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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Hunt and Repatriation Commission (Veterans' entitlements) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] AATA 5156
Decision Date: 21 December 2020

CaseChat Overview and Summary

This matter concerned an application for review of a decision made by the Veterans’ Review Board, which had affirmed a prior decision regarding the applicant's entitlement to benefits. The applicant, who served in the Australian Regular Army and undertook operational service in Vietnam, alleged that during his service he was subjected to bullying and disharmony by a superior officer, which led to a demotion. He also recounted witnessing two distressing incidents in Saigon involving the shooting of Vietnamese civilians. The case was before the Administrative Appeals Tribunal after a previous decision of the Tribunal was set aside by the Federal Court and remitted for redetermination.

The primary legal issues before the Tribunal were whether the applicant's alleged experiences constituted "war-caused" conditions for the purposes of the *Veterans' Entitlements Act 1986* (Cth), and specifically, whether the alleged bullying and disharmony, and the witnessing of the Saigon incidents, were stressors that could be linked to his claimed conditions, such as an anxiety disorder, alcohol disorder, colorectal adenoma, or irritable bowel syndrome. The Tribunal was required to determine if these events met the criteria set out in the relevant Statements of Principles, considering the evidence presented by both the applicant and the Repatriation Commission.

The Tribunal considered the applicant's evidence regarding the bullying and the two Saigon incidents, noting that while contemporaneous documentary evidence for the latter was unavailable due to lost records, this absence did not automatically count against the applicant, particularly given the Army's record-keeping practices at the time. The Tribunal also addressed an evidentiary ruling concerning a report prepared by Mr. Paul Robottom, striking out certain paragraphs where Mr. Robottom had misconstrued the statutory test and made inadmissible findings. The Tribunal ultimately found that the applicant had established that the bullying and disharmony, and the Saigon incidents, were stressors that could be considered war-caused.

The Tribunal set aside the decision under review and substituted a new decision, finding that the applicant was entitled to benefits for conditions arising from these war-caused stressors.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.