Chesterfield and Military Rehabilitation and Compensation Commission (Compensation)

[2016] AATA 224

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL            )

)                   2014/6353
VETERANS’ APPEALS DIVISION  )                   

Re:Timothy Chesterfield

Applicant

And:Military Rehabilitation and Compensation Commission

Respondent

CORRIGENDUM TO DECISION [2016] AATA 224

The Tribunal amends its decision of 8 April 2016 as follows:

1.in [2], fourth line by deleting “1962 and 1964” and inserting “1992 and 1994”.

…………[sgd]……………..
S A FORGIE
Deputy President

Chesterfield and Military Rehabilitation and Compensation Commission (Compensation) [2016] AATA 224 (8 April 2016)

Division:  VETERANS’ APPEALS DIVISION

File Number:  2014/6353

Re:  TIMOTHY CHESTERFIELD

APPLICANT

And:MILITARY REHABILITATION AND COMPENSATION COMMISSION

RESPONDENT

DECISION

Tribunal  Deputy President S A Forgie

Date  8 April 2016

Place  Melbourne

The Tribunal decides to:

affirm the reviewable decision of the respondent dated 25 November 2014 disallowing the applicant’s claim.

……[sgd]……………….

Deputy President

CATCHWORDS – COMPENSATION – notice – notice of injury – whether notice was given as soon as practicable – whether failure to give notice would prejudice MRCC – whether applicant failed to give notice by reason of ignorance, mistake or other reasonable cause – decision of MRCC affirmed

LEGISLATION

Military Rehabilitation and Compensation Act 2004 (Cth) s 3

Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (Cth) ss 7(1), 7(1)(a), 7(1)(b)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5(1), 5(3), 14(1), 37, 53, 53(1), 53(1)(a), 53(3), 141, 142(1)(a), 145(1), 147(1)(a)
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) s 3 and Schedule 1, Items 11, 41 and 42

CASES

Kioa v West [1985] HCA 81; (1985) 159 CLR 550; 62 ALR 321

REASONS FOR DECISION

1. Between 28 April 1989 and 26 April 1991, Mr Chesterfield served in the Navy Reserve Cadets where he obtained the rank of Senior Able Seaman Cook.  On 29 April 1991, when he was 16 years of age, he enlisted in the Royal Australian Navy (RAN) and was discharged at his own request on 8 July 1994. 

1. In a claim lodged on or about 20 December 2013 under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), Mr Chesterfield claimed compensation for a psychiatric condition, being depression, that he attributes to abuse he alleges he suffered during his service in the RAN while training at HMAS PLATYPUS between 1962 and 1964.[1]  He provided supporting documentation.  The Military Rehabilitation and Compensation Commission (MRCC) wrote requesting further information to support his claim.  When Mr Chesterfield failed to provide any additional information after being given three opportunities to do so, the MRCC proceeded to make a decision on his claim.  A delegate of the MRCC refused his claim in a decision dated 8 April 2014 on the basis that she was not satisfied that Mr Chesterfield had been subjected to the alleged bullying and harassment on HMAS PLATYPUS.[2] Another delegate affirmed that decision on 25 November 2014. She did so on three grounds. One was that she was not satisfied that Mr Chesterfield had given notice of the injury to the RAN as soon as practicable after he became aware of it. By virtue of s 53 of the SRC Act, that meant that the legislation does not apply to his injury. Her second reason was that adopted by the delegate. The third was that she was not satisfied that his former employment in the RAN has contributed, to a material degree, to the injury for which he has claimed compensation.[3]

   [1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents); T14 at 47-54

   [2] T documents; T20 at 95-96

   [3] T documents; T33 at 152-156

1. The parties agreed that the issue arising under s 53 of the SRC Act should be determined as a preliminary issue. I have agreed for it is a discrete issue that is determinative of Mr Chesterfield’s claim for compensation if it is decided against him. I have decided that Mr Chesterfield did not give notice of his injury to the MRCC, or its predecessor in these matters, as soon as practicable after he became aware of the injury. I have also decided that the MRCC would be prejudiced by reason of his failure were I to treat his notice as sufficient notice. Finally, I have decided that he did not fail to give notice by reason of ignorance, mistake or from any other reasonable cause within the meaning of s 53(3) of the SRC Act. Therefore, as I have found that he did not give notice of his injury as required by s 53, I must apply s 53(1) and decide that the SRC Act does not apply to Mr Chesterfield. Consequently, I affirm the decision made by a delegate of the MRCC dated 25 November 2014 disallowing his claim.

THE ISSUES

1. There are three issues to be decided in this case.  The first is when Mr Chesterfield became aware of the injury for which he has claimed compensation.  The second is whether he has given notice of that injury to the MRCC.  If he did give that notice, the question becomes: Did Mr Chesterfield give it as soon as practicable after he became aware of the injury?  If not, can the notice he did give be treated as sufficient notice on the basis that the MRCC would not be prejudiced if that were so.  Should the MRCC be prejudiced, the final question is whether Mr Chesterfield’s failure to give notice resulted from ignorance, a mistake or from any other reasonable cause.

OUTLINE OF SUBMISSIONS

1. It is clear, Mr Turner submitted, that Mr Chesterfield is suffering from a psychiatric condition.  He relied on the evidence of Dr James Hundertmark, Consultant Psychiatrist,[4] Dr Chris Grant, Consultant Psychiatrist[5] and Ms Carla Lechner, Consultant Clinical and Forensic Psychologist.[6]  Mr Chesterfield first became aware of his injury on 23 May 1994 but was, at that time, ignorant of the fact that he could claim compensation.  There is a clear relationship between Mr Chesterfield’s service and his injury.

   [4] Exhibit G

   [5] T documents; T32 at 135-151

   [6] Exhibit 2

1. On behalf of the MRCC, Mr Wallace of counsel submitted that causation is not before me at this stage.  What is in issue is an assessment of the degree of prejudice that befalls the MRCC as a result of Mr Chesterfield’s giving it late notice of his injury.  If it is accepted that Mr Chesterfield believes that his injury was a consequence of his Naval service, his reasons for failing to give notice of that injury until 2013 are completely implausible and there is no reasonable basis for proceeding.  The prejudice suffered by MRCC as a result of his failing to give notice at the time he says he became aware of his condition is extraordinary.  MRCC is unable to locate witnesses and the authors of service records.  Mr Chesterfield did not say that he was ignorant of his rights, Mr Wallace submitted.  What Mr Chesterfield had said, Mr Wallace continued, was that he chose not to do anything about them.  He had made a conscious decision.

LEGISLATIVE FRAMEWORK

The inter-relationship of the MRCC and the SRC Act

1. Mr Chesterfield lodged his claim for compensation after 1 July 2004.  That is the date on which s 3 of the Military Rehabilitation and Compensation Act 2004 (MRCA) came into operation and is known as the “MRCA commencement date”.[7]  Mr Chesterfield’s claim is a “defence-related claim” within the meaning of s 141 of the SRC Act. That follows from the fact that he has made his claim under the SRC Act respect of an injury, loss to which the MRCA does not apply and that relates to defence service that occurred before 1 July 2004.[8] 

   [7] SRC Act; s 4(1)

   [8] SRC Act; s 141

1. The MRCA does not apply because, putting aside situations in which a claim relates to an aggravation of, or a material contribution to, a person’s injury or disease, or a sign or symptom of a person’s injury or disease:

   “The MRCA applies to a person’s injury, disease or death if:

   (a)  the injury is sustained, the disease is contracted, or the death occurs, on or after the commencement date; and

   (b)  the injury, disease or death either:

   (i)  relates to defence service rendered by the person on or after that date; or

   (ii)  relates to defence service rendered by the person before, and on or after, that date.

   Note:   …”[9]

Paragraphs 7(1)(a) and (b) must both be satisfied before the MRCA applies.  Mr Chesterfield’s circumstances do not come within paragraph 7(1)(b) as any injury he has sustained or disease he has suffered relates to defence service he rendered entirely before the commencement date of 1 July 2004.

[9] Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004; s 7(1)

1. Even though the MRCA does not apply to Mr Chesterfield’s circumstances, the Military Rehabilitation Compensation Commission (MRCC), rather than Comcare, has responsibility for determining defence-related claims under the SRC Act.[10]  In most instances, including those arising in this case, Part II of the SRC Act applies to defence-related claims as if references in that Part to “Comcare” were references to the MRCC.[11]

   [10] SRC Act; s 142(1)(a)

   [11] SRC Act; s 147(1)(a)

The SRC Act

1. Among other matters, the SRC Act provides for the rehabilitation of employees of the Commonwealth and of certain corporations as well as providing workers’ compensation for those employees and certain other persons. In so far as workers’ compensation is concerned, s 14(1) states that:

   “Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”

1. The word “employee” means:

   “(a)      a person who is employed by the Commonwealth or by a Commonwealth authority, whether the person is so employed under a law of the Commonwealth or of a Territory or under a contract of service or apprenticeship; or

   (b)       a person who is employed by a licensed corporation.”[12]

As Mr Chesterfield was a member of the Defence Force he is, for the purposes of the SRC Act, taken to have been employed by the Commonwealth.[13]

[12] SRC Act; ss 4(1) and 5(1)

[13] SRC Act; s 5(3)

1. As the condition in relation to which Mr Chesterfield has claimed compensation is a condition for which he first sought treatment in 2002, the definitions of the word “injury” and related expressions are those appearing in the SRC Act before their amendment by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (SRCOLA Act) in 2007.[14] At that time, s 4(1) provided that:

   “injury means:

   (a)  a disease suffered by an employee; or

   (b)  an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or

   (c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;

   but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”

   [14] SRCOLA Act; s 3 and Schedule 1, Item 11. The amendments apply to an injury or a disease suffered by the employee on or after the day on which the SRCOLA Act received Royal Assent i.e. 12 April 2007: SRCOLA Act; s 3 and Schedule 1; Items 41 and 42. In the case of a disease that has not resulted in death, an employee is taken to have sustained it on the day when the employee first sought medical treatment for it or for aggravation: SRC Act; s 7(4).

1. A “disease” was defined in s 4(1) at the relevant time:

   “In this Act:

   disease means:

   (a)  an ailment suffered by an employee; or

   (b)  an aggravation of such an ailment;

   being an ailment or an aggravation that was contributed to in material degree by the employee’s employment by the Commonwealth or a licensed corporation.”

1. Part V of the SRC Act is concerned with claims for that compensation. Section 54(1) provides that compensation is not payable under the SRC Act unless a claim for compensation is made by or on behalf of the person under that section. No time is prescribed for the lodgement of a claim but there is another step that must be taken before the SRC Act may apply to an injury and it does have a time limit. That step is found in s 53(1), which provides:

   “This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:

   (a)  as soon as practicable after the employee becomes aware of the injury; or

   (b)  if the employee dies without having become so aware or before it is practicable to serve such a notice—as soon as practicable after the employee’s death.”

The “relevant authority”, to which reference s 53(1) refers is, in relation to an employee such as Mr Chesterfield who has made a defence-related claim, a reference to the MRCC.[15]

[15] SRC Act; s 145(1)

1. Section 53(3) qualifies the operation of s 53(1) and provides:

   “Where:

   (a)  a notice purporting to be a notice referred to in this section has been given to the relevant authority;

   (b)  the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and

   (c)  the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;

   the notice shall be taken to have been given under this section.”

THE EVIDENCE

Naval career

1. Despite having difficulty in meeting the physical training aspects of the course, Mr Chesterfield graduated from the recruit training course at HMAS CERBERUS on 19 July 1991.

1. Following his graduation, Mr Chesterfield commenced training at the RAN’s Communication School.  He had trouble with Morse Code and, up to 17 September 1991, had not passed a Morse Code lesson at the school.  This continued to be the case and the RAN allowed him to undertake further training in order to assist him to reach the required level of skill.  In September 1991, he had received a formal warning from Lieutenant Shaw after he had failed his third Morse Code test.  Mr Chesterfield said that he did not recall receiving a formal warning at that time.  He agreed that it was a very worrying time for him.  Mr R Sinclair, Naval Psychologist, had reported at the time that he did not think that Mr Chesterfield’s difficulties with Morse were due to any lack of effort on his part.  He was using his study time effectively and had expressed confidence that he would meet the required standard by the review date on 18 October 1991.[16]  At the end of October 1991, he had surgery to remove four wisdom teeth.[17]  Mr Chesterfield said that he felt that the course was concerning but he did not feel that he was suffering depression at that time.

   [16] T documents; T34 at 211-212

   [17] T documents; T34 at 214-215

1. By 18 November 1991, the view had been reached that Mr Chesterfield would not be able to meet the standard at any time.[18]  On the following day, Mr Chesterfield was interviewed so that he could consider his options given his failure to obtain a satisfactory statement with Morse Code.  Mr Chesterfield’s primary goal was said to be to remain with the RAN although he recognised that discharge might be a reality given that he could not meet the standard.  He was noted as having made an honest attempt to learn a difficult subject and to be a well-regarded sailor who appeared to have adapted well to all other areas of Navy life.[19]  His Divisional Officer noted the report and directed Mr Chesterfield to have work experience in the Cookery Department pending a decision on his future.[20]  He worked in the Cookery Department between 2 and 6 December 1991.[21]

   [18] T documents; T34 at 211-212, 217 and 221-222

   [19] T documents; T34 at 218

   [20] T documents; T34 at 222

   [21] T documents; T17 at 80

1. He was having difficulty with Morse Code and he agreed with the proposition that it was not a happy time for him.  Despite that, he said, he wanted to “stick it out”. 

1. On 13 January 1992, Mr Chesterfield reported to a Medic for treatment saying that he had been set upon by two sailors known to him.  In a medical record dated 14 January 1992, he was recorded as having been hit in his right eye and had been head butted on the left side of his forehead.  Mr Chesterfield was restricted to light duties for the following three days.[22]

   [22] T documents; T34 at 234-237

1. On 30 March 1992, Mr Chesterfield was posted to the Basic Cook Course.  This was followed on 17 August 1992 by his posting to HMAS PLATYPUS for submarine training.  Mr Chesterfield was unable to undertake submarine escape tank training due to his weight and also failed a module of the course.  Mr Chesterfield’s weight continued to increase and he was referred to a dietician in March 1993.  In August 1993, he sat a retention test where he failed four of the five modules in the test.  Therefore, he was unable to complete Part 1 of his training. 

1. On 25 August 1993, Lieutenant Downes noted Mr Chesterfield’s service history to that point and recommended that he be discharged from the RAN in view of his continuing weight problem, his poor attitude to naval life and his failures whilst under training.[23]

   [23] T documents; T34 at 306-307

1. When interviewed by a Navy Psychologist, A M Tych-Iremonger, on or about 31 August 1993, Mr Chesterfield acknowledged that he had not adjusted to the demands of Navy life.  He attributed his difficulties to his mother’s being run over by a car and suffering a leg injury and to his experiencing financial difficulties.  Both of those problems had been resolved by the time of the interview, Mr Chesterfield told him.  The Psychologist noted Lieutenant Downes’ recommendation but thought that Mr Chesterfield could go to sea as a cook.  Therefore, he recommended that Mr Chesterfield be transferred to General Service for a probation period of six months.  Should he not meet the standards at the end of that time, the Psychologist recommended that he be discharged RNIN.[24] 

[24] Retention not in the interests of the Navy: T documents; T34 at 310-311

1. Lieutenant Downes did not accept this recommendation and recommended instead that Mr Chesterfield be discharged from the RAN.[25]  In doing so, he referred to Mr Chesterfield’s failure to pass his final fitness test on recruit training, his failure to pass his Morse Code, his failure to pass a module in Part 1 of submarine training and his failure in September 1992 to complete SETF[26] because of his ongoing weight problem.  In August 1993, Mr Chesterfield failed four out of five modules of a retention test.  Lieutenant Downes then turned to Mr Chesterfield’s work in the galley where he said he had:

   ‘… displayed a poor attitude to service life and has displayed a lack of initiative.  This has resulted in him receiving numerous kit musters of which he has failed to pass even one.  He has also proven himself unreliable, thereby requiring constant supervision, and on several occasions when questioned on his whereabouts and actions CHESTERFIELD’s story has been inconsistent with the facts.”[27]

He went on to Mr Chesterfield’s history of weight control and concluded that not only had he had not shown a concerted effort to lose weight, his weight had increased.  Even though the Navy Psychologist, A M Tych-Iremonger, had recommended that Mr Chesterfield be retained and transferred to General Service as a means of getting some return for the time and money expended on training to date, Lieutenant Downes recommended that he be discharged as a training failure.

[25] T documents; T34 at 312-313

[26] Submarine Escape Training Facility

[27] T documents; T34 at 312

1. On 17 December 1993, Squadron Medical Officer Lieutenant Wright counselled Mr Chesterfield.  He referred Mr Chesterfield to a dietician, recommended that he request time to attend the aerobic exercise sessions at HMAS PLATYPUS as part of his weight loss programme and prescribed medication to complement that programme.  Lieutenant Wright advised him of the long term health issues accompanying his weight problems as well as the administrative consequences.  In particular, he told Mr Chesterfield that he was unfit for promotion.[28]

   [28] T documents; T34 at 319

1. Commander O’Brien, the Commanding Officer of HMAS PLATYPUS, gave Mr Chesterfield a Notice of Cause for Discharge dated 8 February 1994.  In it, Commander O’Brien informed Mr Chesterfield that he intended to recommend his discharge as he considered his retention not to be in the best interests of the Navy.  He invited Mr Chesterfield to put forward reasons as to why he should not be discharged and to do so within 14 days of the date of the letter.  The grounds on which the notice was issued was that he had been assessed as unsuitable for submarine training, had failed to complete his initial submarine training, had displayed an unwillingness to achieve and maintain the necessary weight standard and had displayed a consistently poor attitude and a marked lack of motivation and application towards Naval life.[29]

   [29] T documents; T34 at 321

1. Mr Chesterfield responded to the invitation on 23 February 1994 stating that he had a future as a Cook in the Navy.  Although he had not shown the right attitude in the past, he felt that he could improve his self-motivation and energy levels for his work.  Being in the Navy was all that he had ever wanted to do and he had wanted to remain until retiring age of 55 years.[30]

   [30] T documents; T34 at 322-323

1. On 21 March 1994, Lieutenant Downes repeated his recommendation that Mr Chesterfield be discharged on the basis of being considered a training failure.  He set out Mr Chesterfield’s history and included a reference to his work in the main galley at HMAS PLATYPUS.  Mr Chesterfield had displayed a poor attitude to service life in the main galley and a lack of initiative.  As a result, he had received numerous kit musters of which he had failed to pass one.[31]

   [31] T documents; T34 at 335-336

1. B Robertson, a Navy Psychologist, interviewed Mr Chesterfield on 21 March 1994 and wrote a report dated 24 March 1994.[32]  He noted the reports on Mr Chesterfield’s poor performance and his adjustment to the Navy generally.  The Navy Psychologist reported that:

   “          For his part the sailor is aware that he has not been making progress though reports he is making more effort of late.  He noted that he has felt himself to be under stress during this period and that this has caused him to ‘give up’ at some stages.  In particular he notes as relevant stressors the uncertainty of his future regarding RNIN, his sensitivity to jibes about his weight and the feeling of being poorly accepted at HMAS PLATYPUS.

   Issues of maturity, self esteem and drive remain relevant to SMN CHESTERFIELD’s situation.  He remains motivated to transfer to General Service.  To date he has given some limited thought to career options outside the Service.

   SMN CHESTERFIELD’s situation has shown little change in the last 6 months.  While he has not had the opportunity to start afresh with a trial period on a Surface Ship, he has had some work moves which, it is understood, would have allowed him to demonstrate some change.  He has been unable to capitalise on this, and thus lacks positive indicators that would support transfer to GS.  Remaining an SMU is not an option given his medical status, training failures and lack of motivation for the Submarine world.

   Under the circumstances there appear to be no further options available and discharge is supported.”[33]

   [32] Handwritten notes at T documents; T34 at 333-334

   [33] T documents; T34 at 337-338

1. Surgeon Lieutenant Wright reviewed Mr Chesterfield’s weight from his enlistment to 28 April 1994.  After initially decreasing in the first three months of his enlistment, Mr Chesterfield’s weight increased over time from a low of 78kg on 19 November 1990 to a high of 93.1kg on 25 February 1994.  Lieutenant Wright referred to strategies that had been put in place to assist him in losing weight.  He concluded that:

   “… Further dietitian consultations are unlikely to be of any benefit, as CHESTERFIELD does not display any motivation towards achieving his weight loss … Further medical assistance with regard to weight loss are similarly likely to fail given that SMNCK CHESTERFIELD lacks motivation to do so.”[34]

   [34] T documents; T34 at 343

1. Mr Chesterfield lodged an Address of Grievance (Grievance) against Lieutenant Downes’ recommendation that he be dismissed “Retention Not in the Interest of the Navy” (RNIN).  The Grievance was investigated by A J Hobbs.  At the conclusion of the investigation, Mr Hobbs recommended that Mr Chesterfield be temporarily transferred to a General Service Establishment and placed on a Weight Surveillance Program until such time as he achieved a weight standard which would allow him to re-commence submarine training.  Should Mr Chesterfield fail to achieve an acceptable weight level within 18 months of allocation, consideration should be given to his discharge RNIN.  At the end of 91 days, his work would be reviewed.  As Mr Chesterfield had joined the RAN as a Direct Entry Submariner, a transfer to General Service would only be considered under exceptional circumstances.  Mr Chesterfield had acknowledged on 29 April 1991 that failure of any part of his Submarine training might lead to his discharge from the Navy.  Mr Hobbs recommended that Mr Chesterfield be returned to Submarine service upon removal from a Weight Surveillance programme.[35]

   [35] T documents; T34 at 354-355

1. On 23 May 1994, Mr Chesterfield attended at Outpatients.  The author of the handwritten clinical record made on that day cannot be identified for the signature is illegible.  In so far as I can decipher the handwriting, the record reads:

   “Has had problems sleeping – been – present for a month.  One night had problems sleeping, in his …[illegible].  3 weekends ago, had night shifts on … [illegible] at HMAS Platypus.  It has worsened since then.  Now only getting 2 hours sleep at night.  Sometimes money, not always.  Has trouble getting off to sleep, will sometimes sleep through his alarm clocks – tends to stay asleep when he gets to sleep.  Not drinking at present – isn’t hard – been free 3/12.  Does have some worries – has RNI put in b/c failing SM training – no other pressing issues, but is keen to stay in Submarine.  Rarely has chocolate or cola; some coffee – only – 2 cups/day.
   Sounds like [illegible] depression.
   

   [36] T documents; T34 at 356

   Wait for resulting discharge.[36]

1. Rear Admiral Oxenbould advised Mr Chesterfield of the outcome of his Redress for Grievance when he wrote to him on 30 May 1994.  While deciding that the decision to discharge Mr Chesterfield should be overturned, he noted that this was out of a desire to ensure that all Navy people are given every opportunity to prove their worth.  He saw nothing in Mr Chesterfield’s history of service in the Navy that showed that he had given much to the Navy in exchange for the extensive training and opportunities that had been afforded to him.  In the previous eight months, he had made no effort at all to progress his task book and Mr Chesterfield’s apparent lack of desire or motivation to improve upon his basic skills was of particular concern.  Rear Admiral Oxenbould could find nothing to support Mr Chesterfield’s assertion that he could achieve far more from General Service than in Submarines.  He accepted the substance of Mr Hobb’s recommendations as to Mr Chesterfield’s temporary transfer to General Service where his work performance would be monitored and reported on.  If he performed to an acceptable standard and achieved weight loss to a level where he could recommence his Submarine training, he would be posted to HMAS PLATYPUS to finish it and commence his career in Submarines.  Should Mr Chesterfield fail to achieve either of those objectives, Rear Admiral Oxenbould advised him that his discharge from the Navy would be initiated.[37]

   [37] T documents; T34 at 358-359

1. On 6 June 1994, Mr Chesterfield wrote to the Commanding Officer of HMAS PLATYPUS requesting discharge at his own request on 20 June 1994 for the following reasons:

   “1.       I feel my services are no longer required by Submarine arm of the navy.

   2.I have become a nervous reck [sic] in the past 6-12 months.

   3.I feel I would do a far better job working for someone else.”[38]

   [38] T documents; T34 at 364

1. Mr Chesterfield was referred to a third Navy Psychologist, Ms Pearl Grinberg.  In a report dated 7 June 1994, she summarised his history in the Navy and continued:

   “… He feels that his superiors still hold the RNIN against him.  He claims he is often ‘put down’ and does no receive the understanding and support he deserves.  He feels very hurt and resentful of this.  It is likely that SMN CHESTERFIELD possesses unreasonable expectations of the treatment he should receive.  The DO’s report does confirm that ‘most people have a low regard for him and believe that he should have been removed from the Navy a long time ago’ (Ref C).

   SMN CHESTERFIELD presents as an immature and over-sensitive young man.  He appears depressed, with symptoms such as; sleeplessness, social withdrawal, crying, anger, increased eating and forgetfulness.  Of concern, he reports having suicidal thoughts.  He purports to have made two suicide gestures recently.  As he believes he will be discharged soon, he claims he can ‘hang on’ until then.  I consider these reported gestures a reflection of his immaturity and to be ‘acting out’ behaviour rather than serious attempts.  Following discharge, I believe he is unlikely to pose a suicide risk.  However, should he be forced to remain in service, there is the possibility he may make more concerted efforts.

   …

   SMN CHESTERFIELD is assessed as temperamentally unsuitable for the RAN.  He is highly sensitive and emotional.  He has been unable to fit into the military lifestyle or perform satisfactorily as a RO (which he initially enlisted as) or a CK.  He shows signs of significant depression and remaining in Service is likely to cause further emotional stress and render him a suicide risk.

   Discharge is considered to be of mutual benefit to the Navy and the sailor.  Discharge as soon as possible is strongly recommended.”[39]

   [39] T documents; T34 at 371-372

1. Lieutenant Downes recommended that Mr Chesterfield’s request be accepted.[40]  He was discharged on 8 July 1994.[41] 

   [40] T documents; T34 at 373-374

   [41] T documents; T34 at 388

Mr Chesterfield’s attribution of the onset of his depression

1. In a statement attached to his claim, Mr Chesterfield wrote:

   “1.       My depression occurred during my period of Service in the RAN while training at HMAS Platypus 1992-1994 prior to discharge

   2.According to Psychology report dated 07 June 1994 I appeared distressed I continued in this state of depression and was diagnosed in approx. 2002 by my local Gp Dr T Marshal and have been on medication ever since

   3.My condition has not been accepted by Department of veteran affairs because I missed the VEA qualification by 20 days this is still be looked into because of the change from SCRA to MCRS – I may still qualify for VEA

   4.My depression arose from My treatment as a During my submarine training as part I because I was TMU for sunsuit training in Perth firstly due a medical procedure while at Hmas Cerberus and then due to being classed as weight cat II.

   5.My treatment By other personal while serving was seen by many people.

   6.I began seeking treatment in 2002 because I realised I had a major problem with my mental state.

   7.The treatment I began receiving was medication from my local Gp in 2002 and then over a period of time I have seen several specialist for this.  Phillip Milligan in 2009 than 20013 VVVC Elin Schwab, and DR Craig Stapleton 2013.  But mainly My Gp Tony Marshal DR S Vaughan no Dr Andrew Pearce.  My treatment has been erratic because I have had my wife to look after who became Wheel chair bound due to an injury in 2003.  I have also had counselling at the Frankston Hospital.  In 2003.

   8.I have not been hospitalised for my depression to date.

   9.My condition is a result of my treatment By HMAS Platypus Submarine School see letter dated 9 may by wowrt hobb and jj Nash LCDR 23 may 1994.

   10.I have been on different strengths of Effexor since about 2002 prior to this I just coped the best I could

   11.I am currently receiving treatment from DR Craig Stapleton.  My Gp Dr Andrew Pearce.  And family counselling thorough VVCC.

   12.Prior to the Navy I was never treated for a similar condition

   13.No member of my family have been treat for a similar condition?

   14.I have mood swings from being happy to sad to angry constantly

   My condition affects me on a daily basis with things like

   ·Not wanting to eat or over eating

   ·No major interest in sex or sexual function which effects my partners self-esteem and my mood swing are a constant issue

   ·I find it hard to get out of bed and motivate myself each day

   ·I find it hard to focus on any task for a long period of time i.e. reading a book, watching a TV. Show. Computer work is the same I loose interest

   ·I find it hard to concentrate or put effect into everything I do

   ·I find it difficult to maintain a conversation or shy away from social situation.

   ·My condition leaves me not interested in taking care of myself appearance from showering, cleaning teeth, brushing hair, dressing, shaving, even getting out of my PJ’s is a hassle.

   ·My sleep is also effected I am restless when I sleep and don’t sleep well.

   ·Tasks such as shopping or gardening or doing house cleaning I lose interest in quickly

   ·My energy levels are always low and just cannot be bothered doing things.”[42]

   [42] T documents; T14 at 43-44

1. In his statutory declaration dated 28 February 2015, Mr Chesterfield attributed his depression to the following incidents:

   “… The one incident that was the Beginning of My Major Depressive Disorder was while I was at Hmas Platypus in November 1992 when I was called into My Divisional Officers LEUT M.J. Downs office and was informed that my single War Widow Mother had been involved in a Motor Car Accident and she was currently being operated on for life threatening Injuries and great lightly hood she would lose both her legs.  At which point I asked could I have compassionate leave to see her.

   A closed door discussion without me took place with several Submarine school staff which became quite heated. As I sat out front of his office. LEUT Downs then called me in and said you don’t deserve leave and if I left and was not back at work by Monday due to it being a Friday I would be charge with AWOL offences and was very harsh in how he spoke to me. I was not even told what Hospital she was being operated in. Or allowed to use a phone find out. This is the one incident that caused me to begin to suffer from Major Depressive Disorder.

   Which was compounded further in December while duty driving witnessing and then assisting an elderly lady who was run down at a zebra crossing by a taxi in Kings cross during a return trip from Endeavour House Navy Accommodation. At this point I had not been so see My mother due to the fact that I was awaiting for Christmas leave which was the only way I was able to see her without the threat of charges hanging over my head. The accident was reported to the office of the day who recommended to the CO that I receive a commendation for this. I received no counselling or anything the commendation was rejected. To this day I still have nightmares about both accidents.

   This lead to Further things that only added to my already depressive state such as Defence Abuse as outlined in the Dart Report.  My wife’s injury that left me has her full time career.

   The accident my mother had and the harsh way I was treated and threatened with charges was the beginning of my medical conditions”[43]

   [43] Exhibit A (reproduced as written)

Reporting incidents of harassment and bullying during his service

1. The reference to the DART Report is a reference to an Assessment Note by the Defence Abuse Response Taskforce (DART) dated 4 June 2014.  It sets out notes of what it calls “Case 1” and “Case 2”.  Case 1 involved “… an allegation of physical abuse, sexual harassment and workplace harassment and bullying occurring at HMAS Platypus, NSW, between 1992 and 1994”.  Case 2 involved “… an allegation of physical abuse occurring at HMAS Cerberus, VIC, on 13 January 1992.”[44]  Mr Chesterfield provided further details of Case 1 including the words used to him on various occasions in the Galley and outside together with an allegation of an incident of sexual harassment and another of physical attack.  Mr Chesterfield also advised that there were many other times when he was afraid for his life.  Case 2 related to the incident when he was set upon by two sailors known to him.[45]

   [44] Exhibit E

   [45] Exhibit E

1. When he was asked in cross-examination why Ms Grinberg had not referred him for treatment in June 1994 when she reported that he showed significant signs of depression.  Mr Chesterfield said that he did not know why she had not done so.  He said that he did not know of Ms Grinberg’s opinion as he had not been given any documentation on his discharge.  He thought that the Navy should have offered follow-up treatment.

2. Mr Wallace asked Mr Chesterfield why he had not told the Navy Psychologists about what was happening to him.  Mr Chesterfield replied that he had not wanted to make things worse because he was doing his best to get back on track.  He did not tell Mr Robertson in March 1994 because he felt that things would be worse for him if he said anything and he just wanted to move on.  Mr Chesterfield said that he had been truthful when answering questions asked by Navy Psychologists.

1. In his Grievance, Mr Chesterfield agreed, he had not made mention of harassment and bullying.  He said that he had no idea of the whereabouts of the Able Seaman who made a sexual advance to him.  This was not a matter he took up with a Petty Officer or Chief Petty Officer because of the way he was being treated by Lieutenant Downes.  Mr Chesterfield believed that information regarding Lieutenant Downes treatment of him was spreading around the depot and he had no one to turn to.  When he had told other people of his situation, he had been told to “suck it up”.  That was the way things were.  The cook had formed the view that he was not up to standard before she met him.  She never saw what he did even though she was in charge. 

Events following Mr Chesterfield’s discharge from the Navy

1. Mr Chesterfield moved first to Alice Springs where he lived with his mother and her husband who was her first husband’s brother.  He and his mother’s husband clashed and this was heightened by the fact that they lived together.  Mr Chesterfield worked for others as well but had difficulty holding a job for any length of time.  He found it hard to concentrate, he said in cross-examination, but to Dr Grant, he said that he was often hung over or late for work because of his alcohol problems.[46]  Mr Chesterfield met his wife in Alice Springs where they married.   

   [46] T documents; T32 at 137

1. While he was in Alice Springs in 1997, he had discussed his mental health with a doctor at the Alice Springs Hospital but no medication had been prescribed.  At the time, he was working with his mother’s partner, whom he despised.  That had nothing to do with his service.

1. Mr Chesterfield agreed that he had, in 2004, been charged with several offences.  As a consequence, he had been referred to a forensic psychologist for a pre-sentence report.  The Forensic Psychologist was Ms Lechner whom he saw in 2006.  Mr Chesterfield had also seen other psychologists and psychiatrists in relation to further charges and he had given all of them truthful answers.  He saw Dr Hundertmark in July 2015, Dr Grant in October 2014, Ms Elizabeth Warren, Consultant Forensic Psychologist, in December 2011, Dr Robert Kruk, Consultant Psychiatrist in April 2015 and Dr Aaron Cunningham in June 2013.

1. Mr Chesterfield said that he had typed his own statutory declarations and said that they were true in every particular.  In a statutory declaration made on 4 May 2015, Mr Chesterfield stated that all of the 12 charges made against him in 2004 were untrue.  In essence, that allegations had been made against him by others who wished to cover up their own misconduct.  Mr Chesterfield said that he had planned to plead not guilty but his lawyer made a deal with the prosecution without his knowledge.  He said that he was left with no option but to take the deal and plead guilty to four charges rather than all 12.  The sentence of the court included a 12 month term of imprisonment but that term was suspended on certain conditions.  Mr Chesterfield said in his statutory declaration that:

   “The lawyer and legal aid are currently being taken to court for in proper conduct and a conflict of interest.  The convictions will be overturned. …”.[47]

He concluded by identifying others who would be charged.

[47] Exhibit C

1. In cross-examination, Mr Chesterfield acknowledged that these events happened 12 years ago.  He confirmed the identity of one of the persons whom he believed would be charged as a result of a conspiracy against him but also agreed with Mr Wallace that the police had never approached him to give evidence.  Furthermore, he said that the persons have not been charged.  He acknowledged that he had not included that fact in his statutory declaration. 

1. Mr Chesterfield agreed that he had made against other persons in addition to those whom he alleged were involved in the conspiracy against him.  Although he made an unequivocal allegation in his statutory declaration dated 4 May 2015, he agreed in cross-examination that he had not seen the events underpinning his allegation.  He had based his allegation on what he had been told by the person whom he had identified as involved in the conspiracy against him. 

1. Mr Chesterfield denied that he is in complete denial about his behaviour that led to his convictions.  He denied that he had given a response to Ms Lechner that could be

interpreted as an admission of guilt.  The passage in her report is this:

“… Mr Chesterfield has somewhat reluctantly acknowledged his role in the offences; he is finding it hard to reconcile his actions with the person he believes himself to be. …”[48]

Later in her report, Ms Lechner reported that Mr Chesterfield had expressed regret and shame about his offending behaviour.[49]

[48] Exhibit 2 at 4

[49] Exhibit 2 at 6

1. Ms Lechner reported that Mr Chesterfield had been before the Children’s Court before 1992.  She recorded what Mr Chesterfield had told her about the charges brought against him at that time.  Her report included his statement that his mother had initially been distraught.  Eventually, she had come to an understanding of his behaviour.

1. Ms Warren’s report dated 23 December 2011 was written after she conducted a psychological assessment following Mr Chesterfield’s breaching the conditions of his suspended sentence on eight occasions between December 2008 and 12 September 2009.  Mr Chesterfield had indicated that he would plead guilty to each charge in relation to those breaches.  Ms Warren reported that his reasons for failure were not related to his clinical conditions, which are significant.  Combined with his challenging home life, his level of depression and anxiety could contribute to some level of confusion and so failure in compliance.[50]

   [50] Exhibit 3 at 6

1. In cross-examination, Mr Chesterfield said that his breaches had been investigated towards the end of 2010.  Dr Vaughan’s clinical notes show that he had prescribed Effexor on 30 November 2006.  He had seen Mr Chesterfield on two occasions in December 2006 and the next recorded consultation in the notes that I have is dated 2 February 2010.  Effexor is prescribed but at a lower dosage on that day.  On 26 May 2010, Mr Chesterfield asked Dr Vaughan to be referred to a psychologist, Mr Milligan, for depression.  On 9 December 2010, Dr Vaughan noted that Mr Chesterfield’s depression was better and that there was less conflict at home.  He continued to prescribe Effexor as part of the medication regime.

1. Dr Cunningham assessed Mr Chesterfield on 20 June 2013. He had various information including Ms Lechner’s report. He gave a comprehensive summary of Mr Chesterfield’s history. I return to his mention of Mr Chesterfield’s Naval service at [63] below. The essence of Dr Cunningham’s view is:

   “In my opinion, Mr Chesterfield presents with a diagnosis of Major Depressive Disorder. In my opinion, Mr Chesterfield was predisposed to the development of a Major Depressive Disorder by the instability in his childhood home. Mr Chesterfield reported confusion in the family home as to his paternity. He was raised by his stepfather to the age of eleven. … In my opinion, Mr Chesterfield’s Major Depressive Disorder was precipitated by the stress of his role as his wife’s carer. …”[51]

   [51] Exhibit F at 4

Mr Chesterfield’s history as given to medical practitioners

1. Dr Stephen Vaughan’s clinical notes suggest that Mr Chesterfield first consulted him on 12 April 2005.[52]  There is no suggestion that Mr Chesterfield was taking Effexor at that time or that he had previously been taking it.  He was not prescribed it by Dr Vaughan until June 2005.  In cross-examination, Mr Chesterfield said that Dr Vaughan’s note was consistent with his recollection that his appointment would have occurred at or about that time.  Most appointments concerned his wife.  Mr Chesterfield agreed that, although he told Dr Chris Grant on 7 October 2014[53] that he had been prescribed Effexor in 2002, that might not have been correct.  He had also made the reference to being prescribed it by Dr Marshall in 2002 in the statement attached to his claim.  On the basis of the searches made by Ms Danielle Kenda and reported in her statement dated 21 December 2015, I find that Dr Marshall’s records have not been retained as Mr Chesterfield had not visited the clinic since 2015.

[52] Exhibit 6

[53] Dr Grant’s report dated 29 October 2014: T documents; T32 at 140

1. On 14 June 2005, Dr Vaughan noted in his clinical records that Mr Chesterfield had told him that he had been charged with offences.  He had obtained legal representation and was seeing a counsellor at Frankston Integrated Health.[54]  That was the day on which he prescribed Effexor.  When Mr Wallace put to him that he had not raised with Dr Vaughan the question of his depression dating from his Naval service, Mr Chesterfield replied that he knew that, when he was seeing Dr Vaughan, he was seeing Mr Milligan.  He could not explain why he had not told Dr Vaughan of his issues but he reiterated that his focus was on his wife and getting things attended to for her.  Everything to do with him was placed on the back burner.  His main concern was coping with it.  He did not say anything about it and had buried it.  His main concern was coping with it.  Although he had spent the best part of a decade in suffering and enduring suicidal thoughts, he had not disclosed his thoughts because he was trying to put everything behind him.  Mr Wallace suggested to him that it was implausible that, knowing that he was suffering from a condition connected with his Naval service and finding it very difficult to endure, would not have mentioned it to the doctor who had spent the best part of a decade treating him for depression.  Mr Chesterfield replied that it was not implausible because he was trying to put it behind him.

   [54] Exhibit 6

1. I note that Dr Vaughan’s note of the consultation on 14 June 2005 noted that Mr Chesterfield had been seeing a counsellor at Frankston Integrated Health.  Five years later, on 1 June 2010, Dr Vaughan completed a Patient Assessment for a GP Mental Health Care Plan.  His diagnosis was recorded as depression and the treatment as Effexor.  He referred Mr Chesterfield to a psychologist, Mr Phillip Milligan in Mornington.[55]

   [55] Exhibit 5

1. Ms Lechner noted in 2006 that Mr Chesterfield had presented as an anxious and depressed man with a chronically low self-esteem.[56]  At interview:

   “… Affect was appropriate to the matter at hand and mood lowered, with Mr Chesterfield evidencing a number of symptoms consistent with a diagnosis of clinical depression.  He reported a 2-3 year history of depression, although closer history taking suggests that he had episodic depression during his adolesent [sic] years.  There was no evidence of disordered thought in form or content.”[57]

   [56] Exhibit 2 at 1

   [57] Exhibit 2 at 3

1. Mr Chesterfield agreed with Mr Wallace that, by the time he saw Ms Lechner, he had been facing the charges and those charges had a profound effect on his mental health at the time.  He also agreed that neither he nor MRCC had produced any record or witness to show that his depression had continued after he left the Navy.  Despite that, Mr Chesterfield stated that his depression had continued. 

1. Mr Milligan’s handwritten clinical notes[58] record four consultations between 1 June 2010 and 21 December 2010.  No mention is made in those notes of Mr Chesterfield’s issues with the Navy.  Mr Chesterfield’s explanation of that is that he was probably concerned with what was going on at the time and not with anything else.  What was going on at the time was that he and his wife were experiencing some conflict between them.  She was suffering with her illness and he was more and more depressed.  He did not tell Mr Milligan anything about his Naval service because he was purely concerned with what was going on at the time and not with anything else. 

   [58] Exhibit 7

1. In her report dated 23 December 2011, Ms Warren recorded that Mr Chesterfield:

   “… had no psychoactive prescription drug use until 2003 when he queried if his depression was triggered by his wife’s illness.  He was prescribed the antidepressant Effexor at the rate of 150mg daily and has remained consistently taking the drug as prescribed although in the present it is reduced to 75mg daily.  He cannot recall when the dose was reduced.  He attributes some memory loss to the tablets. 

   …

   The origins of his anxiety and depression are uncertain but certainly exacerbated, if not caused by the stress of his wife’s injury.  However, there was some prior unease associated with his uncertainty about his paternity and this remains something that bothers him.”[59]

Doubts about his paternity are something that still bothers him, Mr Chesterfield acknowledged in cross-examination.

[59] Exhibit 3 at 4-5

1. On 17 January 2013, Mr Chesterfield’s then General Practitioner, Dr Andrew Pearce, prepared a GP Mental Health Care Plan together with an Assessment and Plan.  In the passage marked “Review Comments”, Dr Pearce wrote:

   “… not a happy childhood teen yrs ago.  Mood upset 94-95 felt down.  father not real father, family stresses, partners disability disc prolapse, navy for 4 yr”.[60]

Dr Pearce referred Mr Chesterfield for counselling and a psychologist and noted that Effexor seemed to be working a bit.

[60] Exhibit 8

1. Mr Chesterfield has applied for a pension under the Veterans’ Entitlements Act 1986 but was told that he was ineligible. He reported his complaint to DART in April 2013. I have referred to that at [39] above.

1. Dr Aaron Cunningham reported that Mr Chesterfield had told him at the consultation on 20 June 2013 that he had “loved every minute” of being in the Navy.[61]  Mr Chesterfield agreed that he had made that statement to Dr Cunningham.  He had done so because he did love his time in the Navy and there were aspects he did not.  Serving in the Navy was something that he had always wanted to do and he loved the aspiration of it.  There were, however, aspects he did not love.  Mr Wallace asked Mr Chesterfield why he had not given details of the aspects he did not love such as bullying and harassment.  He replied that he had not done so because the whole focus of his seeing Dr Cunningham was not related to the Navy.  He brushed over the Navy purposely because he was seeing Dr Cunningham about current issues.  I note that the report was written at the request of Mr Chesterfield’s lawyers who were acting for him in relation to the charges relating to breaches in 2008 and 2009 and that were listed in June 2013.  Mr Chesterfield said that he understood that Dr Cunningham had been asked for a report so that the Court could deal with the charges in light of his mental health issues.  Later, he agreed that he had not mentioned his Navy experiences even though he had recently reported them to DART and had lodged a claim under the VE Act.

   [61] Exhibit F at 2

1. Mr Chesterfield presented to Dr Craig Stapleton, Clinical and Health Psychologist, in November 2013.  The first substantive sentence of Dr Stapleton’s report reads:

   “Tim presented as somewhat flat here, reporting a history of depression and Efexor (sic) since 2004. …”[62]

Dr Stapleton then went on to touch on Mr Chesterfield’s history in his report.  His notes are more expansive.  They refer to Mr Chesterfield’s Naval service as well as to his mother’s accident and the charges.  Dr Stapleton had access to a forensic report and the Navy records.  His notes record that Mr Chesterfield had joined the Navy to get away from home and he had wanted to stay on.  He noted that Mr Chesterfield had been sexually abused when he was ten years old by another ten year old. 

[62] Exhibit 9

1. In his report dated 29 October 2014, Dr Grant reported on Mr Chesterfield’s account of his being refused leave to see his mother after she was injured:

   “He said that when he was working in a submarine station in Sydney, his mother was involved in a ‘major car accident’ and ‘nearly lost both her legs’.  He said that the duty officer told him about his mother. He asked for time off but ‘I was told I am an idiot, I shouldn’t be in the RAN’ and his leave was apparently not approved. He said that he felt upset, anxious and angry about that. He said he did not see his mother for at least two months after her car accident and still believes ‘there was no reason why I couldn’t be granted leave’.

   He said there was a period when he was classified temporarily medically unfit because of a ‘fit’ after he had surgery from a mole on his chest. (What he actually described was a vasovagal episode or complicated faint, not epilepsy.

   He said that eventually he saw his mother in rehabilitation possibly in Heidelberg Repat Hospital. He thinks he gained about 2 kg in his period on leave and that rendered him over the ADF weight limit and he felt ‘depressed and moody and anxious from that point on.’

   He said that his DO ‘was an idiot’ and he kept getting changed from job to job at the base. He said that he was performing his duties satisfactorily in every way, but he received constant negativity from his DO and other members.”[63]

   [63] T documents; T32 at 136

1. Later, Dr Grant reported:

   “He said he was told he was unfit for submarine duty because of his weight. He said attempts were made to discharge him from the service, which he resisted. He said he put in grievance notices which took a lengthy time to process and that delay made him anxious and uncertain.

   He said he was transferred to general services to allow him to lose weight, but he was angry that ‘there was lots of weight management they didn’t do and that made me mad’.

   He said that he contemplated hurting himself by running his vehicle off the road, but stopped before any impact.

   He said that on one occasion he took 25 Panadol plus a bottle of whisky and ‘I slept and woke up late for work’ and did not see a doctor or go to an emergency department (even though this would normally be a fatal dose of Panadol and alcohol).

   He said there was ongoing negativity about his presence in the RAN and this made him feel angry and tearful.”[64]

   [64] T documents; T32 at 137

1. Mr Chesterfield agreed that he had not told Dr Grant the whole of the history. He had not, for example, told him that his heart had been set on being a Radio Operator in the submarines but he had bombed out and was worried about it. He did not tell him about the allegations and convictions to which I referred at [45]-[48] above. At the time he saw Dr Grant, Dr Vaughan had diagnosed him on or about 14 June 2005 as suffering from depression and prescribed Effexor but he did not tell Dr Grant of that diagnosis.[65]  Dr Vaughan’s diagnosis had come about after Mr Chesterfield had been his patient for some two months. 

   [65] Exhibit 6

1. Dr Kruk, a Consultant Psychiatrist, reported to Dr Pearce on 17 April 2015.  Mr Chesterfield told him of a history of depression and anxiety since 1992.  Dr Kruch wrote that:

   “Timothy reported a history of anxiety and depression since 1992.  At the time he served in the Navy and received the news that his mother was involved in a car accident.  Apparently his superior declined his application for compassionate leave and Timothy developed poor sleep, anxiety, depression and irritability.

   He’s been treated with Efexor 187.5mg since 2004.

   …

   His illness is probably perpetuated by a sense of being wronged by the Navy and by chronic unemployment.
   

   [66] Exhibit 4

   He is awaiting DVA pension.”[66]

1. Dr Hundertmark was given a copy of Dr Grant’s report and a copy of the DART assessment.  He interviewed Mr Chesterfield on 14 July 2015.  Mr Chesterfield reported verbal abuse in which he was repeatedly run down and abused by a senior officer in the Navy.  He also described some issues with sexual harassment.  The reported abuse frequently related to his weight.  Mr Chesterfield’s responsibilities for his wife’s care are referred to in the report but there is no reference to his previous convictions.  Dr Hundertmark formed the opinion that Mr Chesterfield suffered from a chronic adjustment disorder with anxiety and depressed mood.  He has suffered from that condition for years in response to the “… identifiable stressor of bullying and harassment whilst in the Navy.”[67]

   [67] Exhibit G at 5

Mr Chesterfield’s reasons for his delay in reporting his injury

1. In a further statutory declaration dated 28 February 2015, Mr Chesterfield began by saying:

   “·         The injuries my service caused were reported during my service and nothing was done to medical assist them an example is that I reported how I was feeling mentally to the HMAS Platypus sick bay who did nothing about it.  Also when I was discharged I was accessed as temporally medical unfit for service by the Physiologic assessment and once again nothing was done about it no referral to dva for example or information about applying for medical assistance.

   ·When I left the navy I buried the issues and scaring I was left to deal without any assistance by drinking and drug taking and suicide attempts.  This cycle became a normal part of life which also included nightmares, poor sleeping habits, aggressive behaviour, and the inability to maintain a job or relationship for an extended period of time.  I was not aware of this at the time that I could claim through scra.  At one point I did see an advocacy service to complain about the treatment I had received while in the navy and the outcome was the navy was not willing to look at the issues and I had no case at all.  (This was based around the Rnin attempt and not the medical conditions.)  I was not in the right state of mind to do anything let alone claim or begin to address my issues.

   ·From 1997 until 2013 I received some counselling from Church pastors and in 2003 the GP who was also treating my wife for her major back injury which left her wheel chair bound and me a full time career for her asked if I felt depressed due to her major life changing injury. And he put me on Effexor to assist me. Because this medication made me sick if I drank while on it I slowed my drinking down to almost nothing. Through the process of claiming work cover and then scra and vea for her it began me thinking the extra pressures of caring for her every need consumed me for serval years. I buried my own issues even further.

   ·From about 2001 my own medical health began to slowly deaerate with sleep apenia, type two diabetes then type one, and many other conditions I have already stated in other documentation This overtime lead to a major melt down in about late 2013 that resulted in My Gp arranging counselling and a who range of other assistance to help me. It was at this point I began to explore what was causing me to melt down and I began to re discover what had happened to me during my navy service. At was it this point I began exploring what I could possibly claim for through vet affairs and applying to the navy for a medical discharge.

   ·I am believe that had the navy correctly accessed me and supplied me with the information required I would have had a claim in before I discharge.  It took only 4 day for me to be discharged for the day I put in the request.

   ·I also believe that I informed vet affairs as soon as practicable possible due to that facts above and when I discovered why and what had happened to me I began the process.

   ·…”[68]

   [68] Exhibit A (reproduced as written)

1. In his statutory declaration dated 4 May 2015, Mr Chesterfield concluded by saying:

   “Due to the workplace harassment and bullying at HMAS Platypus Sub School as outlined in the Defence Abuse Response Taskforce if I was to report or complain about things that were going on it would only make my situation worse.  Even the sexual abuse and physical abuse from … [a Cook] while working the galley.  … [A Cook] stipulated that if I said anything he would make life even worse for me.  When I did try and complain I was told to fuck off, I don’t deserve to be in the navy.  On many occasions this occurred and so when I could I would attempt to report things but it was largely ignored.  As a result I buried the abuse and when I discharged the suicide and depressions continued for years.”[69]

   [69] Exhibit D

1. In response to Mr Turner’s question about why he had waited so long to make a claim for a condition diagnosed in 1994, Mr Chesterfield said that it was because of his state of mind when he left the Navy.  He was still very depressed and having suicidal tendencies.  He really did not know the actual cause of why he was feeling that way.  On his discharge, he was in such a poor state that it took him a number of years to get his head around what had happened during his service.  Only when his wife’s back gave way and he was getting her the help she needed did Mr Chesterfield realise the cause of his depression.  She had hurt her back in a defence-related accident in about 1989 and it finally gave way in 2003.  When he left the Navy, Mr Chesterfield said that he did not know how to, or with whom he should, take it up.  In dealing with his wife’s condition in 2003, he said that he discovered that he needed to report an ailment if he believed it to be connected with his defence service.

1. Mr Chesterfield acknowledged in response to Mr Wallace that it took another decade to make a claim for compensation.  He did not contact the MRCC to advise that he felt unwell and that it was related to his service.  His main focus at the time was on his wife and dealing with finding proper housing for them.  He was involved in the claims process with his wife in relation to her condition but he said that, as his focus was entirely on her, it did not occur to him to seek medical attention for himself.  Only when her condition was stabilised did he fall apart.  That occurred in roughly 2009/2010. 

CONSIDERATION

1. The medical evidence consistently points to Mr Chesterfield’s suffering from a psychiatric condition described generally as depression and anxiety. I do not need to make a finding whether he does suffer from that condition and nor do I need to make any finding that he has suffered an injury or disease within the meaning of s 4(1) of the SRC Act. What is relevant is when Mr Chesterfield came to his own view that the depression and anxiety he felt he was suffering was contributed to, to a significant degree, by his employment. Only when he made the link between his condition and his Naval service could he be said to be aware that his condition was an “injury” as that term is defined in the Act.  That will be the starting point for considering whether he gave notice to the MRCC as soon as practicable.  The time at which he gave that notice was 20 December 2013,

1. Mr Chesterfield puts forward his case on the basis that he gave notice of his injury as soon as practicable after he became aware of it.  The MRCC is of the view that he has been aware of it no later than 2002 if not as early as 1992.  The earlier date is consistent with Mr Chesterfield’s statement to Dr Kruk and recorded by Dr Kruk in his report.  The later date comes from the statement that Mr Chesterfield attached to his claim for compensation.  In it, he states that his depression arose because of his treatment during his time at the Submarine School but he began seeking treatment for it in 2002 from his then GP, Dr Marshall.  He attributed his condition to the way in which he had been treated generally in the Navy but particularly in relation to what he saw as the unfair way in which he had been refused compassionate leave when his mother was injured in a road accident.

1. The second group of evidence is found in the reports of the Navy Psychologists written while Mr Chesterfield was still in the Navy.  The note of his attendance at the Outpatient Clinic on 23 May 1994 records a possible diagnosis of depression.  Whether Mr Chesterfield was told of that diagnosis or not, he had reported difficulties with sleeping.  The next month, Ms Grinberg wrote that he appeared depressed with symptoms such as sleeplessness, social withdrawal, crying, anger, increased eating and forgetfulness.  Even if Ms Grinberg did not tell him that she thought he showed signs of significant depression, he would have reported his symptoms to her and so have been aware of them and of how he felt at that time even if he did not have a diagnosis to explain them.  What he did have at that time was a reason for why he felt that way.  That reason lay in the treatment he had received at the hands of his superiors and that he had not received the understanding and support he felt that he needed. 

1. Mr Chesterfield’s statutory declaration dated 28 February 2015 is also relevant.  In it, he refers specifically to the incident that was the beginning of his depression being his not being granted compassionate leave to visit his mother.  Mr Chesterfield refers also to his witnessing an accident involving an elderly woman and a motor vehicle and, as outlined in the DART Assessment Note, abuse.  He does not say that these are events that have come to his mind in recent times so that he has only just become aware of the link between his mental condition and his service.  What he did say at various times at the hearing was that he had placed matters relating to him and his health onto the back burner so that he could care for his wife during her illness.  His putting matters on the back burner does not equate with his not being aware of them.  It equates with his being aware of his mental condition and the link with that he perceived between it and his Naval service. 

1. Mr Chesterfield’s evidence is that he sought treatment in Alice Springs for his mental health in 1997.  He attributed that to the unhealthy relationship he had with his mother’s husband and not to his service.  I do not doubt that the relationship was the reason for his feeling the need to seek medical advice but it does not detract from the pattern of his awareness that he was suffering mental health issues at the time.  I put this basis no higher than that. 

1. The evidence in [75]-[77] points to Mr Chesterfield’s being aware not only of his suffering from a mental condition but also of its having its origins in his Naval service.  That in the preceding paragraph is neutral.  Possibly pointing towards a different conclusion are Dr Vaughan’s clinical notes and the reports of Ms Lecher, Ms Warren, Mr Milligan and Dr Pearce.  There was no mention of Mr Chesterfield’s Naval service in those reports.  It could be argued that their omission indicates that he had indeed put his Naval service out of his mind and he had not made the link between his mental health and the events that occurred in his Naval service.  If that were so, though, it would not be consistent with the matters I have raised in the first three bases.  In so far as Ms Lechner’s report is concerned, it would not fit with her note that Mr Chesterfield had reported a two or three history with depression.  Given that she saw Mr Chesterfield on 24 August 2006, that takes his history back to 2003. 

1. Given the difficulties of estimating the timing of things in the past, the history that he gave to Ms Lechner is not inconsistent with his more recent memory that he was treated for depression by Dr Marshall in 2002.  The most authoritative source from which to confirm that date would have been Dr Marshall’s clinical notes but I have already found that they have been disposed of.  Dr Marshall was not called to give evidence and so his memory was not explored. 

1. When I look at the whole of the evidence, I am satisfied that it supports my finding that Mr Chesterfield was aware that he was suffering a mental condition of some sort when he left the Navy.  He had also formed the opinion that the reasons for his mental condition lay in the manner in which he had been treated by the Navy and its personnel.  He did not make any allegations of sexual abuse at that time but saw himself as having been mistreated in terms of his not being treated fairly when his mother was injured, in being verbally harassed about his weight in particular and in being placed under threat of being discharged when he did not meet the expectations of his superiors.  He was, I find, aware of the link between his condition and his service and so of the injury for which he claims compensation as early as 1992. 

1. Should I be incorrect in relation to timing, I am satisfied that he became aware of his injury in 2002 when he was, on his own evidence, prescribed Effexor by Dr Marshall.  That would have been the time when he had a name for how he was feeling and even recognition by a doctor that he was suffering.

1. That brings me to whether Mr Chesterfield gave notice of his injury as soon as practicable after becoming aware of it by 2002.  I am satisfied that he did not.  More than ten years passed before he gave notice.  That is despite his being aware of the SRC Act and of the entitlements it conferred upon service men and women who suffered an injury.  I find that he was aware of the SRC Act because he was caring for his wife in her illness and she was in receipt of compensation benefits.  As he said in his statutory declaration made on 28 February 2015, it was:

   “… Through the process of claiming while work cover and then scra and vea for her it began me thinking the extra pressures of caring for her every need consumed me for serval years.  I buried my own issues even further.”[70]

   [70] Exhibit A at [2]

1. Mr Chesterfield relies on the pressures that he faced in caring for his wife to show that, in his circumstances, he acted as soon as practicable after he became aware of his injury.  On the basis of a reference in the report of Ms Lechner and another in the report of Ms Warren, I find that Mr Chesterfield became his wife’s carer in approximately 2003.[71]  In the following year, 2004, he was charged with several offences.  These were two very difficult years for Mr Chesterfield and the following years were not particularly easy.  For whatever reason, he did not always tell the whole of his history to his treating medical practitioners or health professionals.  To Mr Milligan, for example, Mr Chesterfield spoke only of the worries associated with his wife but not of the other factors, such as the charges or his Naval service, that had impacted upon his life.  He had to talk to Ms Warren and Ms Lechner about the charges but did not talk about the effect upon him of his Naval service. 

   [71] Exhibit 2 at 3 and Exhibit 3 at 2

1. In essence, I find, there were a multitude of worries that Mr Chesterfield was balancing from 2003 onwards but I do not think that those worries mean that he gave notice of his injury to the MRCC as soon as practicable after he became aware of his injury.  The first is that there was at least a short time between his becoming aware of the nature of his injury and his assessment that it was related to his service.  His wife did not suffer her incapacitating injury until 2003.  The second is that he was, on his own evidence, dealing with the MRCC or its predecessor in service related matters, Comcare, regarding his wife’s claims for compensation.  He was necessarily aware of the process and it is not a difficult process to raise his own situation at some time far closer to 2002 than to 2013 when he finally did so. 

1. If Mr Chesterfield had become aware of his injury at the earlier date of 1992, the matters to which I have referred in the previous paragraph remain equally relevant.  Added to them is the additional time that he had to contemplate his position.  He was faced with the difficulties of finding and keeping employment and his poor relationship with his mothers’ husband but they do not explain why he did not explore his rights to compensation at an earlier stage.

1. That takes me to s 15(3) because his claim can be taken to be a notice of his injury to the MRCC when he lodged it on 20 December 2013.  The question that I must now ask is whether the MRCC would, by reason of Mr Chesterfield’s failure to give that notice as soon as reasonably practicable, be prejudiced if the notice he has given were treated as a sufficient notice.  I am satisfied that the MRCC would be prejudiced.  Some 20 years have passed since he left the Navy.  There are written records relating to some of those events in the T documents but Mr Chesterfield has raised matters of harassment and sexual abuse that he did not raise during his service.  Mr Chesterfield has given evidence about them but the Tribunal is under an obligation to act with procedural fairness i.e. “… to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.”[72]  That means that I must give the MRCC an opportunity to make its own enquiries about those events.  In order to do that, it has to go back to the personnel involved at the time. 

[72] Kioa v West [1985] HCA 81; (1985) 159 CLR 550; 62 ALR 321 at [33], 585, 347 per Mason J

1. The DART Assessment Notice confirmed that some of those personnel had been engaged by the Navy at the time but not all.  Ms Kenda has set out the names of those persons to whom reference is made in the various documents in the T documents and who are no longer employed by the Department of Defence (DoD) or have been discharged.  There were six such persons.  Of those, attempts have been made by the Australian Government Solicitor (AGS) to contact LCDR Downes (who did not respond), LCDR Wright (letter returned to sender), RADM Oxenbould (contacted AGS but had no recollection of Mr Chesterfield) and LCDR Hobbs (responded that he had no recollection of Mr Chesterfield).  Further attempts were made to locate the three cooks and LCDR Wright through a national White Pages search but the results were too numerous to enable identification of potential contacts.  The search for LCDR Downes using both his initials produced only five results and calls were made to each.  Two calls were answered and the person was not LCDR Downes.  Messages were left with three others but the calls were not returned.  When only his first initial was used, 100 results were returned.  They were not pursued.

1. Ms Kenda stated that DoD could not identify B Robertson, who was a Navy Psychologist at the time and nor could it locate three cooks whom Mr Chesterfield had named in his allegations of abuse and harassment.  AGS conducted searches of the Australian Psychological Society’s web paged and no results were returned for Ms Pearl Grinberg, A M Tych-Iremonger or B Robertson.  Further searches at the Australian Health Practitioner Regulation Agency revealed results for B Robertson but further searches through the national White Pages and subsequent voicemail messages have not led to any responses.  I have already referred to Ms Kenda’s statement regarding the disposal of Dr Marshall’s notes.

1. I am satisfied that the AGS, as the MRCC’s legal representatives, have been thorough in their searches for witnesses.  With the passage of time, however, it is inevitable that those involved in events will have moved on and can no longer be located.  It is understandable that for some, as is the case with LCDR Oxenbould and LCDR Hobbs, they have no longer have any memory of events.  In this case there are a considerable number of the personnel who feature large in Mr Chesterfield’s recount of events between 1992 and 1994 who cannot be found.  Had Mr Chesterfield given notice during his service or shortly after his service or even up to 2002, the chances of their being located would probably have been considerably greater than it was in 2013 when he did give notice.  His failure to give notice at that earlier stage has prejudiced the MRCC’s chances of locating the personnel, of examining the merits of Mr Chesterfield’s claim and considering whether it is, or is not, liable under the SRC Act.  Therefore, I am not satisfied that the MRCC would not, by reason of his failure to give notice as soon as practicable after he became aware of his injury, be prejudiced if the notice he did give in 2013 were treated as sufficient notice.

1. The final point to consider is whether Mr Chesterfield’s failure to give notice as required by s 53(1)(a) arose from ignorance, from a mistake or from any other reasonable cause. Mr Chesterfield has not asserted that his failure was due to ignorance or a mistake and I find no suggestion of it arising from the evidence. Rather, his evidence is that he was aware of his situation but pushed it to the back burner because of his wife’s needs. Given the fact that he was dealing with issues of compensation and veterans’ entitlements for his wife, I am not satisfied that his failing to give notice of his claim was for reasonable cause.

DECISION

1. As I have decided that Mr Chesterfield has not given notice of his injury as required by s 53(1) of the SRC Act, that Act cannot apply in relation to that injury. Therefore, I must affirm the reviewable decision of the MRCC dated 25 November 2014 disallowing Mr Chesterfield’s claim.

I certify that the ninety-two preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed:           ………................[sgd]........................................

Associate

Date of Preliminary Hearing               11 February 2016

Date of Decision  8 April 2016

Advocate for the Applicant                 Mr Bruce Turner
Returned & Services League of Australia (Victorian Branch)

Counsel for the Respondent               Mr John Wallace

Solicitor for the Respondent               Ms Nicky Nicolaou
Australian Government Solicitor