Repatriation Commission v Robertson [2004] FCA 173
ADMINISTRATIVE LAW – judicial review – Veterans’ Affairs – Gold Card eligibility – whether qualifying service rendered – where Tribunal found condition of “operations against the enemy” satisfied and condition of “incurred danger from hostile forces” satisfied – whether no evidence to support findings.
REPATRIATION COMMISSION V BRUCE JOHN GRAY ROBERTSON
N 1244 OF 2002
BEAUMONT J 5 MARCH 2004 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1244 OF 2002
ON APPEAL FROM THE VETERANS’ APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
REPATRIATION COMMISSION APPLICANT
AND:
BRUCE JOHN GRAY ROBERTSON RESPONDENT
JUDGE:
BEAUMONT J
DATE OF ORDER:
5 MARCH 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The application be dismissed, with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1244 OF 2002
BETWEEN:
REPATRIATION COMMISSION APPLICANT
AND:
BRUCE JOHN GRAY ROBERTSON RESPONDENT
JUDGE:
BEAUMONT J
DATE:
5 MARCH 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
BEAUMONT J:
INTRODUCTION
The respondent applied to the Administrative Appeals Tribunal (‘the Tribunal’) to review a decision of the Repatriation Commissioner’s delegate that the respondent did not render ‘qualifying service’ within the meaning of s 7A of the Veterans’ Entitlement Act 1986 (Cth) (‘the Act’), and thus was not eligible for a Gold Card pursuant to s 85(4) of the Act. The Tribunal set aside the Repatriation Commission’s decision, and in lieu thereof, decided that the respondent was so eligible. The Repatriation Commission (‘the Commission’) now appeals from that decision on a question or questions of law (only).
‘Qualifying service’ is defined in s 7A as follows:
‘... a person has rendered qualifying service ... if the person has, as a member of the Defence Force…rendered service, during a period of hostilities ... in naval military or aerial operations against the enemy in an area ... at a time when the person incurred danger from hostile forces of the enemy in that area ... .’
In his claim, the respondent relied upon seagoing service towards the end of the Second World War, outside the coastal waters of Australia, in the Pacific.
THE FACTS AND EVIDENCE BEFORE THE TRIBUNAL
The Tribunal described the material facts and evidence before it as follows:
1. The respondent’s evidence
·The respondent served in the Royal Australian Naval Reserve (‘the RANR’) from 11 January 1945 until 6 November 1946, during which period he served in various ships and establishments.
·In company with other naval personnel being deployed to join various ships, he took passage…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Repatriation Commission v Robertson [2004] FCA 173
Case
[2004] FCA 173
Decision Date
CaseChat Overview and Summary
In the case of Repatriation Commission v Robertson, the central dispute revolved around the eligibility of the respondent, a former member of the Royal Australian Naval Reserve, for repatriation benefits. The respondent claimed that his service in Operation Talaud in the Talaud-Sangihe island group, which involved supervising the surrender of Japanese forces in the Pacific, constituted "service... in naval, military or aerial operations against the enemy" as defined in section 7A(1)(a)(i) of the relevant legislation. The Repatriation Commission contested this claim, arguing that the respondent's service did not meet the statutory criteria for qualifying service.
The primary legal issue before the court was whether the respondent's participation in Operation Talaud, which involved the acceptance of Japanese forces' surrender, constituted "operations against the enemy" under the statute. The court had to determine if the respondent's actions were sufficiently hostile or oppositional to qualify as military operations against the enemy, especially considering that the Japanese forces involved had already been informed of the surrender and were not actively hostile.
The court's reasoning was grounded in the interpretation of the statutory language and relevant case law. It noted that the term "against the enemy" implies hostility or active opposition, not mere contact with the enemy. Drawing from previous cases such as Willcocks v Repatriation Commission and Repatriation Commission v Ahrenfeld, the court concluded that the respondent's activities did not amount to military operations against the enemy. The evidence showed that the Japanese forces encountered by the respondent were not hostile and willingly surrendered, thereby lacking the necessary hostile or oppositional element required by the statute.
Consequently, the court dismissed the appeal, holding that the respondent's service did not qualify as "service... in naval, military or aerial operations against the enemy." The decision was based on the lack of evidence that the respondent participated in any hostile or oppositional encounters with enemy forces during Operation Talaud. The appeal was dismissed with costs.
Orders
Orders of the court
1. The application be dismissed, with costs.
Background
Background to the litigation
In his claim, the respondent relied upon seagoing service towards the end of the Second World War, outside the coastal waters of Australia, in the Pacific.THE FACTS AND EVIDENCE BEFORE THE TRIBUNAL The Tribunal described the material facts and evidence before it as follows:1. The respondent’s evidence·The respondent served in the Royal Australian Naval Reserve (‘the RANR’) from 11 January 1945 until 6 November 1946, during which period he served in various ships and establishments.·In company with other naval personnel being deployed to join various ships, he took passage from Australia to Morotai in HMAS BUNGAREE, arriving on 12 October 1945. ·On arrival at Morotai, the respondent joined HMAS BOWEN. The ship sailed later that day to undertake Operation Talaud in the Talaud-Sangihe island group, an operation described as ‘a surveillance mission ... part of the process of supervising and effecting the terms of surrender in the Australian area of responsibility’. The operation lasted until 20 October 1945 when the ship returned to Morotai. Whilst the Instrument of Surrender of Japanese forces had been signed on 2 September 1945, the evidence of an historian, Ms Carter, noted, in referring to the Official Historian, Gavin Long, that there were concerns that some Japanese units would not accept the surrender, or in the outlying islands, would not be aware of the decision by the Emperor of Japan to surrender. So it was that some six weeks later, on 12 October 1945, that HMAS BOWEN sailed from Morotai to transport the personnel forming Talaud Force to various islands to enable them to effect the surrender.·The respondent described his role as that of a seaman required to undertake normal ship board duties, but also to form part of an armed naval landing party required to land at various islands to escort the Talaud Force, to effect the surrender of local Japanese forces, to escort Japanese personnel onboard HMAS BOWEN as ordered, and to collect arms and ammunition. The naval landing party was accompanied by army personnel. On all occasions of landing (and he gave evidence that he landed on all but one island during the eight day operation), the landing parties carried loaded rifles or sub-machine guns, with the safety catch on. He recounted that army and naval personnel were going to and from the ship to shore, but could not recall whether sentries were maintained ashore.·The respondent described feelings of apprehension. There were relatively few in the landing party, and a hostile reception on landing could not be discounted. He recalled that it was a common belief that the Japanese did not always surrender when called upon to do so, but that had not happened to him. However, he was prepared for such an eventuality. He was aware that the enemy forces were renowned for their cruelty. On one occasion at Liroeng, when the landing party trekked along a jungle path to a Japanese headquarters, he observed that the Japanese hid their flag rather than surrender it. He had heard a rumour that the Japanese commander was insane, which ‘did not put [him] at ease’. Prisoners were escorted onboard HMAS BOWEN under guard, and he understood that some were later accused of war crimes.·In cross-examination, the respondent, referring to the occasion when he was part of the landing party at Liroeng to take the surrender at the Japanese headquarters located in the jungle, said he ‘felt most at risk’, not knowing how many Japanese soldiers were at that location. He described his officers going into the headquarters and bringing out the Japanese, who agreed to surrender the following day; he recalled that some were allowed to keep their arms, but he did not see them point their weapons at himself or other Australians. The following day, the Japanese commander disarmed his troops; there was no evidence of resistance. The respondent described the situation as dangerous. He was fearful and apprehensive as he did not know how the Japanese would react.·In a letter to his mother apparently written prior to the ship’s return to Morotai on 20 October 1945, the respondent described the events in this period but makes no mention of any incidents wherein it might be suggested that he was specifically threatened by Japanese personnel.2. Mr Webster’s evidenceMr Webster, who served on board HMAS BOWEN in the rank of Sub-Lieutenant throughout the period of the respondent’s posting to that ship, gave this evidence:·His duty was as the navigating officer. The role of TALFORCE (as he called it) was to disarm garrisons and enemy forces, and to collect all weapons. He recalled a signal being received from the Admiralty on 15 August 1945, stressing the need for personnel to take precautions. He did not consider that HMAS BOWEN faced any threat from enemy ships or submarines, but a threat to personnel could come from ‘renegades’, and a threat from minefields could exist. He was aware from an earlier deployment by HMAS BOWEN and other corvettes to the Celebes in September 1945 that Japanese forces had refused to surrender Dutch women and children because they were not aware that the war was over; he also considered that on the passage to and from the Celebes, ships may well have been transiting unknown minefields. In the context of the ship’s visit to Liroeng on 13 October 1945, he did not land, but believed there was risk of rogue elements, and felt fearful.·Mr Webster did not land with the respondent at any time, but he confirmed that landing parties were briefed by the Officer in Charge of the Force, Major Garnsey, as to the risks and the need to be armed at all times. He did not observe any Japanese hostilities, nor was he aware of any occasion in the period 12 to 20 October 1945 where Japanese soldiers refused to surrender or hand over their arms. He confirmed that HMAS BOWEN embarked some prisoners at times, and gave evidence that there were no problems with Japanese working parties on board the ship.THE TRIBUNAL’S ANALYSIS OF EVIDENCE AND FINDINGS
Evidence
Evidence Before The Court
The Tribunal described the material facts and evidence before it as follows:1. The respondent’s evidence·The respondent served in the Royal Australian Naval Reserve (‘the RANR’) from 11 January 1945 until 6 November 1946, during which period he served in various ships and establishments.·In company with other naval personnel being deployed to join various ships, he took passage from Australia to Morotai in HMAS BUNGAREE, arriving on 12 October 1945. ·On arrival at Morotai, the respondent joined HMAS BOWEN. The ship sailed later that day to undertake Operation Talaud in the Talaud-Sangihe island group, an operation described as ‘a surveillance mission ... part of the process of supervising and effecting the terms of surrender in the Australian area of responsibility’. The operation lasted until 20 October 1945 when the ship returned to Morotai. Whilst the Instrument of Surrender of Japanese forces had been signed on 2 September 1945, the evidence of an historian, Ms Carter, noted, in referring to the Official Historian, Gavin Long, that there were concerns that some Japanese units would not accept the surrender, or in the outlying islands, would not be aware of the decision by the Emperor of Japan to surrender. So it was that some six weeks later, on 12 October 1945, that HMAS BOWEN sailed from Morotai to transport the personnel forming Talaud Force to various islands to enable them to effect the surrender.·The respondent described his role as that of a seaman required to undertake normal ship board duties, but also to form part of an armed naval landing party required to land at various islands to escort the Talaud Force, to effect the surrender of local Japanese forces, to escort Japanese personnel onboard HMAS BOWEN as ordered, and to collect arms and ammunition. The naval landing party was accompanied by army personnel. On all occasions of landing (and he gave evidence that he landed on all but one island during the eight day operation), the landing parties carried loaded rifles or sub-machine guns, with the safety catch on. He recounted that army and naval personnel were going to and from the ship to shore, but could not recall whether sentries were maintained ashore.·The respondent described feelings of apprehension. There were relatively few in the landing party, and a hostile reception on landing could not be discounted. He recalled that it was a common belief that the Japanese did not always surrender when called upon to do so, but that had not happened to him. However, he was prepared for such an eventuality. He was aware that the enemy forces were renowned for their cruelty. On one occasion at Liroeng, when the landing party trekked along a jungle path to a Japanese headquarters, he observed that the Japanese hid their flag rather than surrender it. He had heard a rumour that the Japanese commander was insane, which ‘did not put [him] at ease’. Prisoners were escorted onboard HMAS BOWEN under guard, and he understood that some were later accused of war crimes.·In cross-examination, the respondent, referring to the occasion when he was part of the landing party at Liroeng to take the surrender at the Japanese headquarters located in the jungle, said he ‘felt most at risk’, not knowing how many Japanese soldiers were at that location. He described his officers going into the headquarters and bringing out the Japanese, who agreed to surrender the following day; he recalled that some were allowed to keep their arms, but he did not see them point their weapons at himself or other Australians. The following day, the Japanese commander disarmed his troops; there was no evidence of resistance. The respondent described the situation as dangerous. He was fearful and apprehensive as he did not know how the Japanese would react.·In a letter to his mother apparently written prior to the ship’s return to Morotai on 20 October 1945, the respondent described the events in this period but makes no mention of any incidents wherein it might be suggested that he was specifically threatened by Japanese personnel.2. Mr Webster’s evidenceMr Webster, who served on board HMAS BOWEN in the rank of Sub-Lieutenant throughout the period of the respondent’s posting to that ship, gave this evidence:·His duty was as the navigating officer. The role of TALFORCE (as he called it) was to disarm garrisons and enemy forces, and to collect all weapons. He recalled a signal being received from the Admiralty on 15 August 1945, stressing the need for personnel to take precautions. He did not consider that HMAS BOWEN faced any threat from enemy ships or submarines, but a threat to personnel could come from ‘renegades’, and a threat from minefields could exist. He was aware from an earlier deployment by HMAS BOWEN and other corvettes to the Celebes in September 1945 that Japanese forces had refused to surrender Dutch women and children because they were not aware that the war was over; he also considered that on the passage to and from the Celebes, ships may well have been transiting unknown minefields. In the context of the ship’s visit to Liroeng on 13 October 1945, he did not land, but believed there was risk of rogue elements, and felt fearful.·Mr Webster did not land with the respondent at any time, but he confirmed that landing parties were briefed by the Officer in Charge of the Force, Major Garnsey, as to the risks and the need to be armed at all times. He did not observe any Japanese hostilities, nor was he aware of any occasion in the period 12 to 20 October 1945 where Japanese soldiers refused to surrender or hand over their arms. He confirmed that HMAS BOWEN embarked some prisoners at times, and gave evidence that there were no problems with Japanese working parties on board the ship.THE TRIBUNAL’S ANALYSIS OF EVIDENCE AND FINDINGS
Decision
Reasons for decision
BEAUMONT J
The Commission propounds these grounds of appeal:(1)It was not open to the Tribunal to find that the respondent ‘rendered service ... in naval, military or aerial operations against the enemy’ within s 7A(1)(a)(i) by reason of his participation in an operation to accept the surrender of Japanese forces (Operation Talaud) between 12 and 20 October 1945.(2)It was not open to the Tribunal to find that the respondent ‘rendered service ... in naval, military or aerial operations against the enemy’:(i)where it was not evident whether the relevant Japanese forces encountered by the respondent were ‘in a hostile mode or merely waiting to be formally instructed by allied forces to surrender’ (see par 31 of the Tribunal’s reasons, cited above);(ii)in the absence of a finding that the respondent was participating in a hostile offensive or defensive encounter or exchange with the enemy; and(iii)given the uncontradicted evidence, that the only members of the Japanese military forces encountered during Operation Talaud between 12 and 20 October 1945 were not hostile and willingly surrendered to Australian forces.(3)It was not open to the Tribunal to find that the respondent ‘incurred danger from hostile forces of the enemy’ within s 7A(1)(a)(i):(i)in the absence of any evidence or finding that the enemy forces encountered by the respondent between 12 and 20 October 1945 were ‘hostile forces of the enemy’; and(ii)given the contradicted evidence that the only members of the Japanese military forces encountered by the respondent between 12 and 20 October 1945 were not hostile and willingly surrendered to Australian forces.CONCLUSIONS ON THE APPEAL As mentioned, an appeal may only be brought on a question of law so that, provided the correct legal question is addressed, there is no appeal on purely factual questions, especially in this area where, as the authorities show, the matter is to be approached in a practical way. As the first limb of s 7A(1)(a)(i) is not disputed, it is convenient to consider the second limb initially.‘Operations against the enemy’ In Willcocks v Repatriation Commission (1992) 39 FCR 49, Cooper J held that the provision required service in military operations against the enemy in the sense of operations in hostility or opposition to the enemy. His Honour held that, although the applicant had been threatened by a Japanese soldier whilst assisting in the repatriation of prisoners of war immediately after the Japanese surrender, the activity of releasing and repatriating POWs could not be characterised as such operations. It was there accepted by the Commission (at 53) that the applicant had rendered service in an area at a time when he incurred danger, but the Commission disputed that those operations were ‘against’ the enemy. Cooper J said (at 56):‘[T]he 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.The Full Court decision in [Repatriation Commission v Ahrenfeld (1991) 29 FCR 556] ... does not support the applicant’s contention that mere “contact with” the enemy is sufficient. In that case, it was held 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. In my view the phrase “an encounter with the enemy” does not mean mere contact with the enemy. It refers to a hostile offensive or defensive encounter or exchange with the enemy.’
Ratio Decidendi
Legal Principle Established
Established by:
BEAUMONT J
As the first limb of s 7A(1)(a)(i) is not disputed, it is convenient to consider the second limb initially.‘Operations against the enemy’ In Willcocks v Repatriation Commission (1992) 39 FCR 49, Cooper J held that the provision required service in military operations against the enemy in the sense of operations in hostility or opposition to the enemy. His Honour held that, although the applicant had been threatened by a Japanese soldier whilst assisting in the repatriation of prisoners of war immediately after the Japanese surrender, the activity of releasing and repatriating POWs could not be characterised as such operations. It was there accepted by the Commission (at 53) that the applicant had rendered service in an area at a time when he incurred danger, but the Commission disputed that those operations were ‘against’ the enemy. Cooper J said (at 56):‘[T]he 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.The Full Court decision in [Repatriation Commission v Ahrenfeld (1991) 29 FCR 556] ... does not support the applicant’s contention that mere “contact with” the enemy is sufficient. In that case, it was held 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. In my view the phrase “an encounter with the enemy” does not mean mere contact with the enemy. It refers to a hostile offensive or defensive encounter or exchange with the enemy.’ His Honour added (at 56):‘The activity of releasing and repatriating prisoners of war cannot be characterised as military operations against the enemy within the meaning of the provision. While they were military operations which involved contact with the enemy, they were not in hostility or opposition to the enemy. The situation is properly characterised as one where a veteran was engaged in military operations, which themselves were not operations against the enemy, but in the course of which the veteran had a hostile encounter with the enemy. This is not sufficient to satisfy the relevant provision, for it fails to satisfy both elements in the phrase “military ... operations against the enemy”.It does not follow that no service after the formal Japanese surrender in Singapore on 12 September 1945 and in the period to 29 October 1945 will constitute “qualifying service”. For example, if it were proven as a matter of fact that a practical state of war of actual hostilities continued in the region after the formal surrender (see Marsh v Repatriation Commission (1987) 15 FCR 503 at 511, 512) any Australian soldiers deployed in the region to quell hostile Japanese forces who refused to accept, or were unaware of, the surrender could properly be described as rendering service in military operations against the enemy.’