Cmielewski and Repatriation Commission
[2006] AATA 1063
•11 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1063
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2005/170
VETERANS' APPEALS DIVISION ) Re ALEKSANDER CMIELEWSKI Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date11 December 2006
PlaceAdelaide
Decision The tribunal sets aside the decision under review and in place of that decision decides that the applicant has rendered qualifying service during the periods when he was a member of the National Armed Forces of Poland and of the Holy Cross Brigade.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
VETERANS' ENTITLEMENTS - qualifying service - applicant served in two underground forces in Poland during World War II - held that the underground forces, the National Armed Forces (NSZ) and the Holy Cross Brigade, were defence forces established by the Polish government-in-exile - meaning of "allied veteran" - meaning of "defence force established by an allied country" - meaning of "established" - held that the applicant had rendered qualifying service - decision under review set aside.
Repatriation Act 1920, Division 5B
Veterans’ Entitlements Act 1986 (Cth), subsections 5C(3) and 7A(1)(c)
Attorney-General (Victoria); ex parte Black v Commonwealth (1981) 146 CLR 559
Fenner v Repatriation Commission [2005] FCA 27
Re Quo and Repatriation Commission (1992) 26 ALD 281
Repatriation Commission v Hawkins (1993) 45 FCR 205
Whittaker v Comcare (1998) 86 FCR 532
D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia, (6th Edition, 2006)
REASONS FOR DECISION
11 December 2006 Deputy President D G Jarvis 1. The applicant, Mr Aleksander Cmielewski, was a member of an underground resistance group during the German occupation of Poland in World War II. In March 2004 he lodged an Application to Determine Qualifying Service by a Veteran or Mariner, being an application form issued by the Department of Veterans’ Affairs to persons who wish to know whether their service might qualify them for service pension.
2. On 16 June 2004 a delegate of the Repatriation Commission, after referring to Mr Cmielewski’s service with the underground organisation, decided that he was not an “allied veteran” within the meaning of that expression in s 5C of the Veterans’ Entitlements Act 1986 (Cth) (the “VE Act”) and that he was therefore “not eligible for qualifying service” under par 7A(1)(c) of the VE Act.
3. Mr Cmielewski requested a review of the delegate’s decision. On 25 May 2005 another delegate of the Commission affirmed the earlier decision of 16 June 2004. On 21 June 2005, the applicant applied to this tribunal for review of the second delegate’s decision.
Issue
4. The Commission accepts that Mr Cmielewski rendered, in connection with a war in which the Australian armed forces were engaged, service in Poland in respect of which he incurred danger from hostile forces of the enemy.
5. The issue before me is whether Mr Cmielewski was an “allied veteran”, and whether he served “as a member of the defence force established by an allied country”, as required by subsection 7A(1)(c) of the VE Act. If these requirements are met, it is common ground that he would be a person who has rendered qualifying service for the purposes of the Act.
Background
6. Mr Cmielewski was born in Poland on 9 December 1923.
7. On 1 September 1939, Germany attacked Poland. This led to World War II, and to Australia declaring war on Germany. On 17 September 1939 the Soviet Union invaded and began to occupy eastern Poland. Later that month a Nazi-Soviet Treaty of Friendship, Cooperation and Demarcation was signed, whereby Poland was divided between Germany and Russia by means of a “Peace Boundary”.
8. Following the German invasion of Poland, the Polish Government fled to Paris and later, in July 1940, to London. The Polish government-in-exile then operated from London until the end of World War II. This government was recognised by Australia as the legitimate government of Poland during the war.
9. In his application form (exhibit R1, T4), Mr Cmielewski said that his period of service was from approximately October 1942 to March 1945 in Poland, from March to August 1945 in Czechoslovakia, and from August 1945 until 1 February 1946 in Munich in Germany. He said further that he was constantly in action against the Gestapo or the German Army during his service in Poland. He received a number of medals or awards, including an Army medal, a combatant’s cross, a national military action cross, a partisan cross, and an award from the Jewish Community of South Australia.
10. The underground resistance group that Mr Cmielewski joined was called the Narodowe Sily Zbrojne (“NSZ”) or National Armed Forces. In about May 1944, as a result of a warning from the sister of one of his friends in the NSZ, Mr Cmielewski fled from the town where he was living, left his employment with a factory there, and hid with the NSZ people with whom he had been working. Within a month he went to the mountains with the NSZ and joined its armed forces.
11. The NSZ had been formed from an amalgamation of certain resistance groups operating in Poland. It was the second largest military organisation operating in Poland during the war (exhibit R1, T1, page 5). Other resistance groups had also amalgamated to form the largest such organisation, namely the Armia Krajowa (“AK”), or the Home Army. It appears from exhibit R1, T6, page 30 and from exhibit R3(c), paragraphs 1 and 2, and I find, that the Home Army was established in consequence of an order issued by the Commander-in-chief of the Polish army. It was part of the Polish Armed Forces, whose high command was located in exile.
12. On 1 August 1944 the Home Army attacked the German forces occupying Warsaw in an endeavour to recapture it. This action, known as the Warsaw Uprising, continued until late October 1944, by which time the Home Army had been decimated.
13. According to Mr Cmielewski’s witness statement (exhibit A1, page 6), members of the NSZ based in the area of the Holy Cross Mountains amalgamated to form another force known as the Holy Cross Brigade (“HCB”), and this was formed on 11 August 1944. Mr Cmielewski joined the HCB at that time. Some survivors of the Home Army also joined the HCB after the failure of the Warsaw Uprising. In January 1945 the HCB began a march westwards through German occupied territory. After marching more than 1,000 km the HCB was able to join up with the Third Army of General Patton in Czechoslovakia in May 1945. The HCB was later incorporated into the armed forces of the United States of America.
14. After his discharge from the US Army in 1946, Mr Cmielewski attended classes set up in a displaced persons camp near Munich, and subsequently received a matriculation certificate. He then attended a Polish technical college, and in 1948 he received a Diploma of Building Technology.
15. He migrated to Australia in 1949 and married in 1953. His principal employment in Australia was with the South Australian Housing Trust, from 1951 until 1984, and by the time he retired he had attained the position of principal planner. He was awarded the Medal of the Order of Australia in 1986, for service to the Polish community in Australia and to sport. He is a Justice of the Peace.
16. I shall refer below to the evidence before me as to the formation of the NSZ and the HCB. This comprised historical evidence from two historians called by the Commission, namely Richard Harold Pelvin, who provided a report through WriteWay Research Service Pty Ltd, and Walter Robert Kudrycz, an historian with the Military History Section at the Australian War Memorial.
17. Mr Cmielewski said in his witness statement that he had taken a considerable interest in Polish military history and had read many books on World War II and on Poland in particular (see exhibit A1, paragraph 13), and he also referred to certain relevant historical events.
18. I accept the applicant and the two historians, Mr Pelvin and Dr Kudrycz, as witnesses of truth. There were no substantial differences between the evidence of the two historians, but where there are inconsistencies I prefer Dr Kudrycz’s evidence. He dealt more specifically, in greater detail and more convincingly with questions asked of him, both when giving evidence and in preparing his reports, and his evidence accords with excerpts from other historical material before me.
Legislation
19. Section 7A of the VE Act provides in effect that for the purpose of the various Parts of the VE Act (including the Parts relating to service pensions and the entitlement of a veteran to be provided with certain medical or other treatment) a person has rendered qualifying service in various specified circumstances. Paragraph 7A(1)(c) relates to service as an allied veteran, and provides as follows:
“7A Qualifying service
(1)For the purpose of Parts III and VA and sections 85 and 118V, a person has rendered qualifying service:
…
(c)if the person is an allied veteran who, during a period of hostilities, has, as a member of the defence force established by an allied country, rendered, in connection with a war, or war-like operations, in which the Naval, Military or Air Forces of Australia were engaged, service in an area within or outside the country in which the person enlisted in those forces, being service in respect of which the person incurred danger from hostile forces of the enemy; or … .”
20. The expression “allied veteran” is defined in subsection 5C(1) as follows:
“allied veteran means a person:
(a)who has been appointed or enlisted as a member of the defence force established by an allied country; and
(b)who has rendered continuous full-time service as such a member during a period of hostilities;
but does not include a person who has served at any time:
(c)in the forces of a country that was, at that time, at war with Australia, or in forces engaged in supporting or assisting the forces of such a country; or
(d)in forces that were, at that time, engaged in war-like operations against the Naval, Military or Air Forces of Australia.”
21. The expression “defence force established by an allied country” is also defined in subsection 5C(1) as follows:
“defence force established by an allied country means:
(a) the regular naval, military or air forces; and
(b) the nursing or auxiliary services of the regular naval, military or air forces; and
(c) the women’s branch of the regular naval, military or air forces;
raised by an allied country and operated by the country with regular military-like lines of command, that is to say, raised and operated in such a manner that the members of those forces and services:
(d) were formally appointed to, or enlisted in, those forces or services; and
(e)were required to wear uniforms or insignia distinguishing them as members of those forces or services; and
(f) were required to carry arms openly; and
(g) were subject to the rules and conventions of warfare.”
22. The same expression “defence force established by an allied country” is also defined separately in subsection 5C(3) in relation to any period during which there was a government-in-exile in relation to an allied country. It is this definition, rather than the definition referred to in the preceding paragraph, that is relevant to the present application, because Mr Cmielewski’s application relates to his service while the Polish Government was in exile. Subsection 5C(3) provides as follows:
“(3)In relation to any period during which there was a government-in-exile in relation to an allied country, defence force established by an allied country includes:
(a)the regular naval, military or air forces; and
(b)the nursing or auxiliary services of the regular naval, military or air forces; and
(c)the women’s branch of the regular naval, military or air forces;
raised by that government-in-exile and operated by it with regular military-like lines of command, that is to say, raised and operated in such a manner that the members of those forces and services:
(d)were formally appointed to, or enlisted in, those forces or services; and
(e)were required to wear uniforms or insignia distinguishing them as members of those forces or services; and
(f)were required to carry arms openly; and
(g)were subject to the rules and conventions of warfare.”
23. There is a further extended meaning of “defence force” in subsection 5R(2). However, that subsection is not relevant to the present matter, because it was accepted that when Mr Cmielewski joined the military arm of the NSZ, and served with the HCB, he was required to wear a uniform or service insignia and to carry arms openly.
24. Mr Cmielewski relied in support of his application for review on two documents issued by The Republic of Poland after the post-war communist government was ousted by the Solidarity movement. The first is a resolution of 1 September 2000 of the Head of the Department of Combatants and Victimised Persons Affairs, Warsaw, which grants him combatants’ rights for service from October 1942 to May 1945. The second document is a decree of the President of the Republic of Poland dated 1 January 1988 to the effect that soldiers of the NSZ who did not combine with the Home Army, and who took part in combat against the occupants from 1939 – 1945, have fulfilled their duty towards The Republic of Poland as members of the nation and soldiers. Mr Cmielewski also referred to propaganda against the NSZ from the post-war Communist government of Poland, which was the result of the NSZ fighting against both the German and Soviet armies. He claimed that this resulted in great injustice to the NSZ and its members, and had led to the NSZ being classified as an “irregular” force by the Department of Veterans’ Affairs (see exhibit R1, T1, pages 1 – 4).
25. It is, of course, most fitting that the brave conduct of the members of the NSZ has been officially recognised by the Polish government. However, I must determine Mr Cmielewski’s application by reference to the relevant legislation that applies in Australia, which I have referred to above.
26. Mr Cmielewski’s reference to the NSZ being classified as an “irregular” force is referred to in the reviewable decision of the second delegate (exhibit R1, pages 7 – 9) and a table extracted from the DVA computer resource called “Consolidated Library of Information and Knowledge” (“CLIK”) (exhibit R1, T17, page 79). Mr Cmielewski said that he had been advised by the Commission that they now have no records as to why the NSZ was classified as an irregular force in CLIK, and no such records were produced in the present proceedings. However, this classification arose from the provisions of Division 5B of the Repatriation Act 1920. These provisions were enacted in 1979, and extended some benefits available under that Act to certain members of the forces of an allied country, other than “irregular” forces. That Act was repealed when the current VE Act commenced operation in 1986. It is possible that the CLIK classification of the NSZ was influenced by information provided by the former communist government of Poland, as Mr Cmielewski suggested, but that classification is not relevant to the issue before me under the legislation in its current form, since I am satisfied that neither the NSZ nor the HCB were part of the “regular naval, military or air forces” of Poland within the meaning of the expression “defence force established by an allied country” in subsections 5C(1) or 5C(3) of the VE Act.
Consideration
27. Each party referred to the definitions of “defence force established by an allied country” appearing in the above subsections. The Commission conceded that the members of the NSZ fulfilled the requirements of subsections (d), (e), (f) and (g) of the definitions. Each party then proceeded to make submissions as to whether it could be said that the NSZ or the HCB had been raised and operated by an allied country, or by the government-in-exile (as the case may be), and referred to the evidence of the involvement of the Polish government-in-exile in London with the raising and operation of the NSZ and the HCB.
28. However, in my opinion, the definitions contain within themselves an explanation of what is meant by the concept of the relevant force having been raised and operated by the allied country (or the government-in-exile). The definitions are not confined to how the force was raised and operated per se; the definitions refer to the force having been “raised … and operated … with regular military-like lines of command”, and then proceed to explain, in the ensuing paragraphs (d) to (g), what is meant by that concept. And because the Commission accepts that the requirements of those paragraphs have been fulfilled, the concluding portion of each definition is not in issue.
29. The advocate for the Commission, Mr Crowe, further contended that the requirements of paragraphs (a), (b) and (c) of the definitions of “defence force established by an allied country” are not satisfied in this case. I agree with that contention. I am not satisfied on the evidence before me that either the NSZ or the HCB could be described as the forces, services or branches referred to in those paragraphs of the definitions.
30. It is, however, significant that the definition in subsection 5C(3):
· is expressed to apply in relation to any period during which there was a government-in-exile in relation to an allied country; and
· is not exhaustive, because (in contradiction to the definition of “allied defence force established by an allied country” in subsection 5C(1), which uses the word “means”) it provides that the defined expression “includes” the enumerated forces, services or branch.
As pointed out in D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia (6th Edition, 2006) at [6.56] and [6.58], the word “includes” generally indicates that the defined expression is intended to extend to some matters which would not fall within the customary meaning of the expression. Further, as appears from [6.69] at page 243.2 and the cases there cited, a change in drafting from “means” to “includes” in the context of statutory definitions (as is the case with the expression in question where it appears in subsections 5C(1) and 5C(3) of the VE Act) can itself indicate that the word “includes” is intended to enlarge the ordinary meaning of the defined expression.
31. I must accordingly consider, having regard to ordinary precepts of statutory interpretation, what is meant by the words “the defence force established by an allied country” in relation to the period during which there was a government-in-exile in relation to Poland, for the purposes of the definition of “allied veteran”, and the application of par 7A(1)(c) of the VE Act.
32. Counsel for the applicant, Mr Lynch, relied on par 119(1)(g) of the VE Act, and submitted that the Commission should not rely on technicalities to deprive Mr Cmielewski of his status as an allied veteran. This provides relevantly in effect that in considering, hearing or determining a claim or application, the Commission shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities.
33. However, the Federal Court has made it clear in a number of cases that this subsection does not permit a decision-maker to disregard the relevant statutory criteria for the grant of benefits under the VE Act. I refer to the comments in this regard of Mansfield J in Fenner v Repatriation Commission [2005] FCA 27 at [23], and to the other authorities to which his Honour there refers.
34. I nevertheless take into account, in approaching the task of interpreting the relevant provisions, that the VE Act is beneficial legislation, and if there is doubt as to construction, the doubt should be resolved in favour of the applicant: Repatriation Commission v Hawkins (1993) 45 FCR 205 at 211; Whittaker v Comcare (1998) 86 FCR 532 at 544E – G; Pearce and Geddes, op. cit at [9.2] – [9.3].
35. The expression in issue, namely “the defence force established by an allied country” commences with the definite article. This suggests that there can only be one defence force established by the relevant allied country. However, the definition of this expression in subsection 5C(3) refers (non-exhaustively, as I have said) to different parts of the defence force, that is the regular naval, military or air-forces, their nursing or auxiliary services, and the women’s branches of such services. I think this indicates that the definition would extend to parts of the defence force if they were established by an allied country within the meaning of the definition, and that the defence force consists of its separate parts if such parts are so established.
36. The next issue is whether the NSZ or the HCB could be said to have been “established” by the Polish government-in-exile.
Meaning of “established”
37. According to the Macquarie Dictionary, 4th Edition, the word “establish” has the following meaning:
“1. to set up on a firm or permanent basis; institute; found: to establish a government; to establish a business; to establish a university. 2. to settle or install in a position, business, etc: to establish one’s son in business. 3. to settle (oneself) as if permanently. 4. to cause to be permanently accepted: to establish a custom; to establish a precedent. 5. to show to be valid or well grounded; prove: to establish a fact; to establish a theory; to establish a claim. 6. to appoint or ordain for permanence, as a law; fix unalterably. 7. to set up or bring about: establish order. 8. to make (a church) a national or state institution. 9. Cards to obtain control of (a suit) so that one can win all the subsequent tricks in that suit. 10. (of a business, organisation, etc.) to set up a secure and stable operation.”
38. The meaning of “established” was considered in a decision of this tribunal not cited by either party, namely Re Quo and Repatriation Commission (1992) 26 ALD 281. In that case, it was decided that the applicant’s service constituted service with the Security Forces of Malaya which were engaged in suppressing terrorists and guerrillas. It was held that the defence force constituted by those Security Forces was “established” by a Commonwealth country even though it was set up by the United Kingdom, not Malaya, prior to Malayan independence in 1959. The tribunal decided that the maintenance of the Security Forces must be taken to have been “sanctioned … and to that extent to have been established” by the government. The tribunal added, at 298.2:
In this respect “established” should not be taken in a narrow sense to refer only to the original constitution of the force. “Establishment” certainly carried the connotation of official recognition or support in appropriate circumstances: Attorney-General (Victoria); ex parte Black v Commonwealth (1981) 146 CLR 559; 33 ALR 321 per Gibbs at (CLR) 595.”
39. The tribunal also added that as a product of the civil executive authorities governing the country at the time before independence, the force could be taken to have been “established” by it. Finally, the tribunal referred to a concession that Malaya was a Commonwealth country at the relevant times, and said it saw no reason to find against the applicant on the issue of whether the force was “established” by a Commonwealth country, particularly as this had not been raised as an issue.
40. In my view, the fact that pre-independence steps were taken to establish the Security Forces of Malaya is a significant aspect of the factual background to the decision in Quo, and supports the conclusion that the tribunal reached. However, the circumstances in which the NSZ and the HCB were established were very different, and whilst the decision is relevant and helpful, I do not regard it as determinative of the present matter.
41. The tribunal in Quo referred to a passage from the judgment of Gibbs J in Attorney-General (Victoria) ex parte Black v Commonwealth (supra) in support of its interpretation of the word “established”. That case involved the interpretation of s 116 of the Commonwealth Constitution, which prohibits the Commonwealth from making any law “for establishing any religion or for imposing any religious observance, or prohibiting the free exercise of any religion.” The High Court of Australia considered the meaning of “establishing any religion” at the time of the formation of the Constitution. The majority decided that the section did not in effect constitute a guarantee of religious freedom by prohibiting the Commonwealth from making any law which provides any recognition, support or aid to one or more religions. In the course of their judgments, their Honours considered possible alternative meanings of the above expression, and these meanings took into account and were derived from various possible relationships, including historical relationships, between the state and religion. The Court concluded (Murphy J dissenting) that s 116 refers in effect to legislation conferring on a religion or a religious body the position of a State religion or a State church (see Barwick CJ at 582.3; Gibbs J at 596.1 and 597.9; Stephen J at 606.2; Mason J at 616.6; and Wilson J at 653.4; Aickin J at 635.1, agreeing with Gibbs and Mason JJ; contra Murphy J at 622.8 to 623.8). The Court accordingly referred to the particular meaning of “establish” in the context of religion, and was interpreting a section in the Constitution. This entailed deciding what was intended in 1900 when the Constitution was adopted, and the application of s 116 entails examining the purpose of a particular Commonwealth law to decide whether it infringes a constitutional prohibition on the Commonwealth.
42. The decision of the High Court therefore involved interpreting the meaning of “establishing” in a special and very specific context. I think that the case is of limited assistance in the present matter. I do, however, bear in mind the comment by Stephen J (at 606.1) to the effect that perhaps the most usual meaning of “establishing” is setting up or founding.
43. If Parliament had intended that the defined expression should refer only to the defence force that constituted the country’s official national or state defence force (that is, the word “established” was to be understood in the sense generally used in the context of a church, to indicate that the relevant organisation was a national or state institution) one would have expected the definition to have read “the established defence force of an allied country”. However, the defined expression expressly includes the regular defence force, which would include the “established” (in the sense I am now postulating) defence force, and this express inclusion in the definition would have been unnecessary if the word “established” had been intended to convey that postulated meaning. Further, as I have pointed out above, that definition is not exhaustive. I think it reasonable to conclude that Parliament thought it inappropriate to confine the defined expression to the regular or “established” defence force where a government of an allied country was in exile. This is because when a government is in exile it is likely that the allied country would be occupied by hostile forces or that its recognised government would have been overthrown by others; and in those circumstances it would be expected that the regular (or “established” in my postulated sense) defence force would either have been defeated and disbanded, or at the very least, would be unable to fulfil its function of defending the allied country and implementing the orders of the government-in-exile. I accordingly think Parliament must have intended the expression to have a wider meaning than the defence force that constituted the country’s official national or state defence force.
44. During a period when the government of the allied country is in exile, its ability to “establish” a defence force (or some part of it) in the sense of setting up or founding it will of necessity be greatly curtailed. Parliament must be taken to have realised this when enacting the provisions relating to allied veterans, and this should be taken into account in determining the meaning of the expression “the defence force established by an allied country” in subsection 5C(3). In my opinion, the expression extends beyond the forces expressly referred to in the subsection, and includes forces set up, or founded by an allied country, or sanctioned, recognised or supported by an allied country.
45. In applying the definition on the facts of the present case, I must take into account that the Polish government-in-exile was located in a city remote from Poland, as well as the total repression of the Polish people by the occupying forces, and the total breakdown of the pre-war government and community structure of Poland. In such circumstances, it would not be reasonable to expect the government-in-exile to undertake the sort of administrative action within Poland that would ordinarily be entailed in setting up an organisation to become part of the defence force of the country. I think that evidence of some appropriate specific order from the Polish government-in-exile to a person of influence or authority within Poland would be sufficient to satisfy the requirement that the defence force had been “established” by the allied country, in the sense of having been set up or founded, if that order resulted in the setting up or constitution of an organisation to be part of the defence force of Poland.
46. I now turn to the evidence before me as to the establishment of the NSZ and the HCB.
Was the NSZ established by the Polish government-in-exile?
47. The circumstances of the creation of the NSZ are helpfully summarised in the report dated 15 May 2006 by Dr Walter Kudrycz (exhibit R3(c)). It appears from this report that a pre-war nationalist association formed an underground resistance organisation following the occupation of Poland and its division between Germany and Russia. In September 1942 this organisation, called the Salamander Association (“SJ”), numbered approximately 65,000 and operated throughout Poland. It then absorbed another smaller group called NOW, and the merged organisation, numbering around 75,000, called itself the NSZ.
48. Dr Kudrycz goes on to say in his report that the Polish government (in exile or otherwise) played no known role in the creation of the SJ. However, by the time that association became the NSZ, the organisation had established and developed relations with the Polish government-in-exile in London. Dr Kudrycz adds:
“It is not clear whether the government-in-exile played any active role in SJ’s incorporation of NOW, and in the subsequent renaming of the new organisation. It is, however, known that the Polish government-in-exile was involved in reorganising the new group and in giving it a regular-army structure.” (exhibit R3(c), paragraph 5, page 2; emphasis added)
49. In describing the involvement of the Polish government in the operations of the NSZ, Dr Kudrycz said:
“Most NSZ operations were intelligence-gathering missions. The NSZ passed on the information gathered in the course of these missions to the Polish government-in-exile - either directly or via the Home Army. Many of these missions were carried out at the suggestion of the Polish government-in-exile and with the assistance of British Special Forces.
The NSZ regularly cooperated with the Home Army on operations. Around 1,000 NSZ personnel fought alongside the Home Army during the Warsaw Uprising in late 1944.
Despite having its own traditions and lineage, the NSZ should be accorded the same status as the Home Army in terms of it being both an extension of the will of the Polish government-in-exile, and part of the allied cause.” (exhibit R3(c), paragraph 6, pages 2 – 3)
This last comment was not made by reference to the statutory criteria in the VE Act, which is of course what I must have regard to in order to determine the issue that arises from Mr Cmielewski’s application to this tribunal.
50. It appears from the material before me that as a result of the continuing efforts of the commanding officer of the Home Army to bring smaller partisan groups under its control some of the members of the NSZ later joined the Home Army. However, the remaining members continued to operate as a separate organisation. Mr Cmielewski said that members of the NSZ used pseudonyms, and he and others were not willing to join the Home Army because if they had done so, they would have been obliged to have disclosed their true identities, thus potentially putting their families at risk if this information fell into the hands of the Gestapo. In addition, the people in the section of the NSZ to which he was attached were concerned about a loss of independence if it joined the Home Army.
51. Mr Cmielewski also explained that members of the NSZ came to mistrust the communists in Poland, particularly after the discovery in April 1943 of the bodies of Polish officers who it was found had been murdered by the Soviets. Mr Cmielewski agreed that the NSZ saw itself as in opposition both to Germany and to Soviet Russia (transcript page 27.6).
52. The other historian called by the Commission, Mr Pelvin, refers only briefly to the involvement of the government-in-exile with the NSZ. He does not deal with the circumstances of the establishment of the NSZ, but does say:
“The NSZ recognised the Government-in-Exile but it appears that its control over NSZ activities was limited.” (exhibit R2, paragraph 8)
53. In answer to a question as to any part that the Polish government-in-exile played in the formation of the NSZ, Mr Cmielewski said that the NSZ was started in Poland by people who had escaped from the German forces and who started to organise themselves, and the NSZ was later recognised by London (transcript page 27.9).
54. In his witness statement, Mr Cmielewski says:
“55. Both (ie the NSZ and the Home Army) were recognised by the Polish government in London and both organisations took orders from the Polish government in London. The headquarters of the NSZ had irregular radio contact with the government in London at most times but this was occasionally interrupted by military actions. This was particularly the case when our brigade was heading west to avoid the Soviets armies. The NSZ also sent many couriers to and from London, generally through Sweden.
…
59. We had support from time to time from British officers and Polish officers who were parachuted into Poland. We did not get many weapons from parachute drops from the British. Little was sent to Poland because of the distance but most of the small amount of material went to the Home Army as the bigger organization. However we did get some weapon drops from London. All the support came from the British Army with the cooperation and support of both the British and the Polish governments.” (exhibit A1, pages 5 – 6)
Mr Cmielewski also produced a photograph of a group of NSZ personnel, which included a British pilot (exhibit A5).
55. On the evidence before me, I find that the NSZ first evolved as a significant resistance group through the activities of Polish people who were seeking to defeat the hostile forces occupying Poland, and to re-establish the independence of Poland. I am also satisfied that:
(a)at or about the time when the resistance groups had amalgamated and formed the NSZ (that is, according to Dr Kudrycz, in September 1942) the organisation was recognised by the Polish government-in-exile;
(b)this situation continued from then until at least the early part of 1945, and that from time to time the Polish government-in-exile issued orders to the NSZ, and provided some support and arms to them;
(c)the NSZ carried out orders issued by the government-in-exile (although not necessarily all such orders), and on occasions the NSZ also acted independently as exigencies demanded; and
(d)the Polish government-in-exile maintained contact with those commanding the NSZ in Poland.
56. Dr Kudrycz refers to one further matter, namely that the Polish government-in-exile was involved in reorganising the newly formed NSZ and in giving it a regular-army structure (see paragraph 48 above). As mentioned above, the ability of a government-in-exile to establish a defence force within a country occupied by hostile forces that had subjugated its population was obviously extremely curtailed. It seems to me that having regard to the circumstances that existed within Poland, the actions of the Polish government-in-exile in reorganising what was a numerically and geographically significant resistance group within Poland and in giving it a regular-army structure, and thereafter recognising, supporting and (to the extent possible) controlling it, and (as Dr Kudrycz also said) arranging on occasions for it to join in actions with the Home Army, leads to the conclusion that the Polish government-in-exile established the NSZ as part of the defence force of Poland. I so find.
Was the HCB established by the Polish government-in-exile?
57. In case I am wrong in my conclusion regarding the NSZ, I will also consider whether the HCB was part of “the defence force established by an allied country” within the meaning of subsection 5C(3).
58. It would follow from my finding in relation to the NSZ that a person who served with the HCB would be covered by the above expression if the HCB was at all times after its formation part of the NSZ. However, I am not satisfied on the current state of the evidence that that was the position, and the above proposition was not explored, since the parties’ argument before me related to the HCB in its own right. I will therefore consider the position of the HCB from that perspective.
59. Mr Cmielewski gave evidence that he received an order to meet at a place called Lasocin on a future date, and that he and others from the NSZ all met there on the stipulated date, and that was where the HCB started (transcript page 32.7). Both Mr Cmielewski and Mr Pelvin said that the HCB was formed on a specific date, namely 11 August 1944. This is consistent (disregarding the discrepancy of one day) with a letter dated 12 August 2001 marking the commemoration of the 57th anniversary of the “birth” of the HCB (see exhibit A2).
60. Mr Cmielewski describes the formation of the HCB in his witness statement as follows:
“64. In July 1944 or thereabouts (before the Warsaw Uprising) General Sosnkowski the Commander-in-Chief of the Government in London, ordered the partisan groups, including the AK and the NSZ, to form themselves in to larger military units.
65. The NSZ units in our area then came together and on 11 August 1944 we formed a brigade.
66. This brigade was known as the Holy Cross Brigade because it was located and operated in an area of Poland known as the Holy Cross Mountains. This was the brigade in which I served. Only one group at the NSZ was able to organize itself to brigade strength.
67. This NSZ brigade was organised militarily in to battalions of about 1,000 soldiers and nurses and they were divided into companies and platoons like an ordinary army organisation. We finished with over 1,500 men as soldiers escaping from Warsaw joined us.” (exhibit A1, pages 6 – 7)
In his evidence, Mr Cmielewski said that the order from London was not only for the leaders of the NSZ and the AK, but also the other resistance groups that existed (transcript page 32.5). He also said that the order was to form “four big groups” (transcript page 29.9).
61. In cross-examination, Mr Cmielewski said that he became aware that the HCB was the first group to organise themselves into a big unit from information provided at a mass on 11 November 1944, when those present were told that they were the first of the four to be organised. Mr Cmielewski added that he was interested in books about the NSZ, but had seen no reference in those books to any orders from London which led to the establishment of the HCB (transcript page 34.9). Reference was made during the hearing to a book containing the memoirs of Colonel Antoni Bohun-Dabrowski, the officer-in-charge of the Holy Cross Brigade. It occurred to me following the hearing that this book might contain relevant information as to the establishment of the HCB or the NSZ, and I note that neither of the historians referred to this book in their bibliographies that were included in their reports. I accordingly specifically requested the applicant’s solicitors to advise whether there was any reference to the involvement (if any) of the Polish government-in-exile to the establishment of the HCB or the NSZ in this book. I was informed there was no such reference.
62. When he was requested by the Commission to provide a report, Mr Pelvin was asked to address in his report the issue of what was the involvement of the Polish government (in exile or otherwise) in the creation of the HCB, and in the operation of the HCB. He addressed the latter question, but not the former (see exhibit R2, paragraph 11).
63. In his evidence, Mr Pelvin said that he had no evidence of any input from the Polish government-in-exile to the formation of the HCB, and was not aware of any such input (transcript page 38.5). He said that there were communications between the HCB and the government-in-exile, and when it “suited”, the HCB cooperated with that government (transcript page 43.9).
64. In his report (exhibit R3(c)), Dr Kudrycz said that it is not known whether the Polish government-in-exile played any active role in the creation of the HCB. He added that given the relationship between that government and the NSZ, it was likely that the government-in-exile knew of, and assented to, the amalgamation of the NSZ units that led to the creation of the HCB, and the organisational structure within the HCB. In his evidence, Dr Kudrycz said that it was only his “feeling” that the Polish government-in-exile would have known about the formation of the HCB, and he did not have any “proof” that it actually called for the formation of the HCB (transcript page 69.1). In cross-examination, he said that he knew of a directive from the Polish government-in-exile that some of the separate resistance organisations should combine to form a fewer number of larger resistance organisations. He added:
“And I can say that the formation of the Holy Cross Brigade was, at the very least, consistent with this directive. One can’t adduce a direct causal link there but one may well infer that the Holy Cross Brigade did follow that directive and formed itself thus.” (transcript page 69.5)
65. It therefore appears that neither of the historians has seen any evidence to suggest that the government-in-exile played any part in the formation of the HCB. I accept Mr Cmielewski’s evidence as to the issue of the order from London to the resistance organisations to form themselves into four larger groups, and indeed Dr Kudrycz seems to accept the likelihood that such a direction was given at a time before the Warsaw Uprising. However, there is no suggestion that the direction from London was issued only to the NSZ, or in particular that there was any direction to form one large group from the NSZ units operating in the Holy Cross Mountains area. I am not satisfied on the evidence before me that the HCB was established by the Polish government-in-exile in the sense that it was set up or founded by that government.
66. However, I am satisfied that the HCB was sanctioned, recognised and supported by the Polish government-in-exile, and that accordingly, on my interpretation of the relevant defined expression, the HCB was part of “the defence force of an allied country” for the purpose of par 7A(1)(c) and the definition of “allied veteran”. I base this finding on the evidence before me of Mr Cmielewski and the historians to the effect that the NSZ and the HCB received some assistance from the Polish government-in-exile, and on occasions carried out its orders and joined in, or cooperated with, the actions of the Home Army, and the HCB embarked on its long march to join other allied forces on the orders, or with the support, of the Polish government-in-exile.
Recognition by current Polish Government
67. As I have said, the current government of Poland has officially recognised the position of the members of the NSZ by issuing the resolution and decree to which I referred in paragraph 24 above (and as I have already said, that is most fitting). However, the relevant provisions of the VE Act entail examining the status of the defence force of the allied country at the time when the relevant service was rendered. That subsequent action by the current Polish government is not therefore relevant to the determination of Mr Cmielewski’s application.
Exclusion from definition of “allied veteran”
68. There was some evidence that during the course of the march to the west, the HCB entered into some negotiations with German forces as a device to proceed with their march. However, this did not amount to supporting or assisting the German forces within the meaning of paragraph (c) of the definition of “allied veteran”, as was properly conceded on behalf of the Commission.
69. The Commission also contended that the HCB took part in action against Soviet forces in the course of actions at a number of specific places. I am satisfied that in one of these actions, namely the action on 8 September 1944 at Rzabiec, the HCB engaged in war-like operations against forces which comprised in the main communist partisans, but also included some Soviet troops. It appears from Dr Kudrycz’s evidence that the casualties sustained by Soviet forces led to this action being mentioned by Stalin to Sir Winston Churchill, and this supports the conclusion that Soviet forces were involved in that action (see transcript page 78.4).
70. However, the exclusion in paragraph (d) of the definition of “allied veteran” refers to the person having served in forces that were engaged in war-like operations against “the Naval, Military or Air-Forces of Australia”. There is no evidence that those Australian forces were involved in the action at Rzabiec, or in any of the other actions in which the HCB engaged. Mr Cmielewski is therefore not excluded from the definition of “allied veteran” by paragraph (d) of the definition.
Decision
71. The tribunal sets aside the decision under review and in place of that decision decides that the applicant has rendered qualifying service during the periods when he was a member of the National Armed Forces of Poland and of the Holy Cross Brigade.
I certify that the 71 preceding paragraphs are
a true copy of the reasons for the decision
herein of Deputy President D G JarvisSigned: .....................................................................................
L. Wunderer AssociateDate/s of Hearing 13 October 2006
Date of receipt of final
submissions 30 November 2006
Date of Decision 11 December 2006
Counsel for the Applicant Mr K P Lynch
Solicitor for the Applicant Lynch & Meyer
Advocate for the Respondent Mr A Crowe
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