Verth v Repatriation Commission

[2002] FCA 375

FEDERAL COURT OF AUSTRALIA

Verth v Repatriation Commission [2002] FCA 375

ADMINISTRATIVE LAW – appeal from a decision of Administrative Appeals Tribunal affirming a decision of Repatriation Commission – where applicant claims to have qualifying service as defined in s 7A(1) of Veterans’ Entitlements Act 1986 (Cth) – whether the applicant had rendered service as a member of another Commonwealth country’s defence force during a period of hostilities – whether the applicant incurred danger from hostile forces of the enemy

WORDS AND PHRASES – “incurred danger”

Veterans’ Entitlements Act 1986 (Cth) s 7A(1)

Repatriation Commission v Thompson (1993) 44 FCR 20 at 23 applied

WALTER VERTH v REPATRIATION COMMISSION
T 28 OF 2001

HEEREY J
4 APRIL 2002
MELBOURNE (HEARD IN HOBART)

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	T 28 OF 2001

BETWEEN:	WALTER VERTH APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	4 APRIL 2002
WHERE MADE:	MELBOURNE (HEARD IN HOBART)

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the respondent’s costs, including reserved costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	T 28 OF 2001

BETWEEN:	WALTER VERTH APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	HEEREY J
DATE:	4 APRIL 2002
PLACE:	MELBOURNE (HEARD IN HOBART)

REASONS FOR JUDGMENT

1. The applicant appeals from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 15 August 2001 affirming a decision of a delegate of the respondent Commission that the applicant does not have qualifying service as defined in s 7A(1) of the Veterans’ Entitlements Act 1986 (Cth) (the Act).

2. Relevantly for present purposes, the question was whether the applicant had rendered service as a member of another Commonwealth country’s defence force during a period of hostilities

   “…in an area outside that country, at a time when the person incurred danger from hostile forces of the enemy in that area…”

   within the meaning of s 7A(1)(b)(i) of the Act. The applicant was a member of the Royal Air Force and served in Sarawak during the period of Indonesian Confrontation. The issue before the Tribunal was whether at that time he “incurred danger from hostile forces of the enemy”.

   Evidence before the Tribunal

3. The applicant was a member of the RAF from 1961 to 1973.  At all relevant times he was an assistant air traffic controller.  From 1 October 1963 to 1 October 1964 he served in Malaysia.  He was flown out to Singapore by civilian aircraft and after two weeks in a transit camp travelled by landing craft to Kuching.  On the vessel there were troops and tanks, trucks and other military equipment.

4. At Kuching the applicant was stationed at the airport which was about 15 km from the city in the direction of the Indonesian border.  He lived in a tent.  There were armed Malaysian, Ghurkha, British and Australian troops guarding the perimeter of the airport twenty-four hours a day.

5. At some stage the applicant was sent to another airfield at Simangang which was west of Kuching and about ten miles from the Indonesian border.  This was a small landing strip.  The applicant performed air traffic control duties there for about four weeks.  Based at the airfield were permanent reconnaissance aircraft and helicopters serving troops at the border.  Fighter aircraft used to fly from Kuching to the area, as the applicant put it, “just to let the enemy know, if you like, that there was aircraft around”.  There were about a dozen Ghurkha armed troops.  The applicant and his fellow servicemen were given daily briefings as to what was happening along the border, what incursions occurred, and “who was killed from which side and just a general update every day”.  When on duty at the control tower the applicant would have a Sten machine gun with him.  He was also armed when on duty at Kuching.

6. In cross-examination the applicant admitted that the fighters based at Kuching did not, as far as he was aware, engage in operations against the Indonesian air force.  They were basically showing the flag.  Kuching was a joint military and civilian airport with civil flights operating in and out on a daily basis.  There was an airport lounge under the control tower.  During the period the applicant served in Sarawak he was not was not aware of any incursion by the Indonesian air force into Sarawak territory.  There was an engagement of ground forces involving skirmishes somewhere between Kuching and the Indonesian border.  During his time at Simmangang the applicant did not have shots fired at him, nor were there any shots fired as an incursion at the airfield.

7. There was tendered an excerpt from “Emergency and Confrontation – Australian Military Operation in Malaysia and Borneo 1950 to 1966” by Peter Dennis and Geoffrey Gray (Allen and Unwin), 1996, (at p 201) which referred to an incident on 6 March 1964 on the main Kuching-Simmangang road involving Indonesian troops and Ghurkhas.  Five Indonesians were killed and eight wounded.  The Ghurkhas lost three killed and two wounded. 

   Tribunal’s Decision

8. After summarising the evidence the Tribunal cited the discussion of the expression “incurred danger” by the Full Court of this Court in Repatriation Commission v Thompson (1988) 44 FCR 20 at 23. What appears in the Tribunal’s reasons as a direct quotation from Thompson is in part a summary in indirect speech.  Although the meaning has not been affected, it is perhaps preferable to refer to the judgment itself.  The Court (Davies, Wilcox and Foster JJ), after citing dictionary definitions, said:

   “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.”

9. The Tribunal then said:

   “16.  The weight of evidence is that Mr Verth did not incur danger from hostile forces of the enemy while serving at Kuching or Simmangang.  While he may have considered himself in danger, both airfields were secure, his period at Simmangang was of few weeks duration and at a time when civilians were permitted in the area and by his own admission no incidents occurred which would have exposed him to peril, harm or injury.”

   Argument on appeal

10. Counsel for the applicant argued that the Tribunal had erred in treating the occurrence of some hostile incident as an essential ingredient of the expression “incurred danger”.  It was not relevant to the question of incurring danger to consider the length of time at which an applicant was exposed to danger.  The Tribunal had failed to give any or any sufficient weight to the uncontradicted evidence of the applicant, to the extent that the decision was manifestly unreasonable.  More generally it was said the Tribunal failed to weigh and evaluate the evidence in favour of the applicant.  The Tribunal had failed to give adequate reasons for its decision.  The Tribunal had erred in saying that civilians were present at Simmangang; this was only the case at Kuching.

    Conclusion on the appeal

11. Turning first to the adequacy of the reasons, I am satisfied that the Tribunal adequately discharged its obligations.  The relevant facts were not in dispute.  The representative of the Commission accepted that the applicant was “obviously a truthful witness”.  The Tribunal’s provisions set out the law, that is to say the applicable statutory provisions and the authoritative expounding of the term “incurred danger” by the Full Court in Thompson.  This was not the kind of case where a decision maker has to resolve disputed questions of fact and perhaps explain why one version is to be preferred.  The Tribunal summarised the evidence and in par 16 gave a brief but adequate evaluation of the evidence (which itself was brief) in a way which explained its conclusion that the statutory test was not satisfied.

12. The Tribunal did not fail to give adequate weight to the applicant’s evidence.  On the contrary, it accepted that evidence but found the statutory criterion was not satisfied.

13. The reference to a lack of any incident was not to introduce any new test in substitution for that contained in the Act.  Rather, the Tribunal was pointing out an important feature of the case, namely the lack of any evidence as to events in which the applicant was actually exposed to danger, as, for example, by hostile fire or bombing, or by the presence of armed enemy in his immediate vicinity.  If no such incident occurred, it does not assist the applicant’s case that there was only a relatively short period of time in which such an incident might have occurred in the course of his service.

14. The mistaken reference to civilians being present at Simmangang rather than Kuching was at most a factual error which does not invalidate the essential reasoning of the Tribunal. 

15. On the evidence before the Tribunal, the decision it came to was one which at the very least was open to it.

    Order

16. The application will be dismissed with costs, including reserved costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:             4 April 2002

Counsel for the Applicant:	Mr R M Webster
Solicitor for the Applicant:	R M Webster
Counsel for the Respondent:	Mr P Hanks QC
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 March 2002
Date of Judgment:	4 April 2002