Hunt and Repatriation Commission (Veterans' entitlements) - [2020] AATA 5156

Hunt and Repatriation Commission (Veterans' entitlements) [2020] AATA 5156 (21 December 2020)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/6167
Re:GORDON EDWARD HUNT
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:R CAMERON SENIOR MEMBER
Date:21 December 2020
Place:Melbourne

The Tribunal sets aside the VRB decision and in substitution decides that:
(a)The Applicant suffers from the psychiatric conditions, Irritable Bowel Syndrome, alcohol use disorder and Colorectal Adenoma (“the established conditions”); and
(b)By reason of the established conditions, the Applicant’s claim for medical treatment and a pension for incapacity is allowed.

....................[sgd]....................................................
R CAMERON SENIOR MEMBER
Catchwords
VETERANS AFFAIRS – conditions – war caused – Statement of Principles – Deledio steps – Category 1A Stressor – Category 1B Stressor – Category 2 Stressor – Anxiety Disorder – Alcohol Disorder – Colorectal Adenoma – Irritable Bowel Syndrome – Bullying and Disharmony – decision under review set aside and substituted
Legislation

Administrative Appeals Tribunal Act 1975

Veterans’ Entitlements Act 1986 (Cth)
Cases
Bailey v Repatriation Commission [2019] FCA 1840
Byrnes v Repatriation Commission (1993) 177 CLR 564
Deledio v Repatriation Commission (1997) 47 ALD 261
East v Repatriation Commission (1987) 16 FCR 517
Forrester v Repatriation Commission [2013] FCA 898

Hunt v Repatriation Commission (2019) 166 ALD 321; [2019] FCA 1191
Repatriation Commission v Deledio (1998) 83 FCR 82
Summers v Repatriation Commission (2015) 230 FCR 179

REASONS FOR DECISION
R CAMERON SENIOR MEMBER.
21 December 2020
INTRODUCTION-PROCEDURAL HISTORY

This matter has unfortunately had a long history which is regrettable. On 21 December 2011, the Applicant made a claim for benefits including a pension under the relevant provisions of the Veterans Entitlements Act 1986 (Cth) (“the Act”).
The decision for which the Applicant seeks review in this Tribunal was made by the Veterans’ Review Board on 26 September 2016.[1] (“the VRB decision”)
[1] Document t 2 of the T documents.
The Applicant applied to this Tribunal for review of the VRB decision. Such application was unsuccessful, and reasons were given by a previously constituted Tribunal on 3 May 2018. That decision was appealed to the Federal Court of Australia. In a judgement and reasons delivered on 2 August 2019, Steward J set aside the decision of the Tribunal made on
[2] Hunt v Repatriation Commission (2019) 166 ALD 321; [2019] FCA 1191.
3 May 2018.[2] The Application was remitted to a differently constituted Tribunal for determination according to law.
THE CONDUCT OF THIS HEARING
The matter was re-heard before the Tribunal as reconstituted. There was both documentary and viva voce evidence before the Tribunal at the reconstituted hearing of the matter. It is not necessary to identify all the documentary evidence. However, it should be noted that the transcript of the previous hearing was received in evidence by agreement with the parties for all purposes. The “T” documents, a statement of the Applicant made on 8 November 2016, the Applicant’s Service Records, and Supplementary “T” documents were also admitted in evidence.
The Applicant, Mr Ian Laurie and Mr Paul Robottom gave viva voce evidence at the further hearing of the application.[3]
[3] For the sake of completeness, it should also be noted that at the first hearing of this application Dr Weissman also gave viva voce evidence. As earlier observed, the transcript of his evidence was before the Tribunal in this hearing of the application.
Amongst the T documents was a “Military Research Report”, dated 31 May 2016, prepared by Mr Robottom of Providence Consulting Group Pty Ltd. (“The Robottom report”). Reference should be made to an evidentiary ruling that was given concerning the contents of the Robottom report. Counsel for the Applicant applied to strike out, or otherwise not have read into evidence several paragraphs of the Robottom report. The Tribunal acceded to this application by agreeing not to read them. The sections concerned were all of paragraph 3.1, paragraph 3.11, the last sentence in paragraph 3.12, paragraphs 3.53 to 3.55, 3.83 to 3.85 and 4.5. The reasons for this ruling were articulated during the course of the hearing. However, it is appropriate briefly to refer to a synopsis of the reasons for making this ruling for the sake of completeness.
Quite properly, Mr Brown on behalf of the Respondent helpfully acknowledged that the Robottom report was not being introduced into evidence as an expert. He also responsibly in acting for a model litigant conceded that some of the paragraphs that were complained of should be struck out in their entirety, particularly where Mr Robottom failed to apply the correct statutory test. Mr Robottom’s report had been requested by the Respondent Department at the request of the VRB. In many respects, as the Tribunal alluded to in the course of this hearing, it bore all hallmarks of a report prepared by such people as an investigator, or detective who might be advising his superiors on the prospects of a prosecution, or the results of that investigation. To that extent, Mr Robottom should not be criticised as he was to some considerable extent undertaking the task requested of him.
However, it did not assist the Tribunal for Mr Robottom to include opinions about the Applicant’s credibility, as it will be recalled is ultimately a question for this Tribunal to determine; bearing in mind that the Tribunal had the opportunity to observe the Applicant in the witness box which Mr Robottom did not. It appears that he also did not interview the Applicant.
Also, as was properly conceded by Mr Brown, Mr Robottom misconstrued the statutory test that must be applied, which he is not qualified to do (and in any event must be decided by the Tribunal) under the Act and made inadmissible findings. The Tribunal wishes to stress that these findings are not a criticism of Mr Robottom in a professional sense. He presented in the witness box as a fair-minded professional in a military, security and investigative sense (of which he had much distinguished experience), who ultimately did what he was asked to do to the best of his ability. He bore no ill will or malice to the Applicant, and in several respects, the Tribunal found aspects of his evidence supportive of the Applicant. Particularly, concerning Warrant Officer Church. The Tribunal recognises that in preparing his report, he would not have expected many years later to be in the witness box in the way that he was.
BACKGROUND
The Applicant served in the Australian Regular Army from 21 February 1966 to 20 February 1972. During that time, he served in the Vietnam War from 6 November 1969 to 6 May 1970. This service in Vietnam was operational service within the meaning of section 6C of the Act.
Upon arrival in Vietnam, the Applicant was posted to a position as a Cash Office Clerk at Nui Dat. During his time there, the Applicant gave evidence of disharmony and bullying against him by a superior Warrant Officer Robert Maxwell Church (“Warrant Officer Church”). Ultimately, he was coerced by Warrant Officer Church into accepting a demotion from the rank of Corporal to Private.
At the same time as accepting the demotion to the rank of Private, the Applicant was transferred to Saigon and billeted at a hotel known as the “Bachelor Enlisted Quarters” (“BEQ”). This hotel or quarters were known to Australian defence personnel by the nomenclature of the “Canberra Hotel”.
Whilst stationed at the Canberra Hotel, the Applicant observed two incidents that caused him much distress involving interaction between South Vietnamese police and civilians.
The first incident occurred on March 1970 when he was on guard duty at the Canberra Hotel and observed the South Vietnamese military police shoot a fleeing civilian whom he believed was killed (“the first Saigon incident”).
The second incident occurred in approximately April 1970. Again, the Applicant was on guard duty, when he apprehended a Vietnamese civilian in possession of a screwdriver or implement, who was at the time located between two parked Australian Army vehicles. Shortly after he apprehended the civilian, the Vietnamese military police arrived and demanded that the detainee be handed over to them. He complied with the demand. Whilst returning to his gun post, the Applicant heard a gunshot and saw the civilian lying on the ground with a gunshot wound to his chest. The Applicant observed much blood flowing from the chest wound caused by the gunshot. The civilian’s body appeared to be lifeless. The military police picked up the civilian’s body and loaded it in their truck. It was the Applicant’s belief that the civilian died from the gunshot wounds inflicted by the police (“the second Saigon incident”).[4]
[4] Where in these reasons reference is made to the "Saigon incidents", it means collectively the first Saigon incident in the second Saigon incident.
The Applicant also contends that prior to his active service in Vietnam, he was a very modest social drinker. Whilst serving there, he was exposed to readily available alcohol which led to him developing a high level of consumption, developing a condition of alcohol abuse and dependence.

QUESTIONS FOR THE TRIBUNAL TO DETERMINE
Neither party specifically formulated precise questions for determination by the Tribunal in their Statements of Facts, Issues and Contentions. However, it emerged from the material that following questions properly arose for its determination:
(a)Is the Applicant suffering from conditions[5] of:
i.Depression, anxiety, adjustment disorder;
ii.Irritable Bowel Syndrome; and
iii.Rectal polyps.
(b) If so, whether they were “war caused” within the meaning of section 9 of the Act.
[5] For the purposes of these reasons these conditions will throughout be defined by the term collectively "conditions".
A BRIEF OUTLINE OF THE APPLICABLE LEGISLATIVE MECHANISM TO THIS APPLICATION
The reasons of Steward J in this matter provide a most helpful summary of the legislative mechanism applicable to this application. Much of what is explained subsequently on this topic is adapted from those reasons. There is no sound reason to do otherwise, as those reasons contain an excellent summary of the law binding the Tribunal.
Under section 13 of the Act, if a veteran has become incapacitated from a “war caused”[6] injury or disease, the Commonwealth, subject to the provisions of the Act is liable to pay a pension to the veteran.
[6] War-caused injuries or diseases are defined in section 9 of the Act. It must occur whilst the veteran is rendering operational service. There was no dispute that the Applicant had undertaken operational service during the Vietnam War, which is eligible for service under section 7 of the Act and makes him a veteran. As noted by Steward J adopting the words of Mortimer J in Forrester v Repatriation Commission[2013] FCA 898 at [9], the decision-maker is required to apply complicated convolutions of the statutory standards and prescriptions on causation articulated in sections 120 and 120A of the Act. The Tribunal concurs with this description.
A veteran’s entitlement to a pension depends on whether a causal link is established between an applicant’s war service, such as the Applicant in this matter, and the conditions found to be affecting him.
The process of establishing the causal connection between the veteran’s injury or disease, and his service is intended to operate beneficially[7] towards the applicant veteran. Beneficial legislation should be construed to achieve the objects of the Act concerned.
[7] Anastassiou J in Bailey v Repatriation Commission[2019] FCA 1840 at [37] described the language used in section 120 (1) as “giving the veteran the benefit of applying a "beneficial standard". At paragraph [39] he described the section as conferring on a veteran a significant benefit if it is compared to the position of a claimant in a civil case.
The applicable sections of the Act will not be reproduced in these reasons. Reference to the specific sections will be made and the substance of them referred to. Relevantly, for the purposes of this application, section 120 of the Act addresses the standard of proof required when a claim is made for a pension in respect of an injury or disease. The precise language used in that section is referred to in its entirety. Section 120(1) requires the determination that the injury or disease was war caused unless the Commission (or the Tribunal standing in its shoes as decision-maker) is satisfied beyond reasonable doubt, that there is no sufficient ground for such a determination.
As Steward J observed, the effect of section 120(1) of the Act is that when a claim is made, relating to the operational service rendered by a veteran, they have the benefit of a reverse criminal standard proof in relation to whether the injury or disease was war caused. This obliges the decision-maker to determine that an injury, or disease was war caused, unless it is satisfied beyond reasonable doubt, that there is no sufficient ground for making that determination. The reverse standard of criminal law proof is recognition of the specific risk of injury or death to which armed services personnel are exposed whilst engaged on active service.[8] This is perfectly understandable.
[8] Summers v Repatriation Commission (2015) 230 FCR 179 at [25].
The Tribunal should perhaps also observe that the approach to construing section 120(1) of the Act adopted by Steward J is in slight contrast to the view taken by Anastassiou J in Bailey v Repatriation Commission.[9] In considering this part of section 120(1) of the Act, it is worthwhile reproducing in full his observations on the question:
“This section is often referred to as a “reverse criminal onus”. That shorthand expression may be apt to a degree, but not entirely. The applicant does not bear an onus and neither does the respondent. And it is only the “reverse” of the criminal standard of proof in that the Tribunal is required to be satisfied of the negative, namely that the injury was not war caused. The requirement that the Tribunal be satisfied of that negative upon the criminal standard of proof beyond reasonable doubt requires the Tribunal to affirmatively determine at the fourth stage[10], assuming it reaches that point, that the injury was not war caused.”
[9] [2019] FCA 1840 at [37].
[10] Anastassiou J is referring to the fourth step identified in the decision of the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82, which will be referred to in further detail later in these reasons.
The application of section 120(1) is subject to the proviso, or to adopt the words of
Steward J, “a decision heuristic or threshold inquiry” under sub-section 120(3). In respect of an injury or disease when applying sub-section (1), the decision-maker shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the injury was war-caused if after consideration of a whole the material before it, it is of the opinion that such material does not raise a reasonable hypothesis (“the hypothesis”) connecting the injury or disease with the circumstances of the particular service rendered by the applicant. As Steward J observed, applying the decision of Mortimer J in Forrester, it effectively prescribes a circumstance in which satisfaction beyond reasonable doubt for the purposes of section 120(1) is deemed to have been established. Accordingly, where the material for the consideration of the decision-maker does not raise a reasonable hypothesis causally connecting the injury or disease with the veteran’s active service, the requisite causal connexion is deemed not to exist.
The concept of a reasonable hypothesis has been the subject of several judicial determinations. It has been described as a proposition made as a basis for reasoning, without assumption of its truth; supposition made as a starting point for further investigation from known facts; groundless assumption. The addition of the words reasonable have been said to imply what is required is something more than a mere hypothesis. To be reasonable, it is said to have the qualities of some degree of acceptability or credibility. That means that it must not be fanciful, impossible, incredible or not tenable or too remote or too tenuous. This means the material must point to the subject matter of the hypothesis rather than leave it in a more speculative sense or open to supposition.[11]
[11] Steward J cited a passage from East v Repatriation Commission(1987)16 FCR 517 at 532-533, [28] per Jenkinson, Neaves and Wilcox JJ.
On its true and proper construction, there is not under section 120(5) of the Act, a presumption that the veteran’s injury or disease is war caused. The juxtaposition of this, however, is that under section 120(6), there is no onus on a veteran to prove or establish that their injury was war caused.
Section 120(3) of the Act provides that for the purposes of section 120(3), a hypothesis connecting any injuries suffered, or disease contracted by a person, with the circumstances of any particular service rendered by them is reasonable only if there is in force Statement of Principles (“SOP”) determined under section 196B(2) or (11) of the Act; or that upholds the hypothesis. The question of whether there is a reasonable hypothesis for the purpose of section 120(3) is a question of fact.
Where the material does raise a reasonable hypothesis, the operation of section 120(3) of the Act is spent and the matter is to be determined as required by section 120(1).
Steward J also referred to a section of a decision of the High Court of Australia in
[12] (1993) 177 CLR 564 at 570.
Byrnes v Repatriation Commission[12] which provides useful guidance for a decision-maker tasked with applying section 120(1) of the Act once a reasonable hypothesis has been raised. The question becomes whether they are satisfied beyond reasonable doubt that there is no sufficient ground for a finding that the injury was war caused. The requisite state of satisfaction will be achieved if the decision-maker is satisfied beyond reasonable doubt that the factual foundation of the hypothesis has been disproved. Disapproving the factual foundation can occur in two ways. Firstly, proof beyond reasonable doubt that the fact relied upon to support the hypothesis is not true. Secondly, proof beyond reasonable doubt of the truth of a further fact, which is inconsistent with the hypothesis.
The leading case that is referred to repeatedly in construing and applying these sections is Repatriation Commission v Deledio.[13] The Full Court of the Federal Court articulated four steps as part of what Steward J labelled an “analytical framework”. They are often referred to as the “Deledio steps” or “Deledio principles”. They need not be reproduced in full but instead summarised. These are essential elements well-known to practitioners and Tribunal members who deal with these applications from time to time.
[13] (1998) FCR 82 ("Deledio”) at 97-98. The relevant passages are referred to in their entirety for their full force and effect.
The first Deledio step requires the Tribunal, after considering all the material before it to determine whether that material points to a hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the Applicant. No question of fact finding arises in this step. If no such hypothesis arises, the application must fail.
If a hypothesis is raised from the material before it, the second Deledio step requires that the Tribunal must ascertain whether there is in force a SOP determined under section 196B(2) or (11) of the Act.
If a SOP is in force, the third Deledio step requires the Tribunal to form the opinion on whether the hypothesis was raised as a reasonable one. It will do so if the hypothesis fits, that is to say, consistent with the “template” to be found in the SOP. Importantly, as was considered in this case, the hypothesis raised before the Tribunal must contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the persons service (as required by sections 196B (2)(d) and (e) of the Act).

The fourth Deledio step obliges the Tribunal to proceed to consider under section 120(1) of the Act whether it is satisfied beyond reasonable doubt in the case of claim for incapacity, that the incapacity did not arise from a war caused injury. If not so satisfied, the claim must succeed. Critically, it is only at this stage of the process that the Tribunal engages in a fact-finding exercise from the material before it. In undertaking this exercise, no question of onus of proof or the application of any presumption, as noted earlier, is involved.
THE FIRST DELEDIO STEP-HYPOTHESIS
The Tribunal has considered all of the material before it to determine whether it points to a hypothesis connecting the Applicant’s war service with the claimed psychiatric conditions of adjustment disorder with mixed anxiety, depressive symptoms, anxiety disorder, PTSD and alcohol use disorder; together with the physical illnesses claimed, being irritable bowel syndrome and rectal polyps. The Tribunal considers that all the material objectively viewed does point to this hypothesis arising. There are several reasons for reaching this conclusion.
Firstly, there is the evidence of the Applicant himself concerning the alleged incidents of bullying and disharmony in Nui Dat and the incidents outside the Canberra Hotel in March and April of 1970 and the effect they had on him. Whilst it is disputed in many respects by the Respondent, and no question of fact finding arises at this stage, it is part of the matrix of material before the Tribunal.
The successful redress of wrongs upon his return from Vietnam in 1970 points to the existence of the hypothesis. Similarly, so do the contents of the Robottom report, together with Mr Robottoms’s viva voce evidence, concerning the Applicant’s interactions with Warrant Officer Church. There is also the professional evidence of three psychiatrists. It is readily conceded that their diagnoses do somewhat differ, or as it was put identify “overlapping symptoms”. Dr Weissman considered that at the clinical onset of the conditions he diagnosed the Applicant as suffering occurred in May 1970. Dr D’Ortenzio and Dr Walton had different views on the date of clinical onset. However, being the first step in the Deledio process, it is not for the Tribunal to delve further into this question. Collectively, this material without assumption of its truth, provides a platform or foundation for the proposition contended for by the Applicant, or a supposition made as a starting point for further investigation being the hypothesis contended for.
THE SECOND DELEDIO STEP-STATEMENT OF PRINCIPLES
Having considered all the material before it, and determined that such material points to the hypothesis connecting the several conditions from which the Applicant suffers with the circumstances of his service rendered, the second Deledio step requires the Tribunal to ascertain whether there is in force a SOP determined by the Authority under section 196B (2) or (11) of the Act.
At the time the Applicant made his claim, there was a SOP applicable to “Depressive Disorder”. That SOP was number 27 of 2008. That SOP was superseded by number 40 of 2010, number 83 of 2015 and number 29 of 2016.
There are several clauses of the applicable SOP for “Depressive Disorder” that have relevance to the issues for determination with respect to the Applicant’s psychiatric conditions before the Tribunal.
Clause 9 "Factors that must exist" provides that at least one of the factors that are numerate in that clause must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the depressive disorder with the circumstances of a person's relevant service (war service).
Clause 9(1)(b) of the SOP provides one of the factors is experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder.
Clause 9(1)(c) of the SOP provides one of the factors is experiencing a category 1B stressor within the five years before the clinical onset of the depressive disorder.
Clause 9(1)(f) of the SOP provides another factor is experiencing a category 2 stressor within the one-year for the clinical onset of depressive disorder.
Each of the category 1A, 1B and 2 stressors are defined in “Schedule 1-Dictionary” of the SOP.
“Category 1A stressor” means one of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured.
A “Category 1B stressor” is one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities effected on another person or persons;
(d) killing or maiming a person; or
(e) being an eyewitness to or participating in, the clearance of critically injured casualties.
“Category 2 stressor” means one of the following negative life events, the effects of which are chronic in nature and cause the person to feel ongoing distress, concern or worry:
(a) being socially isolated and unable to maintain friendships or family relationships, due to physical location, language barriers, disability, or medical or psychiatric illness;
(b) experiencing a problem with a long-term relationship including the break-up of a close personal relationship, the need for marital or relationship counselling, marital separation, or divorce;
(c) having concerns in the work or school environment including on-going disharmony with fellow work or school colleagues, perceived lack of control over tasks performed and stressful workloads, or experiencing bullying in the workplace or school environment;
(d) experiencing serious legal issues including being detained or held in custody, on-going involvement with the police concerning violations of the law, or court appearances associated with personal legal problems;
(e) having severe financial hardship including loss of employment, long periods of unemployment, foreclosure on a property, or bankruptcy;
(f) having a family member or significant other experience a major deterioration in their health; or
(g) being a full-time caregiver to a family member or significant other with a severe physical, mental or developmental disability.
A SOP “Anxiety Disorder” is also relevant. At the time of the application, the applicable instrument was number 101 of 2007 subsequently superseded by number 42 of 2010 and 15 of 2011. The definition of category 1A, 1B and category 2 stressors are the same in the SOP for Anxiety Disorder as that for Depressive Disorder save and except that it is necessary for an applicant under that SOP to experience those stressors within the immediate three months prior to the onset of such disorder.
There is an applicable SOP number 1 of 2009 “Alcohol Use Disorder”. The term “alcohol use disorder” is defined in clause 3(b) of the SOP. It is a problematic pattern of alcohol use leading to clinically significant impairment or distress as manifested by at least four of the criteria specified. (They need not be reproduced).
Under clause 6 of SOP, number 1 of 2009, the factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol use disorder with circumstances of a person’s relevant service include:
(a) having a clinically significant psychiatric condition at the time of the clinical onset of alcohol use disorder; or
(b) experiencing a category 1A stressor within the five years before the clinical onset of alcohol use disorder; or
(c) experiencing a category 1B stressor within five years before the clinical onset of alcohol use disorder.
For the claimed condition of polyps, there is an applicable SOP number 35 of 2013 “Colorectal Adenoma”. Both parties agree that a factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting this condition with the Applicant’s relevant service is drinking at least 250 kg of alcohol before the clinical onset of the condition.[14]
[14] It should be observed that clause 3 of Statement of Principles No 35 of 2013, "Kind of injury, disease or death” includes a definition of "colorectal adenoma" which includes, amongst other things, colorectal adenomatous polyps. All of the language used in clause 3 is referred to for its true and proper construction.
The claimed condition of “Irritable Bowel Syndrome” also has an applicable SOP being number 27 of 2011.
Clause 6 “Factors” of SOP number 27 of 2011 identifies several factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting irritable bowel syndrome with the circumstances of a person’s relevant service. Two of those factors warrant mention. They are:
(a) having a specified psychiatric condition within the six months before the clinical onset of irritable bowel syndrome; or
(b) having a specified psychiatric condition within the six months before the clinical worsening of irritable bowel syndrome.
Having found the existence of the hypothesis contended for by the Applicant as required by the first Deledio step, the Tribunal also concludes that there is in force a SOP determined by the authority under section 196B(2) or (11) of the Act.
The Tribunal did not understand either party disputing that there were relevant Statements of Principles applicable to the several conditions claimed by the Applicant.
The following factors are relevant to the Applicant’s claim for those claimed psychiatric conditions:
(a) Experiencing a category 1A stressor within:
i.the five years before the clinical onset of depressive disorder; or
ii.anxiety disorder; or
iii.the three months before the onset of adjustment disorder.
(b) Experiencing a category 1B stressor within:
i.the five years before the clinical onset of depressive or anxiety disorder; or
ii.the three months before the onset of adjustment disorder.
(c) Experiencing a category 2 stressor within:
i.the one year before the clinical onset of depressive or anxiety disorder; or
ii.the three months before the onset of adjustment disorder.
Having considered all the material, the Tribunal is satisfied that there is in force an applicable SOP to each limb of the hypothesis that has been postulated by the Applicant with respect to such of his psychiatric conditions that the second Deledio step is satisfied.
For the Applicant’s claimed condition of “Irritable Bowel Syndrome”, the Tribunal is also satisfied that there is in force an applicable SOP thereby satisfying the second Deledio step for this condition.
Concerning the Applicant’s claimed condition of polyps (Colorectal Adenoma), having considered all of the material including the requirement of drinking at least 250 kg of alcohol before the clinical onset of the condition, the Tribunal is satisfied that there is in force an applicable SOP by reason of which the second Deledio step is also satisfied.
THE THIRD DELEDIO STEP-REASONABLENESS OF HYPOTHESIS
As noted earlier, this step requires the Tribunal to form an opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits or is it consistent with the template to be found in the SOP. The hypothesis raised before the Tribunal must contain or identify one or more of the factors which have been determined by the Authority as the minimum which must exist and be related to the person’s service.
Anastassiou J in a recent decision of Bailey v Repatriation Commission[15] usefully summarised the task cast upon the Tribunal when undertaking the third Deledio step. It is a step where unwary decision-makers may, and sometimes do, fall into error. He observed that in reaching a conclusion about whether the material establishes a reasonable hypothesis, the Tribunal is not permitted to make any antecedent findings of fact in the sense of making findings about a particular matter. Critically, as he explained, the Tribunal must engage in a process of considering the whole of the material before it to ascertain whether it supports, or points to the hypothesis, without proving or disapproving the existence of various contested facts.
[15] [2019] FCA 1840 at [34].
It is when a decision-maker, such as the Tribunal, succumbs to the temptation when undertaking this step, of concluding that a matter of fact has or has not been proven, or otherwise established, (in whatever way it may be expressed or whatever language is used, for instance this can be as Anastassiou J explained it, “to prefer one characterisation of the evidence over another”)[16] that the error, in an appealable sense, occurs.
[16] Ibid at [35]. Counsel for the Applicant in submissions of the first hearing before the Tribunal, as previously constituted, put it another way which was similarly helpful namely, "that it is impermissible for the Tribunal to reject or accept evidence at this stage.” This Tribunal wholeheartedly agrees with this submission and the language used in it.
Concerning the Applicant’s claimed psychiatric disorders, the Tribunal has upon considering all the material before it formed the opinion that the hypothesis advanced by him is a reasonable one. The foundation for forming this opinion is apparent from several different sources.
It should not be forgotten the Applicant served in the Vietnam War.
The existence of the category 1A stressors which includes experiencing a life-threatening event and possibly being threatened with a weapon emerged from the evidence of the Applicant when describing the first Saigon incident.
The existence and experience of a category 1B stressor which is described as including being an eyewitness to a person being killed or critically injured, viewing corpses or critically injured casualties as an eyewitness, being an eyewitness to atrocities inflicted on another person or persons and the killing or maiming of a person also emerged from the Applicant’s evidence concerning the second Saigon incident.
The category 2 stressor includes ongoing disharmony with fellow work colleagues. The allegations of bullying and disharmony at Nui Dat fall within this category. The material before the Tribunal includes, but is not limited to, the observations made in the Robottom report as a result of the contact he made with both former Warrant Officers Church and Nicol. Indeed, the evidence of Robottom himself, which will be considered in more detail later, pointed towards the hypothesis fitting the template contained in the SOP with respect to the category 2 stressor. There is the successful application for redress of wrongs that was made on the Applicant’s return to Australia after his service in Vietnam. Additionally, there was the result of the Defence Abuse Response Taskforce (“DART”) application and its determination.
As for the claimed condition of “Irritable Bowel Syndrome”, one of the factors contained in clause 6 of that SOP is having a specified psychiatric condition within the six months before its clinical onset. As counsel for the Applicant put it in her closing submissions, this condition to some extent “hangs off” the matters germane to the depressive disorder.
The Respondent’s submissions asserted that the hypothesis contended for in all respects must fail because it did not fit the relevant template as the clinical onset of the Applicant’s condition was in the late 1980s or 1990s. Therefore, the Applicant must fail at the third Deledio step because that diagnosis was more than five years from the clinical date of onset. Without deciding the matter however, the Tribunal must reject this contention if no other reason than Dr Weissman opined that the clinical onset of the psychiatric conditions, however they may be defined, occurred in approximately May of 1970.
It should also be observed concerning the time of onset of these conditions, that the Applicant consistently maintained that he had suffered various psychiatric symptoms ever since he served in the Vietnam War. He stated he suffered none of those problems prior to his active service in that war. Whether one agrees with the statement which will be addressed later, he consistently also stated that, amongst other things, he related the causes and symptoms (or his psychiatric problems) to the bullying or disharmony at Nui Dat and the first and second Saigon incidents.
The Applicant’s claimed condition of polyps (Colorectal Adenoma), having considered all of the material including the minimum factor that must be satisfied in clause 6(b), namely the requirement of drinking at least 250 kg of alcohol before the clinical onset of the condition as well having considered the clinical evidence and the Applicant’s evidence, the Tribunal is satisfied that the hypothesis fits and is consistent with the template found in SOP no 35 of 2013.
For the reasons above, the hypothesis is more than just possible, not fanciful, unreal, too remote or tenuous. The material points to the hypothesis and its causal connection with the Applicant’s active service in Vietnam.
THE FOURTH DELEDIO STEP - IS THE TRIBUNAL SATISFIED THAT THE APPLICANT’S COMPLAINTS DID NOT ARISE FROM A WAR CAUSED INJURY?
Some Observations on the Applicant as a Witness
Prior to undertaking a more extensive consideration of the facts of this matter, it is appropriate to make some observations concerning the Applicant’s evidence. The Tribunal found him to be a credible witness, not prone overall to embellishment, reconstruction or invention. Like many witnesses who are being probed about events that occurred over 50 years ago, there were occasions where his recollection was faulty. Where his recollection was faulty overall, he readily admitted it, which is to his credit. The Tribunal did not understand the Respondent as contending that the Applicant was in his evidence engaging in reconstruction or lying. Indeed, in one part of the cross examination of the Applicant at the previous hearing of this matter, it was conceded by Mr Brown for the Respondent in a question addressed to the Applicant, that he appreciated the Applicant was under oath and being honest about his testimony. That is an accurate description of the way the Applicant approached his evidence in the witness box in the reconstituted hearing of the application before this Tribunal.
Mr Brown as he put it, placed significant store on several key features of the Applicant’s evidence, and several steps that he took concerning his application for a veteran’s pension, which it was contended were inconsistent with the case that he presented, or the evidence that he gave to the Tribunal in the course of this or the first hearing. These inconsistencies will be addressed at this stage of the reasons. They are not addressed in any order of priority or significance. However, they will be addressed roughly in the order as they were submitted to the Tribunal by Mr Brown during his closing submissions.
The Respondent tackled the Applicant’s credibility, and the merits of his case, by observing that there was no reference in the application originally made by the Applicant in December 2011 when claiming PTSD, to any of the stressors subsequently relied upon. Lest they need to be repeated, these were the allegations of bullying and disharmony at Nui Dat arising from the interaction between the Applicant and Warrant Officer Church, together with the first and second Saigon incidents in March and April 1970, where he observed persons who were presumed to be civilians being shot and mistreated by one of the South Vietnamese police forces.
The Applicant was probed searchingly at both the earlier hearing, and this hearing on why this was so. He gave a consistent answer that the application that he completed although in his handwriting and signed by him, was made with the assistance of a veteran’s advocate. He believed the advocate from the Vietnam Veterans’ Association was a Mr Dobell. His evidence was in the preparation of the application, although there was no reference to these incidents, he most definitely discussed them with the advocate prior to its preparation. He also gave evidence that at the time of completion of the application he wasn’t quite sure about how the system worked, was unaware of the process, or what he needed to submit to the Department. In his words, if he had it over again it would be completely different, totally different.

It was not contended by the Respondent at any time that this version of the events was otherwise false, a reconstruction or some kind of recent invention. The Tribunal has no reason to doubt this evidence. It finds the Applicant’s explanation for this to be credible.

It is fairly well known that in a variety of settings, not only veterans, but many applicants for the receipt of government benefits rely on others, often holding themselves out as possessing expertise in the area concerned, to complete official documentation in support of such applications. The Applicant’s explanation is not surprising. He probably also never thought he would end up years later in a witness box being probed on it either.
Another matter that the Respondent placed significant store on against the Applicant concerned the contents of two reports prepared by the Applicant’s then treating Consultant Psychiatrist, Dr D’Ortenzio. There were two reports in evidence from Dr D’Ortenzio. He did not give viva voce evidence at either hearing before the Tribunal. The evidence was that the Applicant consulted Dr D’Ortenzio on approximately eight or nine occasions.

The second report prepared by Dr D’Ortenzio dated 19 April 2012 addressed to an officer of the Department of Veterans’ Affairs responded to several questions that had obviously been submitted to him by that Department.
A specific question requested that he provide “a full statement” of the events described by the Applicant believed to be the origin of his claimed psychiatric disorder. In that report,

Dr D’Ortenzio makes limited reference to what is described as “an incident of being on picket at the barracks at a hotel in Saigon”. It did not detail as the Applicant subsequently did in both his written statement and viva voce evidence before the Tribunal, the bullying and disharmony with Warrant Officer Church together with the first Saigon incident and the second Saigon incident. Subsequently, a different version appeared in a report from Dr Walton dated 11 February 2014.[17] Dr Walton’s report did refer to the bullying and disharmony the Applicant endured at Nui Dat and the two Saigon incidents.
[17] Page 110 of the T documents.
Dr D’Ortenzio’s report dated April 2012 does describe in very general terms, confined to one paragraph, “an incident” at the hotel. It also describes the Applicant’s reaction to Vietnamese military police and soldiers whom were described as “shot happy”. The fear and distress they caused the Applicant was also recorded. A second sentence in that part of the report stated that there were no specific accounts of direct threats on the Applicant’s life nor any injuries or direct deaths to which he was a witness, or he participated in.
The Applicant in his evidence once again, both previously and that this hearing before the Tribunal, stated that he did inform Dr D’Ortenzio of the incidents concerned. He steadfastly refuted the suggestion put to him in cross examination that the contents of the report by

Dr D’Ortenzio recounted earlier in these reasons was correct. He said the account given in the report was wrong and that he disagreed with the summary it contained. He readily acknowledged that the account of the incidents involving Warrant Officer Church were not recorded. He also readily acknowledged that his version of the events in Saigon in March and April 1970 were not recorded. It was also put to him specifically that he did not tell

Dr D’Ortenzio about the bullying claims and that is why it was not recorded in his second report. The Applicant denied it. He also said he had read Dr D’Ortenzio’s report and could not see how he would have missed what he was told. This was put to the Applicant on several occasions and on each occasion, he rejected it. The Applicant consistently maintained that he discussed each of the incidents in length including what happened in Saigon with Dr D’Ortenzio. He did give evidence that several of the consultations he had with Dr D’Ortenzio were a comparatively short duration.
The Applicant stated that ultimately, he lost confidence in Dr D’Ortenzio. He then saw other practitioners.
Once again, the Tribunal reiterates that it found the Applicant to be a credible witness. It accepts his evidence. It accepts that he explained to Dr D’Ortenzio each of the incidents being the bullying and disharmony at Nui Dat and the Saigon incidents in March and April 1970. In reaching this conclusion, the Tribunal also observes that Dr D’Ortenzio’s clinical notes could have been subpoenaed for the purposes of examination, and received into evidence. Presumably, those clinical notes may have shed some light on what the Applicant informed him during the course of each consultation. Additionally, it should be recalled that Dr D’Ortenzio was not called to give viva voce evidence at either hearing before the Tribunal. There was no contradictor from the witness box to the version that was given by the Applicant.
No doubt had Dr D’Ortenzio been called, more likely than not, this question would have been resolved one way or the other. Given that the report prepared by Dr D’Ortenzio of 19 April 2012 was prepared in response to a request from an officer of the Department, it is surprising he was not called, particularly in relation to such a critical matter that the Respondent placed such store on. It is all the more surprising given the efforts the Respondent went to in securing the attendances by telephone of Mr Robottom and

Mr Laurie. Whilst not determinative of these evidentiary findings, it should also be noted that of course, Dr Weismann, another Consultant Psychiatrist who had examined the Applicant was called and gave viva voce evidence at the first hearing of this Application before the Tribunal. He was subjected to searching cross examination.
Another matter that should be mentioned which was relied upon by the Respondent with considerable force, concerned the Applicant’s recollection of his interactions with Warrant Officer Church.
The Applicant was on active service in Vietnam from 5 November 1969 to 6 May 1970. In his evidence, he initially asserted that his difficulties with Warrant Officer Church commenced when he immediately came into contact with him on his arrival on or about

6 November 1969. Further evidence was given by the Applicant that his difficulties with Warrant Officer Church commenced soon afterwards. He recounted in that evidence several alleged events that were said to constitute disharmony and/or bullying, that took place between him and Warrant Officer Church from the time of his arrival in early November 1969 until after 14 January 1970.
This account given by the Applicant turned out to be incorrect because Warrant Officer Church did not arrive in Nui Dat until 21 January 1970.[18] This question was put to the Applicant in cross examination at the first hearing. It was put to him that his recollection of events in Nui Dat prior to 20 January 1970 was mistaken with respect to the conduct of Warrant Officer Church. He said he was not. This was qualified by reference to the successful application he made upon his return to Australia from Vietnam for what is called a “redress of wrongs”.[19] More will be said about this later. However, the Applicant was demoted from Corporal to Private at the insistence of Warrant Officer Church. The evidence before the Tribunal establishes that as a result of the Applicant’s successful recourse to the redress of wrongs process, he was reinstated in rank and paid back pay for the period in between.
[18] Service records for Warrant Officer Church being the “Nominal Roll” were obtained overnight between the first and second days of the hearing. The Tribunal did not understand counsel for the Applicant to be challenging either the authenticity of the document or the accuracy of the entries contained in it. It should be noted that the Nominal Roll was not tendered in evidence. Mr Brown informed the Tribunal that it had been obtained and both parties proceeded without the necessity for its introduction into evidence.
[19] The outcome of the Applicant’s “Redress of Wrongs” application is dated “Mar 71” and is found at page 342 of the T documents.
The Applicant contended in the first hearing that the complaint and accompanying report that he made in support of the successful redress of wrongs application covered the period, whenever it may have been, that he had his interaction with Warrant Officer Church. He also gave evidence that he had made enquires of the Respondent Department in an endeavour to locate material that would corroborate this contention and that it had been unable to locate such material. The matter was not pursued further in cross examination.
Surprisingly, during cross examination in this later hearing of the application, this question was not really pursued. Counsel for the Applicant relied on a number of components of the evidence before the Tribunal apart from that of the Applicant to contend that it was sufficient to establish that there was disharmony and bullying that occurred after the arrival of the Warrant Officer Church at Nui Dat on 21 January 1970, until the Applicant’s posting to Saigon later in 1970.
The Tribunal finds that it is more probable than not that the Applicant’s memory of the relevant dates and details concerning several matters about his dealings with Warrant Officer Church is faulty. The earlier observations concerning the Applicant’s credibility are repeated. It should not be lost sight of that these events occurred over 50 years ago. There is no doubt that the Applicant and Warrant Officer Church served together between

21 January 1970 and when he was posted to Saigon in March of 1970. The Tribunal is satisfied that although his memory on the timeframe that Warrant Officer Church was present is faulty overall, he is still a credible witness.
More will be said about this later, but Mr Robottom did interview Warrant Officer Church for the purposes of preparation of his report. Warrant Officer Church admitted readily that he had coerced the Applicant into relinquishing his rank.[20] Mr Robottom also interviewed the Cash Office Liaison Officer in Nui Dat at the time, Warrant Officer Nicol, who described Warrant Officer Church as a “brilliant clerk” but a warrant officer who had man management problems and was a poor leader.[21]
[20] Paragraph 4.9 of the Robottom report, page 382 of the T documents.
[21] Paragraph 3.66 of the Robottom report, page 377 of the T documents.
Another interesting feature that emerged from the Robottom report which gives some credence to the Applicant’s evidence concerning his dealings with Warrant Officer Church during the time they served together in early 1970, was that when Mr Robottom contacted Warrant Officer Church “without mentioning any names”, he knew almost immediately who he was referring to once he outlined the Applicant’s claims of bullying while serving at Nui Dat. This ready recollection of the Applicant by Warrant Officer Church more than 50 years later, once the allegations of bullying were raised together with his ready admission that he had coerced the Applicant into accepting a reduction in his rank, lends support for a conclusion than whilst aspects of the Applicant’s evidence may indeed be faulty as to timing, his recollection as to actual interactions with Warrant Officer Church are more likely than not correct, and certainly cannot be rejected. The Tribunal does not do so.
With reference to accepting or rejecting the Applicant’s evidence concerning his dealings with Warrant Officer Church in early 1970 at Nui Dat, it must be observed that neither Warrant Officer Church nor Warrant Officer Nicol gave evidence at either hearing of this application. As noted earlier in these reasons, they were interviewed by Mr Robottom for the purposes of preparing his report. It appears they cooperated with him fully. No explanation was offered to the Tribunal why they were not called to give evidence.
The Tribunal infers that it would have been open to the Respondent to have called them given that Robottom had located and spoken to them. Given that other witnesses gave evidence by telephone, there does not appear to have been any practical obstacle in the way of calling them. The effect of not calling either of those witnesses, particularly Warrant Officer Church, means that there was not a contradictor during the hearing concerning this part of the Applicant’s evidence. The Tribunal infers that by reason of not calling Warrant Officer Church and Nicol, their evidence would not have assisted the Respondent. It is another reason why the Tribunal accepts the Applicant’s evidence.
There are two other matters that were canvassed in the cross examination of the Applicant that warrant mention in this part of these reasons.
The first of those two other matters concerned the issue of the Applicant’s disciplinary record. The Respondent pointed to approximately eight occasions when he was charged and found guilty of various summary offences. The details of those offences were found in both his service records which were before the Tribunal and at paragraph 3.50 of the Robottom report. The Applicant in response to several of those matters when put to him was simply unable to recall. Others he did recall and readily admitted.
Little store should be placed upon the Applicant’s disciplinary history in assessing his credibility. Most of the offences for which he was charged related to conduct which was not such that it would point to him lacking in credibility, or otherwise being an unreliable witness. This should also be considered with some degree of realism concerning the age and stage of life of the Applicant. The summary offences committed by the Applicant in Vietnam were committed in a war zone by a comparatively young immature man.
Also as was pointed out by Mr Brown for the Respondent, there were a number of instances recorded in his service records during his early days in the Army, when he was performing duties as a clerk, where his superiors made entries in the relevant service records observing his relative immaturity. In his initial training in cash office practice that he undertook at the Army Apprentices’ School in Balcombe, two out of his four marks were found to be below average. This performance is probably consistent with the observations made concerning his maturity. They do not point necessarily to, or should be relied upon as in some way, as supporting a finding that his credibility is affected or that he has a tendency, to in some way embellish or reconstruct his evidence. The Tribunal does not do so.
The other remaining matter in this section that the Tribunal will comment on concerns a line of questioning put to the Applicant in cross examination concerning medical conditions that he experienced in Vietnam prior to his return to Australia. Insofar as that line of questioning was directed towards the Applicant’s credibility, the Tribunal rejects it. Whatever the situation may have been concerning the Applicant’s condition prior to him leaving Vietnam, it could not strictly have been relevant to the subject matter of the application and does not bear on his reliability as a witness.
THE CLAIMS OF BULLYING AND DISHARMONY AT NUI DAT
As noted earlier, the Tribunal accepts that some aspects of the Applicant’s recollection of his interactions with Warrant Officer Church before 20 January 1970 is faulty. However, the Applicant gave evidence in his statement, at the first hearing of this application and at this hearing of what he experienced in his interactions with Warrant Officer Church.

He recounted that he found his life serving with Warrant Officer Church miserable.

He described him as having the demeanour of an angry person all the time. There was constant criticism from Warrant Officer Church of the speed and quality of his work.

The evidence which was not challenged or contradicted was that Warrant Officer Church worked in the desk directly behind the Applicant and was essentially looking over his shoulder all the time.
Warrant Officer Church was described by him as the disciplinarian in the unit rather than the commanding officer Captain Taylor. The Applicant recounted speaking to Captain Taylor about his treatment at Warrant Officer Church’s hands. According to the Applicant, he told Captain Taylor that “I was copping a pretty hard load from Church”. Captain Taylor undertook to speak to Warrant Officer Church which apparently, he did. The Applicant then stated that the bullying only got worse from thereon in. This account given by the Applicant was consistent with the observations of Warrant Officer Nicol where it was recorded in the Robottom report that Warrant Officer Church had man management problems and was a poor leader.
There was the issue of the Applicant’s coerced demotion from corporal to private. The Applicant’s consistent evidence was to the effect that Warrant Officer Church coerced him into accepting a voluntary demotion. It was put to him by Warrant Officer Church that he could take voluntary reduction in rank, or certainly he would be demoted in any event, with a recommendation that he never be promoted to the rank of corporal again.

The Applicant’s evidence was that he felt he had no hope or no choice but to accept this proposition. He also gave evidence that he did so with some degree of relief because it meant that he would be also transferred to Saigon and have no further dealings with Warrant Officer Church. This version of the events was not challenged in any serious way by the Respondent. It was acknowledged that the coercion to accept the reduction in rank was a wrong process.
The Respondent sought to assert that the Applicant’s experiences in Nui Dat, including the coercion of the Applicant to accept a demotion, were not acts of bullying but an application of military discipline. Probably, following the contention of Warrant Officer Church referred to in paragraph 3.63 of the Robottom report, that it was in an attempt to have him lift his poor performance. The Tribunal cannot accept this contention.
The Tribunal accepts the Applicant’s evidence concerning these events. In addition to accepting the Applicant’s evidence, it is corroborated by several other sources of evidence open to the Tribunal to take into account. The observations made earlier in these reasons concerning the Applicant’s experiences at Nui Dat with Warrant Officer Church are referred to and repeated. Tellingly, in his evidence, Mr Robottom gave further details of his discussions with Warrant Officer Church concerning these allegations. In his evidence, he stated that Warrant Officer Church was able to remember the Applicant quite vividly, and as noted he mentioned the Applicant before his name was raised by Mr Robottom. Without any prompting, he was able to recall much of what occurred with the Applicant. Mr Robottom stated that he found Warrant Officer Church to be contrite, to be frank, and he acknowledged to Mr Robottom that he was heavy-handed toward the Applicant, and if he had it again, he would have done it differently.
It seems remarkable to the Tribunal that Warrant Officer Church would recall those incidents without prompting 50 years later and admitted he was heavy-handed, expressing contrition and agreeing would have done it differently. It is on its own powerful corroboration of the evidence given by the Applicant. It goes beyond an application of military discipline. If it were just that, it seems highly unlikely that Warrant Officer Church would have made the admissions, or concessions to Mr Robottom in the way that he did.
Additionally, nowhere in either Mr Robottom’s report, or his viva voce evidence to the Tribunal, was it asserted that Church had claimed his actions were a legitimate and proper application of military discipline. If that were the case, one would have expected him to do so. As he did not do so, the Tribunal infers that his admissions or concessions acknowledged his actions were not a legitimate and proper application of military discipline.

Another matter that provides relatively contemporaneous corroboration of what the Applicant endured at Nui Dat is contained in some of the material concerning the DART claim before the Tribunal. The Redress of Wrongs made by the Applicant was determined by a Military Board. The Military Board determined that the actions to which the Applicant was subjected were “unfair or illegal”.[22] Given this contemporaneous finding by a Military Board of unfair or illegal conduct to which the Applicant was subjected, it seems to the Tribunal that it would be possible to conclude beyond reasonable doubt that disharmony, let alone bullying that in the workplace occurred to the Applicant at Nui Dat as he alleges.
[22] These observations are found in the T documents at page 351 which is described as an "Assessment Note" which was produced as part of the DART process. Presumably, and the Tribunal infers, its contents were the derived from examination of some military records. It does not say from where though. There is no reason to doubt its authenticity. Also, as was noted the decision of the Military Board "Redress of Wrongs" was confirmed in a letter that was contained in the Applicant's service records and in evidence before the Tribunal dated "Mar 17". The contents of the letter are referred to in their totality. It says that the redress of wrongs submitted by the Applicant had been decided in his favour. At paragraph 3.69 of the Robottom report it observes that the reasons for the Applicant's successful redress of wrongs submissions could not be located. In the absence of any other contemporaneous documentary record, the Tribunal is prepared to accept the observations contained in the DART Assessment Note.
The DART assessment also concluded that the Applicant’s claims were in the scope sufficiently plausible because of the level of detail provided in his account and what it described as the extensive supporting documentation including amongst other things “military correspondence regarding the Redress of Wrongs”.[23] What this correspondence or documentation was could not be determined from the material before the Tribunal. However, once again, given its reference to contemporaneous records and documents, it must raise a reasonable doubt in the relevant sense required by section 120(1).

The Tribunal so finds.
[23] Page 352 of the T documents.
It also should not be forgotten that the Applicant’s DART claim for the alleged bullying was successful and he received a total compensation payment of $30,000.

This sum comprises $25,000 as a payment for “Category 3 (Abuse) and $5,000 for Category 5 (Mismanagement by Defence). Whilst it is not definitive, one must question why such a payment was made if there had been no bullying of the Applicant.
It should be observed that by reason of the documentary evidence referred to in the previous paragraphs addressing the DART assessment and the findings of the Military Board, the comments in paragraph 4.11 of Mr Robottom’s report are questionable.
By reason of the foregoing matters, the Tribunal finds that the Applicant whilst serving at Nui Dat, South Vietnam between January 20, 1970 and March 1970 experienced a Category 2 stressor within the meaning of the term as defined in Schedule 1-Dictionary of the SOP applicable to “Depressive Disorder” being disharmony or bullying in the workplace the effects of which were chronic in nature and caused him to feel ongoing distress, concern or worry.
PRELIMINARY BACKGROUND FACTS RELEVANT TO THE SAIGON INCIDENTS
Upon his arrival in Saigon in March 1970, the Applicant was placed on “piquet duty” at the Canberra Hotel. He served on a night watch from 6:00 pm until 6:00 am which consisted of two hours on, and two hours off throughout the night. His duties involved manning machine guns in one of two protected piquet posts at the front of the hotel.
The Applicant gave evidence that Australian military vehicles were parked every night, that he served on piquet duty out the front of the Canberra hotel without exception.
Upon his transfer to Saigon in March 1970, he became aware that there were two South Vietnamese police forces. The Republic of Vietnam National Police (“RVNP”) were known as the “white mice”. Apparently, this description was derived from the style of uniform worn by its members which consisted of a white shirt with grey trousers.[24] In the Robottom report, they were described as having a poor image “and often used methods that Westerners considered brutal and fascist”.[25] It was also said that they were often targeted by the Vietcong and more than a thousand of their members were killed every year by Communist forces during the period of the United States military build-up.
[24] Further details concerning this police force can be found in paragraphs 3.18-3.20 of the Robottom report.
[25] Paragraph 3.19 of the Robottom report.
Later in Mr Robottom’s report, he observed that the RVNP “had a reputation for shooting first and asking questions later”.[26] Mr Robottom also interviewed an ex-serviceman from the Army of the Republic of Vietnam who stated that the “White Mice” had a deserved reputation. Coupled with this observation was an extract from a statement by former US soldier who gave an account of seeing the “White Mice” shoot an escaping “draft dodger” and loading his body onto a truck. This incident was said to be consistent with the actions observed by the Applicant in front of the Canberra Hotel.
[26] Paragraph 3.38 of the Robottom report.
There were also the Army of the Republic of South Vietnam Military Police, “Quan Canh”, known as the “QC”. This organisation was said by the Robottom report not to have a bad reputation and fostered a self-perception as an elite force with extremely high levels of morale.
The Applicant gave evidence that the White Mice were very “toey”, “constantly alert” and did not deal well with people. In a casual briefing from an Australian Warrant Officer at the Saigon Headquarters, on his arrival there, he was told to be very careful around them. He was also warned that if they blew their whistles and the target didn’t stop, a bullet quickly followed.
The First Saigon Incident
The first Saigon incident occurred when the Applicant was on piquet duty in early March 1970 at the front of the Canberra Hotel. The time was approximately 2:00 am. This was a time when a civilian curfew was in force. He was situated in the first piquet post, which was fortified by sandbags behind which he was positioned to the left of the front door of the hotel. His attention was suddenly drawn to the sound of the people running, then shouting (he sometimes called it commotion). He observed then a civilian as he put it, “outsprinting” the military police[27] who he identified by their distinctive uniforms. As the civilian sprinted away from the pursuing police, he observed them fire several shots at him. As this occurred, the Applicant became extremely concerned about the risk of being struck by the bullets fired as some were ricocheting and coming too close to his piquet position. He contemplated opening fire himself.
[27] In his evidence Applicant is the term is included in these reasons "military police". Whether it was the RVNP or the QC’s he did not say. The Tribunal has adopted his words for the purposes of these reasons.
The civilian then fell to the ground after being struck by bullets fired by the pursuing police officers. The Applicant observed these events from a distance of approximately 30 to 35 m. It was dark. However, there were streetlights and he described the visibility on that evening as moderate. The location where the civilian was struck by the bullets fired by the police was directly outside the front of the Canberra Hotel. After the civilian fell to the ground, the Applicant observed the military police pick him up by the arms and legs and with a swinging motion throw him onto the tray of the vehicle. He did not observe any signs of movement from the civilian and formed the belief that more likely than not, he was seriously injured.
The Second Saigon Incident
The second Saigon incident occurred weeks after the first one in the month of approximately April 1970. Again, the Applicant was on piquet duty of the Canberra Hotel in the first piquet post. A member of the number two piquet post reported somebody moving around between two Australian military vehicles parked outside the front of the hotel. He reported this to the guard commander. The guard commander ordered the Applicant and another soldier to check out what was occurring. Following that order, they went “outside the wire”. The Applicant and the other soldier left the guard post, saw the person standing between the two Australian military vehicles and took him into custody. They then conducted a search and discovered that he had a screwdriver secured down the belt of his shorts. The screwdriver was removed as well as his wallet.
The Applicant and his fellow colleague prepared to escort the individual they had arrested inside the hotel with the intention of calling the military police. As they were about to do so, a South Vietnamese military police[28] vehicle pulled up. The Applicant said that a confrontation ensued (he described the senior South Vietnamese officer as “meaning business backed up by several of his colleagues”) and a demand was made by the South Vietnamese military police to hand over the civilian they had in custody. The Applicant stated that Australian forces had no jurisdiction over the civilian, so they were unable to hold him. They just acquiesced to the demand.
[28] Once again this is the term used by the Applicant in the course of his evidence.
The Applicant and his colleague then turned to walk back to the duty post behind the wire in the front of the Canberra Hotel. He stated that as they walked around the truck, there was a loud gunshot. The sound of this gunshot caused him and his colleague to throw themselves to the ground for obvious protection. He was in a position adjacent to one of the Australian military vehicles, being a truck, outside the front of the hotel. Looking in the direction of the gunshots, he had an unobstructed view from underneath the truck and observed the civilian lying on the plantation in the centre of the road. The distance between the dead body of the civilian and the Applicant was said to be approximately 4 m. He was observed by the Applicant to have a gunshot to the chest from which much blood was flowing and was believed to be dead. Without any further hesitation, the body of the deceased was quickly picked up by the military police and thrown in the back of the truck before being promptly driven away.
The evidence relied upon by the Respondent in support of the contention that the Saigon Incidents did not occur or otherwise cast a reasonable doubt
There were several limbs to the approach adopted by the Respondent to challenge the Applicant’s version of events concerning the Saigon incidents.
The starting point was to rely extremely heavily on the fact that there was no contemporaneous documentary evidence containing any record of either Saigon incident.
The first logical source of documentary evidence to corroborate whether the Saigon incidents occurred was a logbook or running sheet kept at the Canberra Hotel by the armed services known as the Canberra Hotel “Occurrence Sheets”. The requirement in 1970 for armed services personnel guarding the Canberra Hotel was to include an entry in the Occurrence Sheets of, as it was described, “anything out of the ordinary”. Evidence was given by both Mr Laurie and Mr Robottom that every unit had one and any event that occurred during the course of the day was required to and should have been logged in it.

It was contended that with respect to events such as the Saigon incidents, it would have been impossible for them not to be included.
Regrettably, the Occurrence Sheets for the Canberra Hotel for the relevant period during which the Saigon incidents occurred cannot be located. Mr Robottom gave evidence of his searches and enquiries undertaken to locate such records. He did observe that the Army in those days did not have the most sophisticated recordkeeping and storage systems.
The Tribunal cannot agree, as contended by the Respondent, that the absence of the Occurrence Sheets for the relevant period count against the Applicant. Given the lack of documentary evidence concerning a number of matters relevant to this application,

it seems that the Applicant should get the benefit of the doubt. Had the documents seen the light of day, and there was no entry recording the Saigon incidents, the contention relied upon by the Respondent would have far greater substance.
However, the possibility that the Occurrence Sheets for the relevant period may have included an entry recording the Saigon incidents cannot be excluded. Not one witness suggested otherwise. It cannot be discounted to the level of a reasonable doubt the possibility that the Saigon incidents occurred but for whatever reason were not recorded in an official document. One may speculate, but for instance, what if there were some diplomatic or military considerations that overrode the requirements of the obligation of making entries about the Saigon incidents in the relevant records? Given the elite status that has been ascribed to the South Vietnamese Military Police, it may have been that in the interests of maintaining cordial relations with them, that the Saigon incidents were not recorded. It also highlights the observations made by Steward J in this matter that in effect, a persistent search for corroborating material can have the effect of denying an applicant the benefit of the standard of proof to which he is entitled under section 120(1) of the Act.
Another matter upon which much emphasis was placed by the Respondent came from the evidence of Mr Laurie who was a Sergeant in the RAA Provost Corps from

1 October 1969 until 1 October 1970. He gave viva voce evidence of the hearing before the reconstituted Tribunal. His evidence was given in a forthright and definite manner. Both in his statement annexed to the Robottom report, his statement before the Tribunal made this year and from the witness box, he demonstrated familiarity with the Canberra Hotel, its layout both front and rear, together with the neighbouring environs. In addition to also stating that had the Saigon incidents occurred, they would have been logged in the appropriate logs such as what he described as the daily guard report, the Occurrence Sheets at the Canberra Hotel and Intelligence Reports. Mr Laurie said he did not see any reports resembling the Saigon incidents. He stated that they would have become common knowledge amongst Australian, American and Vietnamese military personnel in the area. Much emphasis was placed in his evidence on his close connections with a Vietnamese detachment interpreter Sergeant Cao Van Lai who he described as a constant source of information. (He described him as having “his ear to the ground”.) Sergeant Lai never mentioned the Saigon incidents to him.
No Intelligence Reports as referred to by Mr Laurie were produced to the Tribunal for the relevant period during which the Saigon incidents occurred. If the Canberra Hotel Occurrence Sheets were available, they might one way or the other have enabled a more definitive conclusion on this topic to have been reached. It was not clear from an examination of the Robottom report whether these documents were available.
Mr Laurie went on to give evidence that the Saigon incidents would have been considered “major events”. Such events impinged upon him as military police and would have warranted military police attention. This all may well be true. However, again it does not exclude the possibility that such events occurred, and for whatever reason were never brought to his attention, or he may have forgotten. Alternatively, as noted above, that for extraneous reasons such as military and diplomatic considerations not recorded or otherwise kept, using a colloquialism “under the radar screen”.
Another feature of Mr Laurie’s evidence which does not exclude the possibility that the Saigon incidents occurred as described by the Applicant, comes from several other important aspects of his service in Saigon during that time. Mr Laurie acknowledged that he never performed night duty. He only served a day shift commencing at 7:00 am.

The Saigon incidents occurred in the early hours of the morning when he obviously was not present, or anywhere near the Canberra Hotel. He conceded quite properly, that he was not stationed or living at the Canberra Hotel. He had no position of authority at the Canberra Hotel such as a managing Australian Sergeant. The managing Australian Sergeant at the Canberra Hotel was not reportable to him.
Further, Mr Laurie readily conceded he had not been shown any Occurrence Sheets for the Canberra Hotel. Notwithstanding his knowledge of the South Vietnamese Military Police, he did not have much to do with them. These relevant matters the Tribunal concludes do not enable it to exclude beyond reasonable doubt that the Saigon incidents occurred as recounted by the Applicant. By reason of all these matters, it is quite reasonably within the realms of possibility that these incidents occurred in the middle of the night, and for whatever reason Mr Laurie simply never found out about them.
On the question of the managing Australian Sergeant at the Canberra Hotel,

it should be observed that Mr Robottom at paragraph 3.46 of his report stated that his enquiries determined that the “uniformed Australian manager” in the period of March to

April 1970 could not be identified, and his successor, a Royal Australian Armoured Corps Sergeant who assumed the position in June 1970 has since died. No explanation was contained in that report as to why the uniformed Australian manager of the Canberra Hotel for that period in March to April 1970 could not be identified or otherwise located. Once again, this does not exclude the possibility that such a witness if existing, could have corroborated the Applicant’s version of events. His absence would not be enough to justify rejection of the Applicant’s evidence concerning the Saigon incidents.
Another matter that Mr Laurie gave evidence on concerned the Applicant’s description of two Australian military vehicles parked out the front of the Canberra Hotel at the time of the second Saigon incident. In his statement, annexed to the Robottom report (and in response to further questions from him), he stated that no vehicle stopping nor parking along the frontage of the Canberra Hotel was allowed or tolerated. At all times, Australian military vehicles were parked in a secure compound at the rear of the building. The reason the vehicles were never parked at the front of the Canberra Hotel was that they would have obscured vision, and also assisted the placement of ordnance, such as satchel charges and grenades, close to the hotel which was a target. He described how a clear field of vision and firing in case of attack was required. This was contrary to the evidence of the Applicant.
Mr Laurie’s evidence did shift on this topic when he was in the witness box when compared with his written statements including what was in the Robottom report.

He conceded that there was a deviation from this practice during shift changes. On those occasions, Australian military vehicles did, and were allowed to park in the front of the Canberra Hotel to permit easy embarkation from them. Once again, this important concession means that the possibility cannot be excluded that the two Australian military vehicles were parked in front of the Canberra Hotel when the second Saigon incident occurred as the Applicant gave evidence about. It is surprising that Mr Laurie did not make this concession in both the statements from him, including that contained in the Robottom report.
Mr Laurie also gave evidence of his knowledge about the South Vietnamese military police. He described them as “a pretty well-disciplined mob”. He described their reputation of being “trigger-happy” as an urban myth. They were certainly very firm with their delinquent soldiers and their word was the law. Importantly, he did say in his evidence that as far as using their weapons was concerned, it was an infrequent occurrence. However, he did not recall them firing in an urban environment. The Tribunal observes that this concession that weapons were used infrequently by the South Vietnamese military police, does not exclude the possibility beyond reasonable doubt that they were used, and the Saigon incidents as described by the Applicant occurred.
Conclusion on the Saigon Incidents

Once again having the benefit of the reasons of Steward J in the Federal Court, his observations should be repeated that a lack of corroborating evidence is also not inconsistent with, or capable of preventing the Tribunal from accepting the Applicant’s evidence concerning the Saigon incidents.[29] Indeed, it is hardly a novel proposition. Courts and tribunals habitually are required to, and frequently do, accept or reject evidence and make findings of fact where there is no corroboration, and the only evidence is that given by a party from the witness box. There would hardly be a day in a Magistrates’ Court where the plaintiff and the defendant, being the only witnesses, both give sworn evidence in an intersectional motor vehicle accident proceeding, that they had the green light. The Tribunal has, as observed earlier, found the Applicant to be a credible witness. Those observations are repeated. It also accepts his evidence concerning the Saigon incidents. It does not believe that the account he gave by affirmation in the witness box and the statement that he made were either the product of reconstruction, recent invention or lying. He simply did not seem that Machiavellian.
[29] Hunt v Repatriation Commission [2020] FCA 1191 at [59].
As for the evidence of Mr Laurie, for the reasons that have been articulated concerning his evidence it cannot, given the findings made by the Tribunal, enable it to reach a finding beyond reasonable doubt that the Saigon incidents did not occur. Much of his evidence, when subject to careful scrutiny did not assist the Respondent in the way it contended.
The Tribunal finds that by reason of the first Saigon incident, the Applicant experienced a category 1A stressor being the following severe traumatic event:
(a) experiencing a life-threatening event
The Tribunal also finds that by reason of the first Saigon incident, the Applicant experienced a category 1B stressor being the following severe traumatic events:
(a) killing or maiming a person;
(b) being an eyewitness to a person being killed or critically injured;
(c) being an eyewitness to atrocities inflicted on another person;
(d) viewing a corpse or a critically injured casualty as an eyewitness.
The Tribunal finds that by reason of the second Saigon incident, the Applicant experienced a category 1B stressor being the following severe traumatic event:
(a) killing or maiming a person;
(b) being an eyewitness to a person being killed or critically injured;
(c) being an eyewitness to atrocities inflicted on another person;[30]
(d) viewing a corpse or a critically injured casualty as an eyewitness.
THE APPLICANT’S CLINICAL CONDITIONS AND THE DATE OF ONSET
[30] Dr Walton in his report said that the Applicant was exposed to a situation that could arguably be described as an atrocity. Dr Weissman in the witness box said he agreed with that assessment describing it as synonymous with or akin to an atrocity.
Psychiatric Conditions
As noted earlier in these reasons, the Applicant gave evidence that he had suffered anxiety, depression and hypervigilance ever since his war service in Vietnam. He also gave evidence that he had suffered no such symptoms prior to his service there. Although he is not an expert in the field, he did state that he related the symptoms to bullying by Warrant Officer Church and the Saigon incidents. A similar history was recorded by each of the clinical psychiatrists who he consulted; whose reports were in evidence. He was not seriously challenged on this evidence in cross examination.
There are reports in evidence from three clinical psychiatrists: Dr D’Ortenzio, Dr Walton and Dr Weissman. Dr Weissman was the only clinical psychiatrist to give evidence. He did so at the first hearing of this application. The transcript of his evidence was before the Tribunal as reconstituted. Each of the clinical psychiatrists’ reports will be considered.
It will be recalled that Dr D’Ortenzio had seen the Applicant on approximately eight or nine occasions. He prepared two reports. The first one is dated 2 March 2011. The second report is dated 19 April 2012. The first report is a comparatively short one which did not reach a conclusion on the conditions suffered by the Applicant nor the date of their clinical onset. It is recorded that the Applicant has some symptom patterns suggestive of PTSD type syndrome. Many years of heavy alcohol use along with his PTSD were identified as probable causes of the Applicant’s marriage break down.
In the second report prepared by Dr D’Ortenzio, in the section relating to the Applicant’s psychiatric history, it was recorded that there had been no history of any psychiatric problems prior to service.
Dr D’Ortenzio included a section in that report concerning diagnosis. He concluded that the major diagnosis is that of alcohol dependence. It was noted that that dependency had been in remission since 1992. Consideration was given for the diagnosis of PTSD which was excluded on the grounds of what he described as the initial criteria were not clearly met. Additionally, there was not the level of what he called long-term symptomology appropriate to consider the disorder of clinical significance. One of the grounds also relied upon as providing the foundation for this conclusion was that the Applicant had gainfully engaged in full-time employment for many years despite his acknowledged ongoing difficulties.
Dr D’Ortenzio also opined that the main features of the Applicant’s symptoms were more that of an adjustment disorder with some mixed anxiety and depressive symptoms. He then rather curiously noted that the Applicant’s long-term alcohol use of more than 20 years “obscured his PTSD symptomology”. The Tribunal finds this conclusion inconsistent with his earlier expressed opinion that there was not a level of long-term symptomology to enable a diagnosis of PTSD.
Dr D’Ortenzio then made a most relevant observation with respect to this application, that traumatic events which occurred during the Applicant’s service were significant contributors to his alcohol dependence. The references in his report to features of traumatisation and traumatic events playing a role in the Applicant developing the conditions he suffers is relevant to the subject matter of this application, indicative of and consistent with the conditions described by the Applicant in the witness box. It also supports the Applicant’s contention that his psychiatric conditions (including those diagnosed by Dr D’Ortenzio) were caused by his war service.
Dr D’Ortenzio did not identify a date or time that the clinical onset of the psychiatric conditions that he diagnosed occurred.
There was a report from Dr Walton dated 11 February 2014 in evidence.
Dr Walton reported that the Applicant had no psychiatric history prior to his military service. This is consistent with the Applicant’s evidence.
As Dr Walton described it, his preferred diagnosis was depressive disorder, and in particular dysthymic disorder. He acknowledged that it might be suggested the Applicant suffered from a generalised anxiety disorder because it seems highly likely he may have met the relevant diagnostic criteria earlier and there had been ongoing anxiety present. It seemed to him however, that the depressive symptomology had been the more dominant as of that date.
Dr Walton additionally observed, as is frequently the case where clinically significant depression exists, that there had been parallel alcohol abuse. He found that the depressive condition suffered by the Applicant resulted in no more than a possible aggravation of a pattern of excessive alcohol consumption.
It should be recorded that Dr Walton agreed with the opinion of Dr D’Ortenzio, that a formal diagnosis of PTSD could not be sustained. He also agreed the same could be said with respect to adjustment disorder.
As for the clinical onset of the disorders he diagnosed the Applicant suffering from, he did not specify a date.[31] As far as the depressive disorder was concerned, Mr Walton expressed the opinion that the Applicant had been depressed more often than not for well in excess of two years.[32] He did not say how long. He also stated that “the psychiatric symptoms had been unremitting over the years”.[33] This last observation by Mr Walton is once again, consistent with the Applicant’s evidence, even if it does not fit with it hand in glove. It certainly does not exclude a finding that such conditions afflicting the Applicant arose on or about the time of his active service.
[31] Dr Walton (page 112 of the T documents) did observe that it seemed to him that it was not until the mid-1990s that the Applicant became more aware of his psychiatric problems. This corresponded with the Applicant’s reduction in alcohol use. This observation was relied upon by the Respondent in support of the contention that the date of clinical onset of the Applicant's psychiatric conditions was much later than contended for by him, realistically more than 40 years after he concluded his active service in Vietnam. The Tribunal cannot accept this contention because if it were the case, one would have expected Dr Walton to say so and fix a date (or even a range of dates) of clinical onset. It seems telling that he did not go that far. Without him giving evidence, the Tribunal really cannot reach such a conclusion contended for by the Respondent.
[32] The Respondent in its Statement of Facts, Issues and Contentions at paragraph 39 contended that Mr Walton in using this language in the report as he did, made a conclusion that the date of clinical onset of the Applicant symptoms was more than 40 years after he concluded his active service in Vietnam. With respect, the Tribunal cannot accept this contention upon a careful consideration of the actual words used in Mr Walton's report. It is submitted that to suggest that there was an opinion expressed by him that the date of clinical onset was more than 40 years after the Applicant’s active service is inconsistent with the observation that the Applicant’s psychiatric symptoms have been unremitting over the years (no time span being identified for those years) and the observation in his report that he had no psychiatric history prior to his military service.
[33] Page 116 of the T Documents.
Another matter that warrants reference to arising from Mr Walton’s report of February 2014 concerns an opinion that he expressed concerning the Applicant’s exposure to several stressors identified in the applicable SOP’s.
For the reasons referred to in his report, Mr Walton expressed an opinion concerning whether the Applicant would qualify for exposure to category 1A, category 1B and category 2 stressors.[34]
[34] This section of Mr Walton’s report is in paragraph 1 “OPINION” page 6 of 9 of his report. It is referred to in its entirety.
Mr Walton expressed the belief that the Applicant would qualify for exposure to a category 1A stressor because he was in a potentially life-threatening situation when in the line of fire, when the Vietnamese police discharged their weapons. Mr Walton was also of the opinion that it “would seem to be unequivocal that he was exposed to a category 1B stressor by being an eyewitness to a person being killed”, viewing the corpse and what “could arguably be described as an atrocity”. The Applicant’s experiences at Nui Dat were considered by him also to be exposure to a category 2 stressor.
Dr Weissman prepared a report dated 11 April 2017 and gave viva voce evidence to the first Tribunal hearing.
In his report, Dr Weissman outlined an extensive history which need not be repeated. The Applicant’s experiences in Vietnam were, amongst other matters, fairly and carefully recounted. They largely accord with the evidence given to the Tribunal. In a section dealing with current symptoms, Dr Weissman made several observations that are relevant to the questions for the determination before the Tribunal. He observed that the Applicant had constantly suffered from generalised anxiety symptoms and feelings since his return from Vietnam. He continues to suffer from the generalised anxiety symptoms. It was also re-counted to Dr Weissman that the Applicant confirmed to him, that in retrospect he had suffered from depression on and off over the same time. Frequently, when he was in a depressive state, he consumed alcohol.
Dr Weissman observed that apart from the Applicant’s sadness, anxiety and traumatisation features evident during their consultation (bearing in mind that they only conferred on one occasion), he presented as a genuine, straightforward, credible and candid historian and witness. The Tribunal observes that that is the way he presented when he gave evidence from the witness box.
He noted that, but for his army service, the Applicant’s premorbid psychiatric prognosis would have been reasonably good and favourable. The Applicant’s experiences during his active service in Vietnam, and in particular the bullying and disharmony at

Nui Dat together with the Saigon incidents, were described by Dr Weissman as constituting a range of emotional, distressing, and traumatic events and stressors. Therefore,

Dr Weissman expressed the professional opinion that the Applicant is suffering from:
(a) alcohol abuse and dependence in full remission;
(b) mild to moderate post-traumatic stress and anxiety symptoms and traumatisation features and a sub-syndromal PTSD;
(c) chronic anxiety disorder of mild to moderate intensity or severity;
(d) chronic depressive disorder of mild intensity or severity.
Dr Weissman reiterated this diagnosis when he was in the witness box at the first hearing of this application.[35]
[35] Page 55 of the transcript of hearing on 31 October 2017.
The conclusion reached by Dr Weissman in his report is that these conditions were relevant to the Applicant’s army service and his operational war service in Vietnam.
In his viva voce evidence to the Tribunal, Dr Weissman expressed an opinion as to the date of clinical onset of each of the conditions he identified the Applicant suffering from. His evidence was that the date of onset of the anxiety symptoms was late December 1969 and January 1970 with the depressive symptoms from approximately March 1970 while he was still serving at Nui Dat. The “actual conditions” or “full diagnosis” of such conditions was considered by him to have occurred in very early May 1970. This may have been perhaps the first week when he returned to Australia as he described it, in other words the onset of the symptoms was a bit earlier than the actual full diagnosis of such conditions.[36]
[36] Reference is made to the transcript of Dr Weissman’s evidence at page 56 on 31 October 2017.
In cross examination, when probed on the date of clinical onset, Dr Weissman stated that if the Applicant’s history was taken on its merits, the diagnosis would be from very early May 1970.[37] Dr Weissman was also probed in cross examination and properly conceded that his diagnosis was dependent upon the validity and veracity of the symptoms reported by the patient. He also readily conceded that in the absence of the incidents concerning having occurred there would still be the diagnosis, but it would be a question of causation. On this question, he readily also acknowledged that his conclusions were a product of the Applicant’s account of particular events that occurred in Vietnam.
[37] Page 60 of the transcript of 31/2017.
A matter that emerges from the cross examination that should be the subject of comment is that the section of Dr Weissman’s report previously referred to, where he described the Applicant as a genuine, straightforward, credible and candid historian and witness was not challenged. Whilst it is fair to say it was fairly and squarely put to Dr Weissman that the accuracy of his diagnostic conclusions were dependent upon the truth or accuracy of the patient history reported to him by the Applicant, it was never suggested to him in cross examination that the Applicant might be reconstructing, mistaken or even lying. This is another reason why the Tribunal accepts Dr Weissman’s conclusions on the credibility and candour of the Applicant.
The Tribunal concludes from this observation and the other evidence before it that the date of clinical onset of the subject conditions was on or about the time of completion of his term of active service in the Vietnam War. The date of clinical onset as he put it in evidence from the witness box, is very early May 1970.
For the sake of completion, the Tribunal, by reason of the foregoing matters, finds that the Applicant suffers from the following psychiatric conditions:
(a) alcohol abuse and dependence in full remission;
(b) mild to moderate post-traumatic stress and anxiety symptoms and traumatisation features and a sub-syndromal PTSD;
(c) chronic anxiety disorder of mild to moderate intensity or severity;
(d) chronic depressive disorder of mild intensity or severity.
(“The psychiatric conditions”)
The Tribunal further finds that the date of clinical onset of each of the psychiatric conditions was very early May 1970.
It is further found by the Tribunal that each of the psychiatric conditions was caused by the Applicant’s active service in the Vietnam war.
Irritable Bowel Syndrome
There are several sources of medical evidence verifying the existence of this condition suffered by the Applicant. Firstly, there is a report dated 24 February 2011 from Mr Stewart, a Colorectal Surgeon, to Dr Hepper (the Applicant’s then general practitioner) which describes the symptoms and recommends that a gastroscopy and a colonoscopy be undertaken. That report states that Dr Stewart observed the Applicant is obviously having severe psychological problems following his time in Vietnam, part of which is manifested as irritable bowel syndrome with abdominal bloating, irregular bowel actions and diarrhoea.
Mr Stewart performed a colonoscopy on 29 February 2012 and the results of that procedure were in evidence. The results included indications of abdominal pain and acute diarrhoea. The presence of rectal polyps was also identified as being present in the Applicant in the report of the procedure. An endoscopy was performed by Mr Stewart on the same day. The indications reported in the results were reflux symptoms and abdominal pain.
Dr Shahram Mohammadsaeedi, from Ballarat Community Health, in a Diagnostic Report of 12 January 2012, diagnosed Irritable Bowell Syndrome. In the report, he was asked when the clinical onset of the condition occurred to which he responded, 1970. Relevantly, it recorded that he had done a “barium swallow” in 1972. This is a process which is used for the treatment of gastric complaints.
The Respondent's medical Officer Dr Barbara Fitzgibbon, in a memo dated 2 May 2012, recorded after receipt of the information from Dr Stewart following the procedures performed by him, that the Applicant was diagnosed with irritable bowel syndrome. Dr Fitzgibbon’s report also records that the Applicant was diagnosed with rectal polyps.
Given this material, the Tribunal is quite satisfied that the Applicant suffers from Irritable Bowel Syndrome.
The relevant hypothesis advanced in relation to this condition is that the Applicant’s condition of Irritable Bowel Syndrome arose from the psychiatric conditions from which he has been diagnosed, as previously referred to in these reasons, caused by his active service. Having considered all the material before it, the Tribunal finds that it points to the hypothesis connecting the condition with the circumstances of the active service rendered by the Applicant. The first Deledio step is therefore satisfied.
There is an applicable SOP for Irritable Bowel Syndrome which is number 27 of 2011. Clause 6(b) of the applicable SOP provides the factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting Irritable Bowel Syndrome or death from Irritable Bowel Syndrome with the circumstances of a person’s relevant service is:
(a) having a specified psychiatric condition within the six months before the clinical onset of irritable bowel syndrome.

A “specified psychiatric condition” within the meaning of clause 6(b) of SOP number 27 of 2011 is defined in clause 9 “other definitions”, for the purposes of such SOP as meaning an (a) anxiety disorder; (b) depressive disorder; (d) post-traumatic stress disorder.
The third Deledio step is therefore satisfied.
The Tribunal has found earlier in these reasons (paragraphs 166 to 168) that the Applicant suffers from each of these conditions and that they are war caused. Those findings and the reasons referred to above leading to them are referred to and repeated. This having been found by the Tribunal, the factor required to be satisfied in clause 6(b) of SOP number 27 of 2011 is found to exist. The fourth Deledio step is satisfied.
Alcohol Use Disorder and Colorectal Adenoma
The Tribunal refers to the medical evidence referred to in paragraphs 170 and 171 which verify that the Applicant suffers from Colorectal Adenoma (polyps). The Tribunal accepts this evidence of the Applicant suffering from that condition.
The hypothesis is that this condition was due to the pattern of drinking that was triggered during the Applicant’s period of active service in Vietnam. Considering all the material that is before it, the Tribunal concludes that it points to a hypothesis connecting this condition with his active service in Vietnam. The first Deledio step is satisfied.
The applicable SOP for Colorectal Adenoma is number 35 of 2013.
Under SOP number 35 of 2013 clause 6 “Factors”, Clause 6 provides that the factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting Colorectal Adenoma or death from Colorectal Adenoma with the circumstances of a person’s relevant service is: (a) drinking at least 250 kg of alcohol before the clinical onset of colorectal adenoma. The second Deledio step is satisfied.
As to the third Deledio step, the Tribunal is of the opinion that the hypothesis raised concerning this condition suffered by the Applicant is a reasonable one. Without making any findings of fact, there is a matrix of evidence that points to the hypothesis fitting with the template prescribed by the applicable SOP concerning the alcohol quantity requirement of consuming at least 250 kg prior to the onset of the condition. This evidence includes the Applicant’s account of his history of drinking patterns before and after his service in the Vietnam, and of course prior to the clinical onset of the condition from which he is affected namely, Colorectal Adenoma, together with several reports from the Consultant Psychiatrists. Therefore, the third Deledio step is satisfied
The Applicant stated that prior to his active service in Vietnam, he was only ever a casual or social drinker. His drinking patterns to that time would be at best described as infrequent. Whilst he was serving in Nui Dat, his alcohol consumption was limited by reason of a beer ration of two small cans of day.
Upon his arrival in Saigon, the Applicant’s pattern of alcohol consumption changed dramatically. There was unlimited alcohol available to Australian servicemen. The Applicant, as it appears did many of his serving colleagues, drank profoundly every night. He only stopped drinking when he was on piquet duty.
When probed about the drinking culture amongst Australian military personnel in Saigon, the Applicant described it as “horrific”. Beer and spirits were readily available at exceptionally low prices by prevailing Australian standards. Indeed, cans of beer were five cents each. The Applicant described how for twenty cents, one could have enough alcohol to last most of the night. He described how he developed a craving, or perhaps interest in alcohol to the point that he looked forward to it at night times. It was readily available, so he and his fellow servicemen availed themselves of the opportunity to indulge in alcohol to the full extent.
When the Applicant returned to Australia from Saigon, his evidence was that he tried to change his drinking habits, but ultimately did not succeed. His evidence was that he started drinking pretty consistently on his return. This consistent pattern of drinking was not assisted by, and ultimately only increased because there was, as he explained a culture of drinking in Australia upon his return. From thereon in, he usually consumed approximately 6 to 8 small cans of beer per day.
This pattern of alcohol consumption continued until approximately 1992 when the Applicant decided to address his levels of consumption whilst running a business that involved driving trucks carrying timber products. Apparently, regulations were introduced requiring a zero-blood alcohol limit for truck drivers and he then modified his drinking habits substantially. Without having to return to the specific references, this change in patterns of alcohol consumption was recorded in the psychiatrist’s reports that have been referred to earlier. Dr D’Ortenzio and Dr Weissman both observed in their respective reports that the Applicant’s alcohol dependence had been in remission since 1992. Dr Walton expressed a similar opinion to them but in slightly different terms.
The Respondent sought to also tackle the issue of alcohol consumption by a comparatively careful and detailed analysis of the Applicant’s post army service personal and working life. Details of this post service life need not be reproduced for the purposes of these reasons; other than to note that he married, had children and had a moderately successful working career both as a trusted relatively senior employee in the timber industry and running his own business. His marriage lasted approximately 20 years. He now has grandchildren.
The Applicant readily conceded that throughout his working life, he was able to manage his alcohol consumption in such a way that it did not impede his ability to undertake all aspects of his work.
The facts concerning the Applicant’s post service personal and working life are not really in controversy. The Tribunal cannot see that it ultimately affects its capacity to or its findings of fact.
The Tribunal accepts the Applicant’s evidence concerning his history and pattern of alcohol consumption. His evidence concerning patterns of alcohol consumption, which was contained in both his witness statement and from the witness box, was not the subject of serious challenge in cross examination. The Applicant developed a significant pattern of drinking from the time of his arrival in Saigon in March 1970 until his condition went into remission in 1992. It finds that the Applicant drank at least 250 kg of alcohol between 1970 and 1992 before the clinical onset of the condition from which he now suffers, namely Colorectal Adenoma, as required by clause 6 (a) of the applicable SOP.
By reason of the foregoing matters the Tribunal cannot be satisfied beyond reasonable doubt the meaning of section 120(1) of the Act that the condition suffered by the Applicant of Colorectal Adenoma was not war caused. The fourth Deledio step is satisfied.
DECISION
The Tribunal finds that the correct and preferable decision is to set aside the VRB decision.
In substitution therefore the Tribunal finds that:
(a) The Applicant suffers from the psychiatric conditions, Irritable Bowel Syndrome, alcohol use disorder and Colorectal Adenoma (“the established conditions”); and
(b) By reason of the established conditions, the Applicant’s claim for medical treatment and a pension for incapacity is allowed.

I certify that the preceding two hundred and one (201) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

.............................[sgd]...........................................
Associate
Dated: 21 December 2020

Dates of hearing: 19 and 20 October 2020

Counsel for the Applicant: Ms Symons

Solicitors for the Applicant:
Mr Jorgensen
Williams Winter Solicitors

Solicitors for the Respondent: Mr Brown
Australian Government Solicitor

Dates of hearing:	19 and 20 October 2020
Counsel for the Applicant:	Ms Symons
Solicitors for the Applicant:	Mr Jorgensen Williams Winter Solicitors
Solicitors for the Respondent:	Mr Brown Australian Government Solicitor