Swain and Repatriation Commission
[2003] AATA 645
•8 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 645
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/106
VETERANS’ APPEALS DIVISION ) Re HERBERT ARTHUR SWAIN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr I R Way, Member Date8 July 2003
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution therefor determines that Herbert Swain has rendered qualifying service pursuant to section 7A of the Veterans’ Entitlements Act 1986.
(Sgd) I R Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – eligibility – whether veteran has rendered qualifying service - whether incurred danger from hostile forces of the enemy
Veterans’ Entitlements Act 1986 ss 7, 119, 120
Re Sharkey and Repatriation Commission (1988) 15 ALD 782
REASONS FOR DECISION
8 July 2003 Mr I R Way, Member 1. This is an application by Herbert Swain (the applicant) for review of a decision of a delegate of the Repatriation Commission, dated 21 November 2002, which determined that the applicant does not have qualifying service as defined in section 7A of the Veterans’ Entitlements Act 1986 (the Act).
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6), and other documentary evidence as follows:
Exhibit A1Letter from DF Gibson dated 3 June 2003
Exhibit A2Letter from Mr Whiley dated 25 September 2000
Exhibit A3Newspaper Cuttings from Sydney Morning Herald, 1944
Exhibit R1Report of Prof J McCarthy dated 29 June 2000
Exhibit R2Letter from DF Gibson dated 14 June 2000 plus attachments
Exhibit R3Attachments to Writeway Report (at page 41 of T docs).
3. The applicant was represented by Mr McGarry and the applicant gave oral evidence. Mr J Kelly appeared for the respondent.
Issues and Legislative Framework
4. The principal issue in this matter is whether the applicant rendered qualifying service as defined in section 7A of the Act and in particular whether the applicant incurred danger from hostile forces of the enemy.
5. The Act relevantly provides as follows:
“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 …”
6. Pursuant to section 120(4) of the Act the Tribunal is to determine this matter to its reasonable satisfaction, or in other words on the balance of probabilities.
7. The Tribunal is also mindful that, at section 119, the Act provides as follows:
“(1) In considering, hearing or determining, and in making a decision in relation to:
(a)a claim or application;
(b)a review, under Division 16 of Part IIIB, of a decision of the Commission with respect to a pension or qualifying service;
(ba)a review, under Division 16 of Part IIIB, of a decision of the Commission under Part IIIAB (pension bonus); or
(c)a review, under section 31, of a decision of the Commission with respect to a pension under Part II or IV or an attendant allowance under section 98;
(d)the suspension or cancellation, under subsection 31(6), of a pension under Part II or IV or an attendant allowance under section 98, the decrease in the rate of such a pension or allowance under that subsection or the increase in the rate of such a pension or allowance under subsection 31(8);
(da)a review, under Division 7 of Part IVA, of a decision of the Commission with respect to an advance payment of an amount of pension;
(e)the suspension, cancellation or variation of a pension; or
(ee)a review, under subsection 115(1), of a decision of the Commission in respect of an application for an allowance or benefit specified in that subsection;
the Commission:
(f)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.
(2)In sub-section (1): …
claim means:
(a) a claim for a pension under Part II or IV; or
(b) a claim for service pension or other benefit under Part III; or
(c) a claim for a qualifying service determination under Part III; or
(d) a claim for income support supplement under Part IIIA; or
(e) a claim for a pension bonus under Part IIIAB. …”
Contentions
8. The applicant enlisted in the AIF on 8 June 1942 (at age 14 years and 9 months) and served in the Signals Corps in Australia and subsequently in the Army of occupation in Japan. He was discharged from the Army on 13 October 1947.
9. The applicant contends that he served in the Darwin area during Word War II from the end of October 1943 until early 1945. As such the applicant claims to have been subjected to the last Japanese air raid on Darwin on 12 November 1943 and thereby incurred danger from hostile forces of the enemy. Furthermore, during 1944 the applicant claims to have been subjected to a number of events which fall within the category of incurring danger.
10. The respondent concedes that the applicant served in the Australian Army in the Darwin area, at least from 9 December 1943 and until early 1945.
11. This matter then falls for consideration in two parts. Firstly, if the applicant first saw service in Darwin from the end of October 1943, the respondent has conceded that he would satisfy the requirements of section 7A of the Act and have rendered qualifying service. That being so, if the Tribunal were to find that the applicant’s service in Darwin commenced at the end of October 1943 (as contended by the applicant) rather than 9 December 1943 (as contended by the respondent) and had the applicant been subjected to the Japanese air raid on Darwin on 12 November 1943, the applicant’s claim would succeed and that would be the end of the matter. Secondly, if the Tribunal were to find that the applicant served in Darwin from 9 December 1943 then each of the 1944 events raised by the applicant must be considered and at least one of the events must satisfy the requirement of “incurring danger from hostile forces of the enemy”, for the applicant’s claim to succeed.
12. The first question before the Tribunal is when did the applicant arrive in Darwin.
13. The applicant’s evidence is that he was attached to 204 LA/A Signal Section in mid-August 1943 at which time the Section was at Bonegilla preparing for duty in Darwin. The applicant told the Tribunal that this section was a small specialist, independent unit of approximately 20 men principally responsible for installing, repairing and maintaining telephone and cable lines for air fields, A/A and search light batteries. It was the applicant’s evidence that his unit was under command of Lieutenant Ellis and Sergeant Warburton and moved out of Bonegilla early in October 1943 by road and rail to Darwin (through Adelaide), arriving in Darwin some three weeks later at the end of October 1943. The applicant said that while this occurred a long time ago and that while much of what happened had dimmed in his memory, a number of incidents remained very clear including his move to the Northern Territory and his experiencing enemy action while in the Darwin area.
14. The applicant told the Tribunal that when 204 Sect arrived in Darwin they were told that they had been renamed as the 201 Sect and they were billeted in Larrakeyah Barracks of the A/A and Fortress Signals. The applicant described the events of 12 November 1943 in the following terms (T3-Z2).
“I will now restate that I was in Darwin when the last air raid took place on 12/11/43. In the early hours of the morning the air raid whistle sounded and I got out of bed and went to a slit trench. After being in the trench for a short time the searchlights came on and the heavy Ack-Ack started firing. The Jap planes were lit up by the searchlights and we could see the A/A shells exploding near the planes. I distinctly heard two very loud explosions quite close by and I believe it was two quite large bombs hitting the Parap area which was about a kilometre from where I was; there was also smaller bombs falling near me. After the all clear I went back to bed.”
15. When contending that the applicant first arrived in Darwin on 9 December 1943, the respondent relies on the official records that are available and the research undertaken by Writeway Research Service and Professor McCarthy.
16. Army records held by CARO note that the applicant was transferred to 201 Australian Anti-aircraft Regiment Signals Section on 17 November 1943 and that he marched out to the Northern Territory L of C on 28 November 1943, arriving there on 9 December 1943.
17. Associate Professor McCarthy in a written research report dated 29 June 2000 (Exhibit R1) confirms that any records of the 201st or 204th Australian A/A Regiment Signals Section could not be located and the record of A/A Fortress Signals (NT) were incomplete and only available from March to November 1945. Professor McCarthy said that the absence of records makes it difficult to confirm that the veteran was in Darwin on 12 November 1943. Professor McCarthy goes on to say:
“…It appears one is left with the information supplied on the various Service and Casualty Forms. This form was complied [sic] at the Army Central Records Office in Melbourne from information supplied by the unit.
The Service and Casualty Form for NX 1143, Henry Herbert Watts [Swain] does record that information received from 201 Aust Comp Art Reg Sign, Section shows the unit Detrained NT L of C Area on 9.12 1943. ” In his statement, the Veteran mentions a fellow soldier, Mr Wally Lamb. It might be assumed that they travelled to the Northern Territory together as they served in the same unit. The Service and Casualty Form of Wallace Lamb also shows that the unit Detrained NT 1 L of C Area 9.12.1943. It might be deemed reasonable to suggest that a clerical error might have occurred on one of these documents. An examination of the handwriting does show however that a different recorder in Melbourne was involved on each occasion. It must thus appear that the information received from 201 Aust Comp Art Reg Sig Section was that the unit did arrive in the Northern Territory Line of Communication Area on 9 December 1943. I have examined the Pay Book of the Veteran but from this document it is difficult to find evidence that the unit was located in the Northern Territory at any given time.”
18. It was the applicant’s evidence that his recollection of the move to Darwin could be verified by reference to his old Army pay book, covering the period 8 June 1942 to 21 February 1945. He said that his pay book shows that both he and Sergeant Warburton were already in Darwin and not at Balcombe when the original 201 Ack Ack Signal Section left there to join those already in Darwin. In other words it was the applicant’s evidence that only the original 201st Section left Balcombe and that the 204th, now renamed 201st had at that time been in Darwin for four weeks. In asserting that he never left Balcombe on 28 November 1943 for Darwin, the applicant stated:
“My pay book EXHIBIT No 2 will show Sgt Warburton has signed it starting on 24/9/43 at Bonagilla. This is the approx. date he took over 204 A/A Sig Section at Bonagilla and a week later 204 A/A Sig. Section left Albury to go to Ringwood and then to Darwin. Sgt Warburton has signed by pay book for every period up till we reached Darwin at the end of October 1943 through to the 9/12/43 when I was attached to A/A and Fortress Sigs Darwin. Capt. Traynor has signed my pay book on 10/12/43 in advance of the pay period on 3-10/12/43. I was unattached in Darwin from the end of October 1943 till 9/12/43.
Sgt Warburton’s Service Record EXHIBIT No 17 shows that he was not at Balcombe until 4/1/44 and the significance of this is that I was never at Balcombe to travel to Darwin with 201 A/A Sign. Section on 28/11/43. Sgt Warburton’s signature in my pay book was checked against his Discharge Certificate by Caro.
Another point that should be taken note of is that if I had travelled with the original 201 Section from Balcombe on 28/11/43 Lieut Aimes and St Bevan would have been the Officer and Sergeant signing my paybook on the way to Darwin not Lieut Ellis and Sgt Warburton.
My Service and Casualty record on page 2 line 7 shows – Detrained NT Loc Areas on 9/12/43. This record sent 29/1/44. This is actually seven weeks after the event. This record is wrong as I did not Detrain Darwin on 9/12/43. Line 8 shows M/O to A/A and Fortress Sigs Darwin 9/12/43. This record was not sent until 9/2/44. This record was not sent till two months after the event and it is correct.
Line 7 is wrong because 201 A/A Sig Section left Balcombe on 28/11/43 and did not arrive in Darwin until 16/12/43 which is seven days after the date shown in the record. 201 Detraining at Darwin on 9/12/43 is obviously wrong.
Also, another reason that I did not travel to Darwin with 201 A/A Sig Section from Balcombe on 28/11/43 is because to travel this distance would have taken approx three weeks. My evidence is that it took 21 days to make the trip north and an extract from John Lawrence’s Diary shows that he left Campbelltown in Sydney on 25/5/43 and arrived at Fenton Air Strip on 14/6/43. This is a total of 19 days and one more day could be added from Fenton to Darwin making a total of 20 days to Darwin. This evidence is confirmation that 201 A/A Sign Section never arrived in Darwin on 9/12/43 thereby taking only 11 days to get to Darwin as the records show on my Service and Casualty Form. The actual time 201 A/A Sig Section got to Darwin on 16/12/43 this is a total of 18 days and not the 11 days the records show.
These errors in the records come about due to the long delay in recording these events at the time.
The evidence is quite clear that the records of leaving Balcombe on 28/11/43 and arriving in Darwin on 9/12/43 are both quite obviously wrong. As I am still quite capable of remembering all the events and times going to Darwin more consideration should be given to what I am saying.
I now come to the other incident which I believe constitutes Qualifying Service for a Gold Card when I was working at the East Point Ack Ack Battery Site EXHIBIT 13.
A Japanese plane was spotted coming in from the east. The 19th heavy A/A Battery opened fire and hit the plane when it was overhead, it crashed into the Nightcliff Beach approx one kilometre from the gun site. When it was hit, it was actually in danger of coming down on top of me but instead for whatever reason it came down close by.”
19. And further the applicant has stated:
“… No evidence of Sgt Warburton being at Balcombe on 28.11.43 from his Service Record.
If you now look at the extract of my pay sheet, you will see on line No 38 Lieut Ellis and Sgt Warburton commenced signing my pay book and the pay code is V04. On line No 39 the pay code is still VO4. This is the pay code for Vic L of C. This code is quite correct as 204 Lite A/A section was in transit to Darwin, so the code does not change while in transit.
On line No 40 the pay code is still V04, as 204 Lite A/A Unit have just arrived in Darwin and is unattached. The code is still the same.
On line No 41, Lieut Ellis has left the Unit and gone South to Balcombe, arriving back there on 13.11.43. A new temporary Officer located in Darwin took over the Section and the pay code has changed to V14. This means the record for the change of Vic L of C has begun.
On line No 42, 204 has now got another temporary Officer and is still unattached so the pay code is still V14.
On line No 43, Capt Traynor from A/A and Fortress Sigs Darwin has taken the Section over. The pay code is now J02 which is the NT pay code. We are now attached to A/A and Fortress Sigs Darwin on 10.12.43 and Capt Traynor has signed my pay book in advance to indicate this.
Now look at the right hand side of my pay sheet and Sgt Warburton has signed lines 38 to 42, right up to when Capt Traynor signed my pay book in Darwin. His service record has no record of him going to Darwin and there is no record of him going to Balcombe until 4.1.44.
Sgt Warburton was seconded at Bonegilla to take 204 A/A Sig Section in company with Lieut Ellis to Darwin and then return to their Units in Victoria.
These records in my pay book are absolute proof that what I am saying is correct and the official records of 204 A/A Sig Section are missing.”
20. In respect of the applicant detraining in the Northern Territory on 9 December 1943 the respondent contends the available official records support the respondent’s case and in response to the applicant’s claim that his pay book entries show that he was in Darwin on 12 November 1943, the respondent submits:
“An extract from the applicant’s paybook for the periods 24 September 1943 until 2 December 1943 shows a counter signature of D Warburton. (T documents folio 119 lines 38-42). An extract from the service records of Sgt Douglas Warburton show that during this period he was stationed at Bonegilla in the Victoria Line of Communication. Mr Warburton’s service records show that he was never stationed in the Northern Territory (T documents folios 10-102).
The officer’s signature at line 41 in the applicant’s paybook covering the period 5 November 1943 until 18 November 1943 has been identified by Australian Army soldier Career Management Agency Central Army Records Office (CARO) as Lieutenant V S Joyce. CARO state that Lt Joyce’s records show that at 18 November 1943 was posted the 5th Australian Technical Maintenance Section at Balcombe Victoria Lane of Communication. (T documents folio 90).”
21. In considering this matter, at the outset, the Tribunal has been impressed by the way in which the applicant has given his evidence in a forthright and honest manner. The Tribunal accepts that although many of the circumstances of the applicant’s Word War II experiences have dimmed in his memory he has a very good recall of major events, such as his move to the Northern Territory and his experiencing of an air raid in Darwin on 12 November 1943. The question then before the Tribunal is whether Mr Swain’s recollection of the circumstances of his move to Darwin in October in 1943 is correct and whether the service records which show the move took place in late November (early December 1943) are sufficiently reliable to challenge Mr Swain’s recollection.
22. In balancing the contesting evidence the Tribunal is mindful that, with the passage of time, other servicemen with whom the applicant served are not available to give evidence for various reasons, and in particular Mr Warburton who is now deceased. The Tribunal is also mindful that despite the best endeavours of both parties any official records of 201 Aust A/A Regiment Signals Section and 204 Aust A/A Regiment Signals Section have not been located and that records of A/A Fortress Signals (NT) are incomplete and provide no information relevant to this matter. Furthermore, the Tribunal is satisfied that the service and casualty forms and routine orders provided in evidence are somewhat limited in that in some instances records are made at times well after the events they record and that records are made or orders are issued in locations which are different to the locations in which the recorded events occur or the locations in which the applicant was serving. The Tribunal is also of the view that the very nature of the sub-units in which the applicant served, such units being small and to some extent ad hoc groupings of signals specialists attached to other major units, can provide some explanation as to why there is a lack of official records and why any official records that do exist may not reflect the exact sequence of events as recalled by the applicant.
23. The Tribunal has looked carefully at whether the officer who signed the applicant’s pay book on 18 November 1943 was Lieutenant V S Joyce. The Tribunal is not satisfied that Lieutenant Joyce is the person who signed the applicant’s pay book. Lieutenant Joyce, at the time was posted to a unit in Balcombe, Victoria, and the Tribunal is satisfied that the applicant, at no time, served at Balcombe.
24. The Tribunal sees its task being the consideration of all of the material before it including the submissions of both parties, in order to form a view as to whether the facts necessary to support the applicant’s contentions are, on balance, established, bearing in mind the beneficial effects of section 119(h) (see: Re Sharkey and Repatriation Commission (1988) 15 ALD 782). The Tribunal is mindful that pursuant to section 119(h) the Tribunal cannot substitute evidence if there is nothing in the material before it which the Tribunal could take into account. Clearly that is not the case in this matter.
25. Taking into account all of the matters as set out above, the Tribunal, on balance, is satisfied that the official records that are before the Tribunal are not sufficiently reliable to challenge the applicant’s recollection of his movement to and arrival in Darwin in October 1943.
26. The Tribunal therefore finds that the applicant was serving as an Army Signaller in Darwin at the time of the Japanese air raid on Darwin on 12 November 1943 and that at that time he incurred danger from hostile forces of the enemy.
27. For the reasons given above, the Tribunal therefore sets aside the decision under review and in substitution therefore determines that Herbert Swain has rendered qualifying service pursuant to section 7A of the Veterans’ Entitlements Act 1986.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed: .......................................................................................
AssociateDate of Hearing 13 June 2003
Date of Decision 8 July 2003
For the Applicant Mr McGarry, Advocate
For the Respondent Mr Kelly, Departmental Advocate
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