Repatriation Commission v Burton

[1993] FCA 976

REPATRIATION COMMISSION v. MOSTEN RAY BURTON
No. SG60 of 1993
FED No. 976/93
Number of pages - 11
Veterans Affairs - Administrative Law
(1993) 19 AAR 118

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
OLNEY J

CATCHWORDS

Veterans Affairs - service pension - qualifying service - whether veteran was engaged in operations against the enemy - whether veteran incurred danger from hostile forces of the enemy.

Administrative Law - appeal on question of law from AAT - appeal allowed - disposal of review application without remitting to AAT.

Administrative Appeals Tribunal Act 1975, ss 37, 44(1)

Veterans' Entitlement Act 1986, ss 5B, 7A, 7A(1)

Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services, 111 ALR 1

Marsh v Repatriation Commission (1987), 15 FCR 503

Repatriation Commission v Thompson (1988), 82 ALR 352

Willcocks v Repatriation Commission (1992), 39 FCR 49

HEARING

ADELAIDE, 26 November 1993

#DATE 23:12:1993, MELBOURNE

Mr P. Hanks (instructed by Australian Government Solicitor) appeared for the applicant.

Mr S. Walsh QC with Mr S. Micallef (instructed by Ward and Partners) appeared for the respondent.

ORDER

The Court orders that:

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal made on 14 April 1993 be set aside.

3. The decision of the applicant made on 12 March 1992 be affirmed.

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

JUDGE1

On appeal from the Veterans' Appeals Division of the Administrative Appeals Tribunal constituted by Mr J.A. Kiosoglous (Senior Member)

OLNEY J This is an appeal pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) against a decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal (the Tribunal) given on 14 April 1993.

1. Subsection 44(1) provides that a party to a proceeding before the Tribunal may appeal to the Federal Court from any decision of the Tribunal in that proceeding on a question of law.

2. In the relevant proceeding the Tribunal found that the respondent had rendered qualifying service within the meaning of s 7A(1) of the Veterans' Entitlement Act 1986 (the VEA) and set aside a decision of the applicant made on 12 March 1992 that the respondent had not rendered qualifying service.

BACKGROUND
4. The respondent enlisted in the Australian Navy on 3 April 1945, and served until his discharge on 2 January 1947. He left Sydney in September 1945 and travelled to Madang in Papua-New Guinea as a passenger aboard HMAS Bungaree (Bungaree). The journey took approximately one week. The respondent arrived in Madang on 5 October 1945. During the course of the trip from Sydney to Madang Bungaree stopped at Jacquinot Bay and Rabaul, both in New Britain. The respondent was attached to a depot outside Australia, HMAS Madang, from 5 October 1945, and was engaged on duties aboard HMA Motor Patrol Potrero (Potrero) from 10 October 1945 to 31 October 1945 during which period Potrero was assigned to repatriating labourers from Madang, on the northern coast of New Guinea to villages along the Sepik River.

1. On 4 March 1992 the respondent applied to the applicant for a determination that he had "qualifying service" under the VEA, but on 12 March 1992, a delegate of the applicant determined that the he did not have such service. The matter was reviewed by a senior delegate and on 18 August 1992 the original decision was affirmed.

2. The respondent appealed to the Tribunal on 18 September 1992 for review of the decision of 12 March 1992. The review application came before the Tribunal constituted by Senior Member Kiosoglous for hearing on 8 April 1993 and after hearing evidence and submissions it was adjourned to 14 April 1993 when further brief submissions were made and the Tribunal gave an ex tempore decision setting aside the decision under review and substituting for it a determination that the applicant did render qualifying service. Written reasons were furnished pursuant to s 43(2A) of the AAT Act on 14 May 1993.

3. The Tribunal received in evidence documents lodged by the applicant pursuant to s 37 of the AAT Act together with exhibits tendered during the hearing by both parties. Oral evidence was given by the respondent.

4. The applicant now appeals to the Federal Court on a number of questions of law which will be better understood after the legal and factual context of the case have been canvassed.

THE STATUTORY DEFINITIONS
9. The provisions of the VEA which are relevant to the appeal are as follows:

5B. (1) In this Act, unless the contrary intention appears: "operational area" means an area described in column 1 of Schedule 2 during the period specified in column 2 of Schedule 2 opposite to the description of the area in column 1; "period of hostilities" means:

(b) World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included); ...

"war to which this Act applies" means ... World War 2; "World War 2" means:

(a) the war that commenced on 3 September 1939; and

(b) any other war in which the Crown became engaged after 3 September 1939 and before 3 September 1945. End of World War 1 and 2

(3) For the purposes of this Act:

... (b) World War 2 is taken to have ended on 28 April 1952. 7A. (1) For the purposes of Part III, a person has rendered qualifying service:

(a) if the person has, as a member of the Defence Force:

(i) rendered service, during a period of hostilities specified in paragraph (a) or (b) of the

definition of "period of hostilities" in

subsection 5B(1), at sea, in the field or in the air in naval, military or aerial operations against the enemy in an area, or on an aircraft or ship of war, at a time when the person

incurred danger from hostile forces of the enemy in that area or on that aircraft or ship; or

(ii) rendered service after 29 October 1945 in respect of which the person has been awarded, or has become eligible to be awarded the Naval General Service Medal or the General Service Medal (Army and Royal Air Force) with the

Minesweeping 1945-51 Clasp, the Bomb-Mine

Clearance 1945-53 Clasp, the Bomb and Mine

Clearance 1945-49 Clasp or the Bomb and Mine Clearance 1945-56 Clasp; ...

FACTS FOUND BY THE TRIBUNAL
10. At para 11 of its written reasons the Tribunal said:

11. The applicant joined the Potrero between late September and early October 1945. The applicant said that the Potrero was a wooden boat of about 70 tonnes. The boat had a crew of seven, including the applicant and the captain. The boat also had the capacity to carry up to 120 passengers. The task of the Potrero was to journey up the Sepik River and return native labourers, who had been recruited by the Australian Army, to their villages. The applicant said that he was told by the captain that, "the river might be mined (especially at the mouth of the river)". The applicant said that while the Potrero was at the mouth of the Sepik, "he (and the rest of the crew) saw a mine". In response to a question during cross-examination as to how he knew it was a mine, the applicant stated, that "he had been trained to recognise mines". The applicant could not say whether it was a Japanese or Allied mine. The applicant said the Potrero stayed away from the mine, and that while at the river mouth the captain ordered a watch for mines to be set up. The applicant said he participated in this watch.

1. (Paragraph 11 does not purport to express findings of fact but it does provide a summary of some of the respondent's evidence which enables the findings to be better understood).

2. The Tribunal made the following specific findings of fact:
   

(a) Mines were present at the mouth of the Sepik River (Reasons; para 12).

(b) From the date of his enlistment until 29 October 1945 the respondent rendered service during a period of hostilities (Reasons; para 15(i)).

(c) That after 29 October 1945 the respondent served on several vessels (one of them a minesweeper) but his service did not make him eligible to be awarded a minesweeping clast (Reasons; para 15(ii)).

(d) During his service with the Navy the respondent was in danger from unexploded mines (Reasons; para 19).

(e) The presence of an unexploded mine (even if possibly an allied one) is an actual risk of physical or mental danger because the mines are primed to explode (Reasons; para 19).

(f) The presence of an unexploded mine, left by the enemy (even if they are no longer present) is an actual risk of physical or mental danger (Reasons; para 20).

(g) This (i.e. the finding at (f) above) would still be the case even if the mine was left by allied forces (Reasons; para 20).

1. In the course of its reasons the Tribunal quoted in full a letter dated 19 February 1993 from Dr M. Horner, a research officer at the Strategic and Defence Studies Centre at the Australian National University, which was tendered in evidence by consent.

THE GROUNDS OF APPEAL
14. The questions of law which the appellant says are raised by the appeal are:

(a) Whether the Tribunal failed to consider the questions which pursuant to sub-paragraph 7A(1)(a)(i) of the Veterans' Entitlements Act 1986 ("the Act"), it was required to consider, namely:

(i) whether the applicant rendered service in operations against the enemy;

(ii) whether any danger incurred by the respondent was from hostile forces of the enemy.

(b) Whether the Tribunal failed properly to consider whether the respondent incurred danger within sub-paragraph 7A(1)(a)(i) of the Act.

(c) Whether the Tribunal's conclusion that the respondent rendered qualifying service was open to the Tribunal on the evidence before the Tribunal.

(d) Whether the Tribunal applied the standard of proof required by sub-section 120(4) of the Veterans' Entitlements Act 1986.

1. In the context of these questions of law the appellant relies upon the following grounds:
   

(i) The Tribunal erred in law in failing to consider whether the respondent rendered service in operations against the enemy, as required by sub-paragraph 7A(1)(a)(i) of the Act.

(ii) The Tribunal erred in law in that it misconstrued sub-paragraph 7A(1)(a)(i) of the Act and concluded that the respondent "incurred danger" within that sub-paragraph by reason of there having been an actual risk of physical or mental danger.

(iii) The Tribunal erred in law in failing to consider whether any danger incurred by the respondent was danger incurred from hostile forces of the enemy.

(iv) The Tribunal erred in law in treating any danger incurred by the respondent from mines left by Allied forces as sufficient to establish that the respondent "incurred danger" within sub-paragraph 7A(1)(a)(i) of the Act.

(v) The Tribunal erred in law in that there was no evidence before the Tribunal capable of supporting the Tribunal's conclusion that the respondent rendered qualifying service.

(vi) In concluding that the respondent rendered qualifying service, the Tribunal failed to apply the standard of proof required by sub-section 120(4) of the Act.

THE APPLICANT'S CASE
16. Counsel for the applicant submitted that the questions to be answered by the AAT, as posed by sub-paragraph 7A(1)(a)(i) of the VEA were:

1. Did the respondent render service, if so

2. Did he render that service during a period of hostilities, if so

3. Was that service at sea in an area or on a ship of war, if so

4. Was the service in naval or military operations against the enemy, and if so

5. Did the respondent incur danger from hostile forces of the enemy.

1. It is said that in order to determine that the respondent rendered qualifying service, all of the criteria of the paragraph must necessarily be determined in the affirmative.

2. It is common cause that the Tribunal correctly found that s A(1)(a)(ii) did not apply to the respondent. The applicant does not take issue with the Tribunal's affirmative findings in relation to questions 1, 2 and 3.

3. The applicant's complaint is that the Tribunal erred in law in neither addressing nor answering the fourth question and that it answered the fifth question in a manner which demonstrated an error of law in that it treated the risk posed by non-enemy mines as equivalent to danger from hostile forces of the enemy.

4. As to the failure to address one of the relevant criteria the applicant asserts that such a failure amounted to an error of law and relies upon the authority of Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services 111 ALR 1 for that proposition. In the case cited the Full Court of the Federal Court (Wilcox, Burchett and French JJ) said in respect of the applicant's written submissions to the AAT (at p 8):
   

This submission, quoted here from the applicant's written submissions to the tribunal, was also urged orally. However, the association of a submission that a direction under s 73BE was the appropriate course with a submission that a declaration under s 78 was not an appropriate course seems to have led the tribunal to miss the primary question, whether it was too late for the power under s 78 to be exercised. Assuming it was capable, in the circumstances, of being overlooked, the point was nevertheless quite definitely taken. The failure to deal with it constitutes an error of law, and of course, it is an error that goes to the heart of the decision. If, in fact, a reasonable time had elapsed before the declaration was made, there was no power to make it.

The decision of the Full Court in Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 (see especially the judgment of Bowen CJ at 194-5) makes it plain that an error of law may be committed by the tribunal by the ignoring of such a central issue, even if no submission at all is directed to the tribunal on the point; a fortiori, a less than perfectly clear submission will not justify a failure to consider the matter.

THE RESPONDENT'S CASE
21. The respondent initially asserted in his written summary filed in answer to the applicant's contentions that the respondent had not asserted before the Tribunal that it was in issue in the Tribunal hearing that the respondent had been engaged in naval, military or aerial operations against the enemy. As it happened, the transcript reveals that the issue was raised and the respondent's counsel now accepts that to be the case. However, it is said that it was raised late in the day and in circumstances which prevented the respondent calling evidence relating to the issue. In these circumstances it is the respondent's submission that if the absence of a finding that the respondent had been engaged in naval military or aerial operations against the enemy is found to justify the Court in interfering with the Tribunal's decision, the matter should be referred back to the Tribunal for further hearing to facilitate, if thought necessary, the calling of further evidence.

1. With respect, I reject this submission. Whilst it is true that the main contention set out in the applicant's written contentions filed with the Tribunal before the Tribunal hearing was:
   

THAT the respondent did not incur danger from hostile forces of the enemy during a period of hostilities as required by Section 7A(1)(a)(i) of the Act;

it is equally the case that in the course of argument in the Tribunal the matter was raised by the applicant's representative and if it had been thought that the respondent had been taken by surprise, the appropriate course would have been to seek an adjournment to enable further evidence to be called. As it was the Tribunal, having heard the evidence and submissions on 8 April 1993 adjourned the matter over to 14 April 1993 to facilitate the opportunity of further submissions being made and apparently the matter now under consideration was not then raised. There is nothing in the reasons of the Tribunal to suggest that it had proceeded on the assumption that any of the necessary criteria set out in paragraph 7A(1)(a) of the VEA had been conceded. Indeed, specific findings of fact were made in respect of a number of criteria as to which there was no contest.

1. The respondent's counsel developed an argument that was, in effect, that the only finding open on the evidence before the Tribunal was that the respondent had been engaged in naval or military operations against the enemy and further that the Tribunal's finding that the respondent had been exposed to an actual risk of physical or mental danger was made in the same context as the finding that during his service he was in danger from unexploded mines. Thus, as the respondent would have it, there was a finding that the respondent incurred danger from hostile forces of the enemy.

OPERATIONS AGAINST THE ENEMY
24. The meaning of the words "naval, military or aerial operations against the enemy" was considered by Cooper J in Willcocks v Repatriation Commission (1992) 39 FCR 49. After referring to the Full Court decision in Repatriation Commission v Thompson (1988) 82 ALR 352 (in which reference is made to Marsh v Repatriation Commission (1987) 15 FCR 503), Cooper J said at p 55:

In view of this clear statement, it is not appropriate to embark on a consideration of legislative history, explanatory memoranda or any other extrinsic material, at least in interpreting the words "military operations" and "against" cf Repatriation Commission v Davis (1990) 11 AAR 416; Acts Interpretation Act s 15AB. Nor is it permissible to add to the words of the statutory provision a gloss or addition not provided for in the section save in relation to the one qualification identified by the court in Thompson (supra). In consequence it is not a correct approach to widen the category of service under s 36(1)(a)(i) to include activities reasonably incidental to military operations as themselves being military operations. Whether or not an activity falls within the section will depend upon determining in a practical way whether or not the conduct or the activity was an integral part of naval, military or aerial operations against the enemy.

The phrase "naval, military or aerial operations against the enemy" is to be read as a whole. It includes two elements. The first is that there must be some operation which is naval, military or aerial in character. The second is that the requisite operation must be against the enemy. Both elements must be satisfied for the service to constitute "qualifying service" within the meaning of s 36(1) of the VE Act. (Section 36(1) has since been replaced by s 7A).

Having regard to the concession by counsel for the respondent that the applicant had, as a member of the Defence Force, rendered service during a specified period of hostilities in the field in military operations, it is only necessary to address the question what is the ordinary unambiguous meaning of "against" in the context of the phrase "military ... operations against the enemy".

His Honour then proceeded to consider various dictionary meanings of the word "against" and at p 56 concluded:

Accordingly, in my view the word "against" in the phrase "military operations against the enemy" is used in the sense of "in hostility or active opposition to". This is the common meaning and general usage of the word "against" in such a context. The section requires service, inter alia, in military operations against the enemy, in the sense of operations in hostility or opposition to the enemy.

With respect, I adopt the foregoing reasoning.

1. On any reading of the Tribunal's reasons it is patent that it did not specifically address the question of whether the service which the respondent rendered as a member of the Defence Forces was in operations against the enemy. The only specific finding as to the nature of an operation in which the respondent was involved is found in para 11 of the Reasons where it is said that the task of Potrero was to journey up the Sepik River and return native labourers, who had been recruited by the Australian Army, to their villages.

2. Perhaps the closest the Tribunal came to addressing the question of whether the respondent was engaged in an operation against the enemy is in para 21 of its reasons where it said:
   

21. The Tribunal is also satisfied that as the (respondent) can demonstrate qualifying service because of the experience of the mines, it is not necessary to consider the second issue as to the presence of Japanese troops. The Tribunal notes, also: that the

(applicant) has submitted that at the time of the (respondent's) experiences the war was (in practical terms) over. The Tribunal is well aware of the danger in making decisions that create uncertainty. However, the Tribunal, by making this decision excludes those who did not serve during the time of the war (as defined by the Act); and who may try to claim benefits on the grounds that they (by intention or chance) came upon some unexploded bomb or war relic. The Tribunal recognises that in the (respondent's) case, he has real claim. This is because he was present in the closing stages of the war. That is, he was present in the hectic days of cleaning up the instruments of war, which had been left by the retreating enemy (even if they had later surrendered) as acts of defiance. The same can also be said for the presence and danger posed by allied mines.

1. Paragraph 21 seems to be something of a justification for the earlier findings that led the Tribunal to the conclusion that the respondent had rendered qualifying service.

2. If the penultimate sentence of para 21 is to be given any relevant meaning in the context of the evidence in this case it can only have been intended as a reference to the respondent's service subsequent to 29 October 1945 when he was engaged in minesweeping operations but for a period less than the qualifying period necessary to come within subparagraph 7A(1)(a)(ii) of the VEA. That was the only occasion when the respondent was present and engaged in any activity that can sensibly be described as "cleaning up the instruments of war" and in those circumstances it is true that it would not have mattered whether the minesweeping operation resulted in the detecting of enemy or allied mines. But the fact is that the respondent's service in "cleaning up the instruments of war" did not amount to "qualifying service" and nothing in the findings made by the Tribunal justifies an assertion that the only naval operation in which the Tribunal found the respondent to have been engaged (i.e. returning native labourers to their villages) was an operation against the enemy.

3. It is beyond question that the Tribunal did not address, nor make any findings relevant to, the question of whether the respondent's service was in an operation against the enemy. For this reason the appeal must succeed.

SHOULD THE MATTER BE REMITTED
30. Upon an appeal from the Tribunal pursuant to s 44(1) of the AAT Act the Federal Court is required to hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision (s 44(4)) and without limiting the generality of the foregoing the orders that it may make include an order affirming or setting aside the Tribunal's decision and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court (s 44 (5)).

1. The discretion of the Court is expressed in the widest of terms but it should be understood to operate in the context of an appeal which can only be brought on a question of law. This is not to say that the Court should ignore the practical consequences of its decision nor the reasons on which it has based its decision.

2. In the present case the Tribunal has clearly erred in law in failing to make a relevant finding, in the absence of which its conclusion that the respondent rendered qualifying service lacks validity. In those circumstances it is inevitable that the decision of the Tribunal must be set aside.

3. Whether or not the Court should remit the matter to the Tribunal to be heard and decided again, and if so what, if any, direction should be given in respect of the calling of further evidence, requires that the Court make an analysis of the particular facts of the case and an assessment of how best the interests of justice would be served.

4. I have already given reasons why the case ought not to be remitted merely because the applicant's original contentions may have left it unclear that the question of whether the respondent had rendered service in an operation against the enemy was in issue. There is no justification for the calling of further evidence.

5. But that does not finally resolve the issue in relation to remitter. If the evidence is capable of supporting a finding that the respondent did render service in an operation against the enemy then it is for the Tribunal to assess that evidence and make whatever finding of fact the evidence supports. On the other hand, if the evidence is incapable of supporting the finding then no useful purpose will be served by remitting the matter to the Tribunal and it is appropriate that the Court make an order which finally disposes of the review application. The respondent relies upon several aspects of the evidence to support the proposition that the evidence is capable of supporting a finding that the respondent was engaged in service against the enemy.

6. There is evidence that on the voyage from Sydney to Madang, Bungaree had occasion to call at Simpson Harbour (Rabaul). As Bungaree entered the harbour she was escorted by a minesweeper which proceeded it with its paravanes out. The respondent was told that this was because it was thought there were mines in the area. Bungaree did not dock at Simpson Harbour but rather remained at anchor in the middle of the harbour. The reason given at the time for not docking was that there were mines in the area. The respondent was allowed ashore on two occasions for several hours at a time but was instructed to remain in the company of other servicemen and on both occasions the group was provided with an armed escort but members of the group were not armed themselves. The reason for these precautions was that it was said that it was not safe for the men to move around on their own. No incident occurred during either of these shore visits. It was thought that there were 50,000 or more Japanese soldiers at Rabaul at the time, and many Japanese were roaming free. Some were engaged in unloading Bungaree. This was after the cessation of hostilities and the Japanese were prisoners of war, although they were not confined in any way. Bungaree was at Simpson Harbour for three days before sailing for Madang. On leaving the harbour the ship was escorted by a pilot vessel but not a minesweeper. The respondent had been told before leaving Australia that he was to be drafted to join the crew of Potrero. He travelled to Madang on Bungaree as a passenger and not as a member of its crew. During the voyage from Australia he and other passengers had been required to undertake some mess duties but that was all.

7. There is nothing in the evidence relating to the respondent's voyage aboard Bungaree from the time he left Australia until he arrived at Madang (including the evidence of his two shore visits at Rabaul) that would justify a finding that during that period he was engaged in an operation against the enemy.

8. The respondent's evidence was that shortly after arriving at Madang he joined Potrero which was then in Madang Harbour. It is common cause that the respondent joined Potrero on 5 October 1945. He served as a seaman on Potrero, a wooden vessel of about 70 tonnes with a crew between 6 and 8. On 10 October 1945, Potrero sailed first to the mouth of the Sepik River, a voyage of several days and then up the river. There were between 50 and 100 indigenous New Guineans aboard and the purpose of the voyage was to repatriate them to their home villages. Potrero was not armed but some small arms were stowed in a locker. At the mouth of the Sepik River the crew was told to look out for mines because it was thought that the river mouth had been mined. The respondent was told that during the war the Japanese had had a flying boat based on the Sepik. A mine was sighted in the mouth of the river but it was too far away to be exploded by gun fire. It was not known whether it was Japanese or allied. The respondent was on the bridge of Potrero at the time the mine was sighted. He told the captain that there appeared to be a mine nearby (he described the distance as about the width of a road) but the captain did not comment, but rather kept on going. The captain gave no orders to attempt to explode the mine. After leaving the river mouth, the vessel sailed up the river and the crew ceased looking out for mines. After attending to the transporting of the passengers back to their villages Potrero sailed back to the river mouth when the watch for mines was resumed but no mines were seen. The vessel then returned to Madang, arriving on 31 October 1945.

9. Nothing about the operation of sailing the vessel from Madang to its various destinations up the Sepik River and return to Madang can be described as a naval or military operation against the enemy. The mere sighting of a mine in the river mouth could not have affected the nature of the operation upon which Potrero and its crew were engaged. There is no evidence to indicate whether the object sighted (assuming it was a mine) had been placed there by the former enemy or by the allied powers. The sighting of the mine did not cause the captain of the vessel to take any defensive or other action. The ship just sailed on up the river. The evidence so far referred to concerning the respondent's trip on Potrero could not support a finding that he had been engaged in an operation against the enemy.

10. The first stop made by Potrero after entering the Sepik River was at a former mission station known as Angoram which was the destination of some of the passengers. Potrero was moored at Angoram overnight. During the night while the respondent and other crew members were in their bunks, the respondent says he saw the silhouette of a figure come down through the skylight of the ship into the engine room where the bunks were situated. The respondent said he screamed and yelled and for about half an hour there was considerable commotion aboard. He did not personally come into contact with any person who had boarded the vessel in the manner described. No-one was captured. The respondent said it was so dark people just disappeared into the jungle. He thought that the intruder was Japanese but was not sure. He had not seen any Japanese at Angoram but there was evidence of Japanese equipment and clothing nearby from which he assumed there were still Japanese about. The main reason he thought the intruder was Japanese was because he appeared to be wearing clothing on the upper part of his body, which was not the usual practice of the local inhabitants. There was no evidence that the intruder was armed or than any violence either took place or was threatened.

11. The Tribunal made no reference to his incident which apparently was mentioned to Dr Horner who referred to it in his letter of 19 February 1993 as "the scuffle aboard the patrol boat". It is not surprising that the Tribunal made no reference to the incident. Nothing about it suggested that any operation against the enemy was involved.

12. On any analysis of the evidence it is beyond doubt that the Tribunal could not reasonably have found that at any time after his departure from Australia on Bungaree until 29 October 1945 had the respondent been engaged in any operation, naval or otherwise, against the enemy. In these circumstances no purpose would be served by remitting the matter to the Tribunal to further consider that issue. Only one finding is open on the evidence, namely that the respondent has not established on the balance of probabilities or at all, that he was engaged in an operation against the enemy during the period of hostilities (i.e. up to 29 October 1945) and for that reason his claim to have rendered qualifying service cannot succeed.

DANGER FROM HOSTILE FORCES OF THE ENEMY
43. In view of the foregoing it is unnecessary to deal in any detail with the applicant's assertion that the Tribunal erred in law in treating the risk posed by non-enemy mines as equivalent to danger from hostile forces of the enemy. With respect, the Tribunal's proposition only has to be stated to demonstrate the error. It may be that the Tribunal had in mind the post-war minesweeping operations in which the respondent engaged. Presumably, if the respondent had served the requisite period of service to qualify under sub-paragraph 7A(1)(a)(ii) of the VEA it would not have mattered whether the mines being sought were enemy or allied, nor indeed, if no mines were ever detected by the vessel on which the respondent served. In the absence of any finding that the respondent, during his period of service prior to the cessation of hostilities, in any way encountered enemy mines, there can be no basis for a conclusion that he encountered danger from hostile forces of the enemy. Whether or not a finding by the Tribunal that the mine observed in the mouth of the Sepik River was an enemy mine would have provided a basis for a conclusion that the respondent encountered danger from hostile forces of the enemy is a matter which need not delay the Court. No such finding was made and any consideration of the question would be entirely obiter.

CONCLUSION
44. The applicant has demonstrated that the Tribunal erred in law in two important respects. The errors were such that the Tribunal's decision that the respondent rendered qualifying service cannot be sustained. On the evidence before the Tribunal the only conclusion open was that the respondent had not established that he had rendered qualifying service. The appeal must succeed. The decision of the Tribunal will be set aside and the decision of the applicant made on 12 March 1992 will be affirmed. The applicant does not seek an order for costs.