Repatriation Commission v Thomas James Hawkins [1993] FCA 479; (1993) 117 ALR 225 (1993) 18 Aar 93 (1993) 30 ALD 51 (22 September 1993)

FEDERAL COURT OF AUSTRALIA

REPATRIATION COMMISSION v. THOMAS JAMES HAWKINS
No. NG353 of 1993
FED No. 662
Number of pages - 9
Repatriation
[1993] FCA 479; (1993) 117 ALR 225
(1993) 18 AAR 93
(1993) 30 ALD 51

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
BURCHETT, EINFELD AND BEAZLEY JJ

CATCHWORDS

Repatriation - whether a smoking habit caused by the tension of impending operational service was not causally related to the operational service, but only to the anticipation of it - whether the apprehension which led to smoking should be seen as an inevitable concomitant of the operational service - whether HMAS Sydney, when it was sent to Vung Tau in South Vietnam with supplies and reinforcements, was "allotted for duty in an operational area" within ss. 5 and 6 of the Veterans' Entitlements Act 1986 - meaning of "allotted for duty" - whether the operational service of a person attached to HMAS Sydney was extended beyond the time she was in Vietnamese waters so as to commence when she left the last port in Australia and conclude only when she returned - whether the Act should have a beneficial construction - effect of Explanatory Notes - whether the deemed allotment for duty resulting from an instrument in writing made by the Minister for Defence under s. 5(12)(b) was capable of the same extension under s. 6(5) as an actual allotment for duty - discussion of consistency and fairness as indicating a positive answer - effect on deemed allotment for duty - whether the Tribunal's findings of fact required, in the light of the true view of the law, a determination in favour of the veteran so that it was unnecessary to refer the matter back to the Tribunal.

Veterans' Entitlements Act 1986, ss. 5 and 6

Repatriation Commission v. Whetton [1991] FCA 472; (1991) 31 FCR 513

Busby v. Chief Manager, Human Resources Department, Australian Telecommunications Commission (1988) 20 FCR 463

Secretary, Department of Social Security v. Cooper (1990) 97 ALR 364

Starcevich v. Repatriation Commission (1987) 18 FCR 221

Repatriation Commission v. Commission v. Doessel (1990) 95 ALR 704

Repatriation Commission v. Davis (1990) 94 ALR 621

Repatriation Commission v. Tuite [1993] FCA 39; (1993) 39 FCR 540

HEARING

SYDNEY, 17 September 1993
22:9:1993

Counsel for the Appellant: Mr P.J Hanks

Solicitor for the Appellant: Australian Government

Solicitor

Counsel for the Respondent: Mr M. Smith

Solicitors for the Respondent: Messrs Raymond L. Whitten
and Co.

ORDER

The Court orders that:

1. The order of the primary judge be varied by substituting, for so
much of it as orders that the matter be remitted to the
Administrative Appeals Tribunal to be heard and decided again
with or without the hearing of evidence, an order that it be
determined that the claim of Thomas James Hawkins for a pension
in respect of incapacity from ischaemic heart disease be accepted
and that the matter be remitted to the Repatriation Commission
for appropriate action in respect of that determination.
2. That the appeal be otherwise dismissed.
3. That the Repatriation Commission pay the costs of the respondent
Thomas James Hawkins.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

BURCHETT, EINFELD AND BEAZLEY JJ This appeal, which involves a claim by the respondent to a pension in respect of ischaemic heart disease, on the basis that it is a war-caused disease, raises two fairly short points.

2. The respondent was a chief petty officer in the navy in 1969, serving on H.M.A.S. Sydney, which was twice sent to South Vietnam with supplies and reinforcements for the Australian contingent there. On the first occasion, the more relevant for present purposes, the vessel arrived in Vung Tau harbour on 15 February 1969. The voyage entailed some risks. The Vietnam War was in progress, and a naval ship such as the H.M.A.S. Sydney was plainly a tempting target for attack. While she was in harbour, and for three days before her arrival and after her departure, the ship was at defence stations, with her guns manned and loaded. While at anchor, she was constantly circled by divers, and explosive charges were set off for the purpose of deterrence of would-be saboteurs. Apart from the danger of enemy frogmen with limpet mines, it was considered there was a risk of rocket or mortar attack on the vessel.

3. When the respondent was informed, at the outset of the voyage, that his ship was bound for Vung Tau, he was not unnaturally concerned for his own safety and for the future of his family should he be killed or injured. He was then aged 25, having been in the navy for the previous nine years without succumbing to those influences which may well lead, in such an environment, to the development of the habit of smoking. However, during the passage between Sydney and Fremantle, the last port of call before Vung Tau, the respondent, as the Administrative Appeals Tribunal has found, "was persuaded to have a cigarette and was told it would calm him down". The Tribunal's findings proceed:

"He found that a cigarette and a beer did relax him and so
each time there was a beer ration he also had a cigarette.
By the end of the first week he had purchased his first
packet of cigarettes and, by the time the voyage was over,
he was to use his word 'hooked'."

There was clear evidence to support this finding. Its significance for the respondent's claim lay in the Repatriation Commission's acceptance that the respondent's "ischaemic heart disease is causally related to his smoking habit".

4. Because of that concession, a crucial question in the case became whether the smoking habit itself, in the language of s. 9(1)(b) of the Veterans' Entitlements Act 1986 "arose out of, or was attributable to, any eligible war service rendered by the veteran".

5. The reasons of the Tribunal show that it "was conceded by (the Repatriation Commission) that the (respondent) did have operational service on those dates (i.e. when the vessel was in Vung Tau Harbour)". Since s. 7(1)(a) of the Veterans' Entitlements Act 1986 provides: "(A) person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service", this was sufficient for the success of the respondent's case, provided the smoking habit "arose out of, or was attributable to" the respondent's involvement in his ship's operations at Vung Tau. However, the Tribunal disposed of this question as follows:

"If the question is then asked, namely 'what caused the
Applicant to take up smoking?', then applying common sense
to the facts of this case and applying a value judgment
involving ordinary notions of language and common sense ...
the answer must be that the Applicant started to smoke
because of apprehension as to his forthcoming operational
service.
As pointed out by the High Court in Repatriation Commission
v. Law [1981] HCA 57; 147 CLR 635, the connection with war service is not
confined to a temporal one, all that is required is that
the connection be a causal one (see 147 CLR at page 649).
In this case the applicant had, throughout some nine years
of naval service, been able to resist the oft cited reasons
quoted in this Tribunal for the commencement of smoking
(for example, peer pressure, the ready availability of
cigarettes and, in the case of the Navy at sea, duty free
cigarettes). That on his way to operational service,
because of apprehension regarding that service, he
succumbed to the suggestion of his comrades and commenced
to smoke in order to relieve tension is entirely
understandable. However, the applicant had not yet
undertaken operational service. The cause of his starting
to smoke was nothing connected with operational service as
opposed to anticipation of that service."

6. On appeal, Davies J rejected this approach. His Honour pointed out that in workers' compensation cases events which occurred prior to the commencement of work, as well as events subsequent to the cessation of work, have been regarded as causally connected with the employment.

7. In our respectful opinion Davies J was right. Where the question is whether a disease is causally related to an event, a demonstrated relationship with matters inseparably bound up with that event, being inevitable concomitants of it, will in general suffice: cf. Repatriation Commission v. Tuite [1993] FCA 39; (1993) 39 FCR 540 at 545. Thus, the negligence which causes an accident may also cause the nervous shock suffered by a mother upon being told that her daughter has been killed in the accident: State Rail Authority of New South Wales v. Sharp (1981) 1 NSWLR 240 (we are speaking of the position established in New South Wales by statute, the different common law position being a consequence of a view about the duty of care, not about causation). It is, of course, theoretically possible that the mother might be told her child had been killed in the accident when she had in fact escaped (Latham CJ actually postulated something of the sort in Chester v. The Council of the Municipality of Waverley [1939] HCA 25; (1939) 62 CLR 1 at 8). But this possibility does not lead the Court to reject the common sense causal connection between her nervous shock and an actual death of her daughter in an accident. Similarly, it seems to us the possibility that the seaman might have developed the habit of smoking as a result of being ordered to Vietnam without ever arriving there (as for instance if the order had been countermanded during the voyage) is not relevant. The fact is he did go there, and he could not go without first receiving the order. The order, with its associated preparation and apprehension, formed an inseparable part of a total series of events, centred upon the presence of the ship at Vung Tau, as a result of which the habit of smoking was contracted. The distinction drawn by the Tribunal is lacking in reality. No one doubts that a disease caused by the recollection of the terrors of combat would be war-caused; it would be a bizarre conclusion that attributability should depend on whether the sufferer is looking back or looking forward at the very same occasion. Counsel for the respondent illustrated the point neatly when he suggested that the hiring of a car to take a bride to the church is causally related to her wedding, although it was arranged in anticipation, and the wedding might at any time have been called off.

8. If it were proper to take a different view, the appellant would face a further hurdle, and this is the second point raised by the appeal. Provision is made by the Veterans' Entitlements Act 1986, as amended by the Veterans' Affairs Legislation Amendment Act 1990 (No. 2 of 1991) s. 38, and by the Veterans' Affairs Legislation Amendment Act 1992, s.88 and Part 5 of the Schedule, for the fixing of the period of the operational service of certain persons, among whom the respondent claims to be included. The relevant provisions are the following:

"6.(1) For the purposes of this Act -
. . .
(e) a person who has, as a member of the Defence Force,
rendered continuous full-time service outside Australia -
(i) as a member of a unit of the Defence Force that
was allotted for duty; or
(ii) as a person who was allotted for duty,
in an operational area ... shall be taken to have
been rendering operational service during the period
in which the person or the unit was so allotted for duty;
. . .
(4) In this Act, a reference to the operational service
of a person in an operational area shall be read as a
reference to the operational service that the person is to
be taken to have rendered by virtue of paragraph (1)(e) or
(g), as the case requires.
(5) For the purposes of this Act, the operational service
of a person in an operational area, being the operational
service of the person described in paragraph (1)(e) -
(a) shall be taken to have commenced -
(i) if the person was in Australia on the day as
from which the person was allotted for duty in
that area - on the day on which the person
departed from the last port of call in
Australia for that service; or
(ii) if the person was outside Australia on the day
as from which the person was so allotted for
duty - on the day as from which the person was
so allotted for duty; and
(b) shall be taken to have ended at the expiration of -
(i) if the person was allotted for duty from an
operational area to another area outside
Australia (not being an operational area) - on
the day on which the person arrived at that
other area or on the day as from which the
person was allotted to that other area at a
time when the person was in that other area; or
(ii) in any other case - on the day on which the
person arrived at the first port of call in
Australia on returning from operational service."

The references to allotment for duty in these provisions must be read in the light of s. 5(12), as that subsection stood at the time relevant for the purposes of this appeal, that is, by virtue of s. 93(2) of the Veterans' Affairs Legislation Amendment Act 1990, prior to the amendments to s. 5(12) effected by s. 37 of that Act. Section 5(12) must accordingly be read as follows:

"In this Act, a reference to a person, or a unit of the
Defence Force, that was allotted for duty in an operational
area shall be read as a reference to a person, or unit of
the Defence Force -
(a) that was so allotted for duty in accordance with
administrative arrangements applicable in the part of the
Defence Force in which the person was serving, or of which
that unit formed a part, as the case may be; or
(b) that is, by an instrument in writing signed by the
Minister for Defence, deemed to have been allotted for duty
in an area described in item 4 or 8 in Schedule 2 during
the period specified in that item."

Item 8 includes an area of waters, extending a distance of 161 kilometres from the shore of Vietnam, through which the Sydney had to pass to reach Vung Tau.

9. An instrument in writing was signed by the then Minister for Defence on 22 May 1986, pursuant to this provision, specifically deeming

"each unit of the Defence Force specified in Part 1 of the
Schedule hereto (Part 1 of the Schedule listed a number of
naval vessels including "HMAS SYDNEY") to have been
allotted for duty in the area comprising the operational
areas specified at items 4 and 8 of Schedule 2 to that Act
during each period between 31 July 1962 and 11 January 1973
(both dates inclusive) during which that unit was present
in that area".

10. Prima facie, there are two separate bases on which it could be thought that the respondent's operational service included the whole of the voyage from Australia, and not merely the comparatively short time spent approaching Vung Tau, in the harbour, and until HMAS Sydney had left Vietnamese waters. The order which dispatched the ship to Vietnam, bearing reinforcements and supplies to the war zone, could be regarded as an allotment for duty; or the instrument signed by the then Minister for Defence could, if necessary, be called in aid. However, the appellant submitted that neither of these availed the respondent.

11. As regards the respondent's claim to have been a member of a unit that was allotted for duty in an operational area, within s. 6(1)(e), the appellant submitted that para. (e) contemplates an ongoing assignment in the operational area; counsel, as we understood him, was suggesting that for a unit of the defence force to be allotted for duty in an operational area, it would have to come under the command structure in that area as a unit available to participate in the activities of the armed forces there. But the Act does not require a claimant to have rendered continuous full-time service in an operational area for any particular period, nor is it necessary that an allotment for duty was for any particular period. The nature of the duties contemplated by the legislature is left at large, and it is difficult to believe that this was not deliberate. Service may take many forms, and the discrimen selected by the Act relates to the area in which it was performed, not to the nature of the service rendered. What must have been done in the area is sufficiently indicated by the words "as a member of the Defence Force", and by the words "rendered continuous full-time service".

12. The expression "that was allotted for duty in an operational area" is expanded by s. 5(12)(a) to mean "allotted for duty in accordance with administrative arrangements applicable in the part of the Defence Force in which the person was serving, or of which that unit formed a part". Whatever the precise meaning of this may be, it clearly relates to the administration of the part of the Defence Force which includes the unit in question, and there is no hint that this administration must itself be within the operational area. If the administrative arrangements applicable in the Royal Australian Navy permitted the allotment of HMAS Sydney for the duty of bringing reinforcements and supplies into Vung Tau, there is nothing in s. 5(12) to suggest that this was not sufficient.

13. Counsel contended that the expression "allotted for duty" had a special meaning, informed by the history of the legislation. But the source of the expression in s. 5(12) and in s. 6(1)(e) was looked into by a Full Court in Repatriation Commission v. Doessel (1990) 95 ALR 704 and by French J in Repatriation Commission v. Davis (1990) 94 ALR 621, where the legislative history was examined. Each of these decisions denied that the expression "allotted for duty" should be given, because of its history or for any other reason, the special and ill-defined meaning suggested by the appellant. After a fairly complex discussion of the issues, the Full Court, in the former case (at 710), expressed the terse conclusion: "(W)e read 'allotted for duty' as meaning simply 'posted' or 'assigned' - its ordinary sense." In our respectful opinion, as a simple matter of English expression, that view is quite inescapable. Nothing in the context, and nothing fairly to be drawn from the legislative history, requires any gloss to be placed upon the words.

14. The appellant then argues that, even so, the provision in s. 6(5) extending the period of operational service so that, in a case where a person was allotted for duty in an operational area at a time when the person was in Australia, the period commences on the day of departure from the last port of call in Australia, is not applicable to the present circumstances. It is pointed out that s. 6(5) refers to "the day as from which the person was allotted for duty"; it does not refer to the day as from which the unit to which a person was attached was allotted for duty. However, no sensible basis on which the legislature may have distinguished between the two situations was suggested. It is plain that s. 6(1)(e) is intended to equate, so far as an individual is concerned, a personal allotment for duty with an allotment for duty of a unit of which the person was a member. Each of these situations is expressed as having the result that the person "shall be taken to have been rendering operational service during the period in which the person or the unit was so allotted for duty". Section 6(4) picks up this provision as furnishing a definition of "the operational service of a person in an operational area". It is that expression which then appears at the commencement of s. 6(5), and to which a period is given by the subsection. In this context, when s. 6(5) refers to a person being allotted for duty in an area, it is most naturally understood as including both a personal allotment and an allotment by virtue of a unit of which the person is a member being allotted for duty in that area.

15. If there is any doubt about this construction of s. 6(5) - and we do not think there is - it should be resolved in favour of the respondent. This is beneficial legislation, and s. 6(5) is plainly a provision intended to operate by way of extension of the benefits conferred by the Act. In Starcevich v. Repatriation Commission (1987) 18 FCR 221 at 225 Fox J (with whom Jenkinson J seems have been in agreement) said (at 225):

"It is hardly necessary to say so, but the legislation should
in my view be given a reasonably liberal interpretation; it
has often been pointed out that it is a matter of great
public importance to provide adequately for incapacitated
ex-servicemen."

See also the well known judgment of Aickin J (with whom Gibbs CJ, Stephen and Mason JJ agreed) in Repatriation Commission v. Law [1981] HCA 57; (1981) 147 CLR 635 at 648, 649 and 652. In Repatriation Commission v. Hayes [1982] FCA 107; (1982) 43 ALR 216 at 219 Keely J was concerned with the construction of the Repatriation Act 1920. He said:

"(T)he Act is a remedial Act and 'should be construed so as
to give the fullest relief which the fair meaning of its
language will allow': per Isaacs J in Bull v. Attorney-General
(NSW) [1913] HCA 60; (1913) 17 CLR 370 at 384. However, that
judgment made it clear in the preceding words that it did
not mean 'that the true signification of the provision
should be strained or exceeded'."

His Honour went on to refer to a statement cited by Rich J in Holmes v. Permanent Trustee Co of NSW Ltd [1932] HCA 1; (1932) 47 CLR 113 at 119 suggesting a construction "to give the most complete remedy which the phraseology will permit". In Secretary, Department of Social Security v. Cooper (1990) 97 ALR 364 at 370, the joint judgment of Morling, Burchett and Lee JJ, with reference to a provision of the Social Security Act 1947, stated:

"In construing it, importance should be attached to the fact
that it operates by way of extension of the benefits
conferred by beneficial legislation. It should be
construed generously ... . ... To construe the words of
the sub-section in a narrowly technical spirit would be
quite perversely contrary to its evident purpose. It is
intended to overcome technicality and to have as broad an
operation as its language will allow."

16. Furthermore, the Explanatory Notes circulated by the authority of the Minister, when amendments involving s. 5(12) and s. 6 were before the Parliament, leave no doubt that the intention was to treat alike persons allotted for duty in an operational area and persons whose units were allotted for duty in an operational area. The Explanatory Notes say of s. 5(12) that it will "define references in the Act to persons or units of the Defence Force allotted for duty in an operational area". The notes then continue:

"The purpose of the amendment is to extend the range of
persons or units given Repatriation coverage beyond that
given by the Repatriation (Special Overseas Service) Act
1962. It will give legislative effect to the announcement
by the Minister for Defence in the Parliament on 12
November 1985 that all Australian Defence Force personnel
who served on continuous full-time service in the special
area of Vietnam's land and waters between 31 July 1962 and
11 January 1973 would be deemed, by administrative action
to have been allotted for service for the purpose of the
Veterans' Entitlements Act."

This plainly treats in the same way persons individually allotted for duty and persons whose units were allotted for duty. The Explanatory Notes then go on to refer to the provision in s. 6 for commencement and cessation of periods of operational service in the following terms:

"It will specify the method for determining the commencement
and cessation of periods of operational service for those
persons who were allotted or who are to be deemed to have
been allotted for duty in an operational area."

It will be observed that the expression "those persons" is unlimited, and does not leave out so many of them - perhaps the majority - as were taken to have been rendering operational service because they were members of units that had been allotted for duty in an operational area.

17. Accordingly, s. 6(5) operates to fix the period of the respondent's operational service by reference to the day on which he departed from the last port of call in Australia for that service, and by reference to the day on which he arrived at the first port of call in Australia on returning from that service. This conclusion, of course, would in itself have been sufficient to justify Davies J in allowing the appeal from the Tribunal.

18. It is strictly unnecessary to consider the further question whether, if the respondent's unit of the Defence Force, that is, HMAS Sydney, had not been allotted for duty in an operational area, the instrument in writing under s. 5(12) would still have produced the same result. But as the question was fully argued and raises an important question of construction, we think it should be answered. In our opinion, the provision for a deemed allotment for duty should be construed as contemplating that a deemed allotment should have the same effect as an actual allotment. It can readily be so construed if the words in s. 5(12)(b), "deemed to have been allotted for duty", are given full weight. The person or unit is not simply deemed to be on duty during the period mentioned in the instrument in writing, but "to have been allotted for duty", which necessarily involves some prior step by which the allotment for duty took place. The only such prior step which naturally suggests itself is the order to go to the operational area. Section 6(5) can then be applied to that order. Unless understood in this way, the deeming provision falls singularly short of the other provisions. This is a very unlikely intention. In our opinion, the construction we have suggested is required by considerations of consistency and fairness, and should be adopted: cf. Busby v. Chief Manager, Human Resources Department, Australian Telecommunications Commission (1988) 20 FCR 463 at 468. But if the imprecision of the drafting be thought to be merely ambiguous, the Explanatory Notes referred to above make it perfectly clear that the Parliament in fact intended the provision "for determining the commencement and cessation of periods of operational service" to apply, not only to those persons who were allotted for duty in an operational area, but also to those persons "who are deemed to have been allotted for duty" there.

19. Accordingly, even if the conclusion that the respondent was a person who had been allotted for duty in an operational area were wrong, he would have precisely the same entitlement under the deeming provision of s. 5(12).

20. One point remains. Davies J referred the matter back to the Tribunal for decision in accordance with law. At the hearing of the appeal, the question was raised whether dismissal of the appeal would not involve this Court holding that the respondent was entitled to succeed, on the Tribunal's findings of fact, as a matter of law. Counsel for the respondent indicated that, if necessary, he would seek to file a cross-appeal. After some discussion, counsel for the appellant obtained instructions to concede that if the Court came to the view to which we have come upon the first question discussed in these reasons, there would be no point in remitting the matter, which could be decided by the Court itself. In our view that concession was correctly made. In Repatriation Commission v. Whetton [1991] FCA 472; (1991) 31 FCR 513 at 522, this Court held there was

"simply no foothold to be found in the evidence for a
positive finding by the Tribunal that it is of the opinion
that the material before it does not raise a reasonable
hypothesis connecting the death of the deceased with the
circumstances of his particular service. Since it would
not be open to the Tribunal to make such a finding, if the
matter were remitted, and since, as in Repatriation
Commission v. O'Brien [1985] HCA 10; (1985) 155 CLR 422, the Tribunal
would also be unable to be satisfied beyond reasonable
doubt that there is no sufficient ground for making a
determination in favour of the respondent, the matter
should be disposed of by this Court by the making of an
order in the form of the order made in O'Brien."

The findings of fact made by the Tribunal in this case leave the situation relevantly the same. Accordingly, the orders made below should be varied by substituting, for the remittal of the matter to the Tribunal to be heard and decided again with or without the hearing of further evidence, an order that it be determined that the claim of Thomas James Hawkins for a pension in respect of incapacity from ischaemic heart disease be accepted, and that the matter be remitted to the Repatriation Commission for appropriate action in respect of that determination. The appeal should otherwise be dismissed with costs.