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No.22 October 2008

Roper v Repatriation Commission

[2008] FCA 1132

COURT Federal Court, Melbourne
JUDGE  Tracey J
DATE OF DECISION 30 October 2008
DECISION Appeal dismissed
ISSUES Whether rendered ‘continuous full-time service outside Australia’

Facts

Mr Roper served in the RAAF during World War 2 entirely within Australia except for training flights on 11 and 23 April 1945 in which he flew to Middleton Reef and back. Middleton Reef is located approximately 600 kilometres east of Coffs Harbour. Mrs Roper claimed a war widow’s pension. The claim was rejected by the Commission and the decision was affirmed on review by the Veterans’ Review Board (VRB). In making their decisions, both the Commission and the VRB found that Mr Roper had not rendered operational service. Mrs Roper appealed to the Administrative Appeals Tribunal (AAT). As a preliminary matter, the AAT held a hearing to determine whether or not the veteran had rendered continuous full-time service outside Australia during World War 2 (and thus rendered operational service). The AAT held that he had not rendered operational service. Mrs Roper appealed that interlocutory decision to the Federal Court.

The Tribunal’s reasoning

The AAT found that the flights were part of training in preparation for being posted overseas (that posting did not eventuate). The AAT found that there were no enemy submarines in the area, and the risk to being exposed to enemy contact was low. During the flight bombs were dropped and the aircraft’s machine gun was fired. The AAT concluded that the essential character of the trips was one of training and familiarisation with the Liberator aircraft. It was not one of being on operational service.

The Court’s Consideration

Justice Tracey referred to the judgment of Hill J in Repatriation Commission v Kohn, which he said provided guidance on the characterisation of service as to whether it constitutes ‘continuous full-time service outside Australia.’ Tracey J said:

‘[23] … It was open to the Tribunal to determine that the relevant service of Mr Roper fell into the second category of case identified by Hill J, namely, that in which when "looked at overall, notwithstanding that at a discrete moment of time the service of the member was outside Australia, the service is properly as a matter of ordinary English language to be seen as having an essential character of continuous full-time service within Australia ...". The training base was in Australia. The training flights left from and returned to the Australian base. The duration of those parts of the flights which took place outside Australian territorial limits were relatively short. In these circumstances it cannot, in my opinion, be said that there was no evidence to support the two impugned findings. …
[27] The Tribunal directed itself consistently with Hill J’s judgment in Kohn. It was required to characterise Mr Roper’s flights to (or towards) Middleton Reef. The amount of time Mr Roper spent outside Australia during these flights was a matter to be considered in forming this judgment. This was a fact finding exercise. It is clear from the principles identified by the Tribunal … that it correctly understood the task it was required to perform. It did not treat the time spent outside Australia as a relevant principle. Rather it identified this as a matter which, in an appropriate case, would assist in determining the essential character of a veteran’s service. The Tribunal’s reasoning at paragraphs [44] to [47] demonstrates that it considered the evidence before it in light of the principles which it had distilled from decisions of this Court.’

Tracey J indicated that the appeal had been taken prematurely because the AAT had not delivered its final decision in the case. He said:

‘[35] In the present matter the Tribunal has done no more than decide that Mr Roper did not render operational service within the meaning of s 6A(1) of the VE Act and that the issues in the case must be decided according to the standard of proof provided for in s 120(4) of the VE Act. The Tribunal has yet to determine the ultimate question raised on Mrs Roper’s application, namely, whether or not she is entitled to a pension, under the VE Act, by reason of her husband’s service in the Defence Force during World War II. That question may be resolved favourably to her. The Tribunal’s decision on the standard of proof is not in any sense dispositive of the application. If Mrs Roper succeeds in her application to the Tribunal the preliminary decisions which she presently seeks to challenge will have had no adverse bearing on the outcome of her case.’

Formal decision

Justice Tracey dismissed the appeal and ordered Mr Roper to pay the Commission’s costs.

Editorial Note

Continuous full-time service outside Australia

Other Court cases that have considered this provision include Kohn [1989] FCA 244, Proctor [1999] FCA 32 and Roscoe [2003] FCA 1568. These cases agree that there is a process of characterisation required of the nature of the service that was being rendered while the person was outside Australia, such that it can be said that the person was rendering ‘operational service’. In Re Collier [2004] AATA 663, the AAT applied these principles, and found that the veteran had rendered operational service:

[43] We find that the "essential character" of the voyage … on SS Katoomba was that it was a voyage outside Australia, in an area of enemy submarine activity, at a time when vessels were being torpedoed in the same waters in which the vessel was sailing. We find that the purpose of the voyage was to move a signals unit to an area where it was required to support combat operations in New Guinea. We find that the voyage took nine days and SS Katoomba was outside Australian waters for the whole of the journey except when leaving and arriving port. We find this matter is distinguishable on the facts from Kohn. Mr Kohn seems to have been travelling alone, but Mr Collier was travelling in company with his Division and with all the stores and equipment of his Division. He was not travelling on a training exercise, but for the purpose of establishing a signals unit, where it was required to support combat operations in New Guinea. His voyage was of a longer duration than that of either Mr Proctor or Mr Kohn. He was outside Australian waters and the voyage was a significant episode of service in its own right, not a mere transitory passage outside Australia. As in Proctor there was significant exposure to danger of enemy combat during the voyage. We find the facts in this matter are much closer to those in Proctor than to those in Kohn

Practical application

Relevant considerations,  some of which may involve questions of degree, are:the purpose for being outside Australia;

All Practice Notes