Repatriation Commission v Ahrenfeld, D.N

[1991] FCA 312

Re: REPATRIATION COMMISSION
And: DAVID NORMAN AHRENFELD
No. G547 of 1990
FED No. 312
Administrative Law
13 AAR 302/101 ALR 86
29 FCR 556

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox(1), Gummow(1) and Hill(1) JJ.

CATCHWORDS

Administrative Law - Veterans' affairs - disability pension - whether veteran had "operational service" within Veterans' Entitlements Act, s. 6 (1) (n) - whether involved in "service in actual combat against the enemy" - meaning of "actual combat" - Commission's opinion under s. 6 (1) (n) - distinction between service in Australia and service outside Australia discussed - radio operator in Australia engaged in defensive operations to counter enemy air-raids.

Repatriation Act 1920, ss. 100, 101

Administrative Appeals Tribunal Act 1975, s. 44 (1)

Veterans' Entitlements Act 1986, s. 5 (1), s. 6 (1) (a),(f),(n), s. 9 (1) (a), s. 13, s. 120

Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986, s. 19

Repatriation Commission v Smith (1987) 15 FCR 327

Repatriation Commission v Kohn (1989) 87 ALR 511

Hunter Douglas Australia Pty Limited v Perma Blinds (1970) 122 CLR 49

Deputy Commissioner of Taxation v Truhold Benefit Pty Limited (1985) 158 CLR 678

Repatriation Commission v Bushel (Full Court of the Federal Court, 3 May 1991, unrep)

HEARING

SYDNEY

#DATE 7:6:1991

Counsel and solicitors Mr J.S. Hilton and Ms Clark instructed
for the appellant: by the Australian Government Solicitor.

Counsel and solicitors Mr M.B. Smith instructed by Mr Richardson
for the respondent: of the Legal Aid Commission of N.S.W.

ORDER

That Orders 2 and 3 made by Einfeld J. on 29 August 1990 be set aside.

Otherwise the appeal be dismissed.

That the respondent's claim be remitted to the Administrative Appeals Tribunal, to be heard and decided again.

That the appellant pay the respondent's costs of the appeal.

NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Federal Court rules.

JUDGE1

This is an appeal by the Repatriation Commission ("the Commission") from the decision of a Judge of this Court (Einfeld J.) given in the exercise of jurisdiction pursuant to s. 44 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"). Sub-section 44 (1) of the AAT Act enables a party to a proceeding before the Administrative Appeals Tribunal ("the AAT") to appeal to this Court on a question of law.

1. The primary Judge set aside a determination of the AAT given on 10 August 1989. The AAT, constituted by a Single Member, had affirmed a decision of the Commission (affirmed by a Veterans' Review Board), not to grant a disability pension to Mr Ahrenfeld, the present respondent. Einfeld J. ordered that Mr Ahrenfeld's claim be remitted to the AAT to be reconsidered according to his Reasons for Judgment and that, if a full re-hearing was necessary, it be conducted by a different member of the AAT.

2. The respondent was born on 13 August 1924 and left school in 1938 to enter an apprenticeship as a type-setter. In September 1942, he enlisted in the Royal Australian Air Force and was trained as a wireless operator. He served until 20 March 1946, his entire service being within Australia.

3. On 8 July 1985, Mr Ahrenfeld lodged a claim to a pension pursuant to s. 101 of the Repatriation Act 1920 ("the Repatriation Act"). The Veterans' Entitlements Act 1986 ("the Act") was not, of course, then in force. However, the proceedings before the AAT and this Court have been conducted on the footing that by virtue of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986, s. 19, the matter is to be determined in accordance with the Act.

4. So far as is relevant, sub-s. 13 (1) of the Act provides that where a veteran has become incapacitated from a war-caused disease, the Commonwealth is, subject to the Act, liable to pay a pension to the veteran in accordance with the Act. A disease contracted by a veteran shall be taken to be a war-caused disease if the facts and circumstances answer one or more of the criteria in s. 9 of the Act. These include (para. 9 (1) (a)) that the disease resulted from an occurrence that happened while the veteran was rendering "operational service". The term "disease" is defined in sub-s. 5 (1) of the Act as including, inter alia, any mental ailment, disorder, defect or morbid condition. The respondent suffers from schizophrenia and, in the present proceeding, it was accepted that the respondent had contracted a "disease" in the defined sense.

5. Sub-section 120 (1), as it applies to the present case, provides that, where a claim under s. 13 for a pension in respect of the incapacity from disease of a veteran "relates to the operational service rendered by the veteran", the Commission shall determine that the disease was a "war-caused disease", unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

6. So far as is relevant, sub-s. 120 (3) states that, in applying sub-s. 120 (1), the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the disease was a war-caused disease if, after consideration of the whole of the material before it, it is of the opinion that the material before it does not raise "a reasonable hypothesis" connecting the disease with the circumstances of the particular service rendered by the respondent. This may be contrasted to sub-s. 120 (4) which states:
   

"120 (4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction."

1. It will be seen that the application of sub-s. 120 (1) to the respondent's claim depends upon it being related to "the operational service" rendered by him. If his claim does not arise out of his operational service, sub-s. 120 (4) requires the appellant, in making its determination, to decide the matter "to its reasonable satisfaction", that is to say on the civil standard of a balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327.

2. In a case, such as the present one, where there are difficulties in determining the cause of a veteran's incapacity, the question whether a claim arose out of operational service may assume considerable importance; perhaps even be decisive of the case. In the case of veterans who served outside Australia, there is no difficulty. Paragraph (a) of sub-s. 6 (1) provides that, for the purposes of the Act, a person who rendered continuous full-time service outside Australia, during a war to which the Act applies, "shall be taken to have been rendering operational service while the person was so rendering continuous full-time service"; that is, during the whole of that person's service, not only the portion of it which was rendered outside Australia. But Mr Ahrenfeld did not serve outside Australia. In order to obtain the benefit of the favourable probative provisions of sub-s. 120 (1), he must resort to some other paragraph of the sub-section. He relies upon para. (n) pointing to his period of service at Onslow in the Exmouth Gulf area of Western Australia between 7 May and 15 September 1943. Paragraph (n) provides:
   

"(n) a person who has rendered continuous full-time service as a member of the Defence Force within Australia during World War 2 in such circumstances that that service should, in the opinion of the Commission, be treated as service in actual combat against the enemy shall be taken to have been rendering operational service while the person was so rendering that continuous full-time service."

Where an appeal is taken to the AAT, that tribunal, of course, stands in the place of the Commission for the purposes of para. (n). The critical opinion becomes that of the AAT.

1. The AAT found that para. (n) did not apply to the respondent and that he did not render service "in actual combat against the enemy". The AAT held that, in consequence, sub-s. 120 (4) of the Act applied to his claim, so that the AAT had to decide the matter to its reasonable satisfaction on the balance of probabilities. It did so adversely to the respondent. In its reasons for decision the AAT said:
   

"The use of the words actual combat however clearly impose a positive test, that is, the serviceman must have been engaged in some action to 'combat' the enemy. In other words, he must have taken some offensive action as opposed to mere passive defence . . . During the course of argument I expressed the view that a radar operator or aircraft plotter was as much concerned with combating the enemy as the pilot who made the ultimate inter-ception after following the plots trans-mitted to him. I adhere to that view however the phrase used by the draftsman is 'actual combat' and thus a different-iation is made between various acts done within the sphere of military operations."

1. Like the learned primary Judge, we have concluded that in approaching the matter in this way, the AAT fell into an error of law in the proper construction of the Act. We will return to this, the essential question on the appeal, after further detailing the facts.

2. During the period of the respondent's service at Onslow, the Exmouth Gulf area was subjected to incursions by Japanese aircraft. In particular, in May 1943 the respondent was a radio operator attached to the radar station at Onslow, known as 314 RDF Unit. His task was to transmit by Morse Code the plots obtained from the radar to Western Area Headquarters in Perth. It was by reference to those plots that interceptor aircraft were directed. The AAT found that on the nights of 20 and 21 May 1943, the area was raided by Japanese aircraft having as their target the airfield at Potshot, later named Learmonth, which had been built to provide protection for a submarine base to be established at Exmouth Gulf. Onslow is about 60 miles, as the crow flies, from Learmonth.

3. The respondent gave oral evidence that, whilst he remembered quite clearly the events of the first night, 20 May 1943, he was "vague" about the second night. There were air raid shelters but he stayed on duty above ground. He said that on the first night an enemy aircraft flew directly over Onslow and dropped two bombs on the Onslow airstrip. He recounted that the door of the radio room where he was stationed was open and said that he clearly saw the flash from the bombs as they exploded. The AAT apparently was unwilling to accept this evidence because there was no mention of an attack on Onslow in the official war record. As to the second night, the AAT accepted that a Japanese aircraft passed almost overhead the Onslow strip, without dropping bombs, and that the noise of the engines was plainly audible.

4. The AAT accepted that on the first night, between 22.55 and 23.50 hours, two enemy aircraft approached Exmouth Gulf from North West Cape and that they were apparently repulsed before reaching Learmonth proper; in returning north they split up, one aircraft going due north from the Gulf whilst the other flew north east, more or less parallel with the coast, until it disappeared almost 23 miles due west of Onslow.

5. The AAT accepted as an authoritative account the narrative appearing as follows on pp 157-159 of Vol. II of Series 3 of the Official War History, entitled "Air War Against Japan 1943-1945", by George Odgers:
   

"Fighter defence depended greatly on radar equipment for advance information on raiding aircraft. In 1942 radar equipment had not been satisfactory because its range had been too short. It gave sufficient warning to ground defences but not enough to allow fighters to gain height to reach the enemy before bombs were dropped. By 1943 it had improved. It was considered in 1942 that 90 stations were needed to give a full radar cover for Australia, but by early 1943 there were still only 27 radar stations operating on the mainland, leaving many gaps through which enemy aircraft could pass without being detected. There were only three stations in the whole of Western Australia. . . .

Late in 1942 the American Navy had asked that an airfield be built and a fighter squadron provided to protect a submarine base to be established at Exmouth Gulf. The main submarine base for operations in the Indian Ocean and the Netherlands East Indies was at Fremantle, but another was wanted further north at Exmouth Gulf. A site was selected for the airfield at Yanrey and the War Cabinet approved its construction. Before the airfield was built, however, it was decided to move to Potshot (later named Learmonth). No. 76

(Kittyhawk) Squadron, commanded by Squadron Leader Truscott, moved to near-by Onslow in February and to Potshot in March when the airfield was completed. In April, however, this squadron was ordered to move to Bankstown prior to returning to New Guinea and a flight of No. 85 Squadron equipped with Boomerang fighters replaced it.

The fighter defence of the submarine base received its first test when the area was raided by Japanese aircraft in May. Two aircraft came over the area between 10.55 and 11.50 p.m. on the night of the 20th. The incoming raiders were detected by two radar stations (Nos. 314 and 310), and, at 10.40 pm., two Boomerangs were ordered into the air to intercept, but they failed to find the enemy aircraft, which dropped a bomb harmlessly into Exmouth Gulf. The following night two enemy aircraft reconnoitred Exmouth Gulf again by moonlight. They dropped nine bombs in the Gulf area without causing any damage. Again two Boomerangs of No. 85 Squadron were sent up to intercept. The pilot of one (Flying Officer Wettenhall) saw two exhaust flames about 3,000 feet below. He dived towards them, but, after following for some time, had to return to base because of petrol shortage.

Soon after these night raids the American naval authorities decided to abandon Exmouth Gulf as a submarine base and withdraw their installations to Fremantle. The base gave no protection to submarines from the cyclonic weather which develops during part of the year. However, Western Area retained their RAAF establishments at Learmonth and Yanrey for use as a staging base to the north and for seaward reconnaissance."

1. The AAT decided that it was immaterial to determine whether or not Onslow was subjected to bombing, as the respondent contended, because even if that had been the case, the respondent still would not have been "in actual combat" within the meaning of para. 6 (1) (n) of the Act. Its reason was that the words "actual combat" "impose a positive test, that is, the serviceman must have been engaged in some action to 'combat' the enemy". Apparently, the AAT was of the opinion that, even on his account of the matter, the respondent was not so engaged. In our view, that opinion reflects an unduly restricted meaning of the term "actual combat against the enemy".

2. Before dealing with the term itself, it is worth noting both the structure of the Act and the antecedents of s. 6. Those subjects are both discussed by Hill J. in Repatriation Commission v Kohn (1989) 87 ALR 511. His Honour traces the different treatment in the legislation, for pension entitlement, of those who served outside Australia and those who served only in Australia; this represents what the legislature took to be a distinction of substance between two categories of service personnel.

3. We have set out the text of para. 6 (1) (n) of the Act. The references there to the opinion of the Commission and to service in actual combat against the enemy may be compared with the terms of para. 6 (1) (a). This states:
   "6 (1) For the purposes of this Act -
   (a) a person who has rendered, as a member of the Defence Force,
   

continuous full-time service outside Australia during a war to which this Act applies shall be taken to have been rendering operational service while the person was so rendering continuous full-time service . . ."

1. A distinction of the same character is apparent in the definition of "Active Service", as it stood in s. 100 of the Repatriation Act immediately before the repeal in 1986 of that statute by the Act. Any active service by a member of the Forces outside Australia qualified as "Active Service". Active service by a member of the Forces within Australia only qualified in one or more of the following circumstances:
   "(i) in such areas as are prescribed as combat areas for
   

the purposes of this Act, during such periods as are prescribed, and under such conditions as are prescribed;

(ii) at any place at which the member has been injured or has

contracted disease as a result of enemy action;

(iii) in actual combat against the enemy; or

(iv) in such circumstances as, in the opinion of the Commission,

should be deemed to be actual combat against the enemy . . .

1. Upon the appeal, contrasting submissions were made as to the significance for the interpretation of the present Act of the failure to continue the use from the previous definition of "Active Service" of the drafting device of deeming activity to be actual combat against the enemy if the Commission held that opinion. Counsel for the respondent submitted that the effect of para. 6 (1) (n), as with the previous definition of "Active Service", was to confer a discretion upon the Commission. If it were of opinion that the circumstances warranted it, the Commission might, in exercise of that discretion, treat continuous full-time service within Australia as service in actual combat against the enemy, even though this would not be the case if the Commission were forming its opinion simply by applying to the facts the proper meaning of the expression "service in actual combat against the enemy". In other words, counsel for the respondent sought to construe para. 6 (1) (n) of the Act as if it contained a deeming provision in much the same way as that found in the express terms of the previous definition of "Active Service".

2. Counsel for the appellant referred to the discussion by Windeyer J. in Hunter Douglas Australia Pty Limited v Perma Blinds (1970) 122 CLR 49 at 65-66, of the various senses in which the term "deem" may be used. He submitted that the Court should be slow to read the present legislation as if it carried over the uncertainties that might have attended the use of "deem" in comparable past legislation. He contended that the effect of para. 6 (1) (n) was not to empower the Commission to form an opinion which did not apply to the particular circumstances in question the proper meaning of the expression "service in actual combat against the enemy". Counsel submitted that it would be to give to the legislation an undesirable uncertainty in operation if the term "service in actual combat against the enemy" was to lack any settled denotation, and the reach of the legislation was to be left to the formation of an opinion by the Commission, an opinion which might vary from case to case. Accordingly, it was said, the law should be construed, so far as possible, to provide for treatment of all claims upon an equal basis.

3. The expression "in such circumstances that that service should, in the opinion of the Commission, be treated as service in actual combat" against the enemy appears not only in para. 6 (1) (n), but also in para. 6 (1) (f). This paragraph provides for treatment as "operational service" of continuous full-time service, outside the foreign country in question, as a member of the armed forces of certain foreign countries. Counsel for the respondent submitted that in both paragraphs the reference to the formation of an opinion by the Commission did not vest a discretion of the character described by counsel for the respondent. Rather, the legislation provided for the formation of what the High Court, when dealing with legislation framed in comparable terms, had described as an administrative opinion: Deputy Commissioner of Taxation v Truhold Benefit Pty Limited (1985) 158 CLR 678 at 684.

1. Accordingly, on these submissions, a person who had rendered continuous full-time service as a member of the Defence Force within Australia during World War II, may be taken as having rendered operational service whilst rendering that continuous full-time service only if the Commission has formed the opinion that the continuous full-time service should be treated as service in actual combat against the enemy. It is the formation of the opinion of the Commission which enlivens the other provisions of the Act which have as their criterion the rendering of operational service. We agree with that construction of the legislation.

2. However, as counsel for the appellant readily conceded, in forming that opinion the Commission is bound to have regard to the meaning, upon the proper construction of the Act, of the expression "service in actual combat against the enemy". The Commission's task is to decide whether the circumstances of the particular case with which it is dealing answer that description. If the Commission misconstrues the expression "service in actual combat against the enemy", then it falls into error of law. We also accept that submission.

3. Counsel for the appellant submitted that, on the facts as found by the AAT, it would not be open, in law, for the Commission to treat the full-time service of the respondent as service in actual combat against the enemy because the respondent "had not been engaged directly and personally in countering the enemy or in engaging the enemy in battle"; the use of the word "actual" in para. 6 (1) (n) emphasises the necessity for direct involvement. But on the facts Onslow was not bombed and the target was elsewhere. At the other extreme, counsel for the respondent submitted that service in actual combat against the enemy, within the sense of para. 6 (1) (n), included service in units conducting defensive operations in an area on Australia's coastline "during periods when the locality was under a general threat of enemy attack". To this, counsel for the appellant responded that the acceptance of a proposition couched in such wide terms deprived the term "actual" of any force, whilst plainly it had been included in para. 6 (1) (n) to achieve a result whereby not all combat against the enemy might qualify. In argument, various examples were discussed which were said to illustrate that point.

4. We accept the criticisms of the interpretation proffered for the respondent but, at the same time, regard that proffered for the appellant as wrongly constricting the operation of the paragraph in question. It would miscarry the evident legislative scheme to provide a sound basis for giving to service inside Australia the same treatment in some circumstances as service outside Australia. As the primary Judge pointed out, a submission to the effect of that made for the appellant is evocative of the conduct of war in days long gone even before World War II. This is so, even though the construction contended for before us by the appellant, unlike that which commended itself to the AAT, does not draw any crucial distinction between offensive and defensive action.

5. The primary Judge favoured the view that the expression "actual combat against the enemy" would include conduct which answered the description of integral participation in an activity directly intended for an encounter with the enemy, whether offensive or defensive in character. We agree with that treatment of the matter. The facts as found by the AAT could answer this description, whether or not Onslow was actually bombed. After all, the respondent was a radio operator engaged in passing on information about enemy incursions to Western Area Headquarters. He remained on duty, as presumably he was required to do, even when aircraft were in the immediate area. At least one enemy aircraft passed over Onslow on at least one night. It may be that activities comprising less involvement than those found by the AAT in this case would be embraced within the meaning of "in actual combat against the enemy". But it is sufficient for present purposes to say that facts which answer the description propounded by the primary Judge would, in law, afford a basis for the formation of an opinion by the Commission that there was service in actual combat against the enemy.

6. It follows that the AAT fell into an error of law and that his Honour was correct in ordering that the determination by the AAT should be set aside. We were asked not to refer the matter back to the AAT, on the footing that only one conclusion in law was open upon the facts as found by the AAT. But the difficulty with this submission is that the critical facts were not found by the AAT. It is not for us to intrude our own findings of fact. Accordingly, we agree with the conclusion of the primary Judge that the matter must go back to the AAT. However, unlike the primary Judge, we would simply order that the matter be remitted to the AAT to be decided again. The AAT should determine whether or not further evidence may be taken on that rehearing. It will be a matter for the President to determine whether the case should be dealt with by a differently constituted tribunal: Repatriation Commission v Bushell (Full Court, 3 May 1991, unrep per Davies J. at p 7).

7. The appellant should pay the costs of the respondent of the appeal.