Berryman and Repatriation Commission
[2005] AATA 1066
•25 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1066
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/353
VETERANS' APPEALS DIVISION ) Re GLENN WILLIAM BERRYMAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis and Senior Member R W Dunne Date25 October 2005
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
DG Jarvis
(Signed)
Deputy President
CATCHWORDS
VETERANS’ ENTITLEMENTS – operational service – claim that anxiety disorder and dysthymic disorder were war-caused – consideration of Statements of Principles – whether presence of gunfire, Navy divers and aircraft constituted “severe psychosocial stressors” – timing of “clinical onset” of anxiety disorder and dysthymic disorder – decision under review affirmed.
Veterans’ Entitlements Act 1986 (Cth), ss 9, 120(1), 120(3), 120A and 196
Benjamin v Repatriation Commission (2001) 70 ALD 622
Bull v Repatriation Commission (2001) 66 ALD 271
Delahunty v Repatriation Commission (2004) 38 AAR 511
East v Repatriation Commission (1987) 16 FCR 517
Elliott v Repatriation Commission (2002) 73 ALD 377
Fogarty v Repatriation Commission (2003) 37 AAR 363
Guy v Repatriation Commission [2005] FCA 562
Hardman v Repatriation Commission (2004) 82 ALD 433
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Stoddart (2003) 134 FCR 392
White v Repatriation Commission (2004) 39 AAR 67
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
25 October 2005 Deputy President D G Jarvis and Senior Member R W Dunne 1. Glenn William Berryman served in the Royal Australian Navy from 6 January 1969 to 5 January 1975. He was engaged in operational service in Vietnam on board HMAS Sydney for a period of seventeen days from 16 February 1970 to 5 March 1970. On 21 October 2003, he lodged a claim for pension in respect of disabilities he described as “emotional & behavioural” and “diabetes”. The Repatriation Commission recorded diagnoses of dysthymic disorder, diabetes mellitus and anxiety disorder in response to his claim. The Commission rejected his claims for dysthymic disorder and anxiety disorder, but accepted his claim for diabetes mellitus. The Commission granted Mr Berryman a disability pension at 10 per cent of the General Rate, with effect from 21 July 2003.
2. Mr Berryman subsequently sought a review from the Veterans’ Review Board (“VRB”). The VRB affirmed the decisions of the Commission in relation to Mr Berryman’s claims for dysthymic disorder and anxiety disorder. Mr Berryman has applied to this Tribunal to review the decision of the Commission, as affirmed by the VRB.
Issues before the Tribunal
3. The issues before the Tribunal are whether Mr Berryman’s anxiety disorder and dysthymic disorder are war-caused pursuant to s 9 of the Veterans’ Entitlements Act 1986 (Cth) (the “VE Act”). This in turn raises the following further issues:
(a)whether Mr Berryman experienced one or more severe psychosocial stressors within the meaning of that expression in the Statement of Principles in respect of anxiety disorder (“SoP”);
(b)whether Mr Berryman experienced the clinical onset of anxiety disorder or dysthymic disorder within two years of the events which he asserts constituted such stress; and
(c)whether Mr Berryman had a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder or dysthymic disorder.
4. The parties agreed the diagnoses of the relevant conditions. It was also common ground that, if Mr Berryman was successful in his claim, the earliest date of effect of his pension entitlement would be 21 July 2003.
Background
5. Mr Berryman was born on 21 August 1952 in Richmond, Victoria. He completed his formal schooling at Mitchell Park High School in suburban Adelaide. Upon leaving school in 1968 he enlisted in the Royal Australian Navy and did his initial training at HMAS Leeuwin in Western Australia, where he joined the junior recruit training establishment. After a year, he was promoted from junior recruit to ordinary seaman and returned to Adelaide for Christmas leave. After Christmas leave, he joined HMAS Sydney. Following his service on HMAS Sydney, he joined HMAS Cerberus. He remained in the Navy until he came to the end of his six year enlistment in 1975.
6. In essence, Mr Berryman asserts in the present proceedings that certain stressful events occurred during his operational service and caused the conditions on which his claim is based. He said that these events occurred after the Sydney had reached Vung Tau Harbour. The events were described as follows in the applicant’s Statement of Facts and Contentions:
(a)the applicant heard gunfire (and in evidence he said that he saw a flashing glow in the hills);
(b)the applicant saw divers checking the hull of the ship for mines, and was frightened; and
(c)the applicant saw aeroplanes dropping agent orange.
7. It appeared from Mr Berryman’s evidence that he was also frightened by scare charges which were used when the Sydney was in Vung Tau Harbour, and indeed that he found the experience of being on board the Sydney during the time the ship was in Vung Tau Harbour stressful because he realised that he was in a war zone and a situation of danger.
Evidence Before the Tribunal
8. We will now narrate a summary of the relevant evidence before us, but we will not at this stage make any findings on matters related to the issue of whether Mr Berryman’s claimed conditions were war-caused.
Evidence of Mr Berryman
9. Mr Berryman gave oral evidence to the Tribunal. Two written statements from Mr Berryman, one dated 21 October 2004 and the other 19 January 2005, were also tendered.
10. Mr Berryman’s evidence was that he was stationed on HMAS Sydney when it proceeded from Australia to Vung Tau Harbour in Vietnam. It is clear from other evidence that this was on 16 February 1970. His ordinary seaman duties were on the mess deck, as a galley hand and a wash hand. His mess deck duties involved general cleaning, cleaning toilets and dishwashing. He said he was among the “bottom of the bottom” – he had no formal training in any Navy branch. In Vung Tau he was a steward, serving in the Petty Officers’ mess galley.
11. Under cross-examination by Mr Crowe, the Repatriation Commission’s advocate, about specific memories of anything that happened before the Sydney left Australia, Mr Berryman related an incident where “a sailor ate light bulbs, went crazy, let off 20-man life rafts, walked through the uppers, went into the mess decks, attacked people with axes … attacked their hammocks and chopped them out of their beds, threw half a dozen sailors virtually over the side.” He said he did not know the sailor, who was later punished, and did not see him on the ship after the incident.
12. Mr Berryman said he could not remember the first time he learnt he was going to Vung Tau or for how long he was in the harbour. He could not say what he expected to happen when he got to Vietnam. He never thought about travelling to a war zone because he was too busy and he had no memory of entering the harbour itself. He said the Sydney was at action stations and he was below deck. He realised he was in Vung Tau when the Sydney docked. His next memory, after being at action stations, was the Petty Officers’ mess and the midday meal. The Petty Officers were having their lunch and he was serving them. In cross-examination, he was referred to the Report of Proceedings of the Sydney for February 1970 (exhibit R2). He acknowledged the report showed that the Sydney anchored in Vung Tau Harbour at 6:30 am on 27 February 1970, and weighed anchor and left the harbour at 11:20 am the same day. However, he said the report contradicted his memory of events that day.
13. Mr Berryman said that he observed the asserted stressful events while he served the Petty Officers their meal and while he was moving from one end of the Sydney to the other. He said the ship was at a high level of action stations for the time he was there. There were scare charges; there were divers in the water; there was activity. He also saw planes “with streams playing out of the back of them” (transcript 21.7.05, page 21, line 25), killing the vegetation on the land. He also heard gunfire and saw the sky light up, but he did not know where the guns were pointing or where the shells were going. He said he first heard the gunfire when it was “clear” day and it was after dawn. The sound of the gunfire caused an awakening feeling like, “I’m really here. This is real life. It is actually going on.” (transcript 27.7.05, page 22, line 29). He said he felt scared by the gunfire, and was completely disorientated. He realised Vung Tau was a war zone and he felt his life was threatened. He said he was never prepared for that experience. He had seen divers in the water, below the waterline, and was fearful of the ship sinking.
14. In cross-examination, Mr Berryman acknowledged that the scare charges and the divers were in Vung Tau for his protection. Although his evidence was that the planes were spraying agent orange, which he believed threatened his life, he agreed that he was not aware of the danger of that contaminant in 1970, and that the presence of the planes was also for his protection.
15. Mr Berryman gave evidence that he was married in 1972 and that, between the time he left Vietnam and married, there were changes in his life and the way he behaved. After Vietnam, he started smoking and drinking, and became angry, violent and resentful. He started having fights. The first fight, according to his medical records, was in 1971. On this occasion, he attended the out-patient treatment unit at HMAS Cerberus on 7 November 1971 (exhibit A1, page 28). In cross-examination, Mr Berryman said that he had gone from Cerberus to a bar when he was drunk. He got into a fight with a few mates, who were also drunk. He gave evidence of other later fights in which he was involved whilst in the Navy. When asked the specific question by Mr Crowe, he could not remember ever being involved in a fight where alcohol was not a feature.
16. Following his marriage, his first child, a daughter, was born on 11 June 1973. He took recreation leave from the Navy for the birth and, whilst on leave, took a job at Chryslers. He was there for about two weeks but he left on 22 June 1973, following an incident where he struck a co-worker on the head with a sand block.
17. Mr Berryman’s further evidence was that he was currently seeing a psychiatrist, Dr Michael Nance. In cross-examination, he said that he had been seeing Dr Nance fortnightly for about five years. He said that when he first saw Dr Nance in 2000, he was worrying about his naval experiences – he was aware he had a problem, but did not know what it was. He did not at first tell Dr Nance then about Vung Tau and he could not remember when he first mentioned it. By the time he first went to see Dr Nance, he had been through a breakdown lasting three or four years. He had been off work for twelve months and had started receiving social security sickness benefits. He also did not tell Dr Nance about the sailor’s axe wielding incident because he did not see it as significant. He said this because he felt he was able to control that episode.
18. Mr Berryman was cross-examined about a report from Dr Nance dated 4 February 2005 (exhibit A5) and, in particular about a comment at page 2 of the report, when referring to other reports as early as 2003, Dr Nance said:
“At the time of my previous reports I indicated that Mr Berryman had experienced nightmares at around the time of his discharge from the Navy but that he had not since been preoccupied by the traumatic experiences that occurred during his service.”
Mr Berryman responded by saying that he had had nightmares consistently at different times, and that since 1971-1972 there had been no significant period when he had not had nightmares. He agreed with Dr Nance’s assessment that he had not, since the time of his discharge, been preoccupied by traumatic experiences, but he said he still had nightmares.
19. Mr Berryman said that, following Vietnam, he had trouble sleeping. When cross-examined further about the nightmares, he agreed that the problems had occurred when he was at sea and not while he was on shore. He said that, after he left the Navy, the nightmares were worse. They started getting bad when he had his breakdown and it affected all his memory. He said he was now having trouble with nightmares, with sleeping sweats, with cramps and he was suffering from diabetes. His fear of sleep or getting to sleep had come since the breakdown. He said that, before the breakdown, he could not remember having trouble getting to sleep.
20. Mr Berryman was questioned about the meal he said he served the Petty Officers while in Vung Tau Harbour. His initial evidence was that he had served lunch to the Petty Officers but, when questioned closely, he became confused about the actual timing of the meal, and said he had no specific recollection of more than one meal. However, he said that the Sydney was anchored at the time and he said “I saw the foreshore, saw the guns, saw the divers and saw the planes”.(transcript 21.7.05, page 76, line 40).
21. Mr Berryman was cross-examined further about his marriage in 1972. He said it was not a happy period because he was drunk most of the time. His wife at the time was an American and the marriage lasted twenty years. When the marriage broke up, he was questioned as to whether there was a custody battle over his children. He denied that the break up included a custody battle for his children. However, when shown an earlier report of Dr Nance dated 19 November 2003 (exhibit A1, page 82) he acknowledged that the whole break up with his former wife was protracted, and not just the custody battle in itself.
22. Under further cross-examination about his time in the Navy immediately before and after Vung Tau, Mr Berryman said that Leeuwin was probably the first experience where he had been taken away from his family and home. He said he adjusted to Leeuwin because it was a twelve-month stint in one hit. Other than leave, it gave him time to find his legs, adjust and settle in. After Leeuwin, he went to HMAS Sydney and was on shore in the city of Sydney waiting for the ship to be refitted. It was here that he said he first felt disorientated, the lowest of the low, kept to himself, felt withdrawn and tried to adjust to a change of environment.
23. In re-examination, Mr Berryman said that he had worries after he had been aboard the Sydney in Vung Tau Harbour in 1970, and had worries between 1970 and 1972. He said he had worries when he left the Sydney and when he was back on the Sydney, and when he went to the Cerberus. He said that between 1970 and 1972 he had difficulty sleeping. He had fear of sleep, that if he slept, he would not wake up. He had fear of closing his eyes. The only places where his fear of sleeping never seemed to be predominant was when he went to shore, got drunk and got to the stage where he blotted it out of his mind.
Evidence of Dr Nance
24. Dr Nance gave oral evidence to the Tribunal and also relied upon his report of 4 February 2005 (exhibit A5). An earlier report of Dr Nance is included in the T Documents (exhibit A1) at pages 79 to 83. Dr Nance said that his initial diagnosis of Mr Berryman’s condition was that of generalised anxiety disorder, but that there was the presentation of dysthymic disorder as well. In his most recent report of 4 February 2005, Dr Nance said that Mr Berryman’s symptoms “met the threshold” for post-traumatic stress disorder (“PTSD”). However, as of the day of the hearing, Dr Nance thought generalised anxiety disorder would be a better description of Mr Berryman’s problems and that that had been the case throughout the period during which he had been treating him, and he was not disposed to arrive at a diagnosis of PTSD. In answer to a specific question by the Tribunal as to why the applicant’s present condition was not PTSD, he said that Mr Berryman’s re-living and re-experiencing traumatic events, which were features of PTSD, had become more prominent in the last couple of years, but he would not want to read a diagnosis of PTSD into those experiences.
25. When asked about the sort of worries that Mr Berryman had complained of, Dr Nance said:
“… he tends to anticipate future events where he believes that he will be treated unfairly or badly, both by authority figures and in most other situations too, really, by friends and social contacts which has led him to withdraw from a lot of social activities and just by strangers and other people he might meet. … He also ruminates for long period (sic) of times about more general or abstract problems, particularly issues of unfairness or injustice in society at large.” (transcript 21.07.05, page 92, lines 28 to 37)
26. When questioned about the time he developed generalised anxiety disorder, Dr Nance said it was difficult to get a clear picture of that from the applicant. The problems were well-established by the time he first saw the applicant in 2000. Mr Berryman also had what he described as a breakdown some four or five years earlier, where he had had time off work and was prescribed anti-depressants. However, he had not addressed the problems in any more detail, so it was very hard to get a clear picture of what was happening back then. When asked about Mr Berryman’s behavioural problems and their relevance to someone having generalised anxiety disorder, Dr Nance said:
“So people often act in those situations by avoiding situations and withdrawing but also sometimes by becoming more angry or aggressive. It is particularly relevant in Mr Berryman’s case because he tends not to be so much aware of his feelings and thoughts per se and he tends to describe things in terms of events or behaviour and in terms of his physical symptoms such as sweating and shaking, muscle tension, insomnia and so on which are also features of generalised anxiety disorder and which Mr Berryman states are long-standing problems.” (transcript 21.07.05, page 93, lines 24 to 32)
27. Dr Nance was referred to the fight, in which Mr Berryman was involved whilst onboard the HMAS Cerberus, on the night of 6 November 1971, shortly after his operational service in Vietnam. Dr Nance agreed that there was a temporal connection between Mr Berryman’s fighting and his earlier trip to Vietnam. When asked to comment upon the relevance of the days either side of his service in Vietnam, Dr Nance said he thought Mr Berryman regarded most of his time in the service as stressful, and the period of active service was more intense.
28. When questioned about the stressors that he had noted from Mr Berryman which had given rise to his condition, Dr Nance said there were really few recent events that had clearly contributed to his condition. He said it appeared more that it was a long-standing condition from which he eventually decompensated. He said that there were certainly a number of other stressful events in his life, including the nature of his work and the break-up of his first marriage, which was marked by a difficult custody dispute. These were important stressors that had contributed to Mr Berryman’s condition, but they were certainly less prominent in his presentation. They were not things that he tended to focus on or ruminate about and so they appeared exacerbating factors, rather than primary causal factors. When asked about ruminations, Dr Nance said that Mr Berryman mostly ruminated about his time in the Navy, and his perception that he had been poorly treated by authorities, particularly in regard to his time in the Navy. He said that Mr Berryman thought that at Vung Tau he was put in a situation where his life was in danger and he believed he should have been protected from that.
29. When asked in cross-examination about Mr Berryman’s problems, Dr Nance said that poor treatment by authorities, feelings of injustice and the like had been a feature of Mr Berryman’s presentation since he first met him in 2000. As those issues applied to Mr Berryman personally, they had started to become more prominent in around mid-2003. The issue that Mr Berryman should have been protected by the authorities also arose around mid-2003, when he began to think in more detail about his naval experiences. Dr Nance said that, although Mr Berryman had told him he had been in the Navy when he first met him in 2000, he did not discuss his experiences in Vung Tau Harbour until 2003. When questioned further, Dr Nance said that Mr Berryman first mentioned Vung Tau Harbour specifically on 15 October 2003.
30. Under further cross-examination, Dr Nance said that his initial consultation with Mr Berryman had been on 2 May 2000. His initial complaints were about his anger and anxiety, his sense of feeling over-stressed, inability to concentrate, his excessive sleep, and particularly his feelings of frustration and anger which were generalised, and for which he did not have a specific attribution. However, he made frequent reference to an event where he had become angry with another man at work and had raised a hammer over the man’s head before he had realised what he was doing.
31. During the period from 2 May 2000 until 15 October 2003, Dr Nance said it was difficult for him to find out to what Mr Berryman attributed his feelings of anger, anxiety and stress. He said it was very difficult to do so because Mr Berryman would focus on general sources of unhappiness and anger, to the exclusion of all else. Dr Nance said that Mr Berryman’s anger towards authorities, who he felt behaved unjustly, had been a consistent source of concern to Mr Berryman. In relation to his actual experiences, Mr Berryman had said to him that the Sydney was on alert all of the time they were in Vietnam, that he believed for all of that time they were a prime target and that if anything were to happen, or if alerts were sounded and something did happen, then he would probably die because he was stationed below the water line. Although Mr Berryman’s glimpses may have been fleeting, Dr Nance said that it was possible he felt tense and fearful for the rest of the time. When questioned further, Dr Nance said that Mr Berryman’s perception that he was in danger contributed to his ongoing tension and fearfulness.
32. When asked about his impaired behaviour, Dr Nance said that drinking and fighting certainly impaired Mr Berryman’s functioning while they were occurring. However, he did not know what caused those conditions. When pressed, Dr Nance said that he had no information about Mr Berryman’s impairment of function during the Navy years, apart from the drinking and fighting episodes.
33. In re-examination, Dr Nance said that the applicant was certainly anxious and fearful during the period in Vung Tau. He said that Mr Berryman had indicated to him that he was worried on the way to Vung Tau – they were on an increased level of alert and there were frequent drills that heightened the sense of impending danger. Dr Nance could not recall discussing with Mr Berryman whether he was worried on his voyage back from Vung Tau.
Applicant’s Submissions
34. Counsel for Mr Berryman, Mr Swan, first submitted that the evidence of Dr Nance was not that the principal cause of the applicant’s problem was the one day he had spent in Vietnam. That day was one of a number of events and was a long-standing condition from which the applicant “eventually decompensated”. Mr Swan acknowledged there were other causes for the applicant’s anxiety and other reasons for him suffering either of the conditions that had been accepted. However, he submitted that those causes or reasons were not exclusive of the applicant’s trip in Vietnam on that one day and, if he fitted within the SoP for that one day, the applicant should succeed with his claim. The one day in Vietnam was a significant occurrence, and this would have to be considered, along with issues of the applicant’s credit.
35. Mr Swan referred the Tribunal to the SoP for generalised anxiety disorder, Instrument No. 1 of 2000 (exhibit A1, page 117), and to the definition of “severe psychosocial stressor” in clause 8 of the SoP. He submitted the applicant experienced significant stressors while in Vung Tau Harbour. He heard gunfire and he saw divers in the water. Mr Swan also referred to the spraying from the aircraft, which he said the applicant believed was weed killer. However, he submitted the objective events were the divers and the shelling, that the applicant was worried and feared for his life, and that he was caused “substantial distress” by these occurrences. When it was put to him by the Tribunal, Mr Swan agreed that the applicant was also worried and fearful about being in Vung Tau Harbour for the one day with everything that was going on around him.
36. Mr Swan submitted that there were indicia from these events that Mr Berryman exhibited his anxiety disorder within a two-year period, as required by the SoP. He referred to Mr Berryman’s evidence that he was worried, he was worried on the ships, he had difficulty sleeping and, in particular, there was ongoing irritability. He submitted that it is a reasonable hypothesis that the applicant was irritable in this two-year period, and that this was inappropriate behaviour on the applicant’s part. Although there were other factors, one of the factors in the applicant’s life that led to his anxiety, one of the straws, was his Vung Tau experience.
Legislative Background
37. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“9 War-caused injuries or diseases
(1)Subject to this section, 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; …”
38. The expression “operational service” is defined in ss 6 to 6F of the VE Act. Under s 6C, a person renders operational service if he or she is, inter alia, allotted for duty in an operational area. The expression “operational area” is defined in s 5B(1) by reference to Schedule 2 of the VE Act. This Schedule includes in Item 8 of Column 1, the Vietnam (Southern Zone) during the period from and including 31 July 1962 to and including 11 January 1973.
39. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
40. As the applicant has performed operational service, as defined in s 6 of the VE Act, the determination of whether his asserted conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sections provide relevantly as follows:
“120 Standard of proof
(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.
…
(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.”
41. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made a SoP in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which 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
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.”
42. Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.
43. Section 196A of the VE Act provides for the establishment of the RMA. Section 196B of the VE Act provides, in effect, that if the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death setting 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 an injury, disease or death of that kind with the circumstances of the veteran’s service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
Consideration
44. The claimed conditions of generalised anxiety disorder and dysthymic disorder are the subject of SoPs. We will set out the relevant provisions of the SoPs below. The Tribunal notes that where a SoP exists we must apply the test prescribed by s120A(3) of the VE Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 in the following way:
“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.”
45. In considering whether there is an hypothesis connecting Mr Berryman’s conditions with his war service, and in applying the Deledio steps to that end, we must consider all of the material before the Tribunal, as required by such cases as Bull v Repatriation Commission (2001) 66 ALD 271 at [21], the decision of Hill J in Hardman v Repatriation Commission (2004) 82 ALD 433 at [39] to [41], and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of those cases, Stone J, at [25], likened the decision-maker’s task to striking out a statement of claim as failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated.
46. An hypothesis that (once again, after taking into account all of the material before us) could be said to be “obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous” would not be reasonable and would not point to the relevant connection with the veteran’s service (see Bull (supra) at [18], where Emmett and Allsop JJ explained the significance in this regard of East v Repatriation Commission (1987) 16 FCR 517). We refer also to Repatriation Commission v Bey (1997) 79 FCR 364 where in their joint judgment, Northrop, Sundberg, Marshall and Merkell JJ said in effect (at pages 372.9 to 373.1) that a “reasonable hypothesis” involves more than a mere possibility, and is a hypothesis pointed to by the facts, even though not proved on the balance of probabilities.
47. As regards the first step in Deledio, we are satisfied that the material before us points to an hypothesis connecting the conditions of generalised anxiety disorder and dysthymic disorder with Mr Berryman’s operational service. That hypothesis is that the events in Vung Tau Harbour on 27 February 1970 to which we referred in paragraphs 6 and 7 above caused Mr Berryman to develop generalised anxiety disorder and dysthymic disorder.
48. SoPs have been determined by the RMA pursuant to s 196(2) of the VE Act in respect of the conditions in question. The SoP in respect of generalised anxiety disorder is Instrument No. 1 of 2000 (the “Anxiety SoP”, being exhibit A1, pages 113-117), and in respect of dysthymic disorder is Instrument No. 58 of 1998 (the “Depression SoP”, being exhibit A1, pages 106-109), where “depressive disorder” is defined as including dysthymic disorder, as defined in DSM-IV. Both these SoPs are currently in force.
49. We now turn to the third step as enunciated in Deledio. This entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoPs. This step involves considering all of the material before the Tribunal, but without making any findings of fact at this stage of the process. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: Lees v Repatriation Commission (2002) 125 FCR 331.
Relevant provisions of SoPs
50. Under clause 4 of the Anxiety SoP, at least one of the factors set out in clause 5 must be related to the relevant service (being operational service) by the veteran. Clause 5 of the Anxiety SoP then provides relevantly as follows:
“Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder … with the circumstances of a person’s relevant service are:
(a)for generalised anxiety disorder or anxiety disorder not otherwise specified, only
…
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
(iii)having a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder;…”
51. The Depression SoP contains corresponding provisions. Under clause 4, at least one of the factors set out in clause 5 must be related to the relevant service by the veteran. Clause 5 of the Depression SoP relevantly provides:
“Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder … with the circumstances of a person’s relevant service are:
…
(b)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or
(c)having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder; or …”
52. The expression “anxiety disorder” in factor 5(a)(ii) is defined in clause 2(b) of the Anxiety SoP as follows:
“For the purposes of this Statement of Principles, ‘anxiety disorder’ is defined as the anxiety spectrum disorders of generalised anxiety disorder, or anxiety disorder due to a general medical condition, or anxiety disorder not otherwise specified, attracting ICD-10-AM code F06.4, F41.1, F41.8 or F41.9 …”
53. The expression “generalised anxiety disorder” is in turn defined in clause 8 of the Anxiety SoP to mean a psychiatric disorder with the following features (which mirror the diagnostic criteria for that disorder in DSM-IV):
“A.Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and
B.The person finds it difficult to control the worry; and
C.The anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six month period:
(1) restlessness or feeling keyed up or on edge
(2) being easily fatigued
(3) difficulty concentrating or mind going blank
(4) irritability
(5) muscle tension
(6) difficulty falling or staying asleep, restless unsatisfying sleep; and
D.The focus of the anxiety and worry is not confined to features of any other Axis I disorder; and
E.The anxiety, worry, or physical symptoms (as described in C. above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
F.The anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder;”
54. In clause 8 of the Anxiety SoP, the relevant expressions are defined as follows:
“‘clinically significant’ means sufficient to warrant ongoing management by a psychiatrist, clinical psychologist or General Practitioner;”
“‘major illness or injury’ means a disease or illness that is life-threatening or seriously disabling;”
“‘psychiatric condition’ means any Axis 1 disorder of mental health that attracts a diagnosis under DSM-IV;”
“‘severe psychosocial stressor’ means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
55. A corresponding definition of “severe psychosocial stressor” appears in clause 8 of the Depression SoP. The only difference is that the Anxiety SoP refers to “major illness or injury”, whereas the Depression SoP refers to “severe illness or injury”. The definitions of “major illness or injury” and “psychiatric condition” are the same in both SoPs. The definition of “clinically significant” in the Depression SoP is similar in substance to that definition in the Anxiety SoP, and reads as follows:
“‘clinically significant’ means sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or General Practitioner;”
56. The expression “depressive disorder” in factor 5(b) is defined in clause 2(b) of the Depression SoP relevantly as follows:
“For the purposes of this Statement of Principles, ‘depressive disorder’ is defined as:
(A)the presence of major depressive disorder, dysthymic disorder or depression not otherwise specified where:
…
(ii)dysthymic disorder, as defined in DSM-IV, is a chronic mood disturbance, of at least two years duration, involving depressed mood, or loss of interest or pleasure, with manifestation of the symptoms used to diagnose major depression such as neuro-vegetative signs, social withdrawal, cognitive impairment and suicidal ideation.”
57. Finally, it is relevant to record that the Anxiety SoP and the Depression SoP each includes a provision to the effect that where the SoP for that condition includes an injury or disease in respect of which there is another SoP, then the factors in that other SoP apply in accordance with its terms. In each case the relevant provision, clause 7, reads as follows:
“7. In this Statement of Principles if a relevant factor applies and that factor includes an injury or disease in respect of which there is a Statement of Principles, then the factors in that last mentioned Statement of Principles apply in accordance with the terms of that Statement of Principles.”
Do any of the asserted events constitute a “severe psychosocial stressor”?
58. In White v Repatriation Commission (2004) 39 AAR 67, Spender J decided that the definition of “severe psychosocial stressor” in the Anxiety SoP embodied both objective and subjective elements. His Honour said at [29] – [30]:
“29. The reference to “experiencing” a severe psychosocial stressor has a subjective element: see, for example, Stoddart v Repatriation Commission (2003) 197 ALR 283 at 292 per Mansfield J, in relation to the phrase “experiencing a severe stressor” in the SoP concerning post traumatic stress disorder (affirmed on appeal in Repatriation Commission v Stoddart (2003) 38 AAR 176). An identifiable occurrence “that evokes feelings of substantial distress in an individual” also has a subjective element: see Woodward v Repatriation Commission (2003) 200 ALR 332 at 352 per Black CJ, Weinberg and Selway JJ, in relation to the phrase “experiencing a severe stressor”.
30. In my judgment, the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.”
59. Having regard to Spender J’s judgment in White (supra) as well as the judgments of Mansfield J at first instance in Stoddart v Repatriation Commission (2003) 74 ALD 366 and the Full Court in Repatriation Commission v Stoddart (2003) 134 ALD 392, the judgment of the Full Court in Woodward v Repatriation Commission (2003) 131 FCR 473, and the judgment of Tamberlin J in Delahunty v Repatriation Commission (2004) 38 AAR 511FCA 309, we consider that the questions of whether a particular occurrence said to constitute a stressor satisfies the definition of “severe psychosocial stressor” in the Anxiety SoP and the Depression SoP, and of whether the applicant has experienced such a stressor, would include the following considerations.
(a) There must be an occurrence, and this connotes an objective event.
(b)The occurrence must be such that it “evokes feelings of substantial distress in an individual” and this must be an objective and assessable state of affairs, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the applicant experiencing the occurrence and not by reference to a person who has full information in relation to the relevant occurrence.
(c)The occurrence must be such as to cause “substantial” distress, and this, together with the inclusive examples listed in the definition, indicates that the occurrence must be such that it could reasonably be expected to produce a significant level of distress.
(d)Under the relevant factors of the SoPs, it is also necessary to determine whether the applicant experienced a stressor as defined. This entails examining the subjective effect on the applicant, and allowance should be made for the applicant’s particular susceptibilities, and that some circumstances might be extremely stressful to one person but would not be stressful to another.
(e)Nevertheless, an idiosyncratic and personal perception of the relevant event would not satisfy the definition if the event does not meet the objective requirements referred to in paragraphs (b) and (c) above.
60. We are mindful that paragraphs (b), (c) and (e) above address issues that are related to a point expressly reserved by the Full Court in Woodward (supra). After quoting from extracts of the judgment of Mansfield J at first instance in Stoddart, the Full Court said that it considered His Honour’s reasoning persuasive and that it should be followed, but added (at [141]):
“… we express no opinion about a situation in which the perception of a threat, although real in the mind of an individual, is not objectively reasonable. That situation does not appear to be relevant to the present case and in the absence of full argument on the point we should not express an opinion about it. We also draw attention to the fact that the AAT had no evidence before it of any specialised meaning or usage. Our conclusion is based, as was the reasoning of Mansfield J, upon the text of the SoP having regard to context and purpose.”
However, Mansfield J’s approach is consistent with the analysis of Spender J in White (supra), and we think that our above analysis accords with the present state of the authorities.
61. We also refer to Guy v Repatriation Commission [2005] FCA 562 where the applicant was at risk of being electrocuted, but was able to escape from inside a boiler before the power supply was cut off, and so did not sustain any physical injury. The Tribunal concluded that there had been what could be described as an “anxious moment”, but thought that there was no incident which could be described as an event that might evoke intense fear, helplessness or horror. Tamberlin J held that the Tribunal had erred, and that the correct approach was to ask whether the event “might, or could possibly, evoke the relevant emotions” (i.e. intense fear, helplessness or horror), and the focus was “on the type and nature of the danger, namely, whether it can be characterised as being capable of evoking the relevant emotions” (at [20]). His Honour also said, at [19], that the Tribunal should have asked whether the incident was of a type which might evoke the relevant emotions (as indeed the Tribunal had concluded), and should not have asked whether the incident did evoke the relevant emotions.
62. We appreciate that in Stoddart, Woodward, Delahuntry and Guy, the Courts were interpreting the definitions of “experiencing a severe stressor” in SoPs in respect of PTSD and substance dependence or abuse, but in our view those definitions also entail objective and subjective requirements, and we think that the principles which we have elicited from those cases apply to the definitions of “severe psychosocial stressor” in the Anxiety SoP and the Depression SoP.
63. In considering the third step in Deledio, we refer to the material before us as to the events and experience referred to in paragraphs 6 and 7 above. Although Mr Berryman said that he was initially fearful of the ship sinking and his life being threatened, he agreed that the presence of the aeroplanes and the divers in the water were for his protection. He did not suggest that he felt under any personal danger as a result of hearing or seeing the gunfire or seeing aeroplanes dropping defoliant, nor did he suggest that the effects of the gunfire or defoliants were occurring in close physical proximity to him, or that he could see those effects. None of the events involved his being shot at, or death or serious injury of a close friend or relative, or assault, being the most relevant of the examples included in the definition of “severe psychosocial stressor”. Moreover, with his knowledge that certain of the events he saw were for his protection, even though he said that they suggested the presence of danger to him, we consider that on his account they were not the sort of events which might be expected to evoke feelings of substantial distress in an individual, and so they did not meet the objective requirements of the definitions of “severe psychosocial stressor” in the Anxiety SoP and the Depression SoP. Having regard to the considerations referred to in paragraphs 59 to 62 above, we consider that the material before the Tribunal in relation to these events does not indicate that Mr Berryman experienced a severe psychosocial stressor within the meaning of that expression in the Anxiety SoP and the Depression SoP. Accordingly, we find that the hypothesis does not meet the provisions of either the Anxiety SoP or the Depression SoP.
Did the clinical onset of anxiety disorder and dysthymic disorder occur within two years of the asserted stressors?
64. The question of whether Mr Berryman’s anxiety disorder and depressive disorder were connected with his war service also entails considering whether there is material before us that Mr Berryman experienced a “severe psychosocial stressor” within two years before the clinical onset of either anxiety disorder or dysthymic disorder. For the purposes of the relevant factors in both SoPs, in Mr Berryman’s case, clinical onset must have occurred by 27 February 1972.
65. The meaning of “clinical onset” was considered by the Full Court of the Federal Court in Lees (supra). The Court referred to the analysis of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668, in which Senior Member Dwyer concluded (at 670) that:
“... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
That analysis was specifically endorsed by Branson J in RepatriationCommission v Cornelius[2002] FCA 750. We set out the diagnostic criteria for generalised anxiety disorder in paragraph 53 above, and for dysthymic disorder in paragraph 56 above.
66. It was Mr Berryman’s evidence that, during the two years after he had been in Vietnam, he was worried, he had difficulty sleeping and he was continually irritable. As to sleeping difficulty, Mr Berryman acknowledged that he found it difficult sleeping on board ships, but not when on shore. There is also evidence of a fight involving Mr Berryman that took place on the night of 6 November 1971. However, he acknowledged that this fight occurred when he and the other participants were drunk. In fact, he said he could not remember ever being involved in a fight where alcohol was not a feature. There was evidence of other fights in which Mr Berryman was a participant, but these were where alcohol was involved or were fights which took place more than two years after the trip to Vung Tau.
67. Dr Nance was unable to say when Mr Berryman developed anxiety disorder. His problems were well-established by the time of the first consultation in May 2000. Mr Berryman’s initial complaints to Dr Nance were about poor treatment by authorities. He also complained about feeling over-stressed, about being unable to concentrate and of his generalised feelings of frustration and anger. Dr Nance also spoke of Mr Berryman’s ruminations. He said that poor treatment by authorities and things of injustice had been a feature of the applicant’s presentation since he first met him in 2000, and were more prominent in 2003. It is significant that although Mr Berryman told Dr Nance when he first saw him in 2000 that he had been in the Navy, he did not mention Vung Tau Harbour until 15 October 2003.
68. Dr Nance did not say that the applicant showed symptoms of anxiety disorder or depressive disorder within the two-year period required by the SoPs. He did say that the applicant was anxious on his way to Vung Tau from Australia. However, this was inconsistent with the applicant’s evidence that he did not think about travelling to a war zone, and had no memory of entering the harbour itself. In this and a number of other of respects, Mr Berryman’s evidence contradicted that of Dr Nance.
69. Little evidence was provided as to the frequency or effects on his functioning of the worrying, sleeping and irritability problems that Mr Berryman experienced in the two-year period. Generalised evidence as to problems was given by the applicant and supported by Dr Nance, who said that Mr Berryman was “certainly anxious and fearful during the period in Vung Tau”. However, there is no evidence before us to the effect that within two years of the occasion when he was in Vung Tau Harbour, Mr Berryman displayed symptoms sufficient to satisfy paragraphs A, B or E of the diagnostic criteria for generalised anxiety disorder, to which we referred in paragraph 53 above. Similarly, there is no evidence before us that points to his having suffered from the symptoms for dysthymic disorder, to which we referred in paragraph 56 above, within the two-year period.
70. Having considered all the material before us, we consider that it does not point to the clinical onset of Mr Berryman’s generalised anxiety disorder or dysthymic disorder within two years of his experiences in Vung Tau Harbour.
71. We further consider that the material before us does not point to Mr Berryman having a clinically significant psychiatric condition within the two years immediately before the clinical onset of his generalised anxiety disorder, or of his dysthymic disorder. There is no evidence before us that Mr Berryman was suffering from either of the asserted disorders within two years of the clinical onset of the other disorder. Even if there were such material, the material is not consistent with any of the factors in the two SoPs concerned. As a result the hypothesis that either of those conditions is war-caused is not reasonable, because under clause 7 of each SoP, the factors for the SoP in respect of the other condition under consideration must be satisfied in order for that other condition to be war-caused. Mr Berryman’s hypothesis therefore fails to comply with both factor 5(a)(ii) and factor 5(a)(iii) of the Anxiety SoP and factor 5(b) of the Depression SoP. Accordingly, we consider that a hypothesis based on the clinical onset of either generalised anxiety disorder or dysthymic disorder within two years of Mr Berryman’s operational service experiences is not reasonable. Also, there is no evidence before us that Mr Berryman had any other clinically significant psychiatric condition within two years of the clinical onset of his anxiety disorder or dysthymic disorder. As a result of our above conclusions, by virtue of s 120(3) of the VE Act, Mr Berryman’s claims for generalised anxiety disorder and dysthymic disorder must, on the basis of the relevant SoPs, fail.
Possible alternative basis of entitlement
72. As was mentioned in paragraph 24 of these reasons, in his report dated 4 February 2005, Dr Nance had found that the applicant’s symptoms had met the threshold for PTSD. Although Mr Swan did not pursue this claim we must consider whether there is some other basis arising from the evidence before us on which the applicant may be entitled to the benefits he has claimed. This obligation was made clear by the Full Federal Court in Benjamin v Repatriation Commission (2001) 70 ALD 622, when it said (at paragraph [47]):
“Proceedings before the tribunal sometimes give the appearance of being adversarial but, in substance, a review by the tribunal is inquisitorial. … An inquisitorial review conducted by the tribunal is one in which the tribunal is required to determine substantive issues raised by the material and evidence advanced before it. In doing so, it is obliged not to limit its determination to the ‘case’ articulated by an applicant if the evidence and material that it accepts, or does not reject, raises a case on a basis not articulated by the applicant: Grant v Repatriation Commission (1999) 57 ALD 1 at 6, [17]-[18], and Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287; 58 ALD 30.”
73. In considering the above possible alternative basis for Mr Berryman’s claim, we must first consider as a preliminary matter whether we are reasonably satisfied (that is, according to the civil standard of proof) that Mr Berryman is suffering from PTSD: Fogarty v Repatriation Commission (2003) 37 AAR 363 at [34] to [37]. We are not so satisfied, having regard to the evidence of Dr Nance to which we referred to in paragraph 24 above.
74. In any event, we consider that Mr Berryman’s claim is not supported by the SoP which has been determined by the RMA in respect of PTSD. That SoP is Instrument No. 3 of 1999 as amended by Instrument No. 54 of 1999 (the “PTSD SoP”). Under clause 4 of the PTSD SoP, at least one of the factors set out in clause 5 must be related to the relevant service by the veteran. The relevant factor in the PTSD SoP entails a veteran “experiencing a severe stressor” prior to the clinical onset of PTSD.
This expression is defined in the PTSD SoP, and in our view, the gravity and traumatic nature of the events that would satisfy the objective requirements of this definition are at least as significant as, and probably more significant than, that which is required to meet the definition of “severe psychosocial stressor” in the Anxiety SoP and the Depression SoP.
75. We have already said that, for the reasons we have set out above, the material before the Tribunal in relation to the events and experience relied upon by Mr Berryman does not in our view satisfy the objective requirements of the definition of a “severe psychosocial stressor”. For the same reasons we consider that that material does not meet the objective requirements of the definition of “experiencing a severe stressor”. Accordingly, we find that the hypothesis does not meet the relevant factor in the PTSD SoP. Therefore, even if (contrary to our above finding) Mr Berryman is suffering from PTSD we would be obliged by s 120(3) of the VE Act to find beyond reasonable doubt that a claim based on PTSD would not be reasonable on the grounds that the PTSD SoP does not uphold such an hypothesis, and any claim for that condition must also fail.
Conclusion
76. In view of our conclusion that the hypotheses connecting Mr Berryman’s conditions with his war service are not consistent with the relevant SoPs, we are satisfied beyond reasonable doubt, as required by s 120(3) of the VE Act, that there is no sufficient ground for determining that Mr Berryman’s conditions of generalised anxiety disorder and dysthymic disorder are related to his operational service.
Decision
77. The Tribunal affirms the decision under review.
I certify that the 77 preceding paragraphs are a
true copy of the reasons for the decision herein of
Deputy President D G Jarvis and Senior Member RW DunneSigned: .....................................................................................
J MacIntyre AssociateDate/s of Hearing 21 and 22 July 2005
Date of Decision 25 October 2005
Counsel for the Applicant Mr C Swan
Solicitor for the Applicant Swan Lawyers
Advocate for the Respondent Mr A Crowe
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