SOUTHALL And REPATRIATION COMMISSION
[2011] AATA 616
•2 September 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 616
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0827
VETERANS' APPEALS DIVISION ) Re RICHARD SOUTHALL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr K S Levy, RFD, Senior Member Date2 September 2011
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.................[Sgd]........................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Pensions, benefits and entitlements – Service pension – Operational service with British Royal Navy – No corroborative evidence applicant incurred danger from hostile forces – Decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth) s 5B, 7A, 119, 120, Schedule 2
Briginshaw v Briginshaw (1938) 60 CLR 336
Caswell v Powell Duffryn Associated Collieries Ltd (1939) 3 All ER 722
Gittoes and Repatriation Commission [1990] AATA 5901
Grundman v Repatriation Commission (2001) 66 ALD 125
Repatriation Commission v Bey (1997) 149 ALR 721
Repatriation Commission v Thompson (1988) 82 ALR 352
REASONS FOR DECISION
2 September 2011 Dr K S Levy RFD, Senior Member INTRODUCTION
1. The applicant, Richard Southall, served in the British Royal Navy as a radio operator from 12 September 1961 to 11 February 1972. As part of that service he was posted to HMS Ajax and served in Singapore. During that posting he was allocated for temporary duty to HMS Picton for a brief period. He applied for recognition of that service and for service pension in November 2008 under the relevant provisions of the Veterans’ Entitlements Act 1986 (Cth) (the Act). That application was refused. Following further enquiries by Mr Southall with the UK Ministry of Defence, he was able to provide further and more definitive information and lodged a further application for recognition on 3 August 2010. That further application for recognition of qualifying service and service pension was also rejected on 15 October 2010.[1] The applicant now applies to this Tribunal for review of that decision.
[1] See letter dated 21 October 2010.
ISSUE
2. The Tribunal is required to determine the following issue:
(a)Did the applicant render qualifying service under s 7A(1)(b) of the Act?
EVIDENCE
3. Mr Southall submitted evidence that the United Kingdom Service Personnel and Veterans Agency, an executive agency of the British Ministry of Defence, did not have a record of his service for temporary duty with HMS Picton and therefore is not entitled to the General Service Medal.[2] He clearly served 22 days of eligible service on HMS Ajax during the period 29 April 1966 to 28 July 1966. That is part of his postings to that ship from 10 October 1965 to 19 November 1965 and again for the period 11 December 1965 to 16 December 1966.[3] The gap in that period, according to his service record, shows he was posted to HMS Eagle. The letter from the United Kingdom Ministry of Defence shows there was two periods of seven days during the period in which HMS Picton undertook relevant operational service. Mr Southall says the first of those periods, 27 October 1965 to 2 November 1965, was the period in which he served on that ship. However, that period has not been recorded in his service record. The response from the Ministry of Defence was framed in the context of whether Mr Southall was eligible for award of the General Service Medal. As the response of the Ministry of Defence shows, even if his service with HMS Picton had been recorded on his service documents, he would still not quite satisfy the eligibility requirements for the General Service Medal. Had that medal been approved for Mr Southall, he would have been qualified under s 7A (1)(b)(ii) of the Act. The applicant is of the understanding that there are other people with similar service to his and who have been awarded the General Service Medal, who now live in Australia and are paid a service pension under s 7A of the Act. There are no specific details of those cases and in any event, those would not be likely to be relevant evidence in this case.
[2] T-Documents, Folios 59 and 60.
[3] T-Documents, Folio 60.
4. The application points to the operation of the United Kingdom Naval Forces in the area at that time. The applicant’s claim is specifically made on the basis that he was on board HMS Picton when a communist-manned sampan fired upon the ship during one of the patrols while he was on board that vessel. He refers to this as a minor incident.[4]
[4] T-Documents, Folio 26.
5. He says the shot in question must have been fired by a communist insurgent‑manned sampan, or a land-based unit.[5] Although the rifle fire was speculative, he said one round did strike the ship on the starboard aluminium ‘run‑down’. The applicant said he was on the upper deck taking a break from his role as a wireless operator at the time the shot was fired. His evidence was that he reported the matter to the Captain of the ship.
[5] T-Documents, Folio 36.
CONSIDERATION
6. I have considered the evidence provided by Mr Southall at the hearing as well as the documentary evidence submitted to the Tribunal. The relevant provision of the Act is s 7A(1)(b) which provides as follows:
7A Qualifying service
(1)For the purposes of Parts III and VA and sections 85 and 118V, a person has rendered qualifying service:
…
(b)if, during a period of hostilities, the person has, as a member of the defence force established by a Commonwealth country, rendered, in connection with war or war‑like operations in which the Naval, Military or Air Forces of Australia were engaged:
(i)service, in an area outside that country, at a time when the person incurred danger from hostile forces of the enemy in that area; or
(ii)service within that country, being service in respect of which the person has been awarded, or has become eligible to be awarded, a campaign medal; or …
7. The term ‘period of hostilities’ is defined in s 5B(1)(e), and covers the period of hostilities in respect of war-like operations in operational areas from 31 July 1962 to 11 January 1973. The term ‘operational area’ is defined in Item 7 of Schedule 2 issued under the auspices of s 5B of the Act. Item 7 of Schedule 2 refers to the territories of Malaysia, Brunei and Singapore and the waters adjacent to those countries for the period 17 August 1964 to and including 30 September 1967, as being operational areas for the purposes of the Act. His service with the British Royal Navy in Singapore was therefore during a ‘period of hostilities’ referred to s 7A of the Act.
8. The evidence shows the applicant does not satisfy s 7A(1)(b)(ii) as he did not qualify for a campaign medal. The advice from the UK Ministry of Defence Medal Office, dated 25 October 2007, is convincing evidence of that conclusion. However, the applicant is not so obviously disqualified under s 7A(1)(b)(i). To be qualified under that provision he must show:
(1)He was a member of the defence force established by a Commonwealth country;
(2)He served in an area outside that country;
(3)He was involved in a period of hostilities in connection with war or war‑like operations in which the Naval, Military or Air Forces of Australia were engaged;
(4)At that time, he “incurred danger”; and
(5)The danger incurred must be from “hostile forces”.
9. There is evidence to show, and the respondent accepts, that Mr Southall satisfies elements (1) to (3) above. The issue to be determined is whether Mr Southall’s service satisfies elements (4) and (5) above. These must be assessed in relation to Mr Southall’s claim that he was on HMS Picton (on the bridge having a smoke break) at the time a shot was fired at the ship. The shot apparently struck the aluminium ‘run-down’ on the starboard side of the ship.[6] The applicant pointed to a photograph during his evidence at the hearing which showed that part of the ship on a photo of HMAS Woolaston, which was the same class of ship as HMS Picton.[7]
[6] T-Documents, Folio 36.
[7] T-Documents, Folio 34.
10. The first issue specifically is: did Mr Southall “incur danger” as referred to in s 7A(1)(b)(i)? In answering this question, one must look to the meaning of that term. “Incurring” or “to incur” means to “…fall or come to” or “to run into (danger, etc)”. “Danger” means “liability or exposure to harm or injury; risk or peril”.[8]
[8] Shorter Oxford English Dictionary Volume 1.
11. The test of whether a serviceman has ‘incurred danger’ for the purposes of the Act was set out by the Full Court of the Federal Court in Repatriation Commission v Thompson (1988) 82 ALR 352 (Thompson), where at 356 the Court said:
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, 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 the 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.
12. The applicant referred to danger which was pervading at the time and included documented history showing some specific instances of ships in the UK fleet being in danger in that area, or perhaps even grave danger. There is no specific instance mentioned in the material presented of HMS Picton being in danger, or at least not at that time. Mr Southall’s claim in which he says he experienced a shot being fired which hit HMS Picton is contradicted by that history. There is no further evidence that is, no corroborative evidence, of his claim that one shot was fired and which struck the ship on the aluminium run-down on its starboard side.
13. In relation to this incident, the applicant stated it was “a minor incident in comparison to many”. The respondent submitted that this could not constitute “incurring danger”. A shot fired, even an isolated shot, could undoubtedly be regarded as dangerous to a person, perhaps even as much as if a number of shots were fired. But that must depend on an examination in the context of how close a person is to where a round landed and the likelihood of being injured or killed. It may be a minor incident in the scheme of things with little likelihood of danger, but that is not to say a sailor might not nevertheless “incur danger” in some circumstances, even though it is of relatively low probability.
14. The circumstances here refer to one shot only and there is no suggestion the applicant was seen on the deck or that he was the target. He was on the upper deck when a shot was heard and something apparently hit the run-down of the ship. It was not contended he was close to the shot. The applicant said he was not claiming he was injured, fired upon or wounded. He was “not trying to glorify the incident” – although he still claims it was a dangerous situation.
15. The test from Thompson’s case shows it is not a subjective test. It is not how Mr Southall might regard the danger, but how it might be regarded when assessed objectively.
16. There is no evidence who fired the shot or where the shot came from. There is no evidence it was ever directed at the ship. This lack of specificity might even raise a possibility whether a shot being fired and a sound of something hitting the side of the ship were logically connected. The claim infers it was small arms fire, for example a rifle shot, and there was no suggestion that it may have been of larger calibre. The description of where the round landed, as described by Mr Southall in relation to where he was standing on the upper deck, does seem to me to make it most unlikely he could have been in danger of being hit, even by a ricochet from the shot, as described in the theory of his case.
17. The evidence is to a large degree speculative. Mr Stoner referred me to Caswell v Powell Duffryn Associated Collieries Ltd (1939) 3 All ER 722, where Lord Wright said:
…if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.[9]
[9] See at page 733.
18. The evidence, therefore, is really quite inconclusive in that the specificity and corroborative aspects of the incident are wanting. That is not a criticism of Mr Southall. The respondent did not raise any issues of credit of Mr Southall. Nor do I. He has certainly presented his case fairly and moderately and I regard him as a witness of truth. However, the lack of documentary evidence about his service on HMS Picton and as to any report about a shot fired at that ship makes satisfying the relevant standard of proof very difficult. The speculative nature of this evidence is, ultimately, not a sufficient basis to satisfy the statutory requirement of the standard of proof.[10]
[10] See Gittoes and Repatriation Commission [1990] AATA 5901.
19. In respect of whether the applicant’s story should be accepted, the respondent has also referred to s 119(1)(g) and (h) of the Act, which allows for amelioration of outcomes where proof is difficult due to some missing aspects of evidence. In such cases s 119 may assist an applicant who might otherwise not succeed, but where there is nevertheless some evidence which can clearly be said to have some merit. In particular, section 119(1)(g) requires a Tribunal to act in accordance with substantial justice and the substantial merits of the case. The material here, however, is substantially deficient and does not point to the merits of the case, or at least, does not point to the merits “substantially”.[11] Those subsections of s 119(1) do not bridge the gap to enable me to find the standard of proof satisfied.
[11] Repatriation Commission v Bey (1997) 149 ALR 721; Grundman v Repatriation Commission (2001) 66 ALD 125.
20. The applicant must satisfy the standard of proof in s 120(4) of the Act. In other words, he must satisfy the Tribunal to its “reasonable satisfaction”. That is the civil standard of proof on the balance of probabilities. Where there is doubt about the evidence (as there is here), it must be satisfied according to the description set out in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 to 363, where the High Court said where proof is required of any fact, the Tribunal must “feel an actual persuasion of its occurrence or existence.”[12]
[12] See Dixon J at 361 – 363.
21. The evidence submitted by the applicant cannot ground a belief in the existence of facts which could satisfy that standard of proof. Therefore it does not show other than in some speculative way that the applicant “incurred danger”. Even if it could be shown a shot was fired and that it hit the ship, it would have to be shown that it came from “hostile forces”. It may have done so, but on this evidence it might be said to be equally as probable that it did not. It follows that I cannot be reasonably satisfied to the required standard of proof of the occurrence of the incident claimed.
22. I must therefore affirm the decision under review.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K S Levy RFD
Signed: .................[Sgd]...............................................
Research AssociateDate/s of Hearing 7 July 2011
Date of Decision 2 September 2011
Applicant was self-represented
Solicitor for the Respondent Mr John Stoner, departmental advocate
0
7
1