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VeRBosity
Journal of the Veterans' Review Board
�Decisions of the
Federal Court of Australia
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Queensland coastal waters - whether operational service outside Australia
Proctor v Repatriation Commission
Einfeld, Carr and Lehane JJ
28 January 1999
[Full Text]
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Mr Proctor lodged an appeal to the Full Federal Court against the decision of Branson J setting aside the Tribunal's decision and remitting the matter for redetermination. (See 14 VeRBosity 48) The Tribunal had found that he had rendered "operational service" within the meaning of section 6 of the VE Act and had accepted that his adenocarcinoma of the prostate was war-caused. In June 1943, while serving in Queensland, he travelled by sea on board an LST from Caloundra to Townsville. The ship sailed outside the three mile territorial limit. The purpose of the voyage was to transport armoured tanks, trucks, ammunition and spare parts to Townsville.
Branson J held that the Tribunal had misconstrued paragraph 6(1)(a) concerning "continuous full-time service outside Australia" and had erred in law in that it had failed to determine the "essential character" of his service. (See Repatriation Commission v Kohn (1989) 87 ALR 511). Paragraph 6(1)(a) was to be construed so as to exclude mere transitory passages outside Australia. According to her Honour, the Tribunal 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 within the meaning of paragraph 6(1)(a).
Appeal grounds
The main grounds argued on appeal to the Full Court were that:
- there was evidence before the AAT from which it could be found that the service rendered was operational service; and
- it was outside the power of the Court to interfere with that finding of fact by the AAT.
Mr Proctor sought to contrast his position with that of Mr Kohn whose time spent outside Australia was merely during transit from one place in Australia to another.
Full Court's conclusions
The Full Court disagreed with Branson J'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). Einfeld and Carr JJ (with whom Lehane J substantially agreed) said:
"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, 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."
The Full Court concluded that the case raised essentially factual issues which were for the Tribunal to determine. A fair reading of the Tribunal's reasons showed that it had understood all the material facts and relevant law. It had then made 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 the purpose of Mr Proctor's service on the vessel. Accordingly, the Court should not interfere with the Tribunal's conclusions.
Formal decision
The Full Court allowed Mr Proctor's appeal and set aside the orders made by Branson J.