BVFM and Military Rehabilitation and Compensation Commission (Compensation)

BVFM and Military Rehabilitation and Compensation Commission (Compensation) [2019] AATA 6110 (19 December 2019)
Division:Veterans' Appeals Division
File Number(s): 2016/2488
Re:BVFM (a pseudonym)
APPLICANT

AndMilitary Rehabilitation and Compensation Commission
RESPONDENT

DECISION
Tribunal:Member Ward, Member Ormston & Member Stephan
Date:19 December 2019
Place:Adelaide

The Tribunal affirms the decision under review.

.................................[sgnd]..............................
A WARD
Member

Catchwords
Application for military compensation – whether medical condition compensable – credibility of witness – tribunal unable to accept evidence as reliable – medical notes – episode of self-harm - availability of treatment - ADFA
Legislation
Administrative Appeals Tribunal Act 1975
Defence Force Discipline Act 1982
Military Rehabilitation and Compensation Act 2004
Cases
Briginshaw v Briginshaw (1938) 60 CLR 336
Re Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247
REASONS FOR DECISION
Member Ward, Member Ormston & Member Stephan
INTRODUCTION AND BACKGROUND

This is an application for review of the 15 April 2016 decision of a delegate of the Military Rehabilitation and Compensation Commission (the respondent) to deny liability to compensate BVFM (the applicant) for her claimed condition of major depressive disorder.
For reasons set out at the end of this decision, the identities of the applicant and other personnel have been anonymised and there is an order in place to protect identification.
The applicant’s claim for compensation against the respondent relates to injuries she asserts arose through her defence employment whilst a cadet at the Australian Defence Force Academy (ADFA) principally arising in 2011. She asserted that she suffered a compensable injury, namely a major depressive disorder, as a consequence of ‘bullying in the ADF’ and other issues. This claim was made on 18 May 2015 when her solicitors sent in her Claim for Liability document.[1] The claim was received by the respondent on 26 May 2015.
[1] Although the handwritten parts of the claim bear the date 15 December 2014.
The initial basis of the claim as set out in the solicitor’s letter of 18 May 2015 refers to the applicant suffering from difficulties in the workplace being:
(a)academic pressure;
(b)an injury (right ankle in late 2011); and,
(c)bullying and harassment.
The allegations as to the causes for her injury have varied over time as will be discussed. In addition, sometimes the term ‘major depressive disorder’ or ‘depressive disorder’ was used.
The respondent denied liability for a major depressive disorder condition on 20 October 2015. That denial was maintained upon further review made in accordance with s 23 of the Military Rehabilitation and Compensation Act 2004 (MRCA) on 15 April 2016.
THE ISSUES FOR DETERMINATION AND LEGISLATIVE CONTEXT
The issue for the Tribunal to determine is whether the respondent is liable to pay compensation pursuant to the provisions of s 23 of the MRCA, which for convenience is set out below.
When Commission must accept liability for service injuries and diseases
(1) The Commission must accept liability for an injury sustained, or a disease contracted, by a person if:
(a) the person's injury or disease is a service injury or disease under section 27; and
(b) the Commission is not prevented from accepting liability for the injury or disease by Part 4; and
(c) a claim for acceptance of liability for the injury or disease has been made under section 319.
Note 1: The standard of proof mentioned in subsections 335(1) and (2) applies to claims that the injury or disease is a service injury or disease that relates to warlike or non-warlike service.
Note 2: The standard of proof mentioned in subsection 335(3) applies to the following:
(a)    claims that the injury or disease is a service injury or disease that relates to peacetime service;
(b)    all claims when determining whether a person sustained a particular injury or contracted a particular disease;
(c)    all claims when determining whether the Commission is prevented from accepting liability for the injury or disease by Part 4.
When Commission must accept liability for service injuries and diseases arising from Commonwealth treatment
(2) The Commission must accept liability for an injury sustained, or a disease contracted, by a person if:
(a) the person's injury or disease is a service injury or disease under section 29 (arising from treatment provided by the Commonwealth); and
(b) a claim for acceptance of liability for the injury or disease has been made under section 319.
Note: The standard of proof mentioned in subsection 335(3) applies to all claims:
(a) that an injury or disease is a service injury or disease under section 29; and
(b) when determining whether a person sustained a particular injury or contracted a particular disease.
When Commission must accept liability for service injuries and diseases arising from aggravations of signs and symptoms
(3) The Commission must accept liability for an injury sustained, or a disease contracted, by a person if:
(a) the person's injury or disease is a service injury or disease under section 30 (aggravations etc. of signs and symptoms); and
(b) the Commission is not prevented from accepting liability for the injury or disease by Part 4; and
(c) a claim for acceptance of liability for the injury or disease has been made under section 319.
Note 1: The standard of proof mentioned in subsections 335(1) and (2) applies to claims that the injury or disease is a service injury or disease that relates to warlike or non-warlike service.
Note 2: The standard of proof mentioned in subsection 335(3) applies to the following:
(a) claims that an injury or disease is a service injury or disease that relates to peacetime service; and
(b) all claims when determining whether a sign or symptom was aggravated etc.; and
(c) all claims when determining whether the Commission is prevented from accepting liability for the injury or disease by Part 4.
Acceptance of liability for aggravations etc. of injuries and diseases
(4) A reference in this section to acceptance of liability for an injury or disease is taken to include a reference to acceptance of liability for an aggravation of an injury or disease.
Note: The definitions of injury and disease exclude aggravations (see section 5).
On the evidence before the Tribunal, the major issue in this case is to determine whether the applicant had a compensable psychiatric condition or not. Importantly, there are two competing and alternative psychiatric diagnoses. One is of her having borderline personality traits which, it is common ground, would not have been caused by service, but was a condition that affected her prior to service. The other diagnosis is that of major depression, which would be compensable if found to relate to service and not subject to exclusionary provisions.
PRELIMINARY DISCUSSION AND OBSERVATIONS
The applicant’s evidence as to what actually took place during the relevant period and how matters affected her has varied greatly over time. It required detailed analysis to make findings upon which to apply the applicable law. In view of the seriousness of the matters involved in this application the Tribunal has approached the assessment of facts in accordance with the Briginshaw v Briginshaw standard.[2]
[2] Briginshaw v Briginshaw (1938) 60 CLR 336.
On 16 November 2011, the applicant consumed a large quantity of paracetamol constituting an attempt of self-harm. At the time of this incident, she was a cadet in the Royal Australian Air Force (RAAF) undertaking officer training. She commenced her service on 21 October 2009 and was in her third year at ADFA and looking to graduate at the end of that year, with her Bachelor of Arts and also to graduate from the Academy to the rank of Pilot Officer. She was then going to work as an Administrative Officer, initially at RAAF Edinburgh in 2012.
The applicant had a consultation with a staff psychologist, CAPT Richardson on 14 October 2011. In the course of that consultation she asked for information on ‘notifiable incidents’. She then disclosed to Captain Richardson that she ‘had a habit of sleeping with ADFA staff’.
That disclosure led to inevitable consequences of reporting a prima facie fundamental breach of ADFA orders and rules. The allegation was reported to higher authorities, which was inevitable. However, the applicant has at times based her claim on this further reporting being a breach of privacy and consequently prejudicial to her. To the contrary, if a person in the vulnerable position of a cadet was exploited by staff the ADF there would be a duty to investigate the matter and act upon it, for the safety of the cadet in question and any other who might be in a similar position.
The complaints concerning the breach of privacy issues were not pursued when the hearing commenced. Counsel for the applicant rightly advised the Tribunal that ‘The applicant accepts that the ADF was entitled to investigate the nature of what was disclosed to Captain Richardson on 14 October 2011.’
The applicant’s counsel advised that it was the response by ADFA after that disclosure and before the 16 November 2011 suicide attempt that was central to the applicant’s claim.
A significant amount of material was put before the Tribunal in the Administrative Appeals Tribunal 1975 s 37 T-Documents and subsequent exhibits.
The applicant gave oral evidence and was subject to cross-examination. There was also oral evidence from the psychiatrists, Dr Veale and Dr Ewer, and a treating psychologist from the Defence Force, Major Richardson (then Captain) and Dr Rodney Evans, a Medical officer at the Duntroon Health Centre.
The applicant’s credibility was subject to significant scrutiny. It must be said at the outset that the applicant was in difficulty with her credibility. This is because in the course of the events that gave rise to the claim, and in the course of the presentation of the claim and in the course of these proceedings, the applicant had:
(i)made admissions that she has lied in such crucial parts about certain crucial matters;
(ii)disobeyed lawful orders to which she was subject during the course of her ADFA training;
(iii)disobeyed an order not to discuss information concerning the subject of an Inquiry Officer Inquiry (IOI); and
(iv)(on her say so) fabricated evidence so as to mislead IOI;
(v)lied to Dr Ewer who examined her for this claim;
(vi)relied for a period on an allegation that she was subject to sexual harassment when that was not the case
This list is not exhaustive. For example, the applicant also said that she lied to authorities prior to the IOI in the hope of stymieing it.
In her history provided to Dr Ewer when he first examined her, she gave a version of events which was impossibly irreconcilable with the case that she presented eventually to the Tribunal. She admitted that she lied to Doctor Ewer.
There have been exaggerations in statements prepared for the case presented to the respondent and those statements were also put before the Tribunal.
Therefore, in considering the applicant’s evidence, it is with great caution that any assertion that she has made should be accepted at face value without corroboration.
CONSIDERATION OF EVIDENCE
The Tribunal finds that the applicant joined the ADFA after passing the necessary medical examinations and Officer Boards. She enlisted on 21 January 2009. The medical history prior to entering the ADF was unremarkable. She did well in her academic and military training.
The applicant breached the clear standing orders of ADFA which prohibited fraternisation between cadets – here read at a sexual level. She described two relationships, but explained that this order against fraternisation was observed in the breach.
As she progressed through her career, she then entered into a series of relationships with more senior officers who had been at one stage on her staff and were responsible for her training at ADFA. These relationships were not publicly acknowledged by any of the parties, during the course of them. Her case was that when she had relations with these officers it was after they had been in her chain of command, or in a training role. Accordingly, the allegation to CAPT Richardson that led to the Inquiry that she ‘had a habit of sleeping with ADFA staff’ was wrong – if her case at this Hearing was true. If it was wrong, one wonders why it was said.
Regarding the relationships, the first was with CAPT X who previously was her Divisional Officer, this relationship commenced in April 2010, and finishing July 2010. Her description of this was a ‘mostly sexual’ relationship, although there was some enjoyable emotional input.
The second was with MAJ Y starting September 2010. This was the most serious relationship, and the one in which she had the greatest emotional investment.
The third was with CAPT Z, which ran concurrently of that with MAJ Y, and thus led to understandable friction which manifested when the IOI commenced and this became known by MAJ Y.
The applicant’s assertion for the purpose of the hearing was that at the various times she entered into sexual relationships with these officers – and the evidence is that these were relationships of some duration, one longer than the others – they were not technically ADFA staff. However, it would appear that the relationships occurred shortly after the various officers were no longer technically ADFA staff. Whether technically the relationships were not a breach of the order, they were still kept secret.
The ADF recognises that its members may form relationships, and there are orders and protocols in place for notification of relationships to be made when they reach a certain point of seriousness. However, there is no question – and it is entirely appropriate – that there should not be sexual relations between staff and cadets. It creates a situation of imbalance of power in which the staff can gain an advantage over the student, which can give rise to predatory behaviour.
It is important that the applicant’s case was that she never felt she was in a situation where she was subject to predatory behaviour, or where her will was being overborne in these three relationships about which the Tribunal heard. Her Counsel advised: ‘There’s no relationship with any ADFA person who was in her chain of command at ADFA.’
However, the fact that they were kept secret and the fact that at a later time the relationships caused significant alarm for the ADF, the applicant and the officers involved, shows that even though they might have been technically legal, nobody involved in them was comfortable with them being public.
The Tribunal finds that the relationships of themselves would be a source of pressure for the applicant, especially because as time went by and leading up to the crucial events, she was having two relationships at the same time.
These relationships did not arise as a consequence of service, as might be the case if she had been forced to enter into them through coercion due to the rank differential (however, in a training environment the trainer can be of lower technical rank than the cadet and still use coercion in this way). That did not happen here, but the note is made that it is the role as the trainer that can put that person in a position of power, not simply the rank worn.
The applicant’s counsel directed us to a request for a psychological review of her performance and suitability as a RAAF Officer which indicated she was doing very well in October 2011. The request indicated that she was doing well in her academic studies and her military training and sporting and social club interactions. She was hampered by having an injury to her ankle but that does not form part of these proceedings.
However the request also noted that ‘she has had difficulty resolving conflict at a low level and has at times shown a disregard to rules and regulations when she does not agree with them.’
Looking back over 2011, the applicant was involved in theatrical performance at ADFA in early August 2011. This gave rise to an allegation by her of her drink being spiked. This incident is not part of the claim that was eventually put before the Tribunal during the course of the hearing, but it is relevant to this end that the applicant did not think that matter was dealt with properly by the ADF. She did not think that the people who had swapped her stage drink of water for one containing alcohol received an appropriate[3] punishment. However, in the course of her dealing with this, her fitness for her ongoing role in the ADF was called into question by her chain of command. This is not part of the applicant’s claim but does show that the positive aspects of the request for psychological assessment note from 19 October 2011 might not quite give an accurate picture of how she was travelling towards the second half of the 2011 calendar year.
[3] In her eyes
In addition, the applicant undertook some actions that were at odds with what one would expect of a cadet at a military establishment. She, along with another cadet, purchased pets to stay in their rooms at the lines (accommodation area for the cadets). The pets were rats and she pointed out that others had fish as a pet, or a bird in a cage. No matter how domesticated, a rat is seen as vermin and seems a very odd pet to buy.
Indeed, she and her friend were charged, and proceedings took place under the Defence Force Discipline Act 1982 (DFDA) for having the pet which was a failure to comply with a general order. There was no question she had it. Her friend pleaded guilty to the charge and was dealt with. The applicant pleaded not guilty. It was put to the Tribunal that this was in any event a stressful time for her in view of her final exams and assignments for her academic career and preparations for her final marching out of her military training. If she was under that stress from her studies and preparations it seems odd for her to defend the claim that she had breached an order by having a rat – when she clearly did.
She chose for her defending officer CAPT Z. The hearing took place on 14 October 2011. She was found guilty and it is important that the summary authority made these comments in the Statement of Reasons:
‘Officer …was repeatedly warned to remove her pet. Her blatant disregard for the rules, authority and her fellow section mates is intolerable…[her] demonstrated lack of trust must cease if she wishes to remain in the RAAF.
This indicates that the incident of the rat was not a brief incident by any means, but one that had an element of defiance over a period of some time. Firstly, the applicant obtaining the pet itself and secondly, she kept it despite requests that it be removed, which presumably culminated in the complaint that gave rise to the DFDA prosecution. The trial and findings were subject to review pursuant to DFDA s 152(2). There is no evidence that they were corrected or quashed. The Tribunal can accept the factual findings made in the Statement of Reasons.
The applicant had injured her foot, as mentioned, in August 2011. For this she had to wear a moon boot as part of her recovery.
As a consequence of the finding of guilt in the DFDA proceedings, she received the punishment of stoppage of leave as part of the punishment which took into account her limited ability to undertake other tasks and drill. Therefore, she had to parade for those additional duties. She had to parade in what was the dress of the day which, as the Tribunal understands it, was for a person with an injury, a tracksuit rather than the camouflage uniform (DPCU). One can see the sense of such an order in that the injured people would be immediately identifiable to the person in charge of the squad.

However, the applicant elected to wear the camouflage uniform because she thought it looked more professional. But she acknowledged that every other injured member was wearing the tracksuit. This would be against the general order of the day and, unless it was a genuine mistake, would again be considered as defiance. The applicant did not say it was a genuine mistake but that she made a deliberate decision to wear that uniform. This led to an unpleasant but inevitable exchange with her Sergeant, which also upset her. This also occurred on the 14 October 2011, after the DFDA hearing.
She then went to the psychologist on the same day and told CAPT Richardson about the ‘sleeping with staff’ issue. Why she would say that to CAPT Richardson is a matter of concern. The applicant has repeatedly made it clear that at the time of commencing each of the relationships with the three officers, they were not divisional officers of ADFA, they were not in her chain of command. Thus they were not ‘staff’ at the crucial time, but to use that term gives rise to a view that it was deliberately done so because there would be consequences.
Stepping back to the narrative, whilst this was going on, the applicant was having the previously described relationships.
On 14 October 2011 her evidence was she was ‘currently’ involved in a year-long long-distance relationship with a 34 year old ex-ADFA staff member. This was MAJ Y, but she did not provide that detail to CAPT Richardson. She advised the partner insisted the relationship be kept secret.
The applicant then disclosed she was in a sexual relationship ‘with another ADFA staff member’. Whilst again vague with details to CAPT Richardson, that was CAPT Z. She advised she felt some guilt about cheating on her boyfriend with this ‘staff member’. She advised the psychologist that she was “assured of discretion due to the fact that cadet-staff relationships are prohibited and it is not likely anyone will find out”. Given that there had been a discussion about notifiable incidents during the interview it is difficult to imagine a more provocative statement for the applicant to make. The Tribunal finds she must have known that such comments would lead to direct consequences, which turned out to be an investigation and inquiry.
In her statement 19 March 2015 which was made specifically for this claim the applicant asserted that in September 2011 she was deemed to be ‘at risk’ by an ADF psychologist. That is just not true. In her statement dated 4 November 2015, again for use in her claim, she said that CAPT Richardson was concerned that the applicant may be required to be put on suicide watch. There is no evidence to support that was the case as a result of the 14 October 2011 interview.
At a point prior to the DFDA trial on 14 October 2011, the applicant undertook what she describes as her “painkiller experiment”, whereby in the company of CAPT Z she said she experimented with alcohol and painkillers, and he made her stay at his house. This behaviour is consistent with borderline personality traits.
No alarm was raised at that time by either the applicant or CAPT Z that she was actively suicidal. She played the ‘painkiller experiment’ down during the course of the hearing. She did not seek treatment for whatever led to this, nor present it as a serious issue. However she did use it later in the context of her dealings with MAJ Y.
Returning to the chronology, after the inevitable run-in with the Sergeant on 14 October 2011 over the incorrect uniform being worn, the applicant availed herself of the psychological services at ADFA and there saw Captain Richardson. There was no mention of thoughts of self-harm by the applicant during her attendance on Captain Richardson on 14 October 2011. The word ‘suicide’ may have been mentioned as an example of what would constitute a notifiable incident, but only for educational purposes, not because it was a topic raised by the applicant.
When this attendance took place, the applicant and every other person at ADFA would have been aware of what is now known as the “Skype Sex Scandal”, where in March 2011, two cadets had consensual sexual relations, but unknown to the female cadets, the male cadet was filming them and streaming the acts to others who were watching. These activities received significant attention in the press with direct ramifications for senior staff at ADFA. It was a time of significant reputational damage. This occurred prior to the applicant attending the psychologist, and after their discussion about notifiable incidents, she said she had sexual relations with staff. Whether this was intended to raise alarm bells or not, it certainly did, as it must. The duty of care owed to the cadets to protect them from any predatory behaviour by staff, which would be the inference from her comment, means that the ADF would be obliged to act in any event, but especially in the charged times following the Skype sexual scandal. So much would be expected. There was evidence directly on this before the Tribunal.
What is odd is that the applicant maintained for the purposes of the hearing at all times that she was not actually having sexual affairs with “staff” because they were technically not “staff” at the time.
The applicant said that in a subsequent interview with Captain Richardson she played down the fact that they were not actually staff, but the notification had already been made and the wheels were set in motion for the ADF’s response.
CAPT Richardson was very supportive of the applicant, offering ADF and alternative civilian assistance. This was motivated by a desire to protect the applicant, who - if the allegations of sexual encounters with staff were true - would be the vulnerable person. The applicant was not evincing signs of distress nor mental illness at that time. She was not placed on ‘suicide watch’ as has been suggested subsequently at this time or any time prior to her attempted self-harm in November, there were no clinical signs to do so.
CAPT Richardson notified the authorities of the allegation and the applicant was called to a meeting the next day. She did not provide names of the relevant staff.
That response was to undertake what was then called a Quick Assessment, essentially to find out the names of what appeared to the ADF to be the predatory higher-ranking members who had breached a fundamental rule of ADFA – one of the most fundamental rules. On that basis, they needed to know who the staff members were.
It was in this setting that the applicant stymied these inquiries that would name those with whom she had sexual relations. This is set out in a letter she wrote in early 2012 for purposes unrelated to her claim for compensation in which she said that she had told lies to shut down the ADF inquiry process:
“So I was hoping my lying would be crafty enough to deter them from pursuing it, but then the Deputy Commandant…decided to launch what’s called an Inquiry Officer Inquiry.”
She acknowledged in the letter she was unsuccessful in this subterfuge.
The ADF then instituted a process called an Inquiry Officer Inquiry (IOI) which is a level of inquiry with wide-ranging powers to obtain and assess information and evidence and to then advise Command of any issues that need to be addressed accordingly. This might include, for example, a fire on an aeroplane, or complaints of unacceptable behaviour. It has wide-ranging application. It also has wide-ranging powers to obtain the information it requires. A person does not have the right to refuse to answer on the basis of self-incrimination. A person does not have the right to legal assistance during the course of an interview for the purposes of objecting to questions. A person does not have the right to refuse to answer any questions that are relevant to the terms of the IOI. This is so Command can obtain information quickly (if necessary) and act upon it. Thus, the IOI is not able to make findings of criminality. If these become apparent, the Inquiry Officer is to cease that avenue of enquiry and advise Command. One can see that as the Quick Assessment had failed to obtain the names of what would have appeared at the time of the first reference on 14 October 2011 to be predatory staff members, the IOI was necessary to do that.
It was urged upon the Tribunal that the IOI should have been postponed until after the applicant had completed her academic studies and her preparations for her march-out. Whilst that might have been a possibility, it is very difficult to see in the circumstances how that could have occurred, when the essence of her complaint gave rise to a very reasonable inference of predatory behaviour to which other cadets could be subject. It was not a matter that could be shelved, especially in the circumstances prevalent at the time. The Tribunal specifically finds that the decision to hold the IOI was appropriate.
The applicant was ordered that she was not to discuss details of the IOI with anyone else:
You are not to disclose the matter under inquiry to any other person either before, during or after the inquiry. Should you become aware of any breach of this order by any person you are to report the breach to your Commanding Officer immediately.
The applicant defied that order almost immediately by contacting the three men involved to discuss the Inquiry with them. This upset her because they did not react in the manner she expected. The Major, her principal boyfriend, was especially disappointing in the way he reacted. They discussed a narrative to be given to the Inquiry Officer which was not correct but which would, in their view, exculpate him (and presumably to a degree, her) which is in fact what happened.
The Tribunal did not see the Terms of Appointment of the IOI, nor the Terms of Reference, nor the actual findings, nor the transcript of the interview of the applicant or any of the other witnesses.
However, the reluctance to provide the names of the witnesses by the applicant and the positive steps taken to effectively stymie the whole point of the Inquiry indicates that although the applicant said a number of times that the relationships were not inappropriate, that was certainly not the view of the men involved in them at the time of this IOI.
It is also of interest that the applicant asserts she did not receive support from the ADF in appearing before the IOI, but that is not the case. She had access to a lawyer who provided instructions to her for some hours prior to her attending her interview.
Her lawyer was available over the telephone to listen to the interview and twice sought an adjournment so that he could advise his client ‘where he knew [she had] severely edited the truth’. To grant that indulgence, it shows a very high level of support indeed because it is normally not automatically allowed in the IOI process.
What is worse is that the lawyer, hearing her provide answers, requested an adjournment of her interview to advise her to tell the truth, but she did not. She said that the lawyer accepted her reasons for that - which frankly could not be correct if the lawyer was adhering to the ethical rules and the paramount duties to the administration of justice (in this case, the administration of justice as set up by the IOI). He had a delinquent client who was lying, thus stymieing the administration of justice. He could not have accepted her reasons for lying as she asserted, but in fact would have to cease acting.
It is of note that in the 2012 letter she stated: “I am a very defensive person, if people ambush me and ask me things, I will just put on a massive façade and lie if I have to.”
About the time of the IOI the applicant was in discussion with MAJ Y as to their relationship. Discussion about the IOI involved amongst other things his becoming aware of the relationship with CAPT Z. In addition, the applicant said that she had already told MAJ Y about her ‘painkillers experiment’ and that it “really freaked him out”. Her letter written in early 2012 said:
I essentially gave him an ultimatum. I told him if he really cared about me and wanted to help me then we should stay together, but if he wasn’t sure that he wanted a future with me anymore and he was only staying because he was worried about the effects of him leaving, then we should break up”. I didn’t want him to feel obliged to be with me, and if I did have problems, then I wanted to fix them entirely independently rather than having someone to depend on who would inevitably leave anyway. He said he wanted to break up which was hard, but I completely understood. To go from having no relationship longer than six months to having a 40 month relationship that was essentially ending in this way and very dramatic was a pretty big deal for him.
Emphasis added (Exhibit 2 T66, page 240).
Bearing in mind the concern the Tribunal has in accepting without reservation everything set out in the letter, it clearly shows a significant emotional upheaval – despite her assertions that it was his, not hers, at the time.
The discussion of an ultimatum regarding the relationship in connection with the ‘painkiller experiment’ is of significant concern. It does not evince depression in this instance but is characteristic of a borderline personality trait.
In the 2012 letter, the applicant described significant ruminating after her participation in the IOI and the effect the result might have on her and the three men, she commented that “if anything happened to MAJ Y, CAPT Z or CAPT X, were there consequences, I would feel even more guilty than I already did.”
As noted her thoughts especially dwelled on MAJ Y. She ruminated on the relationship and whether she had been used by him.
She then describes going to shops with another ex-boyfriend and asserts to have purchased 268 Panadol tablets.
She sent messages to MAJ Y and CAPT Z, the texts of which were not before the Tribunal but certainly had the effect of raising concern so CAPT Z who was in her geographical area went out searching for her. She then took tablets whilst in her parked car, she estimated an amount of 170, taking a portion at a time. CAPT Z found her - as she had parked reasonably close to his house. He put her in his car and took her to hospital. The ADF was advised.
Protocol with respect to such action was taken by the ADF including notification of next-of-kin. Her parents came to Canberra but this caused her to be angry that they did so without her consent.
In the 2012 letter, there is evidence of her changing the history to fit her narrative. She stated “I had been deemed as ‘at risk’ by Captain Richardson around a month ago [Oct 2011 contextually] and instead of dealing with that, they had started an inquiry and cut psychological support.”
She was not deemed ‘at risk’ and psychological support was offered extensively and repeatedly – albeit for the ‘sex with staff’ issue as this was the significant focus due to her then complaint. The contemporaneous medical evidence does not indicate significant distress on her part after the 14 October 2011 consultation.
The applicant’s contrary behaviour continued after her self-harm episode when she was transferred at her request to medical facilities at ADFA. She was sending messages to CAPT Z that she wanted to leave the facility. It would seem that she knew he would come to visit her and stated “I had found a way to get out when Captain Z rocked up.” Of course his attending the facility and seeing her room empty and that she was nowhere to be found caused him to take the appropriate emergency steps given her recent self-harm episode. When she came back into her room, the Executive Officer, the Deputy Commandant and CAPT Z were all there waiting for her.
She said the doctor remonstrated her for not telling people where she was going and her response was “I told him if nurses were too ignorant to notice someone walking past the nurses’ station then it probably wasn’t really a problem with me.” She wrote she had to be counselled by the Deputy Commandant and that she had to “stop playing games”.
Again, the Tribunal finds that this type of action is consistent with borderline personality traits.
The applicant travelled to Adelaide in late 2011 with the agreement of the ADF but on the basis that she would seek medical attention there. This was with Dr Veale and the consultation was not particularly beneficial due to her behaviour. He did not diagnose a major depressive disorder as a consequence of that consultation, nor did he treat her for it.
Assistance was provided to her so she could obtain treatment and support whilst on holidays over Christmas 2011/12. The contemporaneous clinical notes indicate that extensive assistance was offered to be provided but in her letter she said that it was not useful.
It will be noted that in the Quick Assessment that was undertaken by the Defence Force following the self-harm attempt, it was referred to as a response to problems with her boyfriend. One might look at that as the military covering itself – ‘of course they would say that’ – however, in this case that contemporaneous finding is consistent with the admissions made by the applicant in her letter of early 2012 as noted above.
In addition a report to the applicant’s GP at RAAF Base Edinburgh prepared in mid-2012 noted that the applicant’s state of mind at the IOI ‘was about a sense of loss of her relationship with a man with whom she had a serious relationship.’
Pausing here to consider this letter because it is important evidence, it is remarkably open and candid. Whilst the Tribunal does not necessarily accept it is all true, but it was written at a time much closer to the occurrence of the events and not with a view to a claim for compensation. It was written to a potential boyfriend to point out incidents that had occurred in her past. This seems specifically directed to her self-harm attempt.
What is clear is that there was no suggestion in any medical notes that she had had thoughts of self-harm in October or early November 2011, or indeed any time before it happened. There is no suggestion of her desperately needing assistance that was being withheld. There are references to her seeking treatment but that she could not actually have. She knew that Captain Richardson was going away for two weeks but seems to insist that she continued to be available to speak to the applicant. Captain Richardson and others made various offers of other assistance to the applicant during this time, but she refused to take them up, such as a private psychiatrist she could speak to who would not be bound by the duties of notifiable incidents. There were other medical centres that she could attend if she needed assistance, not for the matters giving rise to the Inquiry, but just for her emotional wellbeing.
The Tribunal finds that there is no valid criticism here of the level of care that was offered by the ADF.
The applicant puts much store in an email written by Captain Richardson on her return from leave dated 4 November 2011[4], on the basis she says it confirms a lack of treatment in the period from 15 October until 4 November 2011. Now, the understanding of Captain Richardson to write that email is not clear, but there was certainly no shortage of treatment she could access or shortage of people who were there to assist in her having treatment. There was no evidence that she was in an acute psychiatric state or contemplating suicide at that time.
[4] Exhibit 2 p 57.
We are mindful in considering this that the applicant at the time was a person of younger years who was at the more stressful stage of finishing her studies and her training. However, she was a person who had been at ADFA for three years and was aware of how it operated and what facilities were available to her. For example, she was able to attend a psychologist immediately when she wanted, and she was aware of other medical centres and the fact that there could be adjustments to her service due to medical issues (such as excused duty due to the ankle injury). The applicant was and is clearly an intelligent person, having done well in her studies at ADFA and post-ADFA, having undertaken further studies in teaching and having obtained a law degree.

Reference has been made in this Decision to the applicant changing the history in subsequent statements that were prepared for use in this application or in information provided to the doctors who assessed her for the application. She formed the view that she was entitled to compensation. She had seized upon the idea that she was designated ‘at risk’ and has repeated that extensively, as if this was a medical assessment made at the 14 October 2011 consultation.
In an email prepared on 13 April 2012, the applicant said that she had been:
…thinking about ‘ammunition’ (for lack of a better word) in defence of my employment. Additionally, in order to claim with DVA for psychological compensation, I am required to have documented proof that there is more than the events that caused trauma (ie poor management, etc). I have a few ideas about how this can be raised.
On 17 May 2012 she made a health care complaint which was inaccurate in significant regards, in particular asserting that she was unable to access ADFA psychological support throughout the IOI process and asserted that no form of psychological support was offered to assist her in her ‘at risk’ status. In that complaint, she sought an apology and compensation for pain and suffering, in addition to her other matters
DIAGNOSIS
The applicant was resentful of treatment arranged following the self-harm episode. She wanted to travel to Adelaide and did so on the condition that she would see a psychiatrist there, Dr Veale. At the first consultation on 28 November 2011 Dr Veale diagnosed not having any psychotic or manic symptoms. There was no PTSD or other psychiatric symptoms. She did not want ‘any form of treatment for psychological distress’.
The applicant successfully completed her training and was promoted to Flying Officer and then moved to Adelaide in 2012 to undertake her employment in the RAAF as an Administrative Officer at Edinburgh. During the course of this employment, she saw Dr Veale on several occasions.
Dr Veale gave evidence that he did not diagnose major depressive disorder to begin with. His contemporaneous notes would not support such a diagnosis in any event. However, as a consequence of consultations in 2015, he then considered a completely different diagnosis stating: “I felt that she had developed a depressive illness during her service e.g.Bullying at ADF…”[5]
[5] Report 10 August 2015 Ex 2 p 155.
Dr Veale’s notes do not reveal any basis for such a finding from the contemporaneous examinations. There is not enough compelling evidence of symptoms of a depressive illness in any of his notes. He only refers to it once, in August 2012, when he authored an application for the applicant to get a white card. She could get a white card if she had an illness that would give rise to compensation, such as a diagnosis of major depressive disorder, and frankly there is no evidence at all to support that diagnosis in his contemporaneous notes, or no explanation as to why his diagnosis changed for that purpose.
Dr Ewer undertook very thorough examinations of the applicant and the materials on the 6 September 2016. No reliance can be placed in the diagnosis he reached in his first report because the diagnosis was based on information that was substantially untrue. That was she never said she had had inappropriate sexual relationships with staff and that was something they were trying to “pin on her”.
Dr Veale often related the applicant’s condition to bullying arising from her ADF service. For the reasons set out above, the Tribunal does not accept an allegation of bullying nor is that the basis upon which the applicant presented the case. Her case at hearing was for problems arising from lack of support, psychological and other medical assistance in October and November 2011 causing the depressive condition.
As noted, Dr Ewer has taken a detailed assessment in which he has made the observation that the applicant’s presentation varied from time to time with an inconsistent history and she acknowledged telling professionals incorrect information.
Dr Ewer considered in his report of 10 August 2019 that with the benefit of the additional information he had before him for writing the report – which is consistent with the information that was before the Tribunal for this hearing - it was his opinion that the applicant probably had borderline personality traits which would become evident when she was under pressure. Dr Ewer also noted that the applicant presented as being reasonably settled over more recent years. He considered that her personality structure had been the most significant aspect of her psychiatric presentation.
He considered that her personality problems were made worse by her discussions of her intimate relationships in October 2011 – but that would be more accurately described as November 2011. She felt that she was under great pressure during those discussions and she felt that she had to lie about her relationships but that lying (or not answering questions) could have the consequence of an ‘own goal’.
During re-examination, Dr Ewer described the factors he had taken into account in forming his opinion embodied in his 10 August 2019 report that the applicant had borderline personality traits, and not a major depressive disorder:
“…So in terms of borderline personality traits, I don’t think she had a borderline personality disorder but I considered the diagnostic criteria and looked for evidence of that. In terms of impulsivity, on 6 December 2011 it was recorded and I quote,
Significant impulsivity. Deliberate self harm in the past. Possible personality disorder.
On 6 December 2011 Dr Evans wrote an email indicating that Ms [the applicant] had a history of significant impulsivity. And I thought there was some evidence of impulsivity in her sexual relationships. In terms of affective instability, a psychological report from 2 December 2011 referred to mood swings. On 2 December 2011 Fiona Richardson wrote that Ms [the applicant] was, and I quote,
Feeling moody and controlled by her mood.
Dr Veale, in his letter dated 28 November 2011, wrote, and I quote,
She reports prominent mood lability, changing over hours. She gets angry and frustrated with others, but she has no history of cutting or deliberate self harm for affective regulation.
On 2 December 2011 psychologist D Firmstone referred to unstable mood swings. In terms of anger, inappropriate anger is one of the criteria and practitioners did refer to that. Dr Babu, in his referral letter dated 7 December 2011, recorded that Ms [the applicant] was visibly angry in a handwritten note on 18 November 2011. Dr Evans wrote that Ms [the applicant] was quite angry. And on 19 November 2011, I think in a handwritten note - and I’m not sure how you pronounce it, but I think you spell it M-o-o-n-e, I don’t think it has a “y” on it, was very angry.
…
Possible transient stress-related paranoid ideation is one of the criteria, and I thought that possibly her feeling targeted by her SSM may be evidence of paranoia. And on 2 December 2011 psychologist D Firmstone wrote that she felt unfairly targeted. In terms of other factors that I took into account with borderline personality traits, I thought she probably did have an unstable self image. I thought there were boundary issues in her history of - in 2009 with a man who coerced into rough - very rough sex, and up to five times a day, I thought that was consistent with boundary issues. And also I thought her unstable self image was indicated there was mention in the documents of her feeling less stressed when she had sex with others because she felt more appealing to others. In terms of other factors, she said that she - in one of the documents said she had a need to be in control, suggesting rigidity rather than flexibility, which is one of the characteristics we see with these sorts of personality structures. And in Ms Stevens’ letter dated 13 March 2012 she recorded that Ms [the applicant] saw her mother as self absorbed and her father as distant, and that’s what I was referring to earlier of Ms [the applicant] possibly not having received attuned parenting, which is one of the key dynamics of a borderline personality - people with borderline personality traits. On the other hand of the ledger, relevant to not having a major depressive disorder in 2011, I made the note that in the documents I was sent, a number of independent people didn’t make the diagnosis of major depressive disorder in 2011. For example the liaison psychiatrist at the Calvary Hospital, Dr Berger, didn’t make that diagnosis but did make the diagnosis of an adjustment disorder. Dr Evans, at that time, seemed to focus more on behavioural problems, didn’t make the diagnosis of MDD. That on 24 November 2011 Dr Veale wrote a handwritten note and he then wrote in his own handwriting, inverted quotes - or quote, “No sign MDD”, and at that time he made the diagnosis of an adjustment disorder possibly with cluster B personality traits, and he wrote,
No pervasive mood symptoms. Nil neurovegetative symptoms.
And I went through the documents looking for the phenomenology consistent with a major depressive disorder, and I couldn’t see the symptoms recorded there. Some of the phenomenology is quite specific to depression, guilt, and self blame. There is an article in the 2013 Medical Journal of Australia by Dr Beatson, psychiatrist, on - looking at - for MDD in the setting of borderline personality traits, and she refers to the difficulty of making that diagnosis. And one of the key characteristics that someone with a borderline personality structure demonstrates with - if they do develop MDD, and I will quote from her paper, is a deep sense of inner badness with accompanying merciless attack on the self. And there really was no evidence of this, in fact there was evidence of the contrary. Dr Babu spoke of her anger, and he wrote that she was largely in denial and did not understand what all of the fuss was about. So rather than feeling guilty and blaming herself, it seemed more projection and denial. On 28 November 2011 Dr Veale wrote a letter, and I quote,
I didn’t see any sign of a major depression or other pervasive mood disorder.
On 3 December 2011 Dr Charlton recorded in the notes she was not depressed, her sleep and appetite were satisfactory. Dr Veale, in his handwritten notes on 12 April 2012 and 27 April 2012, in my view some of it was difficult to read, I couldn’t see the symptoms consistent with a major depressive disorder. And in fact Ms [the applicant], in one of her documents, 27 March 2012, wrote that her suicide episode was purely circumstantial, and that is one of the dynamics that Dr Beatson refers to, that it’s often in response to external stress, and particularly relationship break ups, such as the ones that she referred to. One of the characteristics of major depressive disorder in people with borderline personality traits is that it takes a longer time to go into remission, the conditions tend to be longer and more severe. Yet on 27 April 2012 Dr Veale wrote a letter recording that Ms [the applicant] was reactive and euthymic, and he made no follow-up visits, which is not what you would expect in someone who was suffering from major depressive disorder. And her course, I didn’t think - that is tracked out in the notes, was not really consistent with MDD. The - she seems to have gone into remission if she did have it, without having had an anti-depressant, which is not consistent with the literature. And in fact on 27 April 2012 Dr Veale recorded that she was euthymic and philosophical regarding her medical discharge. So I thought there were quite a few things in the documents which supported borderline personality traits, and I couldn’t satisfy myself there was information on - in the documents that she had - sorry, that - I didn’t think she had MDD, but I did think she had borderline personality traits.”
This was a detailed and persuasive piece of diagnostic evidence.
This is of assistance with interpreting whether she has an injury that would give rise to a claim for compensation. In addition to the observations made by Dr Ewer, the Tribunal is also concerned as to the extent to which the information provided for the purpose of the claim was patently and demonstrably incorrect. However, the simple threshold question as to whether the plaintiff suffered a compensable injury in the course of her employment in the Defence Force is answered ‘no’. The Tribunal accepts the diagnosis that she has borderline personality traits which became evident when she was under pressure and that the condition did not arise as a consequence of her service.
As noted it is common ground between the parties that a borderline personality structure would not have been caused by service, but was a condition that affected her prior to service.
Thus, the decision denying her claim for compensation is affirmed.
FURTHER CONSIDERATION
By way of observation, the pressure to which the applicant was subject in 2011, which then in turn caused borderline personality traits to become more evident were caused by matters essentially of her own making. She had breached the Rules and clear Orders of ADFA with regards to fraternisation with cadets. She had fraternised with other defence personnel referred to above, although she has maintained that this was not in breach of the rules of sexual relationships between instructors and students.
Her motivation for advising the psychologist that she had sex with staff members is then unclear. It was unnecessary and had immediate but foreseeable consequences. It has a similarity to her obtaining a rat as a pet. It has a similarity to her wearing the wrong uniform, knowing this would draw a response. It had a similarity to her deliberately breaching a direct order not to discuss the IOI matters with others but going further than that and concocting a story to thwart the IOI process.
It is easy to conceive that at the time these things happen, there could have been a cumulative effect, putting her under more pressure, thus causing a more pronounced borderline personality response. It was in this process that self-harm with the paracetamol took place. It was consistent with her refusing treatment or being resistant to it. It is consistent with her leaving her room following her suicide attempt so that an alarm would be raised, and then resenting the fact that it had occurred.
There is no suggestion that her condition meant she was not responsible for her actions.
Whilst it may be challenging to conceive that problems caused by this deliberate behaviour should give rise to an entitlement in a compensatory system, it is accepted law that a person is not precluded from receiving compensation merely because the person was injured as a result of her own misconduct. It will be a matter of the circumstances of the case. The very rules that she breached would have protected her had they been adhered to. The breaches did not occur as a consequence of a lack of supervision or enforcement of rules.
Here, her conduct directly caused an increase in her underlying maladaptive personality structure which led to the self-harm episode. If it was considered that it did, then one would have to look seriously at the issues as to whether that would be compensable in the circumstances. One would consider whether the injury arose in the course of the applicant’s employment as a RAAF cadet or that her employment did nothing more than set a scene in which these events were played out - but did not cause them to be played out.
It would be different, in this consideration, if the relationships were inappropriate staff sexual relationships, but she was adamant that that was not the case.
DECISION
The decision denying the applicant’s claim for compensation is affirmed.
DISCLOSURE
Pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 matters are to be dealt with in public. Exceptions are granted and in this case an order was made to anonymise these proceedings.
The applicant has been unsuccessful, and to explain why she was, it was deemed necessary to explain the factual circumstances involved in this matter. However it is also evident that her behaviours can be explained (if not excused) by her underlying condition, which fortunately has abated over the more recent years. These events occurred when she was a young adult and at a time when natural pressure was upon her with her final studies and passing out parade.
This hearing was not, as her counsel correctly pointed out, a re-hearing of the IOI or any other events in which she was involved. She was not on trial for these matters but they set the scene for her compensation claim.
These detailed reasons provide ample information for public scrutiny on the allegations made, the relevant facts and the basis of the decision. Matters referred to in footnotes are to assist the parties to review these reasons, and do not significantly add to the factual narrative set out herein. Details of identity are not necessary, in this case, to make sense of what went on. Identifying the applicant has the capacity to cause harm in her circumstances. The other people referred to in the case were not involved in the proceedings in any way and identifying them in these reasons is not appropriate given the allegations made and their inability to respond in the course of this matter.
The Tribunal is mindful of the views of Brennan J, when he was President of the Tribunal, set out the rationale for Tribunal hearings being held in public saying that it is: [6]
"... calculated to ensure that public confidence in proceedings to administer justice is both warranted and maintained. It is a principle of particular importance to a Tribunal which is engaged in reviewing the exercise of administrative power, for administration has hitherto been a cloistered process…and its exposure to public scrutiny is calculated to enhance greater public confidence in it."
[6] Re Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247, 270 – 273.
In the peculiar circumstances of this case after proper consideration to the direction in s35 (1), it is proper to apply s 35 (3) as set out below:
S 35 (3) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:
(a) information tending to reveal the identity of:
(i) a party to or witness in a proceeding before the Tribunal; or
(ii) any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal; or
(b) information otherwise concerning a person referred to in paragraph (a)
(4) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:
(a) relates to a proceeding; and
(b) is any of the following:
(i) information that comprises evidence or information about evidence;
(ii) information lodged with or otherwise given to the Tribunal.
To set this all out on a permanent record which identifies her would cause undue hardship and embarrassment to this Applicant. More importantly, it may lead to stress which could have the effect of re-aggravating her condition which has been in remission. This is an important factor in this case because her aggravated condition involved a self harm episode as set out in this decision. She has made a good recovery from this stressful episode and is encouraged to continue to do so. However this order will not have the effect of burying information that the applicant would be required to produce in certain circumstances by law. It would not prevent further investigation of the events referred to herein by the ADF if so minded.
The parties made submissions on whether a confidentiality order should apply to this decision. These matters have been considered. The Applicant initially opposed the orders as proposed by the Tribunal, but that position was on a basis that did not take into account fully some of the concerns outlined by the Tribunal. In these circumstances, the Tribunal has decided to issue a confidentiality order.

I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for the decision herein of Members Ward, Ormston & Stephan.

................[sgnd]....................
Administrative Assistant Legal
Dated:  19 December 2019
Dates of hearing:  17 – 19 September 2019 &
  14 October 2019.
Applicant’s Representative:               Mr E. Jolly on instructions from Slater & Gordon
Respondent’s Representative:          Ms. S Wright on instructions from Australian Government Solicitor

[2019] AATA 6110

19 December 2019

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