Repatriation Commission v Doessel
[1990] FCA 508
•14 SEPTEMBER 1990
Re: THE REPATRIATION COMMISSION
And: IAN FRANCIS DOESSEL
No. Qld G62 of 1990
FED No. 508
Veterans' Affairs
12 AAR 291/21 ALD 107
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Lockhart(1), Pincus(1) and Ryan(1) JJ.
CATCHWORDS
Veterans' Affairs - whether respondent eligible to receive benefits - meaning of "allotted for duty" - whether special meaning can be ascribed to "allotted for duty" where Act ambiguous.
Veterans' Entitlements Act 1986 ss.5(12), 6(1) and (6), 7, 13(1) and 85(5)
Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 s.19
HEARING
BRISBANE
#DATE 14:9:1990
Counsel for the applicant: Mr. H.G. Fryberg QC and
Mr. J.A. Logan
Solicitors for the applicant: Australian Government Solicitor
Counsel for the respondent: Mr. T.D.O.J. North
Solicitors for the respondent: Cannan and Peterson
ORDER
The appeal be dismissed.
The applicant pay the respondent's costs of and incidental to the appeal, to be taxed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an appeal from a judgment of Spender J. dismissing an appeal from a decision of the Administrative Appeals Tribunal. The latter decision affirmed decisions of the Veterans' Review Board established under the Veterans' Entitlements Act 1986 (called in those reasons "the V.E. Act" or "the Act").
That Board had, in effect, set aside decisions of a delegate of the Repatriation Commission determining that the respondent is not eligible to receive benefits under the Act. It will be noted that the appeal to this Court is the fifth level of consideration of the respondent's claims for benefit under the Act.
The Point at issue is a question of construction, namely the meaning of the words "allotted for duty" in s.6(1)(e)(i) and (ii) of the Act. The appellant says that those words mean "allotted for duty for the purposes of this Act" whereas the respondent denies that the words "for the purposes of this Act" should be read in. The legislative setting in which the question of construction arises is explained below.
The respondent joined the Royal Australian Navy in 1959 and was discharged in 1971. In February 1985, he made a claim for medical treatment and pension for certain conditions, said to be connected with his naval service, and in September 1985 made a further such claim in relation to other conditions. Both these claims were rejected by a delegate of the Repatriation Commission, the former rejection being based upon now repealed legislation and the latter on the current Act. The decision of the Veterans' Review Board setting those delegation decisions aside was given on 17 February 1988, the hearing and the determination by the Board having been governed by the VE Act: see s.19 of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 (the "Transitional Act"). Under s.175 of the VE Act, the Administrative Appeals Tribunal had power to review the Board's decision. The appeal from the Tribunal to this Court was based on s.44 of the Administrative Appeals Tribunal Act 1975 and the present appeal is founded upon s.24(1) of the Federal Court of Australia Act 1976.
Although each of the respondent's claims to benefits relied upon naval service which terminated before the date on which the VE Act came into force (22 May 1986), and one of his applications for medical treatment and pension was made before that date (namely, on 25 February 1985), the whole matter falls to be determined, by virtue of s.19 of the Transitional Act, as if the respondent had applied under the VE Act. The matter was argued upon the basis, which appears to us to be correct, that there is no question of the respondents' having any accrued rights under the legislation in force prior to the VE Act. Such legislation is relevant, if at all, only insofar as it throws light upon the construction of the VE Act.
Schedule 2 to the VE Act sets out under the heading "OPERATIONAL AREAS", in one column, 9 defined geographical areas and in a second column 9 corresponding periods of time. The applicant served on naval ships, namely HMAS "Vendetta" and HMAS "Melbourne", in a number of areas covered by and during a number of relevant periods included in Schedule 2. For example, he served on HMAS "Vendetta" at Singapore in 1963 and 1964 and on HMAS "Melbourne" at Singapore in 1969; the territory of Singapore and certain waters adjacent thereto is specified as item 7 of Schedule 2, and in the second column the corresponding period for that territory is specified as being from and including 31 July 1962 to and including 11 January 1973. Accordingly, part of the respondent's naval service took place in areas described in column 1 of Schedule 2 during periods specified in column 2; the legal relevance of that is explained below.
Section 13(1)(b) of the VE Act creates a liability to pay pensions in accordance with that Act to "a veteran who has become incapacitated from a war-caused injury or a war-caused disease". It is not absolutely clear, and does not matter, which of the incapacitating conditions relied on by the respondent was caused by injury and which by disease. For the sake of simplifying the discussion, we shall proceed on the basis that the conditions were caused by injury; as for present purposes the same considerations apply to disease as to injury.
The critical expressions in s.13(1) are "veteran" and "war-caused injury". The appellant says the respondent is not a veteran within the meaning of the Act and that any injury he sustained during his service was not a war-caused injury within the meaning of the Act. The question whether the respondent is a "veteran" depends upon whether he falls within the first part of the definition of "veteran" in s.5(1), reading in part as follows: "(a) person ... who is: by virtue of s.7, to be taken to have rendered eligible war service ..." Turning then to s.7, one finds that it reads, so far as relevant, for the purposes of this Act - (a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service". Thus, the respondent is a "veteran" if he rendered eligible war service and he rendered such service if (and while) he rendered "operational service".
The last step in this chain - that is, in the linked series of provisions defining "veteran" - is in s.6(1)(e), which reads in part as follows:
"For the purpose of this Act - ...
(e) a person who has, as a member of the Defence Force, rendered continuous full-time service outside Australia -
(i) as a member of a unit of the Defence Force that was allotted for duty; or
(ii) while the person was allotted for duty, in an operational area ... shall be taken to have been rendering operational service while the person was so rendering continuous full-time service;"
It should be noted - and this is the real strength of the appellant's case - that these words imply that a member of the Defence Force who renders continuous full-time service may or may not be a member of a unit "allotted for duty", or be himself "allotted for duty".
It is accepted that the respondent was at relevant times a member of the Defence Force and that he rendered continuous full-time service so that the question becomes whether he or his unit was allotted for duty in an "operational area". That expression is defined in s.5(1) as meaning "an area described in column 1 of Schedule 2". It is necessary to add that s.5(3)(c) makes the periods specified in the second column of Schedule 2 relevant; it says:
"(3) For the purposes of this Act - ...
(c) an operational area described in column 1 of Schedule 2 shall be deemed to have been an operational area during the period specified in column 2 of that Schedule opposite to the description of the area in column 1."
The result is that the question whether the respondent is a "veteran" within the meaning of the Act depends on whether he or his unit was or was not "allotted for duty" during his service in one of the areas mentioned in column 1 of Schedule 2.
It will be recalled that, under s.13(1), the other element necessary to establish liability is that there was an injury which was "war-caused." The question whether the respondent suffered an injury is not presently before us. Nor does it appear that either of the determinations of the Repatriation Commission denied that any injury relied on was "war-caused" within the meaning of s.13(1). However, it should be noted that the question whether any injury was "war-caused" depends in this case on the same criterion which is used in deciding whether the respondent is a "veteran"; both statutory trails lead to consideration of whether the respondent was ever in a position of "rendering operational service". As to "war-caused injury", one turns to s.9, which reads in part as follows:
"(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury ... if -
(a) the injury suffered ... by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered ... by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; ...".
As is explained above, the question whether a veteran was "rendering operational service" depends on the matter set out in s.6(1)(e), namely whether the veteran or his unit was "allotted for duty" in an operational area and the question whether eligible war service was rendered depends, so far as relevant to this case, on the same consideration, by virtue of s.7(1)(a).
Section 5(12) of the VE Act provides a definition of the expression "allotted for duty in an operational area". It reads":
In this Act, a reference to a person, or a unit of the Defence Force, that was allotted for duty in an operational area shall be read as a reference to a person, or unit of the Defence Force -
(a) that was so allotted for duty in accordance with administrative arrangements applicable in the part of the Defence Force in which the person was serving, or of which that unit formed a part, as the case may be; or
(b) that is, by an instrument in writing signed by the Minister for Defence, deemed to have been allotted for duty in an area described in item 4 or 8 in Schedule 2 during the period specified in that item."
The natural meaning of "allotted for duty" in s.6(1)(e) is such that one thinks of the requirement as being satisfied if the member is, or his unit is, sent to serve in the area in question by the responsible military authorities. The expression "in accordance with administrative arrangements applicable" in s.5(12)(a) does not, of itself, raise in our minds a doubt that the ordinary meaning of "allotted for duty" was intended. Presumably, there will always be some administrative arrangements under which personnel in various parts of the Defence Force are allotted for duty. Those arrangements, we assume, would include recognition of a particular person or body as having authority to make an allotment of the relevant kind and prescription of means of making that allotment effective. The argument for the appellant would seem to require the reference to administrative arrangements to bear rather a strange burden, namely that of conveying the idea that the arrangements have particular reference to repatriation benefits. The notion appears to be that the VE Act contemplates the making of administrative arrangements for allotment for duty expressly intended to produce benefits under that Act. For example, a written allotment for duty headed "For the purposes of the Veterans' Entitlment Act 1986" would presumably do.
Whether that construction makes any practical sense in relation to any other usage of "allotted for duty", it cannot do so in the context of s.6(1)(e). That is simply because, of the nine areas there referred to in Schedule 2, all but one (the last) has a corresponding period terminating well before the VE Act came into force; the latest date in these eight periods is 11 January 1973. Allotments before that date could not, as to those eight periods, have been "for the purposes of" the VE Act, which commenced in 1986. The ninth area is Namibia and certain adjoining parts, but it is of course inconceivable that the legislative intention in enacting s.6(1)(e) was merely to provide for pensions for service in that one area.
On behalf of the appellant, it was proposed to meet this difficulty by the suggestion that perhaps the allotments for duty referred to in s.6(1)(e) could be retrospective - that is, made after 22 May 1986, the date on which the VE Act came into force. That will not do; one thing which seems plain about s.6(1)(e) is that it contemplates primarily an allotment for duty occurring at or before the time of the service, not many years later. It is not possible to read the expression "that was allotted for duty" in para (i) of s.6(1)(e) or (even more clearly) the words "while the person was allotted for duty" in para (ii) of that provision in such a way as to cover an allotment made after the termination of the service.
Nor does the appellant's argument that retrospective allotment was intended receive any support from s.5(12)(a). As counsel for the respondent (Mr. T. North) pointed out, there appears to be a contrast between para (a) of s.5(12) and para (b) of that provision. The latter, but not the former, is so expressed as to permit a deemed allotment after the occurrence of the service to which the allotment relates. A real - not "deemed" - allotment is we think intended to be one which accompanies or precedes the statute to which it relates.
Apart from the difficulty just alluded to, the appellant's argument faces a more fundamental obstacle. This is simply that the addition of the words suggested, "for the purposes of this Act", appears to be rather arbitrary. It would hardly occur to a reader of the expression "allotted for duty", where it appears in s.6(1)(e) and in s.5(12)(a), that the allotment intended was one having express reference to the VE Act; the provisions seem in this respect to refer to an allotment of duty made for defence purposes. The appellant's argument requires the Court to import additional words which substantially alter the meaning of the language the legislature has used. Nor can it reasonably be suggested that the suggested addition makes explicit what would otherwise be merely implied. If, as we think, the meaning of the expression "allotted for duty" in these provisions is hard to ascertain, that does not give the Court leave gratuitously to ascribe to it, for the sake of attaining certainty, a meaning derived by adding the phrase "for the purposes of this Act".
Counsel for the appellant relied on s.85(5) of the VE Act as reinforcing the idea, which we think to be implicit in s.6(1)(e), that rendering service as a member of the Defence Force in an operational area is a different matter from being allotted for duty or being a member of a unit allotted for duty. We think that s.85(5) does, as submitted, assist the appellant in that way as does s.6(6) which was also relied on. Of these two provisions, we shall set out only the latter:
"Where a person has, in the course of rendering operational service in an operation area while a member of the Defence Force -
(a) returned to Australia in accordance with the Rest and Recuperation arrangements of the naval, military or air forces;
(b) returned to Australia on emergency or other leave granted on compassionate grounds;
(c) returned to Australia on duty; or
(d) returned to Australia for the purpose of receiving medical or surgical treatment as directed by the medical authorities of the Defence Force,
so much of the period of service of the person in Australia after his or her return and while the person -
(e) continued to be a member of a unit of the Defence Force allotted for duty in an operational area; or
(f) continued to be allotted for duty in an operational area,
as does not exceed 14 days shall, for the purpose of paragraph
(1)(e), be deemed to be a period when the person was rendering continuous full-time service outside Australia.
This provision postulates that a member of the Defence Force may be physically in Australia, for example to take leave, but all the while continue to be "allotted for duty" in some foreign country. We are satisfied that the statute intends that a member of the Defence Force may serve in an area without being allotted for duty there; but the statute simply does not say by what process that situation arises. A member might find himself located by accident (for example, a shipwreck) in an area to which he has not been allotted for duty and might in that way render service in such an area. We find it difficult to believe, however, that the reference to allotment for duty was inserted with that sort of case in mind. The appellant's contention was that if "allotted" means simply "posted" or "assigned", then the requirement of allotment for duty makes no practical difference and we think this is substantially so. Were there some plausible way of giving the phrase real work to do, we would be inclined to adopt it. However, the addition of the words suggested by the appellant in this Court, like the addition of the different expression suggested to the primary Judge, appears to us, for the reasons we have mentioned, not to be a permissible mode of construction.
The argument put to the primary Judge was that "allotted for duty" means "allotted for special duty", the latter concept having been used in some of the statutes which were repealed by the VE Act. His Honour rejected that submission and we agree with his conclusion on the point, being encouraged to do so by the fact that the appellant has itself abandoned it.
There is in the record a memorandum from a Mr Topperwien and evidence of a Mr. Pelvin, apparently designed to throw light upon the meaning of "allotted for duty". The former source perhaps provides the explanation for the appellants having advanced before us the submission explained and rejected above. Mr. Topperwien found some use of the word "allotted" in communications passing between military authorities and the (then) Repatriation Department, informing the latter of the identity of units which were posted or assigned for duty in certain areas. It appears that in that correspondence, although the word "allotted" was used, it was not used in any sense differentiating it from "posted" or "assigned". But perhaps this and like usages gave the draftsman the idea that "allotted for duty" had some technical meaning which made its use in the VE Act appropriate. The evidence of Mr. Pelvin showed that, under former statutory provisions which made benefits depend on allotment for "special duty", a practice arose of making such allotments retrospectively. Again, this practice may perhaps have prompted the draftsman's use of the expression "allotted duty" in the VE Act. Proof of that practice cannot, however, control the interpretation of that expression in the VE Act.
We are conscious of the fact that, unless one attaches some special meaning to "allotted for duty", the use of the expression in the provisions of the VE Act which we have discussed appears to add little of practical significance; that is, we read "allotted for duty" as meaning simply "posted" or "assigned" - its ordinary sense. If the result of refusal to give the words "allotted for duty" the special meaning suggested below, or the different special meaning suggested in this Court, is to enlarge the class of those entitled to ascertain benefits beyond what was truly intended, it is to the legislature, not this Court, that pleas to qualify the entitlement under the statute must be directed.
The appeal will be dismissed with costs.
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