Washer and Repatriation Commission
[2000] AATA 883
•9 October 2000
DECISION AND REASONS FOR DECISION [2000] AATA 883
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1429
VETERAN'S APPEALS DIVISION )
Re EDWARD JAMES WASHER
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Rear Admiral A R Horton AO, Member
Date9 October 2000
PlaceSydney
Decision The decision under review is affirmed.
..............................................
A Horton
Member
CATCHWORDS
VETERANS' AFFAIRS – gold card eligibility - Army service during period of hostilities - whether applicant rendered qualifying service – whether incurred danger during Japanese submarine gun attack on Newcastle 8 June 1942 – whether engaged in military operations against the enemy
Veterans' Entitlements Act 1986 - ss 5B(1), 5C(1), 7A, 120(4)
Veterans' Entitlements Amendment (Gold Card) Act 1998 – s 85(4A)
Repatriation Commission v Thompson (1988) 44 FCR 20
Willcocks v Repatriation Commission (1992) 39 FCR 49
Repatriation Commission v Ahrenfeld (1991) 29 FCR 556
Repatriation Commission v Burton (1993) 31 ALD 475
Repatriation Commission and Smith (1987) 15 FCR 327
Re Corrick and Repatriation Commission [2000] AATA 143
Re Carlyon and Repatriation Commission (AAT 12957, 6 May 1998)
REASONS FOR DECISION
September 2000 Rear Admiral AR Horton AO, Member
This is an application for review of a decision dated 28 October 1998 by a delegate of the Repatriation Commission ("the Respondent"), and affirmed by review under section 57 of the Veterans' Entitlements Act 1986 ("the Act") on 28 May 1999, that Edward James Washer ("the Applicant") did not render qualifying service for the purposes of section 7A of the Act, and hence is not eligible for a Gold Card under subsection 85(4A) of the Veterans' EntitlementsAmendment (Gold Card) Act 1998 ("the Gold Card Act"). The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 20 September 1999, an application to the Tribunal for an extension of time having been granted.
At the hearing before the Tribunal on 6 September 2000, the Applicant was represented by Mr P Carey of the Returned and Services League of Australia. Mr J Marsh, Senior Advocate, appeared for the Respondent. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also took into evidence the following:
Report by Mr C Ducker with attachments dated 27 March 2000 Exhibit R1
Report by Mr C Ducker with attachment dated 8 May 2000 Exhibit R2
ISSUES BEFORE THE TRIBUNAL
The Applicant claims qualifying service as a prerequisite for eligibility for a Gold Card. Eligibility is established pursuant to subsection 85(4A) of the Gold Card Act, which states:
"(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 section 7A of the Act, which states relevantly:
"(1) …
(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 sub section 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
…"
Subsection 5B(1) defines the period of hostilities and states, relevantly:
"(1) …
(b)World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included): or
…"
The Respondent concedes that the Applicant is a veteran as defined in section 5C of the Act, that he served during the relevant period of hostilities as defined in subsection 5B(1), and that he meets the criteria for age pursuant to subsection 85(4A)(a) of the Gold Card Act. Hence the only issue in this matter is whether the Applicant rendered qualifying service for the purpose of the Act. The required standard of proof is that of reasonable satisfaction pursuant to subsection 120(4) of the Act, equating to the balance of probabilities as defined in Repatriation Commission and Smith (1987) 15 FCR 327. Subsection 120(6) prescribes that there is no onus of proof on either party.
FACTS AND EVIDENCE
The Applicant served in the Australian Imperial Force from 13 December 1941 until 28 May 1946. All his service occurred within Australia. He indicates that he was initially trained as a reinforcement for the 2/2 and 2/19 Battalions (T4), and in evidence to the Tribunal he stated that instead of proceeding to Singapore as expected, he was attached to a Mobile Aerodrome Company located at Williamtown airfield from February 1942 to July 1942. His claim for qualifying service pursuant to section 7A of the Act hinges on being in Newcastle on day leave when the Japanese submarine attacked that city with gunfire in the early morning of 8 June, at which time he assisted civil authorities. There was no evidence given that any other component of his service had relevance to the qualifying service issue.
Prior to the Applicant giving evidence, his Advocate summarised his contentions. He submitted that the Applicant incurred danger from the submarine shelling. He contended that whilst the words "on duty" do not appear in the definitions of "eligible war service" pursuant to sections 5B and 7 of the Act, there "was a general mobilisation for the purpose of the war, and as such any servicemen or women who had enlisted in the defence force on full time continuous service was on duty for that whole period." It was further submitted that in the context of assisting civil authorities, the Applicant was in uniform, taking action "as part of his duties as a soldier in a time of war", as an enemy force "had attacked with the intent of causing damage."
The Applicant's the Service and Casualty Form is unclear as to his exact postings in early 1942, but indicates he joined 1 Training Battalion in early February 1942 and then "rejoined his unit ex 3 M.A.C." on 26 June 1942 (T3). An entry to the effect that he was taken on the strength of "3 Mob Air Coy ex 1 T Bn" on 20 February 1942 has been deleted. Mr C Ducker, historian, researched this matter for the Respondent. He states that 3 Mobile Aerodrome Company ("3 MAC") was located at Williamtown in 1942, its role being the protection of the airfield from ground attack (Exhibit R1). No War Diary for the unit has been located, and Mr Ducker doubts that such a diary ever existed. He states that there "is no doubt that he (the veteran) served in that unit Feb-Jun 42", citing confirmation from the Applicant's pay book and from discussions with Mr CJ Duckie, who had been the unit "paying" officer at that time. Mr Ducker considers there is no doubt that the Applicant was serving in 3 MAC on the night of 7/8 June 1942.
The Applicant gave evidence that he was in Newcastle on leave, and in uniform, on the afternoon and evening of 7 June. He believed his leave expired at 2359 hours at Williamtown, and hence he would have had to catch a ferry from Newcastle to Stockton (for the bus/truck to Williamtown, a distance of some 14 kilometres) by about 2300 hours. For reasons unknown to the Applicant, the ferry was not running. He remained on the wharf, in company with another soldier, Jim McManus. There was no other transport, and he believed the town was "browned out" from 1700 hours and then blacked out some time later in the evening.
The Applicant stated that prior to the shelling by the Japanese submarine, subsequently identified as I–21, the crowd awaiting ferry transport began to build up to "a couple of thousand". He suggested that those waiting for the ferry were either trying to get home or that they believed Newcastle was being bombed and sought escape to Stockton. He and Mr McManus were requested by the Portmaster to assist police in crowd control. In response to the Respondent, the Applicant stated that that he was asked to help police when shelling started, that there were no other soldiers on the wharf (apart from Mr McManus), that he thought he got back to camp later that night, and that on return to Williamtown he was not charged with being absent without leave. In response to the Tribunal, that Applicant stated that he caught the first ferry, having assisted in crowd control during the loading, and that there were many people left on the wharf.
The Applicant initially gave evidence that he was waiting for the ferry at Queens Wharf, which he subsequently described as Hunter Wharf No.1. It is possible that he was at either the Market Street terminal for the Stockton passenger ferry, operated by the Walters family, which is also known as Queen's Wharf, or the government owned vehicular ferry operating from the Merewether Street Wharf, some 600 metres to the west. Research by Mr Ducker was unable to ascertain the operating hours of either of these ferries on 7/8 June 1942, or whether scheduled operations had been curtailed for any reason. Neither government agencies nor the local newspaper files were of assistance. Personal recollections obtained by Mr Ducker indicated that in normal circumstances, the passenger ferry stopped around midnight, whilst it was possible that the vehicular ferry ran after midnight, "perhaps at hourly intervals." This latter ferry was on standby for emergencies at night. Further research by Mr Ducker confirmed that a system of "brownouts" was in force in Newcastle, but could not confirm whether a "blackout" had been imposed at any time on the evening of the attack (Exhibit R2).
As regards the attack by I–21, the movements and actions of the submarine are well documented, albeit with discrepancies between the contemporaneous reports of the attack, and the authoritative information gained from Japanese sources by David Jenkins, as recorded in his "Battle Surface! Japan's Submarine War Against Australia 1942 – 1944", a text also referred to by Mr Ducker. At 0100 hours on 8 June, an air alert in response to an unidentified aircraft was sounded at Newcastle, the all clear being given some 25 minutes later. At 0215 hours I–21 fired 34 shells at the city, Japanese records indicating eight as being star shells for illumination, the remainder being 5.5 inch high explosive. Most of the latter did not explode. Mr Ducker opines from his research and notably the initial Intelligence report that one shell landed and exploded in Parnell Place, 1050 metres east of the Market Street Wharf, and two unexploded shells landed in the water east of the State Dockyard, estimated as being 300 – 400 metres off both the Market Street Wharf and the vehicular wharf at Merewether Street. A further five unexploded shells landed "about 600 metres south east of the Market Street wharf" (Exhibit R1).
ANALYSIS OF EVIDENCE AND FINDINGS
The issue in this matter is whether the Applicant meets the eligibility criteria for qualifying service pursuant to section 7A of the Act. The Applicant must have "incurred danger from the enemy" whilst rendering service "at sea, in the field or in the air in naval, military or aerial operations against the enemy…" as defined in subsection 7A(i)(a)(i) of the Act. In final submission, the Respondent conceded that should the Tribunal conclude that the Applicant, as claimed, had been in Newcastle during the Japanese submarine shelling of the city, then it could be argued from the evidence that he had "incurred danger". However the Respondent did not consider this matter to be clear cut, there being some matters which had not been satisfactorily explained.
The Applicant contended in final submission that the Act does not make a distinction as regards the requirement to be on duty, which he stated was the Respondent's argument. He submitted that the Applicant had enlisted in the defence force under a general mobilisation in time of world war for the duration of the war and for 12 months thereafter, "that during this time he was on duty for the whole of that service, that he could be required to respond to any situation or order at any time for whatever purpose, even when on rest periods". He saw this as a distinction between service in total war and peacetime defence service, stating that in war people are required to be available to fulfil that service at all times, whereas on peacetime service there are clear periods of on duty and off duty, even though they can be recalled to duty if needed.
The Applicant further submitted that whilst the principal role of the Applicant was in the defence of Williamtown, his response in the face of an enemy attack on Newcastle was as he, the Applicant, thought correct, and that assisting civil authorities in the circumstances as given in evidence constituted "engagement against the enemy" (in the context of the element of "operations against the enemy" pursuant to subsection 7A(1)(a)(i) of the Act). Whilst acknowledging the interpretation of engaging the enemy in Willcocks v Repatriation Commission (1992) 39 FCR 49 and Repatriation Commission v Ahrenfeld (1991) 29 FCR 556, he saw the former as being related to a situation where there was no enemy, and both authorities being at odds with the Respondent's policy concessions for those servicemen travelling by sea on the Australian coast during certain periods, when enemy were neither sighted nor engaged. In summary, the Applicant contended that by remaining at the site of the attack by the enemy he was endangered, and by assisting in the removal from danger of civilians he engaged in operations against the enemy. In a hypothetical case, the Applicant contended that if a Japanese shell had hit Fort Scratchley and wounded some of the gun crew, the medical staff attending the injured would have been engaged in operations against the enemy, implying that the Applicant in this case was fulfilling a similar role from which the same conclusion could be drawn.
The Respondent referred the Tribunal to Repatriation Commission vThompson (1988) 44 FCR 20 in respect of the authoritative and objective definition of the phrase "incurred danger". However, as earlier noted, the Respondent was prepared to concede "incurred danger" on the evidence, should the Tribunal accept the circumstances of the Applicant as claimed. In that respect, the Respondent referred to a lack of supporting evidence as to the Applicant's movements on the night and that there was no indication of enemy activity prior to the Japanese shelling of Sydney in the early morning of 8 June that might have led to ferries being stopped. The Respondent also submitted that there was no evidence of a blackout nor a satisfactory explanation as to why the Applicant was still in Newcastle at 0215 hours in the morning
The Respondent submitted that if the Applicant did incur danger, then it was not "against the enemy". The Respondent also cited Willcocks (supra) where Cooper J viewed the word "against" as being used in the sense of "hostility or opposition to the enemy", submitting that this decision was followed by Olney J in Repatriation Commission v Burton (1993) 31 ALD 475 and again in Re Corrick and Repatriation Commission [2000] AATA 143. The Respondent submitted that like Corrick, the Applicant was on leave at the time of the Japanese attack. The role of he and his unit was to defend Williamtown air base, not Newcastle city, and in any event, he played at most a passive role assisting the police. The significant issue was that he was not engaged in operations against the enemy. The Respondent accepted that the medical staff in the hypothetical situation at Fort Scratchley would have been engaged in operations against the enemy, that being their prime role in defence of the city, but that this was not the case with the Applicant.
The Advocate for the Applicant reaffirmed in closing that the Applicant had been consistent in his evidence and that there was no reason to doubt that he had been in Newcastle on the night of the attack and had assisted local authorities as claimed. He submitted that in respect of Re Corrick (supra), the two matters were quite dissimilar in that unlike the claim of the Applicant, Mr Corrick played no role in the events of the evening, and was in bed at the time of the attack.
Consideration as to whether the Applicant "incurred danger", as authoritatively defined by Davies, Wilcox and Foster JJ in Thompson (supra), must follow from an analysis of the facts as to the Applicant's movements and activities on the night of 7/8 June 1942. There is little evidence in support of the Applicant's claim that he was at Queen's Wharf – which the Tribunal believes is the wharf he was referring to - during the Japanese submarine attack, or if he was, that he provided support to local authorities. Documentary evidence, supported by Mr Ducker's research, shows that he was based at Williamtown airbase at that time, but there is no documentary or other evidence in respect of his being on leave or in Newcastle on the evening of 7 June 1942. There is no evidence as to whether the ferries ceased running, or in support of the claim that the Applicant was called upon by the Portmaster to assist in crowd control. There is no evidence, from contemporaneous sources as available to the Tribunal, that crowd control was a problem, or that large numbers of people sought to take the ferry to Stockton. The Applicant himself gave minimal evidence, even taking into account the passage of time since the submarine attack, as to what occurred during the attack. Also at issue is the apparent lack of reason for any cessation of ferry services during the late evening, or a large movement of people, when there was no indication that Newcastle was being threatened; the attack on Sydney and the air alert over Newcastle not occurring until the early morning of 8 June. Taking account of subsection 120(6) which prescribes that there is no onus of proof on either party, the Tribunal nonetheless cannot find to its reasonable satisfaction that the Applicant was physically in a location that night where he might have incurred danger as defined in Thompson (supra).
Had the Tribunal been able to accept that the Applicant had incurred danger, then the test as to whether in doing so, he "rendered service in… …military…operations against the enemy…" must be applied. The phrase "operations against the enemy" was considered by Cooper J in Re Willcocks (supra) where his Honour said:
"The phrase 'naval, military or aerial operations against the enemy' is to be read as a whole. It includes two elements. The first is that there must be some operation which is naval, military or aerial in character. The second is that the requisite operation must be against the enemy. Both the elements must be satisfied for the service to constitute 'qualifying service' within the meaning of s.36(1) of the VE Act".
Following a consideration of dictionary meanings, Cooper J concluded by stating:
"In s.36(1)(a)(i), the noun 'operation' is clearly a noun of action; and the use of the word 'against' in the phrase 'military operations against the enemy' clearly expresses the adverse bearing of that noun in the context of s.36(1)(a)(i).
Accordingly, in my view the word 'against' in the phrase 'military operations against the enemy' is used in the sense of 'in hostility or active opposition to'. This is the common meaning and general usage of the word 'against' in such a context. The section requires service, inter alia, in military operations against the enemy, in the sense of operations in hostility or opposition to the enemy
…"
The reasoning of Cooper J was adopted and applied by Olney J in Burton (supra). In a similar vein to that adopted by Deputy President McMahon in Re Corrick (supra), there is no evidence in this matter that the activities of the Applicant, acting as given in evidence in support of local authorities, "could fairly be described as a military operation against the enemy." As stated in Willcocks (supra), operation is a noun of action. There is neither claim nor evidence that anything the Applicant did or was required to do involved opposition to the enemy or had any colour of hostility to it. Again, to follow Re Corrick, it is true (as the Applicant submitted) that the facts of Willcocks occurred after the cessation of hostilities, and not as in this matter during a planned attack during the period of hostilities. As with Corrick, the operations in which this Applicant was engaged, if accepted on the balance of probabilities, could not be said to be against the enemy. The matter of whether the Applicant was "on duty", as raised by the advocate for the Applicant, is not seen as a relevant issue.
Thus the Tribunal concludes that even had the circumstances as given in evidence been accepted and accordingly, on that evidence, the Applicant been considered to have incurred danger, which may have been the case following the circumstances and decision in Re Corrick (supra) and Carlyon and Repatriation Commission (AAT 12957, 6 May 1998), he would not meet the criteria for "operations against the enemy". Thus the Applicant in this matter could not come within the definition of qualifying service pursuant to subsection 7A(1)(a)(i).
The decision under review is affirmed.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of
Rear Admiral A R Horton AO, Member
Signed: .....................................................................................
AssociateDates of Hearing 6 September 2000
Date of Decision 9 October 2000
Solicitor for Applicant Mr P Carey, RSL (NSW Branch)
Advocate for the Respondent Mr J. Marsh, Departmental Advocate
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