Bailey and Repatriation Commission (Veterans' entitlements)
[2021] AATA 572
•17 March 2021
Bailey and Repatriation Commission (Veterans' entitlements) [2021] AATA 572 (17 March 2021)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/6386
Re:James Bailey
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:R CAMERON SENIOR MEMBER.
Date:17 March 2021
Place:Melbourne
The Tribunal affirms the decision under review.
.............[]..........................................
R CAMERON SENIOR MEMBER
Catchwords
VETERANS AFFAIRS – conditions – war caused – Statement of Principles – Deledio steps – Veteran Entitlement Act – Veterans Review Board – Royal Australian Navy – Statement of Principles – decision under review is affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlements Act 1986 (Cth)Cases
Bailey v Repatriation Commission [2019] FCA 1840
Deledio v Repatriation Commission (1997) 47 ALD 261
East v Repatriation Commission (1987) 16 FCR 517
Forrester v Repatriation Commission [2013] FCA 898
Repatriation Commission v Deledio (1998) 83 FCR 82REASONS FOR DECISION
R CAMERON SENIOR MEMBER.
17 March 2021
INTRODUCTION.
Unfortunately, since the commencement of this matter the Applicant has passed away. Insofar as it is relevant, the Tribunal notes that the parties have agreed that the application be continued by the executor nominated in his will on behalf of the deceased estate.
For some time, the Applicant had been in receipt of a disability pension for the accepted disabilities of Chronic Bronchitis and Emphysema, under the applicable provisions of the Veterans Entitlement Act 1986 (Cth) (“the Act”).
On 29 May 2015, the Applicant made a claim to the Respondent Commission to increase the rate at which he received a disability pension, due to a claimed condition of cirrhosis of the liver caused by drinking alcohol, which had been diagnosed that year. He contended that his excessive drinking habits that caused his cirrhosis of the liver, had been triggered as a result of stressors he was exposed to during operational service undertaken by him whilst serving as a member of the Royal Australian Navy between July 1960 in July 1972.
On 9 October 2015, a delegate of the Respondent Commission rejected the Applicant’s claim for the increased rate of disability pension. The grounds relied on by the Respondent’s delegate were that it included the Applicant’s condition of cirrhosis of the liver was not caused by his operational service. This result was predicated on a finding concerning the Applicant’s drinking habits prior to his commencement on operational service. Additionally, there was a finding that his operational service had not exacerbated the claimed condition being cirrhosis of the liver.
As he was entitled to do, the Applicant sought review of the decision of the delegate by an appeal to the Veterans Review Board (“VRB”). The VRB on 27 September 2016 affirmed the decision of the delegate.
The Applicant took the matter to this Tribunal constituted by another Senior Member seeking further review. That presiding Senior Member of this Tribunal also affirmed the decision under review from the VRB on 25 October 2017.
An application was made to the Federal Court of Australia appealing against the decision of this Tribunal of 25 October 2017. By an amended notice of appeal, three grounds were relied upon. The matter was heard by Anastassiou J.[1]
[1] [2019] FCA 1840.
Two of those grounds of appeal were successful, and the matter was remitted to this Tribunal for rehearing before a differently constituted Tribunal.
CONDUCT OF THIS APPLICATION.
This application was conducted by way of a formal hearing. Counsel appeared for both the Applicant and the Respondent.
There was an array of documentary evidence that was tendered including the previous exhibits, together with the transcript of the hearing of the previous application before a differently constituted Tribunal on 19 July 2017. Additionally, documentary evidence of a historical nature was also tendered during the further hearing of the Application. It need not be identified in full for the purposes of this section of these reasons. Where necessary, such documentary evidence will be identified in more precise detail at an appropriate juncture.
Counsel made oral submissions from the bar table. Additionally, there were a variety of written submissions together with the usual Statement of Facts, Issues and Contentions lodged by each party. With leave of the Tribunal counsel for both parties also filed further submissions after the conclusion of the formal hearing which have been considered.
There was no viva voce evidence given at the hearing. However, for the sake of completeness it should be observed that the transcript of evidence of the earlier hearing in July 2017 included a record of the viva voce evidence given by the Applicant on that occasion.
BACKGROUND.
The Applicant was born on 1 October 1944. He joined the Royal Australian Navy on 10 July 1960 at the age of 16 years old. He completed his period of service and was discharged on 10 July 1972.
His initial training upon joining the Navy was at HMAS Leeuwin in Western Australia for a period of approximately 12 months. His evidence was that whilst stationed at HMAS Leeuwin the recruits were not permitted to drink alcohol at all, and further, he did not drink alcohol during his time there.
Upon the completion of his initial 12 months recruitment training, he was transferred to what he described as the “eastern states” and posted to HMAS Anzac. It was his first sea posting. In both his statement, and viva voce evidence, he said that he commenced drinking alcohol when posted to the HMAS Anzac. His evidence was that during his posting to HMAS Anzac, his consumption of alcohol commenced. The ship’s company were issued with one open 26 ounce can of beer per day depending on the activities that the vessel was engaged in. The ratings were not issued with a large can of beer if for instance, the ship was engaged in exercises with other vessels. His estimate was that whilst at sea, the ship’s company were issued with a can of beer about 50% of the time.
Following service on the HMAS Anzac, the Applicant was posted to the HMAS Voyager. His postings to the HMAS Voyager were on two occasions from 17 September 1962 to
4 November 1962 and 9 November 1962 to 9 January 1964. During his posting on HMAS Voyager, he undertook operational service between 8 February 1963 to 1 March 1963, 10 March 1963 to 29 March 1963 and 15 April 1963 to 10 May 1963. More will be said about the operational service rendered by the Applicant later in these reasons. However, precise details of the dates of his eligible war service (operational service) are helpfully contained in paragraph 6 of the VRB decision.[2] The operational service undertaken by the Applicant on HMAS Voyager on the dates identified between February 1963 and May 1963 occurred in the region of the Malay Peninsula and Singapore.
[2] Document T 2, page B 4 of the T documents.
The Applicant was not posted to the HMAS Voyager when it collided with the aircraft carrier HMAS Melbourne in Jervis Bay on 10 February 1964. However, he did know several members of the crew of that vessel who died in the tragedy.
It was the Applicant’s evidence that prior to the first period of operational service in the Malay Peninsula and Singapore which commenced on 8 February 1963, that usually he continued to consume one large can of beer per day when it was available and appropriate to do so. The Applicant stated that he became particularly anxious as a result of undertaking operational service, in an area where it was possible that the vessel upon which he served would come into conflict with Indonesian military forces. It will be recalled that this period was when an armed conflict was occurring in the region of Malaysia and Singapore. This conflict was known as the “Indonesian Confrontation”. For the sake of completeness, it should be observed that this was about the time that Malaysia gained its independence from Great Britain. Further at that time Singapore was a member of the Malay Federation.
The next ship posting of the Applicant relevant to this application was to HMAS Yarra which was an anti-submarine frigate/destroyer escort. He rendered operational service on that ship during the Indonesian Confrontation between 31 March 1965 and 9 June 1966. The Applicant stated that he continued to drink heavily prior to these tours and continued drinking virtually as much as he could following the tours of North Borneo in 1965. His periods of operational service occurred in the regions of North Borneo, together with the Malay Peninsula and Singapore.
QUESTION FOR THE TRIBUNAL TO DETERMINE.
The question for the Tribunal to determine in this case is whether the Applicant’s disease, cirrhosis of the liver, was “war caused” within the meaning of section 9 of the Act.[3]
[3] The formulation of this question it is self-evident from the material before the Tribunal. The Applicant’s Submissions of 10 August 2020 formulated a question in similar form. At paragraph 9 of the reasons of Anastassiou J in the Federal Court of Australia [2019] FCA 1840, a question using this terminology was adopted by the learned Judge.
A BRIEF OUTLINE OF THE LEGISLATIVE SCHEME APPLICABLE TO THIS APPLICATION.
Anastassiou J in the Federal Court of Australia appeal concerning this application provided a most accurate summary of the legislative scheme applicable to applications of this type. The following observations are largely derived from his reasons in this matter as there is no reason to depart from them.
It is not necessary to embark upon an excursion into the rather complex, and to quote Mortimer J, “the complicated convolutions of the statutory standards and prescriptions on causation set out in sections 120 and 120A of the Act”.[4]
[4] See Forrester v Repatriation Commission [2013] FCA 898 at [9].
The Act contains a scheme which provides that ex-servicemen and women incapacitated by war caused injury or disease have an entitlement to a pension.[5] A “veteran” within the meaning of the Act,[6] who contracts a disease that arose out of, or was attributable to, operational service[7] is to be assessed for a pension in accordance with the standards of proof contained in sections 120 and 120A of the Act.
[5] Section 13 (1) of the Act.
[6] Section 5C (1) of the Act.
[7] Section 7 (1) (a) of the Act.
In undertaking the statutory task required by sections 120 and 120A of the Act. the Full Court of the Federal Court of Australia in the case of Repatriation Commission v Deledio[8] (“Deledio”) explained that the decision-maker must embark upon a four-step analytical process as follows:
“1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
[8] (1988) 83 FCR 82 at 92.
Anastassiou J described the four steps articulated in Deledio as a staged process which is an astutely designed analytical guide, to ensure that the ultimate question of whether the injury to the veteran was war caused is not precipitated before the application of the beneficial standard contained in section 120(1) of the Act. As he observed, the section is plainly intended to confer a significant evidentiary and forensic benefit upon a veteran in the proof of causation. This is quite literally the benefit of the doubt, save in cases where it may be concluded beyond reasonable doubt that there is no causal connection between operational service and the injury or disease suffered by the veteran.
Anastassiou J, in a most helpful passage,[9] explained that the section is frequently stated to impose a “reverse criminal onus”. Such expression may be apposite to a degree, but not entirely. There is no onus on the Applicant nor on the Respondent. It is only the “reverse” of the criminal standard of proof in that the Tribunal is required to be satisfied of the negative, namely that the injury was not war caused. The requirement that the Tribunal be satisfied that the injury was not war caused to the criminal standard of proof requires it to affirmatively determine when undertaking the fourth Deledio step, assuming it reaches that point, that the injury was not war caused.
THE FIRST DELEDIO STEP-HYPOTHESIS.
[9] [2019] FCA 1840 at [38].
The hypothesis contended for by the Applicant is that his condition of the cirrhosis of the liver was war-caused within the meaning of section 9 of the Act, by reason of his increased levels of drinking due to the operational service undertaken by him during which he was exposed to several stressors.
In undertaking the tasks required of the Tribunal in the first Deledio step, it is obliged to consider all the material before it and determine whether such material points to a hypothesis connecting the injury or disease with the circumstances of the particular service rendered. There is no fact-finding requirement at this stage. If, upon a consideration of all of the material it described, it does not point to such hypothesis, or it does not arise, the application must fail.
In support of a contention that the whole of the material before the Tribunal pointed to or supported the hypothesis advanced; the Applicant’s counsel identified a number of matters that are relevant. They were as follows:
(a)There were several periods of operational service, in particular on HMAS Voyager and HMAS Yarra;[10]
(b)The Applicant felt anxious during his operational deployment due to the threat of attack by the Indonesians who he believed were equipped by and/or supported by the Soviet Union both in terms of surface vessels, aircraft and equipment;
(c)His drinking habits increased during his first period of operational service by reason of the stressors he experienced during such service, together with his anxiety about the threat from Indonesian aircraft and ships;
(d)He continued to drink heavily after his operational service during 1963 and that his consumption was considerably higher than it had been prior to such service;
(e)Although not permitted to drink alcohol during operational service, the Applicant took drinking to the point of inebriation on most occasions during shore leave and did so to alleviate his anxiety about the fear of being fired at when undertaking operational service in a war zone;
(f)Before and after operational service on HMAS Yarra in 1965, he drank virtually as much as he could;
(g)His excessive drinking continued, and he only ceased consuming alcohol in 2015 after diagnosis of his condition of cirrhosis of the liver.
(h)He identified as a significant stressor the events occurring whilst posted to HMAS Voyager in the Malacca Straits in 1963 where he observed a significant number of dead bodies, and on some occasions actually handled them. Indeed, on some occasions in his evidence, he described seeing “a mass of dead bodies”.[11] This heightened his fear of potential armed engagement with Indonesian Armed Forces.
[10] The Applicant undertook three periods of operational service on HMAS Voyager in 1963. They were from:
·8 February 1963 to 1 March 1963;
·10 March 1963 to 29 March 1963; and
·15 April 1963 to 10 May 1963.
His periods of operational service on HMAS Yarra occurred in the years 1965 and 1966 as follows:
·31 March 1965 to 7 May 1965;
·27 May 1965 to 17 July 1965;
·29 July 1965 to 1 September 1965;
·24 March 1966 to 9 May 1966; and
·26 May 1966 to 9 June 1966.
[11] Transcript from Bailey and Repatriation Commission (Veterans' entitlements) [2017] AATA 1909 at page 9 line 31.
The Respondent contended that the whole of the material before the Tribunal did not point to or support the hypothesis advanced by the Applicant of a causal relationship between his operational service and continuing excessive alcohol consumption. It relied upon what it contended was no discernible, ongoing, increase in the Applicant’s alcohol consumption attributed to such operational service. It pointed to a heavy drinking pattern having been conceded by him as having commenced following his posting to HMAS Anzac in 1961. This was well prior to his periods of operational service. It also relied upon the Applicant’s admission of his increased drinking habits after the sinking of the HMAS Voyager following its collision with HMAS Melbourne in 1964, which of course was not operational service undertaken by the Applicant. Additionally, reliance was placed by the Respondent on the Applicant’s explanation about the causes of his excessive drinking on his return to Australia and subsequent discharge from the Navy.
There is much historical material before the Tribunal verifying those international tensions that occurred during the relevant times. It need not be referred to for the purposes of undertaking the first Deledio step, but of course it is an important part of all the material before the Tribunal. That historical material was extensive and lodged with the Tribunal by the Respondent.
The Respondent relied upon the content of the historical material to contend that in particular, the Applicant’s account of viewing large numbers of dead bodies and on some occasions actually handling them during his time of operational service aboard HMAS Voyager in the Malacca Straits in 1963, could not have occurred. This material points to the Applicant being mistaken concerning his account of those events.
The Tribunal cannot accept the contentions of the Respondent that the material does not point to or support the hypothesis that the Applicant contends. When undertaking the first Deledio step, the Tribunal does not embark upon a fact-finding process including the acceptance or rejection of evidence. It is not disputed that the Applicant undertook operational service. The Applicant also, it should be noted gave sworn evidence to the Tribunal at the first hearing of the application concerning his experiences. His operational service occurred over some considerable time during an occasion of heightened international tension in the regions in which he served.
The question of whether the Applicant might be mistaken and reference to the historical material the Tribunal considers require the decision-maker to venture into the realms of fact-finding or accepting or rejecting particular evidence. As has been reiterated on many occasions, this is not a task to be undertaken during the first Deledio step. The Tribunal will not do so.
The matters relied upon by the Applicant without making a finding of fact, certainly support his hypothesis that his experiences, whilst on active service, led to increased drinking habits that remained with him until such time as the diagnosis of his condition of cirrhosis of the liver.
The various stressors the Applicant described as experiencing whilst on operational service in the locations during times he did, are rational, logical and understandable. There will inevitably be a range of physical, mental and emotional reactions to such experiences which will manifest themselves in various people in many different ways. That someone who served on a front line naval vessel undertaking operational service, such as the Applicant did at the times he did, developed an unsafe drinking pattern that continued during the remainder of his naval service, and thereafter, points to, or supports the hypothesis contended for. It is well open to the Tribunal to have regard to such hypothesis as advanced without reaching a factual conclusion when one considers all of the material before it.
Accordingly, by reason of the foregoing matters the Tribunal concludes that having considered all the material before it, that such material does point to or support the hypothesis contended for by the Applicant, namely that his condition of the cirrhosis of the liver was war caused within the meaning of section 9 of the Act, by reason of his increased levels of drinking due to the operational service undertaken by him during which he was exposed to several stressors. Therefore, the first Deledio step is satisfied.
THE SECOND STEP-APPLICABLE STATEMENT OF PRINCIPLES.
Having considered all the material before it and determined that such material points to the hypothesis connecting the several conditions from which the Applicant suffers with the circumstances of his service rendered, the second Deledio step requires the Tribunal to ascertain whether there is in force a Statement of Principles (“SOP”) determined by the Authority under section 196B (2) or (11) of the Act .
At the time the Applicant made his claim there was a SOP applicable to “CIRRHOSIS OF THE LIVER” “(Reasonable Hypothesis)” (No. 1 of 2017).
Clause 9 "Factors that must exist", provides that least one of the factors identified in that the clause must, as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cirrhosis of the liver with the circumstances of a person's relevant service (war service).
Clause 9(1) provides that one of the factors is for males, consuming at least 110 kg of alcohol within any 10-year period before the clinical onset of cirrhosis of the liver.
Clause 10(1) “Relationship to service”, provides that the existence in a person of any factor referred to in clause 9, must be related to the relevant service rendered by that person.
The Tribunal finds that there is a SOP in force determined by the Authority under section 196B (2) of the Act about cirrhosis of the liver as defined therein.[12]
[12] Clause 7 "Kind of injury, disease or death to which this Statement of Principles relates", contains a definition of cirrhosis of the liver. It need not be repeated for the purposes of these reasons.
The Respondent has accepted that the Applicant has satisfied the alcohol quantity requirement of clause 9(1) of SOP No. 1 of 2017.[13] In any event, this concession by the Respondent is consistent with the evidence that was given by the Applicant.
[13] This concession was made by the Respondent in paragraph 15 of its Statement of Facts and Contentions dated 6 June 2017.
Therefore, by reason of the foregoing matters, the second Deledio step has been satisfied.
THIRD DELEDIO STEP
If a SOP is in force, the third Deledio step requires the Tribunal to form the opinion whether the hypothesis raised by the Applicant is a reasonable one. It will do so if the hypothesis fits, that is consistent with the “Template” found in the applicable SOP. In this case of course, No. 1 of 2017 “CIRRHOSIS OF THE LIVER”.
As Anastassiou J observed in the Federal Court, the question of whether there is a reasonable hypothesis for the purposes of 120(3) is a question of fact.[14] In doing so, he reiterated again, the third Deledio step requires the Tribunal to engage in a process of considering the whole of the material before it but precludes making any antecedent findings about a particular fact or matter.
[14] [2019] FCA 1840 at [34].
In contending that the hypothesis advanced on behalf of the Applicant is a reasonable one, most reliance was placed by counsel for the Applicant on the direct evidence given by him to support its factual foundation. That evidence has been briefly referred to earlier in these reasons and need not be repeated. Having identified this material, it is submitted that the Tribunal is not to be concerned with conflicts in the material when undertaking this step.
The Respondent contends that the existence of a material and ongoing change in the Applicant’s pattern of drinking after his operational service is an essential element of the hypothesis contended for by the Applicant. It asserts that taking into account all of the material before the Tribunal, it does not point to a discernible, ongoing, increase in the Applicant’s consumption of alcohol post his operational service. Therefore, the whole of the material does not raise a reasonable hypothesis giving rise to a causal connection between the Applicant’s cirrhosis of the liver and these specific periods of operational service that he undertook.
The concept of a reasonable hypothesis in the context of section 120(1) of the Act was explained by the Full Court of the Federal Court of Australia in East v Repatriation Commission.[15] The definition of hypothesis was said to be a proposition made as a basis for reasoning, without assumption of its truth; supposition made as a starting point for further investigation from known facts; groundless assumption. It then considered that the use of the word reasonable with the term hypothesis implies that what is required is more than a mere hypothesis. To be reasonable it must possess some degree of acceptability or credibility, it must not be obviously fanciful, possible, incredible or not tenable or too remote or too tenuous. It really is not a difficult concept to comprehend and apply.
[15] (1987) 16 FCR 517 at [28].
When the Tribunal considers all the material before it in this application without accepting or rejecting any evidence, it cannot be said that the hypothesis advanced by the Applicant is obviously fanciful, impossible, incredible or not tenable, too remote or too tenuous. He had several periods of operational service. That operational service occurred at a period of heightened international tensions as previously observed. There is the evidence he gave on oath to the Tribunal concerning the stressors he was exposed to during the course of those periods of operational service, which it should be recalled encompassed two periods of over approximately one year each. A summary of that evidence is contained in paragraph 29 above, the contents of which are referred to and repeated.
In terms of the hypothesis possessing some degree of acceptability or credibility, it is not difficult to see, let alone accept, that the Applicant’s drinking patterns may well have been profoundly affected by what he was exposed to during his period of operational service. Apart from the alcohol consumption requirement of the SOP contained in clause 9(1), the relationship of the hypothesis concerning his claimed condition of cirrhosis of the liver that is advanced by the Applicant to his operational service is consistent with and fits the template found in SOP No. 1 of 2017.
It should also be observed that if the Tribunal were to adopt the approach contended for by the Respondent, it would require a resolution in the apparent conflict in some of the Applicant’s evidence. This conflict need not be analysed in any detail in this portion of these reasons. However, an obvious question arises concerning the inconsistency in his evidence given at the hearing of the VRB (the transcript of which was in evidence before the Tribunal) concerning when his problem drinking commenced and the later evidence that he gave to this Tribunal both in his witness statement and from the witness box. Resolution of this inconsistency would almost certainly involve a fact-finding exercise. The Respondent’s approach would be, to adopt the language of Anastassiou J in the appeal of this matter in the Federal Court of Australia an impermissible acceleration of the evidentiary analysis which should be undertaken by the Tribunal at stage 4 of the Deledio steps.
Therefore, by reason of the foregoing matters the Tribunal forms the opinion having considered all of the evidence that the hypothesis postulated by the Applicant is a reasonable one. Therefore, the third Deledio step has been satisfied.
FOURTH DELEDIO STEP
The fourth Deledio step requires the Tribunal to consider under section 120(1) of the Act whether it is satisfied beyond reasonable doubt that the incapacity did not arise from a war-caused injury. If not so satisfied, the Applicant’s claim must succeed. It is only at this stage that the Tribunal is required to make findings of fact from the material before it. It must be reiterated that in undertaking the fact-finding task, no question of onus of proof or the application of any presumption is involved.
WAS THE APPLICANT’S CONDITION OF CIRRHOSIS OF THE LIVER WAR CAUSED?
The Applicant’s evidence
In his witness statement of 21 November 2016, the Applicant gave evidence as noted earlier, that he commenced drinking when stationed at HMAS Anzac. The witness statement recorded that he drank one large 26 ounce can of beer per day when it was issued whilst at sea. Not every day were the crew issued with a 26 ounce can of beer. It depended on the circumstances such as whether the ship was engaged in exercises with other vessels.
In his evidence in chief from the witness box at the earlier hearing of this application, he gave similar evidence. He noted that at the time of his posting to HMAS Anzac, he had not yet turned 17 years of age. Although a minor, he was issued with a beer ration and drank it. Additionally, he stated that approximately 50% of the time, the ship’s crew were not given a beer ration on a particular day due to the operational demands brought about by exercises with other vessels.
A further topic canvassed in his evidence in chief, which was not touched on in his witness statement, concerned his drinking habits whilst he was on base. He explained that whilst in harbour, the ratings did not have any beer issued to them on board the ship but were granted shore leave so they could go to go to the nearby “pubs down the corner”.[16] He stated that he used to go ashore every night to drink when the ANZAC was in harbour.[17]
[16] Transcript from Bailey and Repatriation Commission (Veterans' entitlements) [2017] AATA 1909 at page 7.
[17] Transcript page 7, lines 1 to 4.
When probed by his Counsel about his drinking habits at this time on shore leave, he stated that on shore it didn’t matter, one drank until one couldn’t drink any more. He further stated that he did this quite often.[18] He repeated this evidence in cross examination. Further, in cross-examination he was probed as to how much he would drink on the days when he attended a hotel whilst on shore leave. His response was depending upon the time of arrival between 10 and 15 glasses.
[18] Transcript page 7 lines 13 to 16.
He did not specify the size of glass. The Tribunal infers that the glasses of beer he consumed were larger rather than smaller glasses, as tends to be the inevitable case when a glass of beer is ordered in a Sydney hotel.[19] It also infers that the beer was full strength. At this time lower strength beer was not very commonly available, if at all. He stated that the pattern of drinking was that as soon as one’s glass was emptied it was immediately refilled. This practice occurred almost every night whilst he was on shore leave during the time of his posting aboard HMAS Anzac.
[19] A question was put to the Applicant in cross examination (page 25, line 26) that from October 1961 there was a constant pattern of 10 to 15 "pots per night" consumed by him. The question presupposed that he had previously given evidence of drinking from a beer glass known as a "pot". The Tribunal could not find such a reference in any of the Applicant's earlier evidence. However, in response to the entire question he answered with the word "correct”. A "pot apparently is 10 fluid ounces in imperial measurements, or approximately 285 mL in metric measurements. Consumption of between 10 and 15 of those glasses in one session is a substantial amount of beer.
The Applicant’s next posting occurred in January 1962 to HMAS Watson. The Watsons Bay Hotel (a well-known Sydney drinking venue) was adjacent to the naval base. The Applicant stated that when he was posted there, his drinking habits remained the same as those when he was on shore leave at Garden Island during his posting to HMAS Anzac. He was drinking at the level of approximately 10 to 15 glasses per session. These sessions were frequent.
Following his posting to HMAS Watson, he had a posting to HMAS Sydney (7 March 1962 to 16 September 1962) which was being converted to a troop carrier, having been kept in the “mothball fleet” for approximately 10 years previously. During this posting, he was billeted at HMAS Kuttabul as there were no sleeping quarters on HMAS Sydney.
The Applicant’s evidence was that whilst he was billeted at HMAS Kuttabul during the period of March to September 1962, his drinking patterns continued at similar levels, which the Tribunal infers to be approximately 10 to 15 glasses per session with a similar frequency of sessions. Again, it should not be lost sight of that by this time he had not yet turned 18 years old.
He was posted to HMAS Voyager on 17 September 1962. HMAS Voyager was at this time tied up in dry dock at the Williamstown Naval Dockyard in Melbourne. The Applicant’s evidence was that his drinking patterns during Voyager’s time at Williamstown remained the same. The ratings had to leave every night and there were many hotels available within easy walking distance from the gates of the dockyard.
When asked about his drinking patterns whilst at Williamstown, it was put to him that he had earlier estimated he was drinking 10 to 15 glasses a night which he agreed he continued to do. That response, however, was qualified by a further response that it was a “conservative” estimate. The Tribunal infers from this admission by the Applicant about his pattern of drinking at Williamstown that it had in some respects increased from what it had been whilst he was posted to the HMAS Sydney. It indicates a trend towards increased levels of alcohol consumption, and problem drinking, developing quite early in his naval career and at his age.
HMAS Voyager subsequently returned to Sydney. The Applicant’s Service Medical Records contain an entry for 1 November 1962 revealing that he was under the influence of alcohol at the Kings Hotel Sydney. This entry is consistent with the Applicant’s evidence concerning his patterns of drinking, and most likely the growing levels of problem drinking that had evolved.
The Applicant undertook his first operational tour on HMAS Voyager in February 1963.[20] His initial deployment was to the SEATO[21] base in Singapore and then to Hong Kong, Japan and the Philippines. He described what is known as a big exercise emanating from the Philippines with American and British armed services.[22] Operational deployment throughout that time, he stated, was in the Straits of Malacca and consisted of patrolling up and down the whole Straits. Usually, such patrols were in company with several minesweepers. The Applicant’s evidence was then Indonesia was trying to, or otherwise invading Malaysia.
[20] As noted earlier from 8 February 1963 to 1 March 1963.
[21] South East Asia Treaty Organisation.
[22] His evidence was for the SEATO exercises up to 98 ships from various nations tied up in Manila harbour.
An account was given by the Applicant of Indonesian tactics in furtherance of its invasion plans. According to him, small groups of armed Indonesians using a small boat similar to that of a fishing boat, powered by an outboard motor, known as a “Lakatoi” carrying approximately 10 armed servicemen in military uniforms would cross the Straits at night-time with the intention of invading Malaysia. The minesweepers and the Voyager would use searchlights to illuminate the Lakatois. Once illuminated by the searchlights, they would open fire with armaments ranging from smaller ones, to 40 to 60-millimetre Bofors anti-aircraft guns, usually sinking the boats and killing the Indonesian occupants. He said that the Voyager used the Bofors guns to “open up” firing on the flotillas of Lakatois as they came past.
When giving evidence as to the frequency of these engagements with the Indonesian Lakatois, the Applicant stated that the minesweepers were firing at them every night. The HMAS Voyager did not fire every night as sometimes it was not in the same place as the invaders, as the Malacca Straits are about 70 km long.
According to the Applicant, by daylight there was evidence that the Voyager and its supporting vessels including minesweepers had struck the targets because there would be bodies floating everywhere. He described seeing them 10 feet away and being “just a mass of dead bodies”.[23] On another occasion he described the bodies as being everywhere floating on the surface of the water. He also gave evidence of a “couple times” retrieving dead bodies and returning them on board Voyager for identification. This task was undertaken for what was described as intelligence purposes, checking badges, ranks and to find out the deceased servicemen’s origin, battalions and so forth. He described them as fully wearing uniforms. He gave fairly graphic evidence of “two or three times” crewing a sea boat to retrieve bodies in the water. He said this occurred two or three times when two bodies at a time would be retrieved. He described just leaning over the side of the boat’s “terrace” grabbing the bodies and pulling them in. The Applicant stated that he personally handled several bodies by pulling them up with his hands and into the sea boat. Additionally, he was adamant that no apparatus or other aid was used to assist with the retrieval of the bodies, it was done with his hands.
[23] In response to a question in re-examination he said that in referring to a mass of bodies, there were at least 40 bodies present in water. Transcript page 38, lines 37 to 44.
The Applicant described several stressors that caused him to worry, as he put it, all the time about what was going to happen to him. He described himself and other naval ratings on board the HMAS Voyager as “kids” (he was still a teenager). The worries he had emanated from several sources. The crew were not he said, told about what they were actually deployed to do. His worries were amplified by the fact that he knew Indonesia had, to use his words, good naval support from destroyers and cruisers of the Navy of the Soviet Union. The Australian service personnel did not know what support they had.
He believed the Indonesian armed services had the benefit of Soviet military aircraft. The Australian Naval forces he said had no aircraft or supporting air cover. It was in that context that Australian Naval personnel embarking upon operational service did not know what they were up against. It was an era of uncertainty for young men such as himself, serving on a ship such as HMAS Voyager. Another feature of the stressors experienced by the Applicant was that much occurred at night. Already it has been recounted about firing on the Indonesian surface vessels called Lakatois. This occurred at night. The vessels were subject to blackouts, and he described it as being very tense when undertaking operational service in the Malacca Straits.
The Applicant described his drinking habits in the several Southeast Asian ports whilst on deployment with HMAS Voyager in that region. His description of his activities in Singapore was stepping outside the gates of the naval base and going straight to the bars and staying there until he couldn’t drink any more. He said there was shore leave every night. There was a description of returning on board the vessel, being unable to stand up and requiring assistance from a fellow rating to be put into his bunk.[24] He recalled waking up the next morning in his bunk not knowing how he got there. When probed as to how much he was drinking during a customary session, he was unable to recall but did say anywhere between 15 to 17 glasses in a session. The glasses were a British measure which he anticipated or estimated was smaller than a schooner.[25]
[24] The Applicant gave evidence to this effect in several places. Transcript page 12, lines 31 to 34 and page 37, lines 39 to 43.
[25] Page 13, lines 1 to 20.
The Applicant discussed his drinking patterns at the Subic Bay Naval base in the Philippines. There was a main bar and red-light area adjacent to the naval base. He described having passes to the San Miguel Brewery for tours and just sitting there drinking all day. He described it as “you’d sit there all day and drink” at the San Miguel Brewery. The Applicant described drinking there until he was staggering. It should be noted that the Applicant’s drinking at the Subic Bay base or adjacent to it (including the San Miguel Brewery), was prior to any operational service.[26]
[26] Page 22, lines 31 and 38, page 23, line 7, page 25, line 28.
The Applicant contended that his pattern of drinking prior to undertaking operational service was different to that after such service. He put it down to a pattern of drinking to alleviate anxiety because he was worried all the time. Several questions were put to him in cross examination concerning his drinking patterns before his deployment to the Straits of Malacca and afterwards. He was asked if his normal pattern of drinking before Malacca was 10 to 15 plus possibly more as described at the San Miguel Brewery. His response was that when he returned from the Malacca Straits operational service, he was drinking a lot more. He said he was positive he was drinking more, quicker and heavier. However, despite this being what he called a “variation” he returned to what was described as “normal 10 to 15 drinks a night”.
This evidence from the Applicant was consistent in his evidence in chief that there were periods when his drinking patterns increased and then as he put it “just went back to normal”. In response to a specific question put to him in re-examination by his counsel concerning “post-Malacca” he gave the following response, “Look, I know I was drinking heavy, but the exact amount would vary. But, yes, it was around 10-15, depending on where-see, probably Manila I drank a hell of a lot more because it was free”.
Whilst still posted to HMAS Voyager, but after his periods of operational service, medical records for this time reveal that he was admitted to the sickbay of that vessel for one day on 8 August 1963 with alcoholic gastritis, after he had returned on board following a “drinking bout”. His conditions were said to include “Symptoms of vomiting with flecks of blood visible”.
An important event in the factual matrix of this matter relates to the collision between the aircraft carrier HMAS Melbourne and HMAS Voyager on 10 February 1964. In both his statement and his oral evidence to the VRB, the Applicant gave evidence he was transferred from the Voyager approximately four days prior to its collision with Melbourne. An examination of the Applicant’s service records reveals that he was posted to HMAS Watson on 10 January 1964 one month beforehand. This was pointed out to the Applicant by the Senior Member who previously heard this application. The Applicant’s response was that it must have been correct, but it seemed like days to him anyway.
In evidence in chief, he stated that the Voyager disaster had a big impact on him, and he did drink a lot more. Eventually, he stated he “sort of settled down a bit” and “went back” to where he was. Subsequently, he then returned to sea on HMAS Yarra and according to him the drinking “pattern just went back to normal”.[27]
[27] Page 14 lines 31 and 32.
He was probed in cross examination about the effect of the Voyager collision on him and admitted that it had a big impact on him, and he increased his drinking even further following such event. Eventually his drinking returned to the “usual level”[28] which the Tribunal infers was the same level as the “normal” level referred to earlier about which he gave evidence being approximately 10 to 15 glasses per night of the size mentioned.
[28] Page 24, line 27.
It is informative to examine the evidence that the Applicant gave to the VRB on this, the effect that the sinking of HMAS Voyager had on him. The Applicant did not dispute the evidence that was given by him to that hearing. The presiding Member at the VRB hearing asked him if there was anything in particular that made him feel he wanted to drink more during his service. The Applicant’s response was to say: “no”. He stated that the big impact on him was the sinking of the Voyager because he knew nine of the crewmen who died. He also stated, “I knew most of the blokes it went down on it,” “And I got off on the 6th, and the February, she went down on the 10th so it I was only off it four days and that had a big impact on me because I met a lot of the survivors afterwards. And-yes. It wasn’t real good idea”.
Further, when probed by the Senior Member who previously heard the application, the Applicant stated that he never saw any of the Soviet surface vessels or aircraft that he had previously described in his evidence as giving rise to his worries about the operational service that he undertook, or perhaps more accurately the stressors concerned.[29]
[29] Page 28, lines 4 and 5.
Details of the periods of operational service undertaken by the Applicant on HMAS Yarra in 1965 and 1966 have been referred to previously.[30] Such service was in the region of North Borneo, the Malay Peninsula and Singapore. Very little evidence was adduced before the Tribunal concerning the Applicant’s service on that vessel. He was probed in a question from the Senior Member of this Tribunal who previously heard this matter, whether he was concerned about Soviet vessels and aircraft whilst serving on the Yarra. His response was that he was not so much concerned about them whilst serving on the Yarra because by that time the Indonesian confrontation was largely over. So, whilst serving on the Yarra as he put it, “we didn’t do very much at all”.
[30] See footnote 9 for those details.
His evidence was that upon his return he continued to drink at the rate of approximately 15 glasses of beer per day until his discharge from the Navy.[31]
[31] Evidence to this effect was given in his witness statement and to the hearing of this Tribunal on page 25 lines 44-45.
The Applicant gave evidence to the VRB which he repeated before this Tribunal, that for him “a big killer”, was not his overseas service but what happened upon his return. Nobody talked to him. He stated that ex-servicemen were treated very poorly. He described it as arising from “the whole Vietnam issue”. People he had known in his hometown of Hamilton would walk out of a pub if he walked in. It not only made him angry but made him drink more as well. This was after his time on the HMAS Yarra, then HMAS Vendetta and HMAS Vampire. He readily conceded that locals in his hometown of Hamilton simply didn’t want to know him. He described it as having a big impact on a lot of people including himself.
Conclusion on the fourth Deledio step
The Applicant contended that there was nothing in the material that could satisfy the Tribunal that the factual foundation of the hypothesis has been disproved beyond reasonable doubt. That is the Applicant’s evidence as to his increased drinking and continued heavy post service drinking as a result of the stress and anxiety he experienced during operational service has not been disproved beyond reasonable doubt. The Tribunal does not agree with this contention.
Whilst the Applicant gave evidence about the stressors he faced whilst undertaking operational service his evidence did not go so far as contended for in his submissions; namely that they led to increased drinking and continued heavy drinking post service which caused his cirrhosis of the liver. To the contrary his evidence was overall that he maintained a relatively consistent pattern of excessive drinking that commenced from the time of his posting to HMAS Anzac in 1961.
The Tribunal is satisfied beyond reasonable doubt that the Applicant’s condition of cirrhosis of the liver was not war caused.
This conclusion is reached because of the Applicant’s own admissions. On his evidence, much of which was even given in chief, there was the development of a pattern of problem drinking[32] from a very early age which occurred before he undertook any operational service. Such evidence is overwhelming.
[32] The Respondent referred to it as amongst other things, an established pattern of binge drinking and a continuation of a pattern of established heavy drinking. Whichever description is used the Tribunal agrees.
His pattern of problem drinking commenced from the time of posting to HMAS Anzac in 1961, when he was still a minor. He drank his full ration of a 26 ounce can of beer every time it was available to him. It will be recalled that when he was ashore whilst serving on that vessel, he left the base every night, and on his evidence drank until he couldn’t drink any more.[33] This is compelling evidence. It ought not be forgotten that he had not yet turned 17 when he was first posted to Anzac.
[33] Transcript page 7, lines 13 and 14.
The quantity of beer consumed was between 10 and 15 glasses. This evidence was not qualified in any way by the Applicant. The approximate consumption of 15 glasses a day save for when operational service requirements intervened, continued until the diagnosis of his condition cirrhosis of the liver in 2015. It was an unabated and consistent pattern of problem drinking throughout that timespan.
This pattern of drinking 10 to 15 glasses a session continued unabated through his postings at HMAS Watson and HMAS Sydney (where he was billeted on HMAS Kuttabul with ready access to hotels). On those occasions, he had ready access to shore-based drinking venues and continuously consumed alcohol nightly or most nights to the same level namely between 10 and 15 glasses per session. His transfer to the Voyager firstly when it was in dry dock in Melbourne demonstrated an even marginally greater level of drinking. The die had been well cast by then.
Prior to him undertaking any operational service, whenever the opportunity arose the Applicant drank excessively. Such drinking was unrelated to and not caused by exposure to, or by any stressors, or stressful events.
Then there was the Applicant’s evidence of heavy drinking that occurred prior to commencing operational service in several countries in Southeast Asia including Hong Kong, Japan and the Philippines. There was also Singapore where he gave accounts of drinking frequently to excess and needing assistance to get into his bunk, not recalling the next day how he had got there. He recounted the San Miguel Brewery in the Philippines where he consumed vast amounts of beer “all day”. He conceded in cross examination that at the San Miguel brewery, he drank until he was staggering.[34] It was a consistent pattern of drinking to excess usually 15 glasses a day which continued until his discharge from the Navy. It was a pattern of drinking that on his own evidence ultimately was unaffected by and did not change as a result of his operational service, or more particularly, exposure to any stressors during such operational service.
[34] Transcript page 23, line 37.
As was contended by the Respondent, this evidence does not establish the existence of a material and ongoing change in the Applicant’s pattern of drinking after his operational service. His drinking habits largely remained the same. As noted above, he stated that post-Malacca, he was drinking around 10-15 glasses of beer in a session.
Another reason why the Tribunal is satisfied that the pattern of drinking which led to the cirrhosis of the liver condition from which he suffered was not war caused came from the evidence he gave at the VRB hearing. He was carefully questioned by the presiding Member of the Board. The evidence he gave to the Board was that he started drinking on HMAS Anzac (in 1961). The drinking was the big cans of beer that had been referred to earlier. His evidence was that it just progressed from there. He recounted to the Board getting into harbour and going straight to the nearest pub.
He then said, as noted earlier that the sinking of the Voyager had a big impact on him. This impact included his drinking but ultimately, he returned to a similar level of consumption. His evidence before the VRB emphasised the effect of the sinking of the HMAS Voyager on him; this is understandable. He gave this response to a very specifically crafted question from the residing Member. The question being was there anything in particular that made him feel he wanted to drink more during his service. The first word he used in response was the word “No”; then he went on to say that the Voyager sinking had a big impact on him. This is quite understandably so. Unfortunately, this stressor was not one that arose in the course of operational service. There was no mention of any other stressors.
Also as noted earlier in his evidence to this Tribunal he readily conceded that the Voyager disaster upset him greatly. He said he drank a lot more. However, after some time as he put it, he “sort of settled down” and went back to sea again on the Yarra. Then the pattern of drinking just returned to “normal”.[35] The Tribunal considers this admission of “normal” drinking to be the 10 to 15 glasses per day when he was not at sea. (Probably, at the very least 10-ounce (285 mL) glasses of full-strength beer).
[35] In response to the question put to him in cross examination he agreed the sinking of HMAS Voyager had a big impact on him. This led to him increasing his drinking even further after that incident. He agreed that it was correct that subsequently his drinking returned to the "usual level". (Transcript page 24, lines 24 to 28.)
Amongst other things, in cross examination, the Applicant was also carefully probed about a consistent pattern of drinking 10 to 15 “pots per night”. Also drinking large amounts at the San Miguel brewery before his service on the Malacca Straits. Additionally, his evidence about increasing his drinking after the Voyager disaster was probed. He conceded in response to a question at the conclusion of this aspect of his cross examination of his drinking returning to a pattern which was 10 to 15 pots per night. The effect of his service in the Malacca Straits was then also probed. His evidence was that he was positive he was drinking more, quicker and heavier after that service. However, after those “variations” he readily conceded that his drinking returned to the “normal 10 to 15 a night”. This normal level of drinking of 10 to 15 glasses of beer a night was the level of drinking he had engaged in from the time of his posting to HMAS Anzac.
The Applicant also stated that in civilian life after he left the regular Navy, he continued to drink in a similar fashion. This is the same pattern of drinking that really started in 1961 on his posting to the Anzac which he conceded on several times in his evidence, was 10 to 15 glasses per day. Once again, this pattern of drinking was not caused by any stressors connected with his operational service.
When specifically probed about Borneo and Malaya, he stated that it was not so much what was done there, but when he returned. The treatment in his hometown of Hamilton affected him. He described being “like a leper”. After his discharge, he continued to drink heavily which even continued throughout the period of his marriage. There was a consistent pattern of drinking revealed by the evidence pre and post operational service, then upon his discharge. That pattern it must be repeated had continued from the time he joined the crew of HMAS Anzac in 1961.
Nothing was said to the VRB about his nervousness and concerns concerning what might happen to him serving in a war zone (the Malacca Straits) as he told this Tribunal. Tellingly, in his evidence to the VRB there was absolutely nothing said about the flotilla of Lakatois or firing upon them Lakatois with 40 to 60mm Bofors guns. No mention was made of the masses of dead bodies attired in Indonesian uniforms, floating in the water and the Applicant retrieving several bodies on multiple occasions. (Indeed, in his statement made on 21 November 2016 there is no reference to his evidence about the Lakatois, shooting at them with Bofors guns and the masses of dead bodies and his role in retrieving some of them that he subsequently gave in the witness box at the hearing of the application in July 2017).
There was no mention about the belief that he stated he had to this Tribunal that the Indonesians were supported by military aircraft and naval vessels of the Soviet Union. The extraordinary nature of these revelations is such that it seems impossible to accept that if they had occurred, the Applicant would not have mentioned them at the VRB hearing. It should not be lost sight of that these events were fundamental stressors relied upon by the Applicant in support of his claim. They are an extraordinary series of events that he referred to in this Tribunal.
His evidence in this Tribunal for the first-time mentioned stressors arising from operational service as being the cause of his problematic drinking. Even that evidence varied. His statement of 21 November 2016 provided limited details. On HMAS Voyager, he stated that he was told that he would be sailing into an operational war zone and may become involved in conflict with Indonesian forces. He understood that the Indonesian forces had access to Russian equipment (including warships and aircraft.) He said he became very anxious because he believed he would be put in a life-threatening situation. As noted earlier, no reference to this evidence about the Lakatois, shooting at them with Bofors guns and the masses of dead bodies and his role in retrieving some of them; that he subsequently gave in the witness box at the hearing of the application in July 2017 was even mentioned in his statement.
Despite being represented by counsel, he offered no reason for the differences between his evidence to the VRB and his evidence before this Tribunal. The Tribunal does not need to resolve this question. It must be repeated that it finds beyond reasonable doubt as a result of the Applicant’s own admissions that the pattern of problematic drinking of approximately 10 to 15 glasses per day started sometime before he underwent any operational service. Whilst there might have been occasions where he drank more in his own words it reverted to “normal” or the same level post operational service. However, should be noted as recorded earlier that in fact he had higher levels of drinking before operational service when the HMAS Voyager was in dry dock at Williamstown. The causation between the problem drinking and operational service just does not exist.
Given these findings, the Tribunal does not need to consider the question of the historical material nor should it engage in some search for corroboration, or corroborative documentary evidence. The historical material does not point towards or contain any references to incidents of the type referred to in the Applicant’s evidence particularly the Voyager and associated minesweepers shooting on the Indonesian vessels known as Lakatois.
The Applicant opposed the Tribunal relying upon taking into account the history. For several reasons. Firstly, because it submitted the documentary material should have been adduced through an expert witness. Secondly, it was contended that the Respondent did not at any stage in cross examination of the Applicant:
(a)put, or seek to put any evidence, historical or otherwise, to the Applicant contradicting his own evidence;
(b)put or seek to put to the Applicant that any aspect of his evidence was false or untruths any:
(c)put or seek to put to the Applicant that his evidence was mistaken or inaccurate; or
(d)put, or seek to put to the Applicant that his evidence was in any way not credible; and
(e)ask the Applicant to explain why he had raised matters which had not been previously referred to in the written statement (and adopted in these proceedings).
In evidence before the Tribunal were the “Report of Proceedings” of HMAS Voyager for the months of February, April and May 1963 signed by its commanding officer Captain Stevens. They do not reveal any such instances of contact with Indonesian vessels, firing upon them, subsequent observation and recovery of dead bodies of their servicemen as recounted by the Applicant in his evidence. Serving in company with HMAS Voyager during this time was HMAS Vampire. That vessel’s “Report of Proceedings” for those months similarly did not record any such events.
Insofar as the “Report of Proceedings” of the respective vessels are concerned, the Tribunal considers that there is no real requirement for an expert witness to be called to verify them. It did not seem to the Tribunal that their authenticity was in doubt. They can be relied upon for whatever probative value they have.
The Tribunal considers there is far more force in the second contention of the Applicant concerning this material. The fact that none of it was put to the Applicant in cross examination and thereby giving him the opportunity to consider their contents not to mention their force and effect, is problematic. It seems that to not put this material to him did deny him procedural fairness.
Several publications were in evidence concerning the involvement of the Royal Australian Navy during the relevant period during which the Applicant undertook his operational service. They need not be referred to by name.
The historical documentary evidence does not record attacks taking place as described by the Applicant in his evidence on Indonesian Lakatois causing mass casualties or perhaps to use the words of the Applicant leading to masses of bodies floating in the water.
Had such engagements occurred leading to such Indonesian casualties, it seems impossible to accept that such incidents would not have seen the light of day. They surely would have been recorded in some documentary evidence somewhere.
Further, with the passage of time, it seems unlikely that someone would not, if it had otherwise been suppressed (or overlooked), come out and revealed what had occurred. Particularly given the passage of so much time. It seems impossible to accept that on a ship the size of the Voyager with a complement of crew of such numbers which amounted to hundreds (not to mention the crews of the minesweepers) that no account whatsoever of such incidents, which it will be recalled the Applicant said occurred almost nightly (when the involvement of the minesweepers is taken into account), has seen the light of day.
Having made these observations, however, the Tribunal wishes to reiterate that it has not relied upon this material and reaching the conclusions that it does. It repeats that the conclusion that the Applicant’s condition cirrhosis of the liver was not war caused is for the reasons outlined above derive from the Applicant’s own evidence and the admissions he made concerning the pattern of problem drinking that had developed prior to undertaking operational service.
CONCLUSION.
For these reasons it is repeated that the Tribunal is satisfied beyond reasonable doubt that the condition of cirrhosis of the liver suffered by the Applicant was not war caused.
The reviewable decision is affirmed.
For the reasons given above, the Tribunal decides that the decision under review is affirmed.
I certify that the preceding 118 (one hundred and eighteen) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member
..........[sgd]....................................................
Associate
Dated: 17 March 2021
Dates of hearing: 6 August 2020 Advocate for the Applicant: Fiona Ryan Advocate for the Respondent: Zoe Maud Solicitors for the Respondent: Australian Government Solicitor
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