Re Walter Harold Thompson v Repatriation Commission [1988] FCA 9 (22 January 1988)

FEDERAL COURT OF AUSTRALIA

Re: WALTER HAROLD THOMPSON
And: REPATRIATION COMMISSION
No. G101 of 1987
Appeal from Administrative Appeals Tribunal

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Einfeld J.(1)

CATCHWORDS

Appeal from Administration Appeals Tribunal - Application for service pension pursuant to s 38 of the Veterans' Entitlement Act 1986 - meaning of 'at a time when the person incurred danger' in s 36 (a)(i) of Veterans' Entitlement Act - test to be applied regarding 'danger' - role of Federal Court under s 44 Administrative Appeals Tribunal Act

Veterans' Entitlement Act 1986 - ss 38, 36(a)(i)

Administrative Appeals Tribunal Act 1975 - s 44

HEARING

SYDNEY
22:1:1988

Counsel and solicitors for Appellant: Mr. A. McInnes, Qc with Mr. Hill instructed by: Legal Aid Commission

Counsel and solicitors for Respondent: Mrs P. Flemming, QC with Mr. Robertson instructed by: Australian Government Solicitor

ORDER

The Tribunal erred in law in holding that the words 'incurred danger' in section 36 (a)(i) of the Veterans' Entitlement Act 1986 meant 'an actual risk of physical or mental harm which must arise as a direct result of the activity of hostile forces of the enemy'.

The Tribunal erred in law in rejecting or dismissing as of no weight the stamp endorsed on the appellant's Certificate of Discharge.

Remit the matter to the Tribunal to reconsider in accordance with these findings.

Order that respondent pay appellant's costs.

NOTE: Settlement and entry of these orders are dealt with in accordance with Order 36 of the Federal Court Rules.

DECISION

This is an application pursuant to section 44 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) for a review of the decision of the Administrative Appeals Tribunal (the Tribunal) by Senior Member B.J. McMahon on 12th February 1987 concerning an application made by Mr. Thompson (the appellant) to the Repatriation Commission (the Commission) for a service pension. The application for the service pension was made pursuant to section 23 of the Repatriation Act 1920, which by virtue of the Veterans' Entitlement (Transitional Provisions and Consequential Amendments) Act 1986 now comes within section 38 of the Veterans' Entitlement Act 1986 (the Act). This section provides:

"(1) Subject to this Act, a veteran who has rendered
qualifying service and has attained the age of -

(a) in the case of a male veteran, 60 years or

(b) in the case of a female veteran, 55 years,

is eligible to receive a service pension
under this Part."

'Qualifying service' is defined in section 36 and for the purposes of this review, section 36(a)(i) is relevant. This section provides:

"For the purposes of this part, 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 definion of 'period of
hostilities' in sub-section 35(1), at sea,
in the field or in the air, in naval,
military or aerial operations against the
enemy in the 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."

2. Despite a lengthy set of questions of law posed by the appellant, the issue essentially raised for review is the meaning and significance in section 36 (a)(i) of the Act, of the phrase,

". . . at a time when the person incurred danger from hostile
forces of the enemy."

3. The appellant seeks orders that the decision of the Tribunal be set aside and that the appellant's claim for a service pension be granted.

Brief Background

4. The application for the service pension was based upon the appellant's service with the RAAF at Peron Island, an island located south-west of Darwin but part of Australia, for the period between 17 September 1943 and 20 October 1945. The appellant travelled by ship to the island and remained there for some four months, his chief duty being to assist in guarding the radar station located on the island. The appellant claims his entitlement to the service pension on the basis of his belief that he was in danger at the time, essentially because:

(a) he was in an area capable of being attacked by the enemy;

(b) his presence on the island was solely for the guarding of a
military establishment, the destruction of which would have
benefited the enemy;

(c) the location of the establishment was at the forefront of the
Australian defences to Japanese attack at the time.

5. The applicant was issued with an Interim Certificate of Discharge from the armed forces on which was stamped "Member Served in Combat Zone". The applicant claims this as evidence of his having served at war and thus faced danger from hostile enemy forces. The Tribunal made the following relevant determinations:

(1)Meaning of 'Danger'
The Tribunal concluded that veterans must have incurred actual
danger and followed Re Marsh (1986) 10 ALN 335. At page 16, it
said:

"The section talks about 'at a time when the person incurred
danger', not at a time when the person might have incurred
danger or might have thought that danger might be there.
Danger must be real and not fanciful. It must consist of
more than shadows of the night. It must arise as a direct
result of the activities of hostile forces of the enemy. It
must arise in the area in which the applicant serves. A
feeling of dread is not sufficient to base a claim under
this section. There must be established an actual risk of
physical or mental harm."

(3)Reliance on Stamp Endorsed On Certificate of Discharge
The Tribunal said at page 17:

"To rely upon a rubber stamp endorsed on an interim
certificate of discharge stating 'member served in a combat
zone' is, to put it mildly, clutching at straws. How can
the ipse dixit of a clerk engaged in demobilising
procedures possibly assist the applicant to prove his
necessary qualifications under section 36? . . ."

Submissions of Appellant

6. The appellant submitted that the significance of 'incurred danger' within section 36(a)(i) of the Act did not mean actual danger but rather potential danger. In fact the first ground of appeal states that the Tribunal was in error in holding that it meant 'actual risk'. Reference was made to Tiplady v Repatriation Commission, an unreported decision of the Tribunal on 7 August 1987, where Sir William Prentice considered the question of danger and held at 23:

While acceding to the proposition that the statutory
requirement of having 'incurred danger' is to be found
fulfilled only when as a matter of objectivity, danger
existed, as distinct from a setting wherein an applicant
merely 'felt' or 'imagined' himself in danger (a
'subjective' matter); I am unable to agree that the
legislature's intention in the light of the Prime Minister's
Second Reading Speech (Burchett J in Re Marsh (Fed. Ct.
Decision G263/86, 20 June 1986) should be interpreted as
requiring the establishment of the probability as contrasted
with the possibility of danger. I do not read the phrase as
requiring assessment of degrees of risk of injury, wounding
or loss of life."

7. This reasoning of Sir William Prentice was adopted here by the appellant who maintained that the question to be considered was not whether Peron Island was in the firing line of the enemy but rather whether it could potentially have been attacked by the enemy. The fact that it was not so attacked, he said, does not mean that danger was not incurred.

8. Reliance was also placed upon the decision of Victor Albert Dwyer v Repatriation Commission (AAT, Senior Member Dr. R.A. Hayes, 22 September 1987), in which the reasoning of Re Marsh (above) was not followed, and in which it was held at 9:

"I would agree with the comments expressed by Sir William
Prentice in Re Tiplady. The statutory test, as set out in s
36(a) of the Act, merely requires that the person has
'incurred danger . . .'. The fact that this 'risk or peril'
(to adopt the definition of the Macquarie Dictionary) did
not become an eventuality, in that the enemy did not launch
an attack at a time when it had the capability to do so,
does not detract from the proposition that a person was in
danger. The Act does not require a person to establish a
'substantial' risk, or that an attack was 'probable'.

If a person was serving in an area which was a possible
target for the enemy attack, then I would regard that person
as having been in danger. The possibility of an attack is
something that must be established by reference to objective
evidence, and to this extent I would agree with the decision
in Re Marsh. However, to the extent that the decision
requires an applicant to show that 'it was a characteristic
of the posting that there be substantial danger during a . . .
substantial time of the . . . posting', I cannot agree. Once
danger is established, then the requirement of s 36(a) of
the Act is satisfied."

9. With respect, I also agree with Sir William's exposition.

10. The appellant further submitted that potential danger accords with the incurring of stress and strain by those who served at war and justifies the granting of the service pension. Reliance was placed upon part of the Second Reading Speech of Prime Minister Lyons (House of Representatives, 20 November 1935) as follows:

"Secondly, there is a new section which authorizes the
Repatriation Commission to pay service pensions to returned
soldiers between the ages of 60 and 65 years and to returned
nurses between the ages of 55 and 60 years, provided that
they served in a theatre of war. To those soldiers who
served in a theatre of war, and whom the stress and strain
of their experience may reasonably be regarded as having
made permanently unemployable, a service pension will be
granted at any age, and for those former members of the
Australian Imperial Force who suffer from pulmonary
tuberculosis which has not been accepted as due to war
service, there will be a service pension irrespective of
age, capacity for work, or the nature of their service."

11. The appellant put the view that the Tribunal had wrongly imported the word 'actual' into the provisions of section 36(a)(i) of the Act so that it would read:

". . . at a time when a person incurred actual danger."

12. The appellant further maintained that because this is beneficial legislation, it must be construed liberally (see Pearce: Statutory Interpretation in Australia, at pp. 137-138).

13. The appellant submitted that it is sufficient if the serviceman was in a situation of danger and that the degree of danger need not be considered. The appellant stated that section 36(a)(i) does not make it a requirement that a person be aware of any danger, although it may be a factor that should be considered. However, I believe that the fact that the use in the speech of words such as 'stresses' and 'strains', means that the Parliament probably intended an element of consciousness of at least potential danger by the person at war at the relevant time.

14. In Mayhew v Sutton (1902) 71 KB 46 it was held that it is possible to drive a motor vehicle in a dangerous manner to the passengers even though there was no possibility of a passenger being injured because there were no passengers. In other words, a driver can drive in a manner dangerous although it is not shown that anyone was in danger at the time. The appellant submitted that if a penal statute requiring strict construction, can be read so that a motor vehicle can be driven dangerously when no one is in actual danger, then a beneficial statute requiring the incurring of danger should be read so that actual danger need not be demonstrated. I am not entirely persuaded of the analogy but the basic argument remains available.

15. The appellant submitted that the stamping on the Interim Certificate of Discharge of the words "Member Served in Combat Zone" evidenced the fact that the appellant had in fact been involved in some danger. Like the Tribunal, the respondent's attitude on this matter was that the evidence of the certificate could be of no assistance to these proceedings. I do not agree with and am surprised by the attitude of the respondent. This is a matter of evidence effectively rejected. In my view, the Certificate must be taken as evidence of what it says, namely that the appellant served in a zone of war where combat took place or was anticipated. With respect to the views of the Tribunal, I ask rhetorically: If service personnel receive certificates from their Government and people after they have served in war, which do not mean what the Government says they mean, what of the awards for bravery and courage bestowed by the same Government and people? And why should the same Government and people, albeit a generation later, now be heard to argue that they did not mean what they solemnly said so many years before? Is the Government now saying it was all one gigantic mistake? Is it recanting on, or recalling as if a dangerous product, all the discharge certificates to veterans containing similar stamps? What other stamps were used on certificates? Were they also meaningless?

16. The appellant claimed two factual errors by the Tribunal in its findings:

1.The Tribunal stated that the trip to Peron Island was in sight
of land when in fact the evidence was to the contrary.

2.The Tribunal quoted Colonel Horner, a historian who gave
evidence, as stating that the reconnaissance planes were unarmed
when in fact he said that they were slightly armoured.

17. Section 44 of the AAT Act stipulates that this is an appeal on points of law. In Van Cong Huynh v Secretary, Department of Social Security (unreported 27 October 1987) Davies J at page 7 stated:

"Unless an error of law is shown, it is not for this court
to interfere with the Tribunal's conclusions of fact.
Provided that the Tribunal has taken into account all
relevant factors, excluded from its consideration irrelevant
factors and applied the correct legislative criteria, the
decision is not one for the intervention of this court."

18. Comments on the powers of the Federal Court in such an instance were also made by Sheppard J in Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1981) 42 ALR 209. At 219, his Honour said:

"It is also axiomatic that, although styled 'an appeal' in
the AAT Act, this court is acting in its original
jurisdiction under s.19 of the Federal Court of Australia
Act 1976 and not pursuant to its appellate jurisdiction
conferred by s.24 of that Act."

19. In considering appeals from the Tribunal, it is well to bear in mind the comments of Fisher J, sitting as a member of a Full Court of this Court, in Blackwood Hodge (No.2) [1980] FCA 96; (1980-81) 3 ALD 38 at 49:

"It is my firm view that this court when hearing appeals
from a Tribunal constituted for the purpose of reviewing
decisions of this nature, should adopt a restrained
approach. Parliament contemplated that only in exceptional
circumstances should the decision of the Tribunal not be the
final decision. This does not mean that when an error of
law is identified, the court should be reluctant to
intervene. In fact, it is under a duty to do so. Rather it
should heed the comments of Davies LJ (as he then was) in R
v Industrial Injuries Commissioner; Ex parte Amalgamated
Engineering Union) (No 2) (1966) 2QB 31 at 50:

'I should like to echo the words of my Lord, Lord
Denning MR, in saying that I deprecate the practice,
and hope it would not continue, of attempting to
magnify or inflate questions of fact into questions
of law and of trying to obtain decisions from the
courts on matters which the legislature would appear
to have thought suitable for decision by the various
bodies and authorities set up under the Act of
1946.'

As Lord Radcliff said in Edward v Bairstow, supra, at 38:

'. . . by the system that has been set up the
commissioners are the first tribunal to try an
appeal, and in the interests of the efficient
administration of justice their decisions can only
be upset on appeal if they have been positively
wrong in law. The court is not a second opinion,
where there is reasonable ground for the first.'"

20. I am thus limited in this appeal to overturning any errors of strict law. Despite the earnest submissions of the appellant to the contrary, I do not believe these objections raise such questions.

Submissions of the Commission

21. The Commission submitted that the service pension provision was created for those persons who had served at war and whose strain of the experience had left them permanently unemployable but without a specific disability. It said that the provision of a service pension does not apply to those who had returned from war and who some years later find that they had been in some danger of which they were not aware at the time of their service.

22. On the meaning of 'incurred danger' in section 36(a)(1) of the Act, the Commission argued that the question as to whether a person has 'incurred danger' is a question of fact which should be viewed objectively. The Commission contended that the words 'incurred danger from hostile forces' should be read literally, so that the word 'potential' is not inserted before the word 'danger'.

23. It further submitted that danger is not 'incurred' until it is experienced. It supported the Tribunal's view that danger must be actual and must arise as a direct result of the activities of the hostile forces of the enemy. It says further that if at the time of performing service the appellant was not aware of danger but in retrospect realises that in fact he was in a situation of danger, then he cannot be eligible for the service pension. This is at the extreme end of the spectrum of possible circumstances. Although it appears to be a correct statement of the law, it is not relevant to this case.

24. The Commission placed significance on the phrase 'served in a theatre of war' found in the previous section 23 of the Repatriation Act that governed the application of the service pension:

"'Served in a theatre of war' means served 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 danger from hostile forces of the enemy
was incurred in that area or on that aircraft or ship of war
by the person so serving.'

25. This phrase was held by Burchett J in Re Marsh 71 ALR 281 to refer to military realities and not theoretical possibilities, a view upheld by the Full Court of this Court (Re Marsh unreported, 4 September 1987, Sheppard, Morling and Beaumont JJ) and binding on me as a result. Nonetheless, it appears that the Tribunal still considers the incurring of danger to be, as was stated in Crawford v Repatriation Commission (1 December 1987 N 86/870), 'an expression which still lingers in general discussion' (at 17). This Court has therein established the principle that the test for danger is an objective test, that is, not subjective or fanciful. In this sense there must be established an actual risk of physical or mental danger. These decisions focussed upon the meaning of 'theatre of war' which was then in the legislation. Because at the relevant time and place there were no 'hostile forces of the enemy' and the serviceman was therefore not in the 'theatre of war', neither Burchett J nor the Full Court considered how 'danger' is to be established.

26. The purpose of the service pension was discussed in Howlett v Repatriation Commission (24 August 1987, Adelaide), where Deputy President R.A. Layton, Dr. D.A. Dowie (Member), Mr R.B. Rogers (Member) said at page 7:

"A service pension is one which gives special recognition to
those veterans who objectively underwent and experienced
direct enemy action or threat of such action. Those
veterans experienced and encountered, to use the words of
the Member for Moreton on 29 November 1935 in the House of
Representatives at the time of the debate on service
pension:

'. . . the rigours of war and the privations endured
which have prematurely aged a great many nurses and
ex-soldiers. There was also provision for the
granting of a pension to soldiers whose war
experiences have worn them down to such an extent
that they are unemployable. These men have been
burnt out, so to speak, and it is only right that
something should be done for them.'"

27. However, the phrase 'incurred danger from hostile forces of the enemy' has been considered on many occasions by the Tribunal differently constituted. These include Re Galvin 10 ALN 125; Re Griffin 10 ALN 171; Re Walker (Decision 3286) 12 March 1987; Re Dodd N86/1027, 5 August 1987; Re Wyatt S87/2, 27 August 1987; Re Howlett S87/18, 24 August 1987; Re Hamilton W87/21, 19 October 1987; Re Rustonjee No. V86668, 13 August 1987;1 Re Crawford N86/870, 1 December 1987; Re Negri 10 ALN 172. Not all of these decisions are consistent with each other or with Re Marsh (above).

28. The Shorter Oxford Dictionary defines 'incur' as including to run into (danger, etc); to render oneself liable to (damage)'.

29. The Macquarie dictionary defines danger to include 'liability or exposure to harm or injury, risk or peril'.

30. These definitions, together with a consideration of the authorities and the statute as a whole, lead me to the conclusion that it is sufficient if, looked at objectively, the veteran was in a situation of real danger or liability to danger from the hostilities in which he/she was called upon to participate.

31. For these reasons, I find that the Tribunal erred in law in holding that the words 'incurred danger' in section 36(a)(i) of the Act meant 'an actual risk of physical or mental harm' which 'must arise as a direct result of the activities of hostile forces of the enemy'. I further find that the Tribunal erred in effectively rejecting or dismissing as of no weight the stamp endorsed on the appellant's Certificate of Discharge. I remit the matter to the Tribunal to reconsider in accordance with these findings.