Williams and Repatriation Commission
[2004] AATA 1302
•8 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1302
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/56
VETERANS' APPEALS DIVISION )
Re ROY WILLIAMS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date8 December 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...................[Sgd]........................
R G Kenny
Member
CATCHWORDS
VETERANS’ APPEALS – Veterans Entitlements’ Act 1986 – service pension – sea voyage from Brisbane to Thursday Island – transit to and from Horn Island – service on Horn Island – sea voyage from Thursday Island to Townsville – danger from hostile forces of the enemy not incurred – applicant awarded Defence Medal - no qualifying service for service pension
Veterans Entitlements’ Act 1986 s 5C, 7, 7A, 35B, 35C
Commission v Thompson (1988) 82 ALR 352
Repatriation Commission v Mitchell (2002) 71 ALD 93
Re Tiplady and Repatriation Commission (1987) 12 ALD 670.
Gilgen and Repatriation Commission [2000] AATA 447.
Repatriation Commission v Burton (1993) 31 ALD 475Mullen and Repatriation Commission 2000 AATA 871
REASONS FOR DECISION
8 December 2004 Mr RG Kenny, Member Background
1. Roy Williams (the applicant) served in the Australian Army from 2 April 1942 until 2 July 1946. He served within Australia and on Horn Island in the Torres Strait. On 6 June 2002, he lodged an application with the Department of Veterans’ Affairs for a determination of whether he rendered qualifying service for the purposes of obtaining a service pension under Part III of the Veterans’ Entitlements Act 1986 (the Act). On 31 March 2003, a delegate of the Repatriation Commission determined that he did not have qualifying service and, on 20 October 2003, that decision was affirmed by a further delegate of the Repatriation Commission. On 28 January 2004, Mr Williams sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
2. At the hearing, Mr Williams was represented by Mr R Anderson of counsel and the Repatriation Commission was represented by Mr A Harris. The following material was taken into evidence:
Exhibit 1the T documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T21);
Exhibit 2a statement, received in the Registry on 3 November 2004, by Albert Palazzo PhD;
Exhibit 3the curriculum vitae of Dr Palazzo;
Exhibit 4source material relied upon by Dr Palazzo in preparing his statement;
Exhibit 5a statement, forwarded to the Tribunal on 18 November 2004, by Vanessa Seekee;
Exhibit 6a report, dated 15 November 2004, by Noel Underwood;
Exhibits 7-10 reports dated 11 August 2004, 2 September 2004, 8 September 2004 and 15 November 2004, respectively, by Robert Piper;
Exhibits11-12 statements dated 17 June 2004 and 22 July 2004, by the applicant;
Exhibit 13a summary of conditions of award and notes for guidance in the wearing of campaign stars, defence and war medals;
Exhibit 14a further report, dated 17 November 2004 by Dr Palazzo; and
Exhibit 15curriculum vitae of Mr Piper.
Issues and Legislation
3. Part III of the Act makes provision for the payment of service pensions and section 35B thereof requires that a claim be made to establish whether or not qualifying service has been rendered. Sub-section 35C(1) provides that a claim for a qualifying service determination must be made by the veteran who wants to establish that he or she has rendered qualifying service. The term veteran is defined in section 5C of the Act as meaning a person who has rendered eligible war service as provided for in section 7 of the Act. It is not disputed that Mr Williams meets the requirements of sections 5C and 7 of the Act.
4. The meaning of qualifying service is given in section 7A of the Act and the component of that provision which is relevant to Mr Williams is sub-paragraph 7A(1)(a)(i) which provides that he will have rendered qualifying service if, during World War 2, he rendered service:
“…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.”
5. The issue for the Tribunal is whether or not the circumstances of Mr Williams’ service meet the requirements of that provision.
Applicant’s Case
6. On 4 December 1943, Mr Williams embarked from Brisbane on the SS Wandana on route to Thursday Island where he arrived on 15 December 1943. He then travelled to Horn Island as one of a group of reinforcements for 74 Mobile Search Light Battery. He served in that capacity until 26 September 1944 when he left the Torres Strait by ship and disembarked in Townsville on 28 September 1944. During those voyages and whilst on Horn Island, Mr Williams had no direct contact with enemy forces but Mr Anderson submitted that, nevertheless, there had been a real possibility, during each of the voyages, of Mr Williams’ vessel making contact with an enemy mine or of being sighted by an enemy submarine. He also submitted that there was a real possibility that, whilst on Horn Island, Mr Williams could have been subject to raids by Japanese aircraft. He submitted that, in that case, he met the requirements of section 7A of the Act in that he had incurred danger from hostile forces of the enemy. Mr Harris conceded that there was some possibility that a vessel on which Mr Williams was transported may have made contact with a mine and some possibility of Japanese air raids on Horn Island but he submitted that the mere possibility of these happening was not sufficient to meet the requirements of section 7A and that, therefore, Mr Williams did not have qualifying service.
7. Mr Anderson also placed reliance on the award to Mr Williams after the war of the Defence Medal. He referred the Tribunal to Exhibit 13 which set down the conditions for granting that award as including:
“Six months service in a non-operational area subjected to air attack, or closely threatened…”
Evidence
§ Military Historians
8. Evidence was given at the hearing by military historians Albert Palazzo PhD and Vanessa Seekee on behalf of the applicant. Dr Palazzo has held teaching and research positions with various tertiary institutions including the Australian Defence Force Academy. Ms Seekee, who resides on Horn Island, has been carrying out research on World War 2 military operations in the Torres Strait area and is the author of a book “Horn Island; In Their Footsteps 1939-1945”. Evidence was also given by military historians Noel Underwood and Robert Piper on behalf of the respondent. Mr Underwood is a retired Australian Army Officer and has a particular research interest in the activities of the Australian Army in the Papua New Guinea area. Mr Piper is the author of books on World War 2 and has been a consultant to the Australian War Memorial and the Royal Australian Air Force Association for over fifteen years.
§ Mr Williams’ Service
9. Mr Williams said that, on the voyage from Brisbane, a warning had been given by the Captain of the Wandana that there was a possibility that mines might be encountered and that, for that reason, a sentry had been posted. Nevertheless, no mines were seen and, on his voyages to and from Horn Island and whilst serving there, he did not see any mines or enemy vessels. His duties in the searchlight battery on Horn Island were to maintain the engine which powered a generator. He did not visit the airfield and did not see or hear any enemy aircraft during that period. He said that he had not been aware of the possibility of any enemy aircraft flights until he had read Ms Seekee’s book about two years before he lodged his claim.
§ Enemy Vessels and Mines
10. The source material relied upon by Mr Underwood and Dr Palazzo and their evidence establish that German vessels laid mines off the central New South Wales coast in 1940 and that the location of all of those mines had not been discovered by the time Mr Williams commenced his voyage from Brisbane to Thursday Island. Some of these mines drifted north on prevailing ocean currents, with some being found as far north as the Torres Strait Islands and with some not being located until March or April in 1944. Their evidence and resource materials also establish that Japanese mines were laid by a Japanese submarine in the seas off Caloundra in South East Queensland in March 1943 and that four of these had not been accounted for by the time Mr Williams commenced his voyage from Brisbane. The evidence was that Japanese mines were of the kind which, if they broke free from their moorings, would sink rather than float northwards like the German mines and that it was unlikely that these would still be active by December 1943. Both Mr Underwood and Dr Palazzo expressed the opinion that there was a possibility that the vessel on which Mr Williams undertook his voyage in 1943 may have come into contact with an enemy mine.
11. The evidence also reveals the presence of Japanese submarines in Rabaul in early 1944 and that these were not used in a manner to threaten vessels in the Torres Strait during the period relevant to Mr Williams’ Torres Strait service. Rather, they were used by the Japanese to resupply their own isolated garrisons in New Britain, the Solomon Islands and Eastern New Guinea. The last sinking of an allied ship by Japanese submarines was in June 1943. There was no record of any Japanese attack on an allied ship inside the Great Barrier Reef which marked the route travelled by Mr Williams.
§ Enemy Aircraft
12. The military facilities on Horn Island, in particular the air field, played a strategic role in the war against the Japanese in the South Pacific. This role lessened in significance as the threat of Japanese air raids on mainland Australia decreased and this coincided with the period when Mr Williams was serving there. The last raid on Horn Island by Japanese aircraft occurred in June 1943. Ms Seekee gave evidence that Japanese reconnaissance missions continued in Torres Strait to monitor Allied movements and she said that she was able to identify, from military records, Japanese aircraft activity over Horn Island during the period of Mr Williams’ service there. These activities were included in the report by Dr Palazzo who extracted the material from Ms Seekee’s book noted above. He referred to twelve occasions of what he described as a Japanese air threat to Horn Island in the period from 5 January 1944 until 4 July 1944 and, for ten of these, the reference is to “unidentified enemy aircraft” and the remaining entries are to “night alarm”. Ms Seekee conceded that the entries were officially recorded as “unidentified aircraft” but she believed that at least three quarters of the sightings were of enemy aircraft. Dr Palazzo, in his report, listed the following entries from war diary records relating to aircraft movements over the Torres Strait:
“1) 3 March 1944: 0125 Hours. Unidentified aircraft picked up at 80 miles, NW direction, height 20,000 ft, speed 170-190 mph. Followed in to 34 miles on consistent track then lost.
2) 4 March 1994: Alert sounded at 0150 hours. Unidentified aircraft coming in from NW.
3) 4 March 1944: 0147 Hours. Air Raid alert RED sounded – Hostile single engined aircraft identified. Out of range for AA Guns.
4) 4 March 1944: 1145 Hours: 8 pilots on standby at Horn Is saw a single engine aircraft over Goode Is, height 8/10000ft speed 220mph, heading WNW. Observed for 5 miles. Nil radar or GL plots. No allied a/c in the vicinity.
5) 25 April 1944: X aircraft, close down at 1503 hours, aircraft not identified.
6) 20 December 1943: Japanese Betty Bomber attacks convoy with one bomb and machine gun fire. Position of attack was: 10º 43’ S and 139º 10’ E.
7) 29 December 1943: SS Islander attacked by enemy aircraft. Four bombs dropped. Position of attack was: 9º 25’ S and 140º 25’ E.
8) 12 January 1944: 1157 Hours. Sighted probable BETTY posn 0854 S 13627 E distant 7 miles height 9000ft course 320º.
9) 22 January 1944: Blip received posn 0903 S 13703 E. No IFF indications. Our attempts to home on it abortive.
10) 23 January 1944: Sighted Betty in posn 1005 S 13912 E. Enemy aircraft refused combat and Nil intercept achieved.
11) 17 March 1944: 1408 Hours. Patrol reported indications of unidentified aircraft posn 7º 56’ S and 137º 2’ E course 197º”
13. Each of those references was the subject of investigation by Mr Piper. He said that the first three were all on the same day and that there may have been confusion about the date because it happened close to midnight. In his report of 15 November 2004, he said that the reports did not indicate that this aircraft had ever been identified or even seen and he questioned the suggestion that it was properly described as being “hostile” or single engined. In respect of the fourth entry, he said that Goode Island was approximately 8 miles from Horn Island. Mr Piper noted that the fifth entry related to an unidentified aircraft and said that his analysis of the records showed that the other sightings of aircraft were many miles from Horn Island. The distances were, for reference 6, 203 miles west; for reference 7, 143 miles north west; for reference 8, 400 miles north west; for reference 9, 360 miles; and for reference 10, 205 miles north west. He noted that the reference 11 sighting was of an unidentified aircraft. Mr Piper’s evidence was that it was not possible to conclude whether any of these recordings related to enemy aircraft. He referred to a large number of Allied aircraft which overflew Horn Island and the Torres Strait without necessarily providing their identification.
14. Dr Palazzo said that various allied senior military leaders in 1943 and 1944 expressed a need to protect Horn Island from enemy attack. He referred to documentation prepared by the Army Commander on Horn Island in November 1943, Lieutenant Colonel RL Hawke, which referred to the continuing prospect of attack from enemy forces and to a second assessment in 6 March 1944 which also referred to the prospect of small scale commando raids against outposts such as Horn Island.
15. Mr Underwood also made reference to allied concerns about the need to strengthen defence capacity of the Torres Strait area but said that this occurred in early 1943 and the continuing dominance of the allied forces meant that these plans were suspended in June 1943. Mr Piper referred to the two intelligence reports which had been described by Dr Palazzo. These were “Appreciation of the Situation” dated 30 November 1943 and “G-2 Estimate of the Enemy Situation with Respect to Enemy Capabilities in the Torres Strait – Merauke area” dated 6 March 1944. He described them as being overly enthusiastic, speculative and as not providing an accurate picture of what the Torres Strait strategic situation was at the time.
16. In relation to the prospect of Mr Williams coming into contact with enemy submarines in transit between Horn Island and Thursday Island or in voyages to and from Thursday Island to Australia, Mr Underwood said that the unlikelihood of this was enhanced by the fact that the waters of Torres Strait were interlocked with shoals, reefs and islands and were quite shallow thereby making them a “submarine death trap”. He said that Japanese submarine activity in Torres Strait had occurred early in the war and only towards the eastern approaches to the Torres Strait because of the danger from reefs and the unpredictable strong current in the shallow waters of Torres Strait which would have provided little cover for a submerged submarine.
Consideration
17. In Repatriation Commission v Thompson (1988) 82 ALR 352, the Full Court of the Federal Court held that the words “incurred danger” provided an objective and not a subjective test. The Court said:
“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 ‘incur 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 words. Rather it is to use it in its ordinary sense.” (at 356)
18.The Court added:
“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.”
19. Mr Anderson relied upon two cases to support his contention that the applicant incurred danger. These were Repatriation Commission v Mitchell (2002) 71 ALD 93 and Re Tiplady and Repatriation Commission (1987) 12 ALD 670.
20. In Mitchell, the veteran was conveyed by troop ship from Townsville to Horn Island in early September 1944, transferred to Thursday Island and then sent to Higgins Field on Cape York Peninsula. He returned to Thursday Island later that month and then was transported by ship to Brisbane. The Tribunal, in that case, determined that the requirement of incurring danger had been met on the basis of the presence of enemy mines in the vicinity of Thursday Island when the veteran was travelling in that area. That finding was not disturbed by Cooper J in the Federal Court and the decision was affirmed.
21. In Tiplady, the claim for service pension was based on a voyage from Townsville to Thursday Island and then to Horn Island followed by a tour of duty at a signals installation at Higgins Field on Cape York peninsula. The voyage took place in April 1944. The Tribunal decided that the veteran had incurred danger and based its decision on the possibility of an attack from an enemy submarine and the possibility of an encounter with free-floating or laid enemy mines. The majority described the danger as being neither great nor insignificant and held that it met the test of objective danger insofar as it was “not merely imagined by the applicant but instead it represented a real, if somewhat remote, possibility” (at 682).
22. The matter also arose before the Tribunal in Gilgen and Repatriation Commission [2000] AATA 447. There, the veteran travelled by ship from Townsville to Thursday Island and then to Horn Island in January 1944. The Tribunal was unable to find that he had incurred danger on those voyages or, subsequently, whilst stationed at Higgins Field. It said (at 37):
“It is of course possible that the areas traversed by Mr Gilgen may have had enemy mines in place or an enemy mine or enemy mines may have broken free and been present but unobserved at the time of his voyages. The material before the Tribunal does not however allow the Tribunal to find that this possibility is translated by known facts into something more than a possibility. Danger from enemy naval or air attack was, on the material before the Tribunal, an even more remote possibility.”
23. In Repatriation Commission v Burton (1993) 31 ALD 475, Olney J referred to the context of mine warfare and concluded that, in the absence of any findings that the veteran in any way encountered mines, there could be no basis for a conclusion that he encountered danger from hostile forces of the enemy. That reasoning was followed by the Tribunal in Mullen and Repatriation Commission [2000] AATA 871.
24. On the evidence before me, I am reasonably satisfied that Mr Williams did not incur danger from any form of enemy shipping, including submarines, on either of the voyages he undertook. However, there was a possibility that either of the vessels on which he was being transported may have come into contact with an enemy mine, in particular, one of the German mines which drifted northwards from the central New South Wales coast. Also, there was a possibility that aircraft recorded as being in the Torres Strait area may have been Japanese. However, I am satisfied that Mr Williams did not incur danger from those mines or aircraft in a manner which meets the terms of sub-paragraph 7A (1)(a)(i) of the Act.
25. In relation to exposure to mines, no warnings were given for the return voyage to Townsville but warning was given by the captain of the Wandana when leaving Brisbane. No mines were sighted. Mr Williams perceived that there was a prospect of coming into contact with a mine but this remained at the level of a remote possibility. That perception is not sufficient to constitute the incurring of danger from mines in the objective sense referred to in the cases of Thompson, Burton and Mullen (above).
26. Mr Williams arrived on Horn Island in December 1943 which was some 6 months after the last raid by Japanese aircraft. During his service there, aircraft movements were noted and these were referred to by Dr Palazzo and Ms Seekee. However, they did not establish the identity of most of those aircraft. Even if they were Japanese, the evidence of Mr Piper places them well away from Horn Island except for the sighting on 4 March 1944 when a single engined plane described as “hostile” was noted to be “Out of range for AA guns”. In evidence as an annexure to exhibit 7 was a copy of the Operations Record Book for Horn Island which included the entry on 4 March 1944. It describes an “alert” being sounded for an unidentified aircraft at 0150 hours and the “all clear” being sounded at 0300 hours. I accept the evidence of Mr Piper that this aircraft was not identified as an enemy aircraft. While there was a possibility of an air strike on Horn Island while Mr Williams served there, this also remained at the level of a remote possibility and one unsupported by evidence of the presence of any Japanese aircraft. That is not sufficient to constitute the incurring of danger from enemy aircraft in the objective sense referred to in the cases of Thompson, Burton and Mullen (above).
27. The applicant did not incur danger from hostile forces of the enemy and, accordingly, did not render qualifying service for the purposes of section 7A of the Act.
28. I have noted Mr Anderson’s submission concerning the conditions of award for a Defence Medal. Section 7A of the Act makes provision for qualifying service to be rendered where nominated campaign medals have been awarded following service in the defence force of a Commonwealth country. Sub-section 7(2) of the Act defines the term campaign medal but this does not extend to the Defence Medal; sub-section 5C(1) of the Act defines Commonwealth country as not including Australia. I am satisfied that Mr Williams’ eligibility for the Defence Medal does not result in his having rendered qualifying service under section 7A of the Act.
Decision
29.The Tribunal affirms the decision under review.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Camille Banks
AssociateDate/s of Hearing 19 November 2004
Date of Decision 8 December 2004
For the Applicant Mr R Anderson of Counsel
For the Applicant Terence O'Connor, Solicitor
For the Respondent Anton Harris, Departmental Advocate
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