Sherrard and Repatriation Commission

[2000] AATA 155

DECISION AND REASONS FOR DECISION [2000] AATA 155

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No    V1999/974

VETERANS'     APPEALS      DIVISION         )          

Re      FRANCIS WILLIAM SHERRARD

Applicant

And    REPATRIATION COMMISSION  

Respondent

DECISION

Tribunal       Mr A. Argent, Member        

DateThursday, 2 March 2000

PlaceMelbourne

Decision      The decision of the Repatriation Commission is affirmed.   

(Sgd.)  A. Argent
  Member
CATCHWORDS
VETERANS' AFFAIRS - qualifying service -- whether incurred danger -- eligibility for Gold Card – decision affirmed
Veterans' Entitlements Act 1986 - section 7A, ss 85(4A)
Repatriation Commission v Walter Harold Thompson (1988) 82 ALR 352

REASONS FOR DECISION

2 March 2000  Mr A. Argent, Member

Background

1. This is an appeal by Mr Francis William Sherrard ("the veteran") against a decision of a senior delegate of the Repatriation Commission ("the Commission") dated 24 June 1999.

2. That decision affirmed a previous decision of the Commission dated 3 March 1999 which determined the veteran had not rendered qualifying service during the period of hostilities of World War Two and thus was not entitled to a Gold Card.

3. The period of hostilities of World War Two is from 3 September 1939 to 29 October 1945.

4. Qualifying service is defined at section 7A of the Veterans' entitlements Act 1986 ("the Act"). Part of this section reads:

   "Qualifying service
   7A.(1)  … a person has rendered qualifying service:

   if the person has, as a member of the Defence Force:

   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"

5. Section 85(4A) of the Act specifies that a veteran is eligible to be provided with treatment, that is, entitled to a Gold Card, if the veteran is aged 70 or over and has rendered qualifying service during World War Two.
   Issue

6. The issue before the Tribunal is whether the veteran rendered qualifying service during World War Two.
   The Evidence

7. The case was heard on the papers by consent of the parties.

8. The Tribunal had before it:

(a) The documents ("the T documents") lodged by the Commission pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Included in these documents is material supplied by the veteran concerning his World War Two service.

(b) Letters from Mr Bayliss dated 12 December 1992 and Mr Eddington dated 4 December 1992, both of whom served in the same unit as the veteran.

(c)  A report by Associate Professor McCarthy dated 4 January 2000, a copy of which was sent to the veteran.

1. The veteran was born on 27 January 1921, was called up for full-time duty in the Citizen Military Forces on 7 November 1941, transferred to the AIF on 3 August 1942 and discharged on 13 December 1945.  He served in the Northern Territory in 15 Australian Water Transport Operations Company, 15 Australian Small Ship Company and 56 Australian Port Craft Company from 24 November 1943 to 15 November 1945.

2. In an attachment to his Application for Gold Card dated 18 February 1999, the veteran stated he was a crewman of small ships that operated from Darwin to Port Keats in the south west and to various locations off Arnhem Land, north and north east of Darwin.  These voyages were on a regular basis and varied in duration from 3-4 days to 2-4 weeks.

3. He stated these voyages were qualifying service outside Australia and his service in Darwin was qualifying service in Australia.

4. He also stated he arrived in Darwin on 2 October 1943 and was taken on strength of 15 Small Ship Company, some weeks later, on 13 November 1943.

5. However, his service records show the veteran was admitted to hospital in NSW (Sydney) on 11 September 1943, discharged on 16 September 1943, re-admitted to the same hospital on 21 September 1943 and rejoined his unit on 2 October 1943.  He marched out from his unit on transfer to 15 Australian Water Transport Operating Company on 13 November 1943 and was taken on their strength on 24 November 1943 in the Northern Territory.

6. 24 November 1943 is after the cut-off date of 12 November 1943 for qualifying service north of 14 degrees 30 minutes South.  12 November 1943 is the date of the last Japanese air raid on Darwin and other parts of the Northern Territory.

7. Turning to the voyages, in which the veteran was engaged, from Darwin to coastal detachments, from 24 November 1943 to 15 November 1945, historical records show the only enemy submarine activity was a Japanese craft that made a reconnaissance of the north west coast of Australia from 31 May 1944.  Japanese surface ships did not operate in north Australian waters during the above period, November '43 – November '45.

8. The veteran's unit war diary records only one instance of possible Japanese air activity during his service in Darwin.  This occurred on 10 June 1944 when there was a Red alert at 2245 hours (i.e. hostile aircraft considered within striking range).  At 2320 hours the war diary recorded "Air raid Green" (i.e. all clear) and "no enemy action in this area".

9. The veteran may have been involved in the repatriation of prisoners of war in Timor when his unit, 56 Australian Port Craft Company, sent a barge detachment to Koepang, the voyage being between 7-11 September 1945.  At Koepang the detachment ferried men from shore to ships.
   Findings

10. The meaning of "incurred danger" was set out by the Full Court of the Federal Court in the case of Repatriation Commission v Thompson (1988) 82 ALR 352. Their Honours' said:

    "The words "incurred danger" 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 a 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."

11. The veteran arrived in Darwin on 24 November 1943, a date after 12 November 1943, the last Japanese air raid in Darwin.  He therefore did not render qualifying service under this head.

12. The veteran did not incur danger from the hostile forces of the enemy during his voyages in Army small ships from Darwin to the coastal detachments during the period November 1943 – November 1945 because, during this period, there were no enemy attacks on any of these small ships.

13. In addition, the veteran did not incur danger from the hostile forces of the enemy following the Red alert on 10 June 1944 as there was no enemy activity in his unit's area.

14. Finally, assuming the veteran was in the detachment that went to Timor, he did not incur danger from the hostile forces of the enemy during this service because the Japanese surrendered on 15 August 1945 and the detachment did not arrive in Koepang until more than three weeks later, on 11 September 1945.  There are no records of Japanese hostilities in Timor after their surrender that may have exposed the detachment to danger.
    Decision

15. The decision of the Repatriation Commission is affirmed.

    I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of  Mr A. Argent, Member

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