Joseph, D.L. v The Repatriation Commission

[1990] FCA 347

Re: DAVID LEOPOLD JOSEPH
And: THE REPATRIATION COMMISSION
No. Qld G141 of 1989
FED No. 347
Veterans' Affairs - Words and Phrases
20 ALD 618/12 AAR 124
23 FCR 456
100 ALR 549

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Spender J.(1)

CATCHWORDS

Veterans' Affairs - disability pension - member of the merchant navies of Great Britain and Norway - whether a member of the naval forces of a Commonwealth country or an allied country.

Words and Phrases - "a member of the naval...forces of a Commonwealth country or an allied country".

Veterans' Entitlements Act 1986 ss. 5(1), 6(1)(f), 7, 13 and 35(1). Defence Act 1903 s. 30.

HEARING

BRISBANE

#DATE 22:6:1990

Solicitors for the Applicant: Mullins and Mullins

Counsel for the respondent: Mr P. Dutney

Solicitors for the respondent: Australian Government Solicitor

ORDER

The appeal be dismissed with costs.

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

JUDGE1

This is an appeal from a decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal. The decision of the Tribunal was given on 4 December 1989 affirming a decision of the Repatriation Commission that Mr. Joseph be granted a service pension under the Veterans' Entitlements Act 1986 ("the Act") on the basis that he was an "Australian mariner" within the meaning of that Act. The Tribunal also found that he was entitled to the grant of a service pension under the Act on the further basis that he was an "allied mariner" as defined in that Act.

1. The point in issue on the appeal is whether the applicant is a "veteran" as defined in s. 5 in Part I of the Act: if he is, he is entitled to the benefits of the provisions of Part II of the Act, including an entitlement to the disability pension provided by s. 13 of the Act. The disability pension pursuant to Part II of the Act confers benefits different from those provided under a service pension in Part III of the Act. It is common ground that Mr. Joseph is entitled to a service pension.

2. The question of whether Mr. Joseph is a veteran as defined by s. 5 of the Act ultimately depends on whether the expression "naval forces" as used in s. 6(1)(f) of the Act includes the merchant marine of Britain or the merchant marine of Norway.

3. Section 13 of the Act authorises the grant of pensions to veterans and their dependants. The entitlement to such a pension depends on a war-caused death of a veteran or an incapacity of a veteran from a war-caused injury or a war-caused disease. For the purpose of considering pension eligibility under s. 13, a "veteran" relevantly means a person who is by virtue of s. 7 of the Act to be taken to have rendered eligible war service: s.5.

4. Section 7 provides, inter alia, that for the purposes of the Act a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service: s. 7(1)(a).

5. "Operational service" is defined in s. 6 of the Act, where s. 6(1)(f) relevantly provides:
   

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

(f) subject to sub-section

(2), a person who has rendered continuous full-time service as a member of the naval, military or air forces of a Commonwealth country or an allied country during a war to which this Act applies -

(i) outside that country; or

(ii) within that country in such

circumstances that that

service should, in the opinion of the Commission, be treated

as service in actual combat with the enemy, shall be taken to have been rendering operational service while the person was so rendering continuous full-time service;"

1. The argument for the applicant on this appeal is that he rendered service as a member of the merchant navy of Great Britain and on board ships managed by Nortraship and that therefore on either such basis he had rendered service as a member of the "naval...forces of a Commonwealth country or an allied country". Nortraship was the Norwegian Government organisation which ran the Norwegian merchant navy. That Mr. Joseph rendered meritorious service is not in dispute; it is the characterisation of that service which is crucial to this appeal.

2. The applicant served on the Norwegian ship "Tai Yang" from 5 February 1942 until 12 October 1942. This ship, which was managed by Nortraship, was engaged as a supply and transport ship from Australia to the Middle East and return during that period. From 6 December 1942 to 13 March 1943 he served on the "Tai Ping Yang", a sister Norwegian ship, engaged in similar supply and transport from Australia to the Middle East. He then served on another Norwegian ship, the "Hermion" from 22 March 1943 to 23 July 1943, which similarly was engaged in supply and transport duties in the Middle East. On his discharge from the "Hermion", he joined the British ship "Ocean Hunter" in Port Said and served on that from 23 July 1943 until 30 September 1943. None of the Norwegian ships was armed. The "Ocean Hunter" was a supply ship and was involved in the invasion of Sicily. The applicant was a loader on one of the 20 mm. anti-aircraft machine guns fitted to the vessel, which was subjected to repeated attacks by Italian fighter planes whilst in Siracuse harbour.

3. He then served on the "Fort Yukon", a British vessel, from 26 October 1943 until 5 January 1944. This vessel was involved as part of a decoy convoy to flush out the "Scharnhorst", (a German battleship), which was sunk as a result of the successful enticement. The "Fort Yukon" was armed with twin water-cooled Point 5 machine guns and was for long periods on active station. The applicant then served on the "Ancylus", a British vessel, from 20 January 1944 until 16 March 1944. This vessel was a merchant aircraft carrier, or M.A.C. ship. As such, it had a dual role of transporting raw materials, troops and supplies, but was equipped with naval Swordfish aircraft adapted to carrying depth charges instead of torpedoes and used in an anti-submarine role. While the applicant served on the "Ancylus" it was attacked by submarines and the Swordfish aircraft flew operationally every day of its voyage. He then served on the troop ship "Ile de France" from 22 March 1944 until 9 June 1944 and then on the "Samouse", a transport and supply vessel, from 10 June 1944 to 13 February 1945.

4. The question on the appeal was whether any of this service constituted "continuous full-time service as a member of the naval, military or air forces of a Commonwealth country or an allied country during the Second World War outside that country" pursuant to s. 6(1)(f).

5. The submission of the applicant is that the words "naval...forces of a Commonwealth country or an allied country" are to be read in a broad sense, not restricted to service in either the Royal Navy or the Royal Norwegian Navy. The evidence establishes that at no time did the applicant serve under the white ensign and it does not appear that he was the subject of naval discipline or under naval command. It appears that he was always paid as a merchant seaman and received in that respect an amount per month for "war risk".

6. The submission on behalf of the applicant was that service on both the British ships or on the Norwegian ships constituted service in the naval forces of Great Britain or of Norway. It was accepted that, for instance, the "Ocean Hunter" was not part of the British Navy but it was submitted that, within the proper construction of s. 6(1)(f), the "Ocean Hunter" was part of the naval forces of Great Britain. It was submitted that this was a reasonable interpretation open on the evidence and that at the very least, there being an ambiguity in the meaning to be attached to the expression "naval, military or air forces of a Commonwealth country or an allied country", according to ordinary principles of construction that ambiguous phrase had to be beneficially construed.

7. Reference was made to the observations of Isaacs J. in Bull v. The Attorney-General for New South Wales (1913) 17 CLR 370 at 384, where his Honour said:
   

"...this is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially (pe r Lord Loreburn L.C. in Bist v. London and South Western Railway (1907) AC 209, at p 211). This means, of course, not that the true signif ication of the provision should be strained or exceeded, but that it sho uld be construed so as to give the fullest relief which the fair meanin g of its language will allow. "

1. To similar effect is the observation of Murphy J. in Heath v. Commonwealth of Australia (1982) 43 ALR 673 at 683, where he comments that, in accordance with the authorities, a benevolent approach should be adopted in the interpretation of workers' compensation law.

2. Mr. Mullins, who appeared for the applicant, referred to the definition of "navy" in Jowitt's Dictionary of English Law, where the word "navy" is ascribed the meaning "an assemblage of ships, commonly ships of war; a fleet"; and to the definition in the Shorter Oxford Dictionary (1989) where the definition relied on was in these terms:
   

"the whole of the ships of war belonging to a nation or ruler considered collectively, with all the organisation necessary for their command and maintenance; a regularly organised and maintained naval force."

1. The Macquarie Dictionary offers the following definitions for the term "navy":
   

"1. The whole body of warships and auxiliaries belonging to a country or ruler. 2. Such a body of warships together with their officers and men, equipment, yards etc. 3. Also navy blue, a dark blue, as of a naval uniform. 4. Archaic, a fleet of ships."

1. The material leaves no doubt that the service of Mr. Joseph referred to above was in the merchant navy. The finding of fact by the Tribunal that he did not sign T124X articles was not the subject of appeal, as it could not be.

2. In respect of his service on the Norwegian ships earlier referred to, Mr. Joseph received the Norwegian War Medal which was "awarded for your service in the Norwegian Merchant Navy during the Second World War". He also received the Norwegian Participation Medal, the English translation of the grant of which was in respect of service "in the Merchant Navy under Nortraship". The statutes for the award of the war medal to Norwegian and foreign seamen who served on ships managed by Nortraship during the Second World War after 9 April 1940 draw a distinction between "service on board ships managed by Nortraship" and "service in the Royal Norwegian Navy in ships in active sea duty".

3. It was not the submission on behalf of the applicant that he served either in the Royal Navy or in the Royal Norwegian Navy but that the service that he gave properly fell within the description of service in s. 6(1)(f) of the Act.

4. In my opinion, and without denigrating the service of Mr. Joseph in any way, where s. 6(1)(f) speaks of service as "a member of the naval...forces of a Commonwealth country or an allied country" during the Second World War, it does not comprehend service in the merchant navy of a Commonwealth country or an allied country but requires service in the regular navy of that Commonwealth country or allied country.

5. That conclusion seems to me to be compelled by at least three considerations.

6. First, s. 6(1)(f) is to be read "subject to sub-section (2)". Section 6(2) is in these terms:
   

"Paragraph (1)(f) or (g) does not apply to any service rendered by a person as a member of the naval, military or air forces of a Commonwealth country or an allied country unless the person has satisfied the Commission, whether before or after the commencement of this Act, that the person was domiciled in Australia or an external Territory immediately before the person's appointment or enlistment in those forces."

1. That sub-section contemplates a person's appointment or enlistment in the regular naval, military or air forces of the Commonwealth or allied country. The words "appointment" or "enlistment" are apt to convey service in such a force and are more appropriately used in such a denotation than to indicate service in a particular country's merchant marine. Such latter service does not involve the same degree of discipline or absence of choice as does service in the Royal Navy or the Royal Norwegian Navy. A merchant seaman is able to choose on which ship he sails and for how long; he is not subject to military discipline nor military pay, and a choice by a seaman to join such a merchant service is not ordinarily described as "appointment" or "enlistment" to that merchant service.

2. Secondly, the term "continuous full-time service" is defined in s. 5(1) of the Act in these terms:
   

"'continuous full-time service' means -

(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 in those forces of a kind similar to a kind of service referred to in sub-paragraph (a)(i), (ii) or (iii);"

This definition draws an equivalence between service in the "Naval Forces of the Commonwealth" and service in a naval force of a Commonwealth country or an allied country which is of a kind similar to a kind of service in the Naval Forces of the Commonwealth. In my opinion, service in a Commonwealth country's merchant navy or in an allied country's merchant navy is not service of a kind similar to continuous full-time naval service in the Naval Forces of the Commonwealth.

1. Thirdly, for the purposes of the service pension covered by Part III of the Act, 'veteran' is defined in s. 35 of the Act as meaning:
   

"(a) a veteran as defined by section 5;

(b) a commonwealth veteran;

(c) an allied veteran;

(d) an Australian mariner; or

(e) an allied mariner;"

1. It is not disputed that the applicant, Mr. Joseph, is an 'allied mariner' and an 'Australian mariner'. The terms 'allied mariner' and 'Australian mariner' as defined in s. 35 direct attention to service in the merchant marine.

2. If the applicant's submission be correct, an Australian citizen who served in the merchant marine of a Commonwealth or allied country would be entitled to a Part II pension as well as a Part III pension, but an Australian mariner who saw similar service would be restricted to a Part III pension. It seems to me that the purpose of the Parliament in enacting s. 6(1)(f) was to confer on Australian citizens who served in the regular defence forces of Commonwealth or allied countries similar benefits to those who served in the regular defence forces of Australia. It would be anomalous in an Act seeking to confer entitlements on Australian veterans, if service by an Australian citizen in the merchant marine of a country other than Australia were to attract benefits that would not be attracted in respect of service by such a person in the Australian merchant marine in similar circumstances.

3. In Macbeth and Co. v. Chislett (1910) AC 220, Lord Loreburn L.C. at 223 referred to the 'new terror' in the construction of Acts of Parliament:
   

"...if we were required to limit a word to an unnatural sense because in some Act which is not incorporated or referred to such an interpretation is given to it for the purposes of that Act alone."

1. That observation is not apposite in the present circumstance. It is common ground that the reference to 'Defence Force' as a proper noun reflects the provisions of the Defence Act 1903 and, in particular, those of s. 30 of that Act which is in these terms:
   

"The Defence Force consists of 3 arms, namely, the Australian Navy, the Australian Army and the Australian Air Force. "

It seems to me that the scheme of the Act is that, where a reference to a part of the Australian defence forces are referred to, capital letters are used. A proper noun is used to designate such a component. In respect of the equivalent forces of Commonwealth or allied countries, the ordinary lower case noun is used. Such a view is reinforced by the terms of the definition of 'continuous full-time service' in s. 5(1) and, in my opinion, accounts for the use of lower case letters in s. 6(1)(f).

1. Conscious always of avoiding the "new terror" to which Lord Lorburne L.C. referred, reference may nonetheless be made to the observations in Luvac v. The Federal Commissioner of Taxation (No. 2) (1945) 19 ALJ 57, a case concerning the exemption provided by s. 23(u) of the Income Tax Assessment Act 1936 which exempted pay and allowances earned in Australia of persons "enlisted in or appointed to Naval, Military or Air Forces of the Government of any country outside Australia". The question was whether this exemption applied to a person who was a Chief Officer in the Small Ships Division of the Transportation Corps of the United States Army Services of Supply, South West Pacific Area. Latham C.J. indicated it was impossible to attach to those words the precise meaning provided under Commonwealth law in the case of the Defence Force of Australia. His Honour's conclusion was that Luvac was employed under contract as a civilian employee of the United States of America to do work in the Transportation Corps. It was true that he was to work under military direction and control but he was not a member of the military forces of the United States of America. His appointment to the position of Deck Officer in the Transportation Corps as a civilian employee did not make him a member of the military forces. Starke, Dixon and McTiernan JJ. agreed. Dixon J. added that, in his opinion, the most material words of s. 23(u) were "enlisted in or appointed to" and "member" in describing the status or capacity in which the taxpayer served the government of the other country. Where (as in this case) there was a corps organised upon the basis of its comprising civilians as well as persons having military capacity or status, it appeared to Dixon J. that civilians do not come within the fair meaning of paragraph (u).

2. In my opinion, service on an armed merchant ship does not constitute continuous full-time service as a member of the naval force of a Commonwealth country or an allied country. The words "the naval, military or air forces of a Commonwealth country or an allied country" in s. 6(1)(f), in my view, refer to the regular military forces of the relevant Commonwealth or allied country similar in kind to the Australian Navy, the Australian Army and the Australian Air Force.

3. On this view, in the present context, 'eligible war service' could have been rendered by Mr. Joseph only if he had served in the Commonwealth or allied country equivalent of the Royal Australian Navy. Service in the merchant navy of either Britain or Norway is not, in my view, to be equated with service in the Royal Navy or in the Royal Norwegian Navy. Mr. Joseph's service was not of a kind similar to service in the Royal Australian Navy.

4. For the foregoing reasons, the appeal is dismissed with costs.