Robertson and Repatriation Commission
[2002] AATA 1013
•25 October 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1013
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/290
VETERANS' APPEALS DIVISION )
Re BRUCE JOHN GRAY ROBERTSON
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Rear Admiral A R Horton AO, Member
Date25 October 2002
PlaceSydney
Decision The Tribunal sets aside the reviewable decision of the Repatriation Commission dated 31 July 2001 and in substitution therefor decides that Mr Bruce John Gray Robertson is eligible for a Gold Card under section 85(4A) of the Veterans' Entitlements Act 1986.
[SGD] Rear Admiral A R Horton AO
Member
CATCHWORDS
VETERANS' AFFAIRS - Gold Card eligibility - whether Applicant rendered qualifying service - RAN service during period of hostilities - service onboard HMAS BOWEN – whether Applicant rendered service in operations against enemy - whether Applicant incurred danger from the enemy
Veterans' Entitlements Act 1986 - ss 5B(1), 5C(1), 7A, 85(4A), 120(4)
Re Farnsworth and Repatriation Commission [1999] AATA 911
Repatriation Commission v Thompson (1988) 44 FCR 20
Marsh v Repatriation Commission (No 2) (1987) 15 FCR 503
Willcocks v Repatriation Commission (1992) 39 FCR 49
Repatriation Commission v Mitchell [2002] FCA 1177
Re Crawford and Repatriation Commission (1987) 14 ALD 341
Re Jones (AE) and Repatriation Commission (1993) 31 ALD 542
REASONS FOR DECISION
25 October 2002 Rear Admiral A R Horton AO, Member
This is an application for review of a decision made on 31 July 2001 by a delegate of the Repatriation Commission ("the Respondent"), and affirmed by review under section 57A of the Veterans' Entitlements Act 1986 ("the Act") on 30 November 2001, that Bruce John Gray Robertson ("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 Act. The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 26 February 2002.
At the hearing on 6 September 2002, the Applicant was represented by Mr N Dawson of Counsel. Miss P Hook 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 ("T documents"). The Tribunal also received into evidence a report from Ms C Carter, Historian, dated 15 May 2002 (Exhibit A1). The Tribunal heard evidence from the Applicant and Mr D Webster.
LEGISLATION AND ISSUES BEFORE THE TRIBUNALThe Applicant claims eligibility for a Gold Card under section 85(4A) of the 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 5(B)(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(1) of the Act, and that he rendered full-time continuous service during the relevant period of hostilities as defined in subsection 5B(1), that is, within the period 3 September 1939 to 29 October 1945. The veteran meets the criteria for age pursuant to the section 85(4A) of the Act, being 75 at the date of lodgement of the claim.
The issue before the Tribunal is therefore whether the Applicant rendered qualifying service for the purpose of the Act, this being defined thus in section 7A:
"7A Qualifying service
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)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
(iii) …"
The standard of proof in this matter is that of reasonable satisfaction, pursuant to section 120(4) of the Act.
FACTS AND EVIDENCEMr Robertson was born in March 1926. His Certificate of Service at T3 p11 confirms that he served in the Royal Australian Naval Reserve ("the RANR") from 11 January 1945 until 6 November 1946, during which period he served in various ships and establishments. Based on his evidence, the Record of Mobilized Service (T3 p14) and details of ships movements (T8 pp 41-45), it is evident that the Certificate of Service does not adequately record his service, particularly in respect of seagoing service outside the coastal waters of Australia, the latter being relevant to the issue of whether qualifying service was rendered.
From the records and as confirmed in a letter from Mr Robertson on 29 October 2002, he served in HMAS KYBRA for two days in August 1945. He gave no evidence of any incidents during that period, nor is he able to benefit from the Respondents "coastal waters" policy, his service being outside the relevant period.
Mr Robertson gave evidence that in company with other naval personnel being deployed to join various ships, he took passage from Australia to Morotai in HMAS BUNGAREE, arriving on 12 October 1945. A list of relevant dates for the passage of that ship (at T8 p 41) does not indicate that the ship called at Morotai, but it can be confirmed from the evidence provided in Re Farnsworth and RepatriationCommission [1999] AATA 911, and by the Applicant himself. In response to the Tribunal, Mr Robertson stated that he was a passenger on that ship, but was unaware of any incidents that might be related to enemy activities.
On arrival at Morotai, Mr Robertson joined HMAS BOWEN. The ship sailed later that day to undertake Operation Talaud in the Talaud-Sangihe island group, an operation described by the historian Ms Carter (Exhibit A1) as "a surveillance mission…part of the process of supervising and effecting the terms of surrender in the Australian area of responsibility". The operation lasted until 20 October 1945 when the ship returned to Morotai. Whilst the Instrument of Surrender of Japanese forces had been signed on 2 September 1945, Ms Carter notes in referring to the Official Historian, Gavin Long, that there were concerns that some Japanese units would not accept the surrender, or in the outlying islands, would not be aware of the decision by the Emperor of Japan to surrender. So it was that some six weeks later, on 12 October 1945, that HMAS BOWEN sailed from Morotai to transport the personnel forming Talaud Force (Exhibit A1) to various islands to enable them to effect the surrender.
Mr Robertson described his role as being that of a seaman required to undertake normal ship board duties, but also to form part of an armed naval landing party required to land at various islands to escort the Talaud Force, to effect the surrender of local Japanese forces, to escort Japanese personnel onboard HMAS BOWEN as ordered, and to collect arms and ammunition. The naval landing party was accompanied by army personnel. On all occasions of landing, and he gave evidence that he landed on all but one island during the eight day operation, the landing parties carried loaded rifles or sub machine guns, with the safety catch on. He recounted that army and naval personnel were going to and from the ship to shore, but could not recall whether sentries were maintained ashore.
The Applicant described feelings of apprehension. There were relatively few in the landing party, and a hostile reception on landing could not be discounted. He recalled that it was a common belief that the Japanese did not always surrender when called upon to do so, but that had not happened to him. However, he was prepared for such an eventuality. He was aware that the enemy forces were renowned for their cruelty. On one occasion at Liroeng, when the landing party trekked along a jungle path to a Japanese headquarters, he observed that the Japanese hid their flag rather than surrender it. He had heard a rumour that the Japanese commander was insane, which "did not put me at ease". He was also aware that a party was tasked, without success, to look for the bodies of Royal Australian Air Force ("RAAF") personnel who had been executed; he was not involved in that search. Prisoners were carried onboard HMAS BOWEN under guard, and he understood that some were later accused of war crimes.
In cross examination, he referred again to the occasion when he was part of the landing party at Liroeng to take the surrender at the Japanese headquarters located in the jungle. On that occasion, he "felt most at risk", not knowing how many Japanese soldiers were at that location. He described his officers going into the headquarters, and bringing out the Japanese who agreed to surrender the following day; he recalled that some were allowed to keep their arms, but he did not see them point their weapons at himself or other Australians. The following day, the Japanese commander disarmed his troops; there was no evidence of resistance. Mr Robertson described the situation as dangerous. He was fearful and apprehensive as he did not know how the Japanese would react.
In a letter to his mother (T8 pp 30-40) apparently written prior to the ship's return to Morotai on 20 October 1945, Mr Robertson described the events in this period, referring in general terms to the islands visited, the procedures undertaken, and relationships with the indigenous population. He makes no mention of any incidents wherein it might be suggested that he was specifically threatened by Japanese personnel.
Mr Robertson remained onboard HMAS BOWEN until the ship's return to Sydney in December 1945, when he was posted to HMAS PENGUIN. He gave no evidence in respect of any events or incidents during this period.
Mr D Webster. Mr Webster was serving onboard HMAS BOWEN in the rank of Sub Lieutenant throughout the period of the Applicant's posting to that ship. His duty was as the navigating officer. He described the role of TALFORCE, as he called it, as being to disarm garrisons and enemy forces, and to collect all weapons. He recalled a signal being received from the Admiralty on 15 August 1945, stressing the need for personnel to take precautions, no doubt until all Japanese forces were known to have surrendered. He did not consider that HMAS BOWEN faced any threat from enemy ships or submarines, but a threat to personnel could come from "renegades", and a threat from minefields could exist. He was aware from an earlier deployment by HMAS BOWEN and other corvettes to the Celebes in September 1945 that Japanese forces had refused to surrender Dutch women and children because they were not aware that the war was over; he also considered that on the passage to and from the Celebes, ships may well have been transiting unknown minefields. In the context of the ship's visit to Liroeng on 13 October 1945, he did not land, but believed there was a risk of rogue elements, and felt fearful.
Mr Webster did not land with the Applicant at any time, but he did form part of the party searching without success for the missing RAAF airmen. He confirmed that landing parties were briefed by the Officer In Charge of the Force, Major Garnsey, as to the risks and the need to be armed at all times. He did not observe any Japanese hostilities, nor was he aware of any occasion in the period 12 to 20 October 1945 where Japanese soldiers refused to surrender or hand over their arms. He confirmed that HMAS BOWEN embarked some prisoners at times, and gave evidence that there were no problems with Japanese working parties onboard the ship.
SUBMISSIONSCounsel for the Mr Robertson submitted that the test was whether the Applicant had "incurred danger", the definition of which was well established, and which does not turn on how the veteran felt, nor whether he was under attack or being fired upon. Counsel submitted that Mr Robertson had incurred danger, this being evidenced by the Admiralty signal warning of dangers (paragraph 16), the briefings given to him and other members of the landing parties as to risks and the precautions to be taken. He submitted that it was not necessary for Mr Robertson to have been involved in actual combat; he referred to the evidence of Mr Webster in respect of the threat from mines, and to the fact that at all times he was ashore, Mr Robertson was armed with a loaded weapon. The evidence was also that Japanese forces encountered were still armed, albeit that no incidents actually took place. Further, until surrender was affected in each instance, it was sufficient to assume that the Japanese forces remained the enemy, and the danger from such forces was "more than fanciful". The fact that no actual incidents occurred, must not lead to a consideration of hindsight; hindsight was irrelevant suggested Counsel.
Counsel submitted that the operations in which the Applicant was engaged were dangerous, and met the criteria in the relevant legislation as properly interpreted by the Federal Court. In referring in general terms to the oft quoted and relevant case law in similar matters, that is in Repatriation Commission v Thompson (1988) 44 FCR 20, Marsh v RepatriationCommission(No 2) (1987) 15 FCR 503 and Willcocks v Repatriation Commission (1992) 39 FCR 49, Counsel submitted that the Applicant's service during Operation Talaud fell within the words and meanings of those authorities. Counsel submitted that each component of the operations had an element of danger, evidenced in the fact that Japanese troops had to be disarmed. Finally, it was suggested that the Tribunal must take account of the beneficial nature of the legislation.
The Respondent submitted that the Applicant was primarily relying on the occasion of the visit to, and the disarming of, Japanese personnel in the headquarters at Liroeng, and his description of what occurred on that occasion did not meet the criteria of "incurred danger". The Respondent also relied on Thompson (supra), which authoritatively defined the incurred danger test, a test that was not met by the Applicant. The Respondent further submitted that the Applicant did not meet the "against the enemy" test as defined in Willcocks (supra), where it was held to mean more than mere contact with the enemy, involving the notion of hostility or active opposition to the enemy, a situation that was not evident from the evidence before the Tribunal.
The Respondent went on to submit that incurred danger must be supported by external evidence and be of some probative value. In this matter, it was submitted that the issue of rogue elements as raised by Mr Webster was irrelevant as the Applicant did not encounter such elements, and that the evidence merely portrayed a liability to danger or a mere risk of danger, insufficient to satisfy the Thompson (supra) test.
In response, Counsel for the Applicant submitted that the evidence of the witness could not be interpreted as implying that only rogue elements, to use the literal meaning of the word, were a consideration. All the activities in which the Applicant was engaged during Operation Talaud had an element of danger, demonstrated by the fact that a prime role was to disarm enemy forces.
ANALYSIS OF EVIDENCE AND FINDINGSThere was no evidence before the Tribunal, nor indeed did the Applicant argue otherwise, to suggest that the Applicant "incurred danger" vide section 7A(1)(a)(i) of the Act outside the eight day period when Operation Talaud was carried out from Morotai by HMAS BOWEN. The Applicant stated that he was unaware of any incidents that might be construed as resulting from enemy activities, during the passage north in HMAS BUNGAREE from Australia in late September/early October 1945. The Applicant also gave no evidence as to any incidents after HMAS BOWEN returned to Morotai on 20 October 1945, nor during the subsequent return passage to Australia. The witness, Mr Webster, who served with the Applicant from 12 October 1945 when the latter joined HMAS BOWEN, referred in a wider sense to fears of rogue elements, but gave no evidence in support of those fears as far as the activities of HMAS BOWEN after 20 October 1945 were concerned.
A letter from the Defence Personnel Executive dated 30 July 1997 (T3 p10) confirms that the Applicant was eligible for the Pacific Star, 1939-45 Star, War Medal and Australia Service Medal. There is no evidence before the Tribunal to suggest that the Applicant rendered such service after 29 October 1945 that would make him eligible for the Naval General Service Medal or General Service Medal with Minesweeping or Bomb-Mine Clearance Clasp vide section 7A(1)(a)(ii) of the Act. The issue therefore rests with whether he meets the criteria for rendering qualifying service in accordance with section 7A(1)(a)(i) of the Act, the period under consideration being that between 12 and 20 October 1945 when serving in HMAS BOWEN during Operation Talaud.
There are effectively three broad components of section 7A(1)(a)(i) of the Act, service during the "period of hostilities", that such service took place in operations "against the enemy", and that the person "incurred danger from hostile forces" of the enemy. The former was conceded at the outset by the Respondent and is agreed by the Tribunal.
The phrase "rendered service…at sea, in the field or…in naval, military or …operations against the enemy…" was considered by Cooper J in Willcocks (supra). At page 55, His Honour said:
"The phrase 'naval, military and 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' within section 36(1) of the VE Act."
At page 56, and after considering the meaning and uses of the word "against", 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 service, inter alia, in military operations against the enemy, in the sense of operations in hostility or opposition to the enemy."
In reaching the above conclusions, Cooper J (at page 54) referred to the view of the Full Court in Thompson (supra), which emphasised that in approaching the statutory provision, the words used are "of ordinary parlance and are used in their ordinary sense". Cooper J went on to say that nor was it permissible to add a gloss or addition to the statutory provision, and hence activities reasonably incidental to military operations could not, in themselves, be called military operations. In turn, this led his Honour to refute the argument that in releasing and repatriating prisoners of war, Mr Willcocks, was undertaking military operations against the enemy. He considered that such an activity was not in hostility or opposition to the enemy.
Of particular relevance to the matter before this Tribunal, Cooper J then concluded:
"It does not follow that no service after the formal Japanese surrender in Singapore on 12 September 1945 and in the period to 29 October 1945 will constitute 'qualifying service'. For example, if it were proved that as a matter of fact that a practical state of war or actual hostilities continued in the region after the formal surrender (see Marsh v Repatriation Commission (1987) 15 FCR 503 at 511, 512) any Australian soldiers deployed in the region to quell Japanese forces who refused to accept, or were unaware of, the surrender could properly be described as rendering service in military operations against the enemy"
In the recent decision in Repatriation Commission v Mitchell [2002] FCA 1177, which related to the applicant's service in the Torres Strait area, Cooper J stated at paragraph 22:
"The correct question to be addressed for the purpose of s7A(1)(a)(i), is whether the veteran rendered military service in an area where naval, military or aerial operations against the enemy occurred, and if so, whether in a practical way the service of the veteran was an integral part of those naval, military or aerial operations against the enemy in that area. Those operations, as I indicated in Willcocks, must be in hostility or opposition to the enemy.
...it is sufficient that the conduct in question is an integral participation in an activity intended for an encounter with the enemy, whether offensive or defensive in character: Repatriation Commission v Ahrenfeld (1991) 29 FCR 556 (FC) at 562-563. The activities of a veteran as part of such an operation may or may not involve the veteran personally in a direct, hostile, offensive or defensive encounter or exchange with the enemy, however, that is not the test…"It is not necessary to dwell on the reasons for the decision in Marsh (supra) as quoted by Cooper J, but to note the view of the Full Court in that matter at 512, wherein their Honours held to a previous decision on appeal that the interpretation of a statutory definition (referring to a theatre of war in this instance) must look to the practical rather then juristic concepts, and in that sense, practical considerations of the circumstances could be taken into account.
On the evidence in this matter, the Tribunal is of the opinion that the Applicant is entitled to take advantage of the reasoning in Willcocks (supra). His circumstances are appropriately different to those of Mr Willcocks. In this matter, there is no evidence that the relevant Japanese forces had accepted the direction to surrender. Whether they were, variously, and from island to island, in a hostile mode, or merely waiting to be formally instructed by allied forces to surrender is not evident. Ms Carter notes in Exhibit A1 from her research the fears that some Japanese personnel might not receive, or accept, the Japanese decision to surrender, and she quotes the official historian, Gavin Long, that in October 1945, "one organised Japanese force in British Borneo was showing no signs of surrender" It was into that climate that Operation Talaud took place, and the Tribunal accepts that the operation met the criteria of being a "military operation against the enemy".
Both parties drew on the decision in Thompson (supra) in respect of whether the Applicant met the "incurred danger" test. Counsel for the Applicant submitted that the situation in this matter met the definition in Thompson. Japanese personnel had not formally surrendered, nor was their any certainty that they would do so and they still carried arms. The landing parties from HMAS BOWEN were armed and briefed as to the dangers that might befall them. The Respondent took the opposite position, submitting that the Mr Robertson's experience did not meet the objective test.
In the Full Federal Court decision in Repatriation Commission v Thompson (1988) 44 FCR 20 , Davies, Wilcox and Foster JJ gave an authoritative and objective definition to the phrase "incurred danger", stating at pages 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 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 minimis applies. But to say that is not to give a flavour to the word. Rather it is to use it in its ordinary sense."
Whilst this definition of "incurred danger" as reasoned by the Full Court in Thompson (supra) has been widely used as the leading authority in this matter, similar objective definitions have been formulated elsewhere. In Re Crawford andRepatriation Commission (1987) 14 ALD 341, in which the applicant claimed to have incurred danger during the Japanese midget submarine attack in Sydney Harbour in May 1942, the Tribunal, presided over by Purvis J, stated at 347:
"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"
Of some relevance to this matter, is the decision in Re Jones (AE) and Repatriation Commission (1993) 31 ALD 542 which applied the reasoning in Thompson (supra). Mr Jones was serving in a boom defence vessel in Darwin in March 1944, and claimed qualifying service on the basis of the threat of attack by enemy aircraft and submarines. The tribunal found that Mr Jones had incurred danger on three occasions, two on the basis of sighting enemy aircraft with a concomitant risk of harm or injury from enemy aircraft retaliation to anti aircraft fire, and the third occasion being overflown by a low flying enemy aircraft, "capable of causing harm". The tribunal considered this was enough to establish risk of harm or injury.
The reasoning of Cooper J in Mitchell (supra) also has relevance to this question. He considered that in that matter, the tribunal was required to ask two questions, firstly whether at the time, there were enemy mines in the area in which the veteran travelled, and secondly, if satisfied on the first question, whether the veteran incurred danger "in the sense explained by the Full Court in Thompson." The same questions applied in the sense of the relevant circumstances to Mr Robertson, lead to a "yes" on both counts. There were enemy armed forces free to move in the area in which he was landing, and he was exposed to, at risk or in peril of harm or injury from those armed personnel.
Whether or not he was at risk or in peril of harm from mines is not considered, nor is it relevant to consider only the occasion when Mr Robertson landed at Liroeng. He was placed in similar exposed situations on other occasions of landing to implement the surrender process, and suffice to say that regardless of the Applicant's fears or apprehension, he was clearly at risk of harm or injury, a risk that the Tribunal considers to be more than "de minimis". The fact that no incidents actually took place has no bearing on whether he met the object test of incurred danger. The Tribunal finds that the Applicant satisfies the incurred danger test as set down by Thompson (supra) from hostile forces of the enemy during his service implementing the surrender process.
The Tribune therefore concludes to its reasonable satisfaction that the Applicant rendered qualifying service for the purpose of section 7A of the Act, and is eligible for the Gold Card pursuant to section 85(4A) of the Act.
DECISIONThe Tribunal sets aside the reviewable decision of the Repatriation Commission dated 31 July 2001 and in substitution therefor decides that Mr Bruce John Gray Robertson is eligible for a Gold Card under section 85(4A) of the Veterans' Entitlements Act 1986.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R HORTON AO, Member
Signed: H Sim .....................................................................................
AssociateDate of Hearing 6 September 2002
Date of Decision 25 October 2002
Counsel for the Applicant Mr N Dawson
Solicitor for the Applicant R L Whyburn & Associates
Advocate for the Respondent Miss P Hook
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