Re David Norman Ahrenfeld v Repatriation Commission [1990] FCA 319; 101 ALR 71 (29 August 1990)

FEDERAL COURT OF AUSTRALIA

Re: DAVID NORMAN AHRENFELD
And: REPATRIATION COMMISSION
No. G600 of 1989
FED No. 520
Veterans' Affairs
[1990] FCA 319; 101 ALR 71

COURT

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

CATCHWORDS

Veterans' Affairs - disability pension - operational service - whether in actual combat against the enemy - statutory construction - ordinary meaning of words - ambiguity - need to find facts to deal with issues - onus of proof - evidentiary inferences available in cases arising under welfare and remedial statutes

Words and Phrases - "service in actual combat against the enemy" - "in the opinion of the Commission be treated"

Veterans' Entitlements Act ss 6(1)(n) 13(1), 120

HEARING

SYDNEY
29:8:1990

Counsel and solicitors Mr M. B. Smith instructed

for the applicant by the Legal Aid Commission
of N.S.W.

Counsel and solicitors Mr J.S. Hilton instructed
for the respondent by the Australian
Government Solicitor

ORDER

I set aside the Tribunal's determination.

I remit the applicant's claim to the Tribunal to be reconsidered according to these reasons for judgment.

If a full rehearing is necessary, it should be conducted by a different member of the Tribunal.

The respondent is to pay the applicant's costs.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules

DECISION

This is an application pursuant to section 44 of the Administrative Appeals Tribunal Act 1975 for a review of a decision of the Administrative Appeals Tribunal (the Tribunal). Section 44 gives a party to any proceedings before the Tribunal the right to appeal to the Federal Court of Australia on any question of law arising out of such proceedings.

2. On 8 August 1989 the Tribunal (Senior Member Mr M.D. Allen) affirmed a decision of the Repatriation Commission (the Commission) refusing the grant of a disability pension to Mr Ahrenfeld (the applicant).

3. The applicant seeks orders that the decision of the Tribunal be set aside and that the applicant's claim for a pension be granted. Alternatively, the applicant seeks an order that the matter be remitted to the Tribunal to be determined according to law. I was informed that this pension would be additional to another pension the applicant is already receiving.

4. The applicant's application for this additional pension was made pursuant to section 101 of the Repatriation Act 1920. It is not disputed that, by virtue of section 19 of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986, this application is now to be determined in accordance with the Veterans' Entitlement Act 1986 (the Act). In appropriate cases, pensions are payable under the Act by virtue of section 13(1) which provides:

Where -
(a) . . . .
(b) a veteran has become incapacitated from
. . . . . . . . . a war-caused disease, the
Commonwealth is, subject to the Act, liable to pay -
(c) . . . .
(d) in the case of the incapacity of the
veteran - pension to the veteran, in
accordance with this Act.

5. The term 'war-caused disease' is defined in section 9. No issue was raised on appeal in relation to it. Section 120 deals with the standard of proof required. The relevant parts of this section are as follows:

(1) Where a claim under Part II for a pension
in respect of the incapacity from . . . . . . .
disease of a veteran, relates to the
operational service rendered by the
veteran, the Commission shall determine
that . . . the disease was a war-caused
disease . . . unless it is satisfied, beyond
reasonable doubt, that there is no
sufficient ground for making that determination.
(2) . . . . . . . . . .
(3) In applying subsection (1) . . . the
Commission shall be satisfied, beyond
reasonable doubt, that there is no
sufficient ground for determining -
(a) . . . . . . . . .
(b) that the disease was a war-caused
disease or a defence-caused disease; or
(c) . . . . . . . . .
as the case may be, if the Commission,
after consideration of the whole of the
material before it, is of the opinion that
the material before it does not raise a
reasonable hypothesis connecting the
. . . . . . disease . . . . . . with the
circumstances of the particular service
rendered by the person.
(4) Except in making a determination to which
sub-section (1) or (2) applies, the
Commission shall, in making any
determination or decision in respect of a
matter arising under this Act or the
regulations, including the assessment or
re-assessment of the rate of a pension
granted under Part II or Part IV, decide
the matter to its reasonable satisfaction.

6. Subsection (3) is thus a definitional provision for the last part of subsection (1). The meaning of subsection (4) is not in dispute. It has been held to require the Tribunal to satisfy itself on the civil standard of a balance of probabilities: Repatriation Commission v Smith (MJ) (1987) 74 ALR 537.

7. The applicability of section 120 depends on the categorisation of the applicant's service as 'operational service'. The latter is defined in section 6 of the Act of which the relevant part is (1)(n). This says that:

a person who has rendered continuous full-time
service as a member of the Defence
Force within Australia during World War 2
in such circumstances that that service
should, in the opinion of the Commission,
be treated as service in actual combat
against the enemy shall be taken to have
been rendering operational service while
the person was so rendering that
continuous full-time service.

8. Thus the steps required by the Act are:

1. There must be a claim for a pension on the ground
that the veteran is suffering incapacity from a disease . . .
2. which was caused by or connected with ("related to")
the war in which the veteran served.
3. If the service was operational, ie involved 'actual
combat against the enemy', the necessary causal
connection must be found and the pension granted . . . .
4. Unless the Commission/Tribunal is satisfied beyond
reasonable doubt on the available evidence that
there is no sufficient ground for doing so.
5. The Commission/Tribunal will only be satisfied
beyond reasonable doubt that no sufficient ground exists
for making the causal link if the available evidence
does not raise a reasonable hypothesis of connection.
6. If the service was not 'operational', the
entitlement to a pension depends on the causal link
being affirmatively established on a balance of
probabilities (to the "reasonable satisfaction" of
the Commission/Tribunal).

THE FACTS

9. The applicant enlisted in the RAAF on 22 September 1942 and rendered continuous full-time service until demobilised on 20 March 1946. His entire service was within Australia. The applicant was stationed at a submarine base at Onslow in the Exmouth Gulf area of Western Australia for the period between 7 May and 15 June 1943. During that time that area of the coast was subject to incursions by Japanese aircraft and some bombing took place. At the times of such raids the applicant was performing duty as a radio operator transmitting to headquarters the plots of these aircraft obtained from the radar. The Tribunal was prepared to assume, I think correctly, that from the plots transmitted by the applicant, Australian aircraft were directed to intercept the Japanese intruders.

10. The decision of the Tribunal notes the applicant's evidence, of which he gave some details, that during the first incursion, apparently on 20 May 1943, enemy aircraft flew directly over Onslow where he was stationed and dropped two bombs on the Onslow airstrip (p 4). The Tribunal also noted an extract from what it said was the "official history". This said nothing about Onslow but stated that on 20 May 1943, two Japanese raiders came over the Exmouth area between 10.55 p.m. and 11.50 p.m. and were detected by two radar stations (including the one where the applicant was stationed). The "history" said that at 10.40 p.m. two aircraft were sent to intercept "but they failed to find the enemy aircraft, which dropped a bomb harmlessly into Exmouth Gulf". Perhaps no contact was made because the intercepting aircraft were a little early. If no contact was made, how is it known that only one bomb was dropped and that it fell harmlessly into the Gulf?

11. The report of the applicant's own unit at the time affixes precisely the same time for this raid and gives a little more detail of the enemy aircraft's movements, but says nothing about the bomb at all. The context, if anything, suggests that the aircraft did not actually reach the Gulf. What is the reason for this discrepancy?

12. Although fact-finding is for the Tribunal, not this Court on review, I raise these questions because, despite saying quite correctly that resolving such matters was "of crucial importance to the success or otherwise of the Applicant's claim" (p 2), the Tribunal did not do so. It actually held specifically (p 5) that it was "immaterial . . . . to determine whether Onslow was subjected to bombing or not". This is repeated later (p 10) following a conclusion that it was "not persuaded on the balance of probabilities that the said bombing did occur". The necessary questions of fact required for this conclusion were not addressed, and no findings were made on the factual issues raised.

13. The Tribunal said that the applicant could not remember the second incursion on 21 May 1943, but it again quoted the "official history" as recording the presence of two enemy aircraft over the Gulf. They "dropped nine bombs . . . . . without causing any damage". The records of the applicant's radar unit refer to one raider passing "almost overhead without dropping bombs. The noise of the engines was plainly audible". What about the second plane? What of the bombs?

14. As I read the decision, no finding concerning the events of the second night was made at all. I shall return to the dilemma caused by this approach later.

15. The basis of the applicant's application for a disability pension is an alleged causative link between what he claims to be his combat experiences during the war and the emergence of a schizophrenic condition. There seems to be no dispute, and the Tribunal clearly found, that he has the condition.
THE TRIBUNAL'S FINDINGS AND CONCLUSIONS

16. The Tribunal found that there was a reasonable hypothesis of a causal link between the applicant's war service and his condition. It held, however, that the applicant did not meet the requirements of operational service in that he was not engaged in 'actual combat against the enemy'. The applicable onus was, therefore, the civil one which, the Tribunal found, was not affirmatively discharged.

17. In rejecting the claim that the applicant met the requirement of 'actual combat against the enemy', the Tribunal said:

The use of the words 'actual combat', however,
clearly impose a positive test, that is, the
serviceman must have been engaged in some action to
'combat' the enemy. In other words, he must have
taken some offensive action as opposed to mere
passive defence . . . . . . . The phrase used by the
draftsman is 'actual combat' and thus a
differentiation is made between various acts done
within the sphere of military operations.

18. If it is held that the Tribunal should in law have found the applicant to have been in 'operational service' as defined in section 6(1)(n), the result, on the Tribunal's own reasoning, must be that the applicant will be entitled to the pension claimed. Alternatively, if relevant facts were not found at all, or there was an erroneous posing of the requisite legal tests, the matter should be remitted to the Tribunal for further or re-consideration.
SUBMISSIONS OF THE APPLICANT

19. The applicant's first submission was that the Tribunal incorrectly defined 'actual combat'. It was submitted that the applicant fell within the correct description.

20. A Full Court of this Court (Davies, Wilcox and Foster JJ.) in Repatriation Commission v Thompson (1988) 82 ALR 352 dealt with a similar argument in relation to another provision of the Act (s.36), namely that to receive a service pension, a veteran must have "incurred danger from hostile forces of the enemy" while inter alia serving, during a period of hostilities, "in the field" against the enemy. The Court held in that case that where words are not ambiguous in their meaning or order, or in the context in which they appear, their ordinary dictionary definitions must be applied. The question posed by the Court was: "Are they ordinary English words used in their ordinary sense?"

21. Counsel for the applicant sought to distinguish Thompson on the basis that it dealt with a different section of the Act and a different type of pension. This was an unconvincing and somewhat confusing argument, because it proceeded on the assumption that the words 'actual combat' are ambiguous, and therefore begged the very question to be answered. If this argument was correct, Thompson would require the words not to be understood in their ordinary dictionary meaning but to be exposed to statutory construction. Thus the Court is actually being asked to apply, not distinguish, Thompson.

22. The initial question in this case then is whether the phrase 'actual combat' is ambiguous. If the answer is no, the dictionary definition employed by the Tribunal is correct. If the answer to this question is yes, some statutory interpretation is required. In either event, the fact-finding exercise is crucial.

23. Despite the applicant's assertion that the phrase was ambiguous, no arguments were put forward showing how this was the case. The applicant did submit two matters which touched on this issue - firstly, that the word 'actual' did not change anything but merely lent emphasis to the noun it preceded; second, that several cases indicated that the word 'combat' did not simply refer to something physically aggressive or active.

24. In particular, the applicant referred to the decision of the House of Lords in Adams v Naylor (1946) AC 543. It appears that the Tribunal did not consider this decision although it did cite the earlier decision of the Court of Appeal in the same case (at (1944) KB 750). Presumably the House of Lords decision was not drawn to the Tribunal's attention. The relevant aspect of it was the finding that the laying of mines by the British Army in England itself as part of its war strategy was 'combating the enemy'.

25. The applicant further suggested that the dictionary definitions should not be relied upon because they were derived from the sixteenth century and had, as such, no bearing on contemporary statutory provisions. This was particularly so in the context of war-related legislation because of the enormous technological changes in this area.

26. The second submission of the applicant was the rather strange one that the Tribunal erred in law in failing to consider whether, even if the applicant was not in 'actual combat', he should be treated as such for reasons of fairness and parity between service personnel.
SUBMISSIONS OF THE RESPONDENT

27. The respondent firstly submitted that Thompson should be applied. The respondent asserted that the words in question are not ambiguous, again without further elucidation or authority, and therefore that the dictionary definition of the words is the correct one. As this definition corresponded to the approach adopted by the Tribunal, its decision was correct at law.

28. The word 'combat' is defined as follows in the Oxford Dictionary: 'an encounter or a fight between two persons' or 'a fight between opposing forces'. The Macquarie Dictionary defines it as 'to fight, battle or contend against' or 'a fight between two men or armies'. Apparently the Macquarie's authors think it unlikely that women ever engage in combat.

29. The word 'actual' is defined in the Oxford Dictionary as 'existing in act or fact; real; existing or acting at the time'. The Macquarie Dictionary also includes 'now existing; present'.

30. The respondent secondly submitted that the only question to be asked by the Tribunal was whether the service of the applicant fell within these definitions. This was a matter of fact and degree and not one of law. The relevant criteria were geographical proximity to danger, the ability to inflict harm on the enemy and risk of harm from the enemy.
THE ISSUES

31. The core issues in this appeal are thus:

(1) whether in accordance with section 6(1)(n) of the
Act the applicant was in "actual combat against the enemy";
(2) what approach does the Act require the Commission
(and hence the Tribunal) to adopt in relation to
these provisions; and
(3) whether section 6(1)(n) permits a veteran to be
"treated" as having rendered 'operational service'
even in circumstances where he was not in 'actual combat'.

What does 'actual combat against the enemy' mean?

32. I suspect that if a pedestrian in the street were to be asked whether these words are seriously capable of ambiguity, the answer would be empatically no. However, the Tribunal's reasoning, the dictionary definitions and the context of the phrase in the Act indicate multiple available interpretations and not a little doubt about their meaning here. This judgment will probably further add to this denial of the populist simplicity.

33. The Tribunal's reasoning (p 5) was that 'actual combat' means 'offensive action' as opposed to 'passive defence' and that the applicant's service fell within the latter category. It seems to me, however, that the activities of armed forces personnel do not easily lend themselves to such a distinction. What in fact exists is a host of different activities, each of which contribute to the 'war effort', with varying degrees of proximity to defeating or frustrating the enemy.

34. It is unclear to me what exactly the Tribunal meant by the distinction it drew. If the distinction is between those service people involved in attacks on the enemy and those in defensive positions, section 6(1)(n) becomes otiose, because it refers only to service within Australia during World War 2 and very few such service persons could be said to have been on the attack. There might not have been any, or any who are still alive today. Parliament can hardly be taken to have been so cynical as to make only theoretical or academic provision intended for no one.

35. Alternatively, if the distinction was drawn between those service personnel who themselves were involved in physically aggressive and harmful acts (even if part of a defensive action) and those whose roles were purely supportive and auxiliary, a fine line indeed would need to be drawn. For example, a fighter pilot engaged in intercepting Japanese planes would be in active combat, but the pilot of the refuelling aircraft or the crew on the aircraft carrier which the fighter pilot was using as a home and away base would not. While it is obvious that the stenographer at headquarters is not engaged in active combat on this definition, into which category does the strategist, the ground repairer or the navigator fall? Indeed, what about the General at headquarters or the Admiral of the fleet in overall command? Are they not permitted to wear combat medals? I suspect that they would be most upset to contemplate that they were not.

36. Certainly to say that the person must in fact be fighting, bombing or shooting the enemy seems to narrow the category unnecessarily. Particularly in modern warfare, active fighting (in the physical sense) has been replaced by chemical warfare, missile launching and sophisticated weaponry. Pressing buttons from afar is the order of the day. Long gone are the days of man to man or horse to horse sword or bayonet fighting and pistol shooting, although planting mines on land or at sea has no doubt carried on. Today we are led to believe, I hope metaphorically, that war can be commenced by or from a lever in the Oval Office. Not long ago, the Kremlin was said to be another comparatively safe base from which a most aggressive war could apparently have been fought. Presumably the Lodge is still a pacifist haven.

37. It could thus be argued that in the context of war-related legislation such as this Act, the phrase is ambiguous. In Thompson, the Full Court distinguished between the word 'danger' (which their Honours said had an ordinary meaning) and the words 'in the field'. The latter, their Honours said, would require judicial interpretation. The word 'combat' more closely approximates the words 'in the field' in the sense that the meaning of both is related to a specific geographical and qualitative context relating to the actuality of fighting the war. The word 'danger', in contrast, does not have a different basic meaning in the context of war from that which it possesses in any other context.

38. Even the dictionaries are not entirely clear about the words' meaning. Several alternatives are offered for both words. If 'combat' may be an encounter, a fight or to oppose vigorously, it is an open question what means are employed. The word 'actual', defined as meaning that which is either 'real or present', adds nothing to the resolution of this conundrum.

39. Even if the analytic tool of 'ordinary meaning', as prescribed by the Full Court, is used, the issue is confronted with problems. Does the word 'combat' in the dictionary sense of 'fighting' refer to physical fighting, aggressive or defensive fighting or to all of these? Assuming the phrase is ambiguous and, according to Thompson, judicial interpretation is permitted, how should this be done? No doubt the Court may at least look both at the policy behind the legislation and case law.

40. The House of Lords in Adams v Naylor decided that the laying of mines on home turf during wartime amounted to 'combat'. In another English decision (by a single judge), it was held that 'combat' meant active fighting: Re Kemp (1945) 1 All ER 571. The latter decision must be seen, however, in light of the fact that those who fell within the description were deprived of their common law and statutory rights to compensation.

41. Some submissions were made in relation to the policy behind the Act, but the material upon which these submissions were based was not particularly helpful. The respondent submitted that the intention of the legislature was that in order to be entitled to a disability pension, there must be some personal engagement in combat. The problem with this submission is that as far as service personnel stationed overseas are concerned, no requirement as to combat exists. Simply the fact of being overseas qualifies them as being in 'operational service', and hence gives them access to the more generous reverse onus of proof, even if they were driving cars for officers or cleaning or painting a base far from a theatre of war.

42. The Explanatory Memorandum to the Veterans' Entitlements Bill relied on by the applicant also does not adequately explain section 6. It states that this provision specifies the circumstances in which a person is to be taken to have rendered operational service, defined to include:

A person rendering service in Australia during world
war 2 and who was injured or who contracted a
disease as a result of enemy action shall also be
taken to have been rendering operational service.

43. If this is not to be interpreted as mere political puffery in the light of the fact that there was very little actual incursion by the Japanese into Australian territory, it leaves open what type of 'enemy action' was being intended. Surely bombing or even attempted bombing of the base where the person was serving ought to be regarded as 'enemy action'.

44. The Second Reading Speech on the Bill takes the matter no further.

45. On a policy basis, to confine 'combat' to physical, aggressive fighting seems to me to restrict the section unduly. Certainly neither the cases nor the legislative policy appear to draw a distinction between offensive and defensive action, or between the roles of the various people whose duties are directly related to making a confrontation with the enemy successful.

46. For the Tribunal to employ a definition based on the distinction between 'offensive action' and 'passive defence' seems to me clearly to involve an error of law. However, the Act does draw a distinction between those service personnel in actual combat and those who are not. Therefore, a definition of 'actual combat' which is so wide as to include all servicemen and women is also incorrect.

47. In my view, the correct definition of 'actual combat against the enemy' in the context of this Act is 'integral participation in or in activity directly intended for an encounter with the enemy'. In determining whether the Tribunal has correctly applied this definition, it is necessary to examine the substance of the Tribunal's reasoning. It is inadmissible to find that a Tribunal made an error of law on the basis of isolated words and phrases. In Thompson, the Full Court insisted that what is necessary is 'a reading of the Tribunal's reasons as a whole' (at 35).

48. Here the Tribunal asked itself in substance whether Mr Ahrenfeld's service was a sufficient part of the military actions against the Japanese as to entitle its treatment as "service in actual combat against the enemy". As I think that this was the correct question to ask, I cannot find that a negative answer to the question on the facts manifested an error of law as far as the application of the phrase 'actual combat' is concerned, unless the Tribunal misconstrued 'actual combat'. Because this appeal is limited to questions of law, it is therefore only possible for me to reverse the conclusion reached by the Tribunal in applying the definition to the facts if the application of the correct meaning of 'actual combat' to the facts found would lead to the opposite conclusion.

49. This legislation provides very important social and welfare rights for persons such as the applicant. It reflects a will and determination by Parliament, and the decent compassionate society it represents, to carry out as generously as possible having regard to the nation's other pressures and priorities from time to time, an obligation to care for people who sacrificed their own priorities in the cause of protecting and saving the country and its people when they were under serious threat. Factual conclusions adverse to the carrying out of these acts of appreciation and gratitude should not be drawn lightly or on the basis of inadequate evidence unable to be fully tested because of the inevitable consequences of the lapse of time. The policy of the legislation and the public interest and will seem to me to demand that every reasonably available inference should be drawn in favour of the veteran. For a discussion on some of the applicable principles in this area, see Reg. v Home Secretary ex parte Khera and Khawaja [1983] UKHL 8; (1984) 1 AC 74 esp per Lord Scarman at 112-114 with whom Lord Fraser expressly at 97, and others of their Lordships impliedly, agreed.

50. By analogy, this approach is also supported by well known authority on interpretation of a welfare and remedial statute that "it should be construed so as to give the fullest relief which the fair meaning of its language will allow": Bull v Attorney General (NSW) [1913] HCA 60; (1913) 17 CLR 370 per Isaacs J at 384. See also in relation to this very Act or its predecessor Repatriation Commission v Hayes [1982] FCA 107; (1982) 43 ALR 216 and Starcevich v Repatriation Commission (1987) 76 ALR 449 per Jenkinson J at 454.

51. With every respect, it seems to me that a serviceman serving at a base apparently deliberately targeted with a view to being directly hit by the enemy, while he was performing duty designed to avoid or prevent that result, was manifestly involved or participating directly in encountering the enemy. A radio operator transmitting flight movements in such conditions was no doubt doing so to combat the enemy's tactics, activities and intentions. The question is whether this factual finding should have been made. As I earlier pointed out, the Tribunal came to no conclusion on this critical issue, concluding that one lot of bombing did not occur (and deciding this on the balance of probabilities with the effective onus on the applicant), making no finding on the second night's activities, and determining that such findings were immaterial in any event.

52. The reason given by the Tribunal for the conclusion of irrelevance was that on the medical evidence, "it was not the fact of the events occurring to the applicant but that the events did occur and that they occurred to people with whom he had an involvement (p 10)". In other words, it was the reality of the applicant's perception of what occurred, not whether they in fact involved him, that was the test.

53. Even if this were so, the first question to be determined is whether the events relied on did occur in fact. The evidence that they did came from the applicant. The evidence that they did not was the so-called official records which, as I have pointed out earlier, ask more questions than they answer.

54. I agree with the Tribunal that it is essential to determine what the applicant did and to what he was subjected in his service to enable determination of whether he was in 'actual combat . . . . . '. I disagree with the view that it is "immaterial as to whether (the bombing) occurred or not" (p 10). In my opinion, this is a clear error of law. So was the opinion that the only matter of importance was the applicant's perception of what happened. As I read the decision and the evidence on which it was based, whether the applicant's schizophrenia flowed from actual or perceived occurrences are separate matters. Both may occur and it is only necessary to come to the second if the first is not able to be established. The Tribunal's conclusion (p 13) that the medical evidence "raised a reasonable hypothesis connecting the applicant's schizophrenia with the circumstances of the particular service rendered by the applicant" required a determination of what that "particular service" was. If it involved 'actual combat against the enemy', the further finding (p 13) that the "hypothesis is based upon facts which have not been negatived beyond reasonable doubt" would require a determination of this claim in favour of the applicant.

55. Instead the Tribunal found that there was "insufficient evidence as opposed to hypothetical considerations" (p 13) to permit an affirmative finding on the balance of probabilities that there was a causal link between the applicant's schizophrenia and his war service. Thus despite the reasonableness of the medical hypothesis of a link which was not negatived, and despite the findings that the applicant suffered stress and other harmful consequences in his service and that the stress and other matters can cause incapacitating schizophrenia or aggravate pre-existing schizophrenia so as to make it incapacitating (p 12), a finding was made that there was no connection between the service and the condition. If this conclusion is sensibly open at all, in my view, it is at best not able to be drawn without a determination as to what the service was. In this instance, the bombing is not the only issue - although it is definitely one. The proximity of the planes, the risks and threats of bombing and of possible death or maiming, the apprehension of further raids with the possibility of increased accuracy due to the success of reconnoitring by the same or other planes, fear, loneliness, remoteness and many other matters, would be essential findings before the second phase conclusion can be drawn. Some of them also bear on the question of whether the applicant's service was 'operational'.

56. A difficult issue then arises as to whether this factual exercise should now be carried out by the Tribunal or by the Court. For the Court to undertake it would involve a conclusion, not only that the Tribunal's failure to consider these matters manifested one or more errors of law, but that if it had considered them on the correct principles, it would have been bound to determine the facts favourably to the applicant. Subject to issues of credit and the effect of the further fact-finding on the medical evidence, I am quite clear in my own mind what findings should have been made, and certainly there was no contrary evidence to much of what the applicant alleged. However, I do not think that the law permits me to usurp and assume the role of the body allocated by Parliament to find facts. The absence, paucity or inadequacy of official records on the subject should not be held against the applicant, but my reservations concerning the possible effect of credit and medical issues which may need further examination merely emphasise the conclusion I have reached.
What is the correct legal approach to these difficult provisions?

57. As earlier shown, the Act provides that a diseased incapacitated veteran who served in 'actual combat against the enemy' is entitled to a finding that the disease resulted from this service unless the Commission/Tribunal finds that the material before it does not raise a reasonable hypothesis of a causal link between the two. If the veteran was not engaged in 'actual combat . . . . . . ', an affirmative determination of the link must be made on the balance of probabilities before the pension entitlement can be found.

58. I have earlier shown that it was not disputed that the applicant was suffering incapacity from the disease of schizophrenia. The Tribunal then proceeded as follows:

1. There was a reasonable hypothesis of a causal link
between his disease and his service.
2. If he was in 'actual combat . . . . . . . . ', that
hypothesis was not negatived beyond reasonable doubt.
3. The applicant did not serve in 'actual combat . . . . . '.
4. Therefore the only question was whether the causal link
was affirmatively established on the balance of probabilities.
5. This question was answered negatively.

59. Thus the Tribunal's approach to the Act was in effect to ask itself these questions in order:

1. Was there a reasonable hypothesis that the
applicant's schizophrenia was caused or aggravated
by his war service or elements of it?
2. If yes, did this war service qualify as 'operational
service' - ie was his schizophrenia caused or
aggravated by 'actual combat against the enemy'?
3. If no, was it affirmatively satisfied on the balance
of probabilities that the schizophrenia was caused
by the applicant's war service?

60. The Tribunal answered the first question yes but the second and third questions no. The Tribunal said that the reasonable medical hypothesis had not been negatived beyond reasonable doubt but concluded that the material before it, including the reasonable medical hypothesis, was not sufficient to establish affirmatively on a balance of probabilities that there was a causal connection between the schizophrenia and his (non- combat) war service.

61. Although not necessary for its decision, no doubt the Tribunal made the "reasonable hypothesis" finding in order to enable this Court on review to substitute a finding in favour of the applicant if the second finding per se manifested an error of law. However, this seems to have caused some confusion in its construction of the statute, in its fact-finding obligations and in its conclusions. I am of the opinion that in substance the Tribunal posed the correct legal questions but failed to address all the issues of fact needed to determine the primary matter before it as to whether the applicant's service was operational. It also failed to address the necessary questions of fact for both the first and second stage tasks which the Act sets.
What does 'in the opinion of the Commission be treated' in section 6(1)(n) mean?

62. The issue here is whether the Tribunal adopted a correct approach in simply asking itself whether the applicant's service amounted to actual combat. It was submitted that the Tribunal, once it answered this question in the negative, should have asked a further question, namely, whether it should, despite this finding, "treat" him as having been in actual combat? The applicant suggested that the relevant criteria were that of fairness and similarity to service that is classified as operational.

63. In my opinion, if that is so, it must be the legislature not the judiciary that should so pronounce. On a commonsense reading, the phrase 'should, in the opinion of the Commission be treated as service in actual combat' does not require the Commission in the first instance, and the Tribunal on review, to do more than ask itself whether the service fell within the scope of the concept of actual combat. As the Tribunal did confine itself to this question, this submission fails.
CONCLUSIONS

64. This is an unfortunate and borderline case. Parliament has passed generous welfare legislation designed to enable pensions to be obtainable by every person who might reasonably be said to have suffered in health from the effects of service in the defence of the nation and its people. This applicant, who would apparently have been successful in his claim before now had he sustained precisely the same consequences from precisely the same activities if stationed in Papua New Guinea, New Zealand, East Timor, or any other place close to Australia, let alone on far distant duty, has apparently been treated as having fallen just outside the limits of the legislative guidelines because his activities were on the Australian mainland.

65. In comparison with the numbers of ex-servicemen and women who have received and continue to receive the relevant pensions under the Act's terms, there must be very few in Mr Ahrenfeld's position. It is scarcely conceivable that Parliament could have intended the consequences brought about by the Tribunal's interpretation. I think that it did not. In my view, the applicant was engaged in 'operational service' as defined in section 6(1)(n), if the applicant's account of his service is accepted on the principles appropriate to such evidence. It is for the Tribunal to make that finding of fact. If the applicant is found not to have been in operational service, it is still necessary to determine what was the applicant's war service in order for the decision to be made on the balance of probabilities as to whether that service caused or aggravated his schizophrenia. This has not yet been done. Perhaps the matter might even be looked at again administratively with a view to avoiding, if possible, further stress to an exserviceman clearly suffering from a sad and disabling condition of which there is ample evidence.

66. I set aside the Tribunal's determination and remit the applicant's claim for the pension to be re-considered according to these reasons for judgment. I am inclined to think that a full re-hearing will be necessary. If so, it should be conducted by a different member of the Tribunal. The respondent is to pay the applicant's costs.