i , f 4 fe . bY ne HIGH COURT OF AUSTRALIA. POWER, Ej if v. .. HOQDROW. AND..THE. COMMONWEALTH OF. AUSTRALIA A REASONS FOR JUDGMENT. Judgment delivered at.. HL & Gem, Gort. Free Na on. WEDNESDAY. THR OTH JULY, 19ub.. oar CDROW & ANOR." RUASONS FOR TUDGH - WOODROW & ANOR. 'REASONS oR sUDGEE TATHAN This ls an action for dama bb or false imprisonment against the Commonwealth of 4 stralia and Colonel David Douglas Woodrow, who ssues a warrent for the arrest of the plaintiff as an absconder from the military forces of the Commonvealth, in pursuance of which members of the Provost Corps arrested him. He was arrested in Brisbane on or about 21st September 1943, and wes taken to a military compound in Brisbatie, then to a military detention camp at Groveley, and later to a military detention camp at Redbank. He was brought before the Acting Commanding Officer, rV.D. Taylor, in orderly room and was fined £3 fer absence w. it leave for a period of 13 days and 10 hours beginning on &th September 19434 plaintiff also claims a declaration that he is not an b enlisted member o the Austrelian Vilitary Forces or duly appointed to the Defence Force and an injunction restraining the defendants or elther of them, their agents or servants or officers, from detaining i him in any military detention camp or elsewhere. The defendants are { not detaining the vleintiff' or threatening to detain the plaintiff and! no case has been made for an injunction. A decision uron the guestion) of false imprisonment will be seen to involve a determination of the i question whether the plaintiff was at the relevant time an enlisted member of the Australian Militery Forces. \ { A mobilisation attestation form signed by the plaintiff shows thet he was 4942 aged 29 years ond that he was born in australia. By a proclamation made on 12th December 1941 the Governor-General called upon versons ed in class III referred to in sec. 60(3) pec a of the Defence Act 1903-1941 to enlist and serve asprescribed by the Act an€ regulations wade thereunder. The plaintiff was included in class TIJ and accordingly became iiable to enlist and serve. The plaintiff enrolled as required, describing himself in : his mobilisation attestation form as following the occupation of a machine / forees, but to be empl 2. machine miner, and he cleimed exemption from service on religious grounds as s Jehovah's Witness. He was called un for medical to teke the oath of i i examination in pursuance. | | i] court in felgoorlie for objector under the WN dons (S.R. 1942 No. 80 as amended). | A Police Magistrate heard his application and ordered pursuent to reg. 10 of those rerulatior & be enrolled w the ; { Defence Act as 8 person e in the : only in non-combatant duties. Ans sunreme Court was dismissed. | to a Justice arch 1943 a second cal] ip notice vas served on the! ntiff. ue did not ob Pt Q My pla. it and almost lmmediately le: Western Sustralie for Queens] Ea assisted his wife ina eonfectio: wilitary authoritles became aware of his whereabouts him at his wife's shop on 31st August 1943 and litary ¢ and he went vw to the Area Office, Water Street, Fortitude There is a conflict of evidence between the plaintiff on and the witnesses for the defendants on the other hand, = Td namely Lieutenant Brett and Captain Best, Captain Watson and Mr, f.W,. Kinsman, as to conversatior lace between them and. the tlaintiff. Where the evidence of the plaint. conflicts. with of the other witnesses mentioned I accept the evidence of the other witnesses as against the evidence of the plaintiff. The tiff did not pial. re sPess tie asa witness. His denial that he signed en affirmation in the presence of Lieutenant Brett and Captain Best was unconvineing 6nd, in my opinion, was false to his knowledge. He unew perfectly well that he had signed the affirme bion, but, conceiving that it created a difficulty in his case, he was prepared to deny the fact. In relation to other matters also his manner of giving evidence was unssatisfactor on 7 ag he wenying Grett took place in the course of which the plaintiff e miner and w service on that reti that he said (and of used a p ppose of ho bt introcueed the other ¢) the two officers a mere Introcuc Lon took oy and the vleintiff, to the de id accordingly that nee ellegation: firmation tricked the olaintiff into is unsupported by evidence. It is proper to say, however, thet the plaintiff evidently confused Idieutenant that the allegation made in terms in his in relation to 1 should be considered Leutenant Brett. at the i121 hall between Brett and the Tn the intervi: pleintiff the plaintiff agreed to the alteration of his deseription as a Jehovah's Witness to the deseription "free-thinker". He initialled the alteration on the attestation form which had been sent from Western Australia to Queensland when, as was evidently the case, es were searching for the plaintify. ook the plaintiff to Captain Watson, a man ta nsman, a nations] service officer, sald to the nsonts superior officer. Kingme the olaintiff, was a miner anc was unemoloyed, and was willing to work as a miner at Mount Isa or Mount tlergan. The wleintiff refused on the ground that those places were so far away from Brisbane, and Kinsman then spoke of Ipswich, end suggested thet the olaintiff should go to Ipswich, see the nat officer end see if he could get a jo Kinsman had a telephone convers jon with Amess, the man power of Cicer at Ipswich. The / ae fe) he discussions between the vlaintiff on the one hand and ives - work in Brett and Kinsman on the other dealt with two altern a partioujar protected ir iy mining, and vice in the Army, at that tine the only it was proposed that the voleintiv! should do was the work of mining. "o other kind of work been tson told the mentioned between the vartles. were needed in Queensland and thet if le took a job in wining he would otherwise he would be approved be in a protected in ry, but for service. There is, T think, some confusion in the evidence given 7 7 = by Brett the vrecise form of words which was used conversation between them, but I am satisfied that in substence 1% was egreed between Brett and the pleintiff that the ple iff should seree to serve in the wilitiary forces but that the issue of a call-up notice should be deferred if the plaintiff took employment es aminer. As the olaintiff was no longer a-conselentious objeetor to al? forms of service there wag (at this stage) no longer any objection to his undertaking non-combatant military service, but he preferred making an affirmation to taking sn oath, Accordingly a form of affirmation wag typed out and pasted on the back of his mobilisation attestion e presence of Be and Rrett and form. It was signed by him in tt was witnessed by Brett. As T have alresdy said, the plaintiff den ve bim on this point. T not only that he signed it but I do not bel tt and Coptain Best on aecept the evidence of Lieutenant. matter, but also the evidence of Major Taylor and Sergeant Henderson. ad September he admitted his signature to thet in their presence on the affirmation. It was contended for the vlaintiff that Brett procured his signature to the form oF affirmation by a trick, namely, by falsely representing to him that before he conld be employed in a vroteeted undertaking so as to be exempt from service it was necessary that he should take an oath or affirmation of enlistment. Such 2 representa ion would have been peculiarly wnconvineing. It would be difficult indeed for a man of even slight intelligence (and the plaintiff is not an unintelligent man) to believe that in order to obtain employ- ment in a protected undertaking which involved exemption from military / 5. military service it was necessary to take an oath of enl at for militery service. I reject the plaintiff's evidence that he was deceived in any way by Brett or any other person in relation to the malsing of the affirmation of enlistment. The affirmation which the plaintiff made was in the following forms~ "I John William Rlson Power solemnly and sincerely affirm and declare that I will well and truly ser Sovereign Lord the King and perform non-combatant in the Military Vorees of the Commonwealth of Sustralia until the cessation of the present time of war or until sooner lawfully discharged, dismissed, or removed and that IT will in all matters anvertaining. to my service faithfully discharge my duty according to law." Tt will be observed that the affirmation reletes to non-combatant service in the military forees, The form is taken, not from the Third Schedule to the Defence Act, but from the Schedule to the National { Seeurity (Consctentious Objectors) Regulations. On 2nd September the plaintiff went to Ipswich and saw the national service officer there, lr. J. Amess, and discussed the matter of working in the coal mines at Ipswich. He told Amess that there was something the matter with his chest and that he preferred not to undertake work as a miner. He said that he was a carpenter, and asked to be allowed to go to work for Hancock Bros. Pty. Ltd. of Ipswich, a company which wes manufacturing pontoons for the Army. Amess gave a document to the plaintiff in the following form:- COMMONWEALTH OF AUSTRALTA N.S.F.7 JD NATIONAL SURVICE NATIONAL SERVICE OFFICE s DATE 2/9/1943. Ingram, lancock Brosy North Ipswich. REFLY TOC YOUR i 7 POR © Carpenter, Mr. J.W Power the bearer, whose signature apes hereunder, is the person who has been. selected for interview with a view to engagement. (Sed.) J.W.e, Power. 3.) UAT. Amess } +, MeMahone | be This document viainly authorises the plaintiff te avply Hancock Bros. f engacement, am was in effect an invitetion to Heneock Bros. to engege him if they thought vroper, The business neock Bros. was conceded to be a protected under king within the neaning of the National Security (Man Power) Regulati ons, reg. 5. The plaintiff went to } ed Ingran, the foreman of Hancock Bros., and ne and Ingram egree in their evidence that on 2nd September le was engaged as a cerpenter to start work on 7th Septemb: The plaintiff started work with Haneock Bros. on 7th September without, he ys, seeing any o# the Brisbane military or man power authorities again. The man power officers, however, namely Messrs, Watson and Kinsman, gave evidence that the plaintiff came to see them again on 2nd September. When the plaintiff was recalled for the purpose of rebutting this evidence,*he gave varticulars of times of arriv Avand departure from Ipswich on 2nd September, the evidence being intended to show that he could not have reached Brisbane after the interview on that cay in time to see the man power authorities at Water Street. The plaintify says that he was - accompanied by his wife when he went to Ipswich. His wife was not called to supvert his evidence, and no explanation was given of the failure to call her. I accept the evidence of the man power offleers that further interviews dia take place on 2nd September. The plaintiff on 2nd September saw Kinsman and reverted to him thet he had not taken a job in mining at Ipswich. Kinsman then said that the plaintiff would be approved for service. Some mention made of his being offered a job at Hancotk's and Kinsman says that the plaintiff asked why he, Kinsman, would not let him eo to that job. Kinsman says that he replie : "No, I sent you to * you could get a job in mining". The fact that he had a job or was to obtain a job at Hancock's was not mentioned to Watson, but it was mentioned in some manner to Kinsman. A conflict or misunderstanding had apparently occurred between the man power officer Amess at Ipswich and the man power officer Kinsman at Brisbane. Conversations between which then/might have explained the matter were not admissible in evidence. The / f t 2. The position, however, is that, as far as he could do so, Amess at Ipswich permitted the plaintiff to accept work in a protected under- taking, while, as will be seen, Kinsman at Brisbene adopted the position that if the plaintiff was not prepared to work at his occupation at mining he ought to go into the Army. The opinion of Watson and Kinsman was that, as the plaintiff was unemployed, was a miner, and would not take a job as a miner, he should be approved for military service. Accordingly Watson, acting as a man power officer, marked his medical history sheet "approved for service", the approval being cated 2nd September. On the same day Kinsman approved Watson's approvel by initialling the medical history sheet as national service officer, and adding the date 2/9/43. On the same day a form known es A.A.F. Mob. 30 (a call-up notice), Exhibit 8, was sent to the plaintiff. It required him to attend on 8th September 1943 for medical examination at the Recruit Reception Depot at Redbank specified and to report at a/Drill Hall for movement to that Depot. This was the third mobilisation notice which had been given to him. This form was not in all its terms appropriate to the circumstances of the case. It states "If accepted you will be enlisted and sent from the Recruit Reception Depot to a Training Depot". The plaintiff had already taken an affirmatcdion of enlistment. But the order to attend for medical examination was unambiguous and was authorised by Australian Military Regulation 140A. Under this regulation it is provided that every person calied upon in pursuance of the Defence Act to enlist and serve in the Citizen Forces shall, notwithstanding any claim to exemption, attend for medical examination at such times and places as are specified in a notice issued in accordance with the regulation in respect of the ares in which he resides. A notice was given to the pleintiff individually, as authorised by reg. 140A(4)(c). The order to attend at the Drill Hell for movement to the Redbank Depot can also be justified, in my opinion, es an order given by a military officer, namely the Area Oi'ficer, to whose orders the plaintifi was bound to conform, the Area Officer being charged with the duty of sending 'recruits to depots. The plaintiff did not attend as required. He ~eonsulted a solicitor and the solicitor wrote to the Area Officer informing / informing him that the plaintiff did not admit the validity of the notice and would defend any proceedings which might be takeu against him. On 10th September a warrant for the arrest oi the plaintiff was issued, signed by the defendant, Colonel Woodrow, and, as dready stated, he was arrested by members of the Provost Corps, detained, and at orderly room on 23rd September was fined £3. He was then in the camp, but he simply left the camp and did not return. He went back to his home and no further steps were taken against him by the military authorities. On 24th September he wrote a letter to the officer in charge at the Recruit Reception Depot, Redbank, in which he asked to be allowed --------=---- to withdraw the affirmation that he took on 51st August 1943 and stated that the national service officers had suggested that he should go into employment in a protected undertaking and that he had done so with Hancock Bros. Pty. Ltd. In this letter he reverted to his -original description of himself as a conscientious objector and as objecting to war service, either combatant or non-combatant. The question which has to be determined is whether the members of the Provost Corps had lawful authority to arrest the plaintiff, and whether there was lawful authority for thereafter detaining hin. as such The powers of members of the Provost Corps/relate only to members of the forces. They may arrest and detain for trial any soldier liable to arrest comuitting an offence against the Army Act (44 and 45 Vic. c. 58) - see Australian Military Regulation No. 235 - S.R. 1927 No. 149. The Defence Act sec. 114 gives power to any member of the Defence Force to arrest absconders. Absence without leave is an offence under the Army Act sec. 15(1). The plaintiff had received the order (Mob. 30) of 2nd September 1943 requiring him to attend for medical examination and movement to the Depot on 8th September. He disobeyed that orcer and, if he was then a soldier, was absent without leave when he was arrested on 21st September. The / 9. The affirmation which the plaintiff made on 31st August was in the form provided in the Schedule to the Conscientious Objectors Regulations and not in the form of the Third Schedule to the befence Act. The Third Schedule to the Defence Act makes no reference to non-combatant duties, whereas the oath taken by the plaintiff is limited to non-combatant duties. Probably this is to be explained by the order of the Police Magistrate at Kalgoorlie which directed him to be registered as liable to be called up for non-combatant | auties. The Conscientious Objectors Regulations were made under the National Security Act and they prevail over any provision in the Defence Act which is inconsistent with them: see National Security Act, sec. 18, The Conscientious Objectors Regulations provide that a competent court may order a person to be enrolled under the Defence Act as ae person liable to be called up for service in the citizen forces but to be employed only in non-combatant duties. When such en order has been made (and it hes been made in the prsent case) then the Conscientious Objectors Regulation No. 14 becomes applicable:- "& person enrolled as a person liable under the Defence Act to be called up for service in the Citizen Forces but to be employed only in non-combatant duties shall not be required to perform any duties of a combatant nature, and if he takes au oath or maxes an affirmation in accordance with Form 3 in the Schedule he shall be exempt from the obligation to take the oath or make the affirmation prescribed by the Defence Act." Sub-reg.(3) of reg. 14 provides that such a person is to be employed in non-combatant duties. In my opinion the effect of these provisions is that when an affirmation is msde in the form of the schedule to the Conscientious Objectors Regulations, notwithstanding the absence ¢ any oath or affirmation in the form-provided in the Third Schedule to the Defence Act, the person taking the oath or making the effirmation becomes a member of the forces of the Commonwealth, but that his duties are limited to the performance of non-combatant duties. Accordingly, in my opinion, the plaintiff did become a member of the Defence Forces by reason of the affirmation which he made on Sist August 1943. Reg. 286 of the Australian Militery Regulations, paragraph 1, provides that when a person who has been required to serve pursuant to Part / 10, Part IV of the Defence Act ebsents himself without leave for a longer period than seven days from the place at which he should be present a warrant for his arrest as a deserter may be issued. The plaintiff was a person who had been required to serve as prescribed by the Defence Act and the regulations thereunder. He was so required by the proclamation of the Governor-Generel ca od 11th December 1941. Arrest on e warrant issued under paragraph 1 of the regulation may be effected by a member of the Defence Force or by a member of a police force - paragraph 2. A person arrested under such a warrent shall be brought before a court of summery jurisdiction, or delivered directly into military custody "as if he were an officer or soldier" - paragraph 3. Thus, if the plaintiff was a member of the forces, he was subject to military discipline and could be arrested and detained if he weré absent without leave. If I am wrong in my opinioén that he was a member of the VYorces, then reg. 286 authorised his arrest and detention "as if he were a soldier." If nothing more appeared in the case it would follow that, as he had been lawfully directed to attend for medical examination at a specified vlace on &th September, and did not so attend, he was absent without leave and was properly arrested and dealt with by the military authorities. It is contended for the plaintiff, however, that when he received the notice to attend for medical examination and movement dated 2nd September and when he was arrested on 21st September he was "employed in a protected undertaking" and so was exempt from military service. Reg. 14(4) of the National Security (Man Power) Regulations provides that "No person employed in a protected undertaking shall be appointed to or enlisted in the Defence Force without the permission in writing of the Director-General " fof Man Power] . If the plaintiff had been employed in a protected undertaking before he subscribed the affirmation on 31st August it would have been necessary to consider the meaning and effect of this regulation. But he had become. a member of the Defence Forces on 31st August and at that time / 14. time. he certainiy was not employed in any sense in any proteeted under- taking. He then became subject to military orders and reg. 14(4) had no applies to him. 2 person who has in fact enlisted in the military forees cannot, in my opinion, eseape his obligation as a member of those forces by ob ing ewoloyment thereafter in a protected undertaking. - see Defence "ct sec. 38. Upon this view it is unnecessery to consider whether a person can be said to be employed in a protected undertaking when he has been engeged for service in such undertaking but has not commenced work therein. .The word. "employed" is ambiguous. t may meen "actually occupied in working", or it may mean "engaged under a contract for the purpose of working": see the discussion of these two meanings in Hall v. fhe Centreway Cafe Co. Pty. Ltd., 1916 V.L.R. 560, and Bishop v. Gonerete Constructions Pty. Ltd., 1923 V.L.R. 638. On 31st August the plaintiff was not employed in e protected undertaking in either sense, On 2nd September he was enployed in a protected undertaking in the latter sense. On 8th and 2ist September he wes employed in a protected undertalting in both senses. 'Buty as IT have said, it is not necessary upon the basis of the facts in this case to consider whether these circumstances brought him within the application of reg. 44(4); neither is it necessary in the present case to eonsider whether a person who has in fact been alloved to enlist and has enlisted in preach of reg. 14(4) is under no duty to obey military orders. 4 glso urmecessery to reach a decision unon an argument. submitted for the defendants to the effect thet, if the plaintiff was to be regarded 6s ermmloyed in o protected undertaking, the Director- Generel of Man Power had given perwission for him to enlist because Kinsmen was authorised by delegation to exercise the powers conferred on the Director-General by reg. 14(4) of the Man Power Regulations. The permission was said to be constituted by Kinsman's initials confirming Watson's approval of the plaintiff for service. This mation by Kinsman, however, ¥ confi: not made with any reference to the employment of the oleintiff in sny proteeted undertelking, and, as at present advised, I do not think thet it can properly be held te be the permission in writing which reg. 14(4) require Reference / 12. Reference was made in argument to the Defence Act, see. 75(a), which provides thst any person who, when called upon in pursuance of the Act to enlist, fails to attend at the time and place appointed for medical examination or enlistment shall be guilty of an offence. Upon the view which I have taken the plaintiff had already enlisted on 3ist August. If, however, he had not so enlisted, he would have been a person who had been called upon to enlist and had failed to attend for medical examination and he would therefore have been guilty of an offence. But I was not referred to any provision which would clearly authorise the arrest of a person who Was not a member of the forces by a member of the Provost Corps. . Under National Security (iilitery Forces) Reguletions, reg. 17, a person who has been called upon under the Defence Act to enlist is bound to attend for enlistment or medical examination from time to time at such time and place as is specified in a notice issued in pursuance of the regulation by the Ared Officer of the eres in which he is then residing. It wes proved that the notice required under this regulation had been duly given. The plaintiff was a person who had been calied upon to enlist under a proclamation made by the Governor-General. It was therefore his duty to attend for medical examination at the time-and place specified in the notice Mob. 30 dated 2nd September 1943. But an offence against the National Security Act, sec. 10, does not appear to be moffence in respect of which a member of the Defence Forces is authorised to errest the offender. I therefore do not base my decision upon sec. 75(a) of the Defence Act or upon reg. 17 of the Militery Forces Regulations, and it is therefore not necessary for me to consider objections which were raised to the validity of reg. 17. As at present advised I see no reason to doubt its validity. For the reasons stated I conclude that as a member of the Defence Force the plaintiff was liable to arrest and to detention, and the action therefore fails against the defendant Colonel Woodrow. Alternatively, even if he was not a member of the Defence Force he was liable to arrest and detention under Australian Military Regulation 286. ° As / oa "336 As the arrest was not wrongful, it is not necessary to consider whether the Commonwealth can be made liable for damages in respect of an arrest made under Colonel Woodrow's authority: cf. Enever v. The King, 3 C.LR 969. fhe action is dismissed with costs.