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

Copyright in the High Court of Australia

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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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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 crux of that decision appear at pages 48 to 50 of the

application book. At page 48, in the last five lines,

Their Honours reached the view that:

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.

He cites at line 22 a portion of the reasons of the

tribunal. Both of these extracts deal with an

argument that is not made here, that the requirement

is a subjective one rather than objective but
none the less deal with the definition of the words

"incurred danger" and in the last line of the cited

passage there appears this:

There must be established an actual risk

of physical or mental harm.

And at line 20 on that page, referring to the tribunal's

finding of fact, the Full Court says:

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.

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And moving on to line 11:

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.

At line 21, the Full Court sets out the substance of the decision of Mr Justice Einfeld:

" ... 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."

Their Honours were of the.view that that conclusion

was incorr·ect as there had been a misreading of the

colon and the misprints in the Macquarie Dictionary.

Your Honours, at page 51, in the first sentence

commencing on that page, the Full Court goes on to

say:

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.

The court had already said "incurred means run into"
and indeed, had had reference, albeit, guardedly,

to the TAXATION cases.

The court then went on to reach the. view that

the question of the meaning of this phrase was a

question of fact to be left to the tribunal in that

the individual words were not used in a technical

sense. And at page 51 they say, at line 25:

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 our submission that, in fact, both the tribunal

and the Full Court had posed for themselves a wrong
question in that they had limited the parameters

defining that potential state embraced by the word

"danger" in such a fashion as to restrict the potentiality

inherent in the concept contained in section 36

wherever that phrase is used. And Your Honours, we
would seek to hand to the Court, not by way of

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authority nor even by way of analogy but as a

conceptual analysis of such a concept, the decision

of this Court in McBRIDE, (1966) 115 CLR 44

which dealt with section 52A, the culpable driving

provision, of the New South Wales CRIMES ACT

concerning the phrase "drive in a manner dangerous

to the public" or "at a speed dangerous to the

public".

MASON CJ:  But the problem here centres on the use of the

word "incur", does it not? The expression "incur

danger" is inappropriate. One does not usually use

the word "incur" in association with the word "danger".

The difficulty from your point of view is that

inapt though the word "incur" is in that particular

context it, none the less, connotes some idea of

directness.

MR JAMES:  Yes, Your Honour, we would accept that. The

submission we put in relation to the meaning of

the provision - and it is the complex provision -

is thqt the danger must have some degree of reality
about it of an objective nature, some degree of

substantiality, perhaps in the sense that the word

"substantial" is used in the criminal law, in more

than a minimal degree. There does, by nature of the

use of the ·combination of both "danger" and "incurring",

arise a question of degree but our submission here

is that what has happened in attempting to define the

phrase is the concentration on danger and the insertion,
indeed, by everyone, albeit the Full Court deprecated

the use of such a technique, of such words as "actual",

"real" and "substantial", is to produce as a totality,

on a proper reading of all the decisions, a suggestion

that one has to be, as it were, at the bayonet point

or in the bunker when the bombs were falling when, in fact, it would be sufficient by factual analogy

to be a coast watcher on an island off the coast of

New Guinea of whom the Japanese were never aware. One

is none the less still incurring danger. It does not

require an attack.

MASON CJ: But these are all matters of fact and degree, are

they not -

MR JAMES:  They are of degree, Your Honour.

MASON CJ: - - - in the ultimate analysis. One can, perhaps,

more readily accept, in the case of the coast watcher,
in an. area that is subject to, as it were, Japanese

control or regular over-flight by Japanese military

aircraft, that one falls within the section.

MR JAMES: Certainly.

MASON CJ: But this seems rather different - very different.

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MR JAMES:  Your Honour, during the Second World War two midget

submarines entered Sydney harbour, shelled military

installations and civilian homes. It would be our

submission that there was clearly an incurring

of danger, as it were, in Sydney at that time,

within this section.

MASON CJ: Well, you invite me to make an application under

this statute.

MR JAMES:	Maybe, Your Honour - it may well be and, indeed, were Your Honour detained as a civilian then you would have entitlement. But from the point of view
of construction, leaving aside for the moment the
applicant's particular factual circumstances, in
our submission, the Full Court and the Administrative Appeals Tribunal have gone wrong and they have
never turned their minds to the meaning of the words
as it affects this particular applicant.

This island was a radar installation located

some 90 nautical miles south-west of Darwin. At the

relevant time, so it was said, there was, in fact,

no Japanese attack. There was no evidence to

suggest that it could not be attacked or might not

have been attacked had Japanese military priorities
been different. And, indeed, in the tribunal's decision

it can be seen that there was an examination of the

differerce between the new and the old provision at

page 7 of the application book, line 21:

It will be seen that there is a slight

difference in the two definitions. Whereas,

under the old Act, it was necessary to prove

(inter alia) that danger from hostile forces

of the enemy was incurred in the area, as
well as proving that danger was incurred by
the "person so serving", now it is necessary

to prove only that the applicant incurred

danger from hostile forces of the enemy in

the area in which he served.

And the tribunal goes on to deal with the practical

effect of that in the subsequent paragraph:

Whereas previously, general evidence of the

contemporary tactical and strategical

deployment of enemy forces in the area

might have been of great assistance, now

the emphasis appears to have moved to the

actual danger to which the applicant was

subjected.

',..-''	With respect, it would appear that if it is necessary
':.~':·: only to prove the applicant incurred danger
from hostile forces of the enemy in the area in which
he served as opposed to previously also having to prove that it was incurred by the person so serving,

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the tribunal has narrowed the test rather than

widening it. This is a matter, Your Honours, which

did not, as such, attract attention before the

Full Court but the Full Court, in its judgment,

does appear to have confined itself, as it were, to

the question of actual rather than potential danger.

Sir Garfield Barwick, in McBRIDE, at pages 49

to 50 dealt with this precise concept when he said,

at about point 5:

If that manner of driving is not by its

very description potentially dangerous

to the public, it would be necessary to

isolate for the jury the features of it

which the Crown charges to be so dangerous.

And just at the conclusion of that paragraph, towards the bottom of the page:

But in any case, the jury would need to

be told what the expression "dangerous to

the public" as used in the section involves.

That that quality -

imports a quality in the speed or manner

of driving which either intrinsically in
all circumstances, or because of the

particular circumstances surrounding the driving, is in a real sense potentially

dangerous to a human being or human beings

who as a member or as members of the public

may be upon or in the vicinity of the roadway -

and lower in that page, at the next paragraph,

His Honour says:

This quality of being dangerous to

the public in the speed or manner of ·- driving does not depend upon resultant

under the section, impact causing damag 0	damage, though to complete the offence
must occur during that driving. Whilst the innnediate result of the driving may
afford evidence from which the quality of
the driving may be inferred, it is not
that result which gives it that quality.
A person may drive at a speed or in a manner dangerous to the public without
causing. any actual injury: it is the
potentiality in fact of danger to the
public in the manner of driving, whether
realized by the accused or not, which
rr	• .:..:..;..::.~ it dar.gsrous to the public.

And Your Honours, in our submission, the decisions

as they stand, notwithstanding what appears in the

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application book at page 47 where the Full Court

deprecated the use of words to be read into the

section,, to con;fer some particular quality on the

danger that without adherence to some such concept

expressing clearly that the danger includes

"potential" and well as "actual", the court has run into error. That is an error which affects

a great many pension claims. There are a number

of matters stood over before the Administrative Appeals Tribunal awaiting this case; one in the Federal Court. There are some thousands of persons

applying for service pensions. Those pension
confer benefits in excess of the aged pension and

these are persons who otherwise would not qualify

since they do not suffer from a disability. Having

reached the age of 60, this is their sole entitlement

to a pension unless they are able to show a

disability.

BRENNAN J: What do you mean by "potential danger"?

MR JAMES:  Your Honour, the word "danger" in itself includes

the immediacy of a threat in varying degrees.

That immediacy may range through to the instants

before striking and through to an objective

circumstance which would not fall within the law

of attempt, for instance, in crime as being too

remote, but none the less, there is an area of

potential of harm or injury within that spectrum.

BRENNAN J:  Is it a word used to quantify the degree of the

risk?

MR JAMES:  I would submit to the Court they are two different

concepts, degree of risk, and the existence of danger.

One could have the existence of danger without an ascertainable degree of risk.

BRENNAN J:  I confess the concepts are appearing to be

rather rubbery.

MR JAMES:  No disagreement with that.

BRENNAN J: And if one comes to a question of the evaluation

of risk, then it seems to me that inevitably the

question must be one of fact and degree.

MR JAMES:  Your Honour, we agree with that but we would submit

that it is not the whole story. The parameters need

definition. Within the parameters it is a question
of fact and, in our submission, the parameters

here have been narrowed far too narrowly.

BRENNAN J: Are you able to give a description of the correct

~~-~meter? ~

MR JAMES:  The closest, Your Honour, I can give is the description

Sir Garfield Barwick gave in McBRIDE that the parameter

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is, in essence, "the potentiality in fact of

danger to the serviceman".

BRENNAN J: And are you able to demonstrate a non-application

of that in the facts of this case?

MR JAMES:  Your Honour asked me to demonstrate the non-application

of it to the facts of this case?

BRENNAN J: Yes.

MR JAMES:  I apprehend that what Your Honour is putting to me

is was he in fact, in real fact, potentially exposed

to danger?

BRENNAN J: Well, to get special leave, must you not demonstrate that the facts of this case fall outside the parameter

so that it is a suitable vehicle for arguing the

correctness of the parameter you propose?

MR JAMES:  We would submit, Your Honour, that the facts of this

case fall within the widened parameter and fall

outside the narrow parameter.

BRENNAN J: Yes.

MR JAMES:  They fall outside the narrow parameter because again

and again, in the tribunal and in the Full Court,

there is this reference to the concept of actuality.

It even permeated Mr Justice Einfeld's decision when

he refers to "real danger".

BRENNAN J: What is the evidence or what is the finding of

the tribunal - because it must be a finding of the

tribunal, I take it - which falls between the two

parameters? ·

MR JAMES:  Could I take Your Honours to page 21 of the application

book? At page 21, Mr McMahon, for the tribunal, is

dealing with those matters of fact applicable, and

it commences at the top of the page:

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 activitiesof .hostile

forces of the enemy. It must arise

in the area ..... A feeling of dread is not

sufficient ..... There must be established

an actual risk of physical or mental harm. And after dealing with the subjective test, he

continues in the last paragraph:

Whichever way one looks at it, Mr Thompson

a-ia n0t incur. dange:1;.	He di:d noi> hea1: a shot
fired in anger.	He was n0t threatened·on land,

sea or in the air. Whatever he may have thought

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in the dead of night as he walked up

the track to the radar station, there

was notthe slightest chance that there

would be a commando raid or a submarine

landing.

That was not open, in our submission, the last sentence,

on the evidence. What had been tendered - - -

BRENNAN J: That is another question.

MR JAMES:  I am sorry - I appreciate that, Your Honour, but

what had been tendered was evidence to suggest -

historical evidence - that it was unlikely that

the Japanese would in fact have invaded Peron

Island. He continues, however:

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.

And, indeed, the evidence, other than the finding,,

suggest there were some degrees of reconnaissance

flights.

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.

What, in essence, the finding is the fact is he was

not at bayonet point or in the bunker.

BRENNAN J: No, the finding is that"there was not the slightest

chance that there would be a commando raid or a

submarine landing"and that "the armaments" et cetera -

MR JAMES:  Yes, but, Your Honour, the sheer fact of those

findings indicates this island was unprotected and

wa.S a valu.able military :i.nstallat;_on. That, of

itself, takes you some distance.

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BRENNAN J:  So was Heard Island, probably, at the time,

Mr James.

MR JAMES: It may well have been but as I would put to the Court,

when the legislature framed that definition, if they framed it in such a fashion where, in the exigencies of a world-wide war where Major Doolittle could even

fly into Japan and Japanese submarines could come

into Sydney harbour then, none the less, the incurring

of danger, looked at in that sense, looks at the risk

to which a person is exposed. If remote from the

battle areas it may be that one has to apply a higher

degree and see what actually happened but the actuality

is merely evidentiary. The potentiality must always

be there and, in our submission, the decision of the

Full Court and of the tribunal failed to give a sufficient weight to that concept and, in that

sense, narrowed the parameters such that this man's

case was never examined with that in mind. That is the

submission we would make on the application.

MASON CJ: Yes, thank you, Mr James. We need not trouble you,

Mr Robertson.

In our view the actual decision of the Full Court

of the Federal Court is not attended with sufficient

doubt to warrant the grant of special leave to appeal.

The Administrative Appeals Tribunal found as a

fact that the applicant was not at risk whilst he was

on Peron Island or whilst he was travelling to or from

the island by boat, and its finding of fact was
conclusive. It was well open to the Full Court to
conclude that in the light of this finding of fact
the applicant did not incur danger within the meaning

of the statutory provision at any relevant time.

The application of the provision necessarily involves

nice.:.. questions of fact and degree. For these

reasons, the application for special leave to appeal

is refused.

MR ROBERTSON:  Your Honour, the respondent does not seek an

order for costs.

MASON CJ: Very well, the application is refused. There is no

order as to costs.

AT 10.15 AM THE MATTER WAS ADJOURNED SINE DIE

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