CATCHWORDS Defence - Ex-Servicemen (Veterans) - Pensions, allowances and other benefits - Qualification for benefits - Whether service in "actual combat against the enemy". Veterans' Entitlements Act 1986 - s.6(1)(n) DOROTHY MAY McKEOWN v. REPATRIATION COMMISSION VG488 of 1993 Jenkinson J. Melbourne 25 October, 1995 IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) No. VG488 of 1993 GENERAL DIVISION ) On Appeal from the Veterans' Appeals Division of the Administrative Appeals Tribunal constituted by Mrs H.E. Hallowes, Senior Member BETWEEN: DOROTHY MAY McKEOWN Applicant AND: REPATRIATION COMMISSION Respondent CORAM: Jenkinson J. PLACE: Melbourne DATE: 25 October, 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The decision of the Administrative Appeals Tribunal made on 13 October 1993 be set aside. 3. The matter of the claim the subject of the said decision be remitted to the Administrative Appeals Tribunal to be heard and determined according to law. 4. Each party have leave to adduce further evidence before the said Tribunal. 5. The applicant's costs of the appeal (including reserved costs) be paid by the respondent. (Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.) IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) No. VG488 of 1993 GENERAL DIVISION ) On Appeal from the Veterans' Appeals Division of the Administrative Appeals Tribunal constituted by Mrs H.E. Hallowes, Senior Member BETWEEN: DOROTHY MAY McKEOWN Applicant AND: REPATRIATION COMMISSION Respondent CORAM: Jenkinson J. PLACE: Melbourne DATE: 25 October, 1995 REASONS FOR JUDGMENT Appeal from a decision of the Administrative Appeals Tribunal affirming a decision of the respondent Commission that had been affirmed by the Veterans' Review Board. The Commission's decision was to refuse the claim by Leonard McKeown for a pension under Part II of the Veterans' Entitlements Act 1986 ("the Act"). The application for review by the Tribunal was made by his widow, the applicant in this court, as the person approved under s.126 of the Act after his death. At the request of the parties the Tribunal first determined whether Mr. McKeown had rendered operational service at any time while he was rendering eligible war service during World War 2. Having determined that he had not, the Tribunal determined the claim for pension in accordance with the provisions of s.120(4) of the Act, and not in any respect in accordance with the provisions of sub-sections 120(1) and 120(3). The determination that Mr. McKeown had not rendered operational service was said by counsel for the applicant on the appeal to have been vitiated by an erroneous construction of paragraph 6(1)(n) of the Act. Some of the provisions of sub-section 6(1) are: "For the purposes of this Act: (a) a person who has rendered, as a member of the Defence Force, continuous full-time service outside Australia during a war to which this Act applies shall be taken to have been rendering operational service while the person was so rendering continuous full-time service; (b) a person who has rendered, as a member of the Defence Force, continuous full-time service for a continuous period of not less than 3 months in that part of the Northern Territory that is north of the parallel 14 degrees 30 minutes south latitude (including any of the islands adjoining the Northern Territory) during the period from and including 19 February 1942 to and including 12 November 1943 shall be taken to have been rendering operational service while the person was so rendering continuous full-time service; (c) a person who, while living on a Torres Strait Island, enlisted in the Defence Force and rendered, as a member of the Defence Force, continuous full-time service for a continuous period of not less than 3 months on that Island during World War 2 shall be taken to have been rendering operational service while the person was rendering any such service so rendered by the person during the period from and including 14 March 1942 to and including 18 June 1943; (d) a person who has rendered, as a member of the Defence Force, service of a kind described in paragraph (a), (b) or (c) during World War 1 or World War 2 shall be taken to have been rendering operational service during any period of continuous full-time service rendered by the person during that war, within Australia, immediately before, or immediately after, the person rendered that service of a kind so described. ............................................... (n) a person who has rendered continuous full-time service as a member of the Defence Force within Australia during World War 2 in such circumstances that that service should, in the opinion of the Commission, be treated as service in actual combat against the enemy shall be taken to have been rendering operational service while the person was so rendering that continuous full-time service." Mr. McKeown, who was born on 22 February 1916, rendered, as a member of the Defence Force, continuous full-time service during World War 2 from 29 December 1941 until 15 November 1945. During much of that time he served in northern Australia as a signalman attached to the 22nd Australian Lines Section. He travelled by ship from Cairns to Portland Roads near Cape Weymouth, a voyage of 3 days. On another occasion he travelled by ship from Brisbane to Thursday Island, for 8 days. Each journey was undertaken so that the unit of which Mr. McKeown was a member could carry out its functions at or in the vicinity of the destination. In discussing the submission advanced to it that Mr. McKeown had rendered service "outside Australia", within the meaning of that expression in paragraph 6(1)(a), the Tribunal applied the reasoning of Hill J. in Repatriation Commission v. Kohn (1989) 87 A.L.R. 511 at 524-525, which is quoted in the Tribunal's reasons. Assuming, as it apparently did, that the journeys by ship took Mr. McKeown outside Australian territorial waters, the Tribunal declined to hold that the requirements of paragraph 6(1)(a) had been satisfied. And that conclusion was not questioned on this appeal. The grounds of appeal related to this passage in the Tribunal's reasons: "16.The final paragraph which Mr Curtis-Smith suggested may have a bearing on this application is paragraph 6(1)(n). In my opinion, the veteran's service should not be treated as `service in actual combat against the enemy'. Mr Curtis-Smith put to the Tribunal that the veteran would have been in fear of actual combat when he was in the vicinity of Cape York. The evidence is that the veteran drove trucks. Mr Greenwood's evidence, with respect to the veteran's service, satisfies me that the essential character of the veteran's service was providing transport in order to facilitate communications between Brisbane and New Guinea. There is no evidence on which I can find that the veteran's service should be treated as service in actual combat against the enemy even though the veteran may have manned a gun on board the SS Wandana. In Repatriation Commission v Ahrenfeld (1991) 101 ALR 86 Wilcox, Gummow and Hill JJ said at page 93: `The primary judge favoured the view that the expression "actual combat against the enemy" would include conduct which answered the description of integral participation in an activity directly intended for an encounter with the enemy, whether offensive or defensive in character. We agree with that treatment of the matter.' The veteran's conduct does not answer this description." The submission by counsel for the applicant was that the Tribunal had misconceived the requirement of paragraph 6(1)(n) to be that the whole of the period of service in which occurred circumstances justifying the opinion specified in the paragraph had to be considered in determining whether to form the opinion. The Tribunal should, according to the submission, have understood paragraph 6(1)(n) as concerned with any period, however short, throughout which circumstances attracting the opinion obtained. The second, third, fourth and fifth sentences of the passage quoted from the Tribunal's reasons suggest that the Tribunal was considering, not just the short periods of sea travel, when the members of Mr. McKeown's unit helped in keeping watch for mines, submarines and enemy aircraft and in manning machine guns, but also the whole of the periods, aggregating months, when he was "in the vicinity of Cape York", on land and at sea. No record of the submissions to the Tribunal is before this court, but the passage quoted suggests that consideration of the longer period was invited by Mr. Curtis-Smith. Such an invitation would be understandable. The reasons for decision of the Veterans' Review Board, which were part of the material before the Tribunal, disclose ischaemic heart disease and disseminating malignant melanoma as the diseases to which it was claimed that Mr. McKeown's eligible war service was attributable. Olney J. had held, less than a year before the Tribunal decided this case, that the concluding phrase of paragraph 6(1)(n) - "that continuous full-time service" - denoted, not the whole period of full-time continuous service within Australia, but the whole of each period during which the circumstances were such as to attract the opinion specified in the paragraph : Younger v. Repatriation Commission (VG263 of 1992; unreported; judgment 10.8.1992). The Tribunal referred to that judgment in its reasons for decision, on another point. Mr. Curtis-Smith may well have thought it not worth anything to his client to gain a finding of operational service for a few days in relation to diseases sought to be causally linked to tobacco smoking and sunlight respectively, and may have sought a finding of operational service of some months' duration. Another error suggested by counsel for the applicant was the Tribunal's concern with "the essential character of the veteran's service". That was to import inappropriately a conception utilised by Hill J., in the passage quoted by the Tribunal from Kohn's Case, in relation to paragraph 6(1)(a), according to the submission. I do not think that submission, considered alone, ought to be accepted. If it were right to consider the applicability of paragraph 6(1)(n) only to substantial periods of continuous full-time service, the conception might be appropriate. I need express no opinion. I accept the submission that application of the paragraph is to any period of service, of whatever duration, throughout which the circumstances were such as to result in the formation of the specified opinion. And I respectfully follow the decision of Olney J. that it is only in respect of such a period that paragraph 6(1)(n) operates to make service "operational service". The Tribunal was required to make the correct or preferable decision on the material before it, regardless of the form which the parties' submissions took : Kuswardana v. Minister for Immigration and Ethnic Affairs (1981) 35 A.L.R. 186. The Tribunal quoted the authoritative statement of the meaning of the phrase "service in actual combat against the enemy". The Tribunal concluded that the veteran's conduct did not answer that description. The Tribunal also stated: "There is no evidence on which I can find that the veteran's service should be treated as service in actual combat against the enemy even though the veteran may have manned a gun on board the SS Wandana." It was submitted, and I accept the submission, that that statement evidences an error of law. In my opinion there was evidence before the Tribunal to justify a finding that, during each of the periods on board ship, when watch was kept for mines, submarines and enemy aircraft, and guns were manned, by the members of Mr. McKeown's unit, the members of that unit were engaging in conduct which answered the description of integral participation in an activity directly intended for an encounter with the enemy, whether offensive or defensive. To watch for an enemy whose imminent presence is reasonably thought likely, with a view to encountering, or combating, that enemy either offensively or defensively, is to engage in an activity directly intended for an encounter with the enemy. There was evidence to support an inference that Mr. McKeown was an integral participant in that activity, whether he manned a gun or only kept watch. The matter must be remitted to the Tribunal for hearing and determination according to law. If the Tribunal concludes that during the sea voyages the circumstances were such that Mr. McKeown's service should, in the Tribunal's opinion, be treated as service in actual combat against the enemy, it will be necessary for the Tribunal to consider whether the material before it raises a reasonable hypothesis connecting either of the two diseases with the circumstances of that service. I would be prepared to hold, as a matter of law, that the material presently before the Tribunal is incapable of being considered to raise such a hypothesis in respect of either disease. But it is clear that the material so far adduced was not provided in contemplation of so short a period of "particular service", within the meaning of that phrase in s.120(3) of the Act. It is to my understanding very improbable that such an hypothesis might be raised in respect of such a period. But I cannot say as a matter of law that it could not be raised by further evidence. I think that in all the circumstances it is appropriate that I order that the parties have leave to adduce further evidence. The respondent should pay the applicant's costs of the appeal. I certify that this and the 8 preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice Jenkinson. Associate Dated: 25 October, 1995 Counsel for the Applicant : Mr. R.M. Niall Counsel for the Respondent : Mr. N. Green Solicitors for the Applicant : Hargraves Solicitors for the Respondent: Australian Government Solicitor Date of Hearing : 21 June, 1995