Caldow and Repatriation Commission (Veterans' entitlements) - [2021] AATA 932

Caldow and Repatriation Commission (Veterans' entitlements) [2021] AATA 932 (20 April 2021)
Division:VETERANS’ APPEALS DIVISION
File Number: 2019/5168
Re:Peter Caldow
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:20 April 2021
Place:Perth

The decision of the Veterans’ Review Board dated 25 July 2019 which affirmed a determination of the Respondent dated 7 May 2018 rejecting the Applicant’s claimed posttraumatic stress disorder and alcohol use disorder on the basis that they were not defence-caused for the purposes of s 70(5) of the Veterans’ Entitlements Act 1986 (Cth) is affirmed.
.....[SGD]...................................................................
Deputy President Boyle
CATCHWORDS
VETERANS’ ENTITLEMENTS – defence service – Applicant posted to Butterworth, Malaysia – Applicant had been diagnosed by two psychiatrists with posttraumatic stress disorder and alcohol use disorder – whether psychological injuries were defence-caused – whether Applicant would have suffered injury ‘but for’ defence service – inconsistencies in evidence before the Tribunal – Tribunal not reasonably satisfied that the category 1A stressor occurred – reviewable decision affirmed.
LEGISLATION
Defence Act 1903 (Cth) – s 17
Veterans’ Entitlements Act 1986 (Cth) – ss 5C, 5D, 68, 70, 70(5), 70(5)(c), 70(7), 120(1), 120(2), 120(4), 120A, 120B, 196B(3), 196B(14), pts II, IV
CASES
Comcare v Mather and Mitchell (1995) 56 FCR 456
Comcare v PVYW (2013) 250 CLR 246
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Money (2009) 173 FCR 410
Repatriation Commission v Smith (1987) 15 FCR 327
Roncevich v Repatriation Commission [2001] FCA 1320
Roncevich v Repatriation Commission [2002] FCA 1458
Roncevich v Repatriation Commission (2005) 222 CLR 115
Simpson and Repatriation Commission [2018] AATA 343
Smith and Repatriation Commission [2015] AATA 786
SECONDARY MATERIALS
Repatriation Medical Authority, Statement of Principles concerning alcohol use disorder (Balance of Probabilities) (No. 49 of 2017) (24 September 2018) – paras 7, 7(2), 9, 9(1), 9(2), 9(3), sch 1
Repatriation Medical Authority, Statement of Principles concerning posttraumatic stress disorder (No. 83 of 2014) (24 September 2018) – paras 3, 3(b), 3(b)A(i), 3(b)A(ii), 5, 6, 9
REASONS FOR DECISION
Deputy President Boyle
20 April 2021
THE APPLICATION

The Applicant seeks review of a decision of the Veterans’ Review Board (VRB) dated 25 July 2019 which affirmed a determination of the Respondent dated 7 May 2018 rejecting the Applicant’s claimed posttraumatic stress disorder (PTSD) and alcohol use disorder (AUD) on the basis that they were not defence-caused for the purposes of s 70(5) of the Veterans’ Entitlements Act 1986 (Cth) (VEA).
BACKGROUND
The Applicant was born in January 1959. He died in January 2021.
The Applicant enlisted in the Australian Army on 24 January 1977 and was discharged on 23 January 1980.
The Applicant was posted to Butterworth, Malaysia from 31 August 1978 to 6 December 1978.
The Applicant claimed that while posted in Malaysia, he experienced two incidents. These were:
(a)witnessing the death of LCPL Mills when he was struck by a motor vehicle (the car incident). The Applicant categorises the car incident as a category 1B stressor; and
(b)being part a group of soldiers who were attacked by Malaysian nationals which resulted in another soldier and the Applicant receiving stabbing or slashing wounds. The Applicant said that he feared for his life (the bar incident). The Applicant categorised this incident as a category 1A stressor.[1]
[1] Applicant’s SFIC para 2.3.
On 7 July 2017 the Applicant lodged a claim for disability pension for “bilateral hearing loss and tinnitus”, “obstructive sleep apnea” [sic], “chronic obstructive pulmonary disease”, “gastro-oesophagal reflux disease” [sic], “PTSD”, “bilateral knee damage”, “fractures to spine”, “fracture of 2^nd metacarpal of left hand” “damage to right index finger” and “bursitis left elbow”.[2]
[2] R18, T14.
In respect of the PTSD claim, the Applicant reported that he first became aware that he was experiencing PTSD signs and symptoms in 1978 and believed it was service caused, contributed to or aggravated by the car incident and the bar incident.[3]
[3] R18, T14/40.
Relevantly, for the purposes of the matter before the Tribunal, on 7 May 2018 the Respondent made a determination that:
(a)accepted the Applicant’s claim for “sensorineural hearing loss”, “fracture of the 2nd metacarpal of the left hand” and “olecranon septic bursitis of the left elbow”;
(b)rejected the Applicant’s remaining claims which included PTSD and AUD on the basis that they were not related to the Applicant’s defence service, and
(c)granted the Applicant a disability pension at 50 per cent of the General Rate for the accepted conditions, with effect from 11 May 2017.[4]
[4] R18, T40.
On 17 May 2018 the Applicant requested an internal review of the determination of 7 May 2018 in respect of the claimed conditions that were rejected by the Respondent.[5]
[5] R18, T41.
On 4 December 2018 the Applicant advised the Respondent that he was seeking review only in respect of the PTSD and AUD decisions.[6]
[6] R18, T45.
On 25 July 2019, in reviewing the decision of the Respondent, the VRB affirmed the determination of 7 May 2018 in respect of both the PTSD and AUD. While the VRB accepted that the Applicant had PTSD and AUD, it was not reasonably satisfied that the incidents in Butterworth occurred as described by the Applicant such that they caused him to experience a category 1A or 1B stressor. Accordingly, it found that there was insufficient evidence to connect the PTSD to his relevant service. Insofar as the AUD was concerned, the VRB concluded that as the PTSD could not be linked to the Applicant’s defence service, the AUD could not be accepted on the basis of the Applicant’s claim of having had a clinically significant disorder of mental health at the time of the clinical onset of AUD. Further, it was not satisfied that the Applicant had experienced either a category 1A or 1B stressor during his service. Therefore, no change was made to the Applicant’s existing pension of 50 per cent of the General Rate.
On 23 August 2019 the Applicant applied to the Administrative Appeals Tribunal for a review of the VRB’s decision of 25 July 2019.
THE ISSUES
The Respondent identified the issue for determination as being whether the claimed conditions are defence-caused within the meaning of s 70(5) of the VEA.[7] The Applicant did not specifically identify the issues to be determined by the Tribunal. The Tribunal agrees with the Respondent’s statement of the issues for determination.
[7] Respondent’s SFIC para 11.
In determining the issue identified in [13], the Tribunal will need to consider:
(a)whether the Applicant suffers from the claimed PTSD and/or AUD by reference to the definition in the applicable Statement of Principles (SOP);
(b)whether it can be reasonably satisfied that those conditions are causally related to the Applicant’s defence service in one of the ways mentioned in s 70(5) of the VEA, by considering:
(i)whether any of the factors in the applicable SOP are satisfied; and
(ii)whether any such factors are related, in one of the ways mentioned in s 70(5) of the VEA, to the relevant defence service rendered by the Applicant such that the SOP upholds the contention that the Applicant’s claimed conditions are, on the balance of probabilities, connected with his defence service.
LEGISLATIVE FRAMEWORK
Section 70 of the VEA relevantly provides:
70 Eligibility for pension under this Part
(1)    Where:
(a)...
(b)a member of the Forces … is incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)...
(d)in the case of the incapacity of the member—pension by way of compensation to the member;
in accordance with this Act.
...
(5)    For the purposes of this Act ... an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the … injury or disease … arose out of, or was attributable to, any defence service … of the member;
(b)subject to subsection (8), the … injury or disease … resulted from an accident that occurred while the member was travelling, during any defence service … of the member but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place upon having ceased to perform duty;
(c)… the injury is to be deemed by subsection (7) to be a defence-caused injury or the disease is to be deemed by subsection (7) to be a defence-caused disease, as the case may be; or
…
(7)    Where, in the opinion of the Commission, the incapacity of a member of the Forces … was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered defence service … or but for changes in the member's environment consequent upon his or her having rendered any such service:
(a)if the incapacity of the member was due to an accident—that incapacity shall be deemed to have arisen out of the injury suffered by the member as a result of the accident and the injury so suffered shall be deemed to be a defence-caused injury suffered by the member; or
(b)if the incapacity was due to a disease—the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a defence-caused disease contracted by the member, for the purposes of this Act.
Section 5D of the VEA defines relevant terms as follows:
(1)this Act, unless the contrary intention appears:
…
disease means:
(a)   any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)   the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c)    the aggravation of such an ailment, disorder, defect or morbid condition; or
(d)   a temporary departure from:
(i) the normal physiological state; or
(ii) the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).
incapacity from a defence-caused injury or incapacity from a defence-caused disease has the meaning given by subsection (2).
…
injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a) a disease; or
(b) the aggravation of a physical or mental injury.
…
(2)In this Act, unless the contrary intention appears:
(a)a reference to the incapacity of a veteran from a war-caused injury or a war-caused disease; or
(b)a reference to the incapacity of a person who is a member of the Forces … from a defence-caused injury or a defence-caused disease;
is a reference to the effects of that injury or disease and not a reference to the injury or disease itself.
(Original emphasis.)
Section 68 of the VEA defines relevant terms as follows:
defence service means service, except peacekeeping service, of any of the following kinds:
(a) continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date;
(Original emphasis.)
Defence Force is defined in s 5C of the VEA to have the same meaning as in the Defence Act 1903 (Cth) which in turn, in s 17, defines Defence Force as including the Australian Army. The Respondent concedes that the Applicant’s period in the Army constitutes eligible service.[8]
[8] Respondent’s SFIC para 3.
Sections 120(1) and 120(2) of the VEA apply, respectively, to claims made under Part II (operational service) and claims made under Part IV for peacekeeping service, hazardous service and service relating to British nuclear tests. The Applicant’s claims do not fall into any of those categories. Accordingly, the Applicant’s claims come within the operation of s 120(4) and are therefore affected by s 120B of the VEA.
Section 120(4) of the VEA provides:
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
Section 120A of the VEA applies to claims made under Part II that relate to operational service and claims made under Part IV relating to peacekeeping service, hazardous service and service relating to British nuclear tests. As noted at [19], the Applicant’s claims do not fall into any of those categories and, accordingly s 120A of the VEA does not apply.
Section 120B of the VEA applies to claims made under Part IV that relate to defence service. It is this section that is therefore applicable to the Applicant’s claims. Section 120B relevantly provides:
120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)…
(b)a claim under Part IV that relates to the defence service (other than hazardous service and British nuclear test defence service) rendered by a member of the Forces.
Note 1: Subsection 120(4) is relevant to these claims.
…
(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was … defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
Subsection 196B(14) of the VEA relevantly provides that:
A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)    it resulted from an occurrence that happened while the person was rendering that service; or
(b)    it arose out of, or was attributable to, that service: or
…
(e)    in the case of a factor causing, or contributing to, an injury—it resulted from an accident that would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(f)     in the case of a factor causing, or contributing to, a disease—it would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person's environment consequent upon his or her having rendered that service; or
…
(Original emphasis.)
There are two SOPs issued under s 196B(3) of the VEA relevant to this case. They are Statement of Principles concerning alcohol use disorder (Balance of Probabilities) (No. 49 of 2017) which commenced on 24 September 2018 (SOP 49) and Statement of Principles concerning posttraumatic stress disorder (No. 83 of 2014) which commenced on 24 September 2018 (SOP 83).
THE HEARING
The application was heard on 20 and 21 October 2020. The Applicant was represented by an advocate, Mr M Quinn. The Respondent was represented by Ms A Ladhams of the Australian Government Solicitor. Written closing submissions were provided by the parties as follows:
(a)Applicant on 24 November 2020;
(b)Respondent on 22 December 2020; and
(c)Applicant’s response to Respondent’s closing submissions on 2 January 2021.
The following witnesses gave evidence at the hearing:
(a)The Applicant;
(b)Terry Francis Dillon; and
(c)Dr Brendan Jansen.
The following documents were admitted into evidence at the hearing:
(a)Applicant’s Statement of Facts, Issues and Contentions dated 26 April 2020 (Exhibit A1) (Applicant’s SFIC);
(b)Statement of the Applicant, unsigned and undated, received by the Tribunal 23 March 2020 (Exhibit A2);
(c)Statement of information from the Veteran’s Review Board, unsigned and undated, received by the Tribunal 15 October 2020 (Exhibit A3);
(d)Statement of the Applicant regarding Penang, Malaysia, undated, received by the Tribunal 15 October 2020 (Exhibit A4);
(e)Statutory declaration of Robert B Wallace, dated 27 September 2018 (Exhibit A5);
(f)Affidavit of Terry Francis Dillon, unsworn and undated, received by the Tribunal 28 November 2019 (Exhibit A6);
(g)Email statement of Robert Wallace dated 22 August 2019, unsigned (Exhibit A7);
(h)Email statement of Robert Wallace dated 21 August 2019, unsigned (Exhibit A8);
(i)Respondent’s Statement of Facts, Issues and Contentions, dated 10 June 2020 (Exhibit R1) (Respondent’s SFIC);
(j)Respondent’s statement of issues dated 4 October 2019 (Exhibit R2);
(k)Redacted investigation report cover letter from F. J. Bellchambers, Squadron Leader, Assistant Provost Marshal dated 6 December 1978 (Exhibit R3);
(l)Full redacted investigation report dated 6 December 1978 (Exhibit R4);
(m)Abbreviated inpatient medical record relating to Private Hayes dated 10 November 1978, 13 November 1978, 15 November 1978 and 17 November 1978 (Exhibit R5);
(n)X-ray report in relation to Private Hayes, signed by Dr Chan Hen Sam, requested by Flight Lieutenant Irving, dated 14 November 1978 (Exhibit R6);
(o)Examination report in relation to Private Hayes, signed by Dr Chan Hen Sam, dated 14 November 1978 (Exhibit R7);
(p)Record of chest x-ray of 10 November 1978 in relation to Private Hayes, referred by Dr Irving (Exhibit R8);
(q)Email from S Anicic of the Australian Government Solicitor to the Tribunal and the Applicant’s representative dated 26 November 2019 (Exhibit R9);
(r)Article by Peter Adamis entitled “Jimmy Mills Rifle Company Butterworth 1978” dated 14 February 2018 (Exhibit R10);
(s)Briefing letter from the Department of Veterans’ Affairs to Dr Jansen dated 18 October 2017 (Exhibit R11);
(t)Redacted statement of Mr Scott, dated 6 November 1978 (Exhibit R12);
(u)Redacted statement of Mr Peoples dated 4 November 1978 (Exhibit R13);
(v)Redacted statement of Mr Positti dated 10 November 1978 (Exhibit R14);
(w)Redacted statement of Mr Harrex dated 20 November 1978 (Exhibit R15);
(x)Site/Plan document titled “Traffic Accident Lance Corporal J Mills, B Company, 6RAR”, dated 6 December 1978 (Exhibit R16);
(y)Photographs of accident scene and vehicle dated 6 December 1978 (Exhibit R17);
(z)T-Documents, T1–T50, comprising 232 pages (Exhibit R18); and
(aa)Supplementary T-Documents, ST1–ST4, comprising 601 pages (Exhibit R19).
THE EVIDENCE
The Applicant
Three written statements were provided by the Applicant.[9] None of those statements is dated. The Applicant’s evidence at the hearing was that, while he could not remember when he made those statements, they were all made within the last two years.[10] Exhibit A2 primarily dealt with events immediately following the Applicant’s discharge from the Army in January 1980. In that statement the Applicant referred to being diagnosed with high blood pressure “[w]hile in the discharge cells in December 1979”. He was checked for that condition on his return to Perth and was told that he would need to take blood pressure tablets for the rest of his life.
[9] A2, A3 and A4.
[10] transcript at 34–5.

In A2 the Applicant detailed a relationship breakup that he experienced shortly after his discharge. He explained that in the months following his discharge he moved to various locations within Western Australia, and then sought out his former Army colleague, Mr Bernie Hayes, in Melbourne. He said that in that period he was “shaking like hell” because he was not taking his medications. He said that when he returned from Melbourne, he “started having nightmares/bad dreams/flash backs”. He did not tell anyone about his insomnia and bad dreams because he thought that this was what his brain needed to heal. Following this, the Applicant reported that he started to drink heavily to sleep and not dream. That did not work, however, and the more that he drank the more his oesophagus started to hurt. He suffered from gastroesophageal reflux disease which required surgery later in life. The Applicant continued to have nightmares and suicidal thoughts. He continued to drink heavily and was eventually diagnosed with PTSD. He was then told by the Department of Veterans’ Affairs (DVA) to attend their nominated psychiatrist. Two psychiatrists diagnosed the Applicant as suffering from PTSD. He still had suicidal thoughts, but not so often, and still suffered from a burning oesophagus. Unfortunately, while the Applicant was able to identify a series of early events as occurring after his discharge from the Army, his statement does not identify dates of when the various events he described took place.
The Applicant’s statement A3, which is headed as being addressed to the VRB, lists the people who the Applicant said were with him when he witnessed the car incident. The Applicant said that he and another soldier were 40–50 metres away from the impact and that they ran to LCPL Mills’ body. The Applicant thought that LCPL Mills was dead. He found out later that LCPL Mills was “brain dead” and the life support machine was turned off one week later in Brisbane. He said that Peter Adams was not at the scene of the accident.
The third statement, A4, headed “Penang Malaysia”, dealt with the bar incident. In that statement, the Applicant said that six weeks into his deployment in Malaysia (that is, sometime in October 1978), he and three other soldiers called Hayes, Koolmister,[11] and Dillon were in a bar when they noticed four well-dressed Malaysians sitting at the bar. These men started buying the four soldiers drinks, but when the Applicant and his friends tried to return the favour and buy the four Malaysian men drinks, they declined. The Applicant said to Mr Hayes that he thought that the refusal was suspicious, at which point they decided to leave by the side door. When they went through the side door, they were set upon by 20 Malaysians using “kung fu”. The Applicant said that he was returning their punches and “throwing them aside”. One of the Malaysians came at him with a knife and the Applicant jumped back against a wall and was sliced across the chest. He then noticed Mr Hayes on the floor with a broken bottle “sticking out the side his stomach (hip area)”. They were, by that stage, separated from the other two. The Applicant said that when he went to grab Mr Hayes, he was stabbed in the left shoulder area but that he “got rid of two more men and dragged [Mr Hayes] up the alley way” where there was a taxi. The Applicant reported that the driver “had a grin on his face as he said Hospital?, like he knew that this was going to happen”. The Applicant took Mr Hayes to hospital, had some butterfly stitches applied to his own wounds, discharged himself and went back to camp. Mr Hayes was in hospital for three weeks.
[11] The spelling of this person’s surname is unclear in the material before the Tribunal (see A4 and A6).
The Applicant’s evidence at the hearing was as follows:
The car incident
(a)He was not sure how long it was after his deployment to Malaysia with Rifle Company Butterworth that the car incident occurred, but thought that “it could have been weeks”.[12]
[12] transcript at 30.
(b)On the night of the car incident he and another soldier called Trench were drinking in a bar. LCPL Mills and a LCPL Peoples were in the same bar although they were not drinking with the Applicant and Trench (who is also known as Wallace).
(c)When the Applicant and Trench left the bar, he saw LCPL Mills who was about 50–60 metres up the road when “a car c[a]me screaming across the road with no headlights on and struck Millsy” who “flew and then landed on his head”.[13]
[13] transcript at 30.
(d)He looked at LCPL Mills who appeared dead to him. He said that by the time he got to LCPL Mills’ body, LCPL Peoples was already looking after LCPL Mills, doing CPR, so the Applicant “just took off back to the barracks”.[14]
[14] transcript at 31.
(e)LCPL Mills was the second in charge of his section. The Applicant had known him for 12 months before their deployment to Malaysia.
(f)The Applicant could not remember whether LCPL Mills had been drinking in the same bar as him immediately before the Applicant came out of the bar and saw LCPL Mills struck by the car.
(g)The only people at the scene of the accident were LCPL Mills, LCPL Peoples and the Applicant, although there may have been an RAAF person there as well. The Applicant went back to the barracks to tell the others that LCPL Mills had been hit by a car. The Applicant thought that LCPL Mills was dead and that the car had deliberately hit him.
Cross-examination
(h)The Applicant could not remember whether the car incident or the bar incident occurred first.
(i)The Applicant had consumed about 10 beers that night.
(j)He did not know what Trench did after the Applicant ran up to LCPL Mills’ body and then went back to the barracks.
(k)When the Applicant got back to the barracks, he told a couple of people in his section what had happened. He did not report it to any of his superiors.
(l)He did not know that the Army had conducted an investigation into the incident.
(m)The Applicant had, in the last two years, spoken to his sergeant, SGT Treadwell, to see whether he might be able to give evidence, but SGT Treadwell said that he could not remember the car incident or the bar incident. All that SGT Treadwell remembered was that CPL Gleeson, the Applicant’s section commander, had gone missing for two days.[15]
[15] transcript at 49–50.
The bar incident
(n)The Applicant, Mr Hayes and “Koolie” (later in the Applicant’s evidence identified as Mr Koolmister) went to a bar. They had been at the bar for about an hour. Mr Dillon joined them at their table. The Applicant thought that Mr Dillon was already at the bar.
(o)The Applicant saw four Asian men sitting at the bar. He thought that they looked like businessmen. They started buying the Applicant and his friends beers. When the Applicant and his group tried to reciprocate and buy the businessmen beers, they refused which he thought was suspicious. The Applicant turned to Mr Hayes and said that he thought that they should get out of there. Mr Hayes agreed so they left the bar through the side door.
(p)They were then “jumped upon” by about 20 men who were doing “Kung Fu stuff”.[16] The four of them were split in two, he saw Mr Hayes “go down”. The Applicant was trying to get to Mr Hayes and was “fighting these other ones off”, at which point he saw that Mr Hayes had what looked like a bottle in his side. There was a lot of blood. He finally got Mr Hayes out and up to the top of the laneway where there was a taxi and the taxi driver had a smirk on his face “like he knew what had happened”.
[16] transcript at 37.
(q)The Applicant accompanied Mr Hayes to the hospital where the Applicant received butterfly stitches and then went back to camp. He did not see Mr Hayes for a couple of weeks.
(r)When the group was set upon as they left the bar, the Applicant thought that the people attacking them were insurgents because there were insurgents in the area. There was no verbal or other warning before they were attacked.
(s)The slash that he received was superficial and he asked the staff at the hospital to put a butterfly stitch on it. He still had the scar.
(t)The distance from where the attack took place to where the Applicant and Mr Hayes got into the taxi was about 60 metres. He had to drag Mr Hayes, which is why he thought that Mr Hayes was severely injured.
(u)Asked how long the attack lasted, the Applicant’s evidence was:
Well, they seemed like 10 minutes but I thought we were goners since we were outnumbered but, yes, they’re fighting ability wasn’t that good, so that’s probably why they came out with the knives and the bottle, but most of them were trying to do their Kung Fu, what I remember but I easily punched and pushed them away.[17]
[17] transcript at 39.
(v)The Applicant caught up with Mr Koolmister the following day. He had only received a “lump on his chin or something”.[18]
[18] transcript at 39.
(w)He could not remember what hospital he had ended up at on that night with Mr Hayes, or whether it was a military of civilian hospital. The Applicant did not need any follow-up treatment following the incident.
(x)He next saw Mr Hayes about three to four weeks after the incident. Asked what feedback he received from Mr Hayes, the Applicant’s answer was “None”.
(y)Asked by his advocate how that incident had affected him, the Applicant’s evidence was, “It didn’t really affect me, it didn’t worry me.”[19]
[19] transcript at 40.
(z)Asked whether his drinking increased after the incident, the Applicant’s evidence was:
Not on deployment but - because with all the guys there, it was - it was easier to keep it under control. It was only when I returned to Denmark where I had no one and then - yes - and that’s when all the alcohol and the nightmares and everything started then, so …[20]
[20] transcript at 40.
Cross -examination
(aa)Asked why he chose to go out the side door, the Applicant answered:
Because we’re coming through the front and I - I don’t know, I don’t know. I just thought - because I felt something suspicious, I thought well, come out the front, let’s go outside. I don’t know why, it’s my little ESP thing which obviously didn’t work because we got attacked.
(bb)Asked by counsel why they did not go back inside to safety in the bar when they were attacked, the Applicant’s answer was “because Bernie was stabbed”.
(cc)He said that he did not know what happened to Mr Dillon and Mr Koolmister as he and Mr Hayes got out of the alleyway and into the taxi. He said his concern was for Mr Hayes and himself and that he “didn’t even look back at them”.
(dd)In the weeks that followed the incident the Applicant did not make any enquiries as to Mr Hayes’ condition. He says that he did not know the hospital’s number. He was questioned as to whether he had ever asked Mr Hayes how he was doing; his answer was “Not that I remember, no”.[21]
(ee)The Applicant reported for duty the next day. He did not report the bar incident to anyone. Asked by counsel why he did not report the incident, notwithstanding his evidence that he thought that he and the other soldiers had been “set up” and that the people who attacked them were insurgents or militia, he answered “[b]ecause I was told to keep out of trouble”.
[21] transcript at 55.
Onset of symptoms
The Applicant’s evidence at the hearing was:
(a)He “felt funny when [he] landed at the airport” coming back from Malaysia, but he thought that that was a reaction to the malaria tablets.[22]
[22] transcript at 36.
(b)The Applicant remained in the Army for 12 months after his return from deployment in Malaysia. He had served three years in the Army.[23]
[23] transcript at 41/9–15.
(c)The reason that he left the Army was that he had a girlfriend in Perth. He said that the relationship did not last very long so he should have stayed in the Army.[24]
[24] transcript at 41/18–20.
(d)He started drinking more heavily when he returned to Western Australia after his discharge from the Army. He went back to working in lumber yards. He drank beer after work at home and watched television. He moved back to Denmark (in the south of Western Australia) where his drinking increased, particularly over weekends to the point where he “was as crook as a dog” on Mondays.
(e)The Applicant’s girlfriend at the time was posted to Meekatharra, he followed her, but they started fighting. He was working in sawmills and, in Meekatharra, at the State Battery.
(f)He drank to stop the nightmares which started in about 1981 or 1982. The nightmares involved car crashes and fights. He also became wary of people, assessing them for the risk they posed to him whenever he entered the pub. His evidence was that he was hypervigilant.
(g)The Applicant returned to Perth when he was 33 years old and started his own pest control business when he was aged 40, “because [he] couldn’t really handle people anymore”. At the time of the hearing, the Applicant no longer worked.[25]
[25] transcript at 43–44.
(h)The Applicant had received medical treatment for back and hip problems, which he said were caused by carrying packs, and he also had liver disease which he says was caused by his years of drinking.
(i)He was prescribed medication for depression and anxiety by his general practitioner. Someone from DVA suggested that the Applicant see a psychiatrist which resulted in the Applicant seeing Dr Trivedi at Hollywood Hospital. Dr Trivedi remained involved in the Applicant’s treatment until the Applicant moved to Gnowangerup. According to the Applicant, Dr Trivedi put him on medication to stop his dreams.
(j)In cross-examination the Applicant was asked whether his symptoms emerged while he was still in Malaysia. His answer was that he did not think so, but that was because he and the others were “self-counselling”.[26]
[26] transcript at 57.
(k)The Applicant was also asked in cross-examination about changes in his personality before his discharge from the Army. His evidence was:
COUNSEL:       You’ve talked about personality changes and becoming    short-tempered and having angry outbursts?
APPLICANT:     Yes.
COUNSEL:       Did you notice those while you were still in the Army?
APPLICANT:     When I went out, yes. When we went out to bars, I was    always in trouble with bouncers.
COUNSEL:       When did you first get in trouble, going out to bars, with    bouncers?
APPLICANT:     Can’t recall.
COUNSEL:       Before Malaysia or after Malaysia?
APPLICANT:     I think it might have happened before as well, because Bernie    had a lot of Sydney mates up in - up in Brisbane. I know there   was an all-out brawl at the National Hotel where Bernie was   slashed there as well - got his teeth knocked out there. And   alls [sic] I seemed to have was just a little lump on the chin   and that was it.[27]
(l)It also emerged through cross-examination that prior to his deployment to Malaysia the Applicant had several drink-related incidents. He was charged with driving under the influence when he was stationed in Brisbane. He was also subject to a military charge of possession of alcohol in his barracks when he was training at Singleton in 1977.[28]
(m)He started experiencing insomnia and developed sleep apnoea when he returned from Malaysia. He continued to have nightmares just about every night until he went onto medication when he was about 40 years old.[29]
(n)In cross-examination the Applicant was asked to explain when his symptoms became worse. His evidence was:
When I got back to Denmark it got worse because I’d already split up from my girlfriend at the time, and then I went back to Denmark. That’s when all these nightmares and - that’s when everything started compounding because I had no one to talk over with, and that’s when the drinking started, and I’m talking about heavy drinking; not spirits but - like from 10 o’clock in the morning to kick out; back there the next day; same again.[30]
[27] transcript at 57.
[28] R19, ST1/310.
[29] transcript at 59.
[30] transcript at 62.
Terry Francis Dillon
An unsigned and undated copy of a document headed “Affidavit” had been lodged by the Applicant.[31]
[31] A6.
Mr Dillon gave evidence at the hearing. He confirmed that the contents of the unsworn and undated document were correct. In that statement Mr Dillon said:
(a)In October 1978 he, the Applicant, Mr Hayes and Mr Koolmister, who were members of B Coy 6RAR, Rifle Company Butterworth, were drinking in a bar at night.
(b)The four of them were “sitting at the bar” when they “were approached by Some Malay nationals” who offered to buy them some drinks.
(c)After four rounds of drinks the Applicant became uncomfortable because “the Malays would not [accept] a round from us”. They decided to leave. The Applicant thought that the best way out was through the back door.
(d)When they went out through the door they were “confronted” by 20 male Malaysians.
(e)When they were set upon, the four of them broke into two groups, with Mr Dillon and Mr Koolmister in one group and the Applicant and Mr Hayes in the other. The fighting lasted around 10 minutes. Mr Dillon noticed that Mr Hayes’ shirt was covered in blood and that he was holding his side. The Applicant’s shirt was also covered in blood. The Applicant was trying to protect himself and Mr Hayes.
(f)“We got the upper hand and run to the main road were we got into different cabs Koolie and myself went to the ferry, Peter Caldow and Burnie went to the Penang Hospital”.[32] (Without alteration.)
[32] A6, para 4.
Mr Dillon’s evidence at the hearing was:
(a)He and the Applicant “were friends within the army”. They caught up after they left the Army. The last time that he had seen the Applicant was the previous Anzac Day when the Applicant had gone on a trip to Brisbane where Mr Dillion lives.[33]
[33] transcript at 74.
(b)The night of the bar incident Mr Dillon was drinking with the Applicant and two others when the Malaysian men started buying them drinks but would not accept drinks from the Australians. They then decided that “something was going on”.[34]
[34] transcript at 74.
(c)It was the Applicant’s suggestion for them to leave the bar. They decided that the safest way out was through the side door.
(d)As soon as they went out of the door they were jumped. There was a bit of yelling and “they started into us”.[35]
[35] transcript at 75.
(e)When the fight broke out they were separated into two groups which were three or four metres apart. He and Mr Koolmister were not stabbed or slashed and suffered “just bruising and, you know, just minor cuts. But just mainly bruising. And, you know, sore arm, sore leg from getting kicked in the leg and the arms and, you know, the sore arms from blocking, you know, over their kicks and all that kind of stuff. But for us it was nothing major”.[36]
[36] transcript at 76.
(f)In relation to how the fight ended and the way in which the group left the area, Mr Dillon’s evidence was:
[Mr Koolmister] and I left first. We decided to go, sort of thing. You know, we were going, ‘Just go! Let’s go!’. And we went. Because we were closer to the road, we were first off and they come up behind us. And there was two cabs there. The cab drivers were smiling at us. We just jumped in the cab, we (indistinct) back to the ferry. And because they were hurt, they went to the hospital.[37]
[37] transcript at 76.
(Without alteration.)
(g)Asked by Applicant’s advocate whether he saw the Applicant and Mr Hayes at this point, Mr Dillon’s evidence was:
Yes. He was assisting Bernie. The both of them were assisting each other up to the – well, John was maybe sitting [sic] Bernie up to the taxi, and they went to the Penang hospital, and we went back to Butterworth.[38]
[38] transcript at 76.
(h)Mr Dillon assumed that Mr Hayes had ended up in the RAAF hospital at Butterworth because, being military, he would not have stayed in the civilian hospital in Penang.
(i)He says that they reported the incident to their immediate superiors, section commander corporals, but that “[e]veryone already knew about Bernie”.
(j)He considered the incident life-threatening because it was four against 20 and someone, Bernie, got seriously hurt.
(k)He was in the barracks on the night of the car incident.
Cross-examination
(l)Asked why they did not turn around and go back into the bar when they were confronted as soon as they exited the side door, Mr Dillon’s evidence was:
Because there was [sic] people behind us as well. There’s people inside, in the bar, and we left to go out the side door, and then we were hit by the other people at the side door.[39]
[39] transcript at 81.
(m)Asked who the people behind them were, Mr Dillon said “[w]ell, the people we were drinking with while we were at the bar”.[40]
[40] transcript at 81.
(n)In relation the four of them getting into the taxis, Mr Dillon’s evidence was:
COUNSEL:       So, they got in the taxi before you and moved off before you?
MR DILLON:     No, no. We got in before them and they weren’t that far behind                     us, and they were getting in the cab when we took off. And   the Malays weren’t following us from down in the alleyway.   They were still down there.[41]
[41] transcript at 83.
(o)The Tribunal asked Mr Dillon the following questions:
TRIBUNAL:      So, you got to the street before they did?
MR DILLON:     Yes. We got up to the top where the cabs were. We were    getting in, they were just behind us. We closed the door, they   were getting into their cab, and then we left to go back to the   ferry, to get back to Butterworth.
TRIBUNAL:      So, before you exited the laneway, just explain to me: were    there already two cabs waiting at the top of the laneway?
MR DILLON:     There was, yes. And they were smiling. I remember that.    They were smiling at us.
…
TRIBUNAL:      So, you knew [the Applicant and Mr Hayes] were right behind    you?
MR DILLON:     Yes. Well, I assumed – the only way I really did know they    were right behind us when we got in the cabs, because they   were getting into their cab. That’s the only time I – I didn’t look   back after I went and started going – because it wasn’t that   far to the other end of the laneway there.
TRIBUNAL:      And as you were getting into the cabs, did you say anything    to John or Bernie?
MR DILLON:     I don’t remember.
…
TRIBUNAL:      Were you looking at each other? In other words, you could    see them getting into the cab. Are you able to make a   comment as to whether they could see you two getting into a   cab as well?
MR DILLON:     Well, they would have seen us getting into the cab. Well, they    should have been. They were just behind it.
TRIBUNAL:      But you didn’t – and I think Ms Ladhams might have asked    you – because your evidence was that you were comfortable   that they were going to hospital?
MR DILLON:     Well, yes, I thought they were. Because they were hurt, they    had to go to hospital.
TRIBUNAL:      But you didn’t speak to them, did you?
MR DILLON:     No. No, I did not.
TRIBUNAL:      So, why did you assume they were going to a hospital?
MR DILLON:     Because they were bleeding pretty badly and they needed    attention.
TRIBUNAL:      And you didn’t speak to them, though?
MR DILLON:     No, because we’d gotten in the cab, and just as we were   closing the door they were getting into their cab. They got in   the cab. We left. And I assumed they went to the hospital in   Penang. And then I thought that the next day Bernie was   transferred over to airbase Butterworth and he was in hospital   over there.
…
TRIBUNAL:      How far apart would you have been when you were getting    into the taxis?
MR DILLON:     Probably about five metres.[42]
[42] transcript at 85–7.
Dr Jansen

Dr Jansen provided a report dated 22 November 2017[43] as follows:
[43] R18, T25.
(a)Dr Jansen is a consultant psychiatrist. He assessed the Applicant on 9 November 2017.
(b)The history that the Applicant gave Dr Jansen was that soon after arriving in Malaysia his section commander, “Millsy”, was killed. There were concerns that this may have been deliberate. Approximately six weeks into his service the bar incident occurred. The Tribunal notes that the account of the bar incident reported by Dr Jansen refers only to the Applicant and Mr Hayes being present. There is no mention of Mr Dillon or Mr Koolmister being present. Dr Jansen records the Applicant as having told him that he had lost his watch “in the scuffle” and “when he reported the matter to the police chief he noticed that the police chief was actually wearing his watch”. The death of his section commander had sensitised him to potential dangers and after the bar incident he chose to remain close to the base camp.[44]
[44] R18, T25/82.
(c)His symptoms began immediately after the bar incident. He had nightmares, his sleep was poor, and he turned to drinking “even greater amounts of alcohol”.[45]
[45] R18, T25/82.
(d)He was “wracked with some self-blame as it was he who chose the door through which Bernie and he exited”.[46]
[46] R18, T25/82.
(e)It was only when he was around the age of 40 that his general practitioner prescribed an antidepressant which caused his ruminative thoughts to slow down. He experienced suicidal thoughts on two occasions, first in his 20s and then in his 30s, but these did not translate into planning or self-harm action.
(f)Dr Jansen outlined various psychosocial issues reported by the Applicant, such as the fact that he had a failed relationship immediately upon his discharge from the Army which was a factor in him experiencing the full force of his post-trauma symptoms.
(g)He is the sole proprietor of a pest control business and works between zero and 16 hours a week which is sufficient for him to fulfill his current contracts.
(h)Dr Jansen diagnosed the Applicant with PTSD and AUD. The Applicant did not meet the criteria for major depressive disorder or social anxiety disorder.
(i)Asked to identify the diagnostic criteria under DSM-IV[47] supportive of the diagnosis, Dr Jansen advised that DSM-IV had been superseded by DSM-V.[48] He outlined the diagnostic criteria which support a diagnosis of PTSD in the Applicant’s case as follows:
[47] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Publishing, 4^th ed, 1994). (DSM-IV).
[48] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Publishing, 5^th ed, 2013). (DSM-V).
(i)The Applicant has been exposed to actual serious injury by directly experiencing a traumatic event;
(ii)he shows the presence of recurrent involuntary and intrusive distressing memories of the traumatic event and has experienced recurrent distressing dreams related to the event;
(iii)he has shown avoidance or efforts to avoid distressing memories;
(iv)he has experienced, amongst other things, negative alterations, cognitions and mood associated with the event, as well as self-blame and feelings of detachment from others;
(v)he has shown marked alteration in arousal and reactivity, as evidenced by irritable behaviour and angry outbursts, hypervigilance and sleep disturbance;
(vi)the disturbance has endured for more than a month;
(vii)the disturbance has caused clinically significant distress;
(viii)the disturbance has resulted in impaired social and occupational functioning; and
(ix)the disturbance is not attributable to the physiological effects of the substance or another medical condition.
(j)In addition to being asked to address the diagnostic criteria that support the final diagnosis of PTSD, Dr Jansen was also asked to identify the diagnostic criteria that support the Applicant being diagnosed with AUD. He reported that the Applicant displays a problematic pattern of alcohol use, which has led to clinically significant impairment or distress manifested by:
(i)alcohol taken in larger amounts and over a longer period than was intended;
(ii)unsuccessful efforts to cut down alcohol consumption;
(iii)alcohol use had caused failure to fulfil work obligations; and
(iv)continued use of alcohol notwithstanding the adverse physical consequences.
Dr Jansen noted the Applicant was a consumer of alcohol before the traumatic incident, but that the traumatic incident caused a significant worsening of alcohol abuse.
(k)The date of the onset of the condition (it is not clear whether this is a reference to one of both conditions) was around October 1978.
(l)The event that precipitated the PTSD, and in turn the AUD, was “the in incident that occurred as outlined in 1.3 above”.[49] Unfortunately, para 1.3 of Dr Jansen’s report refers to both the car incident and the bar incident, but concentrates in some detail on the bar incident. This suggests that Dr Jansen is identifying the bar incident as the relevant traumatic event. This was confirmed to be the case by Dr Jansen at the hearing (see [38](b) below).
(m)Dr Jansen attributes the Applicant’s impairment to be 70 per cent to PTSD and 30 per cent to AUD.
[49] R18, T25/88.
Dr Jansen gave evidence at the hearing as follows:
(a)At the time of reviewing the Applicant, Dr Jansen also spoke to the Applicant’s partner.
(b)The event to which Dr Jansen was referring when he cited the event in para 1.3 of his report (see [37](l) above) was the bar incident.
(c)The car incident may have been a predisposing factor to PTSD, but it was not the event that precipitated the PTSD.[50]
[50] transcript at 96.
(d)The Tribunal notes that in his evidence about what the Applicant had told him about the bar incident, Dr Jansen refers, on a number of occasions, to only the Applicant and Mr Hayes being involved.[51]
[51] transcript at 96/33; 97/4; 97/33.
(e)Dr Jansen was asked whether his assessment would be affected if the Applicant had not witnessed LCPL Mills being hit by a car, as the Applicant claims. Dr Jansen answered that it would not.[52]
[52] transcript at 97.
(f)As to the Applicant’s credibility, Dr Jansen said:
I was not given any impression by Mr Caldow that he was anything but an honest historian…[53]
[53] transcript at 97.
He also commented:
I felt that some degree of rapport was formed during the interview and I had no reason to doubt any of the information that was presented to me…[54]
[54] transcript at 98.
(g)When Dr Jansen interviewed the Applicant, the Applicant had not mentioned that two other soldiers were involved in the bar incident.[55]
[55] transcript at 99.
(h)Dr Jansen thought that:
It is unsurprising for me that he asked the staff to look after him and perhaps a little surprising for me that he did not check on his welfare. … It is perhaps a little surprising that he didn’t report the incident although perhaps his consumption of alcohol at the time may have been a factor that made him reluctant. But I don’t know, that’s speculative on my part.[56]
[56] transcript at 99.
(i)When asked about the onset of symptoms sometime after the Applicant’s return to civilian life, Dr Jansen’s evidences was that while the Applicant remained in the Army, particularly in Malaysia, his surroundings, for example, being with his Army colleagues, provided a “protective factor” and that “it is possible that with the loss of that support the symptoms can worsen”. Dr Jansen also observed that:
… the post-traumatic stress disorder would not have occurred in a vacuum and we all bring our pre-morbid personality tendencies to the psychiatric condition. So that he had a tendency towards perhaps impulsivity and irritability prior to any manifestation of a post-trauma syndrome would indicate that, you know, these traits were even further exacerbated and may explain the particular manifestation of symptoms in this case. In relation to alcohol use disorder the history of it worsening in [Meekatharra] is not history that I obtained and it is of course possible that an independent condition of alcohol use disorder can take on a life of its own and become unrelated to management of post-traumatic stress symptoms. However, the history that I obtained was that he continued to use alcohol as a method of manage his insomnia and reduce his arousal even when there was physical detriment for him in terms of his reflux oesophagitis, his heartburn, he – and, you know, requiring separate treatment. At the very most he would give himself a bit of a holiday because he relied so much on the alcohol in order to assist him with his symptoms. So that’s the history that I obtained.[57]
(j)In relation to the Applicant’s failure to check on Mr Hayes’ condition after he delivered him to hospital on the night of the bar incident, Dr Jansen’s evidence at the hearing was:
I guess that would be unusual unless he feared the worst possible outcome and wished to avoid that. I mean, perhaps a comment possibly related but perhaps related to other aspects that we’ve discussed, is that the avoidance phenomena of PTSD often lead to a difficulty confronting the past trauma and even accessing treatment. So the only possible explanation I can give is that he wished to – it was too difficult for him to revisit the consequences of anything happening to his friend but, as I say, that would be unusual given his friendship with Bernie.[58]
(k)The Tribunal asked Dr Jansen whether it surprised him that the Applicant’s more recent evidence was that there were four soldiers involved in the bar incident rather than just the Applicant and Mr Hayes as recounted by the Applicant to Dr Jansen. His answer was, “[i]n retrospect it does surprise me, yes.”[59]
(l)The Tribunal then asked Dr Jansen whether his assessment of the extent of fear that the Applicant would have suffered would differ if in fact there were four of them rather than just the two upon which he had based his report. Dr Jansen’s evidence was that it would not, because 20 versus four was still significant, and foremost in the Applicant’s mind was the wellbeing of himself and Mr Hughes rather than the other two.
[57] transcript at 100.
[58] transcript at 101.
[59] transcript at 103.
Dr Darshan Trivedi
Although he did not give evidence at the hearing, Dr Darshan Trivedi, consulting psychiatrist, prepared a report that was before the Tribunal, dated 15 February 2019.[60] In that report Dr Trivedi said:
[60] R18, T47.
(a)He had been treating the Applicant since June 2018.
(b)The Applicant had no formal psychiatric history prior to service in the Army. His alcohol consumption started while he was in the Army and worsened following “the index event”. Dr Trivedi’s report does not identify the index event. It does summarise the car incident and the bar incident, however is not clear whether Dr Trivedi found the index event to be the car incident, the bar incident, or a combination of both.
(c)Dr Trivedi diagnosed the Applicant with PTSD, AUD and chronic depressive disorder.[61]
[61] R18, T47/187.
(d)In response to the request to identify the diagnostic criteria that the Applicant met in support of a diagnosis of PTSD under the DSM-V, Dr Trivedi identified the relevant stressor to be “direct exposure and witnessed traumatic event including death, threatened death, actual or threatened serious injury”.[62] The Tribunal takes that to be a description of both the car incident and the bar incident. He then identifies the symptomatic criteria that were met as being intrusion symptoms, avoidance, negative alterations in cognitions and mood, as well as alterations in arousal and reactivity.
[62] R18, T47/188.
(e)In relation to AUD, Dr Trivedi refers to seven characteristics of the Applicant’s alcohol consumption which come within the characteristics of the definition of AUD under para 7(2) of SOP 49. The Tribunal notes that for a diagnosis of AUD under SOP 49, at least four of the factors identified in para 7(2) must occur within a 12-month period.
(f)Dr Trivedi’s report, however, does not identify which factor (or factors) under para 9 of SOP 49 exists (or exist) for it to be said that, on the balance of probabilities, the Applicant’s AUD is connected with his relevant service. Paragraph 9 of SOP 49 specifies that at least one of the factors must exist before that connection can be said to arise on the balance of probabilities.
(g)Dr Trivedi’s report does refer to the Applicant as having experienced stressors (or a stressor) as described at [39](d) above, which, while referring to the stressors relevant to PTSD under SOP 83, would also qualify as a stressor or stressors for the purposes of para 9 of SOP 49.
(h)Dr Trivedi also diagnosed the Applicant as suffering chronic depressive disorder (referred to as persistent depressive disorder under DSM-V). The letter of instruction to which Dr Trivedi was responding, asked him whether there was a “significant causal relationship between the diagnosed condition and any events or stressors which occurred during the Applicant’s service”. His answer was:
Apart from index event described earlier, there is no significant causal relationship between the diagnosed condition and any events, stressors or risks occurred during service.[63]
(i)The Tribunal notes that amongst the Supplementary T-Documents there are a further nine reports from Dr Trivedi dated from 16 June 2018 to 23 August 2019,[64] and what appear to be handwritten clinical notes of Dr Trivedi. Neither party referred to these documents.
(j)The Tribunal further notes that the Applicant’s SFIC referred to Dr Woodall and Dr Trivedi as having identified the two psychological stressors.[65] There was, unfortunately, no cross-references to evidence in support of these claims in any of the Applicant’s submissions, including his SFIC, and the Tribunal was unable to find a report from Dr Woodall in the material filed with the Tribunal, which exceeded 1600 pages. The Tribunal notes that in June 2017 the Applicant’s treating general practitioner at the time, Dr Thomas Chiddick, sought a report from Dr Woodall as to whether the Applicant suffered PTSD.[66] A similar brief to Dr Woodall was provided by DVA on 4 October 2017.[67] On 22 November 2017 Dr Brendan Jansen provided his report to DVA, apparently in response to the DVA brief of 4 October 2017.[68] None of the Respondent’s submissions or its SFIC referred to a report from Dr Woodall.
THE PARTIES’ SUBMISSIONS
[63] R18, T47/192.
[64] R19, ST8/1585–1595.
[65] Applicant’s SFIC para 2.8.
[66] R18, T15.
[67] R18, T16.
[68] R18, T25.
The Applicant
In his SFIC the Applicant identifies his case as follows:
8.Both Dr Woodall and Dr Trivedi have identified the 2 psychological stressors that occurred during the applicant’s deployment to Malaya.
9.Statement of Principle, Post Traumatic Stress Disorder, 83 of 2014 factors 6(a) and 6(b) are met by the applicant providing a linkage to service.
6(a) experiencing a category 1A stressor before the clinical onset of post-traumatic stress disorder.
6(b) experiencing a category 1B stressor before the clinical onset of post-traumatic stress disorder.
10.Statement of Principle, Alcohol Use Disorder 49 of 2017 9(1), 9(2) and 9(3) are met by the applicant.
9(1) having a clinically significant disorder of mental health as specified at the time of the clinical onset of alcohol use disorder;
9(2) experiencing a category 1A stressor within the two years before the clinical onset of alcohol use disorder;
9(3) experiencing a category 1B stressor within the two years before the clinical onset of alcohol use disorder.
The Applicant’s closing submissions repeated the references to SOPs 83 and 49. In relation to the claim for PTSD, the Applicant at para 2 of his closing submissions identified the relevant event as being “experiencing a life-threatening event, being subject to a serious physical attack, being threatened with a weapon”. The Tribunal takes this to be a reference to the bar incident only.
This reliance on the bar incident as being the only relevant stressor for the purposes of the PTSD claim under SOP 83 is further confirmed by the Applicant’s closing submissions referring only to the witnesses and evidence relating to the bar incident and to Dr Jansen’s evidence that the car incident “was insignificant to his diagnosis or the causal link”. His evidence at the hearing was that it was, “perhaps a predisposing factor but [he] didn’t feel that it precipitated this posttraumatic stress disorder.” The Applicant’s closing submissions also referred to Dr Jansen’s evidence, which opined that the bar incident met the criteria for the diagnoses.
The Applicant’s closing submissions summarised the evidence of the Applicant and Mr Dillon in relation to the bar incident. There is limited reference in the submissions to the evidence relating to the car incident, only to the extent that the Applicant notes Dr Jansen’s view that the incident was not a major stressor. The Applicant seeks to explain what might be considered to be vagueness in his evidence about the bar incident and his actions over the days and weeks following the bar incident as being the result of the PTSD and his general memory loss.
The Respondent
The Respondent’s SFIC sets out in great detail the relevant law, legislative provisions and the operation of SOPs.
In relation to the Applicant’s claims and the evidence, the Respondent’s SFIC considered the following:
(a)The Army documentary evidence in relation to both the car incident and the bar incident, citing:
(i)the Australian Army service medical records of Mr Hayes for the period 10 to 17 November 1978 which, on their face, confirm that Mr Hayes was stabbed and spent 10–17 November 1978 in hospital; and
(ii)the Department of Defence report relating to the death of LCPL Mills on 4 November 1978 after being struck by a car in Butterworth. That report only identified LCPL Peoples as being with LCPL Mills when he was struck and, while other military personnel arrived at the scene shortly afterwards, the Applicant was not noted as being amongst them.
(b)The medical evidence of Dr Jansen and Dr Trivedi both of whom diagnosed the Applicant as suffering from PTSD and AUD.
(c)The Applicant’s medical records, which show that during the period that he was deployed to Malaysia, he was treated for a range of ailments, none relating to his mental health. Further, the Medical Board Examination Record dated 29 November 1979[69] recorded the Applicant’s emotional stability and mental capacity as “normal” and in a Discharge History Questionnaire, also dated 29 November 1979, it was recorded that the Applicant had no “mental illness – nervous breakdown” before he was discharged on 23 January 1980.
(d)After the Applicant’s discharge from the Army, his medical records show consistent, long-term alcohol consumption, diagnosis of anxiety and depression (2006), diagnosis of probable alcoholic liver disease and having been aware of abnormal liver function for 20 years (2014) with beer consumption at the rate of 3–4 cartons per week for 30 years (with higher consumption on the weekend), and diagnosis of “chronic alcoholic liver disease with abnormal liver biochemistry” (2015). The Applicant did not demonstrate any desire to abstain from alcohol, nor did he wish to undertake any formal attempt at rehabilitation to reduce his level of consumption.
(e)It was not until July 2017 that the Applicant attended his general practice and reported some “possible PTSD” symptoms and requested referral to a psychiatrist that specialised in veterans’ affairs. The Applicant reported that he thought the symptoms “started soon after leaving army” and that he believed he was “drinking more to manage mood” and the symptoms. His general practitioner noted that the Applicant reported to him that he suffered from upsetting memories, flashbacks, difficulty sleeping and nightmares following his years of service, which were less vivid than they used to be, and that the Applicant was diagnosed with an anxiety disorder by another general practitioner when he was in his 40s.
(f)The Applicant reported intrusive memories and nightmares after discharge but that he did not seek any help until he was 40 years old, when his then general practitioner gave him antidepressant medication. The Applicant had never been to a psychiatrist or psychologist for treatment. The Applicant’s comorbidities included alcoholic liver disease, hiatus hernia, hyperlipidaemia, ischaemic heart disease, obstructive sleep apnoea, hypertension, interstitial lung disease and gastroesophageal reflux disease.
[69] R19, ST2/589.

The Respondent contended that both Dr Trivedi and Dr Jansen’s diagnoses rely on the accuracy of the Applicant’s accounts of the stressor event(s) and his history.
According to the Respondent, there is no reliable evidence to support the Applicant’s assertions that he was at the scene of the car incident, or that he was involved in the bar incident. Further, even if the Applicant was involved in the bar incident, the Tribunal cannot be reasonably satisfied that the incident was a traumatic event such as to cause him to suffer PTSD and/or AUD because the evidence of the Applicant and his witnesses is not reliable, and the contemporaneous records including the service and medical records, do not support the Applicant’s account or version of events. More particularly, the Respondent submits that:
(a)The contemporaneous Army records do not show that the Applicant was present at the car incident scene.
(b)The Applicant’s service medical records do not mention him suffering from any stabbing injuries and/or any other form of injuries (physical or otherwise) that could be linked to either incident.
(c)Dr Jansen gave a PTSD onset date of approximately 6 weeks into the Applicant’s service at Butterworth, around October 1978. However, the Applicant’s service records do not show any reports of him suffering any form of psychiatric symptoms at any time after the car and/or bar incidents, nor do they show any attempts to seek medical help for any related medical conditions up until his discharge in 1980. Except for one reference to anxiety and depression in 2006, none of the Applicant’s post-discharge medical records make any mention of him suffering any form of psychological symptoms or condition until shortly before or after he lodged his claim for disability pension on 6 July 2017. The first reference of “possible PTSD” symptoms that the Respondent can identify was on 7 July 2017 when the Applicant requested referral to a psychiatrist that specialised in veterans’ affairs.
In its closing submissions, the Respondent submitted that:
(a)It concedes that the Applicant has AUD but not PTSD. While accepting that the Applicant has AUD, the Tribunal understands that the Respondent argues that it is not defence-caused. Further, the Respondent says that if the Tribunal were to find that the Applicant has PTSD, it is not defence-caused because the Applicant did not experience a relevant traumatic event.
(b)The Tribunal should find that it is not reasonably satisfied that the Applicant has defence-caused AUD because he did not experience a relevant traumatic event, and did not have a clinically significant disorder of mental health at the time of the clinical onset of AUD.
(c)The Respondent acknowledges that the Applicant has been diagnosed with PTSD by Dr Jansen and Dr Trivedi, but says that the Tribunal should not accept those diagnoses because both diagnoses rely on the Applicant having experienced a stressor.[70] The Respondent submits that the Tribunal cannot be reasonably satisfied that the Applicant actually experienced such a stressor (or stressors).
(d)The Applicant now relies on the stressor for both the PTSD and AUD as being the bar incident. The evidence does not support the Applicant’s version of the bar incident, which has changed materially. The Applicant’s version of the bar incident is inconsistent and implausible. If the bar incident did occur, it was not a life-threatening or otherwise a category 1A stressor under either SOP.
(e)Even if the bar incident did occur as asserted by the Applicant, the Applicant did not subjectively find it to be a traumatic event. The Applicant’s evidence of his actions during and following the bar incident are not consistent with the Applicant considering the bar brawl to have been a traumatic event.
(f)The Tribunal should be concerned about the way in which the PTSD claim emerged, namely after the Applicant had been receiving treatment for anxiety and depression for 11 years with no mention of PTSD or events in Malaysia.
(g)In relation to the AUD claim, while the Respondent conceded that the Applicant has AUD, the Tribunal cannot be satisfied that the onset of the AUD occurred within two years of a relevant stressor,[71] or that at the time of the onset of the AUD the Applicant had a clinically significant mental disorder.[72] Dr Trivedi’s and Dr Jansen’s diagnoses of the timing of the onset of AUD should not be accepted.
(h)Even if the Tribunal finds that the Applicant suffers from PTSD and AUD, the conditions are not defence-caused.
[70] SOP 83 paras 3(b)A(i) or 3(b)A(ii).
[71] SOP 49 paras 9(2), 9(3).
[72] SOP 49 para 9(1).
The Respondent’s closing submissions raised a new argument which was not set out in the Respondent’s SFIC and was not raised at the hearing (new argument).[73] The Respondent’s closing submissions conceded that the new argument was “not squarely raised in these proceedings” and stated that the Respondent would not oppose a request by the Applicant to adduce further evidence to address the new argument. The new argument, set out in paras 54 to 64 of the Respondent’s closing submissions, is as follows:
(a)Even if the car incident and the bar incident did occur, they did not occur when the Applicant was actively performing defence duties. The Respondent cited the statement by the High Court in Roncevich v Repatriation Commission[74] (Roncevich) that, while the use of the disjunctive in the phrase “arose out of or was attributable to, any defence service” in s 70(5) of the VEA “manifest[s] a legislative intention to give ‘defence-caused’ a broad meaning”, the Court confirmed that there still needs to be a causal connection and not just a temporal one.[75]
(b)The Respondent referred to a number of judgments and AAT decisions which, it said, provide guidance as the connection to defence service that a claimant needs to establish. The Respondent cited Smith and Repatriation Commission[76] (Smith), whereby the Tribunal considered that the principles that have arisen in cases like Comcare v PVYW[77] (PVYW) and Hatzimanolis v ANI Corporation Ltd[78] (Hatzimanolis) can be relevant to the application of the causation test in VEA s 70(5).
(c)The Respondent said that, applying the principles which emerge from the cases that it cites, neither the car incident nor the bar incident occurred at place which the Army had induced or encouraged the Applicant to attend. Accordingly, if the Applicant does suffer PTSD or AUD as a result of either incident, it is not defence-caused.
[73] Respondent’s closing submissions paras 54–64.
[74] (2005) 222 CLR 115; [2005] HCA 40 (Roncevich) at [27].
[75] Roncevich at [23].
[76] [2015] AATA 786 (Smith).
[77] (2013) 250 CLR 246; [2013] HCA 41 (PVYW).
[78] (1992) 173 CLR 473; [1992] HCA 21 (Hatzimanolis).
The Applicant did not seek to adduce further evidence on the new argument, but did address it in his reply to the Respondent’s closing submissions as follows:
(a)At the time of the incidents the Applicant was on an operational deployment in Malaysia.
(b)It is incorrect to put forward the idea that incidents occurred in a normal exercise or work environment (presumably for a deployment in Butterworth) given the restrictions on travel and the need to sign in and sign out when leaving the base.
(c)The Applicant’s “travel to and from work” was when he was deployed from home to the base and then when he returned from Malaysia to home (presumably in Australia).
(d)The Applicant thought that he was provided coverage under the VEA.
(e)The incidents would not have occurred “but for his military service”.
CONSIDERATION
The standard of “reasonable satisfaction” under s 120(4) of the VEA was discussed in Repatriation Commission v Smith[79] wherein Beaumont J said that a decision-maker must ask:
... itself whether on the facts of the case, it was, persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other (see Re Repatriation Commission and Delkou (No 2) (1986) 4 AAR 344; Re Easton and Repatriation Commission (1987) 6 AAR 558; Re Repatriation Commission and Falkner (1987) 12 ALD 87.[80]
[79] (1987) 15 FCR 327.
[80] Repatriation Commission v Smith (1987) 15 FCR 327 at 335.
Section 120(4) of the VEA must be read with s 120B of the VEA, which applies to the Applicant’s claims as they are claims made under Part IV relating to defence service other than peacekeeping service, hazardous service or British nuclear test defence service.
As noted at [24] above, there are two relevant SOPs in the present case, SOP 49 relating to AUD and SOP 83 relating to PTSD.
Relevantly, in Repatriation Commission v Money,[81] Dowsett J, of the Federal Court observed, at [87], that:
The logical starting point is identification of the connection. It is to be found in the material before the Tribunal, not in the statement of principles. However, in practice, it may be convenient to start with the statement of principles simply because it may help the Commission to identify relevant aspects of the material which it must consider. Nonetheless, the connection must have a factual basis demonstrated in such material. …
[81] (2009) 173 FCR 410; [2009] FCAFC 11.
In Repatriation Commission v Bey[82] (Bey), the majority of the Full Court of the Federal Court (Northrop, R D Nicholson, Sundberg, Marshall and Merkel JJ) held that it is not sufficient for a medical practitioner to suggest that the cause of a condition was “a possibility”. The opinion expressed by the practitioner must have “pointed to” the hypothesis advanced before it could raise a reasonable hypothesis connecting a condition with defence service. Their Honours later relevantly concluded that:
The primary judge erred in law in holding that the mere possibility of a connection between war service and the [veteran’s] disease constitutes a reasonable hypothesis. ...[83]
[82] (1997) 79 FCR 364; [1997] FCA 1347 (Bey).
[83] Bey at 375.
Nicholson J made some similar points in a separate judgment in Bey, stating:
(1)For a reasonable hypothesis to arise, what is required is more than a mere hypothesis. Something more than a possibility consistent with the known facts is required: East at 531.
...
(4) ... there must be some material which points to some fact or facts (the raised facts) which support the hypothesis and from which the hypothesis can be regarded as reasonable if the raised facts are true: Bushell at 414. It is from the evidence that the raising of a reasonable hypothesis comes: Bushell at 427. This means the material before the Commission must raise some fact or facts which give rise to the hypothesis: Byrnes at 569-570 ...
...
(8)A “mere possibility”, in the sense of a hypothesis unsupported by any evidence of a witness with appropriate expertise to give it acceptability or credibility, cannot qualify as a reasonable hypothesis – it will not be an hypothesis “raised by the facts” ...[84]
[84] Bey at 376–7.
PTSD
Paragraph 3(b) of SOP 83 relevantly provides:
For the purposes of this Statement of Principles, "posttraumatic stress
disorder" means a psychiatric disorder which meets the following
criteria (derived from DSM-5):
A.Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:
(i)directly experiencing the traumatic event(s);
(ii)witnessing, in person, the event(s) as it occurred to others;
(Original emphasis.)
Paragraphs 5 and 6 of SOP 83 relevantly provide:
Factors that must be related to service
5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6.The factor that must exist before it can be said that, on the balance of probabilities, posttraumatic stress disorder or death from posttraumatic stress disorder is connected with the circumstances of a person’s relevant service is:
(a)experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder; or
(b)experiencing a category 1B stressor before the clinical onset of posttraumatic stress disorder; or
(c)having a significant other who experiences a category 1A stressor within the six months before the clinical onset of posttraumatic stress disorder; or
…
(Original emphasis.)
Stressors are relevantly defined in SOP 83 para 9 as follows:
9.For the purposes of this Statement of Principles:
"a category 1A stressor" means one of the following severe traumatic events:
(a)experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor” means one of the following severe traumatic events:
(a)…
(b)being an eyewitness to a person being killed or critically injured;
…
(e)viewing a corpse or a critically injured casualty as an eyewitness; …
(Original emphasis.)
It is most often the case that in applications before the Tribunal there is conflicting expert medical opinion as to whether an applicant has the particular condition. In this case, however, the expert opinions of both Dr Jansen and Dr Trivedi are that the Applicant meets the criteria for PTSD set out in para 3 of SOP 83, which reflects the criteria for PTSD in DSM-V. Both doctors in forming their opinions relied on the history provided to them by the Applicant. That history included the Applicant’s account of both the car incident and the bar incident. Both of the doctors’ diagnoses of PTSD under SOP 83 and AUD under SOP 49 relied on the car incident and/or the bar incident as being category 1A or 1B stressors.
While the Respondent disputes that the Applicant has PTSD, it argues that if the Tribunal were to find that the Applicant does have PTSD then the PTSD and the AUD (which the Respondent concedes the Applicant has) are not defence-caused. The bases of the Respondent’s contentions are set out in [47] and [48] above.
The new argument
The Respondent refers to a number of authorities to support the new argument. The first case to which the Respondent refers is the AAT decision in Smith. In that case the applicant, a member of the Royal Australian Navy, sought to rely on a category 1A stressor which occurred while he was on shore leave in Trincomalee in Sri Lanka and a category 1B stressor following a second incident that occurred in Bombay (now Mumbai). The first incident occurred when he and a shipmate hired motorbikes and went sight-seeing outside the city. They were stopped by armed police or militia who tried to extract money from them and threatened them with weapons. The Tribunal in that case was satisfied that the incident was a category 1A stressor for the purposes of SOP 83 because the applicant was threatened with a weapon.
In the second incident, while returning to the ship from an onshore function for the crew put on by the Indian Navy, the Applicant went shopping and witnessed a pedestrian being killed in an horrific manner. The Tribunal accepted that this incident constituted a category 1B stressor. Having reviewed the relevant authorities, in particular the High Court’s judgment in Hatzimanolis, the Tribunal concluded that the first incident, which occurred when the applicant was sight-seeing, did not arise from the his defence service because “… [the Tribunal] [does] not think the Navy could really be said to have induced or encouraged sailors to engage in sightseeing and shopping during shore leave, even if the opportunity to do so was a valuable perquisite that yielded collateral benefits for the Navy”.[85] The Tribunal, however, found that the second incident, which occurred while the applicant was shopping on his way back from the Indian Navy function, was attributable to his defence service; “… the applicant was required to leave the ship and attend a luncheon engagement, it could be argued … [that the applicant] was on the road where he might witness the incident because he was induced or encouraged to be there”.
[85] Smith at [28].
The Respondent refers the Tribunal to the following passage for the High Court judgment in Hatzimanolis at [11]:
[T]he modern cases show that, absent gross misconduct on the part of the employee, an injury occurring during such an interval or interlude will invariably result in a finding that the injury occurred in the course of employment. Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment “and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen”.[86]
[86] Citing Danvers v Commissioner for Railways (1969) 122 CLR 529 at 537.
The Respondent then refers to the consideration of Hatzimanolis in PVYW and the following passage from that judgment:
For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential inquiry is then: how was the injury brought about? In some cases, the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant. When an activity was engaged in at the time of the injury, the question is: did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.[87]
[87] PVYW at [38].
The Respondent points to applications of that principle in various cases. In Roncevich the applicant serviceman fell out of a window while intoxicated having consumed alcohol in the Sergeant’s Mess. It was accepted that the resulting injury was defence service related because there was a requirement and expectation that the applicant attend the Sergeant’s Mess and consume some quantity of alcohol.
In Comcare v Mather and Mitchell[88] (Mather), two members of the Army were serving in the Northern Territory and had a night out. The Army had specifically directed that they avoid certain pubs but could otherwise use local leave within a particular area. They were hit by a car as they returned from one of the pubs that they were permitted to attend. The Court found that the employer had induced or encouraged the participation in activities which placed them on the road at the time of the accident by the grant of local leave and the nature of the leave.
[88] (1995) 56 FCR 456 (Mather).
In Simpson and Repatriation Commission[89] (Simpson), the applicant claimed to suffer from PTSD and AUD following a brawl involving knives at a St Kilda hotel while he was on shore leave. The Respondent says that the Tribunal found that this did not arise out of and was not attributable to his service. The applicant and his friend had become involved in a physical argument with another group, and this was unconnected to his defence service.
[89] [2018] AATA 343 (Simpson).

While that was the finding of the Tribunal in Simpson, it primarily found that the applicant did not suffer from PTSD. For completeness, however, the Tribunal went on to cover the “theoretical scenario of the Tribunal accepting” that the applicant did suffer from PTSD and that it was related to the hotel brawl.[90] The Tribunal reviewed the relevant authorities, including Roncevich, PVYW, Mather and Smith and concluded that, unlike the other cases where the facts disclosed some connection to the military service, either by virtue of the activity being undertaken or the geographical location, in that case “[T]his Applicant and his group of friends were on shore leave and that they were in a position of being able to do whatever they wanted to do” and “… bec[a]me involved in an argument, albeit a physical argument, with another group. As such, there cannot be any connection between the event comprising the 1974 St Kilda brawl and the Applicant’s defence service. Accordingly, the provisions of s 70(5)(a) are not met…”[91]
[90] Simpson at [150] onwards.
[91] Simpson at [161] and [162].
The circumstances in present case, in the Tribunal’s view, are different to those in Simpson and the other cases that found no sufficient connection between the applicants’ defence service and the stressor events. In the present case it seems on the evidence, bearing in mind that the new argument was only raised by the Respondent after the hearing, that, while the Army could not be said to have directed or even encouraged members of Rifle Company Butterworth to attend the nearby bars, the fact that serving members did so would have been known to the Army. As the Applicant noted in his reply to the new argument (see [50] above), there were restrictions on where the members could travel, and they had to sign in and sign out when leaving the base. There is no suggestion that the bar at which the bar incident occurred was off-limits to the servicemen. The Applicant’s evidence in cross-examination was:
COUNSEL:     Did people from the Army, aside from Mr Hayes, Mr Koolmister and    Mr Dillon, did people from the Army know that you were out drinking   with Mr Hayes that night?
APPLICANT:   Well, I assume so. You got to sign out before - you sign the book    before you go.
COUNSEL:     Do you have to indicate where you’re going?
APPLICANT:   Yes. Because we were on call 24 hours.
COUNSEL:     How did they contact you if you needed to come back?
APPLICANT:   God knows.
COUNSEL:     If you were on call 24 hours, was it acceptable to be out drinking?
APPLICANT:   It was, yes. Well, everyone did it. God knows what use we’d be if    we’re - did get called back.[92]
[92] transcript at 56.
The Respondent has not contested the Applicant’s evidence that he and the others were “on call 24 hours”. Arguably, the Applicant was therefore on active service, albeit away from the base, at the time of the bar incident.
The other significant difference between the circumstances of the Simpson case and the Applicant’s case is that, if the Applicant and Mr Dillon’s evidence about how the bar incident unfolded is accepted, the Applicant and his colleagues were targeted and attacked because they were members of the Australian Defence Force. The Applicant’s evidence was that:
…we were told to dress up and try and blend in, even though we’re doing that they knew we were Army or RAAF.[93]
[93] transcript at 47.
When asked why he thought that he and the others had been attacked, Mr Dillon’s evidence was that:
… I think the Malays were waiting for something to happen, for somebody to walk in, give them a hard time. We just happened to be the four that walked in. And we wore the brunt of it. That could have happened to anyone else. Whether they were dirty on us, you know, being in Penang, or whatever the reason was. Yes, so – yes, that’s it.[94]
[94] transcript at 85.
The circumstances of the present case are, in the Tribunal’s view, distinguishable from the circumstances of the Simpson case and the first incident in the Smith case in which each Tribunal found a lack of connection between the incidents and the respective applicants’ defence service. In the present case the Tribunal notes that if the Applicant’s and Mr Dillon’s evidence about being attacked by Malay nationals is accepted, they were targeted because they were members of the Australian Defence Force. That, in the Tribunal’s view, is a sufficient connection between the bar incident and the Applicant’s defence service.
The other answer to the new argument raised by the Applicant in his reply to the Respondent’s closing submissions, albeit somewhat cryptically (see [50](e) above), are the provisions of ss 70(5)(c), 70(7) and/or 196B(14) of the VEA (see [15] and [23] above).
Justice von Doussa in Roncevich v Repatriation Commission[95] (Roncevich (2001)) found that:
Paragraphs (14) (b) and (e) [of s 196B(14) of the VEA] express the same causal requirements which must be fulfilled under the eligibility for pension provisions of ss 70(5)(a) and 70(7) of the Act.[96]
[95] [2001] FCA 1320 (Roncevich (2001)).
[96] Roncevich (2001) at [16].
The test in s 70(7) and s 196B(14) of the VEA is a wider causation test than that under s 70(5). In considering the role played by s 196B(14) of the VEA, Mansfield J in Roncevich v Repatriation Commission[97] at [27] observed that:
… [Section] 196B(14) defines when a factor causing, or contributing to, an injury, disease or death is "related to service" as that expression is used in subs 196B(2), (3) and (11). I do not consider it alters, or is intended to alter, the primary provisions by virtue of which an entitlement to a pension for incapacity under the Act is specified. That entitlement, for present purposes, is determined under s 70(1) and s 70(5) of the Act, … Thus, not surprisingly, s 196B(14)(b) and s 196B(14)(e) as applicable to the Authority in performing its functions under s 196B mirror in practical terms s 70(5)(a) and ss 70(5)(c) and (7).
[97] [2002] FCA 1458.
The question, therefore, is whether the Applicant has a claim based on s 70(5)(c), which, in turn, invokes s 70(7). The question to be asked under s 70(7) is whether the Applicant would not have acquired PTSD arising out of the bar incident but for his defence service, or for the change in the Applicant’s environment as a result of his defence service (assuming that the bar incident occurred as claimed and that the diagnoses of Dr Jansen and Dr Trivedi are accepted). It is difficult to see how the answer to that question could be anything other than he would not have acquired PTSD (making the aforementioned assumptions) but for his defence service and/or the change in his environment resulting from that service. In simple terms, but for his defence service he would not have been in Malaysia and would not have been exposed to the attack.
Accordingly, the Tribunal does not accept the new argument. If the Applicant and Mr Dillon’s evidence of the bar incident is accepted, and it is accepted that the Applicant and his colleagues were attacked because they were Australian servicemen, then there is a sufficient connection between the Applicant’s defence service and the stressor event. In any event, independently of that connection, the Applicant would not have been exposed to the bar incident but for his defence service, or for the change in his environment as a result of his defence service. Section 70(7) of the VEA operates to treat any incapacity caused by the bar incident to be defence-caused.
Did the Applicant experience a category 1A or 1B stressor?
As noted above, the Applicant’s claims under both SOP 83 and SOP 49 rely on his being exposed to category 1A or 1B stressors. The definitions of category 1A and 1B stressors under SOPs 83 and 49 are materially the same (see [59] above).[98]
[98] See also SOP 49 sch 1.
As also noted above, the Applicant’s case at the hearing and in his closing submissions came down to the exposure to the bar incident as being the relevant stressor. The evidence of Dr Jansen was that, although the car incident may have been a pre-disposing factor to PTSD, it was not the event that precipitated the PTSD (see [38](c) above).
The Respondent says that it is open to the Tribunal to find that the bar incident did not happen or, alternatively, did not happen in the manner described by the Applicant or, in the further alternative, did not have the consequences claimed by the Applicant. For the reasons set out below the Tribunal agrees with the Respondent’s submission.
The first description that we have of the bar incident is that recounted in Dr Jansen’s report dated 22 November 2017.[99] The history given by the Applicant to Dr Jansen on 9 November 2017 refers only to the Applicant and Mr Hayes being involved in the bar incident. At the hearing Dr Jansen agreed that it was surprising that the Applicant had not mentioned that there were four soldiers involved in the bar incident rather than two (see [38](k) above). He found it surprising that the Applicant did not report the bar incident and did not check on the welfare of Mr Hayes (see [38](h) and [38](j) above).
[99] R18, T25.
Elements of the Applicant’s evidence at the hearing about the bar incident and the evidence of Mr Dillon are also difficult to reconcile. The Applicant’s evidence was that he had to “drag” a “severely injured” Mr Hayes about 60 metres up the alley to a taxi[100] and that he did not look back to see what happened to Mr Dillon and Mr Koolmister.[101] Mr Dillon’s evidence, however, was that after fighting the 20 Malaysians for about 10 minutes, he and Mr Koolmister called out “Let’s go!”[102] and that the four of them all exited the alley at the same time. For some reason it seems that none of the attackers followed them up the alley. Also, on Mr Dillon’s evidence, it does not appear that he or Mr Koolmister assisted the Applicant to “drag” the “severely injured” Mr Hayes up the alley to a waiting taxi. Mr Dillon’s evidence was that he and Mr Koolmister were “further, up to the back of the alleyway”[103] but that he and Mr Koolmister got to the top of the alley before the Applicant and Mr Hayes, meaning that Mr Dillon and Mr Koolmister would have had to have gone past the Applicant and Mr Hayes to get to the top of the alley first. Mr Dillon’s evidence was that there were two taxis waiting at the top of the alley and the he and Mr Koolmister got into one taxi before the Applicant and Mr Hayes got into the other taxi. He said that the Applicant would have seen him and Mr Koolmister getting into the tax because they were just behind them and only about five metres apart at that point.[104]
[100] transcript at 39, 53.
[101] transcript at 54.
[102] transcript at 86
[103] transcript at 81–2.
[104] transcript at 87.
Mr Dillon’s evidence was that, notwithstanding that all four apparently reached the top of the alley only metres apart and got into separate taxis at the top of the alley at the same time, neither he nor Mr Koolmister spoke to the Applicant or Mr Hayes as they got into the taxis or, apparently, when Mr Dillon and Mr Koolmister passed the Applicant and Mr Hayes in the alley. He said that he just assumed that the Applicant and Mr Hayes were going to “the hospital in Penang”.[105] The Tribunal finds that evidence hard to accept. It is not, in the Tribunal’s view, credible that Mr Dillon and Mr Koolmister would have run past the Applicant and the seriously injured Mr Hayes without even speaking to them, let alone assisted in getting Mr Hayes to the street. Further, the Tribunal finds it hard to accept that there would have been no conversation between Mr Dillon and Mr Koolmister and the Applicant and Mr Hayes as they exited the alley and got into the taxis five metres apart. It is also hard to accept that the 20 Malaysian attackers, who had so savagely pounced on the four soldiers with knives and bottles as soon as they stepped out of the side door of the bar, apparently let the four of them leave the alley without any sort of pursuit.
[105] transcript at 86.
The other element of the Applicant’s and Mr Dillon’s evidence that the Tribunal has difficulty accepting is that there was no explanation, or at least no sufficient explanation, as to why the four soldiers simply did not go back into the bar when they were attacked as soon as they left the side door. Mr Dillon’s cross-examination on that question was as follows:
COUNSEL:     Is there any reason why you didn’t turn around and go back into the   bar for safety?
MR DILLON:   Because there was people behind us as well. There’s people inside,    in the bar, and we left to go out the side door, and then we were hit   by the other people at the side door.
COUNSEL:     Who were the people behind you in the bar?
MR DILLON:   Well, the people we were drinking with while we were at the bar.
COUNSEL:     Did they follow you out of the exit?
MR DILLON:   I’m not 100 per cent sure on that. The way we looked at it was: the    quickest way out of the joint was the side door in case there’s people   out the front waiting for us. There’s something going on.[106]
[106] transcript at 81.
The Applicant was cross-examined on the same issue as follows:
COUNSEL: How come you didn’t go back in the side door to safety in the bar?
APPLICANT: Because Bernie was stabbed.[107]
[107] transcript at 52.
Neither the Applicant’s nor Mr Dillon’s answer was, in the Tribunal’s view, a reasonable explanation as to why they simply did not turn around and go back into the bar when they were attacked.
The other aspect of the Applicant’s and Mr Dillon’s evidence, but in particular the Applicant’s evidence, which does not ring true is the lack of any report of the incident or follow-up on the welfare of Mr Hayes. The Applicant’s evidence was that he thought that the attackers were insurgents,[108] yet he did not think it worth reporting to his superiors that he and his three colleagues had been attacked, with one severely injured, by insurgents in what was effectively a co-ordinated set-up. His evidence was that “in hindsight” he now thinks it was worth reporting.[109] In the Tribunal’s view it would not take the benefit of hindsight to work out that the incident, if it had happened as claimed by the Applicant, was something that clearly should have been reported. The Tribunal does not accept his explanation given in cross-examination that he:
… was told to keep out of trouble. I didn’t know whether I was going to land in trouble for being there.[110]
[108] transcript at 38; Dr Jansen’s report of 22 November 2017, R18, T25/82.
[109] transcript at 68.
[110] transcript at 69.
That is not a sufficient reason for failing to report such a serious incident which carries obvious security ramifications for the whole Company. There was no explanation provided by the Applicant as to why he would get into trouble for being at the bar. His evidence was that the Army knew where he and his colleagues were because they had to sign in and sign out of the barracks (see [70] above).
A further inexplicable aspect of the Applicant’s evidence (and to a degree, also Mr Dillon’s evidence) is the complete lack of any follow up as to Mr Hayes’ condition. If the Applicant’s version of events following the bar incident is to be believed, he delivered his supposedly seriously injured best friend to the hospital on the night of the bar incident, asked the staff to look after him but made no enquiries as to how he was over the following weeks. He could not recall the next time that he saw Mr Hayes after he got out of hospital or whether he even asked Mr Hayes how he was in the aftermath the attack.[111] Dr Jansen thought that such a reaction “would be unusual given [the Applicant’s] friendship with [Mr Hayes]” (see [38](j) above). The more plausible explanation is that the bar incident did not occur or did not occur as described by the Applicant or Mr Dillon.
[111] transcript at 55.
The Respondent contends that even if the bar incident (or some version of it) did occur, the Applicant was not exposed to actual death or serious injury.[112] The Respondent further contends that while the bar incident, if it occurred as claimed, could be objectively capable of comprising a threat of serious injury, the Applicant himself did not subjectively perceive the bar incident to be life-threatening or as posing a threat of serious injury.[113] This lack of perception of a relevant threat is supported, according to the Respondent, by the Applicant’s failure to report the incident, his failure to enquire about the welfare of Mr Hayes, his lack of any concern for the welfare of Mr Dillon or Mr Koolmister and his failure to raise this incident with any of his treating doctors for approximately 40 years.
[112] Respondent’s closing submissions para 18.
[113] Respondent’s closing submissions paras 24–5.
There is force in the Respondent’s submissions. They do, however, concentrate on the lack of a threat to life which is the factor relevant to para (a) of a category 1A stressor under both SOPs. Paragraph (b) of a category 1A stressor, however, requires only that the person be subject to a serious attack or assault and para (c) of a category 1A stressor requires only a threat with a weapon. There is no reference in either of those paras to a requirement for an objective or subjective perception of a threat to life or threat of serious harm. The bar incident as described by the Applicant and Mr Dillon involved what could readily be described as a serious assault and, not only the threat of, but the actual use of, weapons. Accordingly, irrespective of whether the bar incident as described by the Applicant and Mr Dillon (or any version involving an attack by multiple assailants and the use of knives and broken bottles) was subjectively considered by the Applicant to be life-threatening, it would still come within the definition of a category 1A stressor under paras (b) and (c) of the definition.
However, the Tribunal is not reasonably satisfied that the bar incident as described by the Applicant and Mr Dillon, or any similar version thereof, occurred. Further, while the event relied on as a category 1A or 1B stressor does not necessarily need to have been life-threatening or constitute a threat of serious harm, it does need to be the event which has (in this case) caused the psychological condition. In the case of the PTSD, it must be the traumatic event which gives rise to the disorder as described in para 3 of SOP 83. The Tribunal is not reasonably satisfied that this is the case.
The bar incident occurred in November 1978. While the Applicant had been treated for various medical conditions over the period since his discharge from the Army in January 1980, it was not until June 2017 that his treating general practitioner, Dr Chiddick, sought an opinion on whether the Applicant may suffer from PTSD.[114] Dr Chiddick was treating the Applicant for an anxiety disorder which, according to Dr Chiddick, had been diagnosed by the Applicant’s general practitioner when he was in his 40s. Dr Chiddick advised that the Applicant had reported upsetting memories, flashbacks, difficulty sleeping and nightmares following his years of service. This request for an opinion was made at the time that the Applicant was making an application for new disability payments from the DVA for several conditions[115] and shortly preceded the DVA request for a report which resulted in Dr Jansen’s report dated 22 November 2017.
[114] R18, T15/57.
[115] R18, T14.
Accordingly, there is a gap of nearly 40 years between the bar incident and the Applicant linking PTSD, or potential PTSD, to the bar incident. Even when the Applicant was diagnosed with PTSD by Dr Jansen in November 2017, he did not seek any treatment for that condition until after the original decision to reject the Applicant’s claim was made in May 2018. He was then treated for about one year by Dr Trivedi,[116] however, that treatment ceased in August 2019 when the Applicant moved away from Perth. The causal link between the bar incident and the Applicant’s diagnosed PTSD must be weakened by the fact that the connection was not made by the Applicant himself or any of his treating doctors for some 40 years, during which time the Applicant suffered from a range of physical and other diagnosed psychological ailments, including AUD and an anxiety disorder.
[116] R18, ST8/1535.
AUD

Paragraph 7 of SOP 49 relevantly provides:
Meaning of alcohol use disorder
(2) For the purposes of this Statement of Principles, alcohol use disorder means a disorder of mental health meeting the following diagnostic criteria (derived from DSM-5):
A problematic pattern of alcohol use leading to clinically significant impairment or distress, as manifested by at least four of the following, occurring within a 12-month period: …
(Original emphasis.)
SOP 49 sub-paras 7(2)A to K list the symptoms of AUD. In order to make a diagnosis of AUD at least four of these symptoms must have been present during a 12-month period. In his report dated 22 November 2017,[117] Dr Jansen identifies the four characteristics from sub-paras A to K which he considered relevant.[118] Similarly, in his report dated 15 February 2019, Dr Trivedi identified the Applicant as meeting seven of the symptoms described in sub-paras 7(2) of SOP 49.[119]
[117] R18, T25.
[118] R18, T25/86.
[119] R18, T47/189.
Paragraph 9 of SOP 49 relevantly provides:
At least one of the following factors must exist before it can be said that, on
the balance of probabilities, alcohol use disorder or death from alcohol use
disorder is connected with the circumstances of a person's relevant service:
(1)    having a clinically significant disorder of mental health as specified at the time of the clinical onset of alcohol use disorder;
Note: clinically significant disorder of mental health as specified is defined in the Schedule 1 - Dictionary.
(2)    experiencing a category 1A stressor within the two years before the
clinical onset of alcohol use disorder;
Note: category 1A stressor is defined in the Schedule 1 - Dictionary.
(3)    experiencing a category 1B stressor within the two years before the clinical onset of alcohol use disorder;
Note: category 1B stressor is defined in the Schedule 1 - Dictionary.
…
(Original emphasis.)
In response to the specific question posed in the letter of referral from the DVA asking Dr Jansen to identify “…the date of onset of the condition/s”, Dr Jansen advised:
The date of onset of the condition is approximately six weeks into his time in Malaya specifically around October 1978.[120]
[120] R18, T25/87.
That answer is obviously incorrect if it is linking the onset of (apparently) both the AUD and the PTSD to the bar incident because that did not occur until November 1978. The Tribunal, however, assumes that what Dr Jansen is saying is that the onset of both conditions occurred immediately after the bar incident.
Dr Trivedi, in answer to the same question, advised in his report that:
Mr Caldow’s symptoms began immediately following a traumatic event… and therefore, the date of onset of his PTSD and the alcohol use disorder is in October 1978…
As noted earlier, unfortunately Dr Trivedi did not identify which event he considered to be the relevant stressor (see [39](d) above). Again, however, assuming that Dr Trivedi considers both the car incident and the bar incident, or a combination of both, to be the relevant stressor, the date of onset given by Dr Trivedi of October 1978 pre-dates the bar incident. The Tribunal will take Dr Trivedi to be saying that the onset of both conditions followed immediately upon the occurrence of the relevant stressor.
Some of the evidence given by Dr Jansen at the hearing relating to the date of onset of the conditions has been covered above (see [38](i)). His evidence at the hearing also included the following:
I think that in my report I estimated the date of onset as being approximately six weeks after they arrived in Malaysia because that’s the history that I obtained about the timing of the incident. If there was a delay, I mean, you know, the DSM allows for the category of post-traumatic stress disorder with delayed expression where for one reason or another suppression, repression or the use of addictive displacement activities, the full syndrome is not evident until later. So that could be possible but, as I said, that wasn’t the history that I obtained from Mr Caldow.[121]
[121] transcript at 100–101.
The above evidence being given by Dr Jansen in his evidence-in-chief was primarily, if not solely, dealing with the PTSD claim. It is therefore difficult to know upon what evidence Dr Jansen formed the view that the clinical onset of AUD was immediate upon the bar and/or the car incidents. He does not identify the history that was given to him by the Applicant, and does not elaborate as to what the relevant elements of that history were which caused him to consider that the clinical onset of AUD was immediate. This is particularly problematic when one considers that the relevant date to consider for the purposes of para 9 of SOP 49 is the date of the “clinical onset of alcohol use disorder” (see [99] above). While there is no definition of “clinical onset” of a condition in either the VEA or the SOP, presumably AUD, as that condition is defined in SOP 49, could not be considered to have clinical onset until the date when at least four of the factors identified in para 7(2) exist. Prior to that point the one, two or three individual symptoms identified in para 7(2) are just that: symptoms which may or may not develop into AUD for the purposes of the SOP.
The same comments apply to Dr Trivedi’s report and the identification therein of the date of the onset being (apparently) the date of the stressor event (whichever that was). There is no way for the Tribunal to assess the basis, let alone the correctness, of Dr Trivedi’s determination of the date of the onset of the AUD.
The Applicant’s own evidence[122] and the limited contemporaneous records before the Tribunal, do not support the conclusion as to the date of onset reached by Dr Jansen and Dr Trivedi.
[122]See [28], [29], [33](d), [33](i), [33](j), [33](k), [33](l), [33](m), [38](i), [47](c).
As noted at [29] above, unfortunately the Applicant’s statement (A2) which dealt with the Applicant’s life soon after his discharge from the Army in January 1980 did not identify the dates when the events referred to occurred. As a result, that statement is of little use in determining the date of onset of the Applicant’s AUD by the appearance of the factors identified in para 7(2) of SOP 49. There is, however, evidence to suggest that the clinical onset of the Applicant’s AUD was not immediate upon the occurrence of the bar and/or car incidents. This includes:
(a)The first time that the Applicant thought that something might be wrong was when he returned from Malaysia. He thought that it may have been a reaction to malaria tablets but “didn’t know it was the start of whether it’s going to be PTSD…”.[123] There is no mention of AUD.
[123] transcript at 36.
(b)The Applicant’s discharge medical records completed on his discharge from the Army in January 1980 make no mention of AUD or symptoms of AUD.
(c)The Applicant’s evidence that when he was discharged from the Army he spent months, if not years (it is difficult to tell because of the lack of specificity in the Applicant’s evidence) travelling around Australia during which time he continued to work. While his evidence was that by the time he was working in a sawmill in Denmark, he was drinking heavily on weekends to the point where he “felt as crook as a dog” on Mondays.[124] It appears that that was more than 12 months after his discharge from the Army which, given that he was discharged in January 1980 would make this sometime in early 1981. This is more than two years after the relevant stressor event, the bar incident in November 1978. It was not until after that time that he shifted to Meekatharra and started drinking, not turning up to work and split with his partner.[125]
[124] transcript at 42.
[125] transcript at 42, 62.
(d)The Applicant gave evidence that he could not say when there was a change in his condition and that he did not notice any change while he was in Malaysia.[126]
[126] transcript at 57.
(e)The Applicant referred to getting into trouble with bouncers and being short tempered, however, asked to recall when that was his evidence was that this incident had in fact been before he went to Malaysia. His evidence was that he, Mr Hayes and some mates had been involved in “an all-out brawl at the National Hotel where Bernie was slashed there as well - got his teeth knocked out there. And alls [sic] I seemed to have was just a little lump on the chin…”[127]
[127] transcript at 57.
(f)His evidence was also that before the bar incident it was his practice to drink heavily:
COUNSEL:       You’ve said that, on the night that Mr Mills was hit, you had    about 10 drinks. Was that normal for you and Mr Hayes when   you went out drinking?
APPLICANT:     Yes.
COUNSEL:       How often did you go out drinking?
APPLICANT:     When we were allowed to.[128]
[128] transcript at 57.
And in relation to the night of the car incident:
COUNSEL:       How much had you had to drink that night?
APPLICANT:     About 10 beers.
COUNSEL:       Was that about normal of how you drink when you go out with    your fellow soldiers?
APPLICANT:     Yes, normally.[129]
(g)His level of drinking did not increase while he was in Malaysia.[130]
(h)The Applicant had been in trouble for drinking and alcohol related offences before he was deployed to Malaysia. He conceded in cross-examination that he had been convicted for driving under the influence of alcohol when he was stationed in Brisbane prior to deployment to Malaysia and for being on possession of alcohol while in camp with the Army.
[129] transcript at 48.
[130] transcript at 40.
On the evidence, the Tribunal cannot be reasonably satisfied that, even if the relevant stressor event, the bar incident in November 1978, did occur as claimed by the Applicant, the clinical onset of the Applicant’s AUD was within two years. While the evidence is far from clear, it appears that the Applicant’s drinking did not reach the level or frequency or exhibit the characteristics necessary under para 7(2) of SOP 49 to be treated as a clinical onset of AUD until the Applicant was living in Meekatharra which was, on the timeline in [108] above, more than two years after November 1978 and therefore outside the required period for a stressor under para 9(2) of SOP 49.
In any event, the Applicant’s AUD claim faces the same hurdle in relation to stressors as his PTSD claim. It too relies on the existence of a category 1A stressor, the bar incident, which, for the reasons set out above, the Tribunal is not reasonably satisfied occurred.
Accordingly, the Applicant’s claims for PTSD and AUD must fail.
DECISION
The decision of the VRB dated 25 July 2019 which affirmed a determination of the Respondent dated 7 May 2018 rejecting the Applicant’s claimed PTSD and AUD on the basis that they were not defence-caused for the purposes of s 70(5) of the VEA is affirmed.

I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...[SGD].....................................................................
Associate
Dated: 20 April 2021

Date of hearing: 20 October 2020 and 21 October 2020

Advocate for the Applicant: Mr M Quinn

Counsel for the Respondent: Ms A Ladhams

Solicitors for the Respondent: Australian Government Solicitor

Date of hearing:	20 October 2020 and 21 October 2020
Advocate for the Applicant:	Mr M Quinn
Counsel for the Respondent:	Ms A Ladhams
Solicitors for the Respondent:	Australian Government Solicitor