Boots, J.T. v The Repatriation Commission
[1993] FCA 227
•22 APRIL 1993
Re: JOHANNES THEODORUS BOOTS
And: THE REPATRIATION COMMISSION
No. G404 of 1992
FED No. 227
Number of pages - 22
Administrative Law
(1993) 42 FCR 108
(1993) 29 ALD 702
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Einfeld J(1)
CATCHWORDS
Administrative Law - judicial review - natural justice - entitlement of member of an allied country's underground resistance to Australian service pension - error of law in considering issue not in dispute between parties - failure to consider other issues put up for resolution - full time service
Words and Phrases - allied veteran - continuous full time service - auxiliary services to defence forces - appointment or enlistment in defence forces - rules and conventions of warfare as apply to unarmed underground resisters
Veterans' Entitlements Act 1986 ss 5(1), 35(1),(2),(3),(4), 36, 38
Defence Act 1903 s. 45(1)
Defence Force (Home Loans Assistance) Act (Cth) 1991 s. 3, 7
Repatriation Commission v Kohn (1989) 87 ALR 55
Quad Consulting Pty Ltd v David R Bleakley and Associates Pty Ltd and Ors (1990) 98 ALR 659
Marinucci v Repatriation Commission Administrative Appeals Tribunal unreported 14 May 1991
Swymer v Swymer (1954) 3 All ER 502
Marcus Einfeld, People's Rights in Armed Conflict - From the Battle of Vinegar Hill to the Gulf Conflict, extracted in Open Lines, International Humanitarian Law Bulletin for the Asia/Pacific Region No. 7 November 1991 (Australian Red Cross Society)
HEARING
SYDNEY, 18 December 1992
#DATE 22:4:1993
Counsel and solicitor : Ms J J Millar
for the applicant instructed by NSW Legal Aid
Commission
Counsel and solicitor : Ms R Henderson
for the respondent instructed by the Australian
Government Solicitor
ORDER
The court orders that:
1. Appeal allowed.
2. Matter remitted for rehearing by the Administrative Appeals Tribunal in accordance with the reasons for judgment.
3. Respondent to pay the applicant's costs.
Note: Settlement and entry of orders are dealt with in accordance with Order 36 of the Federal Court Rules.
JUDGE1
EINFELD J This is a most unusual goes which goes back to World War 2. A former national of the Netherlands, Johannes Theodorus Boots, who is the applicant, then served in the Dutch underground resistance during the occupation of his country by Nazi Germany. Mr Boots came to Australia on 10 October 1950 and since 1984 has been seeking an Australian service pension. He now appeals to this Court from a decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal consisting of a Deputy President and two members on 25 May 1992 upholding a decision of the respondent Commission made on 9 May 1990, and affirmed on 21 June 1990 after reconsideration, to refuse him such a pension.
He was born in 1925 and served in a body called the Landelijke Organisatie voor Hulp aan Onderduikers (The National Organisation for Help to People in Hiding) (LO), apparently from 1942 to 1945 when the Netherlands was liberated. This body was originally formed with the intention of helping Dutch people, especially men, who were required to go to Germany to work in its war effort. Of course few would return if they went. By September 1944 the LO had a membership of 10,000 people who officially served part time in the sense that they could if they wished carry on other jobs or activities. In fact, like most underground resistance groups, they were really on call and at risk 24 hours a day. In 1943 a number of LO members formed a military or action arm known as the Landelijke Knokploegen (National Active Resistance Group) (LKP). The membership of the LO was kept secret and members maintained a pretence of living ordinary lives under the German occupation while taking every and any opportunity to support the allied cause. Among other things they helped Dutch men at risk of deportation to Germany to work in building its war machine, to avoid going by providing them with food coupons, false identity papers and permits to stay in the Netherlands. They also monitored allied radio programs and provided information services, as well as actual food, money and places to hide.
On 5 September 1944 Queen Wilhelmina of the Netherlands, heading a government in exile, formed the NBS (Forces of the Interior) from a number of resistance groups who were in attendance at a conference she called in London. The forces were placed under the personal command of her son-in-law Prince Bernhard and were required, or were susceptible to being called upon, to carry arms and live ammunition. The LO was present at and participated in the conference but did not officially join the Forces of the Interior because the secret work it was doing put its members in fear of being detected and shot by the Germans if they were found to be carrying arms. Nevertheless members of the LO worked with and supported the Forces of the Interior in a number of ways including in the critical task of providing food. The LO regarded itself, and was treated by other elements of the Forces, as de facto members in that its members were on call to Prince Bernhard as and when required.
Because he is now in a psychiatric hospital in Sydney apparently receiving an aged pension, Mr Boots could not give oral evidence to the Tribunal, although he did submit a statutory declaration. Oral evidence on relevant matters was given to the Tribunal by two former members of the LO and the Tribunal had the benefit of a number of documents submitted to support the claim. It seems that Mr Boots first made enquiries about a possible entitlement to an Australian service pension in August 1984 but it was refused in December 1985. In March 1986 there was an application for a review. The review decision was not made until 16 February 1988 but it was also negative. The reason for this long delay in dealing with the claim of an ill person more than 60 years old is not clear. It seems, to say the least, extraordinarily unkind.
In his evidence for the 1984 claim, Mr Boots said that he was a registered resistance worker. He was commanded by people with code names, did not wear recognisable insignia and did not openly carry arms. The LO did not ordinarily conduct its operations in accordance with the laws and customs of war but it became attached to, if not a member of, Prince Bernhard's Forces of the Interior. Mr Boots distributed illegal leaflets and printed papers and monitored the allied news from Radio London which was later reproduced in underground newspapers. He personally built the radio he used. No doubt he also maintained it.
The second claim, the present one, was lodged on 9 March 1990. In support of this claim, Mr Boots said in his statutory declaration that his father joined the LO which became involved in a wide range of resistance activities including caring for Allied pilots shot down over the Netherlands, the printing and distribution of underground newspapers and the other services referred to earlier. As the oldest of eight children in the family but still only a teenager, Mr Boots helped his father in his business and LO activities. He was determined not to go to Germany to work and remain a member of the LO so he hid in his parents' home and seldom went outside. In other words he was permanently housebound, a type of house arrest, because of his membership of the LO. His father obtained for him a false permit to match his identity card. He explained that he was able to build the radio receiver and transmitter mentioned earlier by reason of his training in electricity and electronics at trade school. He resumed these studies after the war.
To be entitled to a pension under Australian law, Mr Boots must qualify as an "allied veteran" within the meaning of section 35(1) of the Veterans' Entitlements Act 1986 (the Act) which the parties agree is the correct statute to apply in this case. To comprehend what the Parliament intended to be the qualifications of an allied veteran, it is necessary to give attention to a number of provisions of the Act. An allied veteran is by section 35(1)
... a member of the defence force established by an allied country (who) has rendered continuous full-time service as such a member during a period of hostilities ...
other than a member of an armed force of a country which was, when the person was a member of it, at war with Australia. Such a person who is male is by sections 38 and 35(2) entitled to a pension if he is 60 years of age, has lived in Australia for at least 10 consecutive years, and has rendered "qualifying service".
For allied countries with a government in exile, like the Netherlands in World War 2, a relevant defence force for the purposes of subsection (1) of section 35 is extended by subsection (3) to include "the nursing or auxiliary services of the regular naval, military or air forces ... raised by that government in exile and operated by it with regular military-like lines of command ..." and operated in the manner prescribed in paragraph (b) of section 35(2). The relevant provisions of that paragraph are that the persons concerned were formally appointed to or enlisted in the force in question, were required to wear uniforms or distinguishing insignia and to carry arms openly, and were subject to the rules and conventions of warfare. These provisions were modified or mollified by section 35(4) which provided that where such forces were not required to wear uniforms or distinguishing insignia or to carry arms, their members would still qualify for a pension if it would have been unreasonable to have such requirements at the relevant time and place.
A person renders "qualifying service" within section 38 if in accordance with section 36 the person:
(c) ... is an allied veteran who, during a period of hostilities, has, as a member of the defence force established by an allied country, rendered, in connection with a war, or war-like operations, in which the Naval, Military or Air Forces of Australia were engaged, service in the area within or outside the country in which the person enlisted in those forces, being service in respect of which the person incurred danger from hostile forces of the enemy.
It will be obvious, and the Commission accepted, that Mr Boots was qualified under most of these requirements. The issue raised by the Commission before the Tribunal was whether the LO was an auxiliary service of the forces raised by the Dutch government in exile and whether the persons involved in the service met the requirements of section 35(4). The Commission submitted that while it may be that the LO had regular military-like lines of command, there was certainly no formal appointment to or enlistment in the LO, and the LO did not comply with or regard itself as bound by the rules and conventions of warfare. The Commission seems to have conceded that it would have been unreasonable to have required members of the LO to wear uniforms or insignia or to carry arms. In any case the Tribunal found such unreasonableness.
The Tribunal's task of finding the basic facts was not difficult because most of them were admitted or not seriously contestable. But the Tribunal did not address the issues raised by the Commission because it found that Mr Boots had not rendered "continuous full time service" as a member of the LO. The Tribunal referred to a passage from a decision of a differently constituted Tribunal in Marinucci v Repatriation Commission given on 14 May 1991 where it was said:
Essentially such service required that the person was a member of the army, navy or air force on call at all times to undertake duty and was under military discipline all the time.
After quoting from the Defence Act 1903, the Concise Oxford Dictionary, and a decision of Romer LJ in the English Court of Appeal on the Matrimonial Causes Act 1950 (UK) in Swymer v Swymer (1954) 3 All ER 502 at 505 to the effect that the word "continuously" in the context of long term medical treatment in a mental hospital does not exclude periods of temporary authorised absence, the Tribunal said:
Turning to the case before us, we have found that Mr Boots distributed coupons and built a radio transmitter. On the evidence, we are unable to find anything other than that he performed these services for the LO on a "needs" basis when called upon. Otherwise, he carried on his normal life. In view of that, we consider that his service to the LO was continuous in that it never ceased i.e. he always did the LO's work as called upon. There is, however, no evidence on which we can find that the service which he gave the LO was continuous full-time service. It was not work which could be regarded as taking all of his normal working hours for there is evidence that members of the LO went about their normal lives between carrying out their duties. There was no evidence that members of the LO could simply leave their daily occupations to carry out the LO's work. On the evidence, the work for the LO had to be fitted in with members' daily lives while maintaining the appearance that they were doing nothing other than carrying on those normal lives. There is no evidence to lead us to conclude that Mr Boots was any different from other members. It follows, therefore, that we do not consider his work to be full-time continuous work for the LO.
In the Tribunal's view, "continuous full time service envisages that there may be ... periods of absence but that otherwise the service takes all of a person's normal working hours." It is clear from the Tribunal's decision that it considered Mr Boots' service in the LO to be continuous but not full time.
The grounds of appeal attack this finding that Mr Boots did not render full time service as a member of the LO in a number of different ways -- including that the Tribunal misdirected itself as to the meaning of the term, there was no evidence to support the finding, and the finding was against the evidence and the weight of the evidence. It was also said that the finding involved the Tribunal in determining a matter not in issue between the parties and that the Tribunal denied the applicant natural justice by denying him the opportunity to adduce evidence and make submissions on the matter. The Tribunal was also said to have erred by failing to determine whether Mr Boots was a member of an auxiliary service within section 35(3)(b) of the Act.
The Tribunal's considerations appear to have treated service in an underground resistance organisation in a country occupied by a fascist power bent on world domination by brutal and authoritarian means as being similar to service to a civilian employer in a peacetime democracy. In ordinary experience, this would seem to be an erroneous analogy. As it happens, it also flies in the face of the evidence given to the Tribunal by Andrew Hilbrink and Andries De Leng, two former members of the LO themselves who are now Pension Officers of the Netherlands Ex-servicemen's and Women's Association in Australia. Mr Hilbrink was previously Deputy National President and Secretary of that organisation. He said (at appeal book pp 98-9):
Q. Was involvement in the resistance movement a part-time involvement; was it something you'd go to your day's work, you'd break off, go home, have your tea and go out and resist?
A. It was very much and particularly during the occupation up till September 1944 this is so significant because this was the Battle of Arnhem 17 September when everybody expected that the Netherlands would be liberated. Up till that date it was very much a part-time activity. We pretended to be law-abiding citizens and went to work and then as soon as that was finished or during the work we would do things but as soon as it was finished we had the opportunity to do other things. Yes it was very much a part-time occupation.
Q. But would you say that it wasn't as if during your normal day's work you would not resist, you would not do something?
A. We mixed it very much.
Q. I'm sorry?
A. It was a mixture. One's day was a mixture of what's called legal and illegal activities. Q. But I think the point that ...?
A. I would issue - I would issue identity cards in accordance with the prevailing law in the Netherlands which was the German laws but I also did - did against those laws.
Q. So then it wasn't really part-time? A. Well, I don't know, you could be called 24 hours a day, let's put it that way.
Q. Right, that's the point I'm trying to get? A. Yes.
Q. That you were ...?
A. The danger was 24 hours a day.
Q. There wasn't a point where you'd signed on as a resistance member?
A. No, sir.
Q. And then sign off for a tea break ...? A. No.
Q. It was a full-time ...?
A. Then on and on and on.
Mr De Leng was not only a member of the LO but also a member of Prince Bernhard's Forces of the Interior established by Queen Wilhelmina. He said that the members of the LO were very much involved in the BS, the army of the interior. The main difference between the rest of the Forces of the Interior and the LO was carriage and training in the use of arms. After describing the work of the LO, Mr De Leng was asked this question:
And did (the LO) ever undertake duties that may have incurred danger to themselves?
His answer was:
We certainly did. If you were caught you either went to a concentration camp or you were shot.
It seems to me difficult to deny that a person whose life was on the line at any minute because of his membership and the activities of an organization was in the full time service of that organisation.
Mr De Leng described his father, a manager of a large printing house, as a member of a small LO group of about 12 printers and photographers who specialised in printing false documents. Mr De Leng helped his father in that vital work. He said that it was too dangerous to know much about the chain of command in the LO "because if you were caught, the Germans used to grill you and they used to get the information out of you. So the less you knew of the chain of command the safer it was." Another of his descriptions of the life and times of members of the LO was this:
Q. There is evidence of meetings involved with members of the LO?
A. Yes, yes. Sometimes our leader was asked to do a specific job. For instance, ID cards were printed. I remember we printed a few hundred ID cards and they had to be handed over for distribution amongst the people that needed them. I remember at some time we even printed shares of German companies which were, you know, used because the needed money, and money - you had to get money by hook or by crook, so they used all sorts of means.
A. And membership of the LO, I asked Mr Hilbrink this as well, was it something you did on your weekends off? Q. Well, at the time I was called up to go to Germany and work in the German industry in October 1942 and I refused that, but the result was that I couldn't stay at home any longer so I had to find an alternative address where I could stay. I also needed papers to sort of - what they call an ausweis, a German ausweis, that gave you the right not to be in Germany but to stay in Holland, so I got an ausweis that qualified me as an accountant for some organisation that supplied food. People in the food industry producing food they didn't have to go to Germany to work in the German industry, so I had a document like that. Q. So by virtue of the fact of the German order that all males had to go and work in Germany those who didn't were in fact considering resisting the Germans? A. Yes, yes. If you were caught you went to a concentration camp.
Q. And that state was a 24 hour state of conflict? A. My word.
The only cross-examination of substance of Mr De Leng concerned enlistment in the LO and its observance of the rules and customs of war. These were the questions and answers:
Q. Would you agree that there is no formal enlistment in the LO?
A. No, sir, you couldn't - nothing was put on paper. These documents that I have here were the documents - were done by the highest commanders of the organisations and they were kept in a very secret place. If they would fall in the hands of the Germans, you know, the result would have been terrible.
Q. And, Mr De Leng, would you also agree the LO were not subject to the rules of conventions of warfare? A. I would say they - the LO was not armed but it didn't make any difference to the Germans. If you were caught - if I was caught then they would have sent me to a concentration camp because I didn't comply with the law of the Germans which was a completely different law from our laws.
Q. Yes, and also the international laws, Geneva Conventions?
A. How can a country compel people of another country to work in their war industry, how can they compel them. No law can be made in that regard I could say. Q. And in fact - if you'd perhaps just answer the simple question though - the LO was not governed by the rules and conventions of warfare; is that correct? A. I wouldn't know, we didn't know those laws, we talked about it. Because when you were together you talked about things that you could do and could not do but we didn't really know them.
Q. And there was never any instruction? A. There was discussion alright.
Q. Never any instruction?
A. No, not in that regards, no.
It is this evidence to which must be applied the words of the statute. "Continuous full time service" is defined by section 5(1) as:
(a) in relation to a member of the Defence Force:
(i) service in the Naval Forces of the Commonwealth of the kind known as continuous full-time naval service;
(ii) service in the Military Forces of the Commonwealth of the kind known as continuous full-time military service; or
(iii) service in the Air Force of the Commonwealth of the kind known as continuous full-time air force service;
(b) in relation to a member of the naval, military or air forces of a Commonwealth country or an allied country - service referred to in subparagraph (a)(i), (ii) or (iii).
The odd concept of service "known as continuous full-time ... service" in this section can clearly not be as eccentric as it looks. Justice Hill was undoubtedly correct in his comment in Repatriation Commission v Kohn (19890 87 ALR 55 that "the definition is curious in that it raises the question 'known to whom?'". For myself I gain little assistance for this case from dictionary definitions or the English Court of Appeal decision mentioned by the Tribunal. But following on from the Tribunal's reference to section 45(1) of the Defence Act 1903 that "members of the Australian Regular Army or of the Regular Army supplement are bound to render continuous full time military service", I have ascertained that the Defence Force (Home Loans Assistance) Act (Cth) 1991 contains in section 3 the following provision:
continuous full time service means an unbroken period of full time service by a member in the Defence Force ...
A number of special circumstances exist in section 7 by which full time service can be broken, in such that full time can mean something less than is commonly understood by that expression in terms of ordinary civilian work concepts. Case law in this area provides little help in interpreting this phrase, as the common meaning of full time in regard to general employment in Australia appears to equate to forty hours per week or its later substitutes: Quad Consulting Pty Ltd v David R Bleakley and Associates Pty Ltd and Ors (1990) 98 ALR 659.
Clearly it is not easy to correlate a legislative definition in peacetime Australia (s. 5(1) of the Act) to the situation of underground forces resisting Nazi occupation in occupied Europe. But it is more difficult to conclude that the Australian Parliament intended that its special legislation for this purpose exclude from its benefits a full time member of a group such as the LO. As it seems to me, Parliament's intention was not to lay down conditions which were to be subject to pedantic analysis made from the safety and remoteness of more than forty relatively peaceful years later but to include as persons entitled to an Australian pension those former citizens of friendly countries who could be seriously regarded as having truly participated in their countries' national defence effort to resist and eventually defeat their and our joint enemy. Having in mind that many Australians who gave significant personal but informal service to the war effort of this country are not entitled to a pension, Parliament was clearly concerned not to grant any broader right to migrants from allied countries who had been similarly active in their former countries. No doubt it was also anxious to exclude people who claimed national defence-type service falsely or claimed a type of service that was so peripheral or general to the defence of freedom as to be unable to be evidenced and checked.
Following the hearing on 18 December 1992, a further submission in handwriting was sent to me on behalf of the applicant to the effect that it will make a material difference to Mr Boots if he receives a service pension rather than his aged pension. The argumentation supplied was clearly prepared by someone other than Mr Boots and no cause was given for raising the issue at all, let alone so late in the piece. The matter had not even been mentioned at the hearing. The Commission responded by a further written submission on 24 December 1992 signed not by the counsel who appeared at the hearing but by the Australian Government Solicitor. It seems to be of departmental origin. The conclusion drawn was that Mr Boots stood to gain nothing in financial terms from this appeal. It was argued that the Court should therefore dismiss it in the exercise of its discretion.
I know of no such discretionary power, or none that would be exercised, if there is a material error of law. Nor is a relevant reason suggested as to why such a course should be followed. More importantly, these two late unheralded submissions made a series of factual assertions which are not supported by evidence and had not been submitted to the Tribunal or presented to this Court. They give the impression of being part of a political dogfight between the Commission and the Netherlands Ex-Service Association. I can do nothing to resolve this dispute, either as a matter of jurisdiction, power, evidence or inclination. There is nothing in the Act, and no identified public interest, which requires that if a person is qualified for a veteran's pension, it should be denied because s/he can get an equivalent sum by way of an aged pension. If so, it should have been put years ago before Mr Boots was put through this litigious eternity.
In my opinion the Tribunal erred in law in at least three respects. Whilst it is true that Mr Hilbrink gave some evidence about the extent of service rendered by members of the LO, the evidence was given in re-examination without objection or a request to cross examine further. Nothing was asked about this matter in chief -- as the witness was called as an expert to prove the case, this was a sure sign that it was not, and not conceived as, an issue. Nor was there any cross-examination on the matter at all, the nearest questions being these:
Q. I think you've told us that from your conversations with Mr Boots during the whole of his time working for the LO he in fact lived at home with his father, is that correct?
A. He did live at home, yes.
Q. And he assisted his father in the running of his business and he also conducted these other activities of distributing coupons and building the radio transmitter, is that ..?
A. That's correct, and distributing news bulletins.
It is quite clear to me from the evidence and submissions that the question of whether Mr Boots was in continuous full time service was conceded and was not an issue the Tribunal was called upon to decide. For it to have assumed that the Commission missed a major precondition to entitlement, in what must have been thought by the Tribunal to be gross negligence on the part of both the Commission and its lawyers for the eight years since Mr Boots submitted his first claim, was in the circumstances of this matter most unwise, to put it mildly. More importantly, Mr Boots was not called upon to address the issue either in evidence or submission. To lose a case because the judge finds against you on an issue that was not put up for resolution and therefore not addressed by evidence is the very essence of breaches of natural justice by courts and tribunals.
This approach led to a second legal error. The Tribunal did not in fact decide the issues put before it for resolution to which the great bulk of the evidence was directed. They were not difficult issues -- whether the LO was an auxiliary to the Forces of the Interior, whether there was enlistment or appointment in the LO, and whether the LO was subject to the rules and conventions of war. Not one of them was decided.
It was not disputed that Prince Bernhard's forces were a relevant defence force. There was abundant evidence that the LO was at least an auxiliary service to these forces, if not a de facto member of them. In the context of underground resistance forces, there could have been little doubt that the LO had an enlistment or appointment procedure, albeit informal. It undoubtedly had procedures to avoid admitting a German spy or "plant" or a Nazi sympathiser, and it must have had procedures to avoid people coming and going while tasks allocated to them were not or only partly done. In view of the crucial need to maintain the secrecy of its activities and the danger of a single member being revealed, fatal to the member as well as to the rest of the organization, it is obvious that the integrity, loyalty and dependability of recruits/appointees had to be absolute. There was no room for error. Recruitment (appointment) therefore had to be selective and particular and the required rules of conduct precise and inflexible. In other words, although it had no membership register to attract German detection and the ultimate punishment, in its own way the LO obviously had a quite precise means of admitting or accepting members and its command structure would have known who was a member and who was not.
There was also ample evidence that the LO was at least as subject to the relevant rules and conventions of warfare as might apply to such unarmed auxiliaries -- in other words, as far as the concept has relevance to underground resistance groups not bearing arms -- as other similar groups. Much of the Geneva Conventions and Protocols relating to war and armed conflict have to do with humanitarian treatment of armed personnel, prisoners of war, auxiliary workers and civilians, both armed and unarmed. They are known compendiously as International Humanitarian Law: see Marcus Einfeld, People's Rights in Armed Conflict - From the Battle of Vinegar Hill to the Gulf Conflict, extracted in Open Lines, International Humanitarian Law Bulletin for the Asia/Pacific Region No. 7 November 1991 (Australian Red Cross Society). There was no evidence on which the Tribunal could have found that the members of the LO acted in disregard of these principles. Most of the other rules and customs of war are unrelated to the work of bodies such as the LO.
In any event, Parliament could not have intended that courageous fighters in a vital cause in which Australia was directly involved on the same side, who were permanently vulnerable to deportation or death, should unequivocally comply with international moral standards while fellow citizens and allies, including Australian soldiers, were being trampled upon by a powerful enemy to whom these standards and humanitarian behaviour were emanations of a foreign language. This was not gainsaid by negative answers to the direct questions on this topic in the evidence because the questions were too general and unprobing, and the answers fell to be assessed in the light of all the evidence and the reasonable inferences to which it gave rise. Yet the Tribunal ignored all this evidence and its inferences and decided a quite different case, all of its own motion and initiative. This it was not lawfully entitled to do.
A third error was the Tribunal's interpretation of full time service even if the issue was alive and not conceded. The only evidence before the Tribunal on this matter was Mr Hilbrink's and Mr De Leng's and it was not challenged. Correctly read, this evidence is fully supportive of the large volume of literature that has recorded the work of underground forces throughout the European theatre during World War 2. Mr Hilbrink's evidence was that the members of the LO were at risk of their lives every day of their service. They did everything asked of them and more, and did it whenever it was asked regardless of personal danger and convenience. Mr De Leng's evidence was that detection was not a part-time risk, nor were its consequences less than comprehensive. No doubt Mr Boots' monitoring of the BBC included remaining at his post throughout many nights. The fact that in the daylight hours before and after those nights he may have helped his father's business when his father was himself doing duty as a member of the LO trying to keep Dutch people under threat of deportations to German labour camps or allied pilots shot down alive and safe, means only that he did not sleep much on those days. It hardly meant that he was not a full time operative. There seems no doubt that Mr Boots spent little of his late teen years doing anything else except assisting the Forces of the Interior by his work in the LO.
The application will be allowed and the Tribunal's decision set aside. The applicant next asked this Court to grant him the service pension he seeks. It is certainly tragic that an ill person who has performed such heroic service in the cause of freedom has been denied a pension for almost nine years when his entitlement seems manifestly established. Yet the Tribunal's failure to find the facts appropriate to the matters in issue, and necessary for their determination, puts the Court in the difficult and wholly undesirable situation of having to cause further delay. For Parliament has decreed that this Court is not to find facts but merely decide issues of law. In view of the lack of true contest on the facts, virtually all of the matters placed before the Tribunal were merely interpretative. This Court is thus seemingly in as good a position as the Tribunal to decide the facts. However, as I did not hear their evidence, I am simply not permitted to make the necessary determination that the evidence of Messrs Hilbrink and De Leng was or be accepted. The matter will have to be remitted to the Tribunal to be reheard in accordance with these reasons for judgment. It is to be hoped that this hearing will be able to take place promptly.
The respondent will pay the applicant's costs.
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