FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Mitchell [2002] FCA 1177

DEFENCE AND WAR - Veterans affairs - service pension - entitlement - whether veteran rendered qualifying service under s 7A of Veterans’ Entitlements Act 1986 (Cth) -whether in military operation against enemy - where not required to be involved in actual personal combat - where found to be in area in which military and aerial operations were conducted - whether incurred danger from hostile forces of the enemy - where travelling aboard troop ship - danger from floating mines.

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Veterans’ Entitlements Act 1986 (Cth) s 7A

Tiplady and Repatriation Commission (1987) 12 ALD 670 Refd

Gilgen and Repatriation Commission [2000] AATA 447 Refd

Willcocks v Repatriation Commission (1992) 39 FCR 49 Applied

Repatriation Commission v Burton (1993) 19 AAR 118 Cited

Repatriation Commission v Tiernan [2001] FCA 519 Cited

Repatriation Commission v Ahrenfeld (1991) 29 FCR 556 (FC) Cited

Repatriation Commission v Thompson (1988) 44 FCR 20 Applied

Waterford v Commonwealth (1987) 163 CLR 54 Cited

REPATRIATION COMMISSION v RAYMOND MITCHELL

Q1 OF 2002

COOPER J

BRISBANE

20 SEPTEMBER 2002

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant pay the respondent’s costs of and incidental to the application including reserved costs, if any, to be taxed if not agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

REASONS FOR JUDGMENT

BACKGROUND

1                     On 13 June 2000, Raymond Wilson Mitchell (“the veteran”) made a claim for a service pension under the Veterans’ Entitlements Act 1986 (Cth) (“the VEA”).  The claim was rejected by a delegate of the Repatriation Commission (“the Commission”) on 23 August 2000 on the ground that the veteran did not satisfy the provisions of s 7A of the VEA in respect of qualifying service.  The decision to refuse the pension was affirmed by a Service Pension Review Officer under s 57A of the VEA on 15 November 2000.  The veteran sought administrative review by the Administrative Appeals Tribunal (“the AAT”) on 16 February 2001.

2                     On 7 December 2001, the AAT set aside the decision under review and determined that the veteran had rendered qualifying service pursuant to s 7A of the VEA and that he was entitled to be paid a service pension with effect from 3 July 2000.

3                     On 2 January 2002, the Commission, pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), appealed to this Court from the decision of the AAT.  An amended notice of appeal was filed on 7 February 2002.

4                     The veteran was left without legal representation on the eve of the hearing of the appeal because he was unable to fund further legal representation.  In the event, his case was argued on his behalf by his son who is not legally trained.  The Commission was represented by Senior Counsel and Junior Counsel.  The veteran’s argument was, and at all times has been, that he was for all practical purposes in the same position as Lindsay Northam Tiplady, who was granted a service pension in proceedings before the AAT:  see Tiplady and Repatriation Commission (1987) 12 ALD 670, a decision which was not appealed from by the Commission.

the proceedings in the aat

5                     The AAT found that :

(a)        the veteran served in the Australian Army from May 1942 until September 1946;

(b)        on 7 September 1944 he embarked on the troop ship “Katoomba” at Townsville and travelled to Horn Island in the Torres Strait, where he arrived on 10 September 1944.  From Horn Island he was transferred to Thursday Island;

(c)        the veteran, on or about 12 September 1944, was transported by launch to Cape York Peninsula and thence by truck to an anti-aircraft battery at a place called Jacky Jacky where an airfield called Higgins Field was located.  The anti-aircraft battery surrounded the airfield.  The veteran was an Ack Ack gunner by training;

(d)        on or about 20 September 1944, he was transported back to Thursday Island and thence to Horn Island;

(e)        on 23 September 1944, the veteran and his unit embarked on the troop ship “Duntroon” to travel to Brisbane where he arrived on 28 September 1944;

(f)         Japanese submarines in 1942 laid what was thought to be sixty-three mines in the vicinity of Bathurst Island and Dundas Strait and at two other locations, which locations were respectively 88 and 106 miles west of Thursday Island.

(g)        as a matter of common knowledge mines do break free from their moorings;

(h)        the veteran and other service personnel, when on board the troop ship “Duntroon” on the second day out from Thursday Island on route to Brisbane, saw a spherical shape which looked like a mine floating in the sea not far from the ship;

(i)         in 1944 there was real danger to a ship sailing in the Torres Strait of striking a Japanese mine and “anyone who travelled on a vessel in the area incurred danger from the Japanese mines which had been laid in 1942”;

(j)         when the veteran was transported to the airfield at Higgins Field “he was involved in an operation against the forces of Japan.”

6                     The AAT rejected submissions of the Commission that the veteran, because he was not involved in actual combat, was not undertaking naval or military operations against the Japanese.  It said :

“8.       It was conceded on behalf of the respondent that Mr Mitchell was a member of the Defence Force in a period of hostilities as defined in subsection 5B(1) of the Act.  However, it was submitted on behalf of the respondent that Mr Mitchell was not undertaking naval or military operations against the Japanese when he was on duty in the Thursday Island, Horn Island, Cape York and Jacky Jacky area in September 1944 because he was not involved in actual combat against the Japanese.  It was also submitted on behalf of the respondent that Mr Mitchell did not incur danger while travelling by ship and barge in the vicinity of Torres Strait in September 1944.

9.         The Tribunal rejects the notion that to satisfy the conditions of ‘naval or military operations against the enemy’ set out in section 7A a veteran had to be involved in actual combat against the enemy.  If that interpretation be correct, any veteran who was bombed, sunk or shot at by the enemy while they were asleep in their bunk, or while they were being transported to a front line, would not have qualifying service unless they actually engaged the enemy by firing back.  The Tribunal believes that such an interpretation is too restrictive.”

7                     It also rejected a submission that the veteran had not incurred danger from hostile forces of the enemy.  It said :

“11.     The Tribunal takes the view that although no ships were sunk by mines in the vicinity of Torres Strait in 1944, that does not necessarily mean that the sailing of ships in the area was not a dangerous undertaking at that time.  There was a real danger of striking a Japanese mine and anyone who travelled on a vessel in the area incurred danger from the Japanese mines which had been laid in 1942.  It is not a pre-requisite to the incurring of danger that one must be blown up.”

8                     The proceedings before the AAT were conducted on the basis that the veteran’s circumstances were practically identical with those of Mr Lindsay Tiplady who was detailed in April 1944 to proceed as part of a Signals Installation Unit by sea, from Townsville to Horn Island and thence to Higgins Field at Jacky Jacky on the mainland of Cape York.  Mr Tiplady was based at Higgins Field for approximately six months and his service there overlapped with the service rendered by the veteran in the present case.  In the Tiplady proceedings, the Commission conceded the veteran “served at sea in the military operations against the enemy by virtue of a trip by barge from Townsville to Thursday Island and Horn Island.”:  12 ALD at pp 671 - 672, [2].

9                     The AAT found in Tiplady :

“The evidence clearly establishes also, that the applicant by virtue of his service in an R.A.A.F. detachment at Horn Island and subsequently at Higgins Field on Cape York, ‘served in the field in military or aerial operations against the enemy in an area’”.

10                  In the present case there was before the AAT a copy of the reasons for judgment of the AAT in Tiplady, which the veteran had marked up indicating the similarities between the situations of the two men during their relevant service in 1944.  It formed part of the “T” documents tendered as Exhibit 1.  Further, the documents included a statement of the veteran which in evidence in chief he swore was a true and correct statement.  In part, it said :

“Recently I read the results of the Adm. Appeals Tribunal No N86/426 AAT No 3695.

Re Lindsay Northam Tiplady and Repat Commission.

Mr Tipladys service and my own are very similar.  We both left Townsville in 1944 and travelled by sea to Heron Island he was on the SS ‘Burra’ and I was on the troopship ‘Katoomba’.  I then went by landing barge to Thursday Island and after a couple of days on Thursday Island I was sent across by a small motor launch to Cape York Peninsula.  I was then taken by truck to an A.A. Battery at Jacky Jacky where we had 3.7 Heavy Ack Ack gun emplacements around Higgins Airfield.  The only difference between Mr Tiplady and myself was he was there in April/May ’44 and I was there 3¼ months later in early September 1944.

The second day after we arrived, on morning parade I was given guard duty for that night and we were all lectured on how lax the sentries had been and we were told that there was a rumour around the cape that a small force of Japanese had landed just down the coast on the Eastern side of the Gulf and we should be extremely alert at all times.  We often heard many rifle shots during the night, but we did not sight any Japanese.

I was there only for a few weeks and our unit was recalled.  On the way back to Brisbane on the troopship ‘Duntroon’ one evening we sighted a drifting mine (see Stat. Dec.) and in my opinion, I did ‘Incur Danger’ and not merely perceive or fear I was in danger.

In Mr. G. Heron Gill’s book ‘History of Royal Australian Navy 1942 - 45’ the clearing of mines from the Great Barrier Reef passages started on the 1st August 1944 and between that date and 27th September ’44, 491 mines were swept.  It was during these dates that I was on the same waters, so it was not surprising I spotted a floating mine at this time.  ...”

11                  The documents also included a statutory declaration of the veteran which said :

“At the time of boarding the troopship ‘Katoomba’ in Townsville in September ’44, we were taken down below and told this was to be our sleeping quarters.  Later as evening approached we were taken up on deck and told by an officer ‘these waters are still dangerous and we are always on the look out for submarines but the real danger now is from mines, especially those which have broken loose.  For this reason those who wish may sleep on deck of a night time, making sure no lights are showing, not even a lighted cigarette.’

When our unit was recalled we returned to Brisbane via the troopship ‘Duntroon’ and the majority of us slept on deck again.  Late one evening we saw a floating mine approximately 100 yards off to the side of us, by the time we found and alerted an officer it was too dark to locate again.”

12                  The veteran’s assertion that his circumstances were the same as those in Tiplady was not challenged before the AAT.  His cross-examination was limited to establishing three matters.  Firstly, that his role on the ships “Duntroon” and “Katoomba” was as a passenger on a troop ship with no other role to play.  Secondly, that the veteran could not identify the mine he saw as a Japanese or German mine to the exclusion of it being an Australian mine.  Thirdly, that the veteran had no actual combat engagements with the enemy in the sense of his having a direct and personal actual hostile encounter with the enemy.  The veteran agreed to each of these assertions.

13                  In its submissions, counsel for the Commission submitted that the AAT, in making its findings that :

(a)        when the veteran was transported to Higgins Field he was involved in an operation against forces of Japan;

(b)        ships in the Torres Strait in 1944 faced real danger of striking a Japanese mine and anyone who travelled on a vessel in that area incurred danger from Japanese mines that had been laid in 1942;

(c)        the veteran rendered qualifying service within s 7A of the Act,

appeared to place considerable reliance on the earlier decision of the AAT in Tiplady.  I agree with this submission and am satisfied that the AAT adopted the factual findings made in Tiplady, so far as they were relevant to the circumstances of the veteran in the present proceedings.  It also relied upon a report of Robert Piper, a military historian, concerning the laying of mines in the Torres Strait in early 1942:  see the reasons of the AAT paragraph 7.

14                  As part of his case, Mr Tiplady described the conditions at Higgins Field during his presence there.  This evidence was accepted by the AAT and summarised in the reasons for judgment of the Senior Member (Sir William Prentice) as follows  (12 ALD at 674 - 675) :

“At Higgins Field during the appellant’s tour of duty, there were Beaufort Bombers and Vultee Vengeance (Dive Bombers) aircraft stationed;  and they were engaged in the bombing of Japanese-occupied Rabaul.  The aircraft were dispersed around the strip and covered with camouflage netting.  The airfield was some few miles in from the tip of Cape York Peninsula.  It had Bofors (anti-aircraft) guns stationed around it.  Infantry troops were close by.  The RAAF personnel was put on guard duties which included use of a roving picquet;  and there were a lot of gunfire at night ‘with the guards’.  Whenever the Bofors guns opened up the sergeant in charge of the section always insisted on the personnel taking cover lest the firing be against actual enemy attack - and not mere practice.  There was no worry among the detachment, it seems, over vandals or saboteurs - but the applicant was worried about possible landing parties (of Japanese) and troops coming in to attack the airfield.”

See to similar effect the finding of the other members of the AAT:  12 ALD at 682.

15                  The Senior Member concluded that because Higgins Field was also of great importance to allied bombing fleets as a refuelling station for aircraft flying both from and towards Townsville, it must have been regarded as an important operational target.  He also observed that (12 ALD at 681) :

“The actions of Command at Higgins Field in dispersing aircraft, maintaining anti-aircraft guns in position, and protecting the installations and equipment with armed sentries and roving picquets are I believe consonant not only with sensible precautions, but with the understanding of perhaps unlikely, but always possible, raids launched from aircraft or from submarine landings, or surface carriage of small parties.”

He concluded that in April/May 1944 (12 ALD at 681 - 682) :

“(a)     There was a real possibility that floating enemy mines could have been encountered on SS Burra’s April voyage from Townsville, inside the Barrier Reef, around the Cape, to Thursday Island.

(b)       The Japanese (and indeed the Germans) had the capacity to deploy submarines among the Torres Strait Islands, the Coral Sea and along the east coast of Australia, and therefore to attack the unescorted SS Burra with gunfire or torpedoes.

(c)        The Japanese maintained the capacity to reconnoitre with fighters and bombers (though in seriously reduced strength as compared with immediately preceding months) and to attack Horn Island and Higgins Field and the installations and personnel thereon.

(d)       The Japanese retained the possibility of launching small parties on the mainland of Cape York from small surface vessels issuing from areas of New Guinea and the islands still occupied by them, or from submarines.”

16                  The other members of the AAT concluded that “... the airfield was vulnerable to Japanese landing parties or air attacks on an operational target.”  They also concluded that (12 ALD at 682 - 683) :

“... Considerable weight must be given to the preoccupation of the Japanese in fighting the war in the northern part of New Guinea during the period under consideration.  However, the fact remains from the evidence that Japanese reconnaissance aircraft were sporadically in the general area, and it was normal for such aircraft to carry bombs.  Given the strategic importance of Higgins Field for the allies, any presence of enemy reconnaissance aircraft carrying bombs constitutes a real as distinct from imaginary danger, although we evaluate such danger as being of minimal significance.  The importance of this aspect for the applicant is that when it is added to the danger which we find he experienced on the sea journey from Townsville to Thursday Island, it merely represents a slight strengthening of his case.  In particular, we believe it is of some significance that as late as 23 June 1944 a Betty bomber and a Zeke Fighter were destroyed in the Cape Vaisch area, which is well within range of Horn Island.”

17                  The report of the military historian Robert Piper which the AAT referred to in its reasons confirms that Japanese mines were laid by submarines in the Torres Strait in January or February 1942.  Depending upon the sources referred to, either forty or seventy mines were laid.  He confirms that one of the mines was washed ashore and discovered by personnel of the 4th Australian Division on 17 December 1943 at a location one mile south of the Red Island Point jetty.  Red Island Point, as appears from the material in the reasons for decision in Gilgen and Repatriation Commission [2000] AATA 447, a copy of which was provided by the Commission to the AAT in these proceedings, is located on the tip of Cape York Peninsula and was connected to Higgins Field by road.

the grounds of appeal

18                  By its amended application, the Commission relied on the following grounds of appeal :  paragraph 3 of the amended application

(a)        Given the evidence before the Tribunal as to the nature of the veteran’s service while being conveyed on the “Duntroon”, it was not open to the Tribunal to conclude that the veteran rendered service while being conveyed on the “Duntroon”, in “naval, military or aerial operations against the enemy” within s 7A(1)(a)(i) of the VEA.

(b)        The Tribunal erred in law by failing to consider whether the veteran participated in a hostile offensive or defensive encounter or exchange with the enemy and so “rendered service ... in naval, military or aerial operations against the enemy” within s 7A(1)(a)(i) of the VEA.

(c)        The Tribunal erred in law by failing to consider and apply the distinction between a person engaged in “naval, military or aerial operations against the enemy”, in the sense of a hostile offensive or defensive encounter or exchange with the enemy, and a person engaged in “activities reasonably incidental to military operations”.

(d)        Given the evidence before the Tribunal as to the veteran’s sighting of an unidentified mine while being conveyed on the “Duntroon”, it was not open to the Tribunal to conclude that the veteran “incurred danger from hostile forces of the enemy” within s 7A(1)(a)(i) of the VEA.

(e)        The Tribunal erred in law by proceeding on the basis that, in order to satisfy the requirements of s 7A(1)(a)(i) of the VEA, it was sufficient that the veteran had sailed in waters where enemy mines could have been present.

(f)         The Tribunal erred in law by failing to consider whether the veteran encountered an enemy mine or mines while being conveyed on the “Duntroon”.

(g)        The Tribunal erred in law by failing to consider and apply the distinction between a person being exposed to the risk of danger and a person being placed in peril of harm or injury from hostile forces of the enemy.

the statutory provision

19                  Section 7A(1) of the VEA provides :

“(1)     For the purposes of Parts III and VA 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 the aircraft or ship; ...”

The submissions and conclusion

20                  The submission of the Commission is that the veteran did not render service in “naval, military or aerial operations against the enemy” because he did not take part in a hostile offensive or defensive encounter or exchange with the enemy, or, in operations in hostility or opposition to the enemy.  It is submitted that at its highest, he engaged in activities incidental to military operations whilst travelling to and from Higgins Field, and that at Higgins Field there is no evidence of actual operations in hostility or opposition to the enemy in which the veteran rendered service.  These submissions are based on observations I made in Willcocks v Repatriation Commission (1992) 39 FCR 49 which have since been adopted and applied in Repatriation Commission v Burton (1993) 19 AAR 118 at 124 and Repatriation Commission v Tiernan [2001] FCA 519 at [10].

21                  In respect of the then s 36(1)(a)(i) of the VEA, which is in relevant respects now replicated in s 7A(1)(a)(i) of the VEA, I said (at 55, 56) :

“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.  Both elements must be satisfied for the service to constitute ‘qualifying service’ within the meaning of s 36(1) of the VE Act.

... The section requires service, inter alia, in military operations against the enemy, in the sense of operations in hostility or opposition to the enemy.”

I had earlier said that it was not open to widen the operation of the section by including activities reasonably incidental to military operations and concluded (at 55) :

“... 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.”

22                  Section 7A(1)(a)(i) is concerned with “naval, military or aerial operations against the enemy in an area” (emphasis added).  The second part of the subsection is concerned with “danger from hostile forces of the enemy in that area” (emphasis added).  It is the area in or on which military operations are being conducted against the enemy which is generally covered by the phrase “military theatre of operations”.

23                  The correct question to be addressed for the purpose of s 7A(1)(a)(i), is whether the veteran rendered military service in an area where naval, military or aerial operations against the enemy occurred, and if so, whether in a practical way the service of the veteran was an integral part of those naval, military or aerial operations against the enemy in that area.  Those operations, as I indicated in Willcocks, must be in hostility or opposition to the enemy. 

24                  The section does not require that the veteran be involved in actual personal combat against the enemy.  Even the phrase “actual combat against the enemy” does not require direct and personal engagement with the enemy and it is sufficient that the conduct in question is an integral participation in an activity intended for an encounter with the enemy, whether offensive or defensive in character:  Repatriation Commission v Ahrenfeld (1991) 29 FCR 556 (FC) at 562 - 563.  The activities of a veteran as part of such an operation may or may not involve the veteran personally in a direct, hostile, offensive or defensive encounter or exchange with the enemy, however, that is not the test for the purpose of s 7A(1)(a)(i) of the VEA.  Nor should it be lost sight of that rendering service in naval, military or aerial operations against the enemy is but one of three elements necessary to render qualifying service for the purposes of s 7A(1)(a)(i).

25                  The AAT formed the view on the material available to it, and in particular in its reliance upon the material and findings in the proceedings in Tiplady, that the Torres Strait, including the islands in the Strait, Cape York Peninsula, at least around Jacky Jacky and Higgins Field, and Papua New Guinea was an area in which military and aerial operations were being conducted against the enemy.  It has found that Higgins Field was an operational airfield used for conducting aerial operations against the enemy in Papua New Guinea, and at that time against the enemy in Rabaul, and further that it provided refuelling facilities for allied bombing fleets operating north and north west of the Cape coming from or going to Townsville.  The Ack Ack anti-aircraft unit was part of the defence system to defend the operations at Higgins Field from hostile aerial attack, as much as the use of sentries and roving piquets were part of the defence of the facility from hostile incursions by Japanese landing parties from the sea.  Higgins Field was found by the AAT in Tiplady to be an airfield of strategic importance to the allied bombing fleets, and thus an important operational target to the enemy;  it was also a target within operational range of Japanese forces present in the area at the time.

26                  Clearly the AAT has found that military and aerial operations were being conducted against the enemy in the area, particularly on and from Higgins Field, and that the veteran’s service in the anti-aircraft unit was an integral and sufficiently direct involvement in those operations.  It also found, by its reference in paragraph [9] of its reasons to transportation of veterans to a front line, that movement of service personnel into and within that area for the purpose of reinforcing or relieving existing personnel in the discharge of activities integral to those operations, was but one facet of conducting such military and aerial operations themselves.  That is, troop and resource deployment within the area for the purposes of conducting military and aerial operations against the enemy was an integral part of those operations. 

27                  Having so found, it followed that the AAT treated the service of the veteran, once the troop ship entered the waters of the Torres Strait, as operational service, and certainly after disembarkation at Horn Island for the purpose of attachment to the anti-aircraft unit at Higgins Field it treated the service of the veteran as operational service rendered in military or aerial operations against the enemy in that area.  Similarly, it treated his transportation within and out of the area of operations as part of those operations and part of the operational service rendered by the veteran.  In making the findings that it did, the AAT rejected the submission that the service rendered by the veteran was at any time merely incidental to military or aerial operations against the enemy conducted in that area.

28                  In my view there is no demonstrable error of law in the view taken by, or in the reasoning of, the AAT that there were military and aerial operations against the enemy in the area in which the veteran served in September 1944.  Nor is there any demonstrable error of law in the view taken by the AAT that the military service of the veteran in that area, including his transportation within the area, was service rendered in the field in military and aerial operations against the enemy in an area sufficient for the purposes of s 7A(1)(a)(i) of the VEA.  Nor is there demonstrable legal error in the reasoning which led the AAT to that view.

29                  The Commission fails to make out any of the grounds in paragraph 3(a),(b) and (c) of the amended application.

30                  I turn to the issue of whether the veteran at the time of rendering service in military or aerial operations against the enemy in the area “incurred danger from hostile forces of the enemy in that area.”

31                  The Commission submitted before the AAT that the test of whether the veteran “incurred danger” for the purposes of s 7A(1)(a)(i) of the VEA was as laid down in Repatriation Commission v Thompson (1988) 44 FCR 20.  It submitted that “there must be established an actual risk of physical or mental harm and the danger must be real and not fanciful.”  It also submitted that the Full Court decision “overrides” the decision in Tiplady.

32                  In Repatriation Commission v Thompson, the Court (Davies, Wilcox and Foster JJ) dealt with the proper construction of the words “incurred danger” where they appeared in the then s 36(1)(a)(i) of the VEA.  It said (at 23 - 24) :

“The words ‘incurred danger’ therefore 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 serviceman 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 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 or in peril of harm or injury.”

33                  The AAT did not simply apply the reasoning in Tiplady to hold that this veteran incurred danger in the required sense.  The AAT did not, as had been the case in Tiplady rely upon the possibility of danger from enemy air strikes, enemy submarine or surface vessel attack, or, land incursions from landing parties, to sustain a finding that the veteran had incurred danger in the relevant sense.  Rather, it limited itself to the issue of whether the veteran incurred danger from enemy mines laid in the Torres Strait by the Japanese in early 1942.

34                  The questions the AAT was required to ask itself were :

(a)        whether, in September 1944, there were enemy mines in the waters of the Torres Strait over which the veteran travelled when he rendered operational service;

(b)        if satisfied that there were enemy mines in those waters, whether the veteran, whilst onboard a vessel plying those waters and whilst rendering operational service, incurred danger from those mines in the sense explained by the Full Court in Thompson’s Case.  That is, “was the veteran exposed to, at risk of or in peril of harm or injury from mines laid by hostile forces in 1942?”:  Repatriation Commission v Thompson at 23 - 24;  Repatriation Commission v Burton at 128;

35                  The AAT accepted that the veteran and other service personnel saw a spherical shape which looked like a mine floating not far from the troop ship “Duntroon” which was two days out of Thursday Island and sailing to Brisbane.  The veteran in his evidence said that the object was one hundred yards off to the side of the vessel and that it passed from sight in the time that it took to report its presence to an officer onboard the vessel.  The evidence was that the veteran embarked on the troop ship “Katoomba” at Townsville in North Queensland on 7 September 1944 and that he arrived at Thursday Island on 10 September 1944.  The return voyage on the troop ship “Duntroon” commenced on 23 September 1944 and the veteran arrived in Brisbane on 28 September 1944.  Although the veteran was unable to place the position of the “Duntroon” at the time of seeing the object floating in the sea, it is evident that the ship was, broadly speaking, two-thirds of the way back to Townsville somewhere off the coast of Queensland and sailing through the Great Barrier Reef.

36                  The AAT did not find in its written reasons that the object which was seen from the “Duntroon” was a mine, or if a mine, was an enemy mine.  A perusal of the transcript of the proceedings before the AAT, which resulted in an ex tempore judgment being given, indicates that the AAT consciously declined to make such a finding, being of the view that the presence of enemy mines in the vicinity of Thursday Island was sufficient to establish that the veteran incurred danger from enemy mines when travelling in that area.  The AAT (Mr Muller) said :

“MR O’GORMAN:  ... So on the balance of probabilities, you’d have no difficulty with that particular - - -

MR MULLER:  That it was a mine.

MR O’GORMAN:  That it was a mine.

MR MULLER:  Probably but you’d want to be pushing it to say conclusively it was a Japanese one but, look, if the Japanese laid mines around Thursday Island that seems to me to be incurring danger to go through that area in a ship even if you don’t hit one.  I mean the fact that you don’t hit one - you don’t have to be killed to get the pension, do you:  you just have to incur danger.

MR O’GORMAN:  That’s correct and for those reasons in my submission the applicant should succeed.”

37                  The evidence before the AAT, in the form of an extract from the book “History of Royal Australian Navy 1942 - 1945” by G Heron Gill, was that “HMAS Bungaree” laid defensive minefields in the various passages through the Great Barrier Reef from 1942 to 1943.  The author records that in the period 1 August 1944 to 27 September 1944, two Australian minesweepers, “HMAS Kalgoorlie” and “HMAS Pirie”, swept a total of 491 of those mines from the area.  The veteran in his statements in support of his application to the Commission for the service pension and in a handwritten notation on the extract from the book, stated that the floating mine he saw was in the same waters from which the 491 mines were swept.  Additionally, the report of Robert Piper, the military historian, contained in the reasons for decision of the AAT in Gilgen and Repatriation Commission records that the Royal Australian Naval Records stated “no enemy mines were laid in the Barrier Reef area”, the “HMAS Warrnambool” having been sunk by a mine laid by the minelayer “HMAS Bungaree”:  [2000] AATA 447 at [21].

38                  In light of this evidence, the probabilities were against the object seen by the veteran being a Japanese mine and the AAT was alive to such a probability.

39                  Having excluded the object sighted from the “Duntroon” from its consideration, the AAT asked itself the two questions in relation to the waters of Torres Strait in which the veteran rendered service.

40                  The AAT has answered the first question in the affirmative.  It has answered the second question in the affirmative, describing the danger of striking a mine as “real” and not fanciful, such that sailing ships in the area was a dangerous undertaking at that time.  Inferentially, the AAT has found that the danger of striking a mine in the area was sufficiently real that the veteran incurred danger in the sense of being exposed to, or at risk of, or in peril of harm or injury from the explosion of an enemy mine when he travelled by vessel in the area in question.

41                  The AAT has, as the Commission submitted it should, applied the test laid down in the Thompson Case.  It decided that the veteran satisfied that test and its decision was a finding of fact made on the materials available to it.

42                  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 the waters where he was rendering operational service, is a pure question of fact.  It 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:  Repatriation Commission v Thompson at 25.  There is no error in law simply in making a wrong finding of fact:  Waterford v Commonwealth (1987) 163 CLR 54 at 77.  The presence of the Japanese minefields 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, that enemy mines were present in the waters and constituted a real and not fanciful danger to navigation.

43                  As the AAT did not rely upon the object the veteran identified as a mine being a danger incurred by the veteran for the purposes of s 7A(1)(a)(i) of the VEA when travelling onboard the troop ship “Duntroon”, grounds of appeal 3(d) and 3(f) are not made out.

44                  Grounds 3 (e) and 3(g) in essence contend that the AAT failed to apply the test laid down by the Full Court in Thompson’s Case.  Importantly for ground 3(e), the AAT did not find as a fact that enemy mines “could” have been present in the waters where the veteran sailed.  It found as a fact that such mines were present at that time and constituted a real and present danger to navigation in the area.  It then applied the test laid down by the Full Court to that circumstance.  That being so, grounds 3(e) and 3(g) are not made out.

45                  There being no other grounds of appeal relied upon or argued, the Commission has failed to make out a ground for setting aside the decision of the AAT made 7 December 2001 that the veteran was entitled to be paid a service pension with effect from 3 July 2000.

46                  The application will be dismissed. 

47                  The veteran has incurred costs and legal expenses in the conduct of the proceedings up until his funds ran out and he was left without legal representation.  The Commission should pay such legal costs and expenses as he has incurred.

Associate:

Dated:              20 September 2002