Thompson v Repatriation Commission - [1988] HCATrans 300

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S94 of 1988
B e t w e e n -
WALTER HAROLD THOMPSON
Applicant

and
REPATRIATION COMMISSION
Respondent

Application for special
leave to appeal

MASON CJ
BRENNAN.J

GAUDRON J

Thompson

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY 1 25 NOVEMBER 1988, AT 9.47 AM

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25/11/88

MR G.R. JAMES, QC:

May it please the Court, in this matter I

appear for the applicant, with my learned friend,
MR H. BLEICHER. (instructed by the
Legal Aid Connnission of New South Wales)

MR A. ROBERTON:

May it please the Court, I appear for the

respondent. (instructed by the Australian Government
Solicitor)

MASON CJ: Yes, Mr James.

MR JAMES:

Your Honours, the present application concerns the

meaning of a portion of a complex eligibility provision
contained in section 36 of the VETERANS' ENTITLEMENT

ACT. And Your Honours can find that provision set out
in the appeal bock at various pages, in particular,
in the judgment of the Full Court of the Federal Court
of Australia at page 43 of the application book
where Your Honours will see it is contrasted with the
former definition under the REPATRIATION ACT 1920.
We have prepared for the benefit of the Court

extracts from the VETERANS' ENTITLEMENT ACT of

section 6, section 35 and section 36. I hand up four
copies.

MASON CJ: Thank you, Mr James.

MR JAMES:

The relevant portion, Your Honours, of the definition

is that which Your Honours will see at line 31 on
page 43:
the person incurred danger from hostile
forces of the enemy.

Your Honours, in the material we have handed up
Your Honours will see that that phrase is not limited
to section 36(a)(i) but additionally occurs in sections36(b)(i), 36(c) in the last two lines,
36(d) - - -

MASON CJ: What page do we find - - -?

MR JAMES:

Page 50 and 51, Your Honours, subsections (d),

(g) and (h).

Your Honours, it is section 36

that defines the eligibility under Part III
of the VETERANS' ENTITLEMENTS ACT for service pensions.
The various criteria for eligibility are set out in general terms in section 36. The question that arose before the Administrative Appeals Tribunal and
later before Mr Justice Einfeld, sitting as a single
judge of the Full Federal Court, was the meaning of
this phrase and it was considered also by the Full
Court. In our submission, both the Administrative
Appeals Tribunal and the Full Court, in construing the phrase, "in its context" as part of this complex eligibility provision, sufficiently undervalued the potentiality necessary to constitute the state of

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Thompson

danger, such as to, in effect, place an applicant
in a position where that applicant had to show
that they were in a circumstance of such directness
of conflict, as either to be in actual combat or
attacked.

Your Honours, the relevant portions of the

Full Court's judgment setting out the…

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.

Continue reading Thompson v Repatriation Commission

Details

AGLC: Thompson v Repatriation Commission [1988] HCATrans 300
Case: [1988] HCATrans 300
Decision Date

CaseChat Overview and Summary

Walter Harold Thompson (the applicant) brought an application before the High Court of Australia against the Repatriation Commission (the respondent). The dispute concerned the interpretation of a specific phrase within section 36 of the *Veterans' Entitlements Act*. This provision outlines the eligibility criteria for service pensions. The applicant argued that both the Administrative Appeals Tribunal and the Full Court of the Federal Court of Australia had undervalued the potentiality required to establish the state of danger contemplated by the Act.

The central legal issue before the High Court was the precise meaning of the phrase "incurred danger from hostile forces" as it appears within section 36 of the *Veterans' Entitlements Act*. This phrase is a component of a complex eligibility provision, and its interpretation was crucial for determining the applicant's entitlement to a service pension. The applicant contended that the lower courts had interpreted this phrase too narrowly, effectively requiring a level of directness in conflict, such as actual combat, which was not mandated by the legislation.

The High Court was required to consider the Full Court's reasoning, which stated that the words "incurred danger" provided an objective, not subjective, test. The Full Court held that a serviceman incurs danger when they encounter, are in, or are endangered by danger, and specifically incurs danger from hostile forces when at risk or in peril of harm from such forces. It was further held that merely perceiving or fearing danger, or a mere liability or risk of danger, did not constitute incurring danger. The Full Court's interpretation emphasised that danger is only incurred when a serviceman is exposed to, at risk of, or in peril of physical or mental harm.

Orders