FEDERAL COURT OF AUSTRALIA Proctor v Repatriation Commission [1999] FCA 32 VETERANS' AFFAIRS – disability pension - appeal from decision of this court at first instance overturning decision of Administrative Appeals Tribunal which set aside decision of Veterans' Review Board that applicant's disease was not "war-caused" - whether applicant had "operational service" within the Veterans' Entitlements Act s 6(1) - at a time between 14 June and 18 June 1943 while travelling by boat between Caloundra and Townsville applicant outside Australian territorial waters - whether the Tribunal fell into error in its understanding of material facts and relevant law WORDS AND PHRASES – "operational service" – "war-caused disease" – "essential character" Veterans' Entitlements Act 1986 (Cth) ss 6, 9(1), 120 Schlenert v Australian and Overseas Telecommunications Corporation (1994) 49 FCR 139 Repatriation Commission v Kohn (1989) 87 ALR 511 Repatriation Commission v Ahrenfeld (1991) 101 ALR 86 Telstra Corporation Ltd v Warren (Federal Court of Australia, Tamberlin J, unreported, 26 February 1997 at page 31) james ellison proctor V repatriation commission NG 637 of 1998 einfeld, carr, lehane jj sydney 28 january 1999 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 637 OF 1998 BETWEEN: JAMES ELLISON PROCTOR Appellant AND: REPATRIATION COMMISSION Respondent JUDGES: EINFELD, CARR, LEHANE JJ DATE OF ORDER: 28 JANUARY 1999 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be allowed and orders made at first instance be set aside. 2. The respondent is to pay the costs at first instance and of this appeal. Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 637 OF 1998 BETWEEN: JAMES ELLISON PROCTOR Appellant AND: REPATRIATION COMMISSION Respondent JUDGES: EINFELD, CARR, LEHANE JJ DATE: 28 JANUARY 1999 PLACE: SYDNEY REASONS FOR JUDGMENT OF EINFELD AND CARR JJ INTRODUCTION 1 This is an appeal brought by James Ellison Proctor from a decision of a single judge of this Court which overturned a decision of the Administrative Appeals Tribunal (the Tribunal). The decision of the Tribunal set aside an earlier decision of the Veterans' Review Board which had affirmed a decision of the Repatriation Commission that the adenocarcinoma of Mr Proctor's prostate was not a war-caused disease. The Tribunal substituted its own decision that the adenocarcinoma was war-caused with effect from 6 October 1942 and remitted the matter to the Repatriation Commission for assessment of incapacity. The learned primary judge set aside the decision of the Tribunal and remitted the matter for re-determination. 2 The central issue, both in the Tribunal and in this Court at first instance, was whether Mr Proctor had rendered 'operational service' within the meaning of section 6 of the Veterans' Entitlements Act 1986 (Cth) (the Act). The answer to this question is determinative of the standard of proof which applies to Mr Proctor's claim under section 120 of the Act. If Mr Proctor has rendered 'operational service', the standard is significantly more favourable to him than if he had not. It is agreed that if the more favourable standard is applied, then, under the provisions of the Act, Mr Proctor's adenocarcinoma would be regarded as war-caused, making him eligible for a pension, for that condition. BACKGROUND FACTS 3 There is no dispute that Mr Proctor served in the Australian army from 2 January 1942 to 5 September 1946. At the relevant time he was a member of the 2/7th Australian Armoured Ordnance Field Park based at Caloundra and had received training in driving cars, trucks and bren gun carriers. He was part of a small unit which drove trucks supporting an armoured tank unit. The trucks carried spare parts for the tanks. 4 On 14 June 1943, Mr Proctor departed Caloundra on board LST (Landing Ship Tank) 458 bound for Townsville, where it arrived on 18 June 1943. The purpose of the voyage was to move armoured tanks, ammunition, support vehicles and spare parts to a region within Australia where there were considerable LST movements occurring at that time. On arrival in Townsville, Mr Proctor drove a truck containing spare parts to the Atherton Tablelands along with the rest of his unit, and from there he returned to his base at Caloundra. 5 In the course of the passage between Caloundra and Townsville, the ship on which Mr Proctor was sailing travelled well beyond the then three mile territorial limit. While there was no evidence that LST 458 encountered any enemy activity during the voyage, there were enemy submarines operating off the coast of New South Wales and Queensland between mid-January and mid-June 1943. LEGISLATIVE FRAMEWORK 6 The legislative framework was set out by the learned primary judge and it is not necessary to repeat it here. For present purposes, it will suffice to record that the Commonwealth is liable to pay a pension to Mr Proctor if he "has become incapacitated from a war-caused injury or a war-caused disease". These expressions are defined by section 9(1) of the Act as, inter alia, injury/disease resulting from an occurrence that happened during a veteran's operational service or arising out of or attributable to any eligible service of the veteran. PROCEEDINGS BEFORE THE TRIBUNAL 7 The Tribunal, which consisted of two retired military officers, received a volume of written material and oral evidence from Albert Iddles and Harold Ralph OAM – two men who served with Mr Proctor in the same unit – Lieutenant Colonel Bullen, a professional military history researcher, Associate Professor Gray of the School of History at the Australian Defence Force Academy, and Mr Proctor himself. After considering this evidence, and making the findings of fact referred to, the Tribunal made the following findings: 61. … we are satisfied that the voyage from Caloundra to Townsville was not merely a transitory passage undertaken in the course of training, but rather that it had the indicia of an operational undertaking, the purpose of which was to move armoured tanks, ammunition, support vehicles and spare parts to a region where, on the material before us, there was considerable LST movement occurring at or about that time. … 63. As we have also recorded, enemy submarine sightings occurred off the New South Wales and Queensland coast from September 1943. While these occurred after Mr Proctor participated in the voyage to Townsville, material before us records a substantial number of vessels as having been torpedoed off the New South Wales and Queensland coasts between mid-January and mid-June 1943. 64. Although the period of time spent by Mr Proctor at sea while enroute to Townsville was limited to a matter of a few days, we nevertheless find that, in the circumstances as set out in these reasons, his service during passage can properly be characterised as service in a vessel which was, on the balance of probabilities, likely to become engaged in combat with the enemy. It is our view, and we find, that Mr Proctor therefore rendered operational service within the meaning of section 6(1)(a) of the Act. The standard of proof relevant to Mr Proctor's claim is therefore that set out in sections 120(1) and 120(3) of the Act. That being so then as we have indicated, the respondent accepts that adenocarcinoma of prostate is war-caused within the meaning of section 9 of the Act and we find accordingly. DECISION AT FIRST INSTANCE 8 In accordance with the principles expressed by Justice Hill in Repatriation Commission v Kohn (1989) 87 ALR 511, the learned primary judge stated that the Tribunal was required to determine the "essential character" of the service of Mr Proctor, and that this was not to be assessed by reference only to his service during the short period he was outside of Australia. She further stated that the Tribunal was required to ask whether "it is correct to categorise [Mr Proctor's] service in that time as being continuous full-time service inside Australia or continuous full-time service outside Australia" and agreed with Kohnthat "mere transitory passages outside Australia" do not constitute service outside Australia: Where the purpose of the journey outside Australia itself, being but brief, is merely to facilitate the performance of service which itself is continuous full-time service within Australia, the service outside Australia will not give colour to the service nor will it permit a characterisation of the service as being continuous full-time service outside Australia. 9 The error of law found by the learned primary judge was that the Tribunal had failed to determine "the essential character" of the service of Mr Proctor. According to her Honour, it had mistakenly proceeded on the premise that its finding that Mr Proctor's "service during passage can properly be characterised as service in a vessel which, was, on the balance of probabilities, likely to become engaged in combat with the enemy" led necessarily to the conclusion that he had rendered operational service with the meaning of section 6(1)(a). Her Honour's view was that this approach was not supported by the reasoning in Kohnwith which she agreed. THE APPEAL 10 The following grounds were advanced in Mr Proctor's notice of appeal: (i) There was evidence before the AAT from which it could be found that the service rendered was operational service. (ii) It was outside the power of the Court to interfere with that finding of fact by the AAT. (iii) The Court erred in finding that the veteran's service, before and after the service, relied upon as operational service alone determines if the service relied upon was operational service. (iv) The Court erred in ordering the Appellant to pay the costs of the appeal. 11 Mr Proctor relied on the following passage from Kohn: It is obvious that there can be questions of degree involved. Since service on a naval ship, where the ship was sailing to some place in the middle of the ocean to refuel planes there and return during the war would clearly enough be characterised as service outside Australia. The purpose of the voyage will in such a case give the service its essential character. So too, an airman piloting a plane on a mission from Australia and back, not landing in the meantime, will likewise be seen to be engaged in operational service for the purpose of the mission and as a matter of fact, be proper to look at this mission in isolation and characterise the airman's service by reference to it. 12 Mr Proctor submitted that his case was on all fours with these examples because the trip from Caloundra to Townsville had several operational indicia which could be used in isolation to characterise the entirety of his service. He contrasted his position with the position of Mr Kohn himself whose time spent outside Australia was merely while transiting from one point of service in Australia to another. 13 The respondent submitted that the Tribunal applied the wrong test when it predicated its finding of 'operational service' on its finding that Mr Proctor was 'likely to become engaged in combat with the enemy'. REASONING 14 The Tribunal was well aware of Mr Proctor's service history, including its length. In paragraph 22 of its reasons under the heading "Operation of Section 6(1)(n) of the Act", it referred to Repatriation Commission v Ahrenfeld (1991) 101 ALR 86, a decision of a Full Court of this Court. Ahrenfeldrecognised that a radio operator at Onslow who was engaged simply in passing on information about incursions of Japanese aircraft, by doing so rendered "… service in actual combat against the enemy…" within the meaning of s 6(1)(n), even though the bombs from those aircraft fell into Exmouth Gulf, some 60 miles away. In the course of referring to this decision, the Tribunal said: The Court held that the expression "actual combat against the enemy" includes conduct which answers the description of integral participation in an activity directly intended for an encounter with the enemy whether offensive or defensive in character. 15 In our opinion, it was quite proper for the Tribunal to consider that decision as being apposite in the present matter. Its reference to the case referred to an alternative issue between the parties about the possible application of s 6(1)(n) – namely, whether Mr Proctor's service should be treated as in actual combat against the enemy such as to qualify or be deemed as service outside Australia. 16 The Tribunal was well aware that it had to characterise his short period of service outside Australia, although it did not have to use the words "essential character": Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. (See for example pages 5-6 of its reasons (AB 267-268), in particular paras 9 and 10.) It did so in the following manner. First, it refused to give the relevant character to certain training exercises in which Mr Proctor had been involved. Then it directed its attention to the voyage from Caloundra to Townsville and found that Mr Proctor was not simply a passenger on a ship. He had work to do. He was part of what the Tribunal was entitled to regard as potentially a combat team. He drove his truck, fully-loaded with spare parts, on to the LST on which there were armoured tanks loaded with ammunition. His task was to drive the trucks from that vessel upon disembarkation at Townsville. The Tribunal also had regard to the fact that a substantial number of vessels had been torpedoed off the New South Wales and Queensland coasts between mid-January and mid-June 1943, a period which included the time when the voyage was undertaken. 17 We disagree, respectfully, with her Honour's conclusion that the Tribunal fell into error by referring to the likelihood of the vessel becoming engaged in combat with the enemy as leading necessarily to the conclusion that Mr Proctor had rendered operational service within the meaning of s 6(1)(a). We think that the Tribunal was entitled to refer to that very real circumstance as part of the process of characterising Mr Proctor's service during the voyage. The Tribunal was recognising, as a relevant part of that characterisation, his exposure to risk of enemy contact. The Tribunal identified the purpose of the voyage (paras 61-64 – previously extracted), acknowledged that the period of time at sea was limited to a few days, referred to s 6(1)(a) as the relevant paragraph for the meaning of "operational service" as "continuous full time service outside Australia during a war to which this Act applies", and characterised Mr Proctor's service as included within that meaning. 18 The respondent complained, in oral argument, that the Tribunal made no finding of fact about the duration of that part of the voyage which was outside Australia. The primary judge held that, contrary to the Commission's submissions on this matter at first instance, the Tribunal gave adequate reasons for its decision, including its findings on the questions of fact which it regarded as material. There was no cross appeal. 19 The respondent further submitted that it would be anomalous and extraordinary if the appellant fell within s 6(1)(a) having regard to his absence from Australia for such a short time and was thus able to invoke the assistance of s 6(1)(d) in having all his war service treated as being operational service. It contrasted service persons injured within Australia as a result of enemy action [s 6(1)(m)] or treated as having served in actual combat against the enemy [s 6(1)(n)] who would not be able to derive assistance from that provision. But, as Lockhart J observed in Schlenert v Australian and Overseas Telecommunications Corporation (1994) 49 FCR 139 at 145, the existence of anomalies rarely assists in the process of interpreting statutes where their language is tolerably clear. In our opinion, the statutory language here is more than tolerably clear; the task at hand was to assess whether the facts fell within it. 20 In our view, these arguments and the case itself raised essentially factual issues which were for the Tribunal's assessment alone. We have referred specifically to the composition of the Tribunal, because expertise in characterisation of relevant service is not to be overlooked: Telstra Corporation Ltd v Warren (Federal Court of Australia, Tamberlin J, unreported, 26 February 1997 at page 31). A fair reading of the Tribunal's reasons shows that it well understood all the material facts and relevant law. It then made what was in truth a factual assessment, which involved giving consideration to the length of Mr Proctor's service overall, the length of the voyage, the purpose of the voyage, and hence the purpose of Mr Proctor's service on the vessel. 21 We do not think that this Court should interfere with the Tribunal's conclusions and, with respect, think that her Honour fell into error in doing so. We would allow the appeal and set aside the orders made below. The respondent should be ordered to pay the costs at first instance and of this appeal. I certify that the preceding twenty-one numbered paragraphs (21) are a true copy of the Reasons for Judgment herein of Einfeld and Carr JJ. Associate: Dated: 28 January 1999 REASON FOR JUDGEMENT OF LEHANE J 22 I agree that this appeal should be disposed of in the way proposed by Einfeld and Carr JJ, and substantially for the reasons given by their Honours. 23 This is an area in which anomalies, and fine and unsatisfactory distinctions, abound. It is not easy to believe in the existence of a policy accurately reflected in legislation which has, among others, the following consequences: · A person who, while rendering continuous full‑time service within Australia during World War 2 was injured, or contracted a disease, as a result of enemy action, is taken to have rendered "operational" service only at the time of the occurrence giving rise to the injury or disease (Veterans' Entitlements Act 1986 (Cth), s 6(1)(m)); · A person rendering continuous full‑time service within Australia during World War 2, properly to be regarded as service in actual combat against the enemy, is taken to have rendered "operational" service only during the period when it was properly to be so regarded (s 6(1)(n)); · A person employed outside Australia on a ship as an Australian mariner is taken to have rendered "operational" service only while so employed (s 6(1)(o)); · A person who, during a period of recognised danger, rendered full‑time continuous service in the north of the Northern Territory or on a Torres Strait Island is entitled to have that service, together with continuous full‑time service in Australia immediately previously or subsequently, regarded as "operational" service only if the service in the north of the Northern Territory or on a Torres Strait Island continued for at least three months (s 6(1)(b), (c) and (d)); but nevertheless · A person who rendered continuous full‑time service within Australia, interrupted by an operational mission (however brief) outside Australia is, in effect, entitled to have the whole of his period of continuous full‑time service regarded, by virtue of s 6(1)(a) and (d), as "operational" service. 24 The problem is, however, that by contrast, for example, with par (b) and par (c), s 6(1)(a) does not place a minimum qualifying period on the required continuous full‑time service outside Australia. There is no process of construction which would warrant reading par (a) as if it included a minimum qualifying period. There is, therefore, in my view no escape from the conclusion that distinctions of the kind discussed by Hill J (in Repatriation Commission v Kohn (1989) 87 ALR 511) must be made. Argument proceeded before us on the footing of common ground that the decision in Kohn was correct and that Hill J, at 524 and 525, correctly perceived the nature of the distinction between those brief excursions outside Australia which should be treated as continuous full‑time service outside Australia and those which should not. 25 The kind of distinction which Hill J had in mind can, perhaps, best be seen from this passage in his Honour's judgment at 525: "It is obvious that there can be questions of degree involved. Service on a naval ship, where the ship was sailing to some place in the middle of the ocean to refuel planes there and then return during the war, would clearly enough be characterised as service outside Australia. The purpose of the voyage will in such a case give the service its essential character. So too, an airman piloting a plane on a mission from Australia and back, not landing in the meantime, will likewise be seen to be engaged in operational service for the purposes of the legislation because it will then, having regard to the purpose of the mission and as a matter of fact, be proper to look at this mission in isolation and characterise the airman's service by reference to it. However, where the purpose of the journey outside Australia itself, being but brief, is merely to facilitate the performance of service which itself is continuous full‑time service within Australia, the service outside Australia will not give colour to the service nor will it permit a characterisation of the service as being continuous full‑time service outside Australia." 26 That being accepted, the Administrative Appeals Tribunal was required, as a question of fact, to characterise the particular service performed by the appellant outside Australia, brief though that service was. Senior counsel for the respondent relied particularly on the following passage in par 64 of the Tribunal's reasons: "Although the period of time spent by Mr Proctor at sea while enroute to Townsville was limited to a matter of a few days, we nevertheless find that, in the circumstances as set out in these reasons, his service during passage can properly be characterised as service in a vessel which, was, on the balance of probabilities, likely to become engaged in combat with the enemy. It is our view, and we find, that Mr Proctor therefore rendered operational service within the meaning of section 6(1)(a) of the Act." 27 Senior counsel submitted that the use of the linking word "therefore" made it clear beyond argument that the Tribunal applied the wrong test, one which could not be justified on the basis of the reasoning in Kohn. Although with some hesitation, I do not think that that submission should be accepted. Paragraph 64 of the reasons must be read in the light of what precedes it: particularly the Tribunal's summary, in pars 19, 20 and 21 of its reasons, of the reasoning in Kohn(a summary which displays no misunderstanding of the reasoning), the Tribunal's detailed consideration of the evidence concerning the voyage, in which the appellant took part, between Caloundra and Townsville, the finding in par 55 that during one (albeit short) part of the voyage, the vessel would have been at least 80 km off the coast and the conclusions drawn from the evidence, in par 61, about the character of the voyage. In considering that character, it was not irrelevant to take into account the likelihood that the vessel would have become engaged in combat with the enemy. But plainly that is not the sole matter which the Tribunal took into account. Having regard particularly to the passages to which I have referred, I do not accept that the Tribunal misapplied Kohn or asked (or answered) the wrong question. Once that stage is reached, what is complained of appears for what I believe it is, a finding on a question of fact and one which was open on the evidence before the Tribunal. I certify that the preceding six numbered paragraphs (6) are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane Associate: Dated: 28 January 1999 Counsel for the Appellant: A.T. McInnes QC with M.G. Vincent Solicitor for the Appellant: Crisp & Associates Counsel for the Respondent: J.S. Hilton SC with R.T. Beech-Jones Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 9 November 1998 Date of Judgment: 28 January 1999