Williams v Repatriation Commission
[2005] FMCA 1201
•14 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WILLIAMS v REPATRIATION COMMISSION | [2005] FMCA 1201 |
| ADMINISTRATIVE LAW – Appeal of AAT Decision – meaning of “qualifying service” pursuant to s.7A of the Veteran’s Entitlement Act 1986 – question of fact – whether AAT applied correct test of law – appeal dismissed. |
| Veteran’s Entitlement Act 1986 Administrative Appeals Tribunal Act 1975 |
| Repatriation Commission v Thompson (1988) 82 ALR 352 Repatriation Commission v Robertson (2004) FCA 173 Waterford v Commonwealth (1987) 163 CLR 54 Repatriation Commission v Smith (1987) 15 FCR 327 Repatriation Commission v Mitchell (2002) 71 Re Tiplady and Repatriation Commission (1987) 12 ALD 670 Mullen v Repatriation Commission [2000] AATA 871 Gilgen and Repatriation Commission [2000] AATA 447 |
| Applicant: | ROY WILLIAMS |
| Respondent: | REPATRIATION COMMISSION |
| File Number: | BRG74 of 2004 |
| Judgment of: | Baumann FM |
| Hearing date: | 14 June 2005 |
| Date of Last Submission: | 14 June 2005 |
| Delivered at: | Brisbane |
| Delivered on: | 14 June 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Anderson |
| Solicitors for the Applicant: | Terrence Connor, Solicitor |
| Counsel for the Respondent: | Ms Bowskill |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the Appeal be dismissed.
The Applicant shall pay a contribution to the Respondent’s costs fixed in the sum of $4,000 within 90 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 74 of 2005
| ROY WILLIAMS |
Applicant
And
| REPATRIATION COMMISSION |
Respondent
REASONS FOR JUDGMENT
(settled from the ex tempore reasons)
Background
In this case, it is argued on behalf of the appellant that the learned Member of the Administrative Appeals Tribunal whose decision given 8 December 2004 (“the decision”) is under review, had made the necessary factual findings to support a conclusion that the appellant did render qualifying service for the purposes of s.7A of the Veterans Entitlement Act 1986. I had the benefit of well considered written and oral submissions. I do not propose, in these extempore reasons, to recite large sections verbatim of those submissions but reserve the right to do so in any reasons which are required for publication.
History
I adopt, for these reasons, the summary given by the Member at paragraph 6 of his reasons as follows:
“On 4 December 1943, Mr Williams embarked from Brisbane on the SS Wandana en route to Thursday Island where he arrived on 15 December 1943. He then travelled to Horn Island as one of a group of reinforcements for 74 Mobile Search Light Battery. He served in that category until 26 September 1944 when he left the Torres Strait by ship and disembarked in Townsville on 28 September 1944.
During those voyages and whilst on Horn Island, Mr Williams had no direct contact with enemy forces, but Mr Anderson submitted that, nonetheless, there had been a real possibility during each of the voyages of Mr Williams' vessel making contact with an enemy mine or of being sighted by an enemy submarine. He also submitted there was a real possibility that whilst on Horn Island, Mr Williams could have been subject to raids by Japanese aircraft. He submitted in the case he met the requirements of section 7A of the Act, in that he had incurred danger from hostile forces of the enemy.
Mr Harris, who appeared on behalf of the Commission, considered that there was some possibility that a vessel on which Mr Williams was transported may have made contact with a mine, and some possibility of Japanese air raids on Horn Island, but he submitted that the mere possibility of these happening was not sufficient to meet the requirements of section 7A and that therefore Mr Williams did not have qualifying service.”
On 6 June 2002, Roy Williams lodged an application with the Department of Veterans Affairs for determination of whether he rendered qualifying service for the purposes of obtaining a service pension under Part 3 of the Veterans Entitlements Act 1986. On
31 March 2003, a delegate of the Commissioner determined he did not have qualifying service and on 20 October 2003, that decision was affirmed by further delegate, prompting the application to the AAT to which I have just referred.
Principles
Although both counsel accepted that the definition of "qualifying service" is defined in s.7A of the Veterans Entitlements Act, and the principles applicable in s.7A(1)(a)(i), essentially, the test to be applied - has been authoritatively determined by a unanimous Full Court decision in Repatriation Commission v Thompson (1988) 82 ALR 352.
I incorporate in these reasons paragraphs 6, 7, 8, 9, and 10 of the respondent's submissions as an accurate and relevant summary of the law which binds me as follows:-
“Qualifying service’ is defined in s.7A of the Veterans Entitlements Act. Relevantly, s.7A(1)(a)(i) provides:
“(1) For the purposes of Parts III…, a person has rendered qualifying service:
(a)if the person has, as a member of the Defence Force:
(i)rendered service, during …[World War 2] 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…” (underlining added)
The issue before the Tribunal was whether or not the circumstances of Mr Williams’ service met the requirements of section 7A(1)(a)(i): in particular, whether Mr Williams “incurred danger from hostile forces of the enemy…”. The Tribunal was required to decide that matter to its reasonable satisfaction (section 120(4) Veterans Entitlement Act). Although the Tribunal is not bound by the rules of evidence, in Repatriation Commission v Smith (1987) 15 FCR 327 at 335, the Full Federal Court held that the requirement in section 120(4) that the Tribunal must be “reasonably satisfied” imports the civil standard of proof.
The principles applicable to section 7A(1)(a)(i) have been established by a unanimous Full Federal Court in Repatriation Commission v Thompson (1988) 82 ALR 352. In Thompson the Full Federal Court said, at 356 (lines 32-45):
“The words ‘incurred danger’ … 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 service man 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 a 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 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”.
Later, a page 357 (line 35) the Full Court reiterated: “…liability to danger in the sense of a risk of danger is not sufficient. The statutory provision requires that danger be incurred.”
The Full Court in Thompson also made the following important comments about the role of the Tribunal and the Court on appeal (page 357 line 37 to page 358 line 7).
“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 Commonwealth (1987) 163 CLR 54 at 77…: ‘The error of law which an appellant must rely on to succeed must arise on the facts as the AAT has found them to be or it must vitiate the findings made or it must have led the AAT 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 words of …[section 7A(1)(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 that point” (underlining added).
It is also appropriate to record that the appeal to this Court is on a question of law only (see s.44(1) of the Administrative Appeals Tribunal Act 1975).
Findings by Member
The critical summary of findings to the issue in question is found at paragraphs 24 and 25 of the reasons, which provided as follows:-
“On the evidence before me, I am reasonably satisfied that Mr Williams did not incur danger from any form of enemy shipping, including submarines, on either of the voyages he undertook. However, there was a possibility that either of the vessels on which he was being transported may have come into contact with an enemy mine, in particular one of the German mines which drifted northwards from the central New South Wales coast. Also, there was a possibility that aircraft recorded as being in the Torres Strait area may have been Japanese. However, I am satisfied that Mr Williams did not incur danger from those mines or aircraft in the manner which meets the terms of paragraphs 7A(1)(a)(i) of the Act.
In relation to exposure to mines, no warnings were given for the return voyage to Townsville, but warning was given by the captain of the Wandana when leaving Brisbane. No mines were sighted. Mr Williams perceived there was a prospect of coming into contact with a mine, but this remained at the level of a remote possibility. That perception is not sufficient to constitute the incurring of danger from mines in the objective sense, (refer to the cases of Thompson, Burton and Mullin above).”
Submissions of the appellant
The appellant contends:-
(a)To find that there was a possibility that either of the vessels on which the appellant was transported, may have come into contact with an enemy mine, but to reject the application on the basis of remoteness alone, is demonstrative of error;
(b)Once a danger of the kind that is neither fanciful nor so minimal as to be trifling is accepted, the degree of probability of it occurring is an irrelevant question;
(c)The application is rejected "not because the danger created (particularly by the mines), was not real, but because the prospect of his vessel actually having struck a mine was remote";
(d)Even Thompson permits an assessment of whether or not a danger might eventuate as an act of violence, the notion that the dangers might have been "remote" here, does not equate with them also being capable of rejection as fanciful.
The applicant did not press the issue relating to risk from enemy aircraft, and was no doubt conscious of the evidence which suggests most sightings were of unidentified aircraft (in particular paragraph 26 of the reasons).
Respondent's submissions:
The respondent submits at paragraph 15 that:
“The Commission submits that:
...that the decision demonstrates that the Tribunal, (a), applied the correct standard of proof, ("reasonable satisfaction"); (b), addressed the correct legal question, in terms of applying the principles enunciated by the Full Federal Court in Thompson in relation to section 7A(1)(a)(i); (c), made findings of fact based on the evidence before the Tribunal; and (d) made no errors on law in reaching its decision.”
The Member’s finding that a remote possibility did not satisfy the terms of s.7A(1)(a)(i), was entirely consistent with the Full Court's decision in Thompson that -
“Liability to danger in the sense that a risk of danger is not sufficient.”
The actual facts and cases such as Repatriation Commission v Thompson (1988) 82 ALR 352, Repatriation Commission v Mitchell (2002) 71 ALD 93, Re Tiplady and Repatriation Commission (1987) 12 ALD 670, Mullen v Repatriation Commission [2000] AATA 871 and Gilgen and Repatriation Commission [2000] AATA 447:
“...must, of course, stand for themselves; they cannot govern the resolution of other cases.”
(Adopting the observation in part by Beaumont J in Repatriation Commission v Robertson (2004) FCA 173 at paragraph 35).
Discussion
The learned Tribunal Member had the advantage of hearing and considering not only the evidence of Mr Williams but, importantly, of a number of experts called by both parties. This was a case apparently where significant historical evidence and expert evidence was deemed necessary. The findings, particularly at paragraph 24 were clearly open to the Member. Neither counsel argues otherwise. I read paragraph 24 where the Member records not only the concession made by the respondent's advocate, Mr Harris, but also the other evidence he was entitled to weigh up, that "there was a possibility that either of the vessels on which he was being transported may have come into contact with an enemy mine", as an acknowledgment that the possibility was considered by him when applying the test that is founded by Thompson.
The use of the words "remote possibility", used in paragraph 25 seems to refer to Mr Williams' perception of his liability to danger. I do not agree with the applicant's submission that, once accepted that a danger is faced, the degree of probability of it occurring is an irrelevant question. I regard it within the objective test set by Thompson in determining whether there is more than a "mere risk of danger". As the Full Court in Thompson observed, qualifying words such as "real", "actual", and "substantial", to which can now be added "remote" and "recognisable", do not detract from the legislative prescription or that "incurred danger" is anything but a question of fact. In Mitchell (supra), Cooper J made a relevant observation at paragraph 42, in my view, namely:
“The decision of the AAT that the veteran incurred danger from hostile forces of the enemy in the form of danger from Japanese mines laid in waters where he was rendering operational service, is a pure question of fact, and is not for the Court to review such a finding of fact. The Court ought not to intervene even if it thought that the Court would have reached a different conclusion on the point."
As was observed Repatriation Commission v Thompson at 25:
“There is no error in law simply making a wrong finding of fact: Waterford v Commonwealth (1987) 163 CLR 54 at 77. The presence of the Japanese mine fields and the finding of a mine one mile south of the Red Island Point Jetty on Cape York Peninsula was a sufficient basis for the AAT to draw the inference if it chose to do so, and evidently mines were present in the waters and constitute a real and not fanciful danger to navigation.”
The facts in this case were found to be quite different from those in Mitchell. In this case, the Tribunal found there was a possibility that mines existed or might be encountered. This was consistent with the evidence. Mr Williams confirmed that no mines were seen. It was open to the Tribunal, having countenanced the possibility that mines may exist to find nonetheless, that such possibility was a "mere risk of danger". That is what the Member, in my view, did.
In my view, the AAT has, as the Commission's submitted it should, applied the correct test and applied the facts as it found them to be on the evidence available, and correctly, in my view. The grounds of appeal were not made out, in any respect, in my view. The appeal must therefore be dismissed.
I order that the appellant shall pay a contribution to the respondent's costs of and incidental to this appeal fixed in the sum of $4000 within 90 days.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
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