Repatriation Commission v Thompson
[1988] FCA 320
•24 JUNE 1988
Re: THE REPATRIATION COMMISSION
And: WALTER HAROLD THOMPSON
No. G205 of 1988
Administrative Law
(1993) 44 FCR 20
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies(1), Wilcox(1) and Foster(1) JJ.
CATCHWORDS
Administrative Law - Veterans' Entitlements Act s.36(a)(i) - whether service satisfied requirements for a service pension - whether danger incurred - meaning of the words in s.36(a)(i) - the nature of the test - the distinction between error of law and error of fact - relevance of endorsement stamped on certificate of discharge.
Veterans' Entitlements Act 1986 (Cth) - s.36(a)(i)
HEARING
SYDNEY
#DATE 24:6:1988
Counsel for the Appellant: Mrs P.C. Flemming Q.C. with Mr A. Robertson
Solicitor for the Appellant: Australian Government Solicitor
Counsel for the Respondent: Mr A.T. McInnes Q.C. with Mr A.L. Hill
Solicitor for the Respondent: Legal Aid Commission
ORDER
The appeal be allowed.
The orders below be set aside and in lieu thereof, there be substituted an order that the appeal to the Court be dismissed.
NOTE: Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
JUDGE1
This is an appeal from the judgment of a single judge of this Court which held that an Administrative Appeals Tribunal ("the Tribunal") had erred in law in interpreting the provisions of s.36(a)(i) of the Veterans' Entitlements Act 1986 (Cth)("the Act") and in rejecting as of no weight an endorsement on the certificate of discharge of the present respondent, Walter Harold Thompson. The learned trial Judge set aside the decision of the Tribunal, remitted the matter to the Tribunal for its reconsideration and ordered that the present appellant, the Repatriation Commission, pay the costs of the proceedings before him.
The Tribunal had reviewed a decision of the Repatriation Commission which had refused the grant of a service pension to Mr Thompson. As Mr Thompson was over 60 years of age, no question of disability was involved and the sole question was whether his service satisfied the requirements for a service pension. At the time when the Commission made its decision, the relevant Act was the Repatriation Act 1920 (Cth) of which s.23 contained the following definition of "Served in a theatre of war":-
"'Served in a theatre of war' means served 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 danger from hostile forces of the enemy was incurred in that area or on that aircraft or ship of war by the person so serving;"
When the matter came before the Tribunal, the operative legislation was that found in s.36(a)(i) of the Veterans' Entitlements Act which specified the requisite service as follows:-
"36. For the purposes of this Part, 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 sub-section 35 (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; ..."
Before the Tribunal, the issue was whether, in the area in which he had served, Mr Thompson incurred danger from hostile forces of the enemy. From June to October 1944, Mr Thompson had served on Peron Island, a small island at the mouth of the Daly River in Anson Bay southwest of Darwin. Mr Thompson was there with approximately 30 other servicemen. On the island was a radar post. In rejecting the claim that Mr Thompson incurred danger from hostile forces whilst on the island, the Tribunal said:-
"Whichever way one looks at it, Mr Thompson did not incur danger. He did not hear a shot fired in anger. He was not threatened on land, sea or in the air. Whatever he may have thought in the dead of night as he walked up the track to the radar station, there was not the slightest chance that there would be a commando raid or a submarine landing. The armaments on the Island were never designed to withstand such an eventuality. This would seem to indicate that, at any rate, those who planned the installation and its defences shared that assessment of invasion possibilities. He was approximately 100 miles from whatever aerial activity might be expected. There was, in fact, none of this and there had been none for some 8 months previously. True it is that one could not tell on 13 November 1943, the day after the last air raid, that it was in fact the last of the air raids on Darwin. However, it is reasonable to assume that as time went by, and certainly by 8 months later, such an assumption in the light of the general war situation in the South Pacific was reasonable. In any event, whether such an assumption was made is irrelevant. The fact is that there were no air raids during the relevant period."
The Tribunal likewise rejected the submission that danger was involved in the two trips of approximately 100 miles each which Mr Thompson had when he went from Darwin to the island and later returned to Darwin. There was evidence that, at that period, the enemy would not have had any submarine or vessel available to attack the small ship transporting Mr Thompson and that, in any event, the presence of shoals along the coast would have deterred any such attack. In brief, Mr Thompson neither saw nor heard any enemy plane, vessel or soldier. The last bombing attack on Northern Australia had occurred in December 1943.
The case was put that Mr Thompson was fearful of danger whilst he was on the island. Mr Thompson gave this evidence:-
"So you were not, I understand, taking it as being able to go for a pleasant evening's stroll there?---I did not ever consider it a pleasant evening's stroll. I more or less considered it something which, after a period of time, started to take a toll on your nerves. It made everybody very agitated and everybody was on edge about it.
...
Why were you on edge and, as you put, terrified when you had to walk to the radar?---Different nights, with the way the atmosphere was, it was pitch black dark - only that you knew the track and where you were going, sometimes you might stumble over something."
It is readily understandable that servicemen on the island, isolated as they were without regular radio or other news from the mainland, having little knowledge of the overall strategic situation and being required to carry a rifle wherever they went on the island, could have felt a degree of apprehension about their situation. But that is not to say that danger was incurred.
In approaching the statutory provision, it is necessary to keep in mind that the words used are words of ordinary parlance and are used in their ordinary sense. No word in s.36(a)(i) is ambiguous, no ambiguity arises from the order in which the words are used and no ambiguity arises from the context in which the provision is found. The words require no juristic extrapolation. They mean what they say, no more and no less, and they should be so read.
The only qualification we place on that comment is with respect to the term "in the field". As to whether that term carries its ordinary sense or a military sense and whether, in either case, it means simply "on land", we make no comment. A servicemen who suffered danger from a bombing attack while stationed at his home base may have to argue the point. It is not presently relevant. But, save with that one qualification, there is no ambiguity in the words of s.36(a)(i).
In Marsh v. Repatriation Commission (1987) 71 ALR 281, Burchett J., considered certain of the terms in the definition in s.20 of the Repatriation Act 1920 and said at p.284:-
"The expression is a graphic one referring to military realities ... These are plainly practical concepts."
On appeal, Sheppard, Morling and Beaumont JJ. said (No. G129 of 1987, judgment delivered 4 September 1987):-
"His Honour held, correctly, in our opinion, that the statutory definition of 'theatre of war' is looking to practical, rather than juristic concepts. It clearly contemplates an actual, as distinct from a legal or theoretical, state of warfare.
...
Because the relevant inquiry is a practical one, one is concerned to see whether, in actual fact, the appellant 'served .. in ... operations ... against the enemy ... in an area, at a time when danger from hostile forces of the enemy was incurred in that area ... ."
In applying such a provision, therefore, it is desirable to eschew the use of adverbs and adjectives, that is to say, not to read into the provision words which are not there. In referring to the word "danger", Administrative Appeals Tribunals have used adjectives such as "real", "actual" and "substantial". But the word "danger" stands for itself. If a serviceman incurs danger from hostile enemy forces, that circumstance is sufficient to satisfy the statutory requirement. It is indeed the specified requirement. No adjective can enlighten that concept. When applying the word "incurred", some Administrative Appeals Tribunals have used the expression "reasonable expectation". But, again, the word "incurred" is an ordinary word of the English language. It has a dictionary meaning and is used in that sense. Other words should not be substituted for it.
That is not to say that a decision of the Administrative Appeals Tribunal will be in error if an adjective or adverb is used. Such words can enhance reasons if used appropriately. However, statutory provisions which use unambiguous words in their ordinary meaning ought not to be applied by substituting other terms for the terms which the statutory provision itself uses.
The Shorter Oxford Dictionary gives the following modern sense of the word "danger":-
"Liability or exposure to harm or injury; risk, peril."
The Macquarie Dictionary gives an identical definition save that a semicolon is inserted between the words "risk" and "peril". Those definitions set out the modern use of the word which is the sense in which it is used in s.36(a)(i).
The Shorter Oxford Dictionary gives these relevant meanings of the word "incur" in its transitive sense.
"II. 1. To run into; to come upon, meet with ...
2. To run or fall into (some consequence, usu. undesirable); to bring upon oneself ..."
We hesitate to suggest that the complex principles of income taxation have any application to the present test. Nevertheless, it may be worth noting that in Federal Commissioner of Taxation v. James Flood Pty Limited (1953) 88 CLR 492 at p 507, Dixon C.J., Webb, Fullagar, Kitto and Taylor JJ. cited the following passage from New Zealand Flax Investments Limited v. The Federal Commissioner of Taxation (1938) 61 CLR 179 at p 207 that:-
"'Incurred' does not mean only defrayed, discharged, or borne, but rather it includes encountered, run into, or fallen upon. ... it does not include a loss or expenditure which is no more than impending, threatened, or expected."
Their Honours used as analogous terms the words "established" and "definitively committed". Their remarks are consistent with the dictionary definition.
The words "incurred danger" therefore provide an objective, not a subjective, test. A serviceman incurs danger when he encounters danger, is in danger or is endangered. He incurs danger from hostile forces when he is at risk or in peril of harm from hostile forces. A serviceman does not incur danger by merely perceiving or fearing that he may be in danger. The words "incurred danger" do not encompass a situation where there is mere liability to danger, that is to say, that there is a mere risk of danger. Danger is not incurred unless the serviceman is exposed, at risk of or in peril of harm or injury.
The danger incurred must of course be more than a merely fanciful danger or a danger so minimal that the rule of de minimis applies. But to say that is not to give a flavour to the word. Rather it is to use it in its ordinary sense.
The above appear to have been the principles applied by the Tribunal in its decision. The Tribunal said:-
"The section talks about 'at a time when the person incurred danger', not at a time when the person might have incurred danger or might have thought that danger might be there. Danger must be real and not fanciful. It must consist of more than the shadows of the night. It must arise as a direct result of the activities of hostile forces of the enemy. It must arise in the area in which the applicant serves. A feeling of dread is nt sufficient to base a claim under this section. There must be established an actual risk of physical or mental harm."
It was submitted by Mr A.T. McInnes Q.C., with whom Mr A.L. Hill appeared for Mr Thompson, that the Tribunal considered that a serviceman must be actually in the firing line in order to meet the qualification. He referred to the sentence set out earlier that "He (Mr Thompson) did not hear a shot fired in anger." However, a reading of the Tribunal's reasons as a whole does not support the submission. The reasons as a whole show that the Tribunal came to the conclusion that Mr Thompson was not at risk from enemy forces while he was on Peron Island or whilst travelling to and from the island by boat. It was on that footing and not on the footing that an undue degree of danger was required that the Tribunal rejected Mr Thompson's claim.
The Tribunal used the words "actual risk" but did so only to emphasise what the Tribunal had earlier said, namely, that the test was an objective one, not subjective. It should be kept in mind that Mr Thompson's case was put to the Tribunal on the footing that the degree of danger had to be assessed in a subjective sense. The Tribunal properly rejected that submission. The Tribunal also said that "danger must arise as a direct result of the activities of hostile forces". The adjective "direct" may not in all circumstances be apposite. But it appears that the Tribunal was merely distinguishing, in the circumstances of the case, between danger from hostile forces and such danger as may have existed on Peron Island from crocodiles and from unlit paths. The Tribunal was correct in making that distinction.
The learned trial Judge rejected the approach taken by the Tribunal and said:-
"... it is sufficient if, looked at objectively, the veteran was in a situation of real danger or liability to danger from the hostilities in which he/she was called upon to participate."
However, the trial Judge appears to have relied upon an incorrect extract from the Macquarie Dictionary's definition of "danger", which extract contained two misprints. It seems likely that the misprints led his Honour to adopt the words "liability to danger". We have already stated that liability to danger in the sense of a risk of danger is not sufficient. The statutory provision requires that danger be incurred.
In a matter such as this, it is necessary to keep in mind that the Tribunal was the judge of the facts. As Brennan J. said in Waterford v. The Commonwealth (1987) 163 CLR 77:-
"The error of law which an appellant must rely on to succeed must arise on the facts as the A.A.T. has found them to be or it must vitiate the findings made or it must have led the A.A.T. to omit to make a finding it was legally required to make. There is no error in law simply in making a wrong finding of fact."
The distinction between fact and law has recently been considered by Gummow J. in Skypak International (Aust) Pty Limited v. Commissioner of Taxation (G621 of 1986, delivered 20 April 1988) and by Spender J. in Federal Commissioner of Taxation v. Noume 88 ATC 4217. In marginal cases, the task of distinguishing between an error of law and an error which is not such may be a difficult one. However, the nature of the task of this Court is clear. It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law.
The words of s.36(a)(i) are used in a non-technical sense and the finding by the Tribunal that Mr Thompson did not in his service incur danger from hostile forces of the enemy was, in our opinion, a pure question of fact. It is not for this Court to review such a finding. The Court ought not to intervene even if it thought, as we do not, that the Court would have reached a different conclusion on the point.
When the challenged finding is one of fact, an error of law will only arise if it be found that the finding was unreasonable in the sense expounded in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation (1948) 1 KB 223, or that the reasoning of the Tribunal disclosed that it approached the issue on a wrong footing by posing the wrong question or otherwise made a legal error which vitiated the finding. In the present case, no such circumstance appears from the reasons of the Tribunal.
The last matter which needs to be mentioned is that the Tribunal gave no weight to a stamped endorsement on Mr Thompson's interim certificate of discharge which stated "Member served in a combat zone". The certificate was received in evidence but the Tribunal expressed its view that, in the circumstances of the case, the Tribunal having heard extensive evidence from Mr Thompson and from Lieutenant Colonel Horner, a military historian, the certificate was of no evidentiary significance. The trial Judge thought that the Tribunal effectively rejected the certificate as evidence. However, in our opinion, it did not do so but considered it to be of no assistance.
The weight, if any, which a Tribunal gives to a particular piece of evidence is a matter for the Tribunal and forms a part of its fact-finding function. Provided that a relevant factor is taken into account, no error is shown should the Tribunal have given less weight to the matter than would the Court. In the present case, the Tribunal did not fail to have regard to the certificate, it merely found it of no help, because the basis on which the certificate had been granted was not known. Moreover, it was for the Tribunal to make up its own mind, not to give weight to views held by others in the administrative process. See Collins v. Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598.
For these reasons, the appeal should be allowed, the orders below should be set aside and, in lieu thereof, there should be substituted an order that the appeal to the Court be dismissed. In these circumstances, and having regard to the fact that the present appeal elucidates a matter of principle, Mrs P.C. Flemming QC, with whom Mr A. Robertson appeared for the appellant, very properly did not seek an order for costs.
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