Settle and Repatriation Commission
[2003] AATA 775
•11 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 775
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/102
VETERANS' APPEALS DIVISION ) Re WALTER JOHN SETTLE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Rear Admiral A R Horton AO, Member Date11 August 2003
PlaceSydney
Decision The decision under review is affirmed. ...............................................
Rear Admiral A R Horton,
Member
CATCHWORDS
VETERANS’ AFFAIRS – Eligibility for the Gold Card – whether Applicant rendered qualifying service – RAAF service during period of hostilities – service at Rathmines Flying Boat Base – on Sydney Harbour during Japanese midget submarine attack in 1942 – stationed at Rathmines during Japanese submarine attack on Newcastle – whether Applicant incurred danger from hostile forces of the enemy – whether Applicant rendered service in operations against the enemy
LEGISLATION
Veterans’ Entitlements Act 1986 – sections 5B(1), 5C(1), 6A, 7A(1), 85(4A), 120(4)
AUTHORITIES
Repatriation Commission v Thompson (1988) 44 FCR 20
Willcocks v Repatriation Commission (1992) 39 FCR 49
Repatriation Commission v Mitchell [2002] FCA 1177
Repatriation Commission v Tiernan [2001] FCA 519
Re Crawford and Repatriation Commission (1987) 14 ALD 341
Re Tiplady and Repatriation Commission (1987) 12 ALD 670
Re Corrick and Repatriation Commission [2000] AATA 143
Re Mitchell and Repatriation Commission [2001] AATA 1055
REASONS FOR DECISION
11 August 2003 Rear Admiral A R Horton AO, Member 1. This is an application for review of a decision made on 10 July 2002 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 25 October 2002, that Walter John Settle (“the Applicant”) did not render qualifying service for the purposes of section 7A of the Act and hence is not eligible for the Gold Card under section 85(4A) of the Act. The Applicant lodged an application for review by the Administrative Appeals Tribunal (“the Tribunal”) on 16 January 2003.
2. At a hearing before the Tribunal on 21 July 2003, the Applicant was self- represented. Mr M Ryan appeared for the Respondent, being instructed by Mr J Marsh, Senior Advocate.
3. The Tribunal had before it as evidence the following documents:
Exhibit
Description
Date
T1-11 pp1-26
Documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1
Letter from the Applicant
25 March 2003
R1
Extract from Australians under Seige by S L Carruthers pp 173-181 and map
R2
Page 233 of Australians: A Historical Atlas, by J C R Camm and J McQuilton
R3
Report by Lt Col C H Ducker (C H Ducker Research Service)
27 March 2000
R4
Supplementary report by Lt Col C H Ducker
8 May 2000
R5
Department of Defence Letter PC264/1/191
2 November 2001
R6
Extract from Newcastle Herald
4 June 1992
LEGISLATION AND ISSUES
4. Eligibility for the Gold Card is established pursuant to 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 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."
5. 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 section 5B(1) of the Act, and that he meets the criteria for age as defined in section 85(4A) of the Act. Hence the only issue before the Tribunal is whether the Applicant has rendered qualifying service. The required standard of proof is that of reasonable satisfaction pursuant to section 120(4) of the Act.
6. "Qualifying service" is defined in section 7A of the Act which relevantly states:
"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;
..."
BACKGROUND AND EVIDENCE
7. The Applicant was born in Sydney on 14 April 1922. After he left school at the age of 16, he became a jackeroo until taking up employment as a PMG telephone mechanic in June 1939. A year later, he sought to join the Royal Australian Air Force (“RAAF”) but was not enlisted until 17 September 1940. A Record of Service (T5, p19) and a Certificate of Service and Discharge (T6, p24) show his promotions in rank and mustering, and that he completed his service “to resume civil occupation” on 11 September 1945. They do not show his postings, and the Respondent accepted, as does the Tribunal, the posting record provided by the Applicant in his letter to the Tribunal at Exhibit A1.
8. On completion of his recruit and technical courses in June 1941, the Applicant was posted as a Fitter 2A to Richmond for 2 months before being posted to Rathmines Flying Boat Base on Lake Macquarie, where he remained until 5 August 1942. At that time, he was transferred with the initial party to establish the new Flying Boat Base at Lake Boga in Victoria, where he remained until completion of his service some three years later. In both those postings his primarily task was the maintenance of Catalina Flying Boats. As he advised the Tribunal, he had volunteered for mustering as a Fitter in the expectation that he would see overseas service, but this was not to be.
9. During his period of service at Rathmines from August 1941 to August 1942, Japanese submarines carried out two attacks on Sydney, one by midget submarines, the other by gunfire from seaward, and a gunfire attack on Newcastle. On Sunday 31 May 1942, the Applicant was on short leave in Sydney, in anticipation of a medical appointment the following day, this appointment being in relation to an application for aircrew training. He gave evidence that having failed to contact various friends, he drove his motorcycle from his parents’ home at Northbridge to Milson’s Point in the late forenoon, caught the train to the city, and then the ferry to Manly. He caught a return ferry from Manly at about 2200.
10. He recalls that as the ferry was in the vicinity of Garden Island and Fort Denison, he heard a loud explosion from somewhere in the harbour. He stated that there was some confusion as passengers sought to get to the outside decks of the ferry, but nothing could be seen except for searchlights. He thought the ferry Captain may have broadcast something, and as the ferry approached Circular Quay, he heard sirens. He subsequently walked to Wynyard Station, and took the train back to Milson’s Point. Whilst crossing the bridge, he could see searchlights, and heard what he believed to be gunfire. He returned by motorcycle to his parents’ home, and heard nothing further. He was not aware that Sydney had been subject to midget submarine attack until the following morning when informed by his parents, who presumably heard the news on the radio. He then contacted RAAF Eastern Command who instructed him to return to Rathmines.
11. The circumstances of the midget submarine attack that evening are now well documented. Exhibits R1 and R2 variously provide an overview of events and a chronological narrative. For the purposes of the decision under review, a brief resume of the significant events is warranted. Three midget submarines, each armed with two torpedoes, were launched from their mother submarines on the afternoon of 31 May and entered Sydney Harbour that evening. At 2235, Midget 14 was destroyed by its crew, having become entangled in the boom net off Georges Head and having been identified by harbour naval craft. No torpedoes were fired.
12. Midget A passed through the boom defences at about 2150 and, although detected and observed, managed to proceed well into the harbour where it fired two torpedoes at USS Chicago at 2330, before escaping to sea. One torpedo exploded beneath HMAS KUTTABUL at Garden Island, the other struck Garden Island but failed to detonate. The third submarine, Midget 21, was attacked unsuccessfully on entering the harbour, but was later sunk by naval vessels in Taylor Bay in the early morning. It had been unable to carry out any attacks.
13. Seven days later, that is on 8 June 1942, Japanese submarine I-24 shelled Sydney, and some two hours later, submarine I-21 shelled Newcastle. Again the circumstances of these attacks are now fairly well documented. The attack by I-21 on Newcastle is relevant to the matter before the Tribunal, the Applicant being located at Rathmines that evening. Exhibits R3 and R4 provide relevant detail and address various aspects particular to the circumstances in which those reports were sought. Exhibit R6 provides further detailed explanation of the events that evening. Whilst there apparently remains some discrepancies in the various accounts of the action, it is known that I-21 fired some 24 shells at the city and towards the steelworks from about 7000 yards north east of the harbour entrance. A mixture of 5.5 inch starshell and high explosive shells were fired in a period of about 20 minutes, only three of the latter exploding.. In response, Fort Scratchley fired four rounds.
14. The Applicant was stationed at Rathmines where he serviced Catalina and Kingfisher aircraft. He agreed with the Respondent that Rathmines was about 20 miles (32 kilometres) from Newcastle. On the evening of 7 June, he finished work at about 1700 and turned in at about 2200. He did not wake during the shelling of Newcastle, and was not aware of the attack until informed at the normal parade the next morning, when an order was given to disperse the four aircraft under maintenance to various parts of Lake Macquarie. He spent the next four days and nights watchkeeping and manning his aircraft, which had been towed to Kilaben Bay, and carrying out limited maintenance. He considered this dispersal of aircraft to be a clear indication of the danger of subsequent attack, and to be a “‘defensive action’ taken against the enemy”, and he was aware that aircraft at Rathmines undertook operational sorties in response to the submarine attack. He understood that the situation was considered “extremely dangerous”.
15. Two months after the submarine attack, the Applicant was posted to No. 1 Flying Boat Repair Depot at Lake Boga. He understood that the then Chief of the Air Staff had made the decision to establish this “secret” base due to the vulnerability of Rathmines. The Repair Depot serviced Catalinas and various aircraft operated by allied air forces. He participated in over 50 test flights, but no operational flights. No incidents that might be related to enemy activity occurred during his three year posting to Lake Boga.
SUBMISSIONS
16. The Applicant submitted that the attacks on Sydney and Newcastle were evidence that coastal airfields including the Flying Boat bases were exposed to enemy action, and that personnel located at those facilities were accordingly under threat. He also considered that he was on duty when travelling in the ferry from Manly to Circular Quay on 31 May, being in uniform and being in Sydney to attend a medical appointment the following morning. He emphasised that he had volunteered for overseas service, and that was further evidenced by his volunteering for mustering as a fitter, which he believed would lead to overseas service. The fact that he was not selected for aircrew, although he volunteered on more than one occasion, further limited his opportunity for overseas service.
17. The Applicant feels strongly that the legislation and the subsequent interpretation of that legislation discriminates against those service personnel who were not posted overseas, yet were volunteers and available for such service, and were equally important in the defence of this country. In his case, he was in danger when on the harbour on the night of the midget submarine attack, and again when at Rathmines during the submarine shelling. In the latter circumstance, he was engaged on operations against the enemy when involved in the action to disperse aircraft in anticipation of a further enemy attack.
18. The Respondent acknowledges the important role played by the Applicant in the defence of Australia, by that of maintaining and repairing operational aircraft, but submitted that the decision on his eligibility for the Gold Card must be based on extant legislation and relevant case law. The Respondent submitted that whether the Applicant was on leave or on duty when travelling on the ferry on 31 May had no relevance to the issue before the Tribunal, this being whether he incurred danger and if so, whether that was in operations against the enemy. The same considerations applied in respect of his service at Rathmines, during and after the submarine attack on Newcastle.
19. The Respondent submitted that the Applicant objectively did not incur danger during the midget submarine attack. If his ferry had left Manly at about 2200 as the Applicant believed was the case, and proceeded direct to Circular Quay, (the Applicant having not given evidence that the ferry had diverted or stopped), then he would have been well ashore before Midget A fired torpedoes. There was no evidence that either of the remaining two midgets was a threat. Further, aside from observing searchlights, and hearing a single explosion whilst on the ferry, the Applicant heard nothing to indicate an attack was taking place.
20. With regard to the shelling of Newcastle, the Respondent submitted that the maximum range of the submarine gun was in the order of 14,000 yards (although the basis for this estimation was not given), and as the submarine was known to be no less than 7000 yards off shore, Rathmines Flying Boat Base was in no physical danger. The Applicant was not engaged in any operations against the enemy, either during the attack, or later when living onboard the dispersed aircraft. The dispersal was not an action against the enemy.
21. In support of his position, the Respondent referred to Re Crawford and Repatriation Commission (1987) 14 ALD 341 which addressed the issue of “incurred danger” during the midget submarine attack, Willcocks v Repatriation Commission (1992) 39 FCR 49, wherein “military operations against the enemy” was defined, and Re Corrick and Repatriation Commission [2000] AATA 143, which drawing on Willcocks (supra), addressed the relationship between “incurred danger” and “military operations against the enemy”. The Respondent also submitted that Tiernan v Repatriation Commission [2001] FCA 519 and Repatriation Commission vMitchell [2002] FCA 1177 also had relevance in respect of the requirement to be engaged in military operations and to be an integral part of operations in an area respectively.
FINDINGS
22. The issue to be considered in this matter is whether the Applicant rendered qualifying service by meeting the “incurred danger” test pursuant to section 7A(1)(a)(i) of the Act, the other criteria required under subsection 85(4A) in respect of eligibility for the Gold Card having been met.
23. The relevant test is an objective one rather than a subjective one, the authoritative definition in respect of such a test being found in Repatriation Commission v Thompson (1988) 44 FCR 20.In that matter, the Full Court stated at 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, that there is a mere 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 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."
sydney harbour
24. As earlier noted, the Tribunal accepts that the Applicant left Manly by ferry at about 2200 on Sunday 31 May 1942. In the absence of any evidence to the contrary, the Tribunal assumes that the ferry arrived at Circular Quay about 2245. On that basis, the Applicant was well clear of the harbour before Midget A fired its two torpedoes at USS Chicago at 2330, and following the reasoning in Re Crawford (supra), he was therefore in no danger. In that matter, where the applicant was on a wharf and behind a shed, the tribunal found at 348 that “the nature of the “forces” and their weaponry were quite specialised and, as we have said, these special aspects would not have created any danger to persons away from the area of the harbour we have already identified.”, and, at 349, “….he was unlikely to have “incurred danger” if he was at some geographical location other than in the vicinity of ships or wharves ….”
25. But the conclusion can be drawn that the ferry in which the Applicant was a passenger must have passed somewhere near Midget 14 as it passed through the boom, the midget submarine being entangled in the boom at that time. The conclusion can also be drawn that the ferry must have passed Midget A as they both proceeded up the harbour some little time later. Here, the test to be applied as to whether the Applicant incurred danger on either or both of those occasions must be objective as required by the Full Court in Thompson. In this instance, the Applicant had no perception that he was “at risk or in peril of harm from hostile forces”, although he might have been, unbeknown to him, at risk or in peril of harm. Of more significance in this case, in the view of the Tribunal, is the further opinion of their Honours that “the words “incurred danger” do not encompass a situation where there is a mere liability to danger, that is to say, … a mere risk … ”.. It is unlikely that Midget 14 would have targeted a ferry, but, in the event, it was unable to carry out any attack having been caught in the boom. Midget A clearly was intent on attacking a major naval unit off Garden Island, which is the action ultimately undertaken. The Tribunal must find to its reasonable satisfaction that, in the circumstances, the Applicant did not incur danger.
26. Even had the Tribunal reached a decision that danger had been incurred, the Applicant must also meet the additional criteria in section 7A(a)(i) of the Act in that the danger must be incurred in “naval, military or aerial operations against the enemy” as defined. Cooper J addressed this in Willcocks (supra) 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” within the meaning of section 36(1) of the VE Act."
His Honour went on to say, in regard to the meaning and use of the word ”against”, at 56:
"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."
27.This criteria was applied by Deputy President McMahon in Re Corrick andRepatriation Commission [2000] AATA 143, in which the applicant was not successful. Whilst the circumstances in Re Corrick differ from those in this instance, Mr Corrick having been asleep in bed ashore in Sydney when a shell from I-24 landed in very close proximity, there is some similarity. Whilst Mr Corrick was adjudged to have incurred danger, his activities on the night were considered by the Tribunal to be “essentially passive” and “there was nothing in his activity ...which could fairly be described as a military operation against the enemy”. The facts in this matter are on 'all fours' with Re Corrick (supra) in that there was also nothing in the Applicant’s activity that could be described as a military operation against the enemy. That he was in uniform has no relevance. Nor is it of relevance as to whether he was on duty at the time, as his duty could only be described as proceeding to Sydney for a medical appointment, and not as part of a military operation against the enemy.
28. There is a more recent and relevant decision that must be considered, namely Mitchell and Repatriation Commission [2001] AATA 1055. Mr Mitchell served in the Australian Army as an anti-aircraft gunner from May 1942 until September 1946. In September 1944 he took passage from Townsville to Horn Island in the troop ship Katoomba, thence being transferred by launch to Thursday Island and again by launch to Cape York, where his unit formed part of the airfield defences at the operational airfield at Higgins Field. Some eight days later, his unit was withdrawn, travelling by launch to Thursday Island and again to Horn Island, where he embarked in the troop ship Duntroon for the passage to Brisbane. The veteran submitted that his circumstances were practically identical to those of a Mr Tiplady (Re Tiplady and Repatriation Commission (1987) 12 ALD 670), and the tribunal relied on the proceedings in that matter in reaching the conclusion that Mr Mitchell had “incurred danger” during passage in Torres Strait waters because of the risk from Japanese mines, and also engaged in “naval, military or aerial operations against the enemy” because of his integral involvement in the significant operational role of the forces based at Higgins Field, and its exposure to Japanese attack by air and by landing parties.
29. On appeal in Repatriation Commission v Mitchell [2002] FCA 1177, Cooper J dismissed the application by the Respondent, holding that:
“(i) Section 7A(1)(a)(i) requires a veteran to be engaged in military operations against the enemy "in an area". The correct question to be addressed is … 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.
(ii) The section does not require that the veteran be involved in actual personal combat against 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.
(iii) …
(iv) …”
A subsequent application by the Repatriation Commission to the Full Federal Court was dismissed by consent.
30. The Respondent submitted that the circumstances in this matter differed from those in Re Mitchell (supra) in that the Applicant was not an integral participant in an operation against the enemy. Nor were the circumstances of being in danger from mines, or any other threat, replicated in this instance.
31. In his judgment in Willcocks (supra), Cooper J said at 55:
“Whether or not an activity falls within the section [s36(1) of the VE Act], will depend upon determining in a practical way whether or not the conduct or the activity was an integral part of naval, military or aerial operations against the enemy.”
and in Mitchell (supra), His Honour emphasised that operations must be against the enemy “in an area”.. That was the situation in Torres Strait; it is not the case in the context of the matter before this Tribunal, where operations were not being conducted against the enemy at the time of the submarine attacks. In essence, this was a rear base, with minimum expectation of an enemy attack, and no offensive military operations against the enemy. When the attack on Sydney did arise, the Applicant was not an “integral participant” in any operational activity.
newcastle
32. Case law, as referred to, is equally relevant in considering whether the Applicant rendered qualifying service resulting from the attack on Newcastle by I-21. At the time of the attack, he was asleep at Rathmines Flying Boat Base. He heard nothing and was not aware of the attack until the following morning. Rathmines is located about 32 kilometres from the estimated firing position of I-21, far outside gun range, and there was therefore no threat to the Applicant. That is, he did not incur danger from this attack. The Applicant considered that Rathmines was vulnerable to a later attack, being a high profile target. There is no evidence to suggest that such an attack was ever contemplated and, in any event, it is unlikely that a submarine would have the required gun range for an attack. Clearly, applying Willcocks, the Applicant was not engaged in military operations against the enemy, either in the course of the shelling attack on Newcastle or when involved in the dispersal of aircraft under maintenance. Whilst the latter may be seen as belated response to the attack on Newcastle, and the Applicant described it as an operation against the enemy, it does not fit the definitive criteria adopted in Willcocks by Cooper J nor that later expounded by His Honour in Mitchell.
33. The Tribunal finds on the evidence that in neither of the actions by the Japanese at Sydney on 31May/1 June and off Newcastle on 8 June 1942, did the Applicant incur danger from hostile forces of the enemy in (military) operations against that enemy. There are no other instances which would have relevance in this regard. Whilst the Tribunal recognises his fine service in the RAAF in a time of war, it must find that the Applicant has not rendered qualifying service pursuant to section 7A(1) of the Act, and is therefore ineligible for the Gold Card.
34. The decision under review is therefore affirmed.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton AO, Member
Signed: C. Gregson
AssociateDate/s of Hearing 10 July 2003
Date of Decision 11 August 2003
Solicitor for the Applicant Self-Represented
Advocate for the Respondent Mr M Ryan
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