purpose of these things was to deter pursing fighter aircraft to try and give the recognisance aircraft time to escape.
Mr O'Keefe reported a conversation which he had had with a colleague, Bob Piper, a former RAAF official historian, who had visited Japan and spoken with some pilots of the Dinah recognisance aircraft and was told by them that these fragmentation devices were firecrackers - he had a diagram of one with Japanese lettering on it. He said apart from the single makeshift machine gun fixed defensively at the rear of the cockpit, and the fragmentation devices, the Dinah carried no other armaments. It did not have the capacity for nor was it the purpose to carry bombs.
There is only one report describing the descent by the Dinah into Vansittart Bay, and that report notes that once the Dinah was hit by the spitfires, it dived steeply into Vansittart Bay. However, he said that Mr Piper was of the opinion that it may have been a more shallow dive on the basis that the fuselage was not crumpled or concertinaed and this suggested to him that the impact may not have been great. However, there is no confirmation of this. Mr O'Keefe said there were three versions of what happened to the Dinah - one is that it exploded in mid-air, another is that it dived steeply into the bay, or Mr Piper's view that it went into a shallow dive, which is unconfirmed. In Mr O'Keefe's opinion the steep dive is the most obvious and then it shallowed out towards the end. He came to this conclusion because it remained largely intact.
Mr O'Keefe believed it was reasonable to assume that the attack probably took place more or less directly over Truscott. He noted that the Dinah could travel fast, even after it has been shot and effectively disabled. Thus the momentum, even after it was shot, would have continued to take it away from Truscott. He concluded that it was less likely to be crashing into Truscott.
In his view the chance of the Dinah landing, or debris being distributed in the Truscott area where the troops were observing was quite small. In addition he noted that it seemed to be almost a 'spectator sport' for the people on the ground. He said:
… they were all interested in watching this action take place and there wasn't any great sense of danger on the ground at all. It seemed to me from their attitude and the speed of the aircraft and the height of the action that there was little likelihood of any of the plane or any pieces of it constituting much of a danger or any danger on the ground at all.
…
[at] 27,000 feet and moving away, there's no sense in any of the records of any feeling of danger at all - its more of excitement or interest.
submissions
It was submitted for the Respondent that there is no suggestion in the evidence that the Applicant actually incurred danger during the voyage from Darwin to West Bay, although there was potential danger from enemy submarines and mines. The uncontested evidence of the historian is that while there were mine fields in the Bathurst Island, Dundas Strait Area, the ship travelled on a different route and there was no encounter with mines or submarines. With respect to danger from mine fields the Tribunal's attention was drawn to the decision of Olney J in Repatriation Commission v Burton (1993) 31 ALD 475 which stated –
In the absence of any finding that the respondent, during his period of service prior to the cessation hostilities, in any way encountered enemy mines there can be no basis for a conclusion that he encountered danger from hostile forces of the enemy.
It was submitted for the Respondent that there was no offensive activity by hostile forces of the enemy in the North Western area of Australia in June 1944 and the Applicant did not incur danger from hostile forces of the enemy during the voyage from Darwin to Truscott in June 1944.
It was submitted for the Respondent that whilst there was the potential for danger regarding this incident given that the aircraft was shot down in the sky almost directly overhead from where the Applicant and his unit were located, there was no actual danger incurred. The uncontested evidence is that the Dinah was intercepted at a height of approximately 27,000 feet. There is no suggestion that any debris from the aircraft presented any danger to any people on the ground where the Applicant was based. Using the map provided by Mr O'Keefe, the aircraft crashed into the sea approximately four kilometres from the Truscott base. At that distance there was no danger to those on the ground.
The case law requires that the danger must be actual rather than potential and that the test is an objective one: Repatriation Commission v Thompson (1988) 82 ALR 352. It was submitted that in this case there was no objective danger incurred even if there was perceived danger, but additionally there was no suggestion of any perceived or apprehended danger.
It is submitted that the evidence of the Applicant and Mr O'Keefe is largely consistent, that the Dinah was intact apart from the missing wing. Whether the aircraft took a deep or shallow dive, the momentum and direction the aircraft was travelling would have taken it away from the area on the ground where the Applicant was based. It was submitted for the Respondent that no danger was incurred.
Re Lawrie v Repatriation Commission AAT No. 6359 (9 November 1990) (a decision of Deputy President Forgie, Brigidier Gibson and Captain Keane), Mr Lawrie had also been serving in the RAAF at Truscott on 20 July 1944, when the Dinah was shot down. The evidence in that case was that the Dinah was carrying fragmentation bombs. It was submitted that it is now doubtful whether that evidence was correct. Despite the evidence that Mr Lawrie incurred danger by reason of those fragmentation bombs, the Tribunal found that whilst there was the potential for danger when these fragmentation bombs were dropped, Mr Lawrie was not in the vicinity of those bombs, and did not hear any shooting which led to the Dinah subsequently crashing. It was submitted that this is consistent with the case now before the Tribunal, in that while the Applicant had a good view of what was going on the distance was so great that he did not hear anything. It was submitted, however, that whether or not the Applicant heard anything has no bearing on whether there was danger incurred.
Re Maller v Repatriation Commission AAT No. 8280 (16 September 1992) (a decision of Deputy President Breen, Brigadier Brumfield and Miss Brennan) Mr Maller gave very different evidence from the Applicant and Mr Lawrie. Mr Maller's evidence was that he was serving in an area where there was a fuel dump, and that he was in a replenishment unit whose duty was to store high octane aviation fuel and bombs and armaments for aircraft based at Truscott. His evidence was that his unit was some distance from Truscott, possibly close to where the aircraft came down. Mr Maller also gave evidence that that the Dinah was carrying incendiary bombs and armed machine guns, which on the evidence of Mr O'Keefe now before the Tribunal, is not true. It was submitted that although the Dinah had a machine gun it was a defensive gun at the rear of the cockpit that had no offensive capacity. Mr Maller's evidence was that the interception by the Spitfires took place at a much lower altitude than is now known to be the case. His evidence was that he had a clear view and clearly heard the shooting, and the planes were somewhere between 1000 and 2000 feet. He gave evidence that the Dinah was headed directly towards their fuel dump, that there were fragmentation bombs dropped and that danger was incurred because one of these bombs may have impacted on the fuel dump. According to Mr Maller the Dinah went into a dive directly towards their unit, pulled out of the dive and then headed into the bay where it crashed. In Re Maller the Tribunal found that danger was incurred. However, the Respondent challenges the facts found in that case and noted that there was no historian's report available in that matter.
Re Kemp v Repatriation Commission AAT No. 11513 (5 November 1996), Mr Kemp was also a member of the Applicant's unit. Mr Kemp's evidence was similar to the Applicant's in that he saw the action from a distance from the ground and the aircraft crashed into Vansittart Bay. He said once it was hit the Dinah twisted and turned into the Bay. He did not actually see the "dog fight" but he saw the aircraft falling and there was smoke coming from it. The Tribunal found that no danger had been incurred in that case. The Respondent submitted that the decision Re Kemp should be followed in the present case.
The Respondent submitted that on the uncontested evidence of Mr O'Keefe, while there was potential danger from the crashing Dinah there was no actual danger incurred by the Applicant. There was no evidence of debris falling from the aircraft and given the distance of the Applicant from the crash site, there was no actual danger.
It was submitted that the Full Federal Court in Repatriation Commission v Thompson (1988) 82 ALR 352, held that the test is one of actual danger rather than possible or potential danger.
consideration of evidence and finding of fact
There are three aspects to the Applicants claim. The first concerns the presence of submarines whilst the Applicant was travelling from Darwin to West Bay; the second is whether there were mines present in the areas through which the Applicant travelled on the aforementioned voyage; and lastly the primary issue for the Applicant is whether he incurred danger as a result of the Dinah incident.
The Tribunal is not reasonably satisfied that the Applicant incurred danger on his journey from Darwin to Truscott. On the Applicant's evidence he did not encounter any evidence enemy activity during the passage. On the evidence of Mr O'Keefe, the last submarine attack in Australian waters occurred in June 1943. Mr O'Keefe also noted that (exhibit 1) –
The only mines that existed anywhere near Darwin or the John Owen's route to Truscott were three minefields laid by the Japanese submarines, I-21, I-23 and I-24 in January 1942. The locations of these minefields were: in Dundas Strait, well to the northeast of Darwin; west of Bathurst Island; and south of Bathurst Island.
The Tribunal finds that the Applicant's journey was not through those locations. In any event the mines had been located and removed a long time before the Applicant made his journey.
The Full Federal Court in Thompson (supra) stated –
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 real 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 mere fanciful danger or a danger so minimal that the rule of de minimus applies. But to say that is not to give flavour to the word. Rather it is to use it in its ordinary sense.The Tribunal notes that while the Applicant may have perceived an element of danger during events that occurred at Truscott, the test remains an objective one. The Tribunal finds on the evidence that whilst there may have been a 'real risk of danger', the Applicant was at no time 'endangered'. The Tribunal notes that its decision is consistent with other decisions of the Tribunal related to the interception of the Dinah over Truscott base on 20 July 1944, except for the decision Re Maller (supra). The Tribunal agrees with the submissions for the Respondent on this issue, that the evidence now before this Tribunal is inconsistent with the evidence before the Tribunal Re Maller in which there was no evidence provided by an historian. The Tribunal would therefore distinguish this matter from Re Maller.
The Tribunal recognises that the Applicant rendered valuable service to this country, but on the evidence before it, and taking into account the relevant standard of proof and the case law, the Tribunal is not reasonably satisfied that the Applicant incurred danger from hostile forces of the enemy, and as such he does not satisfy the criteria for 'qualifying service' pursuant to s7A of the Act.
The Tribunal therefore affirms the decision under review.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member.
Signed: .....................................................................................
AssociateDate/s of Hearing 1 November 1999 and 14 December 1999
Date of Decision 4 October 2000
Solicitor for the Applicant unrepresented
Solicitor for the Respondent Mr Marsh, Department of Veterans' Affairs
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