Trott and Repatriation Commission
[2004] AATA 348
•5 April 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 348
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/548
VETERANS' APPEALS DIVISION ) Re JOHN TROTT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr I R Way, Member Date5 April 2004
PlaceBrisbane
Decision The decision under review is set aside and in substitution therefore the Tribunal determines that the applicant has rendered qualifying service pursuant to section 7A of the Veterans Entitlements Act (1986).
….(Sgd) I R Way….
Member
CATCHWORDS
VETERAN AFFAIRS – qualifying service – whether applicant incurred danger from hostile forces of the enemy during service – capacity of enemy to attack – decision set aside
Veterans Entitlements Act (1986) 7A(1)
Repatriation Commission v Thompson (1988) 44 FCR 20
Macgregor v Repatriation Commission (1992) 25 ALD 761
Mitchell v Repatriation Commission (2002) FCA 1177
Shayler v Repatriation Commission 1990 AATA 6193
Verth v Repatriation Commission (2001) AATA 715REASONS FOR DECISION
5 April 2004 Mr I R Way, Member 1. This is an application by John Trott for a review of a decision of the Repatriation Commission, dated 2 October 2002, which determined the applicant did not render qualifying service as defined in section 7A(1) of the Veterans’ Entitlements Act 1986 (the Act). On 2 October 2002 a Service Pension Review Officer affirmed this decision.
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 A1An account of Naval Operations in the Malacca and Singapore Straits during Indonesian confrontation 1964 to 1965 (John Trott)
Exhibit A2Report of proceedings – Various RAN ships – 1964 to 1965
Exhibit A3Official documents and histories - Indonesian confrontation 1964 to 1965
Exhibit A4Notes, statements and private publishers - Indonesian confrontation 1964 to 1965
Exhibit A5Ships, Aircraft, Weapons and Plans - Indonesian confrontation 1964 to 1965
Exhibit A6Statement of Neal Francis Wallace dated 09 February 2004
Exhibit A7U.S. Department of State Historical Documents 1964 to 1968
3. The applicant was represented by Mr A Harding, of Counsel instructed by Gilshenan and Luton and the respondent was represented by Mr A Harris, Department Advocate. The applicant gave oral evidence.
4. The applicant was born on 28 July 1943 and served in the Royal Navy from 5 January 1959 to 25 April 1973 including service in Far East waters on the British Aircraft Carrier HMS Centaur during various periods in 1964.
5. There is no dispute between the parties and the Tribunal accepts that the applicant, during his period of service on HMS Centaur in Far East waters served as a member of the British Defence Force and rendered service in connection with war like operations in operational areas in which the Naval, Military or Air Forces of Australia were rendering service, in areas described in Section 5B and Schedule 2 of the Act.
Issues and Legislation
6. The principle issue in this matter is whether the applicant incurred danger from hostile forces of the enemy while he was on HMS Centaur in Far East waters.
7. The Act relevantly provides :
“7A Qualifying service
(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
(ii)rendered service after 29 October 1945 in respect of which the person has been awarded, or has become eligible to be awarded, the Naval General Service Medal or the General Service Medal (Army and Royal Air Force) with the Minesweeping 1945-51 Clasp, the Bomb-Mine Clearance 1945-53 Clasp, the Bomb and Mine Clearance 1945-49 Clasp or the Bomb and Mine Clearance 1945-56 Clasp; or
(iii)rendered service outside Australia in an area described in column 1 of Schedule 2 during the period specified in column 2 of that Schedule opposite to that description, as a member of a unit of the Defence Force that was allotted for duty, or as a person who was allotted for duty, in that area; or
(iv) rendered warlike service; or
(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…”
8. The Tribunal is also mindful that pursuant to section 119 of the Act, the Tribunal in considering a claim for qualifying service:
“119 Commission not bound by technicalities
(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;
…
the Commission:
…
(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.”
Applicant’s Evidence
9. It is the applicant’s evidence that he incurred danger from hostile Indonesian forces, on at least three occasions, while he was serving on HMS Centaur in the Far East.
10. In support of his contentions, the applicant has researched a vast number of records and historical accounts and put before the Tribunal a remarkable array of documentary evidence, as set out above.
11. The principle incidents described in detail by the Applicant in his oral evidence can be summarised as set out below:
The Sunda Strait Incident
12. The British Aircraft Carrier HMS Victorious and escorts were returning to Singapore from Fremantle in September 1964, at a time of extremely high tension in the area because of Indonesian confrontation, exacerbated by the Victorious earlier in August passing through Indonesian waters via the Sunda Strait on its way to Fremantle.
13. The British were concerned the Victorious could be attacked on its return and eventually accepted an Indonesian request for the return of Victorious through the Lombok and Karimata Straits. The tensions of the time are captured in the following extract from minutes of the British Chiefs of Staff Committee Meeting on 10 September 1964:
“AIR VICE-MARSHAL FOORD-KELCEY (Representing Deputy Chief of the Defence Staff (Intelligence)) said that there had been indications that the Indonesian forces were in a high state of alert. A meeting of the Far East Heads of Sections had been held that morning and their report (3) was being circulated. This report concluded that in their present truculent state of mind the Indonesians had decided to refuse and resist passage of the Sunda Strait to HMS VICTORIOUS, and that they were prepared for any naval clash and retaliatory British/Malaysian air attacks, which, in Indonesian eyes, would have no conclusive military affect but would considerably improve Indonesia’s political standing as a victim of ‘Western aggression’. He did not fully endorse the somewhat gloomy conclusions of the report, and in particular would question the assessment of the Indonesian views on the military effectiveness of our air attacks.”
14. In order to provide additional protection while Victorious and her escorts were passing through the Karimata Strait, HMS Centaur and her escorts were to deploy on the 19/20 September to lie some 100 miles north of the Karimata Strait. The Task Group comprised HMS Centaur, HMS Kent, HMS Ajax, HMAS Vampire and HMAS Vendetta and was directed not to enter Indonesian claimed waters.
15. It was the applicant’s evidence that HMS Centaur was put on a full war footing before it sailed from Singapore and then at 0530 hrs on 20 September 1964 the ship went to the first degree of readiness (ABCD state 1 Zulu) for some 40 minutes reverting to a more relaxed second degree of readiness (ABCD state 2 Zulu) for the next 12 hours or so. He described state 1 as complete readiness for immediate action and action with enemy forces imminent. State 2 is action with enemy less imminent. In exhibit A1 the applicant stated:
“HMS Centaur and the Task Group provided distant ‘Air Cover’ for the Victorious group for over 30 hours. There were detections of hostile enemy aircraft and warships, the Captain informed the ship of these detections via the ship’s address system.”
16. The applicant told the Tribunal that he was a Petty Officer Shipwright and at action stations was dressed in combat gear, anti-flash hood and gloves with a fire retardant jacket acting as number one hose man of a damage control fire fighting team. He said ABCD states referred to atomic, biological, chemical defence states. He said this was the first time he had experienced action stations in anger.
17. In respect of the detection's of enemy aircraft and warships he said these could have been by sight or radar, mainly radar, but he was not sure. The Tribunal notes that HMAS Vendetta’s record of proceedings reports the ship going to defence stations on the evening of 19 September and that:
“For the next 30 hours the Task Group provided distant cover for the Victorious and her escorts, who at this stage were transiting Karimata Strait en route to Singapore. Indonesian activity was sparse, a few long range detections of aircraft and the sighting of a BT Class Patrol Boat providing the only interest. By late Sunday evening 20th, the Task Group was once again in the Singapore exercise areas.”
18. The applicant told the Tribunal that the Indonesians had no such boat as a BT Boat and that the sighting was probably a Motor Gunboat known as “Komar” Class (Ex USSR) armed with guided missiles with a range of up to 80 kilometres. The Tribunal notes the Indonesian Navy at this time also possessed “BK IV” Class (Ex USSR) Motor Gunboats and that the BK was fitted with a large gun mounting. The Tribunal also notes that a Fleet Operational and Tactical Instruction stated:
“Pre-emptive Indonesian action is most likely to take the form of mine laying and attack by surface forces. The most dangerous threat from surface forces is that of the Komar missile-firing fast patrol boat.”
19. In respect of the aircraft sighting, the applicant said it was probably a Badger “Bomber” (Ex USSR). This is a medium bomber and maritime reconnaissance/attack aircraft carrying air to surface cruise missiles with a range of approximately 100 nautical miles.
20. In summary the applicant contended that the Indonesian forces were hostile, had the capacity to attack in the air and on the sea and that HMS Centaur was participating in an activity intended for an encounter with the enemy, whether offensive or defensive in character and was within range of the weapons of the enemy. As such it was the applicant’s view that there was a real and present danger of hostile enemy action.
Anti Invasion Patrols
21. The applicant stated that HMS Centaur was involved in anti-invasion patrols on the East and West Coast of Malaysia, along with HMAS Vampire and/or HMAS Vendetta during the period 1 to 15 September 1964 and 1 to 17 November 1964. It was the applicant’s evidence, supported by the ship’s report of proceedings that HMS Centaur stopped and investigated a number of surface contacts and that “while none of these suspicious craft turned out to be hostile forces of the enemy, HMS Centaur was nonetheless in a vulnerable and dangerous area”. With respect to this, the applicant drew the Tribunal’s attention to the actions during this period when HMS Fiskerton (off Raffles Light and Tanjong Piai), HMAS Teal (Raffles Light to St Johns), HMS Ajax (Arora Islands) and two RMN Vessels were involved in fire fights with Indonesian Sampans and Guerrillas, and in 1966 when HMAS Hawke (Raffles Light and Nunakan Island) came under fire from Indonesian shore batteries. Furthermore, the applicant highlighted the fact that HMS Woolston, in June 1965, off St Johns Light, had a hole blown in its side (along with one fatality and several severely injured ships crew) as a result of a booby-trapped sampan which has been engaged with small arms and MG fire and bought alongside.
22. The Tribunal notes that the records produced by the applicant do not show HMS Centaur involved in any fire fights, capture of saboteurs or guerrillas or coming under hostile enemy fire in the Malacca and Singapore Straits in 1965. This is consistent with the oral evidence of the applicant that although, at the relevant time, the Centaur was not attacked by any hostile enemy forces, the ship frequently navigated the same areas where there had been enemy action. The applicant was not aware of HMS Centaur firing on enemy positions, being involved in air-to-air combat, or bombing of hostile enemy positions involving the Vixen Aircraft of HMS Centaur. However, he recalled that there were 30 to 40 sorties per day and that the ship was responsible for air defence of Kuala Lumpur.
Submarine Incident
23. The applicant told the Tribunal that he could recall a period of about 30 hours in November 1964 when HMS Centaur was in contact with a possible submarine which he said was likely to be a Whiskey Class (Ex USSR and which it was reported Indonesia kept 4 to 6 operational).
24. The circumstances in respect to this contact have been researched by Neil Wallace a RAN Sub-Mariner who has commanded both RN and RAN Submarines and who claimed to be familiar with Anti-Submarine Warfare and Soviet Whiskey Class Submarines.
25. The result of Mr Wallace’s research and his opinions about HMS Centaur’s contact with a submarine are as follows (Exhibit A6):
(10)“I have studied the Ship’s Log of HMS Centaur, from the Public Records Office (PRO) London, File: ADM 53/161446, for the period 6th to 9th November 1964.”
(11)“During this period the Ship Log HMS Centaur, 7th Nov 1964 records: ‘1640 a possible submarine contact gained visually at surface within 2 miles’. ‘Lat° 3 37 N LONG 100° 28 E’. This would probably have been a submarine’s periscope rather than a surfaced submarine as it did not refer to a submarine on the surface.”
(12)“On 7th Nov 1964, the day of the reported submarine sighting, the Ship’s Log records HMS Centaur was off the West Coast of Malaysia, LAT 03° 39’N LONG 100° 22’E; Sea State: Calm; Wind Speed: 3 – 4 knots; Waves: 1 foot. These are very good conditions for a ship’s lookout to spot a submarine’s periscope and other masts.”
(13)“At 1725 two Wessex Helicopters were scrambled. Wessex were ASW Helicopters which carried ASW equipment, such as radar and dipping sonar, for hunting submarine. They were armed with ABW torpedoes.”
(14)“At 1820 a Wessex helicopter reported a “SOUNDER TX”, which probably refers to sonar or echo sounder transmission heard from a dived submarine. The submarine may have been taking a sounding to determine his position and closeness to the bottom if he had been deep for some time and had not been able to take a fix. It should be remembered this was in 1966, well before satellite navigation and the only way the submarine would have been fixing his position would have been by using objects on shore or the sun and stars. Even as the navigator of an Australian submarine as late as 1981 the only way I could fix the boat’s position at sea when dived was by using a sextant in one of the periscopes. We supplemented this by taking echo soundings and matching it to the contour lines on the chart. The Soviets were acknowledged as world leaders in bottom navigation with some of the best and most accurate charts available.”
(15)“The ASW tactic is to try to pinpoint the position of the Submarine using several sonar’s, eg the two ASW Wessex and the escort ships’ sonars to obtain a cross-reference point. In this area off the West Coast of Malaysia this is made very difficult by the shallowness of the waters which causes reverberation and interference and the usually heavy coastal and international merchant, fishing and other traffic which puts a considerable amount of noise in the water.”
(15)“Reviewing the entries in HMS Centaur’s Ships Log, there is no doubt…. ‘a hunt for Submarine is on.’”
(16)“Further evidence to support this is the launching of a Gannet at 1840. A Gannet was a long endurance ASW Aircraft which carried specialist ASW equipment.”
(17)“The Ships Log records a report by HMS Brighton…’1910 SINKER 3° 42’N 100° 27’E. A ‘sinker’ only refers to a vanishing radar contact due to a submarine diving or its periscope going down probably as it leaves periscope depth for deeper, safer waters. In this case, and at this time, some 2.5 hrs after the original contact, it is very likely the submarine’s commanding officer would be having a quick look to see what was happening on the surface before taking further evasive action.”
(18)“We now have three independent contacts with a submarine:
§ The ship’s lookout visually in HMS Centaur,
§ A Wessex helicopter reporting a sonar contact; and
§ A radar contact in HMS Brighton.”
(19)“This Ship’s Log records this “cat & mouse” chase (a submarine lost contact search) continuing around the clock throughout 7th Nov and 8th November 1964 with the continuous launching and recovery of ASW Gannets and Wessex helicopters.”
(20)“Taking into account the aircraft and escorts involved and the deployment of ‘live weapons’ on board these aircraft and ships, it would have been clearly established with Fleet Headquarters in Singapore, if there were any ‘friendly’ submarines in the area. It cannot be stressed enough that when tensions are high, as they were at this period of time, the probability of an accidental firing is always there and given it was not war the on scene commander would have confirmed with his superiors that the contact he was prosecuting was not an ally.”
(21)“In my experience, having exercised my submarine in ASW tactics with surface ships on many occasions, one of the first things that is made quite certain is as to whom is in the area.”
(22)“In my opinion it is clearly established, by the deployment of ASW aircraft and escorts on ASW duties for such a considerable period of time, that this was not a local exercise. An exercise would have been clearly noted in the logs. The deployment of these aircraft and ships with live weapons (as they would have been at the time) clearly rules out it was a friendly submarine playing games. Under these conditions it would have been too dangerous to carry live weapons in case of accidental release. Even when practice weapons are carried the safety firing rules are very stringent and the practice weapons are on carried when the practice is to take place, not for just any old reason. That the aircraft were being launched with weapons indicates an intent to engage and sink if necessary.”
(22)“Two further factors that lend very serious consideration that this was an Indonesian submarine is the sighting, in the very close vicinity of two Soviet ships. The Ship’s Log records the following:
§ The first at “043 6th November 1964 ‘sighted Russian Trawler CPTMB 422’, and
§ The second at 0928 8th November 1964 ‘sighted Russian Merchant Ship No answer to exchange of Identities.’”
(23)What was not generally known at the time was the Indonesian Navy had much Soviet Navy expertise assisting with the maintenance and tactical administration of its Navy. Although these ex-Soviet Whiskey Class submarines were clearly in the Indonesian Navy, in NATO Submarine circles it was known that the Soviets had more than a passing interest in assisting with these Submarine.
(24)It would be more than probable [in fact it was a normal tactic] for Soviet ships to be in the close vicinity of “their” submarine.
(25)In my opinion, the presence of these Soviet ships, the record of HMS Centaur’s Ships Log, the deployment of the ASW aircraft and the escorts deployed on ASW tasks for such an extended period of time, confirms almost overwhelmingly that a hostile submarine was present in the area.
(26)The Whiskey class submarines carried at the time are:
§ 6 x 533mm torpedo tubes;
§ 14 torpedoes or 40 mines or a combination of both.
§ Top speed 15kts with a range of 2,500 nautical miles or 13,000 to 16,000 nm at normal transit speeds.
Submissions
26. Mr Harding referred the Tribunal, in it’s consideration of this matter, to what was said in Repatriation Commission vThompson (1988) 44 FCR 20.
27. He submitted that, following Macgregor v Repatriation Commission (1992) 25 ALD 761, subjective evidence going to apprehension of danger, particularly from commanding officers and relevant defence authorities may be a significant indicator of risk and the fact that, in hindsight, the situation did not move beyond risk of actual conflict, did not stand in the way of the Tribunal finding that the applicant had incurred danger.
28. Mr Harding also referred the Tribunal to Repatriation Commission v Mitchell 2002 FCA 1177 and Shayler v Repatriation Commission 1990 AATA 6193 which he argued assisted the applicant’s contention that he incurred danger from hostile forces of the enemy. It was submitted that the evidence about Indonesian attacks on allied ships in the Malacca/Singapore Straits showed that the applicant was certainly vulnerable to enemy attack while HMS Centaur was in this area and the possible contact of an Indonesian Submarine, on the evidence of Mr Wallace, showed that the applicant was in the situation where the Indonesian forces had the capability of attacking HMS Centaur.
29. It was submitted on all the evidence before it that the Tribunal should be satisfied that the applicant did incur danger from hostile forces of the enemy and that as such, pursuant to section S7A of the Act, he had rendered qualifying service.
30. Mr Harris, for the respondent, submitted that the applicant did not personally incur danger from hostile forces of the enemy and that in the absence of evidence of personal contact with hostile enemy forces, the applicant’s submission is founded on the concept “risk of danger” and on hypothetical unfortunate outcomes if historical events had only unfolded differently to the way they actually did.
31. With respect of the Sunda Strait incident it was submitted that the HMS Centaur Task Group was providing distant cover to HMS Victorious, there was no attack on HMS Victorious, there were only a few long range detection's of aircraft and one patrol boat and that the Naval forces of both sides were by no means in a state of joined hostility. The respondent accepted that combat may have broken out if events had taken a different turn. However, in the actual circumstances that prevailed, the so-called Sunda Strait incident does not constitute personally incurring danger from hostile enemy forces. It was further submitted that:
“Other episodes such as states of readiness for air attacks that do not eventuate or searches for submarines that fail to take any action should similarly be regarded as ‘potential’ rather than ‘actual’ dangers. They may perhaps represent actual danger if the particular threat has manifested and demonstrated hostility. But it is not even possible to declare these kinds of attack as historically likely, given that there is no history of Indonesian air or submarine attacks on allied capital ships. Indeed, attempts to sink the Centaur would have been the very kind of event likely to change the Indonesian Confrontation of Malaysia into the Indonesian War.”
“Another problem with the more uncertain kind of event is that it is very difficult to attribute the threat involved to an enemy, hostile or otherwise. Take for example the submarine search episode. If the submarine that initiated the search had been found it may have turned out to be American, Chinese or Russian and not necessarily Indonesian.”
“The statement by Mr Wallace concludes that the submarine was probably Indonesian and probably not allied. The Respondent has difficulty with the reasoning at the conclusion of the statement. Mr Wallace states that Russian surface ships were reported in the vicinity of the submarine in a pattern typical of Russian submarine operations, yet uses this point to justify a finding that the submarine was probably Indonesian. This is a logical leap.”
“Mr Wallace’s final conclusion that the submarine was ‘hostile’ is also not accepted. There is nothing in his account or indeed in all the evidence to show that it opposed or attacked allied forces in any way. Even if the submarine was Indonesian there is no evidence that it was necessarily hostile. Perhaps it was merely in transit. When operating near Indonesian territory it is only to be expected that Indonesian vessels (or aircraft) will be sighted or encountered: the Australian Reports of proceedings tendered contain several matter-of-fact mentions of sightings of Indonesian ships and submarines.”
32. Mr Harris referred the Tribunal to Verthv Repatriation Commission (2001) AATA 715 and submitted that the respondent’s position in this matter was consistent with this decision (as upheld on appeal to the Federal Court). Furthermore, Mr Harris submitted that the present case can be distinguished from that of Shayler in that Mr Shayler’s service was on HMS Ocean during the Korean war, HMS Ocean being part of a combat fleet taking an active role against the enemy during a declared war vigorously prosecuted, launching air sorties against the capable enemy by attacking enemy air and ground targets. As such Mr Shayler’s Ship, HMS Ocean, was involved in open combat with the enemy.
33. The respondent accepted that the applicant served in a difficult environment where the political and propaganda war played as important a role as the guerilla campaign. However it was submitted that while the applicant has pointed to many dangerous incidents he was not personally endangered in any of these incidents and as such he had not incurred danger from hostile forces of the enemy.
Consideration
34. In Repatriation Commission v Thompson (1988) 44 FCR 20, in discussing the nature of the test to be applied in answering the question whether a Veteran incurred danger from hostile forces of the enemy, the Federal Court said:
“In approaching the statutory provision, it is necessary to keep in mind that the words used are words of ordinary parlance and are used in their ordinary sense. No word in s 36(a)(i) is ambiguous, no ambiguity arises from the order in which the words are used and no ambiguity arises from the context in which the provision is found. The words require no juristic extrapolation. They mean what they say, no more and no less, and they should be so read.
…
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 inperil 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.
…
We have already stated that liability to danger in the sense of a risk of danger is not sufficient. The statutory provision requires that danger be incurred.”
35. In Repatriation Commission v Mitchell, the Tribunal found, as a fact, that enemy mines were present in the waters where the Veteran sailed and constituted a real and present danger to navigation in the area. The Federal Court made the point that this is a pure question of fact and that there was a sufficient basis for the Tribunal to draw this conclusion if it chose to do so, that enemy mines were present and constituted a real and not fanciful danger to navigation. Mr Harding submitted that while there is no evidence of mines being present in this case, there was a parity of reasoning in that while there was no actual attack on the Centaur the ship nevertheless was navigating waters where Indonesian action constituted a real and not a fanciful danger.
36. In Shayler v Repatriation Commission, the applicant served in the Royal Navy on board the aircraft carrier HMS Ocean during the Korean War when the ship undertook four patrols. While the ship did not come under enemy attack, the Tribunal was satisfied that the enemy had aircraft and submarines with which they could have attacked the ship in spite of protective measures taken by the ship, but did not do so. The Tribunal, however concluded that the applicant was in danger from hostile forces of the enemy in the area simply because he was serving on HMS Ocean and hostile forces of the enemy might have attacked the ship at any time, having the capacity to do so. The Tribunal relevantly made the comment:
“Indeed, in the circumstances in which HMS Ocean was serving as part of a combat fleet taking a active role in a war against enemy who were capable of carrying on that war in the air and at sea as well as on land, and doing so in waters adjacent to the enemy’s territory, we find it surprising that it can seriously be suggested the person serving on that ship can be regarded as not having incurred danger from hostile forces of the enemy in the area at that time. That situation is to be distinguished from a situation where the veteran was in no danger because at the time when he rendered his service in connection with war or warlike operations hostile forces of the enemy were no longer in the area where he was serving and lacked the capacity to endanger him.”
37. The respondent sought to distinguish the present case from Shayler in that in Shayler, HMS Ocean was participating in a declared war vigorously and widely prosecuted, where the ship was involved in open combat with a capable enemy in waters adjacent to enemy territory. Whereas in this case, it was submitted that the capability of the enemy was questionable and apparently consisted of raids on Malaysia, largely for symbolic purposes.
38. The respondent referred to Verth, where the Tribunal found that Mr Verth, who served in the RAF in Sarawak in 1963 to 1964 did not incur danger from hostile forces because he did not witness nor had he been involved in any hostile action or armed conflict at or in the vicinity of his postings. The respondent stated that there was evidence that Mr Verth served some 15 kilometres from Indonesian territory and that there had been a clash in the general area where Mr Verth was stationed, between Indonesian and British forces, with casualties on both sides.
39. The respondent submitted that if “capacity of the enemy to attack” was the test of qualifying service then it could be argued that the Tribunal made the wrong decision in that Mr Verth would have been in striking range of Badger Bombers. The Tribunal notes that in Verth the Tribunal stated:
“The weight of evidence is that Mr Verth did not incur danger from hostile forces of the enemy while serving at Kuching or Simmangang. While he may have considered himself in danger, both airfields were secure, his period at Simmangang was of a few weeks duration and at a time when civilians were permitted in the area and by his own admission no incidents occurred which would have exposed him to peril, harm or injury.”
40. Mr Harding submitted that the following passage from Macgregor V Repatriation Commission has relevance to the Tribunal’s consideration of this matter:
“In pointing to the requirement that there by some objective basis for a finding to be made when an applicant has incurred danger, the Tribunal does not take this to exclude entirely the relevance of some subjective evidence going to the apprehension of risk. Concern by those engaged in an operational situation (particularly by officers in higher authority) – provided it is grounded in circumstances which give reasonable support to that concern – itself is a significant indicator of risk. Thus in the present circumstances, the fact that an order was given by the officer commanding the Hawkesbury requiring the crew to be at full alert and put on lifejackets cannot be discounted as irrelevant”.
41. Having considered all of the material before it, the submissions of both parties, and the cases outlined above, the Tribunal is reasonably satisfied that the applicant did incur danger from hostile forces of the enemy during his service on HMS Centaur in Far East waters.
42. In arriving at this conclusion the Tribunal has not accepted the respondent’s submission that Shayler v Repatriation Commission can be distinguished from this case, nor is the Tribunal satisfied that its finding is inconsistent with Verth. The Indonesian raids on Malaysia resulted in casualties to both sides and the evidence before the Tribunal is that the Indonesians possessed reasonably modern ships, aircraft and weapons. Nor can it be said that in this case there is no presence of armed enemy in the applicant’s immediate vicinity. The fire fights between allied and Indonesian forces and Indonesian Shore Battery attacks on allied forces in the Malacca and Singapore Straits clearly shows that HMS Centaur, and its passage of these Straits, was in the presence of armed enemy, capable of prosecuting their cause and causing harm or injury to the ship and its crew. The Tribunal accepts that the HMS Centaur’s involvement in the Sunda Strait incidence was remote and on its own does not provide a setting where the Tribunal could be reasonably satisfied that the applicant incurred danger from hostile forces of the enemy. However, the incident relevantly serves to show that the allied commanders, at the time, considered the Indonesian forces capable of carrying out hostile operations against allied forces, which, as indicated above, they actually did in the immediate vicinity of HMS Centaur in the Malacca and Singapore Straits.
43. Given the above finding, whether or not the applicant incurred danger during the submarine incident has no bearing on the outcome of this application. However, for the sake of completeness the Tribunal has considered the circumstances of this incident and in particular, the very comprehensive analysis of the historical records of the event undertaken by Mr Wallace. While the Tribunal accepts that it is possible that a hostile submarine was at large, the Tribunal, on balance, is satisfied that this is a mere possibility and that the Respondent is correct in submitting that the submarine incident, in effect, was not an incident during which the applicant incurred danger from hostile forces of the enemy.
44. The decision under review is set aside and in substitution therefore the Tribunal determines that John Trott has rendered qualifying service pursuant to section 7A of the Veterans Entitlements Act (1986).
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed: Nicca Grant
Associate
Date/s of Hearing 26 February 2004
Date of Decision 5 April 2004Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Gilshenan & Luton
For the Respondent Mr A Harris, Departmental Advocate
0
5
0