FEDERAL COURT OF AUSTRALIA Repatriation Commission v Tiernan [2001] FCA 519 VETERANS' AFFAIRS – veterans' entitlements – whether locating and repatriating prisoners of war can be characterised as military operations against the enemy ADMINISTRATIVE LAW – failure of Administrative Appeals Tribunal to deal with submission – submission advanced seriously and on a point determinative of the case – whether error of law WORDS & PHRASES – "qualifying service", "military operations against the enemy" Veterans' Entitlements Act 1986 (Cth) ss 5B(1), 7A(1)(a)(i), 85(4A) Willcocks v Repatriation Commission (1992) 39 FCR 49, followed Repatriation Commission v Burton (1993) 19 AAR 118, referred to Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 99 ALR 267, applied Repatriation Commission v Rogers [1999] FCA 489, referred to REPATRIATION COMMISSION v RODERICK THOMAS HAMILTON TIERNAN V 581 of 2000 GRAY J 4 MAY 2001 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 581 OF 2000 On appeal from the Administrative Appeals Tribunal BETWEEN: REPATRIATION COMMISSION APPLICANT AND: RODERICK THOMAS HAMILTON TIERNAN RESPONDENT JUDGE: GRAY J DATE OF ORDER: 4 MAY 2001 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The decision of the Administrative Appeals Tribunal, made on 17 July 2000, be set aside. 3. The matter be remitted to the Administrative Appeals Tribunal for determination according to law. 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 V 581 OF 2000 On appeal from the Administrative Appeals Tribunal BETWEEN: REPATRIATION COMMISSION APPLICANT AND: RODERICK THOMAS HAMILTON TIERNAN RESPONDENT JUDGE: GRAY J DATE: 4 MAY 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This appeal from the Administrative Appeals Tribunal raises questions of the proper construction of s 7A(1)(a)(i) of the Veterans' Entitlements Act 1986 (Cth) ("the Act"). 2 Section 85(4A) of the Act provides as follows: "A veteran is eligible to be provided with treatment under this Part for any injury suffered, or disease contracted, by the veteran, whether before or after the commencement of this Act, if: (a) the veteran is 70 or over; and (b) the veteran has rendered qualifying service during the period covered by paragraph (b) of the definition of period of hostilitiesin subsection 5B(1); and (c) either: (i) the Department has notified the veteran in writing that he or she is or will be eligible for such treatment; or (ii) the veteran has notified the Department in writing that he or she seeks eligibility for such treatment." Paragraph (b) of the definition of "period of hostilities" in s 5B(1) of the Act defines the relevant period of hostilities as "World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included)". The meaning of the phrase "rendered qualifying service" is to be found in s 7A of the Act. For present purposes, the relevant part of that section provides as follows: "(1) For the purposes of Part III and sections 85 and 118V, a person has rendered qualifying service: (a) if the person has, as a member of the Defence Force: (i) rendered service, during a period of hostilities specified in paragraph (a) or (b) of the definition of period of hostilities in subsection 5B(1), 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;…" 3 A person entitled to treatment pursuant to s 85(4A) of the Act is said to be entitled to a Gold Card issued by the Department of Veterans' Affairs, as an indication of the entitlement to treatment. The respondent to this appeal, Mr Tiernan completed an application for a Gold Card on 28 June 1999. On 8 July 1999, a delegate of the Repatriation Commission decided that Mr Tiernan had not rendered qualifying service in accordance with s 7A(1)(a)(i) of the Act. By letter dated 2 August 1999, Mr Tiernan sought a review of that decision. On 12 August 1999, a senior delegate of the Repatriation Commission affirmed the decision. On 28 September 1999, Mr Tiernan filed an application for review of that decision with the Administrative Appeals Tribunal. On 17 July 2000, the tribunal published a decision, setting aside the decision under review and deciding that Mr Tiernan rendered qualifying service and is therefore eligible to be provided with treatment, that is, entitled to a Gold Card. The Repatriation Commission has appealed to this Court from that decision. 4 In its reasons for decision, the tribunal found that Mr Tiernan was born on 29 June 1916. From 14 August 1942 until 7 August 1945, he served with the AIF in coastal artillery on the Australian mainland. From 8 August 1945 until 29 November 1945, he was designated as a Contact Officer in the 1st Prisoner of War Contact and Enquiry Unit. In the course of his service with this unit, he departed Australia from Brisbane on 16 August 1945. He arrived at Morotai on the following day and at Manila on 18 August 1945. From there he travelled to Okinawa, where he was attached to the 7th US Army Division for about two weeks. He then went to Korea, where his task was to make contact with Australian prisoners of war held by the Japanese in camps in Korea, for the purpose of repatriating those prisoners. 5 While in Okinawa with the 7th US Army Division, Mr Tiernan experienced two incidents in which, the tribunal found, he incurred danger from hostile forces of the enemy. Both occurred in the camp in which Mr Tiernan was quartered. The first was when a Japanese soldier ran through the camp, throwing hand grenades into the tents. Some of the grenades did not explode. The one thrown into the tent in which Mr Tiernan was billeted was one of these. Grenades exploded in other nearby tents, killing and maiming the occupants. The second incident involved a burst of automatic gunfire while Mr Tiernan was washing in a basin at the side of the tent. He took cover. Bullets passed over his head and made a line of holes in the tent behind him. He was advised by an American officer that a Japanese soldier was responsible for the gunfire. 6 The provisions defining the rendering of qualifying service contain a number of elements. The tribunal found that Mr Tiernan satisfied each of them. He rendered service as a member of the defence force during the period of hostilities. By reason of the two incidents in the camp, he was in an area at a time when he incurred danger from hostile forces of the enemy in that area. As to whether Mr Tiernan was engaged in military operations against the enemy, the tribunal said this in par 19 of its reasons for decision: "The Tribunal also finds the veteran was engaged in military operations against the enemy as he was a member of a unit raised to locate and assist in the repatriation of Australian prisoners of war of the Japanese. The Tribunal was assisted in this finding by Marsh and Repatriation Commission (1986) 4 AAR 227 where it was held '…if any activities are reasonably incidental to any of the three named operations, then they will be covered by those terms'. (The three named operations are 'naval, military or aerial operations against the enemy'.)" In this respect, it is clear that the tribunal made an error of law. 7 In Willcocks v Repatriation Commission (1992) 39 FCR 49, the Court dealt with an appeal from the tribunal on the question of rendering qualifying service. The appellant in that case was assisting in the release and repatriation of prisoners of war after the surrender of the Japanese. He was serving in Singapore, assisting with the repatriation of prisoners from there. 8 At 55, Cooper J said: "…it is not a correct approach to widen the category of service under s 36(1)(a)(i) to include activities reasonably incidental to military operations as themselves being military operations. Whether or not an activity falls within the section will depend upon determining in a practical way whether or not the conduct or the activity was an integral part of naval, military or aerial operations against the enemy. The phrase 'naval, military or aerial operations against the enemy' is to be read as a whole. It includes two elements. The first is that there must be some operation which is naval, military or aerial in character. The second is that the requisite operation must be against the enemy." His Honour held that the word "against" in the phrase "military operations against the enemy" is used in the sense of "in hostility or active opposition to". At 56, his Honour went on to say: "The activity of releasing and repatriating prisoners of war cannot be characterised as military operations against the enemy within the meaning of the provision. While they were military operations which involved contact with the enemy, they were not in hostility or opposition to the enemy. The situation is properly characterised as one where a veteran was engaged in military operations, which themselves were not operations against the enemy, but in the course of which the veteran had a hostile encounter with the enemy. This is not sufficient to satisfy the relevant provision, for it fails to satisfy both elements in the phrase 'military … operations against the enemy'. It does not follow that no service after the formal Japanese surrender in Singapore on 12 September 1945 and in the period to 29 October 1945 will constitute 'qualifying service'. For example, if it were proven as a matter of fact that a practical state of war or actual hostilities continued in the region after the formal surrender (see Marsh v Repatriation Commission (1987) 15 FCR 503 at 511, 512) any Australian soldiers deployed in the region to quell hostile Japanese forces who refused to accept, or were unaware of, the surrender could properly be described as rendering service in military operations against the enemy." 9 The reasoning in Willcocks was specifically adopted by Olney J in Repatriation Commission v Burton (1993) 19 AAR 118 at 123 - 124. In that case, the veteran concerned had been assigned to repatriating labourers from Madang, on the northern coast of New Guinea, to villages along the Sepik River. 10 The decision in Willcocks, and the reasoning of Cooper J, were binding on the tribunal at the time it made its decision in the present case. Counsel for Mr Tiernan did not attempt to argue that I should not follow the decision, or the reasoning. Cooper J specifically rejected the approach, relied on by the tribunal in the present case when it followed the earlier tribunal decision in Marsh, of seeking to determine whether some activity was "reasonably incidental" to operations against the enemy. His Honour held that, as a matter of law, the activity of releasing and repatriating prisoners of war cannot of itself be characterised as military operations against the enemy. It follows that the tribunal made an error of law in par 19 of its reasons for decision, in adopting the "reasonably incidental" approach and in finding that Mr Tiernan was engaged in military operations against the enemy because of his membership of a unit raised to locate and assist in the repatriation of Australian prisoners of war of the Japanese. 11 Without the finding that he was engaged in military operations against the enemy whilst in Okinawa, Mr Tiernan could not be found to have satisfied all elements of s 7A(1)(a)(i) of the Act. The decision of the tribunal that he was entitled to the treatment he seeks, and to a Gold Card, was therefore incorrect and must be set aside. 12 It should be noted that a submission based on Willcocks and Burton was put to the tribunal by counsel for the Repatriation Commission in the present case. The submission was put orally and in writing. The tribunal failed to deal with that submission. Plainly, it was the tribunal's duty to deal in its reasons for decision with a submission advanced seriously and on a point determinative of the case. This is particularly so when authorities binding on the tribunal are cited to it. To fail to deal expressly with a submission in those circumstances is to make an error of law. See Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276 - 277 per Jenkinson J, with whom Woodward J and Foster J concurred, and Repatriation Commission v Rogers [1999] FCA 489 at [13]. I therefore hold that, in failing to deal with the submission in its reasons for decision in the present case, the tribunal erred in law. 13 The remaining question in this appeal is as to the orders I should make. Counsel for the Repatriation Commission sought orders that the appeal be allowed, the tribunal's decision be set aside and a decision be substituted affirming the Repatriation Commission's decision. To take this course, I should have to be satisfied that there was no basis on which the tribunal could have found that Mr Tiernan was engaged in military operations against the enemy while he was serving in Okinawa. The tribunal focused only on Mr Tiernan's service as a member of a unit raised to locate and assist in the repatriation of prisoners of war. It did not consider the nature of the command (if any) that Mr Tiernan was under while attached to the 7th US Army Division. In particular, it did not consider whether Mr Tiernan would have been obliged to turn out and fight, if ordered to do so, against members of the Japanese forces who continued to fight, either before or after the formal Japanese surrender in Tokoyo Bay on 2 September 1945, or the formal surrender of Japanese forces in the Ryukyu Islands, which included Okinawa, on 7 September 1945. An appeal to the Court from the tribunal lies only on a question of law. It is not open to me to make findings of fact about the nature of the service rendered by Mr Tiernan. It is therefore necessary for me to order that the matter be remitted to the tribunal for determination according to law. 14 In some cases in which the Court makes such an order, it gives a direction that the tribunal be constituted differently from the tribunal that made the decision set aside. In the present case, such a direction seems unnecessary. There is no suggestion that it would be improper for the member who constituted the tribunal to deal further with the matter, or that either party would be disadvantaged by that member continuing to deal with the matter. If such a suggestion were to be made, the machinery exists within the tribunal for its reconstitution as necessary. 15 Counsel for the Repatriation Commission informed me that his client did not seek an order for the costs of the appeal against Mr Tiernan if the appeal were successful. Accordingly, I make no order as to the costs of the appeal. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 4 May 2001 Counsel for the Applicant: Mr P J Hanks Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Ms E Cooke Solicitor for the Respondent: Wainwright Ryan Date of Hearing: 1 March 2001 Date of Judgment: 4 May 2001