JUDGMENT Np. S08 / S71. CATCHWORDS Veteran's Affairs ~ service pension - appellant did not leave Australia for overseas service until after 2 September 1945 - appellant did not disembark at overseas port until after official surrender of local enemy forces in that area - whether appellant "served in a theatre of war" for the purposes of Part III of the Repatriation Act 1920 ("the Act") - whether statutory definition of "theatre of war" contemplates actual as distinct from theoretical state of warfare - relevance of formal surrender of relevant enemy forces - relevance of authorities dealing with defence power - relevance of coming into force of Peace Treaty - relevance of international law conception of "state of war" - ss. 23, 85, 100 of the Act. THOMAS JOSEPH MARSH v. THE REPATRIATION COMMISSION No. G129 of 1987 Sheppard, Morling and Beaumont JJ. Sydney 4 September 1987. DERAL COURT OF re AUSTRALIA PRINCIPAL . REGISTRY a Soe pose a epee near, rota "r ee eee en ee ee aren ee er ~—-r =) IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) ) . No. G129 of 1987 ) GENERAL DIVISION ) ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT Courts: BETWEEN: THOMAS JOSEPH MARSH Appellant AND: THE REPATRIATION COMMISSION Respondent MINUTES OF ORDER Sheppard, Morling and Beaumont JJ. Date order made: 4 September 1987 Where made: Sydney THE COURT ORDERS: 1. Appeal allowed. 2. Set aside the orders made at first instance on 13 March 1987; in lieu thereof, order: (a) (b) that the decision of the Delegate of the respondent dated 19 December 1984, rejecting the appellant's application for a_ service pension, be set aside; that the respondent determine the appellant's application for a service pension in accordance with law. 3. The respondent pay the appellant's costs at first instance and on this appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. woe Ww ee om atte peso were wee eee ee IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G129 of 1987 ) GENERAL DIVISION ) ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT BETWEEN : THOMAS JOSEPH MARSH Appellant AND: THE REPATRIATION COMMISSION Respondent CORAM: Sheppard, Morling and Beaumont,JJ. DATED: 4 September 1987 REASONS FOR JUDGMENT THE COURT: This is an appeal against orders made by a Judge of the Court dismissing an application by Thomas Joseph Marsh seeking relief against the Repatriation Commission under the Administrative Decisions (Judicial Review) Act 1977 (see (1987) 71 A.L.R. 281). The appeal raises the question of the correct construction of the expression "served in a theatre of war" for the purposes of Part III of the Repatriation Act 1920 ("the Act"). The appellant sought a service pension under s.85 of the Act. A pension under that section (which 1s in Part III of the Act) shall not be granted to a member of the Forces, unless the member, in the opinion of the Commission or the Board - "(a) 1s permanently unemployable and - (i) in the case of a man - has served Ye in a_theatre of war; or (ii) in the case of a woman - has served in a theatre of war or served abroad or embarked for service abroad." {s.85(2)(a)) (Emphasis added) In Part III, unless a contrary intention appears, "served ina 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;" (s. 23) The learned Judge found that the appellant enlisted in the Royal Australian Air Force as a leading aircraftsman in February 1944. He served within Australia until 3 September 1945. On that date, his Honour found - ra * chen reir meee pt ee ep re es comer we ",..she embarked at Sydney on an American liberty ship which left harbour that evening for Balikpapan, on the south-east coast of what was then called Dutch Borneo, via Morotai, which is an island in the Moluccas. He disembarked at Balikpapan on 21 September 1945, and was transferred to Labuan, a small island off the coast of North Borneo, on 10 October 1945. In Balikpapan, he performed guard duties at the airstrip, and on Labuan he performed guard duties in respect of medical stores and Japanese prisoners of war carrying out labouring duties. Prior to the applicant's departure from Sydney, two historic events had occurred. On 16 August 1945, the Emperor of Japan had issued an imperial order to the Japanese armed forces to cease hostilities immediately, and on 2 September 1945 a _ formal ceremony of surrender of all Japanese forces had taken place in Tokyo Bay. After the applicant's departure from Sydney, but before his disembarkation at Balikpapan, the local surrender of all Japanese armed forces stationed 1n Dutch Borneo had taken place on 8 September 1945." The appellant's application for a pension was rejected. 3. The respondent's delegate expressed his decision (dated 19 December 1984) in these terms: "The member did not 'serve in a theatre of war' as defined in s.23 of the Repatriation Act as he did not leave Australia until after 2/9/45." The delegate elaborated his reasons as follows: "(1) Mr. Marsh's overseas service occurred after both the official cessation of hostilities on 16 August 1945 and the official surrender of Japan on 2 September 1945. Mr. Marsh also did not disembark at Balikpapan until after the surrender of local enemy forces in that area on 8 September 1945. (i1) For these reasons I was of the view that there were no 'hostile forces of the enemy' as contained in the definition of 'served in a theatre of war' in section 23 of the Act and that as a consequence Mr. Marsh could not have incurred danger from any such forces." Before mentioning the respective contentions of the parties on the substantive questions arising in the matter, it is necessary to explain the course taken by the proceedings before his Honour. The application for an order for review sought review of the respondent's decision, dated 19 December 1984, to refuse a service pension. A number of errors of law, both as to the construction of the Act and as to the application of the Act to the facts of the case, were alleged. The appellant sought orders setting aside the respondent's decision and a direction that the appellant was entitled to a service pension. Senior counsel for the appellant first read part of an affidavit sworn by the appellant's solicitor. The part read said that the appellant had sought a pension and annexed the op ern a epee gets oe om ee ee a- 4. delegate's determination dated 19 December 1984 together with a letter written by the respondent to the appellant dated 23 January 1985 refusing the application for pension for the stated reason — "Your service records indicate that you did not embark for overseas service in the South West Pacific until 3 September 1945 by which time hostilities had ceased in that area. You are therefore ineligible to apply for the service pension." Senior counsel for the appellant then read part of an affidavit sworn by the appellant. In the material read, the appellant spoke of his enlistment and service within Australia. He continued: "4a, On 3rd September 1945 I left Sydney, New South Wales aboard an American Liberty Ship and went to the island of Moratai in the Pacific. 5. I boarded this ship early in the morning of 3rd September 1945 but we did not sail until after dark that evening." Senior counsel for the respondent objected to the reading of the balance of the affidavit. The basis of the objection was that the balance of the affidavit sought to establish that there was, in fact, a state of hostility in the regions in which the appellant served from September to November 1945; yet the delegate's decision was based entirely upon the circumstance that the appellant did not leave Australia until after 2 September 1945. In other words, since the delegate did not direct his mind to the different question whether the appellant was, in fact, exposed to danger from hostile forces, 1t was lnappropriate that the Court embark upon a determination of the question. Senior counsel for the respondent said that there ao Sarereger woe pee 5. waS an issue between the parties as to the true facts in this connection. She argued (without substance, in our opinion - see, e.g. Re Ludeke; Ex parte Queensland Electricity Commission (1985) 60 A.L.R. 641 at p.645) that the Court, in judicial review proceedings, had "no jurisdiction to make any decision as to matters of [disputed] fact." She conceded that the delegate did not consider any matter except the relevant date and submitted that the balance of the appellant's affidavit evidence sought to go to an issue which could only arise 1f the decision-maker were in error in treating the matter as depending entirely on the relevant date; and if the delegate did err, the matter would have to be remitted for further consideration. His Honour indicated that, in the first instance, he would deal with the preliminary question of law whether the delegate erred in rejecting the appellant's application by reason only of the date of his departure from Australia. It appears that the appellant then closed his case on the preliminary question. Senior counsel for the respondent read an affidavit by the delegate, Mr. B.F. Finlay, in which he exposed his processes of reasoning. The important material is the passage quoted above. Mr. Finlay also said that included in the material on which he made his findings were relevant extracts from the official war history published by the Australian War Memorial under the series title "Australia - The War of 1939-1945". Mr. Finlay annexed an extract from Vol.VII (Series 1 (Army)) - The Final Campaigns" by Gavin Long. The author said that by August 1945, it had become evident to the Australian No ee ne eee ee 6. commanders that "the process of taking surrenders throughout their vast area and of distributing occupation forces would take a long time". On 16 August, General MacArthur sent a signal to his subordinates informing them that the following message had been received from the Japanese Government: "Ll. His Majesty the Emperor issued an Imperial Order at 1600 hours on August Sixteenth to the entire armed forces to cease hostilities immediately. 2. It is presumed that the said Imperial Order will reach the front line and produce full effect after the following lapse of time: (a) In Japan proper -_ forty-eight hours. {(b) In China, Manchuria, Korea and Southern Regions except Bougainville, New Guinea and the Philippines - six days. (c) In Bougainville - eight days. (d) in New Guinea and the Philippines and in the case of various local headquarters - twelve days, but whether and when the order will be received by the first line units is difficult to foresee. 3. With a view to making the august wish of His Majesty regarding the terminating of the war and the abovementioned Imperial Order thoroughly 'known to all concerned, members of the Imperial family will be dispatched as personal representatives of His Majesty to the Headquarters of the Kwantung Army, Expeditionary Forces in China and the forces in the southern regions respectively. The itinerary,type of aircraft, markings, etc., will be communicated later. It 1s accordingly requested that safe conduct for the above be granted." Mr. Finlay also referred to "Royal Australian Navy" by G. Hermon Gill (Series 2 (Navy) Vol. 1)). The author described the main Japanese ceremony on board "Missouri" — "Mr. Shigemitsu signed the Instrument of Surrender at asin ee SERIES ener me cwewenere eee ee ee ee ere + : 5 . + ve , 7. 9.4 a.m. on 2nd September 1945, thus officially ending the war, which had lasted exactly 1364 days, 5 hours and 44 minutes. He was immediately followed as signatory by General Umezu. General of the Army Douglas MacArthur then signed the acceptance of the surrender for all Allied powers." Before the primary Judge, it was contended on behalf of the appellant that the respondent erred by equating the Japanese surrender with the termination of the war. The appellant relied on authorities dealing with the defence power such as Jerger v. Pearce (1920) 28 C.L.R. 588 and Dawson v. The Commonwealth (1946) 73° C.L.R. 157 to support an argument that the cessation of hostilities between Australia and Japan did not mean that there was no longer a state of war. Reliance was placed upon the circumstance that in extending the application of the provisions of Divisions 1 to 5 of Part II of the Act (s.85 is in Division 5) to certain male members of the Forces (1939-1945 War), s.100 (in Division 6) defined "the war" to mean "the war which commenced on 3rd September, 1939, and includes any other war in which His Majesty became engaged after that date and before 3rd September 1945," It was said that it was significant that the definition indicated a date of commencement of the war yet failed to nominate a termination date. The appellant also relied upon the Peace Treaty in this connection. By Article 1 of the Treaty of Peace with Japan signed at San Francisco on 8 September 1951, and approved by Australia by the Treaty of Peace (Japan) Act 1952, it was provided: "The state of war between Japan and each of the Allied Powers is terminated as from the date on which the present Treaty comes into force between Japan and the Allied Power concerned as provided for in Article 23." veo eet ee ee ee ey - rn een ora oor ar eon gtr ater won a pepe eee pon ep eee 8. Article 23 provides for the deposit of instruments of ratification of the Treaty and for its coming into force thereafter. In the case of Germany, there was no treaty and termination of the state of war was declared by Commonwealth Gazette No. 49 of 9 July 1951. On 28 April 1952, the Minister for External Affairs notified for public information that the Japanese Treaty came into force on that date (see Commonwealth Gazette 1 May 1952). More than six years earlier, on 20 February 1946, a proclamation had been issued fixing 2 September 1945 as the date which, for the purposes of the War Gratuity Act 1945, the hostilities in which the Commonwealth was engaged in war, should be deemed to have ceased (see the Gazette 25 February 1946). Entitlement to a war gratuity under the War Gratuity Act depended, to some extent, upon overseas service before the cessation of hostilities (s.7{1)). The expression "cessation of hostilities" was, however, defined to mean a date to be proclaimed by the Governor-General upon which, for the purposes of that Act, the hostilities in which the Commonwealth is engaged in the war shall be deemed to have ceased (s.2). There was no equivalent provision in the legislation under consideration in the present case. On behalf of the appellant, it was contended that since, according to international law, a state of war still existed after 16 August 1945 and also after 2 September 1945, there remained "danger from hostile forces of the enemy" and "operations against the enemy", all of which are elements in the definition of "served in a theatre of war" in s.23 of the Act. Or erste wee epee ew Te we are meen owen aoe meme eee op pew eee me ee 9. The primary Judge rejected the appellant's contentions. He said (at p.284): "The only reference in the definition to the war is in the phrase defined - 'served in a theatre of war'. In that collocation of words it certainly does not refer to any concept of international law. The expression is a graphic one referring to military realities. It seems to me that the definition, too, looks to military realities. Instead of using the word 'war', and thus raising a doubt whether a juristic concept may be involved, the definition refers to 'operations against the enemy' and 'danger from hostile forces of the enemy'. These are plainly practical concepts. That they are so is emphasised by the words 'operations' and 'hostile'.... -+-.eThe service to which the definition refers is service 'in naval, military or aerial operations against the enemy'. I do not think the draftsman of that expression was contemplating a juristic continuance of a state of war until the coming into force of a peace treaty years after the formal surrender. He was rather using the words 'the enemy' in a sense corresponding to that later defined in s.100: ''the enemy' means the forces, or any part of the forces, of a State at war with His Majesty during the war.'" In his Honour's view, "during the war" referred to the period of actual conflict between the contending forces, as distinct from a state of being "at war". He held that the legal continuance of the state of war relied on by the appellant was consistent with the total surrender of all opposing forces and the absence of all hostilities. He said {at p.286): ",..the delegate committed no error of law when he concluded that, in the circumstances pertaining to the applicant, there were no 'hostile forces of the enemy' from which he could have incurred danger in the relevant area." Before us, it was submitted on behalf of the appellant that there was only one matter before his Honour for decision. 10. That was whether "the war" as defined by s.100 of the Act ended with the general surrender of Japan on 2 September 1945. It was contended that his Honour erred in finding that the war did end on that day. It was said that if Parliament had intended that, for the purposes of s.23 of the Act, war with Japan ended at a date before 1952, then 1t could have said so by specifying such a date. Instead of so doing, the legislature left the termination date to be determined 1n accordance with the general law, that 1s to say, the Treaty of Peace (Japan) Act. It was contended that Australia remained at a state of war with Japan until the Treaty of Peace signed at San Francisco on 8 September 1951 was approved by Australia by the enactment of the Treaty of Peace (Japan) Act. The peace treaty was more than a formality. The occupation of Japan by the Allied forces after 2 September 1945 was carried out for the purpose of subduing the Japanese. nation and = such occupation could only have been justified if a state of war still existed. Further, 1t was argued, the forced surrender of a nation does not necessarily achieve peace immediately. It was put that there is no intermediate state - a nation is at war or it is at peace. If for the purposes of the Act, the war ended on 2 September 1945 then the curious result would follow that the nation was at war with Japan for some purposes but not for others. This could not have been the legislative intention. Further, it was submitted that insofar as his Honour purported to determine the question of the existence of "hostile forces of the enemy" there are preliminary questions of fact yet to be determined and these facts should have been dealt with before any legal questions were determined adversely to the appellant. ar ny eee 7 . . epee ae weet epee pe cpa ee ll. On the hearing of the appeal, the appellant again relied on the authorities dealing with the defence power already mentioned. In Jerger v. Pearce, supra, Starke J. rejected a challenge to the constitutional validity of s.2(2) of the War Precautions Act 1914-1918 which provided as follows: "For the purposes of this Act, the present state of war means the period from the fourth day of August one thousand nine hundred and fourteen, at the hour of eleven o'clock post meridiem reckoned according to Greenwich standard time, until the issue of a proclamation by the Governor-General that the war between His Majesty the King and the German Emperor and between His Majesty the King and the Emperor of Austria King of Hungary has ceased." It was argued that the defence power of the Commonwealth could not warrant the authority conferred upon the Governor-General to declare by proclamation the date of the cessation of the war. Such a power enabled the Governor-General, so it was said, to extend a state of war into a time of actual peace. It was contended that a state of peace actually subsisted at the time of the hearing (i.e. July 1920) and that the legislation could not be supported as an exercise of the defence power. Starke J. said (at pp.593): "It is true that a Treaty of Peace has been made with Germany, and that His Majesty has ordered that 10th January 1920 shall be treated as the date of the termination of war between His Majesty and Germany (see Proclamation, London Gazette, 10th February 1920, and by the Governor-General in Commonwealth Gazette, 8th March 1920). There has so far been no proclamation of peace or of the cessation of war with Austria-Hungary. No doubt a state of peace may be brought about by a mere cessation of hostilities without any Treaty of Peace, but 'owing to the numerous difficulties involved, combatant States have very seldom resorted to this method of withdrawing from war without arriving at some definite and intelligible decision' (see Termination of War and Treaties of Peace by Coleman Phillipson, p.3). The Imperial statute 8 & 9 Geo. V. c. 59, 'An Act to make aly a SI eg cae ee ve ee ee eer a =e: Cn ate De tod .o4t peewee wees ee ee we pee ere ee 12. provision for determining the date of the termination of the present war, and for purposes connected therewith,' and the Imperial proclamation declaring 10th January 1920 as the date of the termination of the war with Germany, show conclusively, however, that peace with Austria-Hungary was not made at the time of the hearing before me." In Dawson v. The Commonwealth, supra, it was held (by a statutory majority) that Part III of the National Security (Economic Organization) Regulations, prohibiting the purchase of land without the consent of the Treasurer, was valid legislation under the defence power notwithstanding the surrender of enemy nations. Latham C.J., with the concurrence of McTiernan J., said (at p.176): "The defence power does not cease instantaneously to be available as a source of legislative authority with the termination of active hostilities (cf. Jerger v. Pearce or even with the end of the war (Roche v. Kronheimer (1921) 29 C.L.R. 329). The power is not cut off as with a guillotine. The defence power includes not only a power to prepare for war and to prosecute war, but also a power to wind up after a war and to restore conditions of | peace ~ gradually if that is thought wise, and not necessarily immediately by the crude process of immediate abandonment of all Federal control. The fact that certain conditions have been created by the exercise of the defence power is itself a fact which is relevant to the validity of a continued or further exercise of that power." Dixon J. said (at pp.183-4): "It is impossible to suppose that the defence power will suffice to authorize the retention of such a legislative fabric so constructed throughout a long and indefinite period of peace. But it is apparent that the change back from a war economy to an economy appropriate to peace is a task calling for further measures of a legislative nature and the defence power, in my opinion, is not insufficient to authorize laws for that purpose. The power must, by consequence, also extend to sustaining for some reasonable interval of time the laws and regulations in force at the end of hostilities so as to enable the legislature to proceed with the task. The whole veer See are +e ww mee rem Re ees re 13. edifice does not collapse at once simply because the necessities which call it into being have passed." A question also arose as to the true construction of s.19 of the National Security Act 1939-1943 which provided as follows: "This Act shall continue in operation until a date to be fixed by Proclamation, and no longer, but in any event not longer than six months after His Majesty ceases to be engaged in war." It was contended that His Majesty ceased to be engaged in war on 2 September 1945 and that the operation of the Act therefore expired on 2 March 1946. Latham C.J., with the concurrence of McTiernan J., said (at pp.173-4): "Tt was argued that the words 'engaged in war' meant actually engaged in fighting, and that therefore the continuance of the Act depended upon the date to which fighting continued. It seems to be clear that this proposition cannot be supported in its literal sense. Fighting might cease for a week or a month, but no-one could doubt that a war was still in existence if the hostile forces were still opposing each other, ready and waiting to fight. Accordingly, the criterion cannot be the actual happening or non-happening on any given day of war-like operations. But it is said that the complete surrender of all enemy forces brings war to an end and that therefore His Majesty was not engaged in war after 2nd September 1945. It has not been suggested that in relation to this matter there are any other categories than those of war and peace. There is no intermediate state which is neither war nor peace. An alien is either an alien friend or an alien enemy. Did German and Japenese subjects become alien friends overnight on 2nd September 1945? It 1s a matter of common knowledge that at the present time representatives of the allied nations are engaged in conference for the purpose of endeavouring to determine terms upon which peaceful relations may be resumed with former enemy States. No decisions have been made as to the character of the terms which will be proposed for agreement, or forcibly imposed independently of agreement. Allied ape TTT pet ee vs ep eae meee 14. forces are in occupation of enemy countries by virtue of conquest, and are exercising authority which rests entirely upon military power. Such a condition of affairs cannot, in my opinion, be described as a State of peace. In my opinion His Majesty did not cease to be engaged in war at the moment when Japan surrendered in Tokyo Bay, and His Majesty is still engaged in war." Starke J. (at p.180) and Dixon J. (at p.184) were of the same opinion. The present case is, of course, governed by the statutory definition of service in a theatre of war. It is hardly necessary to say that the question here is different from the ascertainment of the outer limits of the defence power. As the citations from Dawson, supra, show, being a "purposive" power, its reach in wartime or peace-time will depend upon the existence of an appropriate nexus between the measure under scrutiny and the defence of the Commonwealth (see Leslie Zines, The High Court and the Constitution, 2nd ed. at pp.199-205; P.H. Lane, The Australian Federal System, 2nd ed. at pp.135-7). The operation of the definition given by s.23 is not co-extensive with the scope of the defence power and the statutory definition of "served in a theatre of war" contemplates an inquiry which is more limited than that undertaken in the constitutional cases. Nor is the ascertainment of the existence of a state of war under municipal law or international law the relevant criterion for our purposes (see Janson v. Driefontein Consolidated Mines, Limited [1902] A.C. 484; In re Yamashita o1- ee tere ee cee oy ace 15. (1946) 327 U.S. 1 at pp.12, 46; Rex v. Bottrill; Ex parte Kuechenmeister [1947] 1 K B. 41; Lord McNair and A.D. Watts The Legal Effects of War at pp.3-15; Julius Stone, Legal Controls of International Conflict at pp.304-5; 639-45; Sydney D. Bailey, How Wars End at p.1l; B.V.A. Roeling, On the Prohibition of the Use of Force in Legal Change, Essays 1n Honour of Julius Stone, Butterworths, 1983 at p.275). However, the rules of international law in this area throw some light on the intended operation of our statutory definition. As Lord McNair and A.D. Watts (op. cit., at p.2) remind us, being "at war" is a technical concept referring to a state or condition of affairs, not mere acts of force. They add (at p.3): "This state of war may perfectly well exist even if no armed force is being employed by the opposing parties and no actual hostilities between them are occurring. Conversely, force may be used by one State against another without any state of war arising. In this latter circumstance peace will, in law, still subsist between the parties although their relations will be strained to a greater or lesser extent. This absence of identity between the state of war and actual hostilities has led to the adoption of various pairs of terms to point the difference, such as 'de jure war' and 'de facto war', 'war' and 'warlike acts', "legal war' and 'war in the material sense' (or 'actual war')." Julius Stone, op. cit., likewise distinguishes between a state of war and hostilities. In dealing with modes of terminating war (1.e. the "status of belligerency between the parties" and not "mere hostilities"), Stone mentions' the following means and methods: (a) cessation of hostilities alone may end war; (b) subjugation and annexation; (c) treaty of peace; (d) armistice agreement; (e) unilateral declaration by a victorious power (at pp.639-41). In discussing the last method, ene 3 eae map wm o- i ee i re eee See sinayer + "x .¢ =e were ee pew ee ee Soe cee en = pace nsee nn, ee 16. Stone says (at p.642): "The termination of a state of war may occur by a formal act of declaration or notification of one victorious State to another (defeated) State, without the conclusion of any formal treaty of peace. This seemingly anomalous procedure was adopted by certain of the Allied States of the last war, in 1947 and 1951 respectively, towards Austria and towards that part of Germany which became in 1949 the West German Republic. There were three main practical reasons for adopting this course." (See also R. Else-Mitchell, The End of the War" (1946) 62 L.O.R. 336.) In discussing modes of termination of hostilities, Stone instanced the following: (a) armistice agreement; {(b) unconditional surrender, or other forms of general capitulation; (c) truce; (d) cease-fire (at pp.643-6). 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. It is no doubt true that both a war (in a practical sense) and hostilities (in an actual sense) may be terminated by a general capitulation and it will be necessary, in a particular case, to determine, as a matter of fact and degree, whether a practical state of war or actual hostilities have terminated. In this context, the learned Judge was, we think, correct in holding that the existence, in law, of a formal state of war was not enough for present purposes. The real question here 1s whether ae eee myer wert ee oe were em me ern 17. it was also correct to hold that it was impossible for the appellant to serve in a theatre of war because he did not leave Sydney until after the date of the formal Japanese surrender in Tokyo. In our opinion, the practical considerations which dictate the conclusion that the formal termination of the war in 1952 is not determinative of the question whether the appellant "Served in a theatre of war", suggest with equal force that the formal surrender in Tokyo on 2 September 1945 1s also not decisive for our purposes. 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...." It is conceivable that the appellant may be able to establish that Japanese servicemen stationed at Balikpapan at the time of the surrender of the Japanese forces in that area on 8 September 1945 refused to accept instructions to surrender and continued for a time to engage in hostile operations against Australian troops. If he can prove that such a state of affairs existed, he may be able to make out a claim to the pension. It 1S scarcely necessary to say that we do not express any view as to his prospects of success in making out such a case. It follows, in our view, that the preliminary point should not have been determined adversely to the appellant. It was open to him to demonstrate that, although he did not depart ¥ ae ee emer e a a oom sy wept eer ee iii inesiete eee - Sop ee poe 18. from Australia until 3 September, nevertheless he did, in fact, "serve in...Operations against the enemy in an area...at a time when danger from hostile forces of the enemy was incurred in that area." That is not what the Commission considered. It must follow that the matter must be remitted to the Commission to be reconsidered in accordance with law. In the circumstances, the appeal must be allowed; the order dismissing the application should be set aside; in lieu thereof, it should be ordered, first, that the decision of the delegate be set aside; and secondly, that the Commission determine the appellant's application for a service pension in accordance with law. The appellant should also have his costs at first instance and on the appeal. I certify that this and the preceding deve Lat (/7 } pages are a true copy of the Reasons for Judgment herein of the Court. horumn Goths Associate Dated: 4 September 1987 Counsel and Solicitors A.T. McInnes 0.C. with for Appellant: A.L. Webb instructed by J. Cooke of the Legal Aid Commission of N.S.W. Counsel and Solicitors P. Flemming Q.C. with for Respondent: A. Robertson instructed by Australian Government Solicitor Dates of hearing: 19 June 1987 Date Judgment Delivered: 4 September 1987 TF. ofa a yt cet peme ee ' wae eee rrr ep ee eer nes ey wror eee