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.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.