Hardman and Repatriation Commission
[2000] AATA 318
•26 April 2000
DECISION AND REASONS FOR DECISION [2000] AATA 318
ADMINISTRATIVE APPEALS TRIBUNAL ) Nos N1998/896
) N1998/1659
VETERANS' APPEALS DIVISION ) N1999/263
Re GARRY JAMES HARDMAN
Applicant
And REPATRIATION COMMISSION
Respondent
Re REPATRIATION COMMISSION
Applicant
And GARRY JAMES HARDMAN
Respondent
DECISION
Tribunal Senior Member M D Allen
Date26 April 2000
PlaceSydney
Decision That part of the decision of the Veterans' Review Board of 28 April 1998 that accepted incapacity from the diseases of post traumatic stress disorder and irritable bowel syndrome as being liable to pension pursuant to subsection 13(6) of the Veterans' Entitlements Act 1986 is SET ASIDE and the Tribunal substitutes in lieu of that part of the said decision so set aside its decision, namely: THAT the said Gary James Hardman is not entitled to pension pursuant to the provisions of the Veterans' Entitlements Act 1986 for incapacity from post traumatic stress disorder and irritable bowel syndrome. The applications numbered N1998/896 and N1999/263 are adjourned to a date to be fixed.
(Sgd) M D ALLEN
..............................................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Application by Repatriation Commission to set aside decision of Veterans' Review Board granting pension for incapacity from post traumatic stress disorder and irritable bowel syndrome. Accuracy of history given by Veteran to Veterans' Review Board and psychiatrist called in doubt. Admissions by Veteran of false claims. Credit of Veteran. Veteran's evidence not accepted and decision of Veterans' Review Board set aside.
Veterans' Entitlements Act 1986 - s5B and s6C, subs13(6) and subs120(4) and (6)
Repatriation Commission v Cooke 160 ALR 17
Repatriation Commission v Thompson 82 ALR 352
Wilcocks v Repatriation Commission 111 ALR 639
Repatriation Commission v Smith 15 FCR 327
REASONS FOR DECISION
26 April 2000 Senior Member M D Allen
In this matter three applications for review by the Tribunal were heard together. Matter N1999/896 is an application by the "Veteran" Garry James Hardman, to review a decision of the Repatriation Commission as affirmed by a Veterans' Review Board on 20 April 1998 rejecting his claim to have the diseases of ischaemic heart disease and diabetes mellitus recognised as being war-caused diseases.
Matter No N1998/1659 is an application by the Repatriation Commission to review that part of the 20 April 1998 decision by the Veterans' Review Board to accept the Applicant's post traumatic stress disorder and irritable bowel syndrome as diseases, incapacity from which is pensionable pursuant to the Veterans' Entitlements Act 1986 (VEA).
The third application, numbered N1999/263, is by Mr Hardman seeking review of a determination by a Veterans' Review Board affirming decisions by the Repatriation Commission which effectively reassessed pension at 70% of the General Rate of pension as and from 23 April 1996.
In assessing pension at 70% of the General Rate, the Repatriation Commission had regard to the Veterans' Review Board decision of 20 April 1998 which accepted post traumatic stress disorder and irritable bowel syndrome as pensionable diseases.
As matters transpired the hearing concentrated upon the claim by the Repatriation Commission that the Veterans' Review Board decision, accepting post traumatic stress disorder as a pensionable disease, should be set aside. Clearly, if the Repatriation Commission were successful in that claim then the other claims before the Tribunal would have to be assessed in the light of that decision.
Mr Hardman served in the Royal Australian Navy from 7 July 1963 to 18 May 1972. He joined the RAN at age 16 years and 3 months and was aged 18 years when, as a crew member of HMAS Parramatta, that vessel was allotted for special service in the North Borneo, Malay Peninsula and Singapore areas. This period was during "confrontation" in which an undeclared but very active state of war existed between Malaysia and Indonesia.
HMAS Parramatta was allotted for operational service, as that term is defined in subs5B(2) and s6C of the VEA on two specific occasions whilst in Malaysian waters, namely between 7 July 1965 to 9 July 1965, and 17 July 1965 to 3 August 1965. A voyage was made to South Vietnam as escort to HMAS Sydney but Mr Hardman was not on board HMAS Parramatta for this voyage.
Subsection 6C(1) of the VEA reads:
"Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as:
(a) a member who was allotted for duty in that area; or
(b)a member of a unit of the Defence Force that was allotted for duty in that area;
is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service."
And "allotted for duty" is defined in subs5B(2) as:
"A reference in this Act to a person, or a unit of the Defence Force, that was allotted for duty in an operational area is a reference:
(a)in the case of duty that was carried out in an operational area described in item 1, 2, 3, 4, 5, 6, 7 or 8 of Schedule 2 (in column 1)—to a person, or unit of the Defence Force, that is allotted for duty in the area (whether retrospectively or otherwise) by written instrument issued by the Defence Force for use by the Commission in determining a person's eligibility for entitlements under this Act; …"
It was not disputed in these proceedings that HMAS Parramatta had been so allotted for duty and the periods abovementioned were periods during which Mr Hardman had operational service. They are, however, irrelevant for present purposes as it is clear that the events relied upon by Mr Hardman occurred outside of those specific periods.
Apart from the periods of operational service referred to above, the only provision of the VEA which would create liability in the Repatriation Commission is subs13(6) which reads:
"Where the death of a person who is, or was, a member of the Defence Force, or the incapacity of such a person from injury or disease:
(a)resulted from an occurrence that happened, or a disease that was contracted, on or after 31 July 1962:
(i)as a result of action of hostile forces; or
(ii)while the person was engaged in warlike operations against hostile forces;
being an occurrence that happened, or a disease that was contracted, outside Australia while the person was rendering continuous full-time service as a member of the Defence Force, but otherwise than during any operational service of the person in an operational area; …"
In seeking to ascertain whether any of the events deposed to by Mr Hardman occurred and whether those events occurred as a result of action of hostile forces or from an engagement in warlike operations against hostile forces, the standard of proof to be applied by the Tribunal is that of, to its "reasonable satisfaction" (subs120(4) of the VEA). As was pointed out in Repatriation Commission v Smith 15 FCR 327, the term "reasonable satisfaction" imports the civil standard of proof, that is to say proof on the balance of probabilities. Subs120(6) of the VEA provides that neither party to this review bears any onus of proof.
As to what constitutes hostile forces and what is action by or against those hostile forces, I would refer by way of an analogy to Repatriation Commission v Thompson 82 ALR 352 and Wilcocks v Repatriation Commission 111 ALR 639 and hold that the test is an objective one, not subjective, and that mere contact with hostile forces is not of itself sufficient.
Clouding these proceedings is the undisputed fact that Mr Hardman has on previous occasions given a description of his service which he knew to be false. In Transcript of 3 December 1999 at page 17, he states quite unequivocally that he put forward information which he knew to be false at the instigation of an official of the Vietnam Veterans' Association. The whole basis of this false information was to boost his claim.
Mr Hardman was also extensively cross-examined as to previous evidence he had given as to his service and I found him, during cross-examination, to be quite evasive and most unimpressive as a witness.
Whilst there is no reason why I should not accept Mr Hardman's evidence as to the genuineness of his confession at face value, what his false evidence does mean is that wherever possible I should look for corroboration of his evidence.
That Mr Hardman's evidence cannot be accepted, except where corroborated, is made manifest by his cross-examination as to a statement signed by him in a claim for pension which is at Document T4 in the papers prepared for the Tribunal in matter N1998/896. In examination in chief he was asked about Document T4 and question 16 thereof. He stated that points 1 to 4 of question 16 were true whereas, in cross-examination, he conceded that point 1 was untrue.
Mr Hardman's case was based upon three events, namely:
(i)an incident whilst aboard HMAS Parramatta when a small civilian craft was being searched and its occupants questioned by Malay Police. It is alleged that Mr Hardman witnessed maltreatment of the civilian vessel's crew by the Police and that this traumatised him;
(ii)an incident while Mr Hardman was in Tawau Hospital. In his statement to the Tribunal (Exhibit A3), he described the incident thus:
"After I had been there about five days, a wounded Indonesian was admitted. He appeared to be very ill. During the night, I saw several Malayan soldiers take him from his bed. I heard a lot of shouting and some cries of pain. A short time later, I heard gunshots. I didn't see him again. I tried to question the native staff about what had happened. They appeared scared and were unwilling to talk about what had happened, even denying any knowledge of the incident.";
(iii)whilst at Tawau airstrip in camp with a Malaysian unit, awaiting air transport back to Singapore, that unit was attacked and Mr Hardman had to fire at the attackers. He was unsure if he had in fact killed anyone and, if so, whether he had shot an attacker or an ally. He also claimed that prisoners taken in the attack were summarily executed by the Malaysians.
Central to the events which Mr Hardman claimed happened was evidence as to what was happening in Malaysian waters and, in particular, Malaysian North Borneo at that time. To cast doubt upon Mr Hardman's version of events, the Repatriation Commission called Associate Professor Grey from the School of History at the Australian Defence Force Academy.
In reply to Associate Professor Grey, the Legal Aid Commission, who acted for Mr Hardman, called Mr Brendon O'Keefe, who is described as a Consulting Historian and who has conducted research on military subjects including research for the Australian War Memorial and the Repatriation Commission. However, I found that Mr O'Keefe's evidence dealt in generalities and consisted of a series of possibilities rather than any hard evidence as to what had occurred or events which could be regarded as corroboration of Mr Hardman's evidence. I was much more impressed by the evidence of Associate Professor Grey who has a detailed knowledge of the theatre and the particular campaign. Where there is any conflict between Associate Professor Grey and Mr O'Keefe, I prefer the evidence of Associate Professor Grey.
Time is also of an essence. It was not suggested by either party that the events deposed to by Mr Hardman occurred during the two periods of operational service. Records reveal that Mr Hardman was admitted to the Sick Bay of HMAS Parramatta with appendicitis on 26 May 1965 and transferred to Cottage Hospital, Tawau on 29 May 1965. On 8 June 1965 he was received at HMS Terror, the Naval Shore Establishment at Singapore.
Document T27 (in N1998/896) at page 155 is a copy of the Report of Proceedings for HMAS Parramatta for the month of May 1965. Paragraph 14 of that document confirms that a rating who was suffering from acute appendicitis was landed at Tawau. Paragraph 2 of the report states:
"… At the beginning of the month, PARRAMATTA was carrying out Anti-infiltration patrol duties off Port Swettenham. No incidents occurred during the 1st May and at sunrise on Sunday 2nd, course was set for Singapore Naval Base. … At 1600GH the same day PARRAMATTA secured port side to No. 13 berth, Singapore Naval Base."
Exhibit R9 is the Report of Proceedings for the month of April 1965 for HMAS Parramatta, paragraphs 7 and 8 of which read:
"7. The ship was detached at 0500GH, on completion of flying and course set for the DG Range at Pulau Bukom. Ranging was completed at 1035GH and having embarked a Malaysian interpreter, PARRAMATTA proceeded to her Patrol area in the Malacca Strait. No incidents occurred during the night and at 0730GH Wednesday 28th the ship proceeded to a new patrol area off Belawan, the port for Medan in Sumatra.
8. A full day was spent in this area and at 1800GH the next day, passage was made back to the patrol area off Port Swettenham. Again no incidents occurred though several fishing boats acting suspiciously were investigated. At sunrise on Friday 30th PARRAMATTA proceeded to rendezvous with TIDEREACH off Port Dickson to replenish F.F.O. and anchored in the same area on completion.
At 1800GH the same day, PARRAMATTA weighed and proceeded to her patrol area off Port Swettenham."
In his statement (Exhibit A3) Mr Hardman refers to taking interpreters aboard HMAS Parramatta "in late April". I am therefore satisfied that the events referred to by Mr Hardman occurred in late April 1965 as the Report of Proceedings for May 1965 makes no reference to any 'stop and search' activity. This finding puts all three events deposed to by Mr Hardman as outside the period during which HMAS Parramatta was allotted for operational service.
So far as the incident with the civilian craft is concerned, I have grave doubts as to Mr Hardman's evidence. He described the incident thus in Exhibit A3:
"One evening, I opened the magazine door to get some cooler air. I observed the Malayans conducting a search of an Indonesian fishing junk tied to our quarterdeck. I observed several Indonesian men being questioned by the Malayans. Some of them were struck about the head. I then saw a rope being tied to one man's legs. He was pushed into the water, and, when the rope was pulled, his head would be forced under water. At this point, I was seen by a Petty Officer who told me to return to my station. One thing I have never forgotten is the look of fear on the face of one of the Indonesians. …"
To the Veterans' Review Board Mr Hardman confirmed his description of the interrogation. At Document T22 page 136 he said:
"During one search at night, because of the heat, I opened the door of the magazine and could see Malaysian personnel questioning 3 Indonesians. During this period the Indonesians were kicked, punched, abused and a rope was tied around the feet of one and he was thrown overboard from the Quarterdeck and dunked up and down in the water for several minutes, then pulled back on board in what appeared to be a very distressed state. At the same time I was seen to have the magazine door open and told by a Petty Officer to close it and stay at my station until stood down."
If the Applicant's version of events is accepted, it means that a deliberate act of ill treatment was carried out whilst the civilian vessel was alongside HMAS Parramatta. Although the questioning and search activities were carried out by Malaysian authorities, the vessel would have been illuminated by lights from HMAS Parramatta and that warship's bridge officers would have been keeping a close watch upon the civilian vessel. I consider it unlikely that Malaysian officials would, in these circumstances, overtly engage in acts of ill treatment.
I note also that in Exhibit R9, the reference is to the taking on board of an interpreter (single). No reference is made to any other Malaysian officials, yet Mr Hardman in both statements refers to Malayans (plural). In his letter dated 21 July 1997 Mr Hardman states that the Indonesian was thrown overboard "from the Quarterdeck", meaning the quarterdeck of HMAS Parramatta. Cross-examined in these proceedings, Mr Hardman stated that the Indonesian was thrown overboard from the "junk". I simply do not accept Mr Hardman's version of events.
In any event, the actions of bringing the civilian vessel alongside, searching it and interrogating its crew was more akin to a police action and did not constitute an engagement in warlike operations against an enemy. Much less, did they constitute an action of hostile forces.
No doubt, prior to interception of the civilian craft, HMAS Parramatta was on an heightened state of alert as the vessel could have had a hostile intent. The reality was, however, that although it may have been engaged in some other activity such as illegal fishing or smuggling, there were no warlike operations or action of hostile forces. Once the vessel was alongside HMAS Parramatta and boarded, its benign intent would have been obvious, and it was at this time that the events alleged by Mr Hardman are said to have taken place.
The test of whether there has been action of hostile forces or an engagement in warlike activities is an objective one - cf Thompson's case supra and can be viewed in hindsight.
The second event relied upon by Mr Hardman was the removal of a patient from the Cottage Hospital, Tawau. He has given different versions of what happened here, for example, in his letter of 21 July 1997, addressed to the Deputy Commissioner, Veterans Affairs (Document T22 p136), which was before the Veterans' Review Board, he stated:
"Late in the afternoon a wounded Indonesian was admitted. During the night I saw several Malayan servicemen remove him against his will and gunfire was heard shortly after. When I asked the native staff what had happened they acted as if they had seen nothing – they appeared to be very scared."
He repeated this story in his statement to the Tribunal (Exhibit A3) stating:
"After I had been there about five days, a wounded Indonesian was admitted. He appeared to be very ill. During the night, I saw several Malayan soldiers take him from his bed. I heard a lot of shouting and some cries of pain. A short time later, I heard gunshots. I didn't see him again. I tried to question the native staff about what had happened. They appeared scared and were unwilling to talk about what had happened, even denying any knowledge of the incident."
Cross-examined, Mr Hardman could not satisfactorily explain why he did not mention in his letter of 21 July 1997 that he had heard "a lot of shouting and cries of pain".
Document T21 in matter N1999/263 is a report by Dr Lumley, Psychiatrist, dated 16 July 1997. In that report Dr Lumley states:
"When he was serving on the HMAS Parramatta he was taken to a cottage hospital on 29 June 1965 in Sabah in North Borneo for an appendix operation. It was during the post-operative phase of his stay in hospital that he witnessed events which were exceedingly traumatic for him involving what he considered to be the execution of Indonesian patients by Malaysian serviceman (sic)."
That account of events was not told to Dr Lumley when he first took a history from Mr Hardman, prior to compiling his report of 9 August 1996 (T7 in N1999/263). Mr Hardman also admitted that the history he gave Dr Lumley for that report of HMAS Parramatta shelling Indonesian forces at night and being frequently fired upon, was untrue.
Having heard the evidence of Associate Professor Grey and Mr O'Keefe, I am prepared to accept an hypothesis that an Indonesian sympathiser was brought to the hospital and then removed in order that he might provide information to Malaysian Field Force Police who were a paramilitary unit. I am not, however, prepared to accept the suggestion by Mr Hardman that that person was summarily executed.
Whatever did happen at the Cottage Hospital, Tawau is, in any event, immaterial as Mr Hardman was no more than a passive spectator and cannot bring himself within the terms of subs13(6) of the VEA.
The third matter relied upon by Mr Hardman was an alleged attack upon a Malaysian Army Camp adjacent to Tawau airstrip whilst he was waiting transport back to Singapore in order to rejoin his ship.
In his letter of 21 July 1996 (T22 pp136, 137 of N1998/896) Mr Hardman stated:
"On my second or third day there I was awoken by loud explosions and a lot of gunfire, I was not sure what was happening but was dragged behind some sandbag covers – a lot of gunfire and explosions were taking place.
I could hear bullets hitting the bags I was behind and then a lot of yelling and running. I looked up and saw someone running towards me from the edge of the jungle. I have never felt so much fear. I pulled the trigger of my rifle and just kept firing until the rifle ran out of bullets. When everything went quiet the wounded Indonesian or whatever they were, were taken to the edge of the jungle and shot by Malaysian troops."
To the Tribunal he stated, in Exhibit A3:
"Early one morning, I was awoken by gunfire. Someone pulled me behind some sandbags. There was confusion for a short time. Then I saw somebody running at me from the edge of the jungle. I panicked and pulled the rifle trigger until the magazine was empty. Everything went quiet then and I saw a number of men being taken towards the jungle. Just after that, I heard gunfire. None of the captured men returned. During that day, everyone at the camp seemed irritable but things had settled down by nightfall."
Cross-examined, Mr Hardman was referred to the transcript of his evidence before the Veterans' Review Board. In that transcript he clearly states that he has slides of bodies at the jungle camp. In cross-examination he stated "well if I said that I don't know why I would have said it because (there) were no bodies".
The Applicant did, however, produce photographs of the camp and of an explosion. This explosion is explained by the evidence of Associate Professor Grey discussed below.
No mention is made of the alleged attack upon the camp in the history taken by Dr Lumley for his report of 9 August 1996. In his later report of 16 July 1997 (T21 of N1999/263), he records a history in the following terms, namely:
"However after he had been in the camp for several days there was an attack launched against the camp by Indonesian soldiers and he remembers bullets flying over his head and hitting sandbags nearby. He then remembers seeing someone he thought was an Indonesian running towards him and he began firing his rifle in the direction of that person. However he is now left with very great uncertainty as to whether this was an Indonesian or whether he had accidentally shot a Malaysian soldier and he has been troubled by this ever since believing that he may have taken the life of an innocent person who was therefore killed by friendly fire."
It will be noted, no mention is made of summary executions.
Mr John Hambridge is a clinical psychologist practising at the John Hunter Hospital, Newcastle. In his report of 12 January 2000 (Exhibit A14) he refers to five interviews with Mr Hardman between 13 May 1997 and 20 February 1998. The history he was given is:
"He stated that during his brief period at this camp there was an attack by armed enemy forces. He reported that on this occasion he fired his rifle at somebody and believes that he killed him. He stated that although the attackers were repelled a number were taken prisoner. He stated that they were tortured and executed and that he observed both of these taking place. …"
Cf the report of Dr Gertler of 6 July 1999 (Exhibit A7) who took a history of prisoners being taken into the jungle by Malaysian soldiers, of Mr Hardman hearing gunshots and then never seeing the prisoners again.
Cross-examined regarding the incident, Mr Hardman could not remember what the alleged attackers were wearing and rejected the suggestion that there might have been an exercise which would have explained the statement "everyone else acted as if this was normal routine".
Associate Professor Grey is, as stated above, familiar with the Borneo theatre during confrontation. He is a co-author of the work "Emergency and Confrontation" subtitled "Australian Military Operations in Malaya and Borneo 1950-1966" published by Allen and Unwin in association with the Australian War Memorial. In his latest report dated 29 March 2000 he states, in reply to matters raised by Mr O'Keefe:
"Mr O'Keefe is suspicious of official records compiled at the time (although he has not himself consulted the ones in question here). There is no reason to accept the arguments he advances for discounting the classified reports to which I referred in my initial (and subsequent) reports. Even if we were to agree that the report filed by Headquarters, Director of Operations Borneo was deficient (and I do not accept this, and note as well that we have both weekly and quarterly operational summaries for East Brigade from this source), we have the Operations Record Book for RAF Tawau for the period of Mr Hardman's soujourn there which makes it clear that nothing happened that remotely resembles his accounts of his experiences. These records were produced quite separately from and independently of the HQ DOBOPS reports, and have been acquired from a different source. They belie his claims also. It is ludicrous to suggest, as Mr Hardman did in his testimony in Sydney on 17 March 2000, that a serious firefight could break out in the close vicinity of an RAF Station and that not only would the personnel there not react in any way, but that such a serious incident would not be recorded in any way in the records of that Station. Further to this again, in the official account of RAF operations in the Far East (David Lee, Eastward, page 229), which Mr O'Keefe has relied on for other purposes in his report, we find the following statement:
after the initial Brunei revolt had been put down, the Commonwealth forces had little or no internal security problem. Airfields and airstrips required little defence and at no time was more than one RAF Regiment squadron deployed in Borneo for its primary role of airfield defence.
I stand by my original conclusion that the attack in this area did not occur, and that as a consequence his claims about the subsequent murder of alleged Indonesian personnel could not have occurred." (Exhibit R14 p2)
Exhibit R15 is a copy of a map of Tawau and its environs produced by Associate Professor Grey. That map shows the airstrip close to Tawau township, consequently any attack upon it could not have gone unnoticed. Also, as pointed out by Associate Professor Grey in evidence, the map refutes Mr Hardman's evidence that he was taken to the airfield camp from Tawau Cottage Hospital along a very rough road on a journey that lasted one hour. The map shows the roads from Tawau town to the airstrip were either two way all weather, or one way all weather with a graded surface and that the town and airstrip are two miles apart.
Exhibit R13 contains an extract from the relevant page of Operational Record Book of RAF Base Tawau. For 8 June 1965 the entry reads:
"Air Defence Exercise – A station air defence exercise was held during the morning. 3 Oerlikon guns were manned and strikes on the airfield were made by two Hunter aircraft."
Of this entry, Associate Professor Grey wrote (report dated 26 February 200, Exhibit R13):
"During the exercise thunder flash charges may well have been set off on the ground in order to simulate the impact of bombs or other ordnance (this is/was pretty common in such training). This would gell with Mr Hardman's statement in the transcript (3 December 1999) that 'I couldn't see why someone would want to bomb themselves' (page 47). But the point is, they weren't real bombs and the calm with which those around him treated the event supports the fact that it was an exercise."
The above would also explain the photographs of an explosion, tendered by Mr Hardman.
Given the proximity of Tawau township, the fact that an RAF Station was also at Tawau airstrip and the total lack of any official record of the alleged attack referred to by Mr Hardman, coupled with the entry in the RAF Operations Record Book (Exhibit R13), I am totally convinced that the events referred to by Mr Hardman did not happen. That is to say, there was no attack upon the airstrip, but rather an air defence exercise which Mr Hardman has adapted for his own purposes.
I am strengthened in this view by the failure of Mr Hardman to initially give a history of the matter to Dr Lumley. To accept his evidence also means accepting that elements of the Malaysian Army acted contrary to the Geneva Conventions (particularly Articles 4, 12 and 13 of the Convention relating to prisoners of war dated 12 August 1949) and summarily executed prisoners.
A further factor casting doubt upon Mr Hardman's version of events is his evidence that although he reported incidents to various people including his Divisional Officer, the Commander of HMAS Parramatta, a medical officer at Labuan, a consultant psychiatrist to the RAN and a RAN Chaplain, all of them declined to take any action on what he had told them.
In diagnosing Mr Hardman as suffering from a post traumatic stress disorder, both Drs Lumley and Gertler have referred to a history taken from the Applicant which history has been found to be false in material particulars. At best, even if it were accepted that Mr Hardman had a post traumatic stress disorder as a result of the events at the Cottage Hospital, Tawau, that event did not occur in circumstances so as to invoke subs13(6) of the VEA.
The Full Court of the Federal Court in Repatriation Commission v Cooke 160 ALR 17 determined that whether a disease or injury existed for the purposes of the VEA was a matter to be decided to the Repatriation Commission's (an hence this Tribunal's) reasonable satisfaction.
If the history upon which medical practitioners have based their opinions is shown to be false then it cannot be said that the Tribunal can be reasonably satisfied that the said condition does in fact exist.
Even if a post traumatic stress disorder or any other psychiatric disease were to exist then the history propounded regarding two of the alleged causative events being false and the only other event suggested as a cause not coming within the provisions of para 13(6)(a)(i) or (ii) of the VEA, all that can be said is that the Tribunal cannot be reasonably satisfied that the said disease was caused or contributed to by either one or both of the factors referred in the said paragraphs 13(6)(a)(i) and (ii) of the VEA.
Although not directly addressed in argument before the Tribunal the Veterans' Review Board accepted Mr Hardman's irritable bowel syndrome, as being liable to pension, based on the acceptance of his post traumatic stress disorder. As I am not satisfied that Mr Hardman has either post traumatic stress disorder or, if a post traumatic stress disorder or any other psychiatric disease exists, that said disease is pensionable pursuant to subs13(6) of the VEA then Mr Hardman's irritable bowel syndrome is also not pensionable.
For the above reasons therefore that part of the decision of the Veterans' Review Board of 20 April 1998 that accepted incapacity from the diseases of post traumatic stress disorder and irritable bowel syndrome was liable to pension pursuant to subs13(6) of the VEA is set aside and the Tribunal substitutes in lieu of that part of the said decision so set aside, its decision, namely that Gary James Hardman is not entitled to pension pursuant to the provisions of the Veterans' Entitlements Act 1986 for incapacity from a post traumatic stress disorder and irritable bowel syndrome.
Matters numbered N1998/896 and N1999/263 are adjourned to a date to be fixed.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Signed: Ivanka Mamic .....................................................................................
AssociateDates of Hearing 3 December 1999 – Newcastle,
17 March 2000 – Sydney, and
3 April 2000 – NewcastleDate of Decision 26 April 2000
Counsel for the Applicant 3 April 2000 - Mr G T Johnson
Solicitor for the Applicant 3 December 1999 –
Ms E Sadlier, Legal Aid Commission
17 March 2000 –
Mr R Sherlock, Legal Aid Commission
3 April, 2000 –
Ms E Sadlier, Legal Aid CommissionCounsel for the Respondent 3 December 1999 – Mr D E J Ryan
17 March 2000 – Mr R Beech-Jones
3 April 2000 – Mr D E J RyanSolicitor for the Respondent Mr I Williams,
Legal Services Group,
Department of Veterans' Affairs
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