Repatriation Commission v James Ellison Proctor [1998] FCA 609 (5 June 1998)

Last Updated: 10 June 1998

• CONCLUSION

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW - appeal from decision of Administrative Appeals Tribunal ("the AAT") - whether error of law in the AAT's reasoning - whether the AAT failed to give adequate reasons for its decision.

VETERANS' ENTITLEMENTS - whether respondent suffering from a war-caused disease - whether respondent rendered "operational service" - whether respondent's service can be characterised as full-time continuous service "outside Australia" - meaning of expression "outside Australia" - AAT required to determine "the essential character" of respondent's service.

Administrative Appeals Tribunal Act 1975 (Cth), ss 43(2B), 44

Veterans' Entitlements Act 1986 (Cth), ss 5C, 6(1)(a), 9, 13, 120

Seas And Submerged Lands Act 1973 (Cth), ss 7, 16(1)

Acts Interpretation Act 1901 (Cth), s 15B

Repatriation Commission v Kohn (1989) 87 ALR 511, applied

REPATRIATION COMMISSION v

JAMES ELLISON PROCTOR

NG 8 of 1998

BRANSON J

SYDNEY

5 JUNE 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 8 of 1998

BETWEEN:	REPATRIATION COMMISSION Applicant
AND:	JAMES ELLISON PROCTOR Respondent
JUDGE(S):	BRANSON j
DATE OF ORDER:	5 JUNE 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The decision of the Administrative Appeals Tribunal be set aside.

2. The case be remitted to the Administrative Appeals Tribunal to be heard and decided again without the hearing of further evidence.

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	NG 8 of 1998

BETWEEN:	REPATRIATION COMMISSION Applicant
AND:	JAMES ELLISON PROCTOR Respondent

JUDGE(S):	BRANSON j
DATE:	5 JUNE 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

This is an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal ("the AAT") delivered on 17 December 1997. Such an appeal is an appeal on questions of law only.

The decision of the AAT set aside an earlier decision of the Veterans' Review Board which had affirmed a decision of the Repatriation Commission that the adenocarcinoma of the prostate of the respondent ("Mr Proctor") is not a war-caused disease. The AAT substituted for the decision of the Veterans' Review Board a decision that Mr Proctor's adenocarcinoma of the prostate is war-caused with effect from 6 October 1942 and remitted the matter to the Repatriation Commission for assessment of incapacity.

Crucial to the decision of the AAT was its finding that Mr Proctor had rendered "operational service" within the meaning of s 6 of the Veterans' Entitlements Act 1986 (Cth) ("the Act"). This finding brought into play the standard of proof provision of s 120(1) of the Act. Such standard of proof provision is significantly more favourable to a claimant for a pension than the standard of proof provision of s 120(4) which would have applied in the absence of a finding that Mr Proctor had rendered "operational service" within the meaning of s 6 of the Act.

BACKGROUND FACTS

This outline of Mr Proctor's relevant war service is based on the findings of fact of the AAT.

Mr Proctor served in the Australian Army from 2 January 1942 to 5 September 1946. He was at the time with which this decision is concerned a member of the 2/7^th Australian Armoured Regiment Ordnance Field Park. He had received training in driving cars, trucks and bren gun carriers. He was part of a small unit of soldiers who drove trucks supporting an armoured tank unit. The trucks carried spare parts for the tanks.

In 1943 Mr Proctor's unit was stationed near Caboolture, Queensland, to the north of Redcliffe and Moreton Bay. On 14 June 1943 Mr Proctor boarded the US Navy Landing Ship Tank ("LST") 458 which departed Caloundra that day and arrived in Townsville on 18 June 1943. The purpose of the voyage was to transport armoured tanks, trucks, ammunition and spare parts to Townsville, a region where there was considerable LST movement at or about that time. During the voyage LST 458 passed to the north of Lady Elliott Island and would have been at that time approximately eighty kilometres off the coast. In June 1943 there was risk of attack by Japanese submarines in Australian coastal waters in the area of the voyage of LST 458.

REASONING OF THE AAT

The reasoning of the AAT is conveniently set out in para 64 of its reasons for decision:

"64. Although the period of time spent by Mr Proctor at sea while enroute to Townsville was limited to a matter of a few days, we nevertheless find that, in the circumstances set out in these reasons, his service during passage can properly be characterised as service in a vessel which was, on the balance of probabilities, likely to become engaged in combat with the enemy. It is our view, and we find, that Mr Proctor therefore rendered operational service within the meaning of section 6(1)(a) of the Act. The standard of proof relevant to Mr Proctor's claim is therefore that set out in sections 120(1) and 120(3) of the Act. That being so then as we have indicated, the respondent accepts that adenocarcinoma of prostate is war-caused within the meaning of section 9 of the Act and we find accordingly."

STATUTORY CONTEXT

Eligibility for pension under the Act is governed by s 13 of the Act. For present purposes the Commonwealth is liable to pay pension to Mr Proctor if he "has become incapacitated from a war-caused injury or a war-caused disease". The expressions "war-caused injury" and "war-caused disease" are defined by s 9(1) of the Act. So far as is here relevant s 9(1) provides as follows:

"9. (1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

...

but not otherwise."

Section 120 of the Act is concerned with the standard of proof required for a decision maker to determine that an injury is a war-caused injury or a disease is a war-caused disease within the meaning of s 13 of the Act. So far as is here relevant, s 120 provides as follows:

"120. (1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran ... relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury [or] that the disease was a war-caused disease ..., as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

...

(3) In applying subsection (1) ... in respect of the incapacity of a person from injury or disease ... related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a) that the injury was a war-caused injury ...;

(b) that the disease was a war-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 injury [or] disease ... with the circumstances of the particular service rendered by the person.

(4) Except in making a determination to which subsection (1) ... applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act ... decide the matter to its reasonable satisfaction."

An effect of s 120 of the Act is that it will ordinarily be easier for a veteran to establish that an injury or disease is war-caused so as to entitle him or her to a pension if the veteran was rendering operational service than if he or she was simply rendering war service.

The expression "operational service" is defined by s 6 of the Act. So far as Mr Proctor is concerned, reliance is placed on s 6(1)(a) which provides as follows:

"6. (1) For the purposes of this Act:

(a) ... a person who has rendered, as a member of the Defence Force, continuous full-time service outside Australia during a war to which this Act applies shall be taken to have been rendering operational service while the person was so rendering continuous full-time service; ...."

World War 2, which, for the purposes of the Act is taken to have ended on 28 April 1952, the date on which the Treaty of Peace with Japan came into force, is a war to which the Act applies.

CONSIDERATION

The expression "continuous full-time service" is defined for the purposes of the Act by s 5C of the Act. It is accepted that Mr Proctor rendered continuous full-time service whilst a member of the Australian Army.

At issue in this appeal is the question of whether Mr Proctor, by reason of his having undertaken the voyage on LST 458 from Caloundra to Townsville travelling northward of Lady Elliott Island, is to be regarded as having rendered continuous full-time service outside Australia. If he is to be so regarded, the whole of his service in the Australian Army is to be taken to be continuous service outside Australia and thus operational service (s 6(1)(d)).

It is appropriate to give consideration to the meaning of the expression "outside Australia". The AAT acted on the basis that "outside Australia" meant "outside the three mile limit". The reference by the AAT to the "three mile limit" may be understood as a reference to the three international nautical mile limit of Australian territorial waters as derived from customary international law. That is, the AAT acted on the basis that the expression "outside Australia" meant not only outside the limit of the land mass of Australia but also outside the limit of Australia's customary territorial sea at the time of World War 2.

The AAT does not, in its reasons, make reference to s 15B of the Acts Interpretation Act 1901 (Cth) ("the Acts Interpretation Act").

Section 15B(1), which was inserted into the Acts Interpretation Act in 1976, provides as follows:

"15B (1) Except so far as the contrary intention appears:

(a) the provisions of every Act, whether passed before or after the commencement of this section, shall be taken to have effect in and in relation to the coastal sea of Australia as if the coastal sea of Australia were part of Australia; and

(b) any reference in an Act, whether passed before or after the commencement of this section, to Australia or to the Commonwealth shall be read as including a reference to the coastal sea of Australia." (emphasis added)

Section 15B(3) provides that nothing in s 15B(1) "shall be taken as limiting the operation that any Act had before the commencement of this section". Section 15B(4) defines "coastal sea" for the purpose of that section to mean, in relation to Australia, the territorial sea of Australia and the sea on the landward side of the territorial sea of Australia and not within the limits of a State or internal Territory (ie. in effect, the sea between the limits of the respective States and the baseline from which the breadth of the territorial sea is to be measured where such baseline is seaward of the limits of a State).

Section 15B of the Acts Interpretation Act cannot be understood without reference to the Seas and Submerged Lands Act 1973 (Cth) ("the Seas and Submerged Lands Act").

Pursuant to s 7 of the Seas and Submerged Lands Act, the Governor-General has by proclamation declared that on and from 20 November 1990 the outer limit of the territorial sea of Australia, other than in respect of certain islands, is twelve international nautical miles measured from the baseline established under international law or as otherwise determined by proclamation under s 7 of the Seas and Submerged Lands Act from time to time (Commonwealth of Australia Gazette No S 297, 13 November 1990).

Section 16(1)(a) of the Seas and Submerged Lands Act provides, so far as is here relevant, as follows:

"16. (1) The proceeding provisions of this Part -

(a) do not limit or exclude the operation of any law of the Commonwealth ... in force at the date of commencement of this Act or coming into force after that date; ... ."

In the light of the above provisions of the Acts Interpretation Act and the Seas and Submerged Lands Act, a number of questions concerning the expression "outside Australia" in the Act may be identified. Amongst such questions are the following:

(1) whether, independently of s 15B of the Acts Interpretation Act such expression is to be construed as meaning outside of the land mass of Australia ("the narrower meaning") or outside of Australian territorial limits, ie. outside of Australia's land mass and its territorial waters ("the wider meaning")?

(2) if the narrower meaning is the proper construction of the expression, whether the operation of s 15B(1)(b) of the Acts Interpretation Act is excluded by the opening words of s 15B(1)?

(3) if the wider meaning is the proper construction, and assuming that the expression is to be construed as meaning outside of Australia's land mass and its territorial waters as limited at the time of the relevant service as a member of the Defence Force, whether the operation of s 15B(1)(b) of the Acts Interpretation Act is excluded by the opening words of s 15B(1)?

(4) whether s 16(1) of the Seas and Submerged Lands Act has any ongoing practical significance having regard to the enactment in 1976 of s 15B of the Acts Interpretation Act?

(5) what is the meaning of s 15B(3) of the Acts Interpretation Act? That is, is the subsection concerned to protect the extra-territorial operation of certain legislation or is it concerned to protect the rights and obligations of individuals under certain legislation?

In view of the approach which I have taken in this case, it is not necessary for me to answer the above questions. Indeed, circumstances may never arise which call for them to be answered. I have identified them, however, to highlight the fact that the expression "outside Australia" may import more complexities than have hitherto been addressed.

The historical background to the relevant provisions of the Act was analysed by Hill J in Repatriation Commission v Kohn (1989) 87 ALR 511 at 517-522. I will not repeat that exercise. His Honour concluded at 522 that:

"[t]he analysis of the legislative history supports the submission that the continuous policy of the legislation has been to provide preferential treatment in pension claims to persons whose service was in a real sense outside Australia. It does not suggest any intention on the part of the legislature to give preferential treatment to persons stationed in Australia who proceed outside the three mile limit during a transit from one place in Australia to another and whose service was always in reality in Australia."

At 524 his Honour said:

"The legislative policy behind the Veterans' Entitlements Act is that a person who has rendered operational service in the sense defined in s 6(1) should more readily be able to obtain a pension than a person who has not rendered such service. It was the intention of the legislature that it was only members of the armed forces who, in truth, were on service outside Australia during World War 2 who should receive this preferential treatment as to pensions. It cannot be conceived that Parliament intended that veterans who were at all times stationed in Australia but who travelled from one place in Australia to another and thereby were for short periods of time outside Australia, should be treated in the same way as veterans who fought in a theatre of war, sailors who served continuously on a ship engaged in or likely to become engaged in combat or members of the Air Force engaged in flying missions outside Australia.

The suggestion that an airman who went by road from Townsville to Cairns should be treated differently for the purposes of pension from an airman who went by ship between the same towns, both airmen probably taking approximately the same time to complete the journey, is, to say the least, bizarre.

It seems to me that to give effect to what I believe to be the legislative policy behind the current legislation and indeed the policy which the foregoing analysis of the history of the legislation indicates was behind all previous manifestations of it, an interpretation of s 6(1)(a) should be advanced which would exclude mere transitory passages outside Australia from the definition of "operational service" in s 6(1)(a).

When attention is focussed on the rendering of continuous full-time service outside Australia, it is not correct to look in isolation at the period of time in which the member of the defence force is outside the three mile limit to the exclusion of the periods of time immediately before and immediately after that period. Nor is the purpose for which the member of the forces comes to be outside Australia irrelevant.

... If the essential character of the service considered overall can be seen to be continuous full-time service outside Australia, then for the purpose of the legislation it is to be treated as operational service. If, on the other hand, looked at overall, notwithstanding that at a discrete moment of time the service of the member was outside Australia, the service is properly as a matter of ordinary English language to be seen as having an essential character of continuous full-time service within Australia, then for the purposes of the legislation it will not be treated as "operational service"."

I respectfully agree with all that his Honour said in the above passages. Indeed, I do not understand any aspect of his Honour's reasoning in Kohn's Case to have been challenged before me.

However, notwithstanding the guidance provided by Hill J in Kohn's Case as to the meaning of the expression "continuous full-time service outside Australia" in s 6(1)(a) of the Act, the AAT appears to have acted on the premise that its finding that Mr Proctor's "service during passage [on LST 458] can properly be characterised as service in a vessel which, was, on the balance of probabilities, likely to become engaged in combat with the enemy" led necessarily to the conclusion that he rendered "operational service" within the meaning of s 6(1)(a) of the Act. Nothing in the analysis of s 6(1)(a) by Hill J in Kohn's Case lends any support to this approach. Unlike s 6(1)(n) of the Act, s 6(1)(a) is not directly concerned with whether particular service involved risk of "combat against the enemy".

What the AAT was required to do in this case was to determine "the essential character" of the service of Mr Proctor. To do this it was not entitled to look in isolation at the short period of time during which Mr Proctor was outside Australia: it was required also to consider the periods of time immediately before and immediately after that period. How wide a band of time it was to consider was a matter for it to determine having regard to the particular circumstances of Mr Proctor's service. However, the band of time would need to be sufficiently wide to place Mr Proctor's voyage on LST 458 in a proper context having regard to the nature of Mr Proctor's service generally.

Having identified the appropriate period of time to be considered, the AAT was required to ask itself, "is it correct to categorise the [Mr Proctor's] service in that time as being continuous full-time service inside Australia or continuous full-time service outside Australia?" In answering the above question, the AAT was required to bear in mind, as Hill J pointed out in Kohn's Case at 224-5, that s 6(1)(a) of the Act is to be construed so as to exclude "mere transitory passages outside Australia", and that -

"where the purpose of the journey outside Australia itself, being but brief, is merely to facilitate the performance of service which itself is continuous full-time service within Australia, the service outside Australia will not give colour to the service nor will it permit a characterisation of the service as being continuous full-time service outside Australia".

CONCLUSION

It follows, in my view, that, notwithstanding its extensive reference in the opening paragraphs of its reasons for decision to the judgment of Hill J in Kohn's Case, the AAT misconstrued s 6(1)(a) of the Act 1975 . In particular, it erred as a matter of law by failing to determine for the purposes of that subsection "the essential character" of the service of Mr Proctor.

Contrary to the submissions of the applicant, this is not a case, in my view, in which the AAT failed to give adequate reasons for its decision (s 43(2B) of the Administrative Appeals Tribunal Act (Cth)). It seems to me that the AAT did give in writing its reasons for its decision, including its findings on the questions of fact which it regarded as material. The difficulties with its reasons which the applicant identified are the result of its having misapprehended what were the material questions of fact.

The decision of the AAT will be set aside and the case will be remitted to the AAT to be heard and decided again, without the hearing of further evidence.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:

Counsel for the Applicant:	J Hilton SC with R M Henderson
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	A Hill
Solicitor for the Respondent:	Crisp & Associates
Date of Hearing:	25 May 1998
Date of Judgment:	5 June 1998