Mason and Repatriation Commission [2002] AATA 669 (9 August 2002)

Last Updated: 13 August 2002

DECISION AND REASONS FOR DECISION [2002] AATA 669

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/721

VETERANS' APPEALS DIVISION )

Re EDITH JOYCE MASON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr B J McCabe, Member

Date 9 August 2002

Place Brisbane

Decision The Tribunal affirms the decision under review.

..................(Sgnd)..................

Mr B J McCabe

Member

CATCHWORDS

VETERANS' AFFAIRS - compensation for internment - whether Tribunal reasonably satisfied that applicant was interned by the Japanese - whether applicant qualifies for compensation payment

Compensation (Japanese Internment) Act 2001

Veterans' Entitlements Act 1986

Briginshaw v Briginshaw (1938) 60 CLR 336

REASONS FOR DECISION

9 August 2002 Mr B J McCabe, Member

Introduction

1. Edith Mason is the widow of David Leslie Mason. Mr Mason was a soldier posted to New Guinea during World War II. His widow argued she is eligible to receive a $25,000 payout under the Compensation (Japanese Internment) Act 2001. Payouts are made to the survivors of individuals interned by Japanese forces during the war. The Repatriation Commission decided the applicant is ineligible to receive the payment because it was not satisfied Mr Mason had in fact been a prisoner of the Japanese within the meaning of s 4 of the Act. Mrs Mason has appealed the Commission's decision to the Tribunal.

The Evidence Before the Tribunal

2. The Tribunal heard oral testimony from the applicant and from Mr Neville McMaster, a private investigator who knew Mr Mason. Mr Vawdrey, a veteran who served in the same unit as the late veteran, gave evidence by telephone. Each of these witnesses also furnished the Tribunal with a statement. The applicant's daughter, Ms Terri Parfitt, also provided a statement that was tendered in evidence. A letter from the Secretary of the Geelong Branch of the Ex-Prisoners of War and Relatives Associations was also tendered. The respondent called evidence from Major John Tilbrook, a retired army officer and historian. The respondent had commissioned Major Tilbrook to prepare a report into the claim. His report was tendered in evidence. The Tribunal also had the s 37 documents before it.

The Facts

3. David Leslie Mason served in the Australian Army from 11 November 1941 until 16 January 1947. After the war, he became a bus-driver. He married the applicant in 1954. He died on 1 January 2000.

4. The late Mr Mason arrived in Port Moresby in New Guinea with 1 Independent Company on 9 March 1942. He remained in New Guinea until he departed for Australia on 7 August 1942.

5. 1 Independent Company was a commando outfit. It was comprised of several autonomous detachments. Soldiers attached to the unit were trained to undertake forward reconnaissance and carry out raids on enemy positions. It is likely the members of the unit were picked on the basis of their exceptional skill and courage.

6. When Mr Mason first arrived in New Guinea on 9 March 1942, his detachment was assigned the task of defending the Jackson Aerodrome near Port Moresby. It was a difficult job. The Japanese were bombing the field regularly, and its defenders were only equipped with rifles and Bren guns. The Australian aircraft were inadequate: they were scrambled and flown to safety whenever the Japanese appeared. There had also been an unfortunate 'friendly fire' incident at the airfield immediately prior to the arrival of 1 Independent Company in Port Moresby. A formation of new Kittyhawk aircraft that were being delivered to the aerodrome were shot at by nervous troops on guard duty. One of these valuable aircraft was permanently grounded as a result of the mix up.

7. The veteran's detachment remained in the Port Moresby area until the end of March 1942. The detachment performed some patrols in addition to providing anti-aircraft cover at Jackson aerodrome. The detachment was subsequently deployed to Wau after the Japanese invasion of Lae and Salamaua. The orders to move were contained in an operation instruction from the General Staff issued on 28 March 1942. The detachment arrived in Wau on 5 April 1942. It formed part of a collection of units known as Kanga Force. Members of Kanga Force carried out reconnaissance patrols. They also conducted a series of raids on Japanese positions.

8. It was dangerous work in an unforgiving environment. Communications were difficult. The Japanese soldiers were determined, and they enjoyed air superiority. In addition to the risk of injuries inflicted by the enemy, many soldiers suffered from malaria, dysentery or other diseases. If a soldier became ill or was injured, it could take some time to reach adequate medical care. A sick soldier might walk for days before receiving treatment.

9. Major Tilbrook's report suggested that Mr Mason did not go to Wau with his unit. The report said he stayed in Port Moresby. Mr Vawdrey had said he did not remember Mr Mason, although he conceded it was possible that Mr Mason was in another section at the time. The sections tended to operate separately so it was possible that soldiers in one section would not know or be close to soldiers in another section. After hearing the evidence of Mr Vawdrey, Major Tilbrook appeared to concede that Mr Mason may have gone to Wau, but insisted there was no evidence of him being there prior to the end of March 1942.

10. Mr Mason fell sick with malaria. His Service and Casualty Form says he reported to the Bomona Mission Station on 7 May. The record shows he was then transferred to hospital in Port Moresby on 19 May. He remained in the Port Moresby area until returning to Australia in August.

11. It is difficult to be precise about Mr Mason's movements during this period. The documents are not always complete, and they are occasionally inconsistent or wrong. For example, the Medical Board report completed in Victoria on 27 August 1942 after Mr Mason's return to Australia suggests the first attack of malaria occurred in March 1942, and that Mr Mason had been treated at Bulolo hospital. Major Tilbrook said in his evidence that the entry insofar as it dealt with the date of his treatment in Bulolo was incorrect: other records showed there was no hospital in Bulolo at the time. His findings on this point were consistent with the evidence of Mr Vawdrey. The nominal roll of the unit was reconstructed from memory, and gave no clues as to Mr Mason's whereabouts during the relevant period.

12. I am prepared to accept that Mr Mason was in Wau from early April until early May before he was struck down with malaria. During that period, he may well have been involved in combat with Japanese forces. But was he taken prisoner?

13. The veteran had badly damaged teeth. While he and his wife were courting, she asked him what happened. He told her that a Japanese soldier had struck him in the mouth with a rifle butt while he was being held prisoner with a number of other Australians. He also told her he had escaped with another prisoner and that he knew the Australians whom he had left behind were subsequently murdered by their captors. The applicant said her husband did not often speak of his experiences during the war, and she never questioned him in detail about the incident. He also told Mr McMaster in particular the story of his capture and escape. Ms Parfitt, the applicant's daughter, said her father had spoke once of his imprisonment.

14. The applicant said her late husband felt guilty about escaping while others died. He did not participate in ANZAC Day ceremonies after the war, although he did have a good relationship with members of the Geelong Branch of the Ex-Prisoners of War and Relatives Associations. He would drive the bus that took members of the association on their annual picnic. He was invited to join the Association in a letter from its secretary dated 25 November 1952.

15. The evidence of Mr McMaster and the members of the Mason family suggests Mr Mason told a consistent story of imprisonment and escape, although the applicant conceded he did not speak of his experiences during the war often. But I am troubled by the fact that members of Mr Mason's unit - most obviously Mr Vawdrey, who gave evidence - apparently knew nothing of Mr Mason's exploits. The official records are also curiously silent on the issue.

16. According to Major Tilbrook's research, only twenty-nine Australian soldiers were killed during the relevant period. The Major based his conclusions on official records, including those supplied by the War Graves Commission. He also spoke with survivors, including Mr Vawdrey. During cross-examination Major Tilbrook conceded it was possible that other Australians not referred to in the records - such as downed airmen - might also have been held and, if Mr Mason's story was right, have been the Australians he claims to have seen murdered.

17. One of the recorded casualties was a Sergeant Robert Mayne, who was a member of the veteran's unit. The details of Sgt Mayne's demise may never be known: Mr Vawdrey referred to rumours that he had been machine-gunned in a hut with another captive shortly after capture on a Kanga Force operation. Other reports suggested he was seen being loaded onto a ship, presumably bound for internment. In any event, he evidently died after he was separated from his unit and taken prisoner. His fate was apparently the source of a great deal of speculation. That is unsurprising, but it is difficult to see why his fate should have attracted so much attention when the contemporaneous witnesses do not recall the veteran. In some ways, the veteran's account, if accurate, is more remarkable than the stories surrounding Sgt Mayne: the veteran not only managed to escape, he says he witnessed a war crime in progress.

18. The official records do not record any evidence that supports the story either. Mr Vawdrey and Major Tilbrook confirmed in evidence that Army intelligence would have been very interested in debriefing an escapee. They would have asked about the place of his capture, the number of soldiers involved, their weapons and general state of preparedness, and so forth. In addition to being a valuable source of intelligence, an escapee who witnessed a war crime might also be expected to have some news value at home. But there is no trace of the story in the records.

The Law

19. Section 4(1) of the Act sets out the circumstances in which the partner of a deceased veteran becomes entitled to a payment of compensation. The section says:

"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."

20. The respondent conceded the applicant satisfies the requirements in clauses (a), (b) and (c) but disputes that the veteran was ever interned as required under clause (d). If the veteran's story was believed, he would clearly have been interned within the meaning of the Act. But the respondent says it is impossible to be reasonably satisfied that the veteran's story was true.

21. Mr Mason's story might be true. The silence of the official records does not mean that the events alleged by Mr Mason never took place: s 119 of the Veterans' Entitlements Act 1986. Mr Vawdrey didn't remember anything that would support the veteran's story either, but his memory might be faulty. He also conceded he did not necessarily know soldiers in other sections and detachments very well. But it is not enough to establish that the story might be true. I must be reasonably satisfied that it is true.

22. Mr Stoner for the respondent referred me to the classic discussion of the reasonable satisfaction test found in the judgment of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. In that case, his Honour explained (at 361) that the tribunal of fact does not "engage in a mechanical comparison of probabilities independently of any belief in its reality". The mere fact that a particular contention is possible or plausible is not enough. The tribunal must be reasonably satisfied that the contention has been made out.

Conclusion

23. I am not satisfied the late Mr Mason was interned by the Japanese within the meaning of the Act. In drawing that conclusion I do not mean to reflect on his courage or skill. However it is still incumbent upon the Tribunal to ensure that the requirements of the Act are met. I therefore affirm the decision of the respondent.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member

Signed: Sarah Oliver

Associate

Date of Hearing 25 July 2002

Date of Decision 9 August 2002

Solicitor for the Applicant Mr Wall, Gilshenan & Luton

Solicitor for the Respondent Mr J Stoner, Departmental Advocate