Frazer and Military Rehabilitation and Compensation Commission

[2004] AATA 731

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 731

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2002/34

GENERAL ADMINISTRATIVE  DIVISION		)
Re		GRAEME ANDREW FRAZER

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

INTERLOCUTORY DECISION - The Ruling on Evidence

Tribunal The Hon C R Wright QC., (Deputy President)

Date9 July 2004

PlaceHobart

Decision	1.     Rapke material admitted as contained in the Précis of Evidence with the exception of pages 1, 2 and 3.
2.      First and second Rapke reports excluded.

[Sgd The Hon C R Wright QC]

Deputy President

CATCHWORDS

Interlocutory – Ruling on evidence – whether Rapke reports admitted into evidence.

Safety, Rehabilitation and Compensation Act 1988 – s14

WRB Transport Pty Limited and Ors v Chivell (1998) SASC 6937

REASONS FOR RULING ON EVIDENCE

9 July 2004 The Hon C R Wright QC., (Deputy President)   

1.      In the present proceedings the applicant seeks compensation for injury allegedly suffered as a consequence of his experiences as a junior naval recruit at HMAS Leeuwin over a period of about 12 months following his enlistment in July 1967.

2. The applicant claims that he was victimised, bullied and assaulted by other, usually more senior, recruits. It is alleged that at the relevant time there existed “a culture of bullying, harassment, intimidation, bastardisation, victimisation and violence”, with the express or tacit approval or condonation of senior officers. It is claimed that the applicant has suffered an anxiety disorder as a consequence of his mistreatment or to which his military service has contributed in a material degree. It is further claimed that this disorder, combined with a neuropathy condition (not caused by his military service) has caused the applicant to become incapacitated and, as a consequence the applicant is entitled to compensation pursuant to s14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).

3.      The hearing commenced in Hobart on 4 March 2004 and was resumed with a video link between Hobart and Brisbane on 1 July 2004.   Counsel for the applicant, Mr Browne, sought to adduce evidence of information provided to Judge Rapke of the Victorian County Court in 1971 when an inquiry into allegations of mistreatment of a recruit named Connolly was being conducted by the Judge at the request of the Commonwealth Minister for the Navy.

4.      In the course of that enquiry Judge Rapke interviewed a large number of recruits who had served at HMAS Leeuwin and other naval establishments going back as far as 1962 in several cases.    These interviews were conducted in private by the judge.   On some occasions more than one recruit was present.    They were not sworn as witnesses, but were questioned in an informal and conversational way by the Judge.   A record was made of the accounts given to the Judge, but in earlier proceedings between the present parties in which the Attorney-General intervened, the applicant’s solicitors succeeded in obtaining only limited access to record.   Although the substance of the discussions between Judge Rapke and his interlocutors has now been made available to the applicant’s legal advisers, the identity of most of the recruits has not been disclosed.

5.      Mr Browne asks me to receive into evidence in the present proceedings the transcript of the Rapke interviews insofar as they relate to incidents of bullying and misconduct perpetrated against recruits at HMAS Leeuwin, both before, during and after the applicant’s time serving at that base.    He also asks me to receive into evidence two reports supplied by Judge Rapke to the Federal Government as a consequence of his investigations.   

6.      Mr Browne submits that the accounts given by the various recruits are relevant to the present proceedings because they show a prolonged and systematic practice or culture of “bastardisation” of junior recruits at HMAS Leeuwin.    He submits, that, although the respondent in its Amended Facts, Issues and Contentions has conceded that there were numerous incidents of bullying and violence against junior recruits at HMAS Leeuwin, it has either denied or failed to admit that the applicant was physically or emotionally abused in the many specific ways which he has alleged.    Mr Brown submits that in these circumstances, where the severity and regularity of abusive conduct against his client has been challenged, it is relevant to the issue of his client’s credibility as to these matters, to consider the pattern of conduct involving a continuing culture of bullying of junior recruits which existed at HMAS Leeuwin, and which appears to have been passed on from one intake to the next over a period of years.    In short, it is said, the substance of the material tendered goes to the likelihood of whether or not the applicant’s account of his alleged mistreatment is to be accepted or not.

7.      Mr Browne submits that as this Tribunal is not bound by the rules of evidence which would apply in civil court proceedings, such material should be received as it is plainly relevant to key issues.

8.      Mr Browne concedes that none of the Rapke material relates directly to the mistreatment of the applicant at HMAS Leeuwin.

9.      The substance of the material tendered by Mr Browne was contained in a Précis of Evidence supplied to the Tribunal and to the respondent.   Mr Morgan, counsel for the respondent, helpfully conceded that this Précis contains an accurate transcription of the Rapke material from the two CD’s in which form it was provided by Commonwealth Archives to the applicant.    It is this transcribed material to which I have given consideration along with the two typed Rapke reports.     Mr Morgan submits that none of the Rapke material is relevant to present issues and should be excluded.

10.     In my opinion, the material supplied to Judge Rapke and reproduced in the Précis of Evidence is relevant to the issues raised in the present proceedings.   The qualified admissions made by the respondent in its Amended Facts, Issues and Contentions do not go far enough to render that material irrelevant.   The tendered material has some shortcomings; the “witnesses” were not under oath and their accounts were not the subject of cross-examination in the normal understanding of that term.   On the other hand the record of proceedings provides a framework which appears to me to indicate their general reliability.   There is little, if anything, to indicate that any of them were pursuing an agenda of their own which may render their account of events suspect.  Obviously some accounts are of more substance and apparent weight than others.

11.     Mr Browne referred me to WRB Transport Pty Limited and Ors v Chivell (1998) SASC 6937 (9 November 1998) which I found of some assistance in reaching my conclusions.

12.     In my view the greater part of the material contained in the Précis of Evidence should be admitted into evidence.   I propose therefore to admit that document with the exception of pages 1, 2 and 3 which contains excerpts from Judge Rapke’s first report.   That document will be received into evidence as Exhibit 1.

13.     As to the two reports by Judge Rapke, I have reservations.   These reports contain the Judge’s views on several issues other than those which concern the Tribunal in the present proceedings.    It should be noted that there is no issues of vicarious liability in the present proceedings.   The applicant though plainly inferring that senior officers encouraged or condoned the violent treatment meted out to junior recruits at HMAS Leeuwin does not need to establish such a chain of responsibility to succeed.

14.     I do not see how any of the views and opinions in the Rapke reports can be helpful to me in an evidentiary way in the present proceedings.   At this stage the two reports will not be admitted   Either party may ask me to reconsider this ruling before the hearing concludes.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC., (Deputy President)

Signed: K L Miller (Administrative Assistant)

Date/s of Interlocutory Hearing 4 March 2004 1 July 2004
Date of Decision  9 July 2004
Counsel for the Applicant         Mr R Browne
Solicitor for the Applicant          Fitzgerald and Browne
Counsel for the Respondent     Mr B Morgan
Solicitor for the Respondent     Mr J Shears, AGS