Graham Duck and Repatriation Commission
[2012] AATA 96
•15 February 2012
[2012] AATA 96
Division VETERANS' APPEALS DIVISION File Number(s)
2011/1609
Re
Graham Duck
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President P E Hack SC
Date 15 February 2012 Date of written reasons 17 February 2012 Place Brisbane The hearing set down for 20 February 2012 is vacated.
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Deputy President P E Hack SC
CATCHWORDS
PRACTICE & PROCEDURE – request for adjournment of hearing – inadequate preparation – lack of competence of representative – grounds for adjournment.
REASONS FOR DECISION
Deputy President P E Hack SC
17 February 2012
The applicant, Mr Graham Duck, says that he suffers from psychiatric conditions described in the material as post-traumatic stress disorder, depressive disorder and alcohol dependence. He attributes those conditions to his service in the Royal Australian Air Force and in particular, to his claimed involvement in the retrieval of deceased persons from a helicopter crash near Stanthorpe in 1974. Additionally, reference is made to work he asserts he performed in floods in Queensland in January 1974. One or both of these events he says was a precipitating stressor in the onset of his psychiatric conditions.
In April 2009, Mr Duck made a claim upon the respondent, the Repatriation Commission, to have his conditions accepted as service related conditions. The Commission did not accept the claims and Mr Duck sought a review by the Veterans’ Review Board. The matter came before the Board in May 2010. The Board was concerned by inconsistencies in Mr Duck’s evidence and inconsistencies between his evidence and other material before the Board and adjourned the hearing to enable the Commission to obtain further documents. Further material was then obtained and the matter reconsidered again by the Board on 24 March 2011. It will suffice to say that the Board was not satisfied with the evidence of Mr Duck. It was quite critical of the evidence that he gave.
Proceedings were commenced in this Tribunal on 3 May 2011. The Commission’s Statement of Issues, lodged the following month, notes that on the respondent’s perception the issues in the proceedings included whether Mr Duck was a reliable historian and whether the psychiatrist who diagnosed his post-traumatic stress disorder had been asked to assume an inflated history. There has been, so far as I can tell, five preliminary conferences in this matter, those conferences having as one of the objectives to ensure that the matters are being properly and efficiently advanced towards hearing.
On 3 January 2012, it being the view of the parties that the matter was ready for hearing, a notice was sent to the parties listing the matter for hearing on 20 February 2012.
On 10 February 2012, Mr Duck’s solicitor wrote to the Tribunal seeking to have the hearing adjourned “for the purposes of conducting further investigations to locate other servicemen the applicant says were with him upon the helicopter that was first on the scene of the subject accident”. Those further enquiries were said to be enquiries of the 9th Squadron Association through its website and reference was also made to a dedication ceremony for a restored aircraft, which is apparently to take place on 16 March 2012, at which there is an expectation that a number of persons will be present who the applicant, Mr Duck, wishes to speak with to make further enquiries of other service people on the helicopter. Additionally, Mr Kalimnios, counsel for Mr Duck, has informed me, without objection from Mr Stoner for the Commission, that Mr Duck’s solicitor yesterday met a member of the 9th RAR Association, that being apparently Mr Duck’s former mustering, and that person was going to make further enquiries to see if he could locate persons who might have been associated with the aftermath of the helicopter crash.
For its part, the respondent consents to an adjournment of the hearing on the footing that review by the Tribunal is the last review on the merits available to the applicant and thus he should be given all reasonable opportunity to pursue his case.
The overwhelming inference is that Mr Duck’s case has not, until recently at least, been competently prepared. Despite it being plain that the reliability of Mr Duck’s account was very much in issue it would seem that this solicitor failed to consider, or failed to comprehend, the steps that might be taken to corroborate Mr Duck’s account of events and thus did not undertake in a timely way the sort of enquiries that are now suggested. The first, apparent, efforts to make those enquiries occurred once Mr Kalimnios was engaged and suggested that they be made.
I am left with the distinct impression that to refuse the adjournment would be to, in effect, punish Mr Duck for the absence of competence of his representative. That, it seems to me would not be a proper exercise of the discretion to grant an adjournment. Very reluctantly, and in the circumstances where I do not wish to punish Mr Duck for his representative’s incompetence, I propose to grant the adjournment and will vacate the hearing of 20 February 2012.
So far as I can tell, what has gone before in the preparation of this case has been a complete and utter waste of resources - public resources and likely the applicant’s resources. If this matter is to proceed to hearing, some attention will need to be given to the applicant’s Statement of Facts and Contentions. It does not, by any stretch of the imagination, articulate the case for Mr Duck in a manner that I expect from a legal practitioner in a case such as this. The matter will be returned to the conference process.
I certify that the preceding 9 (nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC.
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Associate
Dated 17 February 2012
Date of hearing 15 February 2012 Counsel for the Applicant Mr G Kalimnios Solicitors for the Applicant Cockburn Legal Advocate for the Respondent Mr J Stoner, Department of Veterans' Affairs
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