Repatriation Commission v Robertson [2004] FCA 173 (5 March 2004)

Last Updated: 8 March 2004

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Robertson [2004] FCA 173

ADMINISTRATIVE LAW – judicial review – Veterans’ Affairs – Gold Card eligibility – whether qualifying service rendered – where Tribunal found condition of "operations against the enemy" satisfied and condition of "incurred danger from hostile forces" satisfied – whether no evidence to support findings.



Veterans’ Entitlement Act 1986 (Cth) s 7A


Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 referred to
Minister for Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 referred to
Repatriation Commission v Mitchell [2002] FCA 1177 cited
Repatriation Commission v Thompson (1988) 44 FCR 20 cited
Willcocks v Repatriation Commission (1992) 39 FCR 49 discussed












REPATRIATION COMMISSION V BRUCE JOHN GRAY ROBERTSON

N 1244 OF 2002




BEAUMONT J
5 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1244 OF 2002

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	REPATRIATION COMMISSION APPLICANT
AND:	BRUCE JOHN GRAY ROBERTSON RESPONDENT
JUDGE:	BEAUMONT J
DATE OF ORDER:	5 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed, with costs.








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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1244 OF 2002

BETWEEN:	REPATRIATION COMMISSION APPLICANT
AND:	BRUCE JOHN GRAY ROBERTSON RESPONDENT

JUDGE:	BEAUMONT J
DATE:	5 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

INTRODUCTION

1 The respondent applied to the Administrative Appeals Tribunal (‘the Tribunal’) to review a decision of the Repatriation Commissioner’s delegate that the respondent did not render ‘qualifying service’ within the meaning of s 7A of the Veterans’ Entitlement Act 1986 (Cth) (‘the Act’), and thus was not eligible for a Gold Card pursuant to s 85(4) of the Act. The Tribunal set aside the Repatriation Commission’s decision, and in lieu thereof, decided that the respondent was so eligible. The Repatriation Commission (‘the Commission’) now appeals from that decision on a question or questions of law (only).

2 ‘Qualifying service’ is defined in s 7A as follows:

‘... a person has rendered qualifying service ... if the person has, as a member of the Defence Force...rendered service, during a period of hostilities ... in naval military or aerial operations against the enemy in an area ... at a time when the person incurred danger from hostile forces of the enemy in that area ... .’

3 In his claim, the respondent relied upon seagoing service towards the end of the Second World War, outside the coastal waters of Australia, in the Pacific.

THE FACTS AND EVIDENCE BEFORE THE TRIBUNAL

4 The Tribunal described the material facts and evidence before it as follows:

1. The respondent’s evidence
• The respondent served in the Royal Australian Naval Reserve (‘the RANR’) from 11 January 1945 until 6 November 1946, during which period he served in various ships and establishments.
• In company with other naval personnel being deployed to join various ships, he took passage from Australia to Morotai in HMAS BUNGAREE, arriving on 12 October 1945.
• On arrival at Morotai, the respondent joined HMAS BOWEN. The ship sailed later that day to undertake Operation Talaud in the Talaud-Sangihe island group, an operation described as ‘a surveillance mission ... part of the process of supervising and effecting the terms of surrender in the Australian area of responsibility’. The operation lasted until 20 October 1945 when the ship returned to Morotai. Whilst the Instrument of Surrender of Japanese forces had been signed on 2 September 1945, the evidence of an historian, Ms Carter, noted, in referring to the Official Historian, Gavin Long, that there were concerns that some Japanese units would not accept the surrender, or in the outlying islands, would not be aware of the decision by the Emperor of Japan to surrender. So it was that some six weeks later, on 12 October 1945, that HMAS BOWEN sailed from Morotai to transport the personnel forming Talaud Force to various islands to enable them to effect the surrender.
• The respondent described his role as that of a seaman required to undertake normal ship board duties, but also to form part of an armed naval landing party required to land at various islands to escort the Talaud Force, to effect the surrender of local Japanese forces, to escort Japanese personnel onboard HMAS BOWEN as ordered, and to collect arms and ammunition. The naval landing party was accompanied by army personnel. On all occasions of landing (and he gave evidence that he landed on all but one island during the eight day operation), the landing parties carried loaded rifles or sub-machine guns, with the safety catch on. He recounted that army and naval personnel were going to and from the ship to shore, but could not recall whether sentries were maintained ashore.
• The respondent described feelings of apprehension. There were relatively few in the landing party, and a hostile reception on landing could not be discounted. He recalled that it was a common belief that the Japanese did not always surrender when called upon to do so, but that had not happened to him. However, he was prepared for such an eventuality. He was aware that the enemy forces were renowned for their cruelty. On one occasion at Liroeng, when the landing party trekked along a jungle path to a Japanese headquarters, he observed that the Japanese hid their flag rather than surrender it. He had heard a rumour that the Japanese commander was insane, which ‘did not put [him] at ease’. Prisoners were escorted onboard HMAS BOWEN under guard, and he understood that some were later accused of war crimes.
• In cross-examination, the respondent, referring to the occasion when he was part of the landing party at Liroeng to take the surrender at the Japanese headquarters located in the jungle, said he ‘felt most at risk’, not knowing how many Japanese soldiers were at that location. He described his officers going into the headquarters and bringing out the Japanese, who agreed to surrender the following day; he recalled that some were allowed to keep their arms, but he did not see them point their weapons at himself or other Australians. The following day, the Japanese commander disarmed his troops; there was no evidence of resistance. The respondent described the situation as dangerous. He was fearful and apprehensive as he did not know how the Japanese would react.
• In a letter to his mother apparently written prior to the ship’s return to Morotai on 20 October 1945, the respondent described the events in this period but makes no mention of any incidents wherein it might be suggested that he was specifically threatened by Japanese personnel.
2. Mr Webster’s evidence
Mr Webster, who served on board HMAS BOWEN in the rank of Sub-Lieutenant throughout the period of the respondent’s posting to that ship, gave this evidence:
• His duty was as the navigating officer. The role of TALFORCE (as he called it) was to disarm garrisons and enemy forces, and to collect all weapons. He recalled a signal being received from the Admiralty on 15 August 1945, stressing the need for personnel to take precautions. He did not consider that HMAS BOWEN faced any threat from enemy ships or submarines, but a threat to personnel could come from ‘renegades’, and a threat from minefields could exist. He was aware from an earlier deployment by HMAS BOWEN and other corvettes to the Celebes in September 1945 that Japanese forces had refused to surrender Dutch women and children because they were not aware that the war was over; he also considered that on the passage to and from the Celebes, ships may well have been transiting unknown minefields. In the context of the ship’s visit to Liroeng on 13 October 1945, he did not land, but believed there was risk of rogue elements, and felt fearful.
• Mr Webster did not land with the respondent at any time, but he confirmed that landing parties were briefed by the Officer in Charge of the Force, Major Garnsey, as to the risks and the need to be armed at all times. He did not observe any Japanese hostilities, nor was he aware of any occasion in the period 12 to 20 October 1945 where Japanese soldiers refused to surrender or hand over their arms. He confirmed that HMAS BOWEN embarked some prisoners at times, and gave evidence that there were no problems with Japanese working parties on board the ship.

THE TRIBUNAL’S ANALYSIS OF EVIDENCE AND FINDINGS

5 The Tribunal noted that there are effectively three broad components of s 7A(1)(a)(i): service during the ‘period of hostilities’ (which was accepted by the Commission and the Tribunal), that such service took place in operations ‘against the enemy’, and that the person ‘incurred danger from hostile forces’ of the enemy.

6 In considering whether the respondent’s service was in military operations ‘against the enemy’, the Tribunal said (at par 31):

‘31. ... In this matter, there is no evidence that the relevant Japanese forces had accepted the direction to surrender. Whether they were, variously, and from island to island, in a hostile mode, or merely waiting to be formally instructed by allied forces to surrender is not evident. Ms Carter note[d] ... from her research the fears that some Japanese personnel might not receive, or accept, the Japanese decision to surrender, and she quotes the official historian, Gavin Long, that in October 1945, "one organised Japanese force in British Borneo was showing no signs of surrender". It was into that climate that Operation Talaud took place, and the Tribunal accepts that the operation met the criteria of being a "military operation against the enemy".’

7 Turning next to the question of whether the respondent had ‘incurred danger from hostile forces’, the Tribunal said (at pars 36 – 37):

‘36. The reasoning of Cooper J in [Repatriation Commission v Mitchell [2002] 71 ALD 93] also has relevance to this question. He considered that in that matter, the Tribunal was required to ask two questions, firstly whether at the time, there were enemy mines in the area in which the veteran travelled, and secondly, if satisfied on the first question, whether the veteran incurred danger "in the sense explained by the Full Court in [Repatriation Commission v Thompson (1988) 44 FCR 20]." The same questions applied in the sense of the relevant circumstances to [the respondent] lead to a "yes" on both counts. There were enemy armed forces free to move in the area in which he was landing, and he was exposed to, at risk or in peril of harm or injury from those armed personnel.

37. Whether or not he was at risk or in peril of harm from mines is not considered, nor is it relevant to consider only the occasion when [the respondent] landed at Liroeng. He was placed in similar exposed situations on other occasions of landing to implement the surrender process, and suffice to say that regardless of the [the respondent’s] fears or apprehension, he was clearly at risk of harm or injury, a risk that the Tribunal considers to be more than "de minimis". The fact that no incidents actually took place has no bearing on whether he met the object test of incurred danger. ...’

THE COMMISSION’S GROUNDS OF APPEAL

8 The Commission propounds these grounds of appeal:

(1) It was not open to the Tribunal to find that the respondent ‘rendered service ... in naval, military or aerial operations against the enemy’ within s 7A(1)(a)(i) by reason of his participation in an operation to accept the surrender of Japanese forces (Operation Talaud) between 12 and 20 October 1945.
(2) It was not open to the Tribunal to find that the respondent ‘rendered service ... in naval, military or aerial operations against the enemy’:

(i) where it was not evident whether the relevant Japanese forces encountered by the respondent were ‘in a hostile mode or merely waiting to be formally instructed by allied forces to surrender’ (see par 31 of the Tribunal’s reasons, cited above);

(ii) in the absence of a finding that the respondent was participating in a hostile offensive or defensive encounter or exchange with the enemy; and

(iii) given the uncontradicted evidence, that the only members of the Japanese military forces encountered during Operation Talaud between 12 and 20 October 1945 were not hostile and willingly surrendered to Australian forces.

(3) It was not open to the Tribunal to find that the respondent ‘incurred danger from hostile forces of the enemy’ within s 7A(1)(a)(i):

(i) in the absence of any evidence or finding that the enemy forces encountered by the respondent between 12 and 20 October 1945 were ‘hostile forces of the enemy’; and
(ii) given the contradicted evidence that the only members of the Japanese military forces encountered by the respondent between 12 and 20 October 1945 were not hostile and willingly surrendered to Australian forces.

CONCLUSIONS ON THE APPEAL

9 As mentioned, an appeal may only be brought on a question of law so that, provided the correct legal question is addressed, there is no appeal on purely factual questions, especially in this area where, as the authorities show, the matter is to be approached in a practical way.

10 As the first limb of s 7A(1)(a)(i) is not disputed, it is convenient to consider the second limb initially.

‘Operations against the enemy’

11 In Willcocks v Repatriation Commission (1992) 39 FCR 49, Cooper J held that the provision required service in military operations against the enemy in the sense of operations in hostility or opposition to the enemy. His Honour held that, although the applicant had been threatened by a Japanese soldier whilst assisting in the repatriation of prisoners of war immediately after the Japanese surrender, the activity of releasing and repatriating POWs could not be characterised as such operations.

12 It was there accepted by the Commission (at 53) that the applicant had rendered service in an area at a time when he incurred danger, but the Commission disputed that those operations were ‘against’ the enemy.

13 Cooper J said (at 56):

‘[T]he word "against" in the phrase "military operations against the enemy" is used in the sense of "in hostility or active opposition to". This is the common meaning and general usage of the word "against" in such a context. The section requires service, inter alia, in military operations against the enemy, in the sense of operations in hostility or opposition to the enemy.

The Full Court decision in [Repatriation Commission v Ahrenfeld (1991) 29 FCR 556] ... does not support the applicant’s contention that mere "contact with" the enemy is sufficient. In that case, it was held that the expression "actual combat against the enemy" would include conduct which answered the description of integral participation in an activity directly intended for an encounter with the enemy, whether offensive or defensive in character. In my view the phrase "an encounter with the enemy" does not mean mere contact with the enemy. It refers to a hostile offensive or defensive encounter or exchange with the enemy.’

14 His Honour added (at 56):

‘The activity of releasing and repatriating prisoners of war cannot be characterised as military operations against the enemy within the meaning of the provision. While they were military operations which involved contact with the enemy, they were not in hostility or opposition to the enemy. The situation is properly characterised as one where a veteran was engaged in military operations, which themselves were not operations against the enemy, but in the course of which the veteran had a hostile encounter with the enemy. This is not sufficient to satisfy the relevant provision, for it fails to satisfy both elements in the phrase "military ... operations against the enemy".

It does not follow that no service after the formal Japanese surrender in Singapore on 12 September 1945 and in the period to 29 October 1945 will constitute "qualifying service". For example, if it were proven as a matter of fact that a practical state of war of actual hostilities continued in the region after the formal surrender (see Marsh v Repatriation Commission (1987) 15 FCR 503 at 511, 512) any Australian soldiers deployed in the region to quell hostile Japanese forces who refused to accept, or were unaware of, the surrender could properly be described as rendering service in military operations against the enemy.’

15 In my opinion, given the factual finding made by the Tribunal in par 31 of its reasons, the final (obiter) passage of his Honour’s reasons was capable of application here.

16 However, on behalf of the Commission it is submitted to the contrary, as follows:

‘15. The critical words in the observation of Cooper J quoted in the Tribunal’s reasons at paragraph 28 are that, notwithstanding the formal Japanese surrender in Singapore on 12 September 1945, it might (in a particular case) be proven as a matter of fact that a practical stage of war or actual hostilities continued in the region after the formal surrender, in which event "Australian soldiers deployed in the region to quell hostile Japanese forces who refused to accept, or were unaware of, the surrender could properly be described as rendering service in military operations against the enemy" (emphasis added).

16. In this case, however, the Tribunal did not make any findings of fact to the effect that:

16.1 a "practical state of war" or "actual hostilities" continued;

16.2 [the respondent] was involved in operations "to quell hostile Japanese forces" or

16.3 the Japanese forces in question "refused to accept" or were "unaware of the surrender".

17. At its highest, the relevant factual findings made by the Tribunal were that:

17.1 there was no evidence, one way or another, whether the relevant Japanese forces had accepted the direction to surrender;

17.2 there was no evidence, one way or another, whether the relevant Japanese forces were in a hostile mode or merely waiting to be formally instructed by allied forces to surrender; and

17.3 in the event, the Japanese forces were not in hostile mode and did comply with the formal instructions to surrender.

18. Accordingly, the Tribunal’s ultimate conclusion (that [the respondent] was engaged in operations against the enemy during Operation Talaud) cannot follow from the findings (of absence of evidence) made by the Tribunal.

19. The Tribunal was required to determine whether [the respondent] served in "military operations against the enemy" to its reasonable satisfaction. To discharge that obligation, the Tribunal, necessarily, had to make (positive) findings of fact that [the respondent] was involved in operations "in hostility or active opposition to" the enemy (that opposition having the "colour of hostility").

20. Paragraph 31 of the Tribunal’s reasons, to the contrary, confirms that there was no evidence that could have supported a finding that [the respondent’s] activities during Operation Talaud were "in hostility or active opposition to" the enemy. Operation Talaud did not have the requisite character because:

20.1 the enemy had already unconditionally surrendered; and

20.2 there was no contemporaneous evidence to suggest that the supervision and effecting of the terms of (the unconditional) surrender in the Australian areas of responsibility would be in hostility or active opposition (with the colour of hostility) to the enemy.

21. The absence of incident, referred to by the Tribunal as not disqualifying [the respondent] ..., paragraph 37) in respect of the "incurred danger" limb of the section, was confirmatory of the character of the operation. It must be the case that the mere absence of incident cannot be decisive of the second limb (incurred danger from hostile forces of the enemy); but:

21.1 the absence of incident in this case,

taken together with:

21.2 the other findings of fact by the Tribunal (about the purpose of Operation Talaud and the absence of any evidence that the Japanese were in hostile mode or merely awaiting formal instructions from the Australians); and

21.3 the known historical facts (the Emperor of Japan had unconditionally surrendered on 15 August 1945 and the formal surrender ceremony in Singapore, for the South-East Asia operational theatre had occurred on 12 September 1945),

also disclose that it was not open to the Tribunal to characterise the operation in which [the respondent] was involved as one against the enemy. [The respondent] was involved in a military operation - but not one in hostility to or active opposition (with the colour of hostility) to the enemy.’

17 Since an appeal to this Court lies only on a question of law, the Commission’s submission next proceeds as follows:

‘22. The Tribunal’s ultimate finding of fact (that [the respondent] rendered service in military operations against the enemy) will be vitiated for error of law:

"(a) if there is no evidence to support its inference, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of facts based upon those inferences ... , or (c) if it has misdirected itself in law ... thus, if the facts inferred by the Tribunal from the evidence before it are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law ..." [citing The Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138].

23. On the facts found by the Tribunal in this matter (that there was no evidence whether the Japanese forces were in hostile mode or merely waiting to be formally instructed to surrender), in the context of the unchallenged evidence of Mr Webster (that he did not observe any Japanese hostilities, nor was he aware of any occasion in the period 12 - 20 October 1945 where Japanese soldiers refused to surrender or hand over their arms), [the respondent’s] service was necessarily outside the statutory description in s 7A(1)(a) insofar as it required the rendering of service in military operations against the enemy.

24. It follows that the Tribunal erred in law in accepting that, because of the "climate" (of lack of knowledge) in which Operation Talaud took place, the operation met the criteria of being a "military operation against the enemy".’

18 I cannot accept the Commission’s argument.

19 In the first place, whilst I agree entirely with Cooper J’s obiter observation, his Honour, properly, introduced it with the phrase ‘for example’. It was not intended by his Honour as an exhaustive statement or as a comprehensive substitute for the statutory language of ‘against the enemy’. Nonetheless, in my view, his Honour’s comments were, on the facts found by the Tribunal here, and relevantly summarised in its par 31, above, capable of application, by way of analogy, in the circumstances of the present case.

20 (It should be added that in a more recent decision (Repatriation Commission v Mitchell (2002) 71 ALD 93) consistent with his earlier decision in Willcocks, Cooper J said (at [22] – [24]):

‘22 Section 7A(1)(a)(i) is concerned with "naval, military or aerial operations against the enemy in an area" (emphasis added). The second part of the subsection is concerned with "danger from hostile forces of the enemy in that area" (emphasis added). It is the area in or on which military operations are being conducted against the enemy which is generally covered by the phrase "military theatre of operations".

23 The correct question to be addressed for the purpose of s 7A(1)(a)(i), is whether the veteran rendered military service in an area where naval, military or aerial operations against the enemy occurred, and if so, whether in a practical way the service of the veteran was an integral part of those naval, military or aerial operations against the enemy in that area. Those operations, as I indicated in Willcocks, ... must be in hostility or opposition to the enemy.

24 The section does not require that the veteran be involved in actual personal combat against the enemy. Even the phrase "actual combat against the enemy" does not require direct and personal engagement with the enemy and it is sufficient that the conduct in question is an integral participation in an activity intended for an encounter with the enemy, whether offensive or defensive in character: Repatriation Commission v Ahrenfeld (1991) 29 FCR 556 (FC) at 562 - 563. ... The activities of a veteran as part of such an operation may or may not involve the veteran personally in a direct, hostile, offensive or defensive encounter or exchange with the enemy, however, that is not the test for the purpose of s 7A(1)(a)(i) of the VEA. Nor should it be lost sight of that rendering service in naval, military or aerial operations against the enemy is but one of three elements necessary to render qualifying service for the purposes of s 7A(1)(a)(i).’)

21 It must follow that since it (wrongly) assumed that Cooper J’s obiter observation in Willcocks recorded an exhaustive statement of the statutory language ‘against the enemy’, the Commission’s ‘no evidence’ argument cannot be accepted.

22 The relevant question for the Tribunal was whether, accepting that military service was rendered ‘during a period of hostilities’ (as the Commission accepted), that service was in ‘operation against the enemy... ’ (my emphasis).

23 In order to establish that there was no evidence before the Tribunal to justify the finding it made in answering his question, the Commission would need, in my view, to demonstrate at least that the Tribunal’s findings and inferences could not reasonably be made out on the evidence, or reasonably be drawn from the primary facts (see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356 – 357; Minister for Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at 654). In my opinion, the Tribunal’s conclusion, that these were operations against an enemy, was reasonably justified by virtue of at least the following findings of primary fact:

• On 15 August 1945, Admiralty issued a signal which stressed the need for personnel to take precautions until it was clear that Japanese forces had received and intended to carry out the instructions of their High Command.
• Mr Webster, who held the rank of sub-lieutenant and was the ship’s navigator, although not one of the landing party at Liroeng on 13 October 1945, believed there was a risk of rogue elements and felt fearful.
• The landing parties had been briefed by the Officer in Charge of the Force, Major Garnsey, as to the risks and the need to be armed at all times.
• Ms Carter’s report referred to the Official Historian, Gavin Long, and his conclusion that there were concerns that some Japanese units would not accept the surrender, or in the outlying islands, would not be aware of the decision of the Emperor of Japan to surrender.
• The Japanese forces were armed and had not surrendered until the day after forces of Operation Talaud arrived on Lireong.

24 I should add that, in my view, the Tribunal addressed the correct legal question here.

25 I turn next to the third limb of s 7A(1)(a)(i).

‘[W]hen the person incurred danger from hostile forces of the enemy ... ’

26 Reference was made in argument to Repatriation Commission v Thompson (1988) 44 FCR 20 where the respondent had served from June to October 1944 on an island at the mouth of the Daly River, southwest of Darwin. On the island was a radar post. The Tribunal had held that the respondent’s application for a service pension be refused because he had not ‘incurred danger from hostile forces of the enemy’. On appeal to this Court, the Full Court, upholding the Tribunal’s decision, held that the words ‘incurred danger’ provided an objective, rather than a subjective, test; and that danger was not incurred unless the serviceman was exposed to, at risk of, or in peril of, harm or injury. The Full Court further held that the Tribunal’s findings that the respondent did not, in his service, incur danger was a pure question of fact, so that no error of law arose.

27 The Full Court said (at 23 – 24):

‘The words "incurred danger" therefore provide an objective, not a subjective, test. A serviceman incurs danger when he encounters danger, is in danger or is endangered. He incurs danger from hostile forces when he is at risk or in peril of harm from hostile forces. A serviceman does not incur danger by merely perceiving or fearing that he may be in danger. The words "incurred danger" do not encompass a situation where there is mere liability to danger, that is to say, that there is a mere risk of danger. Danger is not incurred unless the serviceman is exposed, at risk of or in peril of harm or injury.

The danger incurred must of course be more than a merely fanciful danger or a danger so minimal that the rule of de minimis applies. But to say that is not to give a flavour to the work. Rather it is to use it in its ordinary sense.’

28 The Full Court went on to say (at 25):

‘The weight, if any, which a Tribunal gives to a particular piece of evidence is a matter for the Tribunal and forms a part of its fact-finding function. Provided that a relevant factor is taken into account, no error is shown should the Tribunal have given less weight to the matter than would the Court.’

29 In Mitchell, above, Cooper J considered the application of the ‘incurred danger’ test in the light of Thompson, above.

30 Cooper J said (at [34]):

‘34 The questions the AAT was required to ask itself were :

(a) whether, in September 1944, there were enemy mines in the waters of the Torres Strait over which the veteran travelled when he rendered operational service;

(b) if satisfied that there were enemy mines in those waters, whether the veteran, while onboard a vessel plying those waters and while rendering operational service, incurred danger from those mines in the sense explained by the Full Court in Thompson’s Case. That is, "was the veteran exposed to, at risk of or in peril of harm or injury from mines laid by hostile forces in 1942?": Repatriation Commission v Thompson ... at 23 - 24; Repatriation Commission v Burton ... at 128.’

31 Cooper J went on to say (at [40] – [42]):

‘40 The AAT has answered the first question in the affirmative. It has answered the second question in the affirmative, describing the danger of striking a mine as "real" and not fanciful, such that sailing ships in the area was a dangerous undertaking at that time. Inferentially, the AAT has found that the danger of striking a mine in the area was sufficiently real that the veteran incurred danger in the sense of being exposed to, or at risk of, or in peril of harm or injury from the explosion of an enemy mine when he travelled by vessel in the area in question.

41 The AAT has, as the Commission submitted it should, applied the test laid down in the Thompson Case. It decided that the veteran satisfied that test and its decision was a finding of fact made on the materials available to it.

42 The decision of the AAT that the veteran incurred danger from hostile forces of the enemy, in the form of danger from Japanese mines laid in the waters where he was rendering operational service, is a pure question of fact. It is not for the Court to review such a finding of fact. The Court ought not to intervene, even if it thought that the Court would have reached a different conclusion on the point: Repatriation Commission v Thompson at 25. There is no error in law simply in making a wrong finding of fact: Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 77. The presence of the Japanese minefields and the finding of a mine one mile south of the Red Island Point jetty on Cape York Peninsula was a sufficient basis for the AAT to draw the inference, if it chose to do so, that enemy mines were present in the waters and constituted a real and not fanciful danger to navigation.’

32 In its submission, the Commission now advances the following argument:

‘25. The Tribunal, in paragraphs 32 - 37 ..., sets out its reasons for its ultimate factual conclusion that [the respondent] satisfied "the incurred danger test". The shorthand "incurred danger" (used by the Tribunal in paragraphs 18, 20, 23, 32, 33, 34, 36 and 37) does not accurately reflect the requirements of the section. Note, for example, that the applicant in Willcocks plainly incurred danger but did not satisfy the definition - because danger must be incurred from hostile forces in an operation against the enemy. The Tribunal’s reasons disclose the Tribunal’s focus on the concept of "danger" (which is to take one word from the composite phrase) and not whether [the respondent] incurred danger from hostile forces of the enemy.

26. The principal factual findings which underpinned the Tribunal’s ultimate conclusion were that there were "enemy armed forces free to move in the area in which [the respondent] was landing, and he was exposed to, at risk or in peril harm or injury from those armed personnel". The Tribunal said that it asked the same questions posed by Cooper J in Repatriation Commission v Mitchell (namely, whether there were enemy mines in the area in which the veteran travelled and, if so, whether the veteran incurred danger in the sense of exposure to actual risk of harm or injury) and concluded that the answer would be "yes" on both counts. The reasoning in Mitchell, however, was inapplicable to [the respondent’s] circumstances.

27 The relevant part of the judgment in Mitchell is at paragraph [34]. Importantly, Cooper J asked the question - was the veteran exposed to, at risk of, or in peril of harm or injury from mines laid by hostile forces in 1942? That question, on the facts in Mitchell, was answered yes.

28. It does not follow from the fact that Mr Mitchell was found to have incurred danger from hostile forces of the enemy by travelling through waters in which mines had been laid by hostile forces in 1942, primed to explode without any human intervention, that [the respondent] "incurred danger from hostile forces of the enemy" when he entered an area where armed Japanese soldiers were waiting for the opportunity to surrender.

29. The mere fact that there were "enemy armed forces free to move in the area in which he was landing", in circumstances where all of the evidence is that those Japanese soldiers were not and did not engage in hostile acts and surrendered or handed over their arms on request, does not establish that [the respondent] incurred danger from hostile forces of the enemy.

29.1 First, there was no finding made by the Tribunal, and no evidence to support any finding, that the Japanese forces were "hostile forces of the enemy" in the relevant period of 12 to 20 October 1945. The absence of "incidents" (dismissed by the Tribunal in paragraph 37 ... ) is one thing; the absence of any evidence that the relevant Japanese forces were "in ... hostile mode", at all is entirely another.

29.2 Second, the "climate" (that is, the absence of knowledge [regarding] the status of the relevant Japanese forces identified by the Tribunal in paragraph 31 ... ) is not to the point. The statutory test is that the person incurred danger from hostile forces of the enemy. In other words, a feeling of apprehension because "a hostile reception on landing could not be discounted" was not capable of supporting any finding to the effect that [the respondent] incurred danger from hostile forces of the enemy.

30. It follows that the Tribunal’s ultimate conclusion (that the [respondent] satisfied the incurred danger test) was not supported by any evidence.’

33 I cannot accept the Commission’s argument.

34 In the first place, as a Full Court authority, Thompson is binding on the Tribunal and on a single Judge of this Court.

35 Secondly, there is nothing in Mitchell, or in the Tribunal’s decision, which seeks to depart form the principles enunciated in Thompson. On the contrary, both Cooper J and the Tribunal there applied those principles. The actual facts in Thompson, Mitchell and in this case must, of course, stand for themselves; they cannot govern the resolution of other cases.

36 In my opinion (as the respondent submitted):

• The Tribunal considered the relevant test in relation to a finding that the respondent ‘incurred danger from hostile forces’ at pars 32 – 37 of its decision.
• Although the Commission is critical of the Tribunal for using the ‘shorthand’ ‘incurred danger’, submitting that this has led to error in that the Tribunal has not properly considered the ‘composite phrase’, –

(a) The Tribunal considered and properly applied the test in Thompson in relation to the Full Court’s consideration of that phrase. (This ground is not raised in the Commission’s appeal.)
(b) The Tribunal considered and applied the reasoning of this Court in Mitchell, and there is no error of law exposed by pars 26 – 30 of the Commission’s submissions. At best, an error of pure fact is asserted.
(c) The Tribunal found, on the evidence, that it was satisfied that ‘there were enemy forces free to move in the area’, a finding capable of being made on the basis of the evidence in relation to: (a) the signal from Admiralty; (b) the briefing by the Officer in Charge of the Force; and (c) the statement of the official historian.
(d) The Tribunal’s finding that the respondent was ‘exposed to or at risk or in peril of harm or injury from those armed forces’ is a finding which is open on the same evidence and on the evidence of the respondent relating to his being armed at all relevant times.

ORDERS

37 Accordingly, the application must be dismissed, with costs.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate:

Dated: 5 March 2004

Counsel for the Applicant:	Ms Jayne Jagot
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mr Neale Dawson
Solicitor for the Respondent:	R L Whyburn & Associates
Date of Hearing:	24 February 2004
Date of Judgment:	5 March 2004