Pearse and Repatriation Commission

[2000] AATA 330

DECISION AND REASONS FOR DECISION [2000] AATA 330

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No    N1999/867

VETERANS' APPEALS DIVISION          )          

Re      JOAN ELIZABETH PEARSE      

Applicant

And    REPATRIATION COMMISSION  

Respondent

DECISION

Tribunal       Rear Admiral A R Horton AO, Member   

Date27 April 2000

PlaceSydney

Decision      The decision under review is affirmed    

(Sgd)  A Horton
  ……………………………..
  Member
CATCHWORDS

VETERANS' AFFAIRS – gold card eligibility -  service in Womens Auxiliary Australian Air Force during period of hostilities –  whether incurred danger during Japanese midget submarine attack on Sydney 31 May 1942 - 

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 Crawford and Repatriation Commission (1987) 14 ALD 341
Re Corrick and Repatriation Commission [2000]  AATA 143

REASONS FOR DECISION

Rear Admiral AR Horton AO, Member    

1. This is an application for review of a decision dated 12 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 11 April 1999, that Joan Elizabeth Pearse ("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 subsection 85(4A) of the Veterans' EntitlementsAmendment (Gold Card) Act 1998 ("the Gold Card Act"). The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 9 June 1999.

2. At the hearing before the Tribunal on 17 April 2000, 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 took into evidence a photocopy of a newspaper extract form the Illawarra Mercury, dated 3 December 1999 (Exhibit A1).

ISSUES BEFORE THE TRIBUNAL

1. 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."

2. Qualifying service is defined in section 7A of the Act, which states relevantly:

   "(1)     …

   (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

   …"
   Subsection 5B(1) defines the period of hostilities and states, relevantly:

   "(1)      …

   (b)World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included): or

   …"
   FACTS AND EVIDENCE

3. The Respondent concedes that the Applicant is a veteran as defined in section 5C of the Act. The Applicant was aged over 70 at the time of the application for the Gold Card and hence meets the criteria for age as defined in subsection 85(4A)(a) of the Gold Card Act. The Respondent also concedes that the Applicant rendered service during the period of hostilities as defined in subsection 5B(1).

4. The Applicant enrolled in the Womens Auxiliary Air Force on 14 May 1942 (T3).   She gave evidence that her subsequent period of service until discharge on 7 December 1945 in the rank of corporal, was confined to New South Wales and Victoria.  She did not serve outside Australia, nor in the Northern Territory, as confirmed in T3.

5. The Applicant gave evidence that following her enlistment, she undertook initial training at Ultimo, prior to being posted to Melbourne for cook category training of some three to four months duration.   She subsequently served for an extensive period at Bradfield Park, with shorter deployments to other Air Force facilities in the Sydney area and at Parkes.   

6. On the night of 31 May-1 June 1942, when the Japanese midget submarine attack took place in Sydney Harbour, the Applicant was returning after the evening meal from leave at her parents residence to her unit at Bradfield Park.  She stated she was at Central Station when the sirens sounded, and on the direction of military police, waited for some time at that location before travelling by train across the Sydney Harbour Bridge to Killara or Roseville, from whence she was transferred to Bradfield Park by bus.   On arrival, she was directed to an air raid shelter.   Whilst at Central Station, she recalled seeing searchlights and hearing the noise of aircraft.   She stated to the Tribunal her strong belief that she was in danger from enemy activities, particularly as she was unaware of the type and details of any attack being carried out by enemy forces.

7. The Applicant was stationed in Sydney at the time of the subsequent gunfire attack by Japanese submarine on 8 June 1942, but was not aware of that attack at the time.   No other incidents involving enemy forces apparently took place in her vicinity during her period of service.
    ANALYSIS OF EVIDENCE AND FINDINGS

11. The Respondent conceded that the Applicant had rendered service during a period of hostilities as defined in Section 7A(1)(a)(i) of the Act, but submitted that the Applicant did not meet the 'operations against the enemy' or 'incurred danger from hostile forces of the enemy' criteria as defined in that section of the Act. The standard of proof in this matter is that of reasonable satisfaction pursuant to subsection 120(4) of the Act.

12. The Respondent submitted that the decision by the Full Federal Court in Repatriation Commission vThompson (1988) 44 FCR 20, in which Davies, Wilcox and Foster JJ gave an authoritative and objective definition to the phrase 'incurred danger', was binding on the Tribunal in this instance. Their Honours stated at pp23-24:

"…
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 mere liability to danger, that is to say, there is mere risk of danger.   Danger is not incurred unless the serviceman is exposed, at risk 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 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.
…" 

13. The Respondent further submitted that the earlier Tribunal decision in Re Crawford and Repatriation Commission (1987) 14 ALD 341, had particular relevance to this matter as it addressed an application arising from the Japanese midget submarine attack in Sydney Harbour. Pages 344 and 345, that Tribunal stated:

'there were three such (midget) submarines…the damage that could be inflicted by these submarines consisted only of the damage that a total of six torpedoes could inflict and…what damage such a submarine could do in a ramming…'  

The Tribunal concluded that:

"…Given this limited military capability, the Tribunal finds that the torpedoes could only damage water surface objects such as ships, wharves, jetties, floating docks and other water-line construction…It follows that danger would only exist for a person placed in one of these situations…"  

1. In that decision, which predated the decision in Re Thompson (supra) by the Full Federal Court, the Tribunal went on to say at page 347, and in reference to other considerations of the meaning of 'incurred danger from hostile forces of the enemy,':

   "The principle emerging from the above mentioned Tribunal decisions is that the test of "danger" must be an objective one and not subjective or fanciful.   A feeling of dread or fear, for example, is not sufficient…It is again not sufficient for an applicant to believe, even strongly, that he or she was in danger if in reality there was in fact no danger.   That is, the test of "danger" must entail an analysis of the actual military situation quite independent of an applicant's own view or perception of it at the relevant time.   There must be established an actual risk of physical or mental harm."

15.In this matter, the Applicant may well have had a feeling of dread or fear when alarms, searchlights and aircraft operations indicated the possibility of an enemy attack on Sydney.   However, the enemy forces were such that she was in no danger either at Central Station or during the subsequent train journey across the Harbour Bridge.   She was not at risk or in peril of harm from such hostile forces; she was not at risk or exposed to harm or injury.   Accordingly, the Tribunal must conclude to its reasonable satisfaction that the Applicant did not incur danger.    There is no evidence that any other incident occurred during her period of service in the Womens Auxiliary Australian Air Force that might have placed the Applicant in danger from hostile forces of the enemy.

16.Given the above decision in the matter of 'incurring danger', there is no reason for the Tribunal to address at length, or at all, the second leg in section 7A (1)(a)(i), that is whether 'operations against the enemy' were conducted. Suffice that application of the reasons given by Cooper J in Willcocks v RepatriationCommission (1992) 39 FCR 49 and Deputy President McMahon in Re Corrickand Repatriation Commission [2000] AATA 143 would preclude the Applicant, on the available evidence, from being considered to have been engaged in 'operations against the enemy' on the occasion of the Japanese midget submarine attack on Sydney Harbour on 31May - 1 June 1942.

17.Hence the Applicant has not rendered qualifying service as defined in the Act, and is therefore not entitled to a Gold Card.

18.During the course of the hearing, and in the final summation, the Applicant emphasised that she had enlisted with the intent and expectation to serve in any theatre or locality.   She drew the attention of the Tribunal to the fact that she had served in a defined War Zone which had been recognised by the qualification for, and award of, relevant medals, and that the current legislation, and subsequent judicial interpretation, now precluded acceptance of the reality of the situation pertaining at the time.   The Respondent acknowledged the service of the Applicant, as does the Tribunal.  However, the Tribunal emphasises that this review has been conducted against the extant legislation, and the decision under review must therefore be affirmed.   

I certify that the  preceding 18 paragraphs are a true copy of the reasons for the decision herein of

Rear Admiral A R Horton AO, Member

Signed:         .....................................................................................
  Associate

Dates of Hearing  17 April  2000
           Date of Decision  27 April 2000
           Solicitor for Applicant  Self-represented
           Advocate for the Respondent      Mr J Marsh