Bailey and Repatriation Commission (Veterans' entitlements)
[2017] AATA 1909
•25 October 2017
Bailey and Repatriation Commission (Veterans' entitlements) [2017] AATA 1909 (25 October 2017)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2016/6386
Re:James Bailey
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:25 October 2017
Place:Melbourne
The decision under review is affirmed
....................[sgd]....................................................
Senior Member A. NikolicVETERANS’ AFFAIRS – application for increase of pension – claim for cirrhosis of liver –– no reasonable hypothesis established – decision affirmed.
Legislation
Veterans’ Entitlement Act 1986Administrative Appeals Tribunal Act 1975
Cases
Borrett v Repatriation Commission [2000] FCA 1829
Bushell v Repatriation Commission [1992] HCA 47
Byrnes v Repatriation Commission [1993] HCA 51
Bull v Repatriation Commission [2001] FCA 1832
East v Repatriation Commission [1987] 16 FCR 517
Forrester v Repatriation Commission [2013] FCA 898
Kattenburg v Repatriation Commission [2002] FCA 412
Meehan v Repatriation Commission [2001] FCA 597
MWJ v The Queen [2005] HCA 74
Repatriation Commission v Bey [1997] 79 FCR 364
Repatriation Commission v Codd [2007] FCA 877
Repatriation Commission v Deledio [1998] 83 FCR 82
Repatriation Commission v Owens [1996] HCATrans 215
Repatriation Commission v Smith [1987] 15 FCR 327
Repatriation Commission v Tuite [1993] FCA 43
Secondary Materials
Statement of Principles Concerning Cirrhosis of the Liver (Reasonable Hypothesis) (No. 1 of 2017), dated 20 December 2016.
REASONS FOR DECISION
25 October 2017
INTRODUCTION
Mr James Bailey has asked the Tribunal to review a decision by the Veterans’ Review Board (VRB) made on 27 September 2016,[1] affirming the Repatriation Commission’s (the Commission) decision of 9 October 2015,[2] that Mr Bailey’s cirrhosis of the liver was not related to his operational service. His application for an increase in disability pension from its current ‘general rate’ was also declined.
[1] T-documents dated 29 December 2016, numbering 71 pages (hereafter referred to as Exhibit R1), pp.B2-B8.
[2] Exhibit R1, pp.51-57.
The hearing was conducted on 19 July 2017. Mr Bailey was represented by Mr Adrian Hoel of counsel, instructed by Williams Winter Solicitors. The Commission was represented by Mr Ken Rudge, a departmental advocate.
Mr Bailey gave evidence at the hearing and was cross-examined. In addition to the T-documents, Mr Bailey’s Statement,[3] a bundle of Medical Records,[4] extracts from his Record of Service,[5] a transcript of his VRB hearing,[6] and a synopsis of the Indonesian Confrontation[7] were tendered into evidence. Leave was granted at the hearing for historical extracts to be provided by the Respondent, and for written submissions by the parties relating to the historical material.[8]
[3] Statement of James Alexander Bailey dated 21 November 2016, hereafter referred to as Exhibit A1.
[4] Medical Records: R93052 J.A. Bailey, numbering 36 pages, hereafter referred to as Exhibit R2.
[5] Record of Service: R93052 J.A. Bailey, numbering 9 pages, hereafter referred to as Exhibit R3.
[6] Transcript of Proceedings, VRB Hearing dated 27 September 2016, hereafter referred to as Exhibit R4.
[7] Perryman J., Indonesian Confrontation, Royal Australian Navy, accessed on 18 July 2017, hereafter referred to as Exhibit R5.
[8] The Respondent provided written submissions dated 21 July 2017, 28 August 2017 and 6 October 2017, which included: extracts from Grey J., Up Top: The Royal Australian Navy and Southeast Asian Conflicts 1955-1972, Allen and Unwin, 1998, hereafter referred to as Exhibit R6; a 37-page summary of HMAS Voyager II’s service from the Royal Australian Navy website ( Report of Proceedings of HMAS Voyager dated February, April and May 1963; and Report of Proceedings for HMAS Vampire dated February, March, April and May 1963. The Applicant provided written submissions in relation to the historical material dated 20 July 2017, 24 July 2017, and 13 October 2017.
For the reasons that follow, the decision under review is affirmed.
BACKGROUND
Mr Bailey is a 73 year old veteran who served with the Permanent Naval Forces (PNF) from 10 July 1960 until 10 July 1972. Following completion of his initial training at HMAS Leeuwin in July 1961, Mr Bailey served at HMAS Watson and then on HMAS ANZAC for three months. He had longer postings on HMAS Voyager from 17 September 1962 until
9 January 1964, and on HMAS Yarra from 5 January 1965 until 24 September 1966.[9] Both of these longer postings encompassed operational service within the meaning of section 6C of the Veterans’ Entitlement Act 1986 (the Act), with the Far East Strategic Reserve (FESR) in 1963, and in Malaysia / Singapore during 1965-66.
[9] Exhibit R3, p.91.
After leaving the PNF, Mr Bailey continued to be a member of the Navy Reserve for approximately 27 years before his discharge on 30 September 1999. This included a five-month period of fulltime service in 1996.[10]
[10] Exhibit R3, p.100.
Mr Bailey has two disabilities accepted under the Act, namely Chronic Bronchitis and Emphysema and Pleural Plaque.[11] Two claims have been rejected, namely Bronchiectasis (2006) and Cirrhosis (2016).[12]
[11] Exhibit R1, p.1.
[12] Ibid.
In refusing his claim for Cirrhosis, the VRB noted Mr Bailey ‘was a regular drinker before the commencement of his operational service,’ and that the reasons given for his drinking ‘related to social behaviours.’[13] The VRB also noted that Mr Bailey ‘did not raise any stressors that contributed to his drinking during or following his operational service’.[14] The VRB determined that Mr Bailey’s pension should remain at 100% of the General Rate, and that he was not entitled to pension at either the Special or Intermediate Rates, or to the Extreme Disablement Adjustment.[15]
[13] Exhibit R1, p.B7.
[14] Ibid.
[15] Ibid.
RELEVANT LEGISLATION AND AUTHORITIES
Operational Service. The expression ‘operational service’ is defined at sections 6 to 6F of the Act. Under section 6C, a person renders operational service if they, inter alia, are allotted for duty in an operational area.
War-Caused Injuries or Diseases. Section 9 of the Act provides, amongst other things, that:
(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
Special Rate. The relevant legislation for Special Rate of pension is contained in section 24 of the Act, which states in part:
24 Special rate of pension
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)...
Intermediate Rate. Eligibility for a pension payable at the Intermediate Rate is provided for at section 23 of the Act, which has the same eligibility criteria as section 24, except that the veteran has a capacity for more than eight but no more than 20 hours work per week. As required by section 23(1)(d), however, it is necessary to consider eligibility for the Special Rate first, before turning to the Intermediate Rate. In effect, Section 23 only applies if section 24 or 25 does not apply to the veteran.
Extreme Disablement Adjustment (EDA). Section 22(4) of the Act provides for the payment of EDA as follows:
22 General rate of pension and extreme disablement adjustment
…
(1) This section applies to a veteran who is being paid, or is eligible to be paid, a pension under this Part, other than a veteran to whom section 23, 24 or 25 applies.
…
(4) Where:
(a)either:
(i) the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be 100% or has been so determined by a determination that is in force;
….
(b)the veteran has attained the age of 65;
(c)the veteran has an impairment rating of at least 70 points and a lifestyle rating of at least 6 points, each determined in accordance with the approved Guide to the Assessment of Rates of Veterans’ Pensions; and
(d)the veteran is not receiving a pension at a rate provided for by section 23, 24 or 25.
Standard of Proof. As Mr Bailey’s claim for cirrhosis relates to operational service, the applicable standard of proof is defined in section 120(1) and section 120(3) of the Act:
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
(2)...
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
Under section 120(4) of the Act, the standard of proof for assessment or reassessment of the rate of pensions, is ‘reasonable satisfaction,’ which is also referred to as the ‘balance of probabilities.’[16] This is relevant in Mr Bailey’s case, because his application is founded not only on seeking to have cirrhosis accepted as war-caused, but also that his two previously-accepted conditions, for which he receives pension at 100% of the General Rate, have worsened.[17] To be reasonably satisfied, a decision-maker must consider that a piece of evidence is more likely than not to be true. Beaumont J (Northrop and Spender JJ concurring), explained in Repatriation Commission v Smith[18] that the Tribunal should ask itself:
‘...whether on the facts of the case, it was persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other…’
[16] D Pearce, Administrative Appeals Tribunal (4th Ed.) 2015, p.152.
[17] Exhibit R1, p.A4.
[18] Repatriation Commission v Smith [1987] 15 FCR 327.
Section 120(6) of the Act provides in effect that neither party has any onus of proving any matter relevant to the determination of the claim.
Reasonableness of Hypothesis. As Mr Bailey’s claim was lodged after 1 June 1994, section 120A of the Act is enlivened, requiring that I assess the reasonableness of the hypothesis connecting his cirrhosis with his service, against the relevant Statement of Principles (SoP). Section 120A(3) of the Act provides:
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
...
that upholds the hypothesis.
If I find that a hypothesis is raised connecting Mr Bailey’s cirrhosis to his service, its reasonability and validity must then be determined in accordance with the stages established by the Federal Court in Repatriation Commission v Deledio[19], where the Court held:
‘At the risk of being repetitious we would restate the course which the tribunal is to take in a case, such as the present, (i.e. one involving a claim to be decided after the 1994 Amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person 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.’
[19] Repatriation Commission v Deledio [1998] FCA 391.
The plain meaning of ‘hypothesis’ was considered in East v Repatriation Commission[20] at [41]:
‘A hypothesis may be conveniently defined as: ‘proposition made as basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption’: The Concise Oxford Dictionary.’
[20] East v Repatriation Commission [1987] FCA 383.
In Repatriation Commission v Bey[21], the Court concluded:
‘While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must, as East states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker.’
[21] Repatriation Commission v Bey [1997] FCA 1347.
In Bushell v Repatriation Commission[22], Mason CJ, Deane and McHugh JJ held at [9], citing East v Repatriation Commission[23], that a hypothesis is not reasonable if it is:
‘…obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous.’
And at [8]:
‘The material will raise a reasonable hypothesis within the meaning of s.120(3) if the material points to some fact or facts (“the raised facts”) which support the hypothesis and if the hypothesis can be regarded as reasonable if the facts are true.’
[22] Bushell v Repatriation Commission [1992] HCA 47.
[23] East and Repatriation Commission [1987] FCA 383.
The High Court held in Byrnes v Repatriation Commission[24] at [13]:
‘The position may be summarised as follows:
(1)First, sub-s.(3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable the claim fails. Proof of facts is not in issue at this point.
(2)If a reasonable hypothesis is established sub-s.(1) of s.120 is applied. The claim will succeed unless:
(a)one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b)the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.’
[24] Byrnes v Repatriation Commission [1993] HCA 51.
THE ISSUES
The issues for determination are whether Mr Bailey’s Cirrhosis arose out of or was attributable to any eligible war service rendered by him, and if so, whether he is entitled to an increase in his disability pension.
EVIDENCE OF MR BAILEY
It is not contested that Mr Bailey was diagnosed with Cirrhosis of the Liver, with a date of onset of 27 October 2014.[25] In his application to the Commission,[26] Mr Bailey claims his cirrhosis was caused by ‘drinking beer, wine and spirits,’ which he attributed to his operational service on HMAS Voyager in early 1963. His contentions regarding increased consumption of alcohol relate to specific and general stressors during that operational service.
[25] Exhibit R1, p.41.
[26] Exhibit R1, pp.23-32.
In his oral evidence Mr Bailey submits that he was not allowed to drink alcohol while undertaking recruit training at HMAS Leeuwin or during subsequent training at HMAS Watson. He claims to have never consumed alcohol before being posted to his first ship, HMAS ANZAC, in October 1961. It was while serving with HMAS ANZAC that Mr Bailey says he was first issued with a beer ration approximately 50% of the time, but not during exercises or operations. Mr Bailey submitted that alcohol was tolerated in the Navy but not encouraged. He says participation in heavy drinking behaviour was ‘normal – not only on ANZAC, but on any ship…[and that he and his shipmates would]…go to the pub every night and drink till you couldn’t drink anymore.’ When HMAS ANZAC was in harbour, Mr Bailey said the ship’s company ‘had shore leave’ and just outside the gates, ‘the pubs sprang up.’ He said crew from all of the ships would congregate at establishments like the ‘Rocks, which was a sailor’s pub’ and ‘only a five minute walk from the main gate at Garden Island.’ When asked if he drank to the point of inebriation while posted to HMAS ANZAC, Mr Bailey said not while on the ship, but during shore leave ‘you drank until you couldn’t drink anymore.’ When asked whether that was always his intent, Mr Bailey responded ‘quite often.’ In relation to how much he drank on these occasions, Mr Bailey responded ‘depending on what time you got there, but you know 10, 15… as soon as your glass was empty, it was refilled again.’
Mr Bailey agreed with Mr Rudge’s characterisation of the drinking culture during this time as ‘the social practice.’ He said his heavy drinking lifestyle continued during early 1962 when he was at HMAS Kuttabul, then at HMAS Watson, and then while posted to HMAS Sydney, which was ‘in mothballs’ and being prepared for sea. Mr Bailey explained that from March to September 1962, he stayed at HMAS Kuttabul and had easy access to local bars, ‘mainly the Rocks and Woollomooloo Hotel next to Garden Island,’ agreeing with Mr Rudge that he continued to drink at the same level of 10-15 beers a night, stating this was a ‘conservative’ estimate.
Mr Bailey said his posting to HMAS Voyager on 9 November 1962 occurred while the ship was predominantly based in Singapore. Visits were undertaken to Hong Kong, Japan and the Philippines, where exercises were conducted with American and British forces. Mr Bailey said the ship’s company was allowed to consume alcohol while on shore leave in places like Singapore and ‘on virtually every occasion,’ he ‘took drinking to the point of inebriation.’ Mr Bailey submitted that during this period, he drank more than 10-15 beers per day on some occasions, stating: ‘the beer was free, so I drank as much as I could.’ By way of example, he referred to visits to the Olongapo bar district in Manila and the San Miguel Brewery, stating ‘you could sit there all day and drink, catch the barge back to Voyager and back the next day.’ He said that during shore leave in Japan, he would drink up to two bottles of wine, because Asahi beer was not to his taste.
Mr Bailey contends that his alcohol consumption increased during a three-month tour of the Malay Peninsula / Singapore on HMAS Voyager from February – May 1963, due to anxiety about possible conflict with Indonesian forces. To relieve his ‘anxiety about the fear of being fired at,’ he claims to have regularly consumed ‘at least 15 glasses (7oz) of beer while on shore leave’ in Singapore. Mr Bailey said his anxiety arose from the threat of being fired upon by Russian-built ships and aircraft operated by Indonesia, which was exacerbated by a lack of information. He stated ‘we didn’t know what we were going into and nobody told us…our common name was mushrooms – fed on excrement and kept in the dark.’ Mr Bailey submits that the Indonesians ‘had Russian aeroplanes and we had no air cover.’ When Mr Bailey was asked: ‘Voyager was a powerful destroyer…did you have air cover,’ he again responded ‘No.’
Mr Bailey said no alcohol was issued while on operational patrol, but he continued to drink heavily when on shore leave in Singapore. He contended that his pattern of drinking changed in comparison to the period prior to his operational deployment, stating ‘you step out the gate and there was Sembawang and it was just bars, brothels…and we’d just go straight to the bars and we’d stay there until we couldn’t drink anymore.’ When asked to recall how much he was drinking during this period, Mr Bailey stated ‘anywhere between 15, 16, 17 glasses,’ which were ‘a bit smaller than…our schooners.’ When asked to clarify how much was in each glass, Mr Bailey responded ‘I wouldn’t have a clue to be honest with you,’ but estimated it was more than a standard 10 ounce / 285 millilitre glass.
In addition to the general threat of ‘being fired at,’ Mr Bailey related specific incidents where minesweepers in company with HMAS Voyager fired ‘every night’ at Indonesian military personnel attempting to ‘invade Malaya’ in small, narrow fishing boats. This was the first occasion Mr Bailey had adduced this evidence. He stated these small boats were called ‘Lakatoi,’ which were about 25 feet in length and powered by outboard motors. He said each could carry up to 10 Indonesian soldiers, in ‘flotillas’ numbering 15 - 20 boats, which ‘came across at night…[and]…didn’t stop.’ Mr Bailey submitted it was ‘mainly the minesweepers’ that engaged these boats to ‘kill the Indonesian soldiers,’ but HMAS Voyager would also illuminate and engage them with its 40-60mm Bofors Guns [sic], but not ‘every night.’
Mr Bailey contended that he knew Voyager or the minesweepers had hit their targets, ‘because come daylight there would be bodies everywhere floating…sometimes 10 feet away… just a mass of dead bodies.’ Mr Bailey said he was personally involved on 2-3 occasions in helping to recover dead bodies for ‘intelligence purposes… to check all their badges and ranks and find out where they come from, what battalions and the like.’ He said they were always wearing uniforms of the ‘Indonesian Army.’ He related one incident where there were approximately 40 dead Indonesian soldiers in the water, but said on other occasions ‘there might be two or three’ bodies.
Mr Bailey contended that his ‘normal’ rate of drinking ‘increased considerably’ as a result of these daily stressors and his general anxiety about the threat from Indonesian aircraft and ships. In response to questions about the increased quantity of alcohol consumption he was claiming as a result of these stressors, Mr Bailey was not able to be specific. He expressed certainty that he was drinking more alcohol during his operational tour than before it, based on the differential effects he experienced. Mr Bailey explained that up to 15 beers had previously had little effect on him, so he discerned from the more significant effects experienced from alcohol consumption during his operational service, that he was drinking ‘significantly more’ during this time.
Mr Bailey highlighted other occasions when his drinking increased, including after he was transferred from HMAS Voyager prior to its collision with HMAS Melbourne in 1964. He submits that he found the incident ‘very upsetting,’ because he ‘knew many of the men.’ He contends the effects of this incident caused a ‘temporary increase’ in his alcohol consumption, which settled back to his previous drinking levels ‘within about two months of the collision.’ He agreed that contrary to his previous claim about being ‘transferred from HMAS Voyager only a matter of days prior to its collision with HMAS Melbourne,’[27] he had posted off HMAS Voyager approximately a month prior to the collision.[28]
[27] Exhibit A1, p.2.
[28] Exhibit R3, p.91.
During subsequent operational service on HMAS Yarra to North Borneo and the Malay Peninsula / Singapore in 1965, Mr Bailey states he drank ‘virtually as much as [he] could…at the rate of about 15 glasses of beer per day when permitted’ until his discharge. He states that by 1965 he had been promoted from Seaman to Petty Officer and was in charge of the Quarter Deck on HMAS Yarra with approximately 40 sailors under his leadership. He said that by the time of his operational service on HMAS Yarra, he was no longer concerned about Russian-built vessels and aircraft, submitting that it was mainly his operational service in 1963 that ‘affected [him] psychologically.’ Mr Bailey submitted that his alcohol consumption also increased after returning to Hamilton following Vietnam service, because ‘the locals didn’t want to know you.’
Mr Bailey agreed that his character and efficiency assessments in the Navy were always rated as ‘Very Good’ and that he had never undergone any disciplinary proceedings while in uniform. He stated that he had never sought treatment for any psychological effects arising from his service and had never been diagnosed with a psychological condition. Prior to his discharge in 1972, Mr Bailey completed a Medical Statement, in which he responded ‘No’ to a number of questions asking whether he had suffered any disabilities resulting from or that had been aggravated by his service.[29] He contends, however, that his excessive drinking continued after discharge, contributing to the end of his six year marriage. He states that he lived for a period with his aunt and uncle for six months before using a $25,000 Defence Home Loan to purchase a house in Hamilton and has since paid the mortgage off. He stated there were no-alcohol-related hospital admissions or civil/ military offences after discharge. He submits that in the early 1980’s his driver’s licence was disqualified for 12 months due to a drink-driving offence, which caused him to moderate his alcohol intake in relation to driving, but that he still consumed ‘at least six stubbies of beer plus 2 or 3 glasses of wine each night’ at home.
[29] Exhibit R1, p.4.
Mr Bailey submits that he remained in the ‘fleet reserve’ following his discharge, which included a five-month period of fulltime service in 1996, where he led approximately 10 sailors during the re-fit of HMAS Brunei. As a senior Petty Officer based at HMAS Kuttabul, he submits that he attended the ‘wet mess most nights,’ and also went to bars in the ‘Rocks area,’ of Sydney to socialise with his shipmates. On the advice of his doctor, Mr Bailey says he ceased consuming alcohol in 2015 after his cirrhosis was diagnosed and has not consumed alcohol since.
Applicant’s Closing Submissions
In his closing submissions, Mr Hoel said that while Mr Bailey drank alcohol before his operational service in the Straits of Malacca in 1963, his consumption increased as a result of that operational service. He contends that the increase from Mr Bailey’s ‘baseline’ of drinking prior to his operational service remained for the rest of his career and beyond. Mr Hoel said this was attributable to or arose out of Mr Bailey’s operational service in 1963. He said this increased drinking response was in the context of an 18 year-old who felt he was being kept in the dark, was anxious about the threats confronting him, and had been involved in personally handling the bodies of dead Indonesian soldiers. Mr Hoel submitted these causes of increased drinking did not need to be the sole or dominant reasons, and it was sufficient to show some attribution. Moreover, he contended that the presence of non-war-caused factors didn’t undermine Mr Bailey’s claim, referring to Kattenburg,[30] at [44], in which the court held that the Tribunal had erred in relation to requiring the level of smoking to be wholly attributable to service:
‘…The Tribunal construed the SoP as requiring that the smoking of at least thirty pack years of cigarettes be wholly attributable to the service. The Tribunal did not examine the possibility that the smoking of the requisite number of cigarettes was contributed to in a material degree by the service or that it would not have occurred but for the rendering of the service. Accordingly, it fell into error in its application of SoP 130 of 1996.’
[30] Kattenburg v Repatriation Commission [2002] FCA 412; 34 AAR 562.
Mr Hoel also referred to Repatriation Commission v Tuite[31] in submitting that camp life can be a relevant consideration, particularly the comments of Davies J at [8]:
‘If the circumstances of eligible war service provide an operative cause contributing to the serviceman's injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life. The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease.’
[31] Repatriation Commission v Tuite [1993] FCA 43; 17 AAR 158.
In concluding, Mr Hoel submitted that the process of establishing whether there was a reasonable hypothesis and causal connection is intended to operate beneficially towards an applicant’s claims, citing Forrester.[32] In this regard I note the Federal Court held at [19]:
‘In its current form, the Act requires the decision-maker to undertake a process which Parliament intends to be beneficial to applicants: see Deledio v Repatriation Commission (1997) 47 ALD 261 at 262–263 per Heerey J; East 16 FCR 517 at 518. It is not a process intended to put insuperable hurdles in the way of the veteran, while still ensuring that the requisite causal connection between the veteran’s war service and the disease, injury or death is established.’
[32] Forrester v Repatriation Commission [2013] FCA 898.
Mr Hoel agreed that Mr Bailey had a pattern of heavy drinking behaviour established prior to his operational service, and that his operational service may not have been a dominant cause, but was a cause nevertheless of his increased consumption of alcohol. He submitted that ‘common sense was required in weighing all this up,’ contending that Mr Bailey’s operational service ‘doesn’t need to be the cause, but a cause,’ of his continuing post-war consumption of alcohol, which resulted in cirrhosis (emphasis added).
Respondent’s Closing Submissions
In his closing submissions, Mr Rudge referred to four cases relevant to Mr Bailey’s matter. The first was Owens,[33] which he submitted required that decision-makers must form an opinion by reference to ‘the whole of the material.’ I was referred in particular to the remarks of Brennan CJ, who held that:
‘Mr Justice Lockhart correctly perceived that the issue before the Administrative Appeals Tribunal was a question of fact…A majority of the Full Court allowed an appeal from Mr Justice Lockhart but their Honours seemed to have misunderstood the nature of the issue arising under section 120(3). It is not whether an hypothesis of connection would be reasonable if some facts are ignored; the question is answered by reference to the whole of the material before the Administrative Appeals Tribunal.’
[33] Repatriation Commission v Owens [1996] HCATrans 215.
Second, Mr Rudge highlighted the Federal Court’s decision in Codd,[34] where Gordon J, referring to Owens, held that:
‘As the language of s 120(3) makes clear, and as the High Court emphasised in Repatriation Commission v Owens (1996) 70 ALJR 904 at 904, the question whether a reasonable hypothesis is raised is to be determined on a consideration of the whole of the material before the decision-maker: see also Repatriation Commission v Bey (1997) 79 FCR 364 at 367. A reasonable hypothesis within s 120(3) of the VE Act is a hypothesis that is pointed to by the material before the decision-maker, and not merely left open (or not excluded) by that material. A hypothesis that is not pointed to, but is a matter of assertion or is merely left open by the material, is not a reasonable hypothesis: see East v Repatriation Commission (1987) 16 FCR 517 at 532-533. See also Repatriation Commission v Bey (1997) 79 FCR 364 at 366-367, 372-373; Bull v Repatriation Commission (2001) 188 ALR 756 at [18] and [41].’ [emphasis added]
[34] Repatriation Commission v Codd [2007] FCA 877.
Third, Mr Rudge asked that I note the concurrence of Emmett and Allsop JJ, who cited the following from East[35] in Bull[36] at [17-18]:
‘We agree with this analysis. A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. [emphasis added]
18. It is important to understand the following about East. The Court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis: see the emphasised paragraph in [17] above.’
[35] East v Repatriation Commission [1987] 16 FCR 517.
[36] Bull v Repatriation Commission [2001] FCA 1832; 188 ALR 756.
Although Bull was a widow’s pension case, Mr Rudge submitted it was relevant in Mr Bailey’s case insofar as it was insufficient to show an increase in drinking behaviour. He referred to Their Honours’ comments at [41-43]:
41. However, the inability rationally to characterise the hypothesis as fanciful, etc, does not answer the inquiry for subs 120(3). As set out in East, supra at 533:
A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.
42. On this basis, one can see that the reasons for the veteran’s increased drinking after the War might be consistent with the hypothesis in [38] above; but the drinking may also be equally explained otherwise, for example, a liking for convivial company of former service friends or a simple increased liking for alcohol consumption, especially after sporting activities.
43. If the consumption had been of a pattern which bespoke a change in behaviour referable to service or to coping with the experience of service, it might point to a connection with war service.
Mr Rudge submitted that in Mr Bailey’s case, the whole of the evidence left open the question whether his alcohol consumption arose out of or was attributable to operational service, contending it may relate to ‘convivial company’ in the bars adjacent to the Australian and overseas bases Mr Bailey served in. He submitted there was a consistent pattern of drinking by Mr Bailey of 10-15 pots of beer per night prior to his operational service in 1963, and there was no discernable increased pattern related to coping with operational service or resulting from that service.
Fourth, Mr Rudge referred to Forrester, in which Mortimer J held:
61. Further, even if those descriptions could not be applied to the hypothesis put forward by Mrs Forrester, as the Full Court pointed out in Bull 66 ALD 271; [2001] FCA 1832 at [18], it does not necessarily follow that the asserted hypothesis is a reasonable one:
It is important to understand the following about East. The court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis …
62. There is nothing in the Full Court’s decision in Bull that assists the applicant’s argument. The Full Court (at [22], citing Bey 79 FCR 364 at 373 and Repatriation Commission v Owens (1996) 70 ALJR 904) made it clear a factual exercise was involved:
The formation of the opinion called for by s 120(3) involves an assessment of the factual material before it. It involves reaching an opinion about a factual matter. It is, in that sense, a question of fact …
…
64. In Bull the Full Court concluded (66 ALD 271; [2001] FCA 1832 at [46]) that Gyles J had been correct to determine that the Tribunal was permitted to reach the view that the material before it did not point to a hypothesis connecting war service and service drinking, and so war service and death. Any error, the Full Court held, was an error of fact. This is despite what the Full Court had said at [40], the passage relied on by the applicant.
65. It is important to recall that the hypothesis in Mr Forrester’s case sought to link, in whole or in part, five particular events in Vietnam with the change in Mr Forrester’s drinking habits. That is why [40] of Bull, even if it could be taken as some kind of general endorsement for the purposes of s 120(3) of hypotheses of the kind with which it deals (and I do not consider it could be so taken), does not assist the resolution of the question of law in the present case. In the present case, what the Tribunal was saying at [69] was too remote or tenuous was, in its own words, the link between “the particular events of operational service” relied on by the applicant, and Mr Forrester’s alcohol consumption and hypertension. That conclusion was open to it and no misunderstanding of s 120(3) is disclosed by that conclusion.
Mr Rudge submitted that in Mr Bailey’s case, it was open to the Tribunal to conclude that the whole of the material does not point to a reasonable hypothesis because:
(a) His drinking commenced on HMAS ANZAC well prior to his operational service and in a short time he was consuming 10-15 pots of beer per night, which was a social norm. In essence, it was ‘out of the gate and off to the pub each night and you drank till you couldn’t drink anymore;’
(b) There were variations in Mr Bailey’s drinking from the established pattern prior to his operational service, including his evidence about drinking two bottles of wine each night in Japan in preference to Asahi, which was not to his taste. Another example was the much higher level of alcohol consumed at the San Miguel Brewery in the Philippines, because the beer was free and Mr Bailey’s evidence was that ‘you drank till you couldn’t drink anymore;’
(c) That there was a lack of specificity in Mr Bailey’s evidence about increased levels of drinking resulting from his operational service in the Straits of Malacca in 1963, which could have been between 15-17 pots of beer, but was unspecified in response to direct questioning;
(d) Mr Bailey’s evidence to the VRB does not reflect a causal connection, particularly in light of his evidence about being issued with beer at sea and:
‘it just progressed from there …you went straight to the nearest pub…most times were spent at the pub.’[37]
(e) That increased alcohol consumption above the claimed 10-15 pot baseline occurred following the Voyager incident and Mr Bailey’s return to Hamilton from Vietnam, which do not relate to operational service;
[37] Transcript, p.6 at [40]; p.7 at [35].
Mr Rudge submitted that Mr Bailey’s drinking baseline of approximately 10-15 pots of beer occurred well prior to his operational service in 1963 and notwithstanding discrete variations, reflected a long-term continuation of what was an established drinking habit. On that basis, he submitted the evidence as a whole does not point to the hypothesis linking Mr Bailey’s cirrhosis to alcohol consumption attributable to his operational service and the new stressors he had raised.
In response, Mr Hoel submitted that:
(a)Although Mr Bailey had a pattern of drinking established prior to his operational service, the Respondent had ignored and the Tribunal should have regard for whether there were other causes of increased consumption of alcohol resulting from his operational experiences in 1963;
(b)The stressors Mr Bailey was exposed to were not incredible or fanciful;
(c)That while Bull is instructive, it was a different case with different facts;
(d)In response to Mr Rudge’s reliance on Forrester, the Tribunal was asked to note Mr Bailey’s direct evidence of his heightened stress and anxiety resulting from his fears of operational service;
(e)In response to Mr Rudge’s comments about the absence of new stressors raised by Mr Bailey in his previous evidence to the VRB, Mr Hoel submitted that Mr Bailey’s VRB evidence went for approximately 10 minutes by phone, with very few questions put to him and this should not count against him; and
(f)That Mr Bailey had provided his clear recollections, full, frank and detailed evidence, including in relation to the incidents about dead Indonesian military personnel in the sea; and that while he accepted the ‘historical record is relevant’ it should not be suggested that his client was not truthful.
TRIBUNAL’S DELIBERATIONS
Stage 1: Hypothesis Connecting Cirrhosis With Mr Bailey’s Service?
In Meehan v Repatriation Commission[38], Wilcox J held that when considering the first Deledio stage, the Tribunal must consider ‘whether it is reasonably satisfied, pursuant to s 120(4), that there is a disease…as claimed.’ In Mr Bailey’s case there is no dispute regarding the diagnosis of cirrhosis. The hypothesis relied upon by Mr Bailey is that his operational service in 1963 caused anxiety, which caused him to drink increased quantities of alcohol. He contends that his drinking remained at that increased pattern during his subsequent Navy service and beyond, causing him to satisfy the SoP requirement of at least 110 kilograms of alcohol within a 10 years period prior to the clinical onset of his cirrhosis. I find it is possible from the available evidence to construct that hypothesis as a starting point for further investigation.
[38] Meehan v Repatriation Commission [2001] FCA 597
Stage 2: Statement of Principles in Force?
The hypothesis requires consideration against an SoP in force, which I find exists,[39] and which states at paragraph 9:
9 Factors that must exist
At least one of the following factors must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cirrhosis of the liver or death from cirrhosis of the liver with the circumstances of a person’s relevant service:
(1)for males, consuming at least 110 kilograms of alcohol within any ten year period before the clinical onset of cirrhosis of the liver.
(2)…
[39] Statement of Principles Concerning Cirrhosis of the Liver, dated 20 December 2016.
On the evidence before me, I find that Mr Bailey satisfies the alcohol quantity requirement of the SoP. It therefore follows that Stage 2 of the Deledio process is satisfied.
Paragraph 10(1) of the SoP, however, requires that the existence of any factor ‘must be related to the relevant service rendered by the person.’ Apart from the quantum of Mr Bailey’s alcohol consumption, it must also be related to his war service. A key question to consider, therefore, is the reasonableness of the hypothesis advanced by Mr Bailey.
Stage 3: Reasonableness of Hypothesis?
The third requirement of the Deledio process is consideration of whether the hypothesis raised by Mr Bailey is reasonable for the purposes of section 120(3) of the Act. It is not necessary at this stage to determine the factual correctness of the hypothesis, but whether there is material before me pointing to his cirrhosis being connected to his operational service consistent with the template in the SoP, which therefore requires determination under section 120(1) of the Act.
In an Alcohol Questionnaire he completed in 2015, Mr Bailey claims to have drunk an average of ‘9 standard drinks a day’ and that he stopped drinking permanently on 21 October 2014 when diagnosed with cirrhosis.[40] At the hearing, he agreed that his consumption of alcohol had been heavy prior to his operational service, at a rate exceeding that claimed in his Alcohol Questionnaire. He contends that as a consequence of his operational service in 1963, however, his drinking increased from a baseline of 10-15 beers per day, albeit by an unspecified amount. He submits that his drinking also increased temporally for about two months after HMAS Voyager’s collision with HMAS Melbourne before settling back to previous levels. As correctly noted by the VRB, the Voyager disaster, which occurred after Mr Bailey posted off the ship, is unrelated to Mr Bailey’s operational service.[41]
[40] Exhibit R1, pp. 9-22.
[41] Exhibit R1, p.B7, paragraph 22.
Mr Bailey’s evidence during the hearing points to a willing participation in a ‘drinking lifestyle’ and ‘drinking culture’ during his posting to HMAS Sydney in 1962, which was prior to his operational service. When asked whether his drinking was at the rate of 10-15 beers per night during this period, Mr Bailey replied: ‘conservative yes.’ He was not able to quantify the extent to which his drinking increased from that ‘conservative’ baseline as a consequence of the claimed stressors arising from his operational service. He said it was only the increased severity of effects from consuming alcohol during this time, which caused him to conclude he was drinking more.
The material before me points to a pattern of excessive alcohol consumption by Mr Bailey prior to his operational service in 1963. On his own evidence, this increased beyond the claimed baseline of 10-15 beers on other occasions prior to his operational tour. Examples include while serving with HMAS Sydney in 1962 and also during highly-anticipated shore leave in places like Japan and the Philippines. In that respect, the evidence points to Mr Bailey choosing to engage in a consistent pattern of excessive alcohol consumption prior to rendering operational service in 1963.
New Stressor and Historical Material
Mr Bailey’s reference to frequent firing at sea by minesweepers and HMAS Voyager, which resulted in the deaths of a significant number of Indonesian military personnel, was made for the first time during his evidence in chief. The Tribunal and Respondent had not previously been exposed to these claims during the pre-hearing phase, nor had they been raised in Mr Bailey’s applications to the Commission or VRB.[42] Substantial emphasis was placed on this new evidence as a stressor contributing to Mr Bailey’s increased alcohol consumption. During the hearing Mr Bailey was asked whether his recollections about these incidents and his claims about the absence of any air cover for HMAS Voyager, accorded with the historical record. It was put to him that the history of Confrontation with Indonesia from 1963-66 recorded only a small number of tactical incidents involving RAN ships, that Australian and Royal Air Force flying squadrons had provided air cover for FESR naval elements, and that the history described FESR naval patrols as generally ‘long and tedious.’ Mr Bailey was unable to recall the date on which the major incident involving up to 40 dead Indonesian military personnel had occurred, or whether these incidents had been recorded in HMAS Voyager’s log, but stated ‘I would imagine they would be.’[43] In response to the observation that the historical record noted air cover had been provided for Australian fleet units, Mr Bailey stated he ‘knew we had planes at Butterworth but I certainly don’t know what sort…’,[44] and that he had not seen them.
[42] Exhibit R1, p.B7, paragraph 24. The VRB noted that ‘the veteran did not raise any stressors that contributed to his drinking during or following his operational service.
[43] Transcript, p.29, at [30].
[44] Transcript, p.28, at [40].
In light of the new evidence from Mr Bailey about repeated engagements with Indonesian military infiltrators, Mr Rudge sought leave to provide written submissions after consulting the Official History.[45] Mr Hoel objected to what he considered was a suggestion Mr Bailey was being untruthful, submitting that contrary views had not been put during cross-examination. Mr Hoel reinforced there was no onus of proof on Mr Bailey under the Act, which I accept. He also objected to the Respondent adducing historical evidence during closing submissions or seeking to make further written submissions after consulting the historical record. I noted that the Tribunal was not bound by the rules of evidence and it would be procedurally unfair not to give the Respondent an opportunity to make written submissions on the new evidence adduced by Mr Bailey. Leave was granted for the Respondent to make written submissions by 21 July 2017, and for the Applicant to make submissions in response by 4 August 2017.
[45] Exhibit R6.
On 20 July 2017 Mr Bailey’s solicitor wrote to the Tribunal, reinforcing the objection that the Respondent had not put any evidence to Mr Bailey during cross-examination, historical or otherwise, contradicting his evidence or suggesting it was ‘false, untrue, mistaken, inaccurate, or not credible.’ Further reference to historical records by the Respondent was again objected to on the basis that it breached the rule in Browne v Dunn.[46] Mr Bailey’s solicitor submitted that the ‘historical records were…being deployed here in a manner which inconsistent [sic] with this rule,’ and objected ‘to any submissions which have or will be made contrary to the rule in Browne v Dunn, and any historical records to be adduced and relied upon in this regard.’
[46] Browne v Dunn (1893) 6 R 67 H.L
The Respondent’s written submissions, dated 21 July 2017 were based on extracts from the Official History of the Royal Australian Navy in Southeast Asian Conflicts from 1955-1972. Mr Rudge submitted that the tactical contacts at sea described by Mr Bailey ‘did not occur,’ and ‘HMAS Voyager had no contacts with Indonesian or other hostile forces.’ Mr Rudge submitted that a key aim of administrative review should be ‘to conduct proceedings fairly and in a manner conducive to eliciting probative evidence.’ He stated that Mr Bailey’s evidence included events not previously described and in the normal course of investigating an appeal to the Tribunal, ‘advice would be sought from a historian about the events, or information gleaned from respected texts would be filed…served…and used in cross-examination.’ Because Mr Bailey had only raised these significant stressors during his oral evidence, Mr Rudge contended that the ‘normal course’ could not be undertaken and his cross-examination had been rendered ‘problematic.’ Mr Rudge said he was unwilling to ‘attack the credit and dignity of the witness without an evidentiary basis for doing so,’ choosing instead to ‘seek leave and file extracts from the Official History…to assist the proceedings and obviate the need for a further day of hearings.’
Mr Hoel provided a further written submission dated 24 July 2017, repeating the objections raised in earlier correspondence. He submitted that the Official History extracts provided by the Respondent contained ‘only very limited reference to naval operations and service in 1963,’ with ‘the bulk of the text being expressly focussed on 1964 and the years that followed.’ He said there was ‘no express reference to the Voyager in any of the extracted pages, nor to its service in the Indonesian Confrontation,’ despite the Voyager being ‘one of the largest of the RAN ships deployed to the region.’ Mr Hoel submitted that the Respondent had not properly identified what its position was in relation to the Applicant’s evidence, which was ‘entirely unsatisfactory.’ He again highlighted that the Applicant bears no onus in relation to this application and that procedural fairness required the Tribunal to have no regard to the Respondent’s submissions in relation to the historical record, which was ‘not properly before the Tribunal.’
After considering the written submissions of the parties, I decided to re-convene the hearing, enabling any matters arising from the historical extracts to be put to Mr Bailey. A Telephone Directions Hearing (TDH) was conducted on 21 September 2017 relating to the necessity for a resumed hearing, which the Applicant objected to. In light of the Applicant’s objections, I took care not to consider any of the written material lodged with the Tribunal following the hearing. During the TDH, Mr Hoel withdrew the objection to the tendering of the historical material and accompanying written submissions. I agreed to proceed to decision without re-convening the hearing, after giving leave for a final written submission on the historical evidence from the Respondent by 5 October 2017 and from the Applicant by 19 October 2017. Key aspects of my reasoning follow, which were verbally communicated to the parties on 21 September 2017:
(a)I do not accept the Applicant’s contention that the Respondent was afforded a reasonable opportunity to cross-examine and ‘put or seek to put any evidence, historical or otherwise…contradictory to the Applicant’s evidence.’ Prior to the hearing the Respondent was unaware of Mr Bailey’s reliance on repeated engagements with Indonesian military infiltrators as a stressor causing his increased alcohol consumption. Although Mr Rudge had submitted during the hearing that he believed there was ‘no record of masses of dead bodies,’[47] Mr Hoel strongly objected, submitting that Mr Bailey had given ‘clear recollections,’ had a ‘good memory,’ and it was a ‘bit of stretch’ for Mr Rudge to suggest he had ‘misremembered or was confabulating.’[48] Given the course of these proceedings, I consider the Respondent did not have reasonable opportunity to cross-examine Mr Bailey. Remedying that by allowing written submissions on the historical evidence is neither ‘procedurally irregular or unfair’ as the Applicant contends;
(b)I do not accept the Applicant’s submission regarding the common law rule in Browne and Dunn. While anything proposing to contradict the evidence in chief of a witness should normally be put during cross-examination, for the reasons previously adduced, the course of these proceedings rendered that problematic. There is no mention of the new stressor relied upon by Mr Bailey in any of the pre-hearing documents for this hearing or in his applications to the Commission or VRB. As held by the High Court in MWJ v The Queen[49] at [19]:
‘Fairness ordinarily requires that if a challenge is to be made to the evidence of a witness, the ground of the challenge be put to the witness in cross-examination. This requirement is accepted, and applied day by day…However, the consequences of a failure to cross-examine on a certain issue may need to be considered in the light of the nature and course of the proceedings.’
It was not reasonably foreseeable for the Respondent to anticipate Mr Bailey’s new evidence relating to events allegedly occurring over 50 years earlier. Consequently the Respondent was not well placed to consider this evidence in an informed way and put any contradictory facts or inferences to Mr Bailey. Moreover, I do not accept the contention that a Respondent or the Tribunal should be restricted to the opportunity at a hearing alone, to address new evidence of this significance; and
(c)I do not accept the Applicant’s contention that the historical materials lodged following the hearing are ‘largely irrelevant.’ The Applicant gave evidence that the new stressors he relied upon may have been entered into HMAS Voyager’s log. Any available historical record is therefore relevant to these proceedings. I also note it was counsel for the Applicant who asked during the hearing that separate written submissions be made in relation to the Official History.[50]
[47] Transcript, p.62 at [0].
[48] Transcript, p.68 [at 15-35].
[49] MWJ v The Queen [2005] HCA 74.
[50] Transcript, p.47 at [20].
Stressors During Operational Service
In relation to Mr Bailey’s contentions about stressors arising from his operational service, I note that Chapter 3 of the Official History[51] addresses four main issues: ‘the threat posed by the Indonesian Navy…; the contingency planning undertaken at the behest of the Commander-in-Chief…to meet a widening of the conflict; the process by which Australian ships were committed to operations; and the type and nature of the operations themselves.’[52] The author makes clear that only the more interesting or notable incidents of service were included:
‘The activities of each RAN ship engaged in Malaysian waters need not be recounted in inordinate detail. Much of the time spent on patrol was repetitious and uneventful. Periods of deployment on patrol in the Straits opposite Indonesian territory, or in the Tawau Assault Group were separated by periods of training and exercises, port visits, maintenance and leave. What follows will relate some of the more interesting or notable incidents of service in order to convey a sense of RAN activity overall, and of the broader context of which it was a part.’[53]
[51] Exhibit 6, Chapter 3, The RAN, Confrontation and the Defence of Malaysia.
[52] Exhibit 6, p.43.
[53] Exhibit 6, p.60.
The Official History further records that:
‘until 1964…naval activity had a fairly low profile within Confrontation operations overall. The Indonesians had not yet extended their attempts at infiltration beyond Borneo, and the level of intensity of those operations which did occur was low, although by 1964 there were some worrying signs that Indonesian regulars comprised an increasing proportion of those groups crossing the border.’[54]
[54] Exhibit 6, p.47.
The history records that it was not until September 1963 ‘that it became clear…that the threat to Malaysia from Indonesia was real and growing,’[55] but the major focus of planning in late 1963 and 1964 was ‘ground and air action,’ with ‘conventional surface naval activity…more limited in form.[56] There is no reference in the Report of Proceedings of HMAS Voyager or HMAS Vampire, during February-May 1963, to frequent encounters with Indonesian military personnel attempting waterborne infiltration. Moreover, the Official History records that:
‘For the remainder of 1963 there was little further activity…seaborne infiltration by the Indonesians was not a significant factor at this stage because of the ease with which incursion parties could penetrate the land border, and proper naval patrols were not in fact established in Sarawak and Sabah until the first months of 1964…by late 1963 there were some indications that seaborne infiltration attempts would increase.’[57]
[55] Ibid.
[56] Exhibit 6, p.49.
[57] Exhibit R6, p.50.
I note also the reference in the Official History to strict rules of engagement:
In order to reduce the risk of escalating the conflict, the naval forces worked under restrictive rules of engagement which generally only allowed them to fire on Indonesian vessels only in response to receiving fire themselves.[58]
[58] Exhibit R6, p.58.
In relation to the historical records, the Respondent submits:
(a)That the events described by Mr Bailey did not occur. There was no firing by HMAS Voyager or accompanying minesweepers upon Indonesian vessels, no Indonesian casualties, and if such events had occurred they would certainly have been reported upon in the Official History and in the Captain’s Reports of Proceedings;
(b)That HMAS Voyager was not tasked to patrol the Malacca Straits, nor was it particularly tasked to intercept other vessels. The records indicate HMAS Voyager was tasked to have a presence in Southeast and East Asia as part of the FESR, in which role it would have passed incidentally through the Malacca Straits, enroute to destinations like Singapore, Trincomalee, Batti Malv, Hong Kong, Palau Tioman, Manila and frequent exercises; and
(c)It is difficult to conceive that the crew were not told or did not know that they were not tasked to patrol the Malacca Straits and that, apart from incidental passing through the Straits, their time was spent sailing to the various ports, engaged in exercises, in port, or ashore.
In relation to the historical materials and submissions lodged by the Respondent, the Applicant submits that:[59]
(a)The historical materials are not exhaustive, nor are they expressed to be exhaustive as to the events occurring during HMAS Voyager’s operational tour in early 1963;[60]
(b)The Applicant did not state, nor was he asked, precisely when the encounters with Indonesian military infiltrators occurred during his 1963 operational tour;
(c)The Applicant bears no onus in relation to this application, and the Tribunal must have regard to deficiencies in official records in ascertaining any fact or matter under section 119(1)(h) of the Act, which is intended to be beneficial to applicants;
(d)Given the non-exhaustive nature of the materials provided, it is open to the Tribunal to find that these events did occur as related, or substantially as related by the Applicant;
(e)Even if the Tribunal finds these events did not occur, it remains open to the Tribunal to find that the Applicant’s principal hypothesis has been raised and has not been disproven beyond reasonable doubt. The principal hypothesis being that he experienced anxiety as a result of his apprehension at being put in a life-threatening situation, which caused a change in the manner in which he drank and the volume of alcohol he consumed, and that his Cirrhosis is attributable to that heightened drinking;
[59] Applicant’s Submissions dated 13 October 2017.
[60] In this regard, counsel for Mr Bailey referred me to Peter Djokovic, ‘The RAN in ‘Konfrontasi’ – 50 Years On, Semaphore, 2016 Issue 03, accessed 23 July 2017.
In relation to the general and specific stressors Mr Bailey relies upon, I have had regard to the historical material submitted by the Respondent and the submissions of the parties. Although there is no Record of Proceedings submitted for HMAS Voyager in March 1963, HMAS Vampire’s Report of Proceedings is relevant because she was in company with HMAS Voyager during March 1963 and at other times. Given the significance of the incidents at sea described by Mr Bailey, it would reasonably be expected to find references to them in the Captain’s Reports of Proceedings and/or the Official History. I note counsel for the Applicant’s reference to section 119(1)(h) of the Act, but I do not accept there is an ‘absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran…was not reported to the appropriate authorities.’ The historical records provide a sufficient basis on which to consider the stressors relied upon by Mr Bailey, who, when asked at the hearing, could not recall when the incident resulting in up to 40 dead Indonesian soldiers occurred.[61] I accept counsel for the Applicant’s submission that not all events are easily remembered or recorded in the historical records. But I consider it highly implausible that incidents of the significance described by Mr Bailey would have gone unrecorded in the Official History or the Reports of Proceedings lodged by HMAS Voyager or HMAS Vampire. Additionally, in light of the activities recorded in the historical documents as having been undertaken by HMAS Voyager during Mr Bailey’s 1963 operational service, they do not point to him being put in a ‘life-threatening situation’ as a result of threats from Indonesian ships or aircraft during patrols in the Malacca Straits. I accept that these are Mr Bailey’s recollections and that he may believe these incidents occurred in the terms he describes, but I place more weight on the stronger objective evidence contained within the historical documents.
[61] Transcript, p.29 at [15].
In relation to his alcohol consumption, Mr Bailey’s evidence points to an established pattern of heavy consumption prior to his operational service. This continued during the shore leave he and his shipmates were granted during HMAS Voyager’s operational tour in early 1963. The evidence points to opportunistic binge drinking with comrades before, during and after his operational tour, rather than a response to either general or specific stressors during operations. The causal link Mr Bailey seeks to make between his operational service in 1963, his increased drinking behaviour, and a diagnosis of cirrhosis three years ago, is too remote and tenuous. The evidence does not point to his war service as an operative cause of his excessive drinking, nor does it ‘forcefully point to a conclusion of a connection’.[62] Even with an eye to the beneficial intent of the Act, it cannot be said Mr Bailey’s excessive consumption of alcohol would not have occurred but for the rendering of his operational service in 1963. The other two periods of increased alcohol consumption, which Mr Bailey says resulted from the Voyager accident and during his resettlement in Hamilton after Vietnam, are unrelated to his operational service.
[62] Borrett v Repatriation Commission [2000] FCA 1829 at [35].
Emmett J in Kattenberg at [8-9], elaborated upon how the factors in an SoP must relate to the service rendered by a veteran, in considering whether a reasonable hypothesis has been raised:
‘8. …Section 196B(2) provides that, if the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of disease can be related to certain service, the Authority must determine a Statement of Principles ("SoP") in respect of that kind of disease. An SoP must set out the factors that must, as a minimum, exist, and which of those factors "must be related to service rendered by a person", before it can be said that a reasonable hypothesis has been raised connecting a disease of that kind with the circumstances of service.
9. Section 196B(14)…clarifies the circumstances in which the necessary causal relationship between a factor and service will be present. Thus, a factor that causes or contributes to a disease is related to service rendered by a person, relevantly, if:
"(b) it arose out of, or was attributable to, that service; or...
(d) it was contributed to in a material degree by, or was aggravated by, that service;...
(f) in the case of a factor causing, or contributing to a disease-it would not have occurred...but for the rendering of that service by the person".
While it is not contested that Mr Bailey consumed the requisite quantity of alcohol, section 10 of the SoP also requires that factor to be related to his operational service. The whole of the material before me does not point to a discernable pattern of increased alcohol consumption, related to Mr Bailey coping with the general or specific stressors he relies upon during his operational service. After considering the whole of the material before me, I am satisfied beyond reasonable doubt that the facts raised by the evidence do not give rise to a reasonable hypothesis.
Stage 4: Whether the factual evidence satisfies the standard of proof?
As no reasonable hypothesis has been raised connecting Mr Bailey’s Cirrhosis with his relevant service, it is not necessary to consider the fourth Deledio stage.
Assessment of Pension
Mr Bailey’s application to the Commission in May 2015 had two components: a claim for a new disability (cirrhosis); and for increased pension relating to a worsening of his previously accepted disabilities. These reasons have so far focussed exclusively on the rejection of Mr Bailey’s claim for cirrhosis. That is because the submissions made in the Applicant’s Statement of Facts and Contentions[63] and during the hearing of this matter, relate exclusively to this aspect of his claim. Although it is contended by Mr Bailey’s legal representatives that the VRB ‘erred in failing to increase the Applicant’s rate of disability pension beyond 100% of the general rate…,’[64] no evidence or submissions were provided in support of that contention.[65]
[63] Applicant’s Statement of Facts and Contentions dated 10 May 2017.
[64] Exhibit R1, p.A4.
[65] Transcript, p.69, at [20-35].
In relation to Mr Bailey’s entitlement to the Special Rate of pension, although his claim satisfies the requirements of section 24(1)(aa) of the Act, it does not satisfy section 24(1)(aab), because he had already turned 65 when his application was made and he had ceased remunerative work prior to turning 65. I am therefore satisfied that Mr Bailey is not eligible for pension at either the Special or Intermediate rate.
In relation to his entitlement to the EDA, Mr Bailey satisfied section 22(4)(a)(i) and section 22(4)(b) of the Act, in that he was receiving disability pension at 100% of the General Rate and had attained the age of 65. But his assessed impairment rating of 65 points and a lifestyle rating of 4 points,[66] on which no evidence or submissions were provided to support an increased ratings, means that he does not satisfy the requirement at section 22(4)(c) of the Act. I am therefore satisfied that Mr Bailey is not eligible for EDA.
[66] Exhibit R1, p.56.
CONCLUSION
After considering the whole of the material before me, I find that it does not raise a reasonable hypothesis connecting Mr Bailey’s Cirrhosis with the circumstances of his operational service. I am therefore satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Bailey’s cirrhosis was war caused.
I am also not reasonably satisfied that Mr Bailey’s two previously-accepted conditions have worsened, in the absence of evidence and submissions to support that contention.
DECISION
It therefore follows that the decision under review is affirmed.
I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Nikolic AM CSC
........................[sgd]................................................
Associate
Dated: 25 October 2017
Date(s) of hearing: 19 July 2017 Counsel for the Applicant: Mr. Adrian Hoel Solicitors for the Applicant: Williams Winter Advocate for the Respondent: Mr. Ken Rudge
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