Palmer and Repatriation Commission - [2010] AATA 384

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 384

ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2008/5423

VETERANS’ APPEALS DIVISION )

Re: JOHN PALMER
Applicant
And: REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Dr T Austin, Member

Date 24 May 2010

Place Sydney

Decision The decision under review is affirmed.

...............[sgd]..........................
Ms N Isenberg
Senior Member

CATCHWORDS – application for a gold card – whether applicant’s service qualifies for eligibility under the Veteran’s Entitlements Act 1986 – whether the applicant incurred danger – objective meaning of the words ‘incurred danger’ applied – decision under review is affirmed.

…

RELEVANT ACT(S):

Veterans' Entitlements Act 1986 (Cth): ss 5B, 5C, 7A, 85.

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CITATIONS

Repatriation Commission v Thompson (1988) 44 FCR 20

Repatriation Commission v Mitchell [2002] FCA 117

Swan v Repatriation Commission [2001] AATA 701

BOOKS

Bennett, J. Highest Traditions: the history of No. 2 Squadron, RAAF, (Canberra: AGPS Press, 1995).

Hall, E.R. A saga of achievement: a story of the men and women who maintained and operated radio and radar systems of the RAAF over 50 years (Box Hill, Vic. Bonall, 1978)

WEBSITES

FOR DECISION

24 May 2010

Ms N Isenberg, Senior Member

Dr T Austin, Member

Background and Issues

The Applicant, John Palmer, who was born in 1920, first applied for a ‘Gold Card’[1] in 1996. His claim was refused on the basis that he did not render ‘qualifying service’ for the purposes of s 7A of the Veterans’ EntitlementsAct1986 (Cth) (VE Act). He applied again in 1998. That decision was ultimately appealed to this Tribunal, and was heard by Rear Admiral (Rt) Horton in 2000. In the Tribunal’s decision of 18 September 2000, Mr Palmer was found not to have rendered qualifying service. He applied again for a Gold Card in 2004 and the claim was again refused. On 15 April 2008 he applied for a fourth time and it was again refused in a decision dated 8 May 2008. This was affirmed on internal review. It is the application for review of that decision which was before the Tribunal.
[1] The term “Gold Card” refers to an identification provided to a person who is eligible for treatment for all injuries or diseases under s 85(4A) of the Veterans’ Entitlements Act 1986 (Cth).
Meanwhile, Mr Palmer’s disability pension was increased to 100 per cent of the General Rate. As a result, he was also given a Gold Card backdated to 11 January 2008. Neither the advocate for Mr Palmer, nor counsel for the Respondent, could point to the statutory basis for the award of the Gold Card in those circumstances, but there was no dispute that Mr Palmer was entitled to the card from that date by virtue of his having been over 70 years of age and being in receipt of pension at 100 per cent of the General Rate.
Counsel for the Respondent contended that it was ‘an abuse of process’ to continue with the application for review, because Mr Palmer has had the Gold Card since his application has been on foot and ‘no purpose would be served’ if the Tribunal were to hear the matter.
Mr Palmer contends, however, that he is entitled to have his qualifying service recognised and that that recognition may also entitle him to further medals or awards.
The Department of Veteran’s Affairs decision to provide Mr Palmer with a Gold Card did not canvass whether he had qualifying service. We observe that in its Statement of Facts and Contentions the Respondent recorded that the only issue before the Tribunal was whether Mr Palmer had ”qualifying service”. We came to the view that there were matters still on foot in the decision under review that had not been determined, namely, whether Mr Palmer had qualifying service. The question of his entitlement to the Gold Card was merely the context in which this question had originally arisen. We also accept, and there was no submission to the contrary, that other less tangible benefits may flow from determination of the question of Mr Palmer’s service. He also may be entitled to other decorations if he is found to have qualifying service.
As such, the question before the Tribunal was whether Mr Palmer rendered qualifying service in accordance with s 7A of the VE Act.

Law

There was no dispute that Mr Palmer is a veteran within the meaning of s 5C of the VE Act, and that he meets the age criterion set out in s 85(4A)(a) of that Act. It was also not disputed that he rendered service during the period of hostilities as defined in s 5B(1) of the VE Act.
Qualifying services is defined in s 7A of the VE Act, which relevantly states:
…
(i)     …
(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 sub section 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)   rendered service after 29 October 1945 in respect of which the person has been awarded, or has become eligible to be awarded, the Naval General Service Medal or the General Service Medal (Army and Royal Air Force) with the Minesweeping 1945-51 Clasp, the Bomb-Mine Clearance 1945-53 Clasp, the Bomb and Mine Clearance 1945-49 Clasp or the Bomb and Mine Clearance 1945-56 Clasp; or
…

Applicant’s Evidence

Mr Palmer, despite his years, gave what appeared to be a clear account of his service nearly 70 years ago.
Mr Palmer joined the Royal Australian Air Force (RAAF) on 30 November 1942. He was selected to learn the new radar technology, which was highly secretive at the time. He had the rank of Leading Aircraftsman (LAC) and was posted to No 2 Squadron at Hughes’ airstrip in the Northern Territory from 20 December 1943 to 10 November 1944. He was mustered as a radar mechanic, which is a ground crew posting.
In summary, it was Mr Palmer’s claim that he went on a number of flights to test the Air to Surface Vessel (ASV) and Identification Friend or Foe (IFF) radar equipment in Beaufort aircraft. He claims that these flights turned into impromptu patrols of up to six hours duration. He claims that on two or three of these patrols the aircraft was fired upon by Japanese forces.
Mr Palmer did not claim to have been on ‘operational’ flights, which he characterised as flights in which the aircraft would go on bombing raids. On flights of that nature there would not have been room for a ‘passenger’ investigating the radar equipment.
He said his flights came about because aircrew were experiencing problems, especially with the ASV, which had only relatively recently been installed in the Beauforts. Proper investigation could only occur with the equipment in situ, as the aircrew were experiencing the problems intermittently, and especially on return from long flights. The “skipper” would approach the radar officer, Flight Officer (FLTOFF) Berry, to ask for help from the ground crew. The radar officer would order Mr Palmer to collect equipment and report to the particular flight. He was not part of the flight “crew” as such, but the skipper would record his name on the flight loading sheet (E77). These sheets apparently are no longer available. Mr Palmer doubted that he would be remembered by the flight crew because, at that time, there was a high level of disinterest in the radar among the flight crew. He gave evidence that the flight crew regarded themselves as elite and would not mix with the ground crew; he was in the aircraft to service the radar equipment and that was all; and he rarely went up with the same crew.
Although most of his flights were short, three of the flights became long trips of between four and six hours duration because the radar fault was not readily apparent. As they were out for a while it would be “a waste” not to go looking for enemy shipping.
Mr Palmer said that because his role was only to monitor the radar equipment he did not know precisely where they flew. He was certain that he was told by the crew that the islands both started with “T”, one of which was near Dili on Timor. He has looked up a map and understands them to have been the Tanimbar Islands and Tautum, near Dili. They flew at about 300 feet which they had hoped was below the Japanese radar. On these two flights he believed the aircraft were fired upon. He saw a flash which he believed was a tracer. Immediately the skipper said “let’s get the f… out of here”. In cross-examination Mr Palmer denied that he could have been mistaken and that the ‘flash’ was a reflection, having regard to what the crew had said. On return, the aircraft was examined but was undamaged. He observed that in those days it was difficult to hit an aircraft travelling at speed. Mr Palmer did not provide details about these two trips to the previous Tribunal, at which he was unrepresented. He said, he was ‘not asked’ and merely answered the questions that were put to him.
The third long trip was, he said, over the Kai Islands. He felt at that time a shudder and he heard anti-aircraft fire. He had told the previous Tribunal that he saw “smoke and flashes, which he assumed from the intercom, resulted from enemy firings; generally he was not able to look out of the aircraft.”

Other Evidence

The radar officer, FLTOFF Berry, is believed now to be deceased.
Mr Palmer’s account was supported, to a degree, by a statutory declaration and evidence by Mr Ronald Edwards, who was the Armament Officer, that is, FLTOFF Berry’s equivalent in armoury. While he had no knowledge of whether Mr Palmer had ’joined a mission’ to check on radar equipment, his account was of armourers joining missions or patrols to check their fixed equipment ‘on many occasions’ and that these flights could last up to six hours.
A statement by Mr Richard Grimshaw, with notes by Mr Palmer, was provided at the hearing, but was unhelpful.
Three statutory declarations dated 3 March 2006 were also provided by Mr John Jerram, who was a LAC radar mechanic. He wrote that he, like Mr Palmer, flew on the flights testing, adjusting and servicing equipment and that the flights were over the Timor, Arafura and Banda Seas. He wrote that on more than one occasion, Mr Palmer reported to the radar officer that his aircraft had been fired upon by enemy ‘ack ack’ (anti-aircraft guns) and machine guns, and was very distressed.
We agree with the submission on behalf of the Respondent that limited weight can be attached to those statutory declarations because Mr Jerram is now suffering from dementia and consequently, the Respondent was not able to test his evidence in cross-examination.
We observe however, that Mr Jerram had also provided a statement which was referred to by the previous Tribunal hearing in 2000. In the decision, he was recorded as having stated that he had seen Mr Palmer return from a patrol “in a state of absolute despair” and he and some of the aircrew suffered vomiting fits following an encounter with enemy gunfire. There was no evidence to the effect that he had himself observed the gunfire.
While it does not appear that Mr Jerram was called to give evidence at that hearing, there was no indication that he was unable to do so at that time, and therefore to some extent his evidence from that time, as recorded, is unchallenged.
The Respondent provided two reports from a military historian, Mr Brendan O’Keefe, the first report dated 9 June 2009, and the second dated 12 January 2010. Mr O’Keefe also gave evidence at the hearing. Mr O’Keefe agreed that there were great difficulties with the ASV radar, in its installation in Beauforts and in persuading the crew to use it. He agreed there was a degree of secrecy surrounding it. He recorded details of a (ground crew) flying officer who had undertaken operational flights role to instruct aircrew in 1942. The Beauforts arrived in No 2 Squadron (Sqn) in late December 1943. Two aircrew, to whom Mr Palmer had earlier referred (Pilot Officer Coughlin and Sgt Hocking), possibly had no experience using ASV. Beaufort flights using ASV did not commence until 27 January 1944. Mr O’Keefe recorded that there were no examples of non-aircrew taking part in flight in which ASV was used.
Mr O’Keefe recorded:
Most of the references to ASV in the Operations Record Book simply state of a flight by a particular Beaufort or Hudson aircraft that ‘ASV efficient’. Occasionally, the equipment was reported to have been partially or completely inefficient on a flight, but overall there is no real evidence of constant or continual problems with ASV; on the contrary, the equipment seems to have been quite reliable. There would thus appear to have been no need or rationale to take a radar mechanic on a flight on the off-chance that the ASV equipment might not work. As it is, the Operations Record Book routinely records the crew on all flights and, for the period of relevance to the claim, there is no entry at all in which a radar mechanic is recorded as accompanying a flight, operational or otherwise. Indeed, there is no entry in which anyone at the rank of AC1 or LAC took part in a flight.
Mr O’Keefe also observed that Japanese forces still posed a threat to Australian planes which flew over the areas Mr Palmer nominated.
Mr O’Keefe referred to operational records of No 2 Sqn. A full copy of those records for the relevant period was obtained after the hearing and the parties were invited to make further comment on those records.

Consideration

There are three limbs to the test of having rendered qualifying service as defined in s 7A of the VE Act, giving rise to the following questions:

Did Mr Palmer render service during a period of hostilities?

There was no dispute that this test was satisfied.

Was Mr Palmer engaged in operations against the enemy?

When Mr Palmer first applied for the Gold Card in 1996 he wrote that he had witnessed bombing raids in 1943 at Hughes. The application states, as recorded by Mr Palmer, that he was 100-200 yards from the bombing, that there were bomb craters at the side of the [air] strip and that he saw very little and only heard the sound of aircraft at about 5000-10000 feet. He thought he heard the noise of Bofors and 4-5 A/A (anti-aircraft) guns. However, the last bombings of Hughes airfield occurred in 1942[2], well before Mr Palmer arrived there.
[2] >
We observe that when Mr Palmer applied for the Gold Card in 1998 he wrote that the Commanding Officer had ordered that as many flights as possible should be accompanied by a radar technician on both testing and on operations, which were shipping protection patrols at heights of about 250 feet to avoid Japanese interception. He correctly identified code-named flights and stated that these took place over the Timor Banda and Arafura Seas. Due to the covert nature of these operations, few records were kept.
The Respondent, in its determination of 30 January 1999, was prepared to accept that Mr Palmer had made the flights as he had claimed.
The Tribunal also accepts that Mr Palmer undertook flights (which were patrols) in order to service radar equipment in situ. The operational records provided by Mr O’Keefe confirm Mr Palmer’s contention of the unserviceability of the ASV in a number of Beauforts. In about 25 flights in the relevant period the ASV was reported as not being fully efficient. In five of those the ASV became unserviceable some hours (or distance) from base. In a large number of flights there was no mention of the ASV at all, suggesting that it may not have been utilised on those flights; hence the greater relevance of those flights where it was recorded as unserviceable.
The Tribunal accepts that there was a serviceability problem with the ASV in Beauforts at that time and, because a reasonable proportion of those problems occurred only a short distance from (return to) base, that it was necessary for the ASV to be monitored and serviced in situ. Further, we accept that it was necessary for a radar mechanic such as Mr Palmer to undertake that task. In this regard we also note the statement of Mr Edwards that armourer’s also serviced equipment in situ. We do not regard the operational records as conclusive evidence that no ground crew would have flown or that all personnel who flew would be recorded in the operational records. We also observe that the Tribunal had before it a statement by a Flight Lieutenant Power enclosing an extract from his log book to the effect that there were three flights recorded where ground crew were carried as passengers, albeit from Truscott. We further note that in his first report Mr O’Keefe referred to the history of RAAF radio and radar[3] noting that ground crew had accompanied aircrew on operational flights when ASV was new and unreliable. He acknowledged that 2 Sqn was having difficulty getting used to ASV in 1943. It was likely that difficulties were experienced with the arrival of the Beauforts in December 1943 and January 1944.
[3] Hall, E.R. A saga of achievement : a story of the men and women who maintained and operated radio and radar systems of the RAAF over 50 years (Bonall, 1978) at pg. 204
More problematic was whether Mr Palmer’s flights were ‘operations against the enemy’. Cooper J in Repatriation Commission v Mitchell [2002] FCA 117 at [24] held that the correct question was whether the service of the veteran was "an integral participation in an activity intended for an encounter with the enemy, whether offensive or defensive in character". His Honour stressed that this does not require the veteran be involved in actual combat against the enemy.
Mr Palmer has never contended that the flights in which he participated were anything other than patrols. We accept that the purpose of the patrols was to conduct reconnaissance to identify the presence of the enemy around northern Australia and that reconnaissance patrols in that area at that time amount to operations against the enemy.
We therefore accept that Mr Palmer was engaged in operations against the enemy.

Did Mr Palmer incur danger from hostile forces of the enemy?

Whether someone has incurred danger is an objective test: Repatriation Commission v Thompson (1988) 44 FCR 20, at 23-24. A person incurs danger from hostile forces when he is at risk of harm from hostile forces, and the danger incurred must be more than a merely fanciful danger, or a danger so minimal that a rule of de minimis applies. It is not sufficient that a veteran experiences feelings of fear or apprehension at the time.
In his statutory declaration of 14 April 2008, Mr Palmer wrote that he had incurred danger on at least two occasions: “Tanimbar Island – town of Saum Laki [sic], Arafura Sea” in January or February 1944 and “Tautum near Dilli [sic] in February or March 1944”. He wrote that it was during those times that he heard on the intercom that the aircraft was subjected to ground fire and he felt the aircraft take evasive action. He wrote that he was certain that he saw tracer bullets passing the aircraft as they took evasive action. He wrote that he clearly remembered the air and ground crew examining the aircraft for damage on their return.
As to whether there was an actual danger present in the area at the time, Mr O’Keefe wrote in his first report:
While Japanese air strength in the southwest Pacific had been severely weakened by the end of 1943, the Japanese continued to maintain ground forces on the islands in those areas. These forces still posed a threat to RAAF and allied aircraft at the time of Mr Palmer’s service with No. 2 Squadron. Indeed the Japanese had some ‘big guns’ stationed on the Tanimbar and Aroe islands as late as February-March 1945.

Further, he noted that on 27 March 1944, 2 Squadron Hudson aircraft, was shot down near Leong Island east of Timor. The operational records note that that aircraft was ‘carrying out a search’. We accept that this was in the nature of a patrol. It is also accepted that there was actual danger to RAAF aircraft patrolling in the South West Pacific at that time.
It remains to consider whether Mr Palmer was actually exposed to, at risk of, or in peril of, harm or injury from that danger.
Mr Palmer gave evidence of the aircraft in which he was a passenger being fired upon. He said he saw a flash which he believed was a tracer. Immediately the skipper said “let’s get the f… out of here”. The aircraft was examined on the return but was undamaged. Mr Palmer did not provide details about these two trips to the previous Tribunal, claiming he was ‘not asked’. Mr Palmer’s earlier statement of 11 November 1998 did not report being fired upon. As previously noted, his first application for the Gold Card also did not report being fired upon.
On a trip over the Kai Islands, Mr Palmer said he felt “a shudder” and “heard anti-aircraft fire.” He had told the previous Tribunal that he saw “smoke and flashes”, but he was not looking out of the aircraft, nor did he recall if the pilot took evasive action.
Mr Jerram, in his statement of 4 August 1999, had written that Mr Palmer had returned from a patrol “in a state of absolute despair”, and been vomiting following an encounter with enemy gunfire. This was not Mr Palmer’s account of what had occurred.
One might have expected that if a patrolling aircraft had been fired upon, then that event might have featured in the operational records. In January to March 1944, the period identified by Mr Palmer, there was not one report of any Beaufort coming under fire in any of the 120 plus flights by Beauforts. In fact all reports of patrols, with the exception of two (15 and 27 March), reported “nil (enemy) sightings.” The remaining two each referred to having sighted an “unidentified aeroplane”, and the latter also sighted a Japanese flag over a village on Letti Island. Similarly, there was no mention by Bennett[4] in Highest Traditions: the history of No. 2 Squadron, RAAF, of any occasion during that period when any Beaufort came under fire.
[4] Bennett, J. Highest Traditions : the history of No. 2 Squadron, RAAF, (Canberra : AGPS Press, 1995)
The Applicant’s representative referred the Tribunal to the decision of Swan and Repatriation Commission [2001] AATA 701, where the Tribunal had referred to Caswell v Powell Duffryn Associated Collieries Ltd [1940] A.C. 152 to remind us that weight should be given to the veteran’s sworn evidence unless there are objective facts to the contrary.
We have come to the view that we prefer the objective evidence of the operational records to the effect that no Beaufort came under fire during the period referred to by Mr Palmer. In doing so, it should not be suggested that the Tribunal disputes the veteran’s honesty or integrity who, at all times, impressed the Tribunal as a forthright witness who ably and commendably contributed to Australia’s wartime effort.
Having come to that view we find Mr Palmer is unable to meet all criteria for qualifying service.
The decision under review is affirmed.

I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member and Dr T Austin, Member.

Signed: .............................[sgd]....................................................
Ms B Dhanasar, Associate

Date of Hearing                  8 April 2010
Date of Decision  24May 2010
Representative for the Applicant               Mr Richard Davis
Counsel for the Respondent  Mr Gerald Purcell