Department of Veterans Affairs v Smith, G.P
[1991] FCA 526
•28 AUGUST 1991
Re: DEPARTMENT OF VETERANS' AFFAIRS
And: GRAHAM PAUL SMITH
No. Q G70 of 1991
FED No. 526
Veterans' Affairs
104 ALR 345/14 AAR 56
(1991) 31 FCR 159
(1991) 23 ALD 584
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.(1)
CATCHWORDS
Veterans' Affairs - meaning of "regular serviceman" - effect of s.4AAA(1)(a)(ii) of the Defence Service Homes Act 1918 - whether accidental delay only - whether "delay" where excess service properly regarded as part of term which would, but for the delay, have ended after six years - effect of s.4AAA(6)(a) - meaning of "effective full-time service" - serviceman awaiting or undergoing trial - meaning of "period exceeding twenty-one consecutive days".
Words and Phrases - regular serviceman.
Defence Service Homes Act 1918, ss.4AAA(1)(a), (6)(a), 18(1)
HEARING
BRISBANE
#DATE 28:8:1991
Counsel for the applicant: Mr W.V. Vitali
Solicitors for the applicant: Australian Government Solicitor
Counsel for the respondent: Mr S.G. Durward
Solicitors for the respondent: Corrs Chambers Westgarth as town
agents for L.R. Middleton
ORDER
1. The appeal be allowed.
2. The decision of the Administrative Appeals Tribunal of 23 April 1991 be set aside.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
The applicant Department appeals against a decision of the Administrative Appeals Tribunal given on 23 April 1991, relating to a question of entitlements under the Defence Service Homes Act 1918 ("the Act"). The law as applicable to matters of this kind has been substantially altered by the Defence Force (Home Loans Assistance) Act 1990, the operative parts of which came into force on 15 May 1991, after the Tribunal's decision against which this appeal is brought. It seems to me clear that I should take no account of the 1990 statute in deciding this case; whether that statute provides the respondent with any opportunity to improve his position by taking any further step is a question I have not investigated.
The essential point of the case is the meaning of part of the definition of "regular serviceman" in the Act. Legislation relating to ex-servicemen's rights is often difficult to follow and apply, but even in that field the provision which is discussed in part A of these reasons (below) stands out as remarkably obscure; neither counsel was able to give a satisfying explanation of its language, nor have I been able to think of one myself. It is regrettable that the rights of ex-servicemen should depend upon ill-defined or irrational distinctions.
On 10 November 1989, the respondent partially completed a form, apparently supplied by the relevant Department, headed "Subsidy Application". The substance of the language of the form was that the respondent sought a loan to buy a home. Apparently in response to that application, an official decided on 1 December 1989 that the respondent was not an "eligible person". The respondent sought a review of that decision under s.43 of the Act, but had no success. He then applied to the Administrative Appeals Tribunal to review the decision just mentioned and the Tribunal treated that decision as one that he was "not entitled to receive a certificate of entitlement under the provisions of" the Act. Although, as I read the respondent's initial application, he sought a loan and not a certificate, near the top of the form he filled in there is in parenthesis the expression "Application for a Certificate of Entitlement for a Primary Advance".
The Act mentions certificates of entitlement of various kinds in s.15 and says that a person may apply for them. The form I have mentioned, which was filled in by the respondent, does not make it clear what sort of certificate of entitlement was requested; indeed, it does not make it clear that any was requested. It appears to me, however, that the form should be taken as seeking such a certificate as is mentioned in s.18. That begins:
"(1) Subject to this section, the Secretary shall not issue a certificate of entitlement in relation to subsidy on an advance that a person may seek from the Bank unless satisfied that:
(a) the person is an eligible person, or the husband or wife of an eligible person who is temporarily or permanently insane ...".
That is, the relevance of the conclusion which was challenged on the application to the Tribunal, namely that the respondent is not an "eligible person" as defined in the Act and therefore not entitled to receive a certificate of entitlement, appears to me to flow from s.18(1)(a).
There is a definition of "eligible person" in s.4(1) of the Act and that definition includes an "Australian soldier" - see para. (a) of the definition. The expression "Australian soldier" includes by para. (a) a "regular serviceman" and that is defined to mean "a person who is a regular serviceman in accordance with section 4AAA". The most relevant provisions of that section are sub-para. (1)(a)(ii) and para. (6)(a).
The former reads as follows:
"Subject to this section, a person is a regular serviceman for the purposes of this Act if -
(a) he has served on continuous full-time service as a member of the Defence Force, not being service that ended before 7 December 1972, and, during that service, has - ...
(ii) in the case of service that commenced on or after 17 August 1977 - completed a period of 6 years' effective full-time service as such a member, being a period at the expiration of which he continued to render full-time service as such a member otherwise than by reason only of a delay in discharging him or otherwise terminating that service, including a delay for the purpose of the treatment or observation of an illness or injury".
There was no dispute that the respondent completed about six years effective full-time service; what was in issue was whether he had a full six years service or a little less and whether, if he had a full six years service, he had also served for the requisite extra period mentioned in sub-para. (a)(ii) just quoted. The statutory requirement that the person, in order to qualify, continue to render full-time service after six years would be plain enough, were it not for the exception. One must, to make sense of the statute, attach some meaning to the expression "delay in discharging him or otherwise terminating that service", so as to distinguish such delay from continuation of service.
In discussing s.4AAA, the Tribunal remarked:
"The duration of the continuing full-time service is not specified in the Act and consequently I hold that a matter of a few hours full-time service over and above six years would satisfy the condition".
The Tribunal held that the respondent's excess service amounted to one day six hours.
The Tribunal found the facts, in summary, as follows. The respondent reported for enlistment in the Army on 6 July 1983 at 8 a.m. and "marched out of the Army at about noon on 20 August 1989". He was court martialled on 31 May 1985 in relation to possession of some unspent rounds. The court martial lasted from noon to 2 p.m. on 31 May 1985 and the respondent was convicted and sentenced to fifty-six days detention. He received a remission of ten days and was released from custody at 6 a.m. on 15 July 1985. The Tribunal calculated the period "during which Mr Smith underwent detention or imprisonment" to be from noon on 31 May 1985 to 6 a.m. on 15 July 1985, making a total of 44 days 18 hours.
The Tribunal then deducted that time from the total time the respondent was in the Army, namely six years 46 days, leaving a period of six years one day six hours effective full-time service. The correctness of the deduction is discussed under the heading "B: Effective full-time service" below.
None of the Tribunal's basic findings of fact were challenged in this Court, but it was said that, nevertheless, the Tribunal erred in law and failed to make findings on a certain point.
The issues in the case are: what sort of extra service in excess of the basic six years was necessary and what allowance should be made against the respondent for a period during which he was charged with and punished for a military offence?
A: "Delay in discharging him"The question of greater general importance is the meaning of the expression beginning "being a period" and ending "illness or injury" in sub-para. (ii) of the immediately relevant provision, para.(1)(a) of s.4AAA of the Act, quoted above. No indication is given of the length or kind of delay contemplated. It was submitted by Mr Durward, on behalf of the respondent, that the statute must have intended to convey the idea of an accidental delay, due to difficulty in processing papers or something of the kind. Mr Durward, as I understand, pressed for this construction because there was evidence from which an inference was open that the delay was, in the respondent's case, due to deliberation, the purpose being to so contrive matters that he would be deemed a "regular serviceman" within the meaning of s.4AAA(1). I will assume in favour of the respondent that factual support for this view can be derived from the documents at p 28 et seq. of the record.
There are two objections to the construction of "delay" put forward for the respondent. One is that it involves reading in "accidental" or something of the kind before "delay". The word "delay" in its ordinary meaning does not necessarily include any idea of fortuity; delays may be deliberately caused. It would be a natural use of the word "delay" to say that there was apparently arranged a delay in discharging the respondent, so as to improve his prospects of obtaining benefits under the Act. The second objection is that the type of delay specifically excepted by the provision is one which will usually be of a deliberate kind, namely delay for the purpose of treatment or observation of an illness or injury.
To make the section operate, it is necessary to discriminate between a continuation of service beyond the initial six year period (which suffices) and a delay of the kind spoken of (which does not suffice). I was invited to act on the basis that ordinarily regular defence personnel "sign up" - i.e. commit themselves - for a fixed period of years and, in particular, six years or three years. The applicant's argument amounted to this: the "delay in discharging him or otherwise terminating that service" contemplated by the provision includes any continuation of service not included in a term of years to which the serviceman was committed; the only sensible way of drawing the distinction between the continuation of service which is necessary for eligibility and the delay in discharging or terminating which is not to be counted, is on the assumption that the former, but not the latter, refers to service pursuant to a commitment to serve for a substantial term - e.g. three years or six years.
The effect of the applicant's argument is that, assuming a six year engagement, time beyond the six years counts, unless it is properly to be regarded as served pursuant to the initial engagement. The strength of the argument is that it avoids an oddity inherent in the construction which the respondent puts forward. This is that, in the ordinary case, a serviceman who completes a six year term can, on the respondent's contention, qualify if he deliberately arranges to serve one extra day (or, on the Tribunal's reasoning, an extra hour). But, according to the respondent's argument, if the extra day or hour is due simply to some accidental administrative delay, then there is no entitlement. It is not easy to accept that Parliament intended to draw these strange distinctions. Further, it is hard to see why a serviceman who has the ill-fortune to be in a military hospital, at the end of the six years, should be treated less favourably than one for whom a short delay is arranged, simply in order to qualify under the Act.
The applicant's argument might gain some strength from the use of the expression "that service", which must be a reference back to the period of six years service referred to earlier in the provision; the concept may be that extra time does not count if it is properly to be regarded as part of the engagement which would (but for the delay) have come to an end after six years. It was urged, further, that the Court could legitimately derive help from the second reading speech delivered in the Senate when the present s.4AAA(1) was inserted, by Act No. 137 of 1978. The Attorney-General gave this explanation:
"Persons who commence full-time service in the Defence Force on or after 17 August 1977 will become eligible for a loan on the completion of six years continuous full-time service, subject to a commitment to render further full-time service".
This cannot be regarded as an accurate statement of the effect of the provision, which plainly requires not a mere commitment to serve but a continuation of service beyond the six years. Nevertheless, it appears to me to be correct that the Minister's remarks may legitimately be used "to determine the meaning of the provision when ... the provision is ... obscure" - see s.15AB(1)(b)(i) of the Acts Interpretation Act 1901 and paragraph 2(f) of that section. The reference to commitment to render further service appears to give little support to the notion that the Parliament intended an entitlement to be able to be gained by simply deferring termination of a six year engagement for a short period, in order to qualify. It is true that, on the respondent's construction, a serviceman may qualify by serving six years and then committing himself to serve for, say, another three years, even if he does not actually serve the three years; he may, for example, be discharged prematurely on account of injury or ill-health. But that is not, to my mind, such an odd result as that for which the respondent contends. On the respondent's view of the provision, the right to this valuable benefit may depend, as to a serviceman who has undertaken a six year engagement, simply on whether the relevant authorities are prepared to defer his discharge for a time, however short.
Unless one is to treat the provision as having no ascertainable meaning, it is necessary to devise some means of discriminating between that continuation of service beyond six years which does, and that which does not, create the entitlement. It is my opinion that the applicant's construction is less unsatisfactory than the respondent's. There was no material to support the view that the respondent had committed himself to a further period of service, nor did Mr Durward suggest that the respondent could, on the view of the law put forward by the applicant, possibly succeed. I am of opinion that the delay in terminating the respondent's service was such a delay as contemplated by the provision and that the appeal must succeed, and the Tribunal's decision be set aside, on that ground.
B: "Effective full-time service"A further question which was argued was whether the events of May and June 1985 brought into existence a break in the respondent's service of such length as to reduce the total period of service to six years or less. On the view of the Tribunal, the period during which the respondent was detained or imprisoned was 44 days 18 hours. By deducting that from the total time the respondent was in the Army, the Tribunal came to the conclusion that he had completed a period of six years one day and six hours effective full-time service. The applicant contended that the Tribunal erred in law by ignoring the effect of sub-para. (a)(iii) of s.4AAA(6) which, so far as relevant, reads as follows:
"In this section, 'effective full-time service', in relation to a member of the Defence Force, means any period of continuous full-time service of the member other than -
(a) a period exceeding twenty-one consecutive days during which the member was -
(i) on leave of absence without pay;
(ii) absent without leave;
(iii) awaiting or undergoing trial on a charge in respect of an offence of which he was later convicted; or
(iv) undergoing detention or imprisonment;"
The Tribunal found that the respondent was taken before the court martial about noon on 31 May 1985 and was convicted about 2 p.m.; it found he was released from custody at 6 a.m. on 15 July 1985. The Tribunal included in its calculations the period of two hours between the respondent's being taken before the court martial and being convicted, and concluded that the proper amount of deduction was 44 days 18 hours. With respect, this cannot be right. Sub-paragraph (iii) uses the expression "awaiting or undergoing trial" and the Tribunal has counted the period during which the respondent was undergoing trial (two hours) but not the period during which he was awaiting trial. The length of the latter period is uncertain. The respondent said that he was notified that he was going on trial "... round about April some time, April/May". He said, in effect, that he had been put in contact with an Army solicitor and seemed to imply that he had conferred with the solicitor. Then the following passage occurred:
"Did you know that you were going to be coming up on trial before you got this document?---Yes, I did.
Right. When did you know that you'd be coming up for trial?---Say, some time in April/May, early May.
Some time in April or May?---Yes.
Right. Early May?---Yes, somewhere in there".
On this evidence, it seems improbable that the length of time during which the respondent was "awaiting trial" was less than one day six hours. It appeared from p 33 of the record that the charge was probably laid on 14 April 1985. No attempt was made to investigate the procedure which gave rise to the court martial, nor precisely to identify the event which constituted the inception of the period of "awaiting" trial, but there must surely have been a charge laid well before the court martial was held.
Mr Durward advanced an argument which, if accepted, would weaken the applicant's case on this point. He said that on its proper construction para. 6(a) required one to deduct in any case like the present, not the whole of the relevant period, but only that part of it which exceeded twenty-one days. That is not correct, in my opinion. A period of, say, twenty-two days is a period exceeding twenty-one days and the length of that period is twenty-two days, not one day. To achieve the result for which the respondent contends, the provision would require to be redrafted in some such form as this:
"such part of any consecutive period of days during which the member was on leave of absence without pay" (or as the case may be) "as exceeds twenty-one days".
That is, if it may be said of any period that it exceeds twenty-one consecutive days, and one or more of the four conditions set out in paragraph 6(a) of the Act describes it, then that period is taken to account in whole.
If the question arising under s.4AAA(6) of the Act were the only point in the case, it would be necessary to consider whether the matter should be sent back to the Tribunal to be dealt with or, on the other hand, if the Tribunal's decision should simply be set aside. On the exiguous evidence on the point which is in the record, it was not open to the Tribunal to find that the time during which the respondent was awaiting trial was short enough for the respondent to succeed. The Tribunal was in error in failing to apply paragraph (a)(iii), so as to exclude the period of awaiting trial, and the appeal must be allowed on that ground also. But it is unnecessary to determine whether, if this second ground had been the only issue, the case should have been remitted to the Tribunal for the taking of further evidence and the making of further findings.
Conclusion
Mr Vitali also raised a question as to whether or not parts of days should be taken into account, for the purposes of these provisions. I find it unnecessary to express any opinion on that.
It will be ordered that the appeal be allowed and the decision of the Tribunal of 23 April 1991 be set aside.
I have given some consideration to the question of costs. Subject to anything counsel may have to say, it appears to me that no costs should be allowed. The principal cause of this dispute has been the vagueness of the main provision in question, namely s.4AAA(1)(a)(ii) of the Act. Subject to anything counsel may have to say on this subject, I would not be inclined to allow any costs.
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