Collier and Repatriation Commission
[2004] AATA 663
•28 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 663
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2003/886
VETERANS' APPEALS DIVISION ) Re LOUIS COLLIER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member Joan Dwyer
Mr C. Ermert, MemberAssociate Professor J.H. Maynard, Member
Date
28 June 2004 Place
Melbourne
Decision The Tribunal sets aside the decision of the Repatriation Commission made on 4 October 2002. In substitution the Tribunal decides:
i) Mr Collier’s osteoarthrosis of the knees is war-caused under s 9 of the Veterans Entitlements Act 1986 (“the Act”), with effect from 30 April 2002; and
ii) Mr Collier is entitled to pension at 100 per cent of the general rate under s 22 of the Act, with effect from 30 April 2002.
(sgd) Mrs Joan Dwyer
Senior Member
VETERANS’ APPEALS – whether veteran’s osteoarthritis of the knees war-caused under s 9 of the Veterans’ Entitlements Act 1986 – whether veteran had operational service under s 6A of the Veterans’ Entitlements Act 1986 – requirement that service be “continuous full-time service outside Australia” – veteran sailed from Sydney to Townsville on SS Katoomba – Tribunal to consider “essential character” of voyage – vessel faced a high probability that it would be attacked – finding that voyage was nine days and vessel sailed outside Australian waters except when leaving and arriving in port – voyage in area of enemy submarine activity – veteran travelling in company with Division – essential character of voyage was continuous full time service outside Australia – reasonable hypothesis raised – decision under review set aside.
Veterans’ Entitlements Act 1986, ss 5C, 6A, 7,9, 22.
Repatriation Commission v Kohn (1989) 87 ALR 511
Proctor v Repatriation Commission (1999) 54 ALD 343Repatriation Commission v Deledio (1998) 49 ALD 193
REASONS FOR DECISION
28 June 2004 Senior Member J.R. Dwyer
Mr C. Ermert, Member
Associate Professor J.H. Maynard, Member1. The issue in this hearing was whether Mr Collier’s condition of osteoarthrosis of the knees should be accepted as a war-caused disease under s 9 of the Veterans Entitlements Act 1986 (“the Act”).
2. The respondent conceded at the commencement of the hearing that if the Tribunal found that Mr Collier had “operational service” under s 6A of the Act, then, applying Instrument No. 81 of 2001, the current Statement of Principles (“SoP”) for osteoarthrosis, where a veteran has operational service, Mr Collier would be entitled to have osteoarthrosis of the knees accepted as a war-caused disease. The respondent submitted that, if, on the other hand, Mr Collier’s service was “eligible service” but not operational service, then applying Instrument No 82 of 2001, which is the current SoP applicable where a veteran has eligible service, Mr Collier could not meet that SoP so as to allow the Tribunal to be satisfied that his osteoarthrosis of the knees is war-caused.
3. Mr Chancellor of Counsel appeared for Mr Collier. Mr Rudge, an advocate with the Department of Veterans Affairs (“DVA”) appeared for the Repatriation Commission (“the Commission”). Mr Collier gave evidence. Associate Professor McCarthy, a historian, gave evidence for the Commission. The Tribunal had before it the documents (the “T documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and the exhibits tendered during the hearing.
4. The application for review covered two decisions of the Commission, both of which were affirmed by the Veterans Review Board (“the VRB”) on 13 June 2003. The first decision, made on 21 June 2002, related to the rate of pension payable to Mr Collier in respect of accepted war-caused conditions of essential hypertension, cerebrovascular accident, acne and conjunctivitis. The Commission refused to increase the rate of disability pension payable to Mr Collier beyond 30% of the general rate provided for in s 22 of the Act.
5. The second decision was made by the Commission on 4 October 2002. It accepted Mr Collier’s claim that he suffers from bilateral sensorineural hearing loss and gastro-oesophageal reflux disease which are war-caused under s 9 of the Act, and increased his rate of disability pension to 40% of the general rate, with effect from 30 April 2002. The part of that decision which gave rise to the issue at this hearing was a decision that osteoarthritis affecting both of Mr Collier’s knees was not related to service.
6. The respondent, in its Statement of Facts and Contentions, conceded that the decision of the Commission made on 21 June 2002 should be set aside and a decision be substituted that pension be paid to Mr Collier at 50% of the general rate with effect from 17 May 2002. However, the question whether osteoarthrosis of the knees was war-caused remained in dispute.
SERVICE HISTORY
7. Mr Collier served in the Australian Army (“the Army”) during World War 2 from 3 December 1941 to 11 April 1946. He served with 4th Division Signals as a wireless and line operator. He served within Australia, in Victoria, Western Australia and Queensland. He also made a voyage on SS Katoomba. The records show that he embarked on SS Katoomba on 6 May 1943 at Sydney and disembarked at Townsville on 15 May 1943. After this disembarkation, he served with 4th Division Signals at Jackie Jackie on the Cape York Peninsula until November 1944, when he returned to Victoria for compassionate leave following the death of his father.
LEGISLATIVE PROVISIONS
8. The question for determination by the Tribunal is whether Mr Collier’s service during the period of the voyage is “operational service” within the definition in s 6(A)(1)(a) of the Act. Those provisions provide:
SECT 6A - Operational service—world wars
((1) Subject to subsection (3), a person referred to in column 2 of an item in the following table is taken to have been rendering operational service during any period during which the person was rendering continuous full-time service of a kind referred to in column 3 of that item.
….
Item Person Nature of service 1 A member of the Defence Force (a) continuous full-time service outside Australia during a war to which this Act applies
9. Section 5C(1) of the Act defines “continuous full time service” as follows:
(1) In this Act, unless the contrary intention appears:
…
continuous full-time service means:
(a) in relation to a member of the Defence Force:
…
(ii) service in the Military Forces of the Commonwealth of the kind known as continuous full-time military service; or
…
THE EVIDENCE
10. Mr Collier provided a statement (A1) dated 13 August 2003. In that statement he said:
I was born on 3rd October 1922.
I served in the Australian Army from 3rd December 1941 to 11 April 1946.
Aside from travelling from Cape York Peninsula to Horn Island for dental treatment and sailing from Sydney to Townsville in about May 1943 I otherwise served on mainland Australia during the Second World War. I was not serving in the Northern Territory at the time that the Japanese were bombing around the Darwin area.
I do believe that I incurred danger from Japanese forces during the journey from Sydney to Townsville. It is my recollection that my vessel (the name of which I cannot now recall) sailed one day or perhaps less behind and along the same route as a hospital ship (I believe HMAS Centaur). That hospital ship was sunk by a Japanese submarine and my vessel was ordered to take evasive action. It is my understanding that we consequently sailed in an easterly direction in order to minimise the prospects of being fired upon.
I did not see any actual enemy action during my service.
…
11. Mr Collier gave evidence in a frank and open way. He conceded that he had limited recollection of his voyage from Sydney to Townsville. The records show that he sailed in SS Katoomba. At first, he believed that he could only recollect the second part of the voyage from Brisbane to Townsville and that he recollected the hospital ship, HMAS Centaur, being berthed just in front of SS Katoomba in Brisbane. However, when Professor McCarthy gave evidence it appeared that HMAS Centaur was not berthed at Brisbane at the same time as SS Katoomba but could well have been berthed at Sydney at the same time as SS Katoomba. Mr Collier recollected recognising HMAS Centaur as a hospital ship because of the “great big red cross” painted on its side, and also because it was carrying lights, whereas the other ships berthed at that harbour were all blacked out.
12. Mr Collier said that the whole of his Division made the voyage and all the signals equipment of his Division sailed with them. The reason for the voyage was to proceed to a signals station at Jackie Jackie on Cape York Peninsula. During his posting at Cape York Peninsula, Mr Collier spent one or two months at the northern point of the peninsula to establish a new relay station.
13. Mr Collier recollected learning, while he was at sea, that HMAS Centaur had been sunk. It was his belief that evasive action was taken by SS Katoomba as a result of that sinking. Professor McCarthy said that the records establish that the sinking of HMAS Centaur occurred near Brisbane, the day before SS Katoomba arrived at Townsville. Thus, it appears more likely that if evasive or defensive action was taken by SS Katoomba, it was because of the known presence of Japanese submarines in the seas through which SS Katoomba was sailing, rather than as a response to the sinking of HMAS Centaur. Mr Collier said he recalled sailing east when leaving Brisbane, rather than in a generally northerly direction as he had expected.
14. Due to Mr Collier’s hazy recollection of that voyage which took place more than 60 years ago, the Tribunal relied mainly on the evidence of Professor McCarthy, who is an Associate Professor and Visiting Fellow at the Australian Defence Force Academy in Canberra. He provided two reports dated 17 December 2003 (R1) and 5 May 2004 (R2). In his first report, Professor McCarthy explained that there were two vessels with the name Katoomba sailing between Brisbane and Sydney in May 1943. One was HMAS Katoomba, a minesweeper, the other was SS Katoomba. Professor McCarthy concluded that Mr Collier must have sailed on SS Katoomba. HMAS Katoomba did not sail from Sydney and Mr Collier’s service record clearly shows that he embarked Katoomba from Sydney on 6 May 1943. Professor McCarthy established that SS Katoomba was a passenger liner which was converted into a troop ship, and saw considerable service carrying American and Australian servicemen to New Guinea. At the time Mr Collier sailed in SS Katoomba, it was carrying the stores and equipment of 4th Australian Division Signals.
15. Professor McCarthy wrote that SS Katoomba was part of a coastal convoy and “such convoys were it seems steamed some 20 miles from the coast”. He deduced that from the information and map contained in G Herman Gill, The Royal Australian Navy 1942-1945 (Canberra 1968) pp 254-256. Professor McCarthy said that it was quite possible that, at times, the ship did sail east rather than due north because it was common for vessels in a convoy to zig-zag to make themselves less likely to be targets of Japanese submarines.
16. In regard to the question of contact with the enemy Professor McCarthy wrote that “voyage reports for SS Katoomba were not available”. He added (R1, p4):
… As noted SS Katoomba left Sydney on 6 May 1943. There were Japanese submarines operating along the New South Wales coast during the period of the Veteran’s voyage. On 29 April 1943 a Japanese submarine I-180 torpedoed and sunk the 2239 ton steamer Wollongbar off Port Macquarie and on 5 May 1943 the same submarine sank the small cargo ship Fingal off Numbucca Heads. [Gill, op.cit, and David Jenkins, Battle Surface: Japan’s Submarine War Against Australia 1943‑1944, (Sydney, 1992) pp 274-275 et.al.) Attached as Appendix 11 is a map showing the incidence of Japanese submarine activity in 1942/1943. There is no evidence that SS Katoomba did make contact with these enemy forces but there is no doubt that enemy forces were operating in the waters between Sydney and Brisbane during the period 5 May 1943 and the time she entered the waters off Brisbane.
You ask if the Japanese sank a ship a short period ahead of, and on the intended route of Katoomba? Did Katoomba take ‘evasive action’ as a result of the sinking? This question has partially been answered above. In the early morning of 12 May 1943 1/180 torpedoed and sank the 5832 ton Ormiston which was sailing in convoy off Coffs Harbour. On 12 May 1-180 torpedoed and damaged Caradale of Evans Head and on 14 May 1943 the hospital ship Centaur was torpedoed and sunk off Strathpine some 25 kilometres north of Brisbane. It is impossible to say if SS Katoomba took evasive action.
… The above shows that Japanese submarines were operating in an active fashion in the waters traversed by SS Katoomba in the period 6 May 1943 and 15 May 1943.
17. At the end of his report, Professor McCarthy answered a question as to the history of Japanese submarine activity off the New South Wales and Queensland coasts in 1943:
…
In the space of 30 months 27 large Japanese submarines operated in Australian Waters. The main activity took place between June 1942 and June 1943. Within that period the Japanese sank seventeen ships off the Australian East Coast. Some 25 other ships survived Japanese submarine attacks although some sustained serious damage. The Japanese campaign resulted in 465 allied deaths. The last attacks off the New South Wales and Queensland coasts took place on 16 June 1943.
18. An Appendix to Professor McCarthy’s report (A1) shows the locations and dates of vessels damaged and sunk by Japanese submarine activity and, in one case, by a German U-Boat off the coast of New South Wales and Queensland. Eight vessels were damaged and sunk in the months of April and May 1943 in the waters between Sydney and Townsville. The relevant entries are:
Lydia M. Childs sunk near Newcastle on 27 April 1943,
Wollongbar sunk near Newcastle on 29 April 1943,
Ormiston damaged near Coffs Harbour on 12 May 1943,
Fingal is sunk near Coffs Harbour on 5 May 1943,
Caradle damaged near Coffs Harbour on 12 May 1943,
Limerick sunk south of Brisbane on 26 April 1943,
HS Centaur sunk north of Brisbane 14 May 1943 and
Kowarra sunk south of Maryborough on 24 April 1943.
19. In his second report, Professor McCarthy answered two specific questions. He was asked whether the records of other ships sailing in convoy with SS Katoomba indicate that contact was made with the enemy or that alternative routes were taken, and as to the probability of SS Katoomba being attacked on the voyage from 6-15 May 1943. He responded:
…While from the evidence available it is impossible to be precise, it may be concluded that there was a considerable amount of traffic traversing that route in May 1943. A typical convoy consisted of between ten and fifteen ships together with naval escorts and such convoys were constantly assembled…A reasonable conclusion must be that there was a steady stream of traffic along the East Coast of Australia in May 1943. The fact that this route was the chosen target area of Japanese submarines might reinforce this point.
20. Professor McCarthy wrote that none of the vessels in the convoy with SS Katoomba recorded contact with the enemy, but he added (R2, p2-3):
…You ask what was the level of probability of SS Katoomba or the convoy generally being engaged by the enemy on its voyage between 6 May 1943 and 15 May 1943? Given the nature of Japanese activity it might be concluded that any convoy sailing in these waters faced a high level of probability that it would be attacked. The submarines carrying out these attacks were very large with an endurance of some ninety days and a range of 16000 nautical miles. They thus could "loiter" in the target area ready to attack a target of opportunity. Attached is a "Report of a Torpedo Attack on Convoy OC 93" which might give an indication of the suddenness attacks on such targets could develop and their nature. The map included with my report of 17 December 2003 shows that in the area between Sydney and Townsville and within the dates of 6 May 1943 and 15 May 1943 four ships were torpedoed. Of course it might be argued the sea is vast and not every convoy was attacked – it could well be that an element of chance was involved.
In conclusion there is no evidence from the records consulted that Convoy BT 38 of which SS Katoomba was a part came under attack by hostile forces of the enemy, that evasive action was taken or an alternate route followed. The traffic between Sydney and Townsville was considerable and so thus was the Japanese choice of targets.
21. We find from that evidence that SS Katoomba, on which Mr Collier sailed, "faced a high level of probability that it would be attacked". In fact, four ships were torpedoed between Sydney and Townsville in the seas in which Mr Collier sailed, within the time he was sailing.
22. We find further that Mr Collier travelled in SS Katoomba with the whole of his Division, and with all of the Division’s signals and construction equipment required by the Division to perform its duties, such as construction of the relay station at the northern point of the Cape York peninsula. We find that the duty of the Signals Division was to support combat operations in New Guinea. Professor McCarthy said that the role of the signals station at Cape York Peninsula was to transmit messages to and from Australian servicemen serving in New Guinea.
APPLICATION OF THE DEFINITION OF OPERATIONAL SERVICE
23. There is no doubt that Mr Collier’s service was “continuous full-time service” but was the period of the voyage “service outside of Australia”? The construction of s 6(A)(1)(a) of the Act has been considered by the Federal Court in Re Repatriation Commission and Kohn (1989) 87 ALR 511 and Proctor v Repatriation Commission [1999] FCA 32, 54 ALD 343.
24. In Kohn, Mr Kohn was serving in the Royal Australian Airforce. The issue was whether he had had “continuous full time service outside Australia” when, during a 12‑hour voyage, leaving Townsville at 6:30am and travelling non‑stop to Cairns, where he arrived at 6.30pm, he had been outside Australian territorial waters. Mr Kohn made that voyage on his own, so far as is apparent from the reasons for decision. He was travelling to take up a posting at Cooktown.
25. The evidence was that the ship on which Mr Kohn was a passenger would have travelled outside the 3 mile limit of the territorial sea for approximately 50 per cent of the 12 hours taken on the voyage. The ship would have gone in and out of the 3 mile limit in the course of its progress from Townsville to Cairns.
26. The Tribunal found that Mr Kohn had rendered continuous full‑time service outside Australia during the hours in which he was outside the 3 mile limit, and thus that the whole of his service with the Royal Australian Air Force during World War 2 was to be taken as rendering operational service.
27. Before the Federal Court, Counsel for the Commission submitted that the Tribunal had erred in law in finding on the facts of the case that Mr Kohn, in travelling between Townsville and Cairns, was rendering continuous full‑time service outside Australia. Counsel relied upon the policy of the legislation and its history and context. He submitted that, at all times, Mr Kohn was rendering continuous full‑time service in Australia. Counsel for Mr Kohn pointed out that the Act did not specify any minimum period of service to satisfy the requirement of "continuous full time service outside Australia".
28. In deciding whether Mr Kohn's travel by ship for a total of approximately 6 hours outside the 3 mile limit, was to be characterised as operational service, Justice Hill pointed out at paragraph 11, p 514:
Once a person is found to have rendered at any time continuous full-time service outside Australia during a war to which the Act applies that person is to be taken to have been rendering “operational service” during any period of continuous full-time service rendered by the person during the war within Australia immediately before or immediately after the person rendered that continuous full-time service: s 6(1)(d).
Justice Hill explained that the expression "continuous full‑time service" was defined in s 5 of the Act, and that it was not in dispute that Mr Kohn's service was of the kind known as "continuous full‑time service". Thus, the only issue was whether his service during the voyage was continuous full‑time service outside Australia.
29. Counsel for the Commission submitted that it was necessary to characterise the service of Mr Kohn and that the characterisation required attention to the purpose of the journey. Hill J at paragraph 22, p 516 of his reasons summarised that submission as follows:
Counsel for the Commission submitted that it was an error to divide the words “continuous full-time service outside Australia” into two parts, the first part being the words “continuous full-time service” and the next part being the words “outside Australia”. Rather it was said the proper question to ask was whether as a matter of ordinary English language it was correct to say that the respondent had rendered continuous service (in the defined sense) outside Australia. It was said that it was necessary to characterise the service of the respondent and that this characterisation required attention to be given, inter alia, to the purpose of the journey. Where, as here, a member of the defence force otherwise engaged on continuous full-time service was merely in transit from one town in Australia to another and the purpose of the journey was not to take him to another country outside Australia or to require him to serve outside Australia, then the service would not properly be characterised as service outside Australia.
30. His Honour then considered the history of the legislation and, in particular, the effect of Reports of a Committee of Senators and Members of the House of Representatives appointed to inquire into and report on the Australian Soldiers Repatriation Act 1920. His Honour concluded, at paragraph 39, p 520:
The report therefore makes it plain that the distinction in pension entitlement between those who serve outside Australia and those who serve only in Australia was an important distinction and that those responsible for framing the legislation believed they were concerned with a distinction of substance between the two categories of servicemen.
31. His Honour, at paragraphs 51-53 pp523-524, considered whether the words of a statute should be applied in a rigid manner, or whether effect should be given to the policy which may be discerned from the provisions. His Honour concluded, at paragraph 54-60, pp 524-525:
54. 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.
55. The suggestion that an airman who went by road from Townsville to Cairns should be treated differently for the purpose 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.
56. 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).
57. When attention is focused 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.
58. Rather, it may be necessary to consider a wider period of time. How wide a band of time that is to be considered will depend upon the facts of each case. One must then ask, looking at the relevant period overall, whether it is correct to categorise the member’s service in that time as being continuous full-time service inside Australia or continuous full-time service outside Australia. 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”.
59. It is obvious that there can be questions of degree involved. Service on a naval ship, where the ship was sailing to some place in the middle of the ocean to refuel planes there and then return during the war, would clearly enough be characterised as service outside Australia. The purpose of the voyage will in such a case give the service its essential character. So too, an airman piloting a plane on a mission from Australia and back, not landing in the meantime, will likewise be seen to be engaged in operational service for the purposes of the legislation because it will then, having regard to the purpose of the mission and as a matter of fact, be proper to look at this mission in isolation and characterise the airman’s service by reference to it.
60. However, 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.
His Honour added in conclusion, at paragraph 64, p 526:
…It could not be said that Mr Kohn embarked as a member of a combatant unit for combatant service in Cairns, nor that he was subject to the rigour and risks of war in the present circumstances of the case in the voyage.
32. Hill J, at paragraph 65 p 526, referred to a submission that the six hours spent outside Australia … “should be treated de minimus and be accordingly ignored". He said that, in view of his finding that Mr Kohn was not rendering continuous full‑time service outside Australia, he did not need to consider that submission, but he added "…However, I should say that on the facts of the present case there was much to be said for this submission".
33. If the decision of Kohn stood alone, there would be a considerable obstacle facing Mr Collier in this matter. However, the decision of the Full Court in Proctor provides some support for his submission that his voyage on SS Katoomba was operational service. In Proctor, the Full Court of the Federal Court allowed an appeal from a decision of Branson J. Her Honour had followed the decision of Hill J in Kohn and had set aside a decision of the Tribunal that Mr Proctor did have service outside Australia during a voyage from 14 June 1943 to 18 June 1943.
34. The facts in Proctor were set out by the Full Court at paragraphs 3-5 p 345 as follows:
3 There is no dispute that Mr Proctor served in the Australian army from 2 January 1942 to 5 September 1946. At the relevant time he was a member of the 2/7th Australian Armoured Ordnance Field Park based at Caloundra and had received training in driving cars, trucks and bren gun carriers. He was part of a small unit which drove trucks supporting an armoured tank unit. The trucks carried spare parts for the tanks.
4 On 14 June 1943, Mr Proctor departed Caloundra on board LST (Landing Ship Tank) 458 bound for Townsville, where it arrived on 18 June 1943. The purpose of the voyage was to move armoured tanks, ammunition, support vehicles and spare parts to a region within Australia where there were considerable LST movements occurring at that time. On arrival in Townsville, Mr Proctor drove a truck containing spare parts to the Atherton Tablelands along with the rest of his unit, and from there he returned to his base at Caloundra.
5 In the course of the passage between Caloundra and Townsville, the ship on which Mr Proctor was sailing travelled well beyond the then three mile territorial limit. While there was no evidence that LST 458 encountered any enemy activity during the voyage, there were enemy submarines operating off the coast of New South Wales and Queensland between mid-January and mid-June 1943.
35. The Full Court at paragraph 7, pp 343-344, quoted the findings of fact made by the Tribunal in that matter as follows:
61. ... we are satisfied that the voyage from Caloundra to Townsville was not merely a transitory passage undertaken in the course of training, but rather that it had the indicia of an operational undertaking, the purpose of which was to move armoured tanks, ammunition, support vehicles and spare parts to a region where, on the material before us, there was considerable LST movement occurring at or about that time.
...
63. As we have also recorded, enemy submarine sightings occurred off the New South Wales and Queensland coast from September 1943. While these occurred after Mr Proctor participated in the voyage to Townsville, material before us records a substantial number of vessels as having been torpedoed off the New South Wales and Queensland coasts between mid-January and mid-June 1943.
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 as 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 (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.
36. It appears from the reasons for decision of the Full Court that Branson J had decided, applying Kohn, that the Tribunal was required to determine the "essential character" of the service of Mr Proctor, and this was not to be assessed by reference only to his service during the short period he was outside of Australia. Her Honour stated that the Tribunal was required to ask whether it was correct to categorise Mr Proctor's service during the period of his voyage as being continuous full‑time service inside Australia, or continuous full‑time service outside Australia. Her Honour agreed with Justice Hill that "mere transitory passages outside Australia" do not constitute service outside Australia. Her Honour added, as quoted in paragraph 8, p 346 of the reasons of the Full Court:
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.
37. Branson J found that the Tribunal had made an error of law in that it had failed to determine the essential character of the service of Mr Proctor.
38. The Full Court allowed the appeal from the decision of Branson J. Einfeld and Carr JJ said, at paras 16‑20, pp 347-349:
16 The Tribunal was well aware that it had to characterise his short period of service outside Australia, although it did not have to use the words “essential character”: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. (See for example pages 5-6 of its reasons (AB 267-268), in particular paras 9 and 10.) It did so in the following manner. First, it refused to give the relevant character to certain training exercises in which Mr Proctor had been involved. Then it directed its attention to the voyage from Caloundra to Townsville and found that Mr Proctor was not simply a passenger on a ship. He had work to do. He was part of what the Tribunal was entitled to regard as potentially a combat team. He drove his truck, fully-loaded with spare parts, on to the LST on which there were armoured tanks loaded with ammunition. His task was to drive the trucks from that vessel upon disembarkation at Townsville. The Tribunal also had regard to the fact that a substantial number of vessels had been torpedoed off the New South Wales and Queensland coasts between mid-January and mid-June 1943, a period which included the time when the voyage was undertaken.
17 We disagree, respectfully, with her Honour’s conclusion that the Tribunal fell into error by referring to the likelihood of the vessel becoming engaged in combat with the enemy as leading necessarily to the conclusion that Mr Proctor had rendered operational service within the meaning of s 6(1)(a). We think that the Tribunal was entitled to refer to that very real circumstance as part of the process of characterising Mr Proctor’s service during the voyage. The Tribunal was recognising, as a relevant part of that characterisation, his exposure to risk of enemy contact. The Tribunal identified the purpose of the voyage (paras 61-64 – previously extracted), acknowledged that the period of time at sea was limited to a few days, referred to s (1)(a) as the relevant paragraph for the meaning of “operational service” as “continuous full time service outside Australia during a war to which this Act applies”, and characterised Mr Proctor’s service as included within that meaning.
18 The respondent complained, in oral argument, that the Tribunal made no finding of fact about the duration of that part of the voyage which was outside Australia. The primary judge held that, contrary to the Commission’s submissions on this matter at first instance, the Tribunal gave adequate reasons for its decision, including its findings on the questions of fact which it regarded as material. There was no cross appeal.
19 The respondent further submitted that it would be anomalous and extraordinary if the appellant fell within s 6(1)(a) having regard to his absence from Australia for such a short time and was thus able to invoke the assistance of s 6(1)(d) in having all his war service treated as being operational service. It contrasted service persons injured within Australia as a result of enemy action [s 6(1)(m)] or treated as having served in actual combat against the enemy [s 6(1)(n)] who would not be able to derive assistance from that provision. But, as Lockhart J observed in Schlenert v Australian and Overseas Telecommunications Corporation (1994) 49 FCR 139 at 145, the existence of anomalies rarely assists in the process of interpreting statutes where their language is tolerably clear. In our opinion, the statutory language here is more than tolerably clear; the task at hand was to assess whether the facts fell within it.
20 In our view, these arguments and the case itself raised essentially factual issues which were for the Tribunal’s assessment alone. We have referred specifically to the composition of the Tribunal, because expertise in characterisation of relevant service is not to be overlooked: Telstra Corporation Ltd v Warren (Federal Court of Australia, Tamberlin J, unreported, 26 February 1997 at page 31). A fair reading of the Tribunal’s reasons shows that it well understood all the material facts and relevant law. It then made what was in truth a factual assessment, which involved giving consideration to the length of Mr Proctor’s service overall, the length of the voyage, the purpose of the voyage, and hence the purpose of Mr Proctor’s service on the vessel.
39. Although Lehane J agreed with the conclusion, and substantially agreed with the reasons, of Einfeld and Carr JJ, he delivered separate reasons for judgment. He referred to the area as one in which anomalies and fine and unsatisfactory distinctions abound. His Honour pointed to a number of anomalies and then concluded at paragraph 24, p 349 of the reasons for decision:
24 The problem is, however, that by contrast, for example, with par (b) and par (c), s 6(1)(a) does not place a minimum qualifying period on the required continuous full-time service outside Australia. There is no process of construction which would warrant reading par (a) as if it included a minimum qualifying period. There is, therefore, in my view no escape from the conclusion that distinctions of the kind discussed by Hill J (in Repatriation Commission v Kohn (1989) 87 ALR 511) must be made. Argument proceeded before us on the footing of common ground that the decision in Kohn was correct and that Hill J, at 524 and 525, correctly perceived the nature of the distinction between those brief excursions outside Australia which should be treated as continuous full-time service outside Australia and those which should not.
40. If, as seems to be the situation, it is “common ground” that the decision in Kohn is correct, it is not easy to discern the error in the reasoning of Branson J. However, while approving of the reasoning of Hill J in Kohn, the Full Court seems to have emphasised the point made by Hill J that questions of degree are involved in characterising service outside Australia. We must therefore look at the facts in this matter.
41. We find that Mr Collier's voyage outside Australia lasted 9 days, as established by the service records. We find further, on the basis of Professor McCarthy’s reports and evidence, that SS Katoomba on that voyage, sailed 20 miles off the coast of Australia, well outside Australian waters, and in a convoy of vessels, because of the perceived danger to vessels travelling alone. We find further that the reason why the voyage took as long as it did was probably because evasive action was taken in that the convoy zig-zagged, rather than sailing in a straight line.
42. We find further that Japanese submarines were operating in an active fashion in the waters in which SS Katoomba was sailing in the period 6 May 1943 to 15 May 1943. Four vessels were sunk between Sydney and Townsville while SS Katoomba made its voyage. We find the route taken by SS Katoomba was the chosen target area of Japanese submarines, and that the convoy which included SS Katoomba faced a high level of probability that it would be attacked. We find that the activity in which Mr Collier's division was engaged at the time was not a training activity, but was to move a signals unit to an area where it was required to support combat operations in New Guinea.
43. We find that the “essential character” of the voyage which Mr Collier took on SS Katoomba was that it was a voyage outside Australia, in an area of enemy submarine activity, at a time when vessels were being torpedoed in the same waters in which the vessel was sailing. We find that the purpose of the voyage was to move a signals unit to an area where it was required to support combat operations in New Guinea. We find that the voyage took nine days and SS Katoomba was outside Australian waters for the whole of the journey except when leaving and arriving port. We find this matter is distinguishable on the facts from Kohn. Mr Kohn seems to have been travelling alone, but Mr Collier was travelling in company with his Division and with all the stores and equipment of his Division. He was not travelling on a training exercise, but for the purpose of establishing a signals unit, where it was required to support combat operations in New Guinea. His voyage was of a longer duration than that of either Mr Proctor or Mr Kohn. He was outside Australian waters and the voyage was a significant episode of service in its own right, not a mere transitory passage outside Australia. As in Proctor there was significant exposure to danger of enemy combat during the voyage. We find the facts in this matter are much closer to those in Proctor than to those in Kohn.
44. We find that Mr Collier’s nine‑day voyage was not brief or transitory and that it did not consist of intermittent movement inside and outside Australia and that, during that voyage, Mr Collier was exposed to the risk of enemy combat. That is clearly demonstrated by the fact that HMAS Centaur, which he saw in port, probably in Sydney, and which sailed in the same waters, was torpedoed and sunk while Mr Collier and his Division were sailing on SS Katoomba. We find that the essential character of his voyage was similar to that of Mr Proctor. The purpose of his voyage, as part of a move of his whole Division, was to provide signals to support combat operations in New Guinea.
45. We find that Mr Collier’s service during the period of his voyage on SS Katoomba was “continuous full-time service outside Australia”.
APPLICATION OF THE PROCEEDURE EXPLAINED IN REPATRIATION COMMISSION V DELEDIO (1998) 49 ALD 193
46. The Full Court in Repatriation Commission v Deledio explained the steps to be taken in deciding a matter on the reasonable hypothesis standard of proof in s 120(1) and (4) of the Act, where there is a relevant SoP. The Full Court said at p 206:
1. The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particulate service rendered by that person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force a SoP determined by the authority under s 196B(2) or (11). …
… 3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fits within the template, it will be deemed not to be “reasonable” and the claim will fail.
4. The tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused or in the case of a claim for incapacity, that the incapacity did not arise from a war-related injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail.
47. Mr Rudge conceded that if the Tribunal found that Mr Collier had operational service, the material as to the circumstances of Mr Collier’s service was sufficient to raise a reasonable hypothesis.
48. Mr Rudge conceded that if the Tribunal found that Mr Collier had operational service, the decision rejecting the claim for osteoarthrosis of the knees should be set aside, and in substitution the Tribunal should decide that Mr Collier's condition of osteoarthrosis of the knees is a war‑caused condition, with effect from 30 April 2002. We will so decide.
ASSESSMENT
49. Mr Rudge also conceded that if the Tribunal should find that the osteoarthrosis of the knees was a war‑caused condition, Mr Collier's impairment from the war‑caused conditions of acne, conjunctivitis, essential hypertension, cerebrovascular accident, bilateral sensorineural hearing loss, gastro-oesophageal reflux disease, and osteoarthrosis of the knees should be assessed at 60 impairment points, and that Mr Collier would, accordingly, be entitled to pension at 100 per cent of the general rate under s 22 of the Act.
DECISION
50. We will set aside the Commission decision of 4 October 2002. In substitution we will decide:
(i)Mr Collier’s osteoarthrosis of the knees is war-caused under s 9 of the Act, with effect from 30 April 2002; and
(ii)As conceded by the Commission, Mr Collier is entitled to pension at 100 per cent of the general rate under s 22 of the Act, with effect from 30 April 2002.
I certify that the fifty (50) preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs Joan Dwyer, Senior Member
(sgd) Catherine Lake
Clerk
Date of Hearing: 14 May 2004
Date of Decision: 28 June 2004
Counsel for the Applicant: Mr Chancellor
Solicitor for the Applicant: Williams WinterAdvocate for the Respondent: Mr Rudge, Repatriation Commission
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