Wightman and Repatriation Commission - [2001] AATA 835

DECISION AND REASONS FOR DECISION [2001] AATA 835

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/109

VETERANS' AFFAIRS DIVISION         )
           Re      JOAN WIGHTMAN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date4 October 2001
PlaceAdelaide

Decision      The Tribunal sets aside the decision under review and in substitution therefor decides that the applicant has rendered qualifying service pursuant to section 7A(1)(a)(i) of the Veterans' Entitlements Act 1986.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – qualifying service – whether applicant a full-time member of the Forces – whether applicant incurred danger from hostile forces of the enemy.
Veterans' Entitlements Act 1986 ss. 5B, 7A, 5C, 120(4)

Repatriation Commission v Thompson (1988) 82 ALR 352

REASONS FOR DECISION

4 October 2001 Senior Member J.A. Kiosoglous MBE

This is an application for review by Mrs Joan Wightman (the applicant) for review of a decision of a senior delegate of the respondent dated 17 January 2001 (T16/38-42) which affirmed a decision of a delegate of the respondent dated 31 May 2000 (T2/5), which determined that the applicant had not rendered Qualifying Service and, therefore, was not entitled to receive a Gold Card.
The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T19), together with 3 exhibits, 2 lodged by the applicant (Exhibits A1-A2) and 1 lodged by the respondent (Exhibit R1). In addition, the Tribunal heard evidence from the applicant and her husband, Mr T. Wightman. The applicant was assisted by her husband, Mr T. Wightman at the hearing, who spoke on her behalf, and the respondent was represented by Mr G. Doube, a departmental advocate.
The issues before the Tribunal are:

whether or not the applicant undertook a voyage on the MV Corinda from Adelaide to Melbourne between the dates of 29 March 1943 and 1 April 1943;
whether or not at the time of the voyage, the applicant was a member of the Forces, undertaking full time duty in the Royal Australian Navy (RAN);
whether or not the applicant incurred danger from hostile forces of the enemy during the above voyage and, as such, whether her war service in the RAN constituted qualifying service under section 7A of the Veterans' Entitlements Act 1986 (the Act).

history of the application

On 20 April 1999, the applicant lodged an informal application for a Gold Card under section 85(4A) of the Act (T5/16-17). The applicant lodged a formal application on 24 November 1999 (T7/21-22) in which she claimed that she had enlisted in the Women's Royal Australian Naval Service in April 1943 and had travelled by ship from HMAS Torrens in South Australia to HMAS Lonsdale in Victoria in 1943.
On 13 March 2000, the Income Support Service Officer from the Department of Veterans' Affairs advised the applicant that she was not eligible for a Gold Card under subsection 85(4A) of the Act because she did not have the necessary World War 2 qualifying service (T11/31-32). The Income Support Service Officer stated (inter alia) (T11/31):
"…
You do not meet the necessary World War 2 Qualifying Service requirement because your service record indicates that you did not serve outside Australia between 3 September 1939 and 29 October 1945 and I am satisfied on the evidence before me that you did not incur danger from hostile forces of the enemy whilst serving inside Australia during that period.
To gain Qualifying Service during this period, you must have actually incurred danger from hostile forces of the enemy. The Federal Court has ruled that a person does not incur danger just because they think they may be in danger. The Court found that the person must have actually been at risk of harm or injury.
…"
On 25 May 2000, the applicant lodged a form entitled "Application to Determine Qualifying Service by a Veteran or Mariner" (T4/9-15).
On 31 May 2000, a delegate of the respondent determined that the applicant's service in the RAN during World War 2 did not constitute qualifying service as defined in section 7A of the Act (T2/5). The applicant was advised of this decision by telephone on 12 July 2000 and the decision was confirmed by letter dated 17 July 2000 (T13/34).
On 24 July 2000, the Department of Veterans' Affairs received a letter from the applicant dated 21 July 2000 requesting a review of the delegate's decision (T14/35). This letter was taken as an application for review under section 57 of the Act for review of the respondent's decision that the applicant had not rendered qualifying service.
On 17 January 2001, a senior delegate of the respondent reviewed the decision of 31 May 2000, under section 57 of the Act, and affirmed the decision. The senior delegate stated (inter alia) (T16/41-42):
"…
I am reasonably satisfied that Mrs Wightman applied and was medically assessed in Adelaide and was accepted to join the Navy whilst residing in South Australia but commenced duty in Victoria. I am also reasonably satisfied that Mrs Wightman travelled from Adelaide to Melbourne by sea on the MV Corinda in the days after she had been medically examined in Adelaide but prior to commencing duty at HMAS Lonsdale on 28 April 1943. It follows that this journey must have been undertaken prior to her commencing duty with the Royal Australian Navy. Therefore, she cannot be considered to be a member of the Australian Defence Force and therefore does not fulfil the requirements for qualifying service due to coastal waters.
…
I note that Mrs Wightman has not provided any incident of danger that happened to her on that voyage. She has described the circumstances under which they sailed and that the area had previously been mined but the interpretation of incurred danger as handed down by the Federal Court is that danger must be real and not the mere existence of being exposed to possible danger.
It is clear to me that even if Mrs Wightman was considered to have been a member of the defence force when undertaking this voyage she did not incur danger whilst undertaking that voyage. Based on the information supplied by Mrs Wightman I am reasonably satisfied that any person who would have sailed on the MV Corinda as a member of the defence force during the period March/April 1943 would not be considered to have rendered qualifying service as a result of this single voyage.
…"
On 19 March 2001, the applicant lodged with the Tribunal an application seeking a review of the respondent's decision of 31 May 2000 (T1/3-4).
evidence of the applicant
The applicant was born on 22 April 1925. She referred to a written statement she had prepared for the hearing and which she read out as part of her evidence.
The applicant told the Tribunal that she volunteered to join the Navy in Adelaide in February 1943 and reported for duty at the Birkenhead Naval Depot, also known as HMAS Torrens. The applicant testified that after a medical examination and the writers' branch qualification tests at HMAS Torrens, she was informed that she had been accepted and would be officially "called up".
The applicant gave evidence that she was subsequently "called up" in March 1943 and entered the Navy at HMAS Torrens, Adelaide and was immediately drafted to Melbourne. The applicant explained that she could not remain in Adelaide because her father was the Commanding Officer of the Depot in Adelaide and Navy regulations at the time specified that relatives could not serve in the same place. The applicant testified that between the time of her medical examination on 26 February 1943 and 29 March 1943, she was working as a shorthand typist for Elders-Smith.
The applicant testified that she was taken aboard the MV Corinda, a merchant vessel conscripted by the Navy, for the trip to Melbourne on 29 March 1943. The applicant testified that she was the only Navy person on the MV Corinda, apart from two naval gunners, which was standard practice at the time.
The applicant told the Tribunal that she was from a naval family - her father and three of her brothers all served in the Navy permanently during World War 2. The applicant testified that for that reason, she was well aware of the dangers of sea travel at that time and had more of an understanding than the general community of Naval matters. The applicant testified that she was aware that at the time there were mines off the South Australian coast. The applicant told the Tribunal that she vividly recalled the death of two sailors from the depot where she and her family lived at the time, when a mine exploded on the beach at Beachport, South Australia. The applicant explained that her father was leading the demolition party to destroy the mine. The applicant gave evidence that the incident was extremely stressful within the depot and it was one that she would never forget.
The applicant told the Tribunal that the minefield laid by the German submarines along the south coast had not been swept prior to her voyage despite requests from the Navy in Adelaide because minesweepers were not available.
The applicant testified that apart from the minefield, she also knew of Japanese submarine activity still evident after the raid on Sydney Harbour in 1942. The applicant testified that her fears were proved correct when nine ships and 395 lives were lost between April and June 1943, including the "Recina" which was sunk off the Victorian coast with the loss of 32 lives, only a few days after her voyage in the MS Corinda. The applicant testified that the hospital ship "Centaur", which was unarmed and unescorted, was also sunk during the period.
The applicant testified that when the MV Corinda cleared Port Adelaide on 29 March 1943 and began streaming paravanes, she knew that she was in a dangerous situation at risk and in peril of harm from hostile forces. The applicant explained that "paravanes" were devices attached to the front of the ship which were used for cutting the moorings of submerged mines. The applicant testified that during the trip from Adelaide to Melbourne, she felt that the ship could hit a mine at any time and was aware that the paravanes were not 100% effective. The applicant testified that to her knowledge, the ship did not strike any mines but she did not know if the paravanes picked any up.
The applicant gave evidence that during the voyage, the ship travelled at night under complete blackout. The applicant admitted during cross-examination that this was standard practice on all ships at the time. However, the applicant gave evidence that she was petrified for the whole trip. She was not aware of any other contact with enemy forces during the voyage.
In relation to whether she was in the Navy when at HMAS Torrens, Adelaide, the applicant told the Tribunal that she entered the Navy at HMAS Torrens and was drafted to HMAS Lonsdale, Melbourne. The applicant referred the Tribunal to her "Medical History Sheet for Naval Ratings" which stated "Where entered: Torrens" and also that she was drafted from Torrens to Lonsdale on 29 April 1943 (T15/37). The applicant told the Tribunal that she could not be drafted unless she was in the Navy. The applicant further referred the Tribunal to where it was recorded "Age at entry: 17 10/12" (T15/37). The applicant testified that she was 18 years old when she was in Melbourne but she was 17 and 10 months when she underwent her first medical examination at HMAS Torrens. The applicant also referred the Tribunal to her "Medical Examination and Record Form for Entry into the Naval Reserve Forces of the Commonwealth of Australia", where it stated "I. Medical Examination on Entry" and her age was listed as 17 years and 10 months.
The applicant gave evidence that she arrived in Melbourne on 1 April 1943 and was "on standby", waiting for the draft until 29 April 1943. The applicant explained that the RAN preferred to have a group of recruits go through training together, and that was why she had to wait until 29 April 1943 to enter HMAS Lonsdale in Melbourne. The applicant explained that at this time, there was the biggest draft of WRANS ever and that was why she had to get to Melbourne at that time and by that method.
The applicant gave evidence that she undertook her second medical examination on 29 April 1943 in Melbourne at HMAS Lonsdale. She testified that it was only after mobilisation that she received a uniform to wear. She then began working as a part of the WRANS but really only started officially working once she arrived at HMAS Cerberus on 18 May 1943. The applicant testified that at this time, she considered herself a member of the Navy and had considered herself to be so since she had boarded the MV Corinda. The applicant gave the opinion that she must have been in the Navy at the time if she was sent by the Navy on the ship. She also stated that she was not given any other option of travel to Melbourne.
The applicant told the Tribunal that she was on a Navy Draft Warrant (T15). The applicant testified that the Navy did not include civilians on its "Record of Drafting Movements" nor issue Naval Drafting Travel Warrants to civilians. In addition, the applicant referred to the document entitled "Medical Examination and Records Form for Entry" (Exhibit A2), which referred to her medical examination "on entry" at Port Adelaide. The applicant also referred the Tribunal to her Certificate of Service (T3), which indicated that her Port Division was Port Adelaide.
evidence of mr wightman
Mr Wightman told the Tribunal that he was retired but was formerly a member of the RAN from February 1942 until the end of World War 2, being discharged in about November 1945.
In relation to the contention of the respondent that the applicant's mobilisation at HMAS Lonsdale in Melbourne signalled entry into the RAN, rather than her enlistment at HMAS Torrens in Adelaide, Mr Wightman gave evidence that to him, mobilisation occurred after one was accepted into the RAN. Mr Wightman explained that a recruit would be on standby after joining until there were enough people also joining for the RAN to train at the same time. Mr Wightman testified that it was his belief that the applicant entered the RAN in Adelaide and was then placed on standby until there were enough recruits to train and that once there were enough, the applicant was sent to Melbourne and subsequently to HMAS Lonsdale.
Mr Wightman explained that the reason a second medical examination at mobilisation was necessary was because the applicant had been on standby for several weeks, so it was important to check the applicant again. Mr Wightman gave the opinion that it was not an examination to determine whether the applicant was in or out of the RAN, but rather to ensure that the applicant received treatment for any problems that might have arisen. It was a check following entry, a routine thing like the receipt of a uniform. In relation to the fact that the applicant only received a uniform after mobilisation, Mr Wightman gave the opinion that receipt of a uniform was not indicative of when one was considered to have joined the Navy. Mr Wightman testified that sometimes, there was not a uniform of the correct size to give to a recruit.
Mr Wightman was referred to the applicant's "Medical History Sheet for Naval Ratings" (T15/37), where in the record of drafting movements, it was written "29/4/43 – from Torrens to Lonsdale". Mr Wightman explained that this was not the date of enlistment, but rather the applicant had been on the HMAS Torrens's medical list until 29 April 1943 because the RAN were unsure of where the applicant would be sent in Melbourne. Mr Wightman gave the opinion that the date 29 April 1943 was the date that the applicant was technically released from the medical cover of HMAS Torrens and that date had nothing to do with the date that the applicant went on the ship or enlisted.
In relation to whether the applicant incurred danger during her journey from Adelaide to Melbourne on the MV Corinda, Mr Wightman testified that he happened to be at sea at the same time in a destroyer on convoy and anti-submarine missions on the eastern and southern coasts of Australia. Mr Wightman told the Tribunal that if anyone at that time had suggested that what he was doing was not extremely dangerous and that he was not in peril or risk from the enemy, they would be ridiculed. Mr Wightman testified that one of the major problems at the time was that they could not see the enemy under the water.
Mr Wightman told the Tribunal that 1943 was the worst year of the war in the Australian coastal waters. Mr Wightman testified that there was a build up of submarines along the East Coast in March and April 1943 following the equinox which caused rough seas and swells. Mr Wightman gave evidence that the Navy lost many Naval gunners from his branch of the service around the coast during 1943, one of whom was gunner JG Skully from the Port Adelaide Depot when his ship the "Recina" was torpedoed and sank in less than one minute off the Victorian coast on 11 April 1943, only a few days after the applicant arrived in Melbourne. Mr Wightman explained that this incident occurred along the Victorian coast, near the New South Wales border, but the submarine was possibly shadowing it for a long time along the coast before attacking.
Mr Wightman told the Tribunal that later in the war, a German submarine U862 surfaced just off Cape Jaffa 130 miles south of Adelaide and attacked the SS Ilissos before proceeding to the East coast to sink the American ship, the Robert J Walker.
Mr Wightman testified that these events stood as proof that danger existed for anyone who ventured to sea during 1943 and this danger could not always be seen.
submissions of the respondent
Mr Doube submitted on behalf of the respondent that there were three issues in dispute in this matter – firstly, whether the voyage from Adelaide to Melbourne on the MV Corinda took place; second, whether the applicant was a member of the RAN at the time of the voyage; and third, whether the applicant incurred danger from the forces of the enemy.
Mr Doube submitted that inquiries had been made with the Department of Defence by the respondent as to whether the voyage on the MV Corinda took place. Mr Doube referred to the letter the Department received in response from the Department of Defence which stated (inter alia) (T6/18):
"1. Navy Records has researched Mrs WHITEMAN's claim that she travelled by ship from HMAS TORRENS in SA to HMAS LONSDALE in Victoria, and can find no reference to the trip.
…"
In relation to whether or not the applicant was a member of the Forces at the time of the voyage, Mr Doube for the respondent submitted that he did not dispute the medical examinations undertaken by the applicant – the records clearly indicated when the examinations were undertaken (Exhibit A2). Mr Doube submitted that Exhibit A2 showed that the applicant had originally signed up for the Naval Reserves, rather than the full-time Navy.
Mr Doube submitted that up until her voyage, the applicant had worked as a typist at Elders-Smith. In addition, it was submitted that after her voyage to Melbourne, the applicant had testified that she had just waited around until mobilisation. During this time, there were no camps, training, parades or uniform. Mr Doube submitted that her service did not commence until she was mobilised on 28 April 1943 at HMAS Lonsdale, one month later than her trip on the MV Corinda.
Mr Doube submitted that the definition of "veteran" in section 5C(1) of the Act had various categories, but the only relevant category in the instant case was sub-section (a) of the definition, a person who has rendered eligible war service in accordance with section 7. In turning to section 7, the relevant sub-section is sub-section 7(b), which states that a person must have undertaken "continuous full time service", defined in section 5C as full time naval service. Mr Doube submitted that part-time naval service was not eligible war service. Mr Doube submitted that the first medical examination that the applicant undertook on 26 February 1943 was clearly for the naval reserve and after this medical examination, the applicant went back and worked as a typist. Then, after her voyage, she waited in Melbourne from 1 April 1943 to be mobilised and did not commence full time duty in the naval services of the Commonwealth until 29 April 1943. Therefore, for a period of four weeks, she did not undertake full time duty in the RAN.

Mr Doube submitted that eligible service equated with full-time service and the applicant was not undertaking full-time duty until she was mobilised at HMAS Lonsdale.
In relation to whether the applicant incurred danger from hostile forces of the enemy, Mr Doube submitted that during the voyage, sensible precautions were taken, including utilising paravanes and blackouts, and the voyage proceeded without incident and the ship arrived safely in Melbourne. Mr Doube submitted that there were no mines discovered and the ship did not have any other contact with the hostile forces of the enemy. Mr Doube submitted that this was the only time that the applicant could have incurred danger from hostile forces of the enemy.
Mr Doube referred the Tribunal to the "Veterans' Entitlements Law", Robin Creyke and Peter Sutherland with Pauline Ridge, The Federation Press, Sydney, 2000, where it stated (inter alia) (at page 122):
"To establish that danger is present as an objective fact it must be shown that there is an actual risk of physical or mental harm: Re Thompson and Repatriation Commission (1987). It is not sufficient if the veteran feels or believes that he or she is in danger: Re Tiplady and Repatriation Commission (1987). Thus, a feeling of dread, the imaginary or fanciful fears of a veteran, and even a well-founded apprehension of danger have been found insufficient as tests of the existence of danger.
…"
Mr Doube submitted that the voyage was undertaken during the war, but sensible precautions were taken and the ship did not encounter hostile forces and the vessel arrived safely in Melbourne. It was submitted that by all objective tests, no reasonable assertion could be made that the applicant was actually in danger from the hostile forces of the enemy during that voyage. Mr Doube did not dispute the applicant's fear - in time of war it was understandable. However, given the objective nature of the test, her fear was insufficient in itself.
submissions of the applicant
In relation to whether or not the applicant was enlisted in the RAN at the time of her voyage, Mr Wightman submitted on behalf of the applicant that when World War 2 broke out, the RAN in title ceased to exist and the Royal Australian Naval Reserves took over. Mr Wightman submitted that everyone who enlisted did so in the Reserves, but during the war, the reserves were full-time Navy personnel. Mr Wightman submitted that RANR (Royal Australian Naval Reserves) was the wartime Navy.
Mr Wightman referred the Tribunal to the applicant's medical form (T15) and where it said "Where entered: Torrens" and submitted that the applicant was a Torrens entrant into the Navy, but when she went to Lonsdale, she then came under the Lonsdale wing of the Navy. Mr Wightman submitted that there were other naval depots in Victoria, and the Adelaide depot did not know where she was going until she was mobilised and therefore could not fill in the details on the form until they knew where she was going.
Mr Wightman submitted that the applicant was given a naval draft warrant and therefore had to go at that time to Melbourne by sea. She entered the Navy at HMAS Torrens and was not told that she would commence in Melbourne, she was only told that she would be mobilised in Melbourne. Mr Wightman submitted that when she was in Melbourne, she was on standby but still on the Torrens list. Mr Wightman submitted that when she arrived in Melbourne, a period of time elapsed before she reported to HMAS Lonsdale because the system at the time was that a group of recruits were to go through training together. Mr Wightman submitted that the reason why she was brought to Melbourne at that time and then left on standby was because there was very limited transport available at the time and she had to go when the ship was available. Mr Wightman submitted that the applicant was also at HMAS Lonsdale for several weeks without a uniform after mobilisation and did not receive a uniform until she went to HMAS Cerberus. Therefore, it was submitted that the presence of a uniform was not an accurate representation of when one commenced with the Navy.
Mr Wightman submitted that the applicant travelled on a Navy draft to Melbourne and that there was a difference between being "called up for service" and being mobilised. Mr Wightman submitted that the call-up date written in the letter to the applicant was the date of entry and on this occasion, the date of entry was the date of the first medical examination.
Mr Wightman submitted that the precautions taken whilst the ship was 200 miles offshore, namely streaming paravanes unless in convoy and blackout conditions indicated the clear danger in the seas. The reason for the precautions was because it was an extremely dangerous situation. Mr Wightman further referred the Tribunal to "Veterans' Entitlements Law", Robin Creyke and Peter Sutherland with Pauline Ridge, The Federation Press, Sydney, 2000 at page 122 where it stated (inter alia):
"…
Belief or apprehension of danger has been held to be significant evidence that danger did in fact exist; … That is, subjective evidence may prove a significant indicator of risk.
…"
Mr Wightman submitted that in the southern area in which the applicant travelled during the voyage from Adelaide to Melbourne, a minefield had been laid by a German ship. Evidence in support of this was that some mines had broken loose and were washed up at Beachport, at a time before the applicant's trip. This did affect the applicant's fear in the situation as she did not know what was out there. Mr Wightman submitted that the applicant's father had requested a sweeping of the area but no minesweepers were available at the time.
discussion and findings
No provision is made in sub-section 85(4A) for review of a decision regarding a person's eligibility for a Gold Card. Section 85 is only concerned with the issue of determining those veterans who are eligible to be provided with medical and other treatment under the Act.
The Tribunal's power to review decisions is found in Part X of the Act. Section 175 sets out those decisions in respect of which an application may be made to the Tribunal. In the instant case, only sub-section 175(2) is relevant. Sub-section 175(2) includes decisions made in response to requests made under section 57 to review decisions in relation to a claim for a qualifying service determination under section 35B. In response to such a request the Commission, in accordance with section 57B, may make a decision affirming or setting aside the decision it has earlier made.
However, in respect of the other criteria specified in sub-section 85(4A), there is no right of review and in particular, there is no right of review from a decision as to whether or not a person is a veteran. Therefore, the Tribunal has not considered Mr Doube's submissions in relation to the definitions of "veteran" and "eligible war service".
The issue in this matter is whether the applicant meets the eligibility requirements for the rendering of qualifying service during a period of hostilities in accordance with section 7A of the Act. The relevant standard of proof is that of reasonable satisfaction pursuant to sub-section 120(4) of the Act.
At the outset, the Tribunal indicates that it had no reason to doubt the truthfulness of the applicant in her account of the circumstances leading up to her voyage, the voyage itself, and the time she spent in Melbourne before mobilisation at HMAS Lonsdale. The Tribunal finds the applicant to be a credible witness who at all times did her best to describe the circumstances of her service with the RAN, considering that her service was 60 years ago.
In relation to the fact that the respondent could find no record of the applicant's voyage on the MV Corinda, the Tribunal is mindful of the fact that the Department's records are not always accurate, nor are they all-encompassing – documents are often lost, incomplete or inaccurate. Therefore, it is not surprising that no reference is made to the MV Corinda.
The Tribunal therefore finds that the applicant did travel on the MV Corinda, departing from Adelaide on 29 March 1943 and arriving in Melbourne on 1 April 2001.
Section 7A reads as follows:
"7A Qualifying service
(1)For the purposes of Part III 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
…"
Turning to section 5B of the Act, various terms in section 7A are defined:
"5B War and operational area related definitions
(1) In this Act, unless the contrary intention appears:
…
period of hostilities means:
…
(b)World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included); or
…"
It is not in dispute between the parties that the applicant served during a period of hostilities, namely during World War 2, in between 3 September 1939 and 29 October 1945, and the Tribunal so finds.
Further relevant definitions are found at section 5C of the Act:
"5C Eligibility related definitions
(1)In this Act, unless the contrary intention appears:
…
member of the Defence Force includes a person appointed for continuous full-time service with a unit of the Defence Force.
…
continuous full-time service means:
(a)in relation to a member of the Defence Force:
(i)service in the Naval Forces of the Commonwealth of the kind known as continuous full-time naval service;
…"
The Tribunal now turns to consider whether or not the applicant was a member of the Forces who rendered continuous full-time service in the Navy at the time that she boarded the MV Corinda. The Tribunal is satisfied that, as the applicant explained, the Royal Australian Naval Reserves were not considered to be the "part-time" branch of the RAN during the war, but rather consisted of those servicemen and women who were called up for service during the war time only – from the moment World War 2 broke out all Reserves Forces were considered to be active. The respondent called no evidence to refute this interpretation and in the absence of contrary evidence, the Tribunal finds that the applicant's service in the Royal Australian Naval Reserves consisted of continuous full-time naval service from the moment that she stepped aboard the MV Corinda.
In addition, the Tribunal considers it highly unlikely that the Navy would have avoided responsibility for the applicant if the ship had not arrived safely in Melbourne and had in fact been torpedoed or hit a mine.
In relation to her period of waiting at Melbourne, this was through no choice of her own – she was told to go to Melbourne at a particular time because that was when a ship was available to transport her and she was told to wait in Melbourne so that a group of recruits could be trained at the same time as her.
In considering the question as to whether or not the applicant "incurred danger" as defined in sub-section 7A(1)(a)(i), the Tribunal refers to the authoritative Full Federal Court decision in Repatriation Commission v Thompson (1988) 82 ALR 352 at 356:
"The words 'incurred danger' therefore provide an objective, not a subjective, test. A serviceman incurs danger when he encounters danger, is in danger or is endangered. He incurs danger from hostile forces when he is at risk or in peril of harm from hostile forces. A serviceman does not incur danger by merely perceiving or fearing that he may be in danger. The words "incurred danger" do not encompass a situation where there is mere liability to danger, that is to say, that there is a mere risk of danger. Danger is not incurred unless the serviceman is exposed, at risk of or in peril of harm or injury.
The danger incurred must of course be more than a merely fanciful danger or a danger so minimal that the rule of de minimus applies. But to say that is not to give a flavour to the word. Rather it is to use it in its ordinary sense.
…"
The Tribunal is satisfied on the evidence that both streaming paravanes and travelling in blackout conditions at night are evidence that the ship was in a dangerous situation during its voyage from Adelaide to Melbourne. It appears to be clear that vessels would not be streaming paravanes unless it was believed that there were mines in the vicinity. In addition, although paravanes are designed to detect and detach mines without danger to crew, there is always a risk that the end of a mine might hit the vessel itself rather than the paravanes.
Similarly, travelling in blackout conditions at night is evidence of the risk of submarine detection of ships – if there was no danger of submarines attacking, then there would be no requirement for such precautions. On top of this evidence, there is the evidence of Japanese and German submarine torpedo attacks along the south-east coast of Australia at the time and also the fact that a few months before, the applicant was aware of the two mines from the minefield laid by the Germans which washed up onshore at Beachport, one of which killed two servicemen. Beachport was along the way the ship travelled in its voyage from Adelaide to Melbourne.
The Tribunal is reasonably satisfied that judged objectively, there was a reasonable risk of harm or injury to the applicant by reason of enemy action. The evidence shows that even taking reasonable precautions, a person on a sea voyage along the south and south-east coast at this time stood a higher than average risk of physical harm. The Tribunal has taken into account the evidence of the applicant and Mr Wightman detailing the fate of other vessels in surrounding areas during 1943, the applicant's evidence of the mines washing up on the beach at Beachport a few months before, her evidence about the precautions the MV Corinda took during the voyage and her feelings of fear and apprehension at the time of the voyage. The respondent called no evidence to refute these depictions of the danger at the time.
On the evidence the Tribunal is reasonably satisfied that the applicant incurred danger from hostile forces of the enemy, namely mines and submarines, at the time the MV Corinda made the voyage from Adelaide to Melbourne during March-April 1943.
Having taken into account the whole of the evidence before the Tribunal, and taking into account the parties' submissions, the Tribunal is therefore reasonably satisfied that the applicant has, as a member of the Defence Force, rendered service, during a period of hostilities at sea at a time when the applicant incurred danger from hostile forces of the enemy. The Tribunal is therefore satisfied that the applicant rendered qualifying service in accordance with section 7A of the Act.
decision
For these reasons the Tribunal sets aside the decision under review and in substitution therefor decides that the applicant has rendered qualifying service pursuant to section 7A(1)(a)(i) of the Veterans' Entitlements Act 1986.

I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:         .............................(Signed)........................................
  Barbara Armstrong, Associate
Date/s of Hearing  27 August 2001
Date of Decision  October 2001
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Mr Greg Doube
Solicitor for the Respondent    Department of Veterans' Affairs