Price v The Repatriation Commission [2003] FCA 339 (16 April 2003)

Last Updated: 2 May 2003

FEDERAL COURT OF AUSTRALIA

Price v The Repatriation Commission [2003] FCA 339

REPATRIATION COMMISSION - administrative review of Tribunal finding - conflict between expert testimony of wartime historian and deceased's oral narratives to his family members during his lifetime - finding in favour of expert testimony open on the evidence placed before the Tribunal - meaning of "interned" - Tribunal finding open on material in evidence.

Compensation (Japanese Internment) Act 2000 (Cth) ss 3 and 4

Veterans' Entitlement Act 1986 (Cth) s 119(1)(h)

Acts Interpretation Act 1901 (Cth) ss 15AA and 15AB

Repatriation Commission v Kohn (1989) 87 ALR 511

Repatriation Commission v Bey (1997) 79 FCR 364

JOAN ELIZABETH PRICE v THE REPATRIATION COMMISSION

N 1103 OF 2002

CONTI J

16 APRIL 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1103 OF 2002

BETWEEN:	JOAN ELIZABETH PRICE APPLICANT
AND:	THE REPATRIATION COMMISSION RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	16 APRIL 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Application dismissed;

2. No order as to costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1103 OF 2002

BETWEEN:	JOAN ELIZABETH PRICE APPLICANT
AND:	THE REPATRIATION COMMISSION RESPONDENT
JUDGE:	CONTI J
DATE:	16 APRIL 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The statutory entitlement to claim

1 The applicant ("Mrs Price") seeks administrative review of the decision of Ms N Bell, a Member of the Administrative Appeals Tribunal ("AAT") made on 20 September 2002, whereby the Member affirmed the decision of the respondent Repatriation Commission ("the Commission") to refuse the claim of Mrs Price for a lump sum payment of $25,000.00 under the Compensation (Japanese Internment) Act 2001 (Cth) ("the Internment Act"), made in her capacity as widow of the late George Raymond Price ("the Veteran") upon the basis that the Veteran was interned by the Japanese during World War II.

2 The Commission had found that the Veteran enlisted in the Australian Imperial Forces on 19 May 1941, and had rendered full time service, including service in Malaya and later in New Guinea, until he was discharged on 11 July 1946. The Commission further found that the Veteran was present in Singapore on 5 October 1941 following active service in Malaya, and had returned to Australia on 7 March 1942 on board a Dutch ship named the Zaandam. Those findings were uncontroversial in the AAT proceedings. What was controversial is what occurred in relation to the Veteran from about the time of the fall of Singapore, which occurred after his arrival there on 5 October 1941, and before he arrived back in Australia on 7 March 1942.

3 The claim of Mrs Price is based upon s 4(1) of the Internment Act, which provides as follows:

"4 Eligibility for compensation payment

...

Partner of deceased veteran

(1) A person is eligible for a compensation payment in respect of a deceased veteran if the following conditions are satisfied:

(a) the person was alive at the beginning of 1 January 2001;

(b) the veteran died before 1 January 2001;

(c) the person was a partner of the veteran immediately before the veteran's death;

(d) the veteran was interned by Japanese military forces at any time during the designated war period."

4 The s 4(1)(d) expression "interned" is earlier defined in s 3 of the Internment Act as follows:

"(a) confined in a camp, building, prison or other place (including a vehicle); or

(b) restricted to residing within specified limits."

The s 4(1)(d) expression "designated war period" is defined in s 3 of the Internment Act as "the period beginning on 7 December 1941 and ending at the end of 29 October 1945".

5 The Second Reading Speech of the Minister for Veterans' Affairs and Minister Assisting the Minister for Defence, made in the House of Representatives on 22 May 2001, contained the following:

"This bill, the Compensation (Japanese Internment) Bill 2001, will help give effect to this government's commitment in the 2001-02 federal budget to recognise the hardship and suffering endured by those Australians who were held captive by Japan during World War II.

Following the fall of Singapore in 1942 and during the war in the Pacific, more than 22,000 Australian men and women were taken prisoner by the Japanese.

By war's end, more than 8,000 Australian POWs - 36 per cent of those taken prisoner by the Japanese - had died.

For up to 3&half years, Australian service personnel and civilians suffered in the most horrific conditions imaginable.

They endured starvation and brutal treatment at the hands of their captors.

They were forced into slave labour on projects like the Burma-Thailand railway.

They were sent on forced marches, such as the notorious death march from Sandakan to Ranau, during which more than 2,000 Australian and allied prisoners of war died.

In recognition of their unique ordeal, the government will make a one-off cash payment of $25,000 to all living Australian prisoners of war and civilian detainees and internees who were held by Japan during World War II.

This ex gratia payment will also be made to the surviving widows and widowers of former prisoners, acknowledging those who lost their spouse to the POW camps or supported their partner on their return from the war.

The payment will be made to eligible veterans, civilians, widows and widowers who were alive on 1 January 2001. In those cases where an eligible recipient has died since that date, the payment will be made to their estate.

Arrangements are being made by regulations under the Veterans Entitlements Act 1986 to make the payment to those former POWs and war widows who receive payments through my department.

This bill will enable the payment to be made as soon as possible to other eligible civilians and widows.

This budget initiative has the widespread support of both the veteran and general communities.

It is my hope that it will bring some degree of comfort to those who suffered so greatly for their service to our nation, Australia."

As will later appear, the applicant relied upon the expression in the first paragraph above, namely "held captive by Japan", which purports to pick up the defined meaning of "interned" under s 3 of the Internment Act.

Issue arising before the AAT and the resolution thereof

6 There was no dispute before the AAT that all but the requirements of s 4(1)(d) of the Internment Act were satisfied by the applicant in relation to the Veteran. The issue which arose before the AAT was whether the Veteran was "interned" by Japanese military forces at any time from 7 December 1941 to 29 October 1945, being the period of time stipulated by the statutory definition of "designated war period". That statutory definition of "internment" was thus at the heart of the dispute before the AAT. In resolving that issue in favour of the Commission, the AAT found as follows:

"78. The speech refers to being "held" or "held captive" by the Japanese. It refers also to "horrific conditions", "starvation" "brutal treatment" and "slave labour". These are not words that properly attach to a status (as a prisoner of war) that may arise automatically by virtue of the operation of international or military law or to a relatively fleeting or "discrete moment of time" (Kohn (supra)). It refers to ordeals at the hands of captors. The essential character of the Veteran's time in Singapore after its fall is not one of being confined or restricted or being held captive.

79. The Tribunal appreciates the danger and suffering involved in the Veteran's escape from Singapore. The risk and courage involved in such a course is extraordinary. However, the benefit conferred by the Act is confined to those who were "interned". It does not extend to those who escaped, albeit bravely, but were not interned.

80. For the reasons set out above, the Tribunal concludes that the Veteran was not interned by Japanese military forces within the meaning of sections 3 and 4 of the Act."

When the AAT used the above expression "escape from Singapore", it did not do so in the sense of escape from prior "internment" in Singapore, but rather in the sense of getting away from Singapore before capture by the Japanese military forces.

The AAT's factual findings made in support of its resolution of the issue which arose

7 Tendered to the AAT on behalf of the applicant were 9 statements in writing made by close relatives of the Veteran, including the applicant Mrs Price, as to what the Veteran had verbally told them during his lifetime concerning the circumstances in 1941 and 1942 of his undoubted escape by sea from the Malaya/Singapore region of south-east Asia to Australia, at a time when he was serving in the Australian armed forces. The substance of those statements, which with one exception took the form of statutory declarations, were purportedly summarised in [10-20] of the AAT's reasons as follows (together with, in the case of the son-in-law Mr Williamson and the daughter Ms Price, their oral evidence to the AAT. None of the close relatives gave oral evidence to the AAT):

"10. The Applicant's statement is that the Veteran told her that he initially enlisted underage and later enlisted under the name George Brady with the 2/30 Battalion at Tamworth and landed in Singapore in late 1941. She said he spoke of going over the causeway between Malaya and Singapore and said that after Singapore fell he was made to line up in rows with other allied soldiers while the Japanese guards took their watches, etc while butting them with their rifles. She said the Veteran told her he thought he wouldn't last as a prisoner and with a few mates he obtained a rowing boat and rowed to an island near Singapore where they boarded a boat manned by Chinese, which was torpedoed by the Japanese and they ended up in the water for a couple of days. She said the Veteran told her that he and his mates were picked up by a Dutch ship and eventually landed in Perth.

11. Mr Stanley Price is the brother of the Veteran. He attached to his statement a copy of a postcard written by the Veteran to his Aunt in 1942 from Malaya and a copy of a photograph of the veteran and some army friends at Padang in February 1942. Mr Price stated that the Veteran had told him that he and three or four others had commandeered a Chinese boat by killing the owner to get off Singapore Island after it had fallen and that he had escaped with a friend called "Scotty" Grey, who later became a close friend of the family although he and the Veteran later argued and ceased to be friends.

12. Mr Nicholas Price, the Veteran's grandson, said the veteran told him he was in a small boat off one of the islands north of Australia and after a patrol boat began bombing them, the Veteran and the other occupants of the boat jumped overboard and began to swim for shore. Mr Price said the Veteran told him that two of the men in the boat broke their necks when they jumped into the water and the Veteran and one or two others were stranded in the water for a long time and the Veteran developed a very bad rash on his stomach. Mr Price said the Veteran told him that he was picked up out of the water by a Dutch ship that was originally heading for Darwin but then, believing Darwin had been invaded, headed for Perth.

13. Mr Chris Price, the Veteran's son, said his father told him about his time in Singapore before, during and after the surrender and said that the Veteran, with all other POWs, was forced to form "a guard of honour" for Japanese officials and had all their valuables removed by the guards who knocked to the ground anyone who resisted. He said his father escaped with others whilst on a work party, overpowering the guard and hiding in the dense undergrowth. He said they then stole a boat and got away from Singapore. He said by the time the Veteran was rescued out of the water by a Dutch ship, he was ill with malaria.

14. Ms Mary Williamson, the Veteran's daughter, said her father told her he had escaped from Changi by not returning after a work party, that he stole a boat and was hidden by a family for a short time and was rescued by a Dutch vessel after being stranded in the water for several days. She said her father told her that when the 2/30^th battalion were taken as prisoners of war they were made to stand outside a Red Cross hospital while Japanese soldiers entered the wards and bayoneted every second solider in their beds. She said the Veteran told her that their screams haunted him every day of his life. She said he was very ill with malaria when he arrived in Fremantle.

15. Mr Gregory Price, the Veteran's son, said his father told him that when Singapore fell the Veteran and the other soldiers were paraded before the Japanese officials as prisoners of war and that allied soldiers outnumbered the Japanese guards by 5:1. He said his father told him that his father and several men were on a work party a long way from the camp when they overpowered the Japanese guard, hid and eventually stole a boat from a Chinese civilian. They then made their way out of Singapore Harbour, not knowing where they were headed and were finally rescued by a Dutch ship. He said his father often spoke of a man called "Scotty" who had escaped with him and was admitted with him to a Perth hospital.

16. Ms Heddy Price, the Veteran's daughter-in-law, said the Veteran told many stories about the war. She stated that he told a story about escaping from Changi in the early days of the fall of Singapore. She said he spoke of atrocities carried out by the Japanese army and his determination not to be a prisoner for long because of his concern that he would not survive. He said he escaped in a Chinese fishing boat that capsized, leaving him and a companion stranded in the water for several days until he was rescued by a passing hospital ship. He said the ship was then ordered not to pick up anyone else because the enemy was nearby.

17. Mr John Williamson, the Veteran's son-in-law, said in his statement that the Veteran told him that he had been taken prisoner by the Japanese after Singapore fell and that he escaped while on a work party, stole a boat and managed to leave the island. He said the Veteran told him he was stranded in the water for three days because ships were reluctant to stop for fear of being torpedoed. He said he was very ill when he was rescued.

18. In oral evidence to the Tribunal, Mr Williamson said he did not recall who the Veteran said he stole the boat from and that the Veteran did not mention a Chinese family helping him or mention the killing of a Chinese man.

19. Ms Elizabeth Price, the Veteran's daughter, said in her statement that her father had told her that he had been at Raffles Hotel when Singapore surrendered and spoke of the chaos at Singapore at that time. She said he told her than a Chinese family had helped him to escape from Singapore after it fell to the Japanese and that he had known the family because he had corresponded with the daughter of the family before the war and had contacted her when he first arrived in Singapore. According to Ms Price, the Veteran said he was stranded in the water for a long time before being rescued by the Zaandam and he was very fortunate because many others were left in the water because there were reports of Japanese submarines in the area.

20. In her oral evidence to the Tribunal, Ms Price said she would have been about 9 or 10 years old when her father first talked to her about his war experiences. She said that now she has read the official history of the war she realises that what she thought was a reference by her father to Raffles Hotel was in fact a reference to Raffles College. She also said that she believes the help given to her father by the Chinese family he knew was to get him a boat. She said she was not aware that from 1973 ex-prisoners of war could obtain "Gold Cards" from the Department of Veterans' Affairs and thought that her father may not have considered himself entitled because he had not actually been in Changi. She said her father was a member of his local RSL and in later years attended ANZAC marches.

8 To those summaries of the family testimonies to the AAT, I would add the following supplementary evidentiary material placed before the AAT:

(i) The following further oral testimony of Mr John Williamson:

"I quite often tried to get information out of him. I was quite interested in the stories.

Well, they were all separate comments, nothing real concreted as one story... I recall quite clearly that there was some kind of a work party he was in... And then he said he got away... and he stole a boat. He didn't speak a lot about that either because I had the feeling he wasn't proud of how he did it, or the way he got the boat..."

(ii) In the course of her oral testimony, the Veteran's daughter Ms Elizabeth Price, who is incidentally a solicitor by profession, and who said that she helped her mother prepare the application for review to the AAT, was cross-examined concerning her father not having mentioned anything about being a prisoner of war at any stage, in the context of his "several approaches to the Department in terms of pension and benefits". In re-examination, Ms Price said that "I expect that he would've thought that technically he may not have been entitled". It is unclear from the cross-examiner's question as to what benefit or additional benefit could have been the subject of any claim by the Veteran which was not made during his lifetime. When asked by the Member in any event what she meant by "technically", she replied as follows:

"Well, if he wasn't actually in Changi, but he was there when it surrendered, when Singapore surrendered but he may not have been taken to Changi and imprisoned and he may have had it in his mind that he would've had to be behind bars."

9 The AAT described that particular testimony as being "to the effect that her father did not claim any of the benefits available to prisoners of war prior to his death because he did not consider himself to be on the same footing as those who had been captured and taken prisoner by the Japanese". In any event, I do not think that Ms Price's testimony extracted above excluded the circumstance of physical capture by the Japanese in Singapore, albeit that he may not have been imprisoned in the well known Changi prisoner of war camp as such.

10 The AAT nevertheless observed, in relation to that testimony of Ms Price, that "[o]n first sight, and taking the ordinary meaning of the words, the provisions of the Act lead the Tribunal to a similar view, that is, that the Veteran was not on the same footing as those who were captured and taken prisoner by the Japanese", though whether the AAT intended the description "on the same footing" to be synonymous with the statutory description of "interned" is unclear.

11 Tendered to the AAT on behalf of the Commission was a report compiled by a qualified historian Mr Brendan O'Keefe of 27 April 2002, which contained a detailed chronology of dates, locations and activities involving or conceivably involving the Veteran, and bearing upon the applicant's claims, in respect of the period of time from 19 May 1941, when the applicant enlisted in Sydney, to 24 November 1942, when his rank of corporal was confirmed, together with, by way of footnotes, the provenance of those events. The chronology included the period from 15 January 1942, being the date of landing of the Japanese troops on the west coast of Johore on the Malaysian Peninsula, and 15 February 1942, being the date of formal surrender of Singapore to the Japanese forces.

12 The report of Mr O'Keefe postulated the following possible times and avenues of the Veteran's escape from Singapore; in the light of the abovementioned family accounts and independent historical events:

(i) from Changi after the institution of work parties on 22 February 1942;

(ii) directly from Changi;

(iii) after the surrender and without moving to Changi on 17 February 1942; and

(iv) before the official surrender at 8.30 pm on 15 February 1942.

13 Mr O'Keefe's report examined each of those possibilities, citing historical sources in relation to the veracity thereof, and after discussing the suggestion advanced on behalf of the Price family that the Veteran escaped from Japanese custody after the surrender in Singapore, and before being taken into the Changi prison complex, the report concluded as follows:

"The alternative is that Mr Price managed to evade capture after the surrender, perhaps taking refuge with the Chinese family he knew before he escaped. If this were the case, he would not then have ever been in the hands of the Japanese (even though Australian forces as a whole on the island had surrendered). On current evidence, this appears to me to be the most likely interpretation. The next most likely possibility, it seems to me, is that he escaped some time between the overrunning of `X' Battalion on 11 February and the surrender on the evening of 15 February. Rather less likely is the possibility that he escaped from Japanese custody and got away some time between the surrender and the move to Changi. As for the other two possibilities - an escape from a work party sent out from Changi or from Changi itself - both seem to me to be highly improbable."

14 The AAT thereafter provided the following summary of Mr O'Keefe's oral evidence given to the AAT:

"31. Mr O'Keefe's oral evidence to the Tribunal was, in addition to confirmation of the contents of his report, that there is a reference in the Veteran's service records to the "X Battalion" and the only available conclusion is that he was a member of that battalion. He said the X Battalion was a hastily thrown together unit of about 300 men who were unattached or separated from their units or who were recovering from illness and they were sent off to try and stem the Japanese advance. Mr O'Keefe said they were overrun on the night of 11 February 1942 and the unit ceased to exist after that.

32. Mr O'Keefe said, in answer to the question of whether, in his opinion, the Veteran was ever a prisoner of war even for a brief period, that the most likely scenario was that the Veteran got away shortly after the surrender and the question then arises as to whether he was ever in Japanese hands. He said that, while there are accounts of approximately 300 people escaping, there are no records of any Australians actually being in Japanese hands and then getting away. He said the typical story is that they hid out somewhere around the waterfront looking for boats for their escape.

33. He also said that all Dutch ships were ordered to leave the port of Tjiltjap on the southern coast of Java on 27 February 1942. In relation to Exhibit R2, Medical examination for Reclassification, which refers to malignant malaria and notes evacuation and reaching Perth by April 1942, Mr O'Keefe said that on the face of the document it looked as though the Veteran may have been medically evacuated from Singapore after the disintegration of the X Battalion and may have received official permission to leave. He said he was only aware of official evacuations taking place before the surrender. He also said that evacuation was not inconsistent with the Veteran's admission to the detention centre on his return to Australia because there was a great deal of suspicion at the time that many Australians had deserted at the fall of Singapore. He noted that the Veteran had been discharged from detention very quickly and said that indicated that he either left Singapore with permission or that as his unit had disintegrated he was free to leave.

34. In cross-examination, Mr O'Keefe said that, with the exception of Exhibit R2, there had been nothing in the research he had done to suggest, and no record of, the Veteran having been evacuated from Singapore. He also agreed that there is no record of the Zaandam having called at Singapore and collected sick and wounded there or of evacuating patients from a convalescent depot or of the Zaandam calling at other ports. In re-examination Mr O'Keefe said that if evacuation took place then it would not be unusual for the journey from Singapore to Java to have taken two weeks."

15 Additionally placed before the AAT were the following documents, inter alia, which were potentially material:

(i) a copy of a letter dated 6 May 1955 from Herbert Grey to the Department of Veterans' Affairs, which stated, inter alia, that Mr Grey was posted in 1941 to the Loyal Regiment in Malaya, arrived in Singapore in October 1941, remained there until the fall of Singapore, and escaped via Sumatra to Java, and from there to Australia (Mr Grey was said by the Veteran's sons to have been one of the men with whom the Veteran escaped, and who retained an association with the Veteran for some time after the war); the text of that letter, sent in handwriting to the Australian Army in 1955 from Mr Grey's address in Victoria, was as follows (as best as I could decipher the handwriting from the exhibited copy):

"I would like to place a claim for service medals to which I am legally entitled.

I enlisted in the British Army in Feb 1939 joining the Loyal Regt. My number was 3857083.

I was stationed in England until August 1941 when I was posted to the 2^nd Batt Loyal Regt in Malaya arriving in Singapore in Oct 41. I was in Malaya until the fall of Singapore and escaped to Sumatra from there to Java, and from there Australia. Where I enlisted and I the AIE I was stationed in Aust until posted to Moratai in 1945, from there to ? and from there to Raboul. I returned to Australia in March 46 having spent one year overseas.

According to the pamphlet enclosed.

Entry into Malaya Qualifies me for the Burma ? and 1939-45 Star.

And my service in England from 39-41 makes me eligible for the Defence medal.

Hoping to hear from you in the near future. I am

Yours faithfully

H. Grey."

(ii) a so-called medical case sheet concerning the Veteran, relating to his admission to hospital on 30 December 1941 with sub-testian malaria, which noted that the Veteran had been with the 2/30^th battalion, that until 4 January 1942 he remained febrile, that he began thereafter to improve, that he was prescribed a certain medicinal treatment, and was discharged on 13 January 1942 to the 2 Convalescent depot (ie about 1 month before the fall of Singapore).

16 In reaching her conclusion extracted in [6] above, the AAT member recorded the following matters in her reasons for decision which she regarded as having been established before her:

(i) on the basis of the statements by members of the Veteran's family, Mr Grey's letter and Mr O'Keefe's report, the Veteran "left" Singapore, proceeded across Sumatra, and ultimately boarded the Zaandam, and arrived back in Australia in Fremantle on 6 or 7 March 1942;

(ii) the unlikelihood that before doing so, the Veteran escaped from Changi, either directly, or from a work party, and in any event of having crossed Sumatra in less than 6 days; "particularly persuasive... are the absence of any record of any Australian having escaped from Changi or of any crossing of Sumatra in less than six days";

(iii) to cite precisely as follows, "[i]t is only the statements of Mrs Heddy Price and Ms Mary Williamson that say the Veteran was in Changi. Others, including Mr Chris Price, Mr Gregory Price and Mr Williamson, said that he had escaped from a work party. Ms Elizabeth Price's evidence was that the Veteran had not been at Changi while other family members are silent on the matter. In view of the historical and practical inconsistencies of this version of events, the Tribunal cannot be satisfied that the Veteran escaped from Changi or from a Changi work party";

(iv) it was unlikely that the Veteran was evacuated from Singapore, notwithstanding the entry in the historical record "Medical Examination for Reclassification" (which the AAT observed to have contained "some other errors"); that was because according to Mr O'Keefe, there was no record of the Zaandam vessel having called at Singapore and collected sick or wounded or evacuated patients from a convalescent depot;

(v) it was most likely that the Veteran escaped after the surrender of Singapore and before capture by Japanese forces, being a likelihood consistent with other known contemporaneous events and conditions relied upon by Mr O'Keefe, such as reports of soldiers escaping in small vessels from Singapore Harbour, and with the absence of record of any Australians ever having been in Japanese hands and "then getting away"; and

(vi) no reports having been found by Mr O'Keefe of any Australians escaping after falling into the hands of the Japanese, and before being taken to Changi, in contrast to known contemporaneous events and conditions, such as soldiers escaping from small vessels in Singapore Harbour, and given the account that the Veteran escaped in the company of some other soldiers, "... such an escape would have to have been achieved by all of those soldiers", which would have made the report of the escape, had it taken place, more likely.

It will thus be appreciated that taking those findings as a whole, in addition to finding that the Veteran did not escape from Changi, the AAT Member also found that the Veteran did not escape from a Japanese army work party, whether emanating from Changi or otherwise.

17 Those findings fall to be compared with the precise testimonies of the family placed before the AAT, which may be summarised as follows:

(i) whilst only the daughter Mrs Mary Williamson and the daughter-in-law Mrs Heddy Price attributed to the Veteran an assertion of escape from Changi, nevertheless three of his other close relatives, namely his sons Chris and Gregory Price, and the son-in-law John Williamson, attributed to the Veteran an account of an escape after capture by Japanese soldiers, and whilst engaged on a work party, and additionally in the case of Gregory, he recorded that the work party in which his father was engaged was "a long way from the camp";

(ii) the widow of the Veteran Mrs Price attributed to the Veteran an account of becoming a prisoner of war prior to his escape, that is to say, being "made to line up in rows with other allied soldiers...";

(iii) The Veteran's brother Stanley attributed to the Veteran an escape with his friend "Scotty Grey", but he could not recall any of the detail, saying "unfortunately I am now 80 years old and cannot remember too many details of 60 years ago"; and

(iv) the Veteran's daughter Elizabeth Price attributed to her father the statement that "... a Chinese family helped him to escape".

18 All of the family versions, except those of the Veteran's brother Stanley and his daughter Elizabeth, were therefore to the effect that the Veteran was a prisoner of war at the time of his escape, and those remaining two versions of the brother and daughter are not necessarily or inherently inconsistent with that critical circumstance. Moreover, the absence of reports postulated by Mr O'Keefe of any Australians escaping after falling into the hands of the Japanese was not an inherently conclusive factor, albeit a matter of considerable relevance that the AAT was entitled to take into account. However, the notion of escape whilst a member of a work party, if it had been accepted by the AAT, would imply that the Veteran was by then a prisoner of war.

19 The findings of the AAT, in relation to what may be described as the family testimonies, have in my opinion the following shortcomings:

(i) The widow Mrs Price spoke of the Veteran becoming a prisoner of war prior to his escape, which the AAT did not at least explicitly refer to;

(ii) the daughter Ms Elizabeth Price did not in fact state that her father had not been in Changi, nor did she do so implicitly.

Further, it was not correct for the AAT to speak of "historical and practical inconsistencies" inherent in the family statements, at least in the sense that any one or more thereof contradicted any other or the others. For example, daily work parties of prisoners journeying outside of the perimeters of Changi was an apparent incident to imprisonment in Changi for Allied prisoners of war. Moreover, the fact of the silence of the daughter Elizabeth Price on the subject of her father becoming a prisoner of war did not mean that her father gave her any contradictory version during his lifetime.

20 Having concluded that it was more likely that the Veteran escaped following the surrender of Singapore, but before capture by the Japanese, the AAT next addressed the meaning of "interned", as defined in s 3 of the Internment Act (see [4] above), and recorded the following submissions made on behalf of Mrs Price to the AAT:

(i) at the moment of unconditional surrender of the Allied forces in Singapore, the Veteran was "confined to a... place" within the s 3 definition of "interned" (set out in [4] above), in that he became thereby a prisoner of war;

(ii) that was because the Veteran thereby acquired the status of a prisoner of war; in that context, the applicant's legal representative cited to the AAT the principle of military law (Wigmore p 379) to the effect that at the time of a military surrender, "all troops remain in positions occupied at the time of cessation of hostilities pending further orders";

(iii) the ensuing forced march of the Veteran to Changi on 17 February 1942 had the effect of confining the Veteran to a place, within the stipulation of the legislation, until his subsequent escape, whether that occurred on the same day or otherwise; and

(iv) the legislation imposed no minimum time for which a person must have been interned in order for there to be qualification for receipt of the subject benefit.

Those submissions so recorded by the AAT did not explicitly refer to the possibility of escape from a work party engaged outside of Changi, but in the context of the reasons for decision as a whole, that possibility was also taken into account by the AAT and rejected.

21 The AAT next considered whether assistance was to be gained in determining the statutory meaning of the word "interned" from extrinsic circumstances, by virtue of the components of ss 15AA and 15AB of the Acts Interpretation Act 1901 (Cth) ("the Interpretation Act"). Addressing firstly the text of par (b) of subs (1) of s 15AB, the AAT was unable to identify anything ambiguous or obscure in the provisions of ss 3 and 4 of the Internment Act, notwithstanding (I would observe) the generality of the expression "or other place" in s 3(a) thereof, nor was the AAT able to identify any manifestly absurd or unreasonable result flowing from the operation of s 3 generally to the circumstances of the Veteran.

22 However, the AAT considered that resort to par (a) of subs (1) of s 15AB of the Interpretation Act was appropriate, in order to "confirm" that the meaning of "other place" in s 3 of the Internment Act was the ordinary meaning conveyed thereby, particularly if account be taken of the purpose or object underlying the Internment Act, and moreover that to do so would produce an interpretation which would best promote that purpose or object to the Internment Act in conformity with s 15AA of the Interpretation Act. To undertake that course, so the AAT considered, could assist to expose the essential character of the Veteran's time spent in Singapore after the surrender, and the nature or implications of his escape. An analogy was drawn by the AAT between the subject circumstances and those disqualifying circumstances distilled by Hill J in Repatriation Commission v Kohn (1989) 87 ALR 511, albeit that the issue there arising concerned pension entitlements arising under the Veterans' Entitlements Act 1986 (Cth) ("the Veterans' Act"), and not a "compensation payment" under the Internment Act.

23 Consequently, the AAT considered that it was appropriate to have regard to expressions appearing in the Second Reading Speech to the Internment Act, including those of "horrific conditions", "starvation", "brutal treatment" and "slave labour", as well as the preceding expression "held captive", the same not being in the AAT's opinion "... words that properly attach to the status of a prisoner of war that may attach or arise automatically...". The AAT concluded that "the essential character of the Veteran's time in Singapore after its fall is not one of being confined or restricted or held captive" for the purposes of the Internment Act, the expression "held captive" being (as just indicated) also used in the Second Reading Speech. The AAT accepted the fact of danger and suffering involved in the Veteran's escape from Singapore, but found that the s 3 definition of "interned" in the Internment Act did not extend to those who escaped back from Singapore to Australia, however bravely, and were not thus left behind in a prisoner of war camp such as Changi.

The contentions advanced on behalf of Mrs Price as applicant for review of the AAT decision and the Court's response

24 Counsel for Mrs Price contended to the Court that the AAT erred in law by failing to apply or else inadequately applying s 119 of the Veterans' Act (which is incorporated into the Internment Act by virtue of s 9 thereof) to the evidentiary material placed before the AAT, and in particular to the statements in writing provided by members of the Veteran's family. That evidentiary material was said to be precisely on point to the resolution of the issues of fact which the appellant was required to establish, but which the AAT was said to have declined to take into account, in contravention of s 119(1)(h) of the Veterans' Act. The text of subs 119(1)(h), so far as is material, is reproduced below:

"119 Commission not bound by technicalities

(1) In considering, hearing or determining, and in making a decision in relation to:

(a) a claim or application...

...

the Commission:

(h) without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:

(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and

(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities."

25 The contentions advanced on behalf of Mrs Price were not entirely consistent, but are susceptible to summary as follows:

(i) section 119(1)(h) required the AAT to take into account evidentiary hurdles, typically of the kind encountered by Mrs Price in the proceedings; in so far as reliance was placed by Mrs Price on the hearsay testimonies of her family members. However, the same was treated as admissible evidence in any event;

(ii) although the AAT found that "there is no record of any Australians ever having been in Japanese hands and then getting away", the AAT nevertheless appeared to take into account that "the absence of such records may be due to destruction, the passage of time, the chaos of wartime and other factors and that such matters should, pursuant to section 119 of the Veterans' Entitlements Act, be taken into account by the Tribunal";

(iii) despite the circumstances in (i) and (ii) above acknowledged by the AAT, the AAT said that it could not be satisfied that the Veteran had escaped after being captured, simply because of the absence of any reports of Australians escaping after being in the hands of the Japanese; and

(iv) the AAT erred in law in failing to find that the Veteran had escaped from Singapore after being captured by Japanese forces, in circumstances where the evidence presented to the AAT on behalf of Mrs Price duly established that the Veteran had been, to adopt the words of s 3(a) of the Internment Act, "confined in a place".

26 In the presentation of its submissions, counsel for Mrs Price contended that the same in no way offended the following approach taken by a Full Court in the Repatriation Commission v Bey (1997) 79 FCR 364 at 373 in relation to the operation of s 119(1)(h) of the Veterans Act:

"... Section 119(1)(h) requires the Tribunal to take into account any difficulties that lie in the way of ascertaining the existence of any fact, matter, cause or circumstance. The respondent's contention appears to be that in requiring a causative link between the arthritis and war service the Tribunal was acting contrary to s 119. For the reasons we have given, in order for the hypothesis advanced by the respondent to be reasonable there must be material pointing to a connection between his disease and war service. The material either points to a connection or it does not. If it does not, the deficiency cannot be remedied by resort to a procedural provision such as s 119(1)(g). The requirement to act according to substantial justice does not displace the Tribunal's obligation to act in accordance with law... Paragraph (h) of s 119(1) is a provision of the same character as par (g): see the words which introduce it - `without limiting the generality of the foregoing'. Thus, like par (g), it does not authorise the Tribunal to depart from the meaning of provisions of the Act as expounded by judicial decisions..."

The contention was in my opinion correct, but did not gainsay the entitlement of the AAT as a decision-maker on the facts and circumstances of the case to prefer the expert testimony of Mr O'Keefe to the testimonies of the family members.

27 Nevertheless of uncertain difficulty are the implications of what the AAT observed in par 66 of the reasons for decision below, which reads as follows:

"The Tribunal notes that the absence of such records may be due to destruction, the passage of time, the chaos of wartime and other factors and that such matters should, pursuant to section 119 of the [Veterans'] Act be taken into account by the Tribunal. However, in the absence of any other uncontroverted evidence to establish a fact, section 119 does not serve to ground a finding of fact."

If the AAT intended thereby to say that s 119 did not allow for the viability of the evidence of the family testimonies, because the same being hearsay were controverted by the clearly admissible expert historical evidence propounded by Mr O'Keefe, then I would acknowledge that the AAT fell into error. However as I read the reasons for decision below, the AAT as the arbiter of fact merely preferred as more likely and viable Mr O'Keefe's expert testimony to the testimonies provided by the Veteran's family based upon their conversations with the Veteran during his lifetime.

28 I should make it entirely clear, in any event, that Counsel for Mrs Price rightly asserted the existence of "a considerable quantity of evidence which formed a factual matrix in relation to which section 119 could operate as the evidence was precisely on point regarding an issue of fact [Mrs Price] was required to prove", being "evidence from members of the Veteran's family of his accounts of being in the hands of Japanese soldiers in Singapore before he escaped". Moreover, it was also accurately submitted by counsel for Mrs Price that the AAT "did not accept that evidence because of... evidence on behalf of [the Commission] from a historian that there were no reports of any escapes from Japanese hands". However, I do not think that the AAT "declined to apply [s 119(1)(h)] in determining it should not accept this [family's] evidence over the [Commission's] evidence that there are no reports of any such escapes". As I have already said, the AAT's reasons for decision seem to me to have boiled down to preferring the historical expert evidence to the family evidence, to the extent of inconsistency of the latter evidence with the former evidence. Consequently, the submission by counsel for Mrs Price that "presumably the [AAT] found that for the purposes of section 119 the evidence of the Veteran being in Japanese hands did not constitute `uncontroverted evidence', although there was no explicit statement to that effect" cannot be sustained.

29 It follows that the further submissions of Counsel for Mrs Price, on true analysis, that the AAT "should have employed [s 119(1)(h)] in its considering the evidence as to [the Veteran] being in Japanese hands", and that the AAT's "failure to do so was an error of law in weighing this evidence, especially as the [AAT's] reason for not accepting evidence of [the Veteran's] accounts was an absence of recorded reports", were misconceived and must be rejected. It cannot rightly be the case that the AAT was disentitled to prefer the historical account of more likely events and outcomes postulated by an expert historian to the account of a veteran as to his circumstances of relevant war experiences, and to do so despite the shortcomings in the historical records which, as I have earlier recorded, Mr O'Keefe seems to have duly acknowledged.

30 It was next submitted by counsel for Mrs Price that in any event, the AAT misconstrued the statutory notion of "interned". I was referred to the Terms of the Singapore Surrender, which contained the following:

"1. The British Army shall effect complete cessation of hostilities not later than 10 pm on February 15 (Nippon Time).

2. British troops shall disarm themselves in their present positions no later than 11 pm."

I was then referred to the following finding of the AAT:

"The Tribunal notes that the march to Changi followed on 17 February 1942 and if so, if this order constituted being `confined to a place' in accordance with the definition of `interned' in section 3 of the Act, it does so, in relation to (Mr Price), at most until the afternoon of 17 February 1942..."

Those observations were said to implicitly recognise that being in Singapore and subject to the Terms of Surrender brought the Veteran in any event within the statutory definition of "interned". That was because he became "confined to a place" by virtue of the above cited order to disarm (the s 3 definition of "interned", relevantly, is "confined in a... place"). Accordingly, it was submitted that the AAT's finding at [78] of its reasons for decision (extracted in [6] above) was incorrect.

31 Underpinning the finding was of course the factual conclusion of the AAT that the Veteran never became a prisoner of war of the Japanese army in Singapore but escaped following the surrender and before capture. Accordingly, the reference in the Second Reading Speech to "Australians who were held captive by Japan during World War II" did not accommodate the circumstances of the Veteran of escape following the surrender and before capture", as found by the AAT. It is true that the AAT also cited that aspect of the Second Reading Speech in so far as it referred to "horrific conditions", "starvation", "brutal treatment" and "slave labour", but I do not think that the AAT thereby stipulated that suffering to any such extents were necessary elements in the preceding critical words "held captive". It cannot sensibly be the case that "the essential character" of the Veteran's time spent in Singapore, to adopt the expression used by Hill J in Kohn, was that of "held captive", given the implications of Mr O'Keefe's evidence as accepted by the AAT to the effect that he was not captured by the Japanese in any physical sense.

32 For what it may matter, given the correctness of the AAT's factual finding to that effect in reliance upon Mr O'Keefe's expert testimony as an historian, it became perhaps unnecessary for the AAT to have undertaken recourse to s 15AB of the Interpretation Act for the purpose of confirming its factual finding that since the Veteran was never taken prisoner by the Japanese army, he was never "confined in a... place" within the statutory definition of "interned". That observation however is, strictly speaking, academic.

33 It is a most unfortunate outcome for the Price family, not so much to have failed to qualify for the statutory grant of $25,000.00, but more to the point, to be confronted with the implications of the AAT's preference for the historical evidence adduced from Mr O'Keefe over the Veteran's accounts to the family given informally over decades of time as to his reminiscences of the circumstances of his escape from Singapore. As I have earlier indicated at some length, I do not think that there was any inconsistency inherent in those accounts. The problem, such as it was, was more likely to reside in the varying degrees of recall on the part of the family members over decades of informal conversation with a husband/father/ father-in-law who was reluctant to compare his experiences, traumatic as they would necessarily have been, with those of his wartime comrades who suffered years of incarceration. It may well have been the case that it was that view of his own good fortune in escaping virtually unharmed that possibly led the Veteran to apparently withhold from seeking specific pecuniary benefits available to former prisoners of war. In my opinion, it would have been open to the AAT, on the evidence placed before it, to have accepted what constituted substantially consistent and reconcilable reminiscences on the part of the Veteran's many family members, in preference to the historical exegesis undertaken 60 years later, albeit by a distinguished historian who obviously provided his testimony in good faith, but nevertheless from materials emanating from uncertain times in Australia's history.

34 The determination of the AAT adversely to Mrs Price the subject of review was nevertheless also open on the evidence presented before it, notwithstanding that another judicial officer presented with the same task of administrative review of the Commission's decision might conceivably have come to a different conclusion upon that evidence. Had the family testimonies been accepted by the AAT in preference to Mr O'Keefe's expert evidence as a historian, I would have thought that the Veteran's brief status as a prisoner of war, if accepted in favour of the applicant, would have constituted internment in a place within the Internment Act, no minimum time limit having been thereby stipulated in respect of internment. A traumatic experience can be of course in principle equally as short as one which is much more lengthy. I should also add in any event that the apparent error of the AAT which I distilled in relation to its account of the testimony of Ms Elizabeth Price was one which, on my reading of the AAT's reasons for decision, would conceivably not have resulted in any different conclusion on its part, in the light of the weight placed by the AAT on the dominant theme of Mr O'Keefe's testimony attributed by the AAT.

35 This litigation arising under the Internment Act apparently represents the first to have been litigated to a conclusion in the AAT. Taking that circumstance into account, as well as the other views which I have already expressed, I think that the justice of the case requires that an order for the costs of the proceedings should not follow the event in favour of the respondent, and that there should be no order as to the costs thereof.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated: 16 April 2003

Counsel for the Applicant:	I Wallach
Solicitor for the Applicant:	Diamond Peisah & Co
Counsel for the Respondent:	S Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	12 March 2003
Date of Judgment:	16 April 2003