Swain and Repatriation Commission - [2000] AATA 1052

DECISION AND REASONS FOR DECISION [2000] AATA 1052

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q99/65

VETERANS' APPEALS   DIVISION     )
           Re      HERBERT ARTHUR SWAIN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member Brigadier IRW Brumfield, Member

Date29 November 2000
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
VETERANS' AFFAIRS – Gold Card – qualifying service – danger from hostile forces.
Veterans' Entitlements Act 1986 ss 5B(1)(b), 7A(1), 85(4A)
Repatriation Commission v Thompson (1988) 82 ALR 352

REASONS FOR DECISION

29 November 2000 Deputy President DP Breen, Presidential Member Brigadier IRW Brumfield, Member

This is a review of a decision by a delegate of the Repatriation Commission dated 5 September 1998 rejecting a claim for a Gold Card on the grounds that the veteran did not have qualifying service. A Service Pension Officer affirmed that decision on 27 October 1998.
The matter was heard by myself, as Presiding Member sitting with Brigadier Brumfield, on 12 May, 7 July, 28 September, 30 October and 31 October 2000. The applicant, Herbert Arthur Swain, was represented by a friend, Mr M McGarry. Mr B Williams, Departmental Advocate, appeared for the respondent Commission.
Oral evidence was taken from the applicant; Mr D Whiley, an Historical Researcher and Mr D Gibson, Records Manager at the Central Army Records Office (CARO). The following documents were taken into evidence.

Exhibit 1 "T" Documents
Exhibit 2 Service Pension Claim
Exhibit 3 Statement of Herbert Arthur Swain
Exhibit 4 Report of Mr DR Whiley
Exhibit 4A Curriculum Vitae of Dennis R Whiley
Exhibit 5 Letter and attachments from Mr Whiley dated 3.7.00 to AAT
Exhibit 6 Exhibits of applicant
Exhibit 7 Veterans' Affairs file
Exhibit 8 Letter to applicant from Department of Veterans' Affairs dated 15.7.98
Exhibit 9 Picture of plane crash
Exhibit 10 Report of Mr J Tilbrook dated 1.3.99
Exhibit 11 Report of Mr J Tilbrook dated 5.5.00
Exhibit 12 Report of Mr J Tilbrook dated 8.2.00
Exhibit 13 Report of Mr DR Whiley dated 25.9.00
Exhibit 14 Letter dated 28.6.00 from Mr Whiley to Mr M McGarry and return fax
Exhibit 15 CARO letter and attachments to Mr Swain dated 2.8.00
Exhibit 16 Extract from book – "The Gunners"
Exhibit 17 Report of Mr DF Gibson dated 14.6.00
Exhibit 18 Report of Mr DF Gibson dated 4.10.00
Exhibit 19 Extract referring to the Fannie Bay Anti-aircraft Site

Section 85(4A) of the Veterans' Entitlements Act 1986 provides:
"(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."

Qualifying service is defined in subsection 7A(1) and states as follows:
"(1)For the purposes of Part III and Sections 85 and 118V, a person has rendered qualifying service:
(a)if the person has, as 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 of 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."

Section 5B(1)(b) defines the relevant period of hostilities as being "World War 2 from its commencement on 3 September 1939 to 29 October 1945".
The Federal Court in the case of Repatriation Commission v Thomson (1988) 82 ALR 352 required that the danger the veteran incurred be actual danger rather than a perceived threat of danger.
At the outset it must be noted that the Tribunal accepted that Mr Swain was an honest witness who was doing his best to remember events from over 50 years ago. While some of the incidents the applicant describes are not specifically confirmed by the historians, there is sufficient evidence that Japanese planes were still flying around after the air raids ended and that Australian forces engaged with them from time to time. There are one or two incidents which are specifically rejected by the historians and there is some discrepancy between Mr Swain's recollections and official records in terms of the time of events. As such, Mr Swain's evidence, although an honest explanation of what he recalls, is not sufficiently reliable to challenge direct historical evidence on a point.
Mr Swain joined the Army on 8 June 1942 and served until 13 October 1947. As such, he served during the relevant period of hostilities. He began his service in Victoria and was later transferred to Darwin. It was Mr Swain's recollection that his unit left Bonegilla in early October 1943 and arrived in Darwin in late October 1943. Mr Gibson, the Records Manager at CARO, gave evidence that the Army records show that Mr Swain left Victoria in November. The unit travelled by truck convoy, not arriving in the Northern Territory until 9 December 1943 and reaching Darwin a week later. Mr Gibson also checked the records for four other servicemen whom Mr Swain identified as being in his unit and taking the trip up with him. Their records showed the same movement details. Mr Swain also said he remembered a Sargeant Ellis, who was in charge of his unit, falling sick once they got to Darwin and being taken to hospital. The Army records show that Sargeant Ellis took sick in Victoria and was taken to a Victorian Hospital on 13 November 1943 and did not relocate to the Northern Territory until February 1944. The Tribunal accepts the evidence of Mr Gibson and finds that the veteran has confused the sequence of events in which he was a participant.
Our finding is that Mr Swain was not exposed to actual danger from the hostile forces of the enemy in any bombing raid conducted by those forces, the raids culminating on 12 November 1943. We find that he did not reach Darwin until after that time. We make a specific finding that he did not reach the Northern Territory until 9 December 1943 and not reaching Darwin until approximately a week later.
Mr Swain gave evidence of a number of incidents where he felt he was in danger. One incident occurred whilst building a line at Mandorah. Mr Swain and a number of other soldiers were sent out into the harbour on a boat as there was a suspicion that a submarine was caught in the boom net on a barge. They were given rifles and ammunition and told to keep watch. About half an hour after they arrived they were told to come back to shore. At no time did they see the submarine. There is some question as to whether there was actually a submarine below them and whether the submarine was actually Japanese. However, the incident as a whole can only be described as being a potential danger to the veteran, rather than placing him in actual danger. If the submarine had surfaced and Japanese soldiers had emerged, then the legislation would most likely be satisfied.
A second incident occurred whilst the veteran was installing masts at Barracks on the Darwin coastal front. The air raid sirens were sounded and the soldiers all got out of sight. A plane flew over and Mr Swain could see the pilot clearly. He thought it was a Japanese plane as he had never seen that type of plane before in his life. However, no shots were fired either by the plane or the allied anti-aircraft guns on the ground. As such, this was another case of potential danger rather than actual danger.
The third incident occurred when Mr Swain was mending a cable at an airstrip. Two Australian Spitfires were sent up and Mr Swain was told they were going after a Japanese plane. He was still sitting on the edge of the runway when the planes returned. One plane landed without trouble. The other lurched and was heading straight for the veteran. It then flipped over and landed upside down a few meters away from Mr Swain. While this would constitute actual danger, it is not from the hostile forces, so the legislation is not satisfied.
Another incident occurred in mid-1944 when the applicant was working at Fannie Bay installing a telephone line. A unit manning anti-aircraft guns was stationed with the applicant's unit. One evening an alert was issued and Mr Swain was told to take cover. The guns went into high activity for a few minutes. When they stopped, Mr Swain was told that one plane was hit. This plane landed in Nightcliff which is on the other side of the harbour. This again is a case of potential danger. The crash site is too far away to be regarded as placing the veteran in actual danger.
The final incident the applicant described was alleged to have occurred on 12 November 1943 in Darwin when his unit was the subject of an air raid. He described being in a trench and seeing planes flying over while the anti-aircraft guns shot at the planes and shrapnel fell around the soldiers. The Army records and the historians are all clear on the point that the final air raid in Darwin occurred on 12 November 1943. As stated above, the records clearly show that Mr Swain was not in Darwin on 12 November 1943. Therefore, he could not have been involved in the air raid on that night. He also could not have been involved in an air raid subsequent to that time in Darwin as, while there may have been enemy reconnaissance flights after 12 November 1943, there were no further air raids and no actual conflict. This was the evidence of both Mr Whiley and Mr Tilbrook.
It is the Tribunal's view, taking into account all of the evidence presented, that Mr Swain was not in actual danger from the hostile forces during his service in Darwin. Therefore, he does not have qualifying service and is not eligible under Section 85(4A) of the Veterans' Entitlements Act 1986 to receive a Gold Card.
For these reasons the Tribunal affirms the decision under review.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member and Brigadier IRW Brumfield, Member
Signed:         Emma Oettinger
  Associate
Date/s of Hearing  12.5.00, 7.7.00, 28.9.00, 30.10.00, 31.10.00
Date of Decision  29.11.00
Rep. for the Applicant              Mr M McGarry, friend of applicant
Solicitor for the Respondent    Mr B Williams, Departmental Advocate