Hunt and Repatriation Commission (Veterans' entitlements)
[2018] AATA 1110
•3 May 2018
Hunt and Repatriation Commission (Veterans' entitlements) [2018] AATA 1110 (3 May 2018)
Division:VETERANS' APPEALS DIVISION
File Numbers: 2016/6167
Re:Gordon Hunt
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:3 May 2018
Place:Melbourne
The Tribunal affirms the reviewable decision.
................................[sgd]........................................
D. J. Morris
VETERANS’ AFFAIRS – claimed conditions – whether war caused – psychiatric condition – alcohol condition (in remission) – irritable bowel syndrome – colorectal condition – claim of bullying – claim of Category 1A, 1B and 2 Stressors for incidents on operational service – not satisfied evidence points to link to operational service – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975; s 37
Veterans’ Entitlements Act 1986; ss 9, 13, 119, 120, 120A, 152
Cases
Bushell v Repatriation Commission (1992) 175 CLR 408
East v Repatriation Commission (1987) 16 FCR 517
Forrester v Repatriation Commission [2013] FCA 898
Lees v Repatriation Commission (2002) 125 FCR 331
McLean v Repatriation Commission [2001] FCA 243
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82Repatriation Commission v Keeley (2000) 98 FCR 108
Secondary Materials
Statement of Principles No. 1 of 2009 as amended by instrument No 29 of 2014 (alcohol use disorder)
Statement of Principles No. 101 of 2007 as amended by instrument No’s. 42 of 2010 and 15 of 2011 (anxiety disorder)
Statement of Principles No. 102 of 2014 as amended by instrument No. 99 of 2016 (anxiety disorder)
Statement of Principles No. 23 of 2016 (adjustment disorder)
Statement of Principles No. 27 of 2008, as amended by instrument No. 40 of 2010 (depressive disorder)
Statement of Principles No. 83 of 2015, as amended by instrument No. 29 of 2016 (depressive disorder)
Statement of Principles No. 27 of 2011 (irritable bowel syndrome)
Statement of Principles No. 35 of 2013 (colorectal adenoma)
Statement of Principles No. 37 of 2008 (adjustment disorder)Statement of Principles No. 48 of 2017 (alcohol use disorder)
REASONS FOR DECISION
Senior Member D. J. Morris
3 May 2018
BACKGROUND
The Applicant in these proceedings, Mr Gordon Hunt, has sought review by the Tribunal of a decision made by the Veterans’ Review Board (VRB) on 26 September 2016. The decision under review in the VRB proceeding was that of the Respondent (the Repatriation Commission) dated 14 May 2012. That decision refused a claim for medical treatment and pension for incapacity from post-traumatic stress disorder and irritable bowel syndrome (IBS), later diagnosed as adjustment disorder, alcohol dependence (in remission), and rectal polyp, on the ground that the conditions were not war-caused.
The Board considered the matter on 9 December 2014 and at that time adjourned the hearing to obtain further information to clarify the stressor events relied upon by Mr Hunt in relation to his psychiatric conditions. At that first hearing, the Board affirmed the Respondent’s decision to refuse an application for acceptance of incapacity from carpal tunnel syndrome (CTS) of the left wrist and tomaculous neuropathy as being war-caused. On 29 July 2016 the Administrative Appeals Tribunal affirmed the decision under review. The Applicant appealed to the Federal Court of Australia which made orders by consent on 8 December 2016 setting aside the Tribunal’s decision and remitting the matter to the Tribunal for re-hearing and determination according to law, directing that the matter be remitted to the same Tribunal Member and that further evidence not be received by the Tribunal unless proper cause be shown. On remittal, the Tribunal re-heard the application on the papers and made its decision on 18 May 2017, determining that Mr Hunt’s CTS and hereditary neuropathy with liability to pressure palsies (HNPP) were related to operational service for the purposes of the Veterans’ Entitlements Act 1986 (the Act).
At its second hearing on 26 September 2016, the Board (differently constituted) resumed consideration of the decision under review and had regard for a research report procured under section 152 of the Act and available medical evidence. The Board affirmed the decision.
The Respondent advised that it undertook a review of Mr Hunt’s disability pension following the decision of the Tribunal on remittal on 18 May 2017 (that is, the decision which accepted CTS and HNPP as war-caused conditions) and on 1 June 2017 Mr Hunt was granted a disability pension at 50 per cent of the General Rate effective from 21 September 2011.
Mr Hunt sought a review by this Tribunal of, in his words:
“…those parts of the decision of the delegate of the Repatriation Commission dated 14 May 2012 (as affirmed by the Veterans’ Review Board on 26 September 2016) which refused to grant disability pension for psychiatric illness, irritable bowel syndrome and rectal polyps on the grounds that it found that the conditions were not war caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986…”
The hearing of this matter was held on 31 October and 1 November 2017. The Applicant was represented by Ms Fiona Ryan of counsel, instructed by Mr Michael Jorgensen, a solicitor with Williams Winter Solicitors. The Respondent was represented by Mr David Brown, a solicitor with the Australian Government Solicitor.
THE LAW
Section 13 of the Act sets out that the Commonwealth of Australia is liable to pay pension by way of compensation to a veteran if the veteran is ‘incapacitated from a war-caused injury, or a war-caused disease.’
Section 9 of the Act relevantly states:
War-caused injuries or diseases
(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(e) the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
Mr Hunt contends that each condition was war-caused because, in his submission, it resulted from an occurrence that happened while he was rendering operational service or arose out of, or was attributable to, any eligible war service rendered by him, in accordance with sections 9(1)(a) and (b) set out above.
Section 120(1) of the Act requires that a decision-maker, in this case the Tribunal, is to determine that an injury or disease is war-caused “unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination”:
Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
(2) Where a claim under Part IV:
(a)in respect of the incapacity from injury or disease of a member of a Peacekeeping Force or of the death of such a member relates to the peacekeeping service rendered by the member; or
(b)in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to the hazardous service rendered by the member; or
(c)in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to British nuclear test defence service rendered by the member;
the Commission shall determine that the injury was a defence-caused injury, that the disease was a defence-caused disease or that the death of the member was defence-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note 1:For member of a Peacekeeping Force, peacekeeping service, member of the Forces, hazardous service and British nuclear test defence service see subsection 5Q(1A).
Note 2: This subsection is affected by section 120A.
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
(5)Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a)an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b)a disease contracted by a person is a war-caused disease or a defence-caused disease;
(c) the death of a person is war-caused or defence-caused; or
(d)a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
(7) In this section:
hazardous service means service in the Defence Force, before the MRCA commencement date, that is of a kind determined in writing by the Minister administering section 1 of the Defence Act 1903 to be hazardous service for the purposes of this section.
EVIDENCE BEFORE THE TRIBUNAL
The Rowbottom report
At the commencement of the hearing, Ms Ryan objected to a research report (the Rowbottom report), which had been commissioned by the VRB, being taken into consideration by the Tribunal. Ms Ryan submitted that the Respondent sought to rely on the report as expert evidence but that there was no evidence of the author’s background or, more specifically, whether Mr Rowbottom was a specialised historian. Ms Ryan submitted that the report should be rejected in its entirety as it had no probative value and was prejudicial to the Applicant’s case.
Mr Brown, in reply, submitted that the report was commissioned by the Board and was a document the Board took into account in making its decision. He submitted that the Board itself was “entirely aware of some of the shortcomings of this report but equally aware that there were findings of use in terms of setting the backdrop to a number of claims by the Applicant”. Mr Brown submitted that the Respondent was obligated to provide the report to the Tribunal under section 37 of the Administrative Appeals Tribunal Act 1975 (the AATAct) which requires a decision-maker, at section 37(1)(b) to lodge “every other document” that is relevant to the review of the decision by the Tribunal.
The Tribunal rejected any suggestion that the research report was an expert witness report. It was a report produced at the direction of the VRB and taken into consideration by the Board when it came to its decision, which is now under review. The Tribunal noted that the Board dismissed parts of the report on the basis that the author exceeded the role he was commissioned to undertake. The Tribunal noted that there were parts of the report that were advantageous to Mr Hunt. However some parts of it were, effectively, hearsay on hearsay, and the Tribunal would give little weight to those parts of its contents. The Tribunal noted that the author does not appear to understand the principles of the Act and the standard of proof provisions set out in section 120, but took the view that this was a document that formed part of the material before those making the decision under review so it is a relevant document to consider in this review. With these noted qualifications, the Tribunal decided to admit the research report as a relevant document provided under section 37 of the AAT Act.
Mr Hunt’s service records
At the conclusion of the hearing, the Tribunal requested that the Respondent obtain Mr Hunt’s personnel records from his time in the Australian Army. These were provided to the Tribunal and parties on 6 November 2017. The Army records reveal that the Applicant enlisted on 21 February 1966 as a private soldier. In May 1966 he was assigned to the Royal Australian Army Service Corps. On 16 October 1967 he was promoted to the rank of Temporary Corporal. On 4 November 1969 he left Australia for Vietnam. He told the Tribunal he had volunteered for this overseas operational service. The records show he arrived in Saigon, Vietnam, on 5 November 1969. After returning to Australia in May 1970, Mr Hunt continued his regular Army service and he was discharged from Army service on 20 February 1972.
Mr Hunt’s evidence
Mr Hunt said he was posted to Nui Dat immediately on arrival in Vietnam at the beginning of November 1969 as a clerk in the Cash Office, and started his work in that role immediately. He said on the first day of his arrival, he came into contact with Warrant Officer 2 Robert Church. He told the Tribunal WO Church was the senior non-commissioned officer responsible for the office at that time to the officer-in-charge, a Captain Kevin Taylor.
Mr Hunt said that his relationship with WO Church started badly “from day one” and deteriorated from that point. He said WO Church began directing small work-related barbs at him, and then started making personal remarks, including, around mid to early December 1969, an “out of place comment about my fiancée whose photo was on my desk”.
The Applicant’s statement of facts and contentions stated that WO Church was overly critical of Mr Hunt’s performance and regularly nominated him for extra duties. Ms Ryan said that Mr Hunt eventually complained to Captain Taylor about WO Church’s conduct towards him. She contended that this reporting to the OIC exacerbated WO Church’s attitude towards the Applicant and Mr Hunt was eventually charged with the offence of neglecting to obey routine orders and using insubordinate language.
Mr Hunt said on 14 January 1970 he was returning from a latrine which was some 40 metres from the building he was in and WO Church intercepted him and accused him of not carrying his weapon, in contravention of military rules in the operational area. He said he argued back that there was a “culture in my unit of not carrying weapons” and he was charged with insubordination.
Mr Hunt said that some weeks later in March 1970 he was called by WO Church before Captain Taylor and was “coerced by Church into accepting a demotion in rank and a transfer to Saigon with a threat that he would otherwise be demoted in rank in any event and would not be eligible for further promotion.” He said he was transferred to Saigon that afternoon.
On arrival in Saigon in March 1970, the Applicant was billeted at a building called the Bachelor Enlisted Quarters (BEQ), also called colloquially the ‘Canberra Hotel’. This building was a hotel that had been requisitioned as the bachelor quarters for Australian Army personnel based in that city. Mr Hunt told the Tribunal that, soon after arriving in Saigon he witnessed two stressful incidents involving Vietnamese civilians and local military police.
Mr Hunt told the Tribunal that all soldiers housed in the building were required to be on a roster to undertake piquet duty at night between 6 pm and 6 am, to protect various buildings around Saigon used by the Australian forces, including the BEQ. He provided photographs of the building at the hearing which he said were photographs from around that time he obtained from the Internet. The photographs were taken into evidence. They were taken in daylight and show a multistorey building with a verandah at the front, protected by a high, cyclone-wire type fence. On each side of the building’s frontage are two low-built piles of sandbags from which Mr Hunt said sentries would guard the building in the evening. He said, typically, there were two guards manning a gun at each sentry point, under the command of a guard commander.
In Saigon, Mr Hunt said he was posted to a cash office at a headquarters building in another part of Saigon some distance from the BEQ where he was billeted and messed. He said he was transported each day to and from the cash office.
Mr Hunt gave evidence of two incidents he said occurred while he was billeted at the BEQ. The Applicant’s statement of facts and contentions relevantly summarises the two stressful incidents, at [7]:
It is the Applicant’s evidence that within a short time of his arrival in Saigon he observed two stressful events involving Vietnamese military police and civilians. The first such event occurred when the Applicant was on guard duty at the Canberra Hotel and he witnessed the Vietnamese military police open fire at a civilian who was fleeing from them. He believed that the civilian had been shot and killed (“the First Incident”). The second incident occurred approximately 1 to 2 weeks after the First Incident. On this occasion the Applicant was, again, at gun post on night duty when he apprehended a Vietnamese civilian. As he was about to escort the civilian back to his post Vietnamese military police arrived and demanded that the civilian be handed over to them. The Applicant subsequently heard a shot and saw the civilian lying on his back on the ground with blood oozing from his chest. The military police picked up the civilian’s body and put it in their truck. The Applicant believed that the civilian had been killed (“the Second Incident”).
The first incident in Saigon
In his evidence at the hearing Mr Hunt said the first incident he described occurred around 2 am. He was based at the piquet near the front door of the BEQ. He said he heard running and saw a civilian sprinting, followed by police clad in jungle greens. Shots were fired which the Applicant said came close to his position and ricocheted, some “hitting the façade of the building”. He said he told the other gunner standing guard with him that he was just about to fire back. Mr Hunt said he thought the running man had dropped to the ground to avoid being shot. He said a truck came along and the police picked the civilian up and took him away. He told the Tribunal: “I don’t know if he was shot, or lying doggo.”
Asked if he was required to make a report, he said that was not part of his role and that the guard commander observed the incident from when the shots were fired and the man taken away. Mr Hunt told the Tribunal that it was the guard commander’s responsibility to lodge such a report on any incident that occurred during the period of a guard.
The second incident in Saigon
In terms of the second incident, Mr Hunt told the Tribunal it occurred “a week or so” after the first incident he described. He said that, on this evening, two Australian Army trucks were parked in front of the BEQ against a traffic island between the service road running along the front of the BEQ and the main part of the boulevard. He said the other piquet saw some movement near one of the Australian trucks, and the guard commander told him and his colleague to go and check it out. Mr Hunt said they discovered a man behind one of the vehicles. They apprehended him and searched him and found a screwdriver. He said they were able to communicate in broken Vietnamese and the man told them he was an invalided RNV soldier who was trying to steal to live. Mr Hunt told the Tribunal the man had an identity card in his wallet stamped “disabled” in English. He said that the man had considerable scarring across his torso and he and his colleague assumed he had been disabled.
The Applicant said they went to take the man inside the BEQ but, as they did so, a truck arrived with Vietnamese Military Police and an armed police officer instructed them to give up the man. As they had no jurisdiction, they handed him over. Mr Hunt said, as they turned to go back to their duty post, they heard a gunshot. They fell to the ground. He said they then saw the man lying on the traffic island with a gunshot wound to his chest, and he was thrown into the truck and driven away. Mr Hunt said they felt at the time that the man was “definitely dead”.
In answer to questions from the Tribunal, Mr Hunt said he was billeted in the BEQ for a period of about six weeks and, in that time, undertook only two piquet duties because the roster had already been written before he arrived. The Applicant did not undertake any further piquet duties because he became ill and was hospitalised, and then returned to Australia by medevac in May 1970.
In terms of his drinking habits, Mr Hunt said before he embarked on operational service he was a casual drinker “about once every pay period”. He said that in Nui Dat there was a two can daily limit which he consumed. Soldiers would sell unwanted beer rations to colleagues. He told the Tribunal that there was no such limit in Saigon and that for the period of time he was there he drank between 6 and 8 cans of beer a day, except when he was on piquet duty.
Mr Hunt said on his return to Australia he initially slowed his drinking but it slowly picked up over the years. However, he stopped drinking alcohol completely in 1992. He told the Tribunal that at that time he owned trucks and the national road laws changed so that drivers of heavy vehicles had to have a zero blood-alcohol concentration, which was the catalyst for him giving up drinking alcohol.
In terms of his demotion from Temporary Corporal in March 1970, Mr Hunt told the Tribunal that on his medevac flight back to Australia a senior NCO told Mr Hunt he had heard about the demotion and suggested that Mr Hunt lodge a Redress of Wrongs. Once he got to Brisbane Mr Hunt did so. The Tribunal had before it a document dated March 1971 signed by the General Officer Commanding Northern Command at Victoria Barracks, Brisbane. It relevantly states:
The redress of wrongs submitted by Pte G.E. Hunt has been decided in his favour and it is directed he be so informed.
The effect of this decision is that Pte Hunt is to be reinstated in the temporary rank of Corporal with effect from 4 Mar 70.
The document is annotated in handwriting “for action, 10 Mar 71”. Mr Hunt said he did not recall receiving any other document relating to the reasons that this decision had been made in his favour and an inquiry he had made with the National Archives of Australia for any such relevant document had proven fruitless. Mr Brown said a search by the Repatriation Commission has also failed to produce any other document which would assist the Tribunal. This sole document is the only one before the Tribunal relating to the Redress of Wrongs. There was no background document to the circumstances of the original demotion or why it was found, on review, to have been a wrong decision.
Cross-examination of Mr Hunt
Mr Hunt told the Tribunal that he became engaged in July 1969. His fiancée was in Brisbane working as a civilian typist for the Army. They married in June 1971 after Mr Hunt returned from Vietnam. He was discharged from the Army in February 1972. After leaving the Army, the Applicant sold cars for around eighteen months and then worked for Woolworths as a store manager until early 1975. He and his wife then moved to Stradbroke Island where they jointly managed a holiday resort. They had their first child in 1973 and their second in November 1975, both sons. In January 1976 they moved to Melbourne and Mr Hunt worked as a labourer in a timber yard. Within a year he became second-in-charge at the yard. In 1979 he was ‘head hunted’ to be manager of a new timber yard at Springvale. After a period he said he had a falling out with one of the directors of the company and so he left. Mr Hunt said he was then again ‘head hunted’ to be marketing manager for a Tasmanian company which owned a saw-mill in Smithton, North-West Tasmania. In this job, Mr Hunt said he was based in Melbourne but flew to Smithton about once a week. He left that job in 1984 after a period of three or four years; he told the Tribunal his departure was not because of work performance, it was because management wanted a change in direction.
He next worked for a concreting firm, and then bought his own small saw-mill at Trentham. He sold it off after changes in the industry but retained two trucks and then provided a transport business for other saw-mills from 1985. He operated this business until 1992. Mr Hunt told the Tribunal that he was consuming significant amounts of alcohol at this time but also that he did not have a day off because of drinking. The Applicant said he had a strong work ethic and would not drink behind the wheel and was “careful with what [he] consumed”.
The Applicant told the Tribunal that new national rules came into force in 1992 which required drivers of heavy vehicles to have zero alcohol concentration in their blood. He said this led to a significant change in his conduct which has persisted to this day. He said in evidence that he would occasionally have a social drink which “could get out of control” and that the last time this occurred was in February 2016. Mr Hunt said his marriage ended in 1994. The two sons of the marriage had by this stage moved out of the family home. He said he has stayed in close contact with them and he now has five grandchildren, and sees them every couple of months.
Mr Hunt was asked by Mr Brown what happened in January-March 1970 when he was at the Cash Office at Nui Dat. He responded to this open question that 14 Australian soldiers were killed and there was a lot of pressure on the Cash Office as pay books had to be got up to date for the soldiers’ next of kin. He said WO Church had the responsibility to ensure it was done, and Mr Hunt felt at the time he had extra workload. He said in terms of his demotion from the rank of temporary corporal, he had no warning. Mr Hunt said, in relation to this that “48 hours was too short, would take at least 96 hours” [to update the pay books of the soldiers whose lives had been lost].
Mr Hunt was asked about the Army Nominal Roll records which were before the Tribunal. This record states that WO Robert Church’s service in Vietnam commenced on 21 January 1970, which was some ten or so weeks after Mr Hunt’s deployment to Nui Dat. Mr Hunt said he had “no problems” in saying the nominal roll was wrong and that WO Church was “definitely” already in Nui Dat when the Applicant arrived there on 5 November 1969.
In terms of the first incident at the BEQ during the Applicant’s deployment in Saigon, Mr Hunt said bullets had ricocheted and hit the façade of the building. He agreed that it was the guard commander’s responsibility to report both incidents and agreed that, in spite of a search, no record of either incident had been able to be found.
In March 2011 Mr Hunt was referred to see Dr Gianni D’Ortenzio, consultant psychiatrist. He told the Tribunal he saw Dr D’Ortenzio eight or nine times. In the T documents was a report dated 19 April 2012 to the Department of Veterans’ Affairs prepared by Dr D’Ortenzio on the Applicant. He said he had been treating Mr Hunt for about fourteen months and that there was no history of any psychiatric problems prior to service and no specific symptomatology developed during service. Dr D’Ortenzio wrote:
In the post service period, there emerged a number of anxiety and depressive symptoms associated with a picture of traumatisation and these contributed to heavy, ongoing alcohol use over a prolonged period of time, which then ceased in mid 1992 and Mr Hunt has been in a state of total alcohol abstinence since that time.
The account Mr Hunt gives of his early military experience seems unremarkable, and his roles were mostly clerical, though he did do some patrol and picket work, and it was during these occasions that he experienced several traumatic events.
…
Mr Hunt described several experiences, particularly on patrol. He described having to spend time in the jungle with about 10 other soldiers that were not known to him. He says that there was no action or specific contact with enemy, though he described feeling a high level of stress throughout the patrols. He described being constantly on alert and constantly uncomfortable. He described being in constant fear that a shot would be fired, that they would be machine-gunned by the nearby soldiers. He said there were several instances where firing did occur, but fortunately no one was shot.
He described an incident of being on picket at the barracks at a hotel in Saigon where they were staying, and there were men poking about the vehicles, stealing things. He described the involvement of the Vietnamese military police and soldiers, of whom he said he was constantly fearful, he said he was very much aware how “shot happy” they were, and his fear of them made his picket duty, and his involvement with them, very distressing.
Having said that, there were no specific accounts of direct threats on Mr Hunt’s life, nor any injuries or direct deaths to which he was witness or participant in related event.
Mr Hunt said in the hearing that Dr D’Ortenzio was mistaken in this account in his report because there were no occurrences where firing occurred which involved the Applicant. When raised with him that there was no mention of bullying by WO Church in this psychiatric report, Mr Hunt said he remembered telling Dr D’Ortenzio about the bullying. Mr Hunt agreed that he did not make any mention of bullying in the 2012 application he made to the Department but said that he had “locked it away” and when an advocate gained access for him to Army records, it had brought the memories back. Mr Hunt said that he disputed Dr D’Ortenzio’s account in the report that he had not relayed to Dr D’Ortenzio any specific accounts of direct threats to his life, nor any injuries or direct deaths to which he was witness.
Dr D’Ortenzio made a major diagnosis of alcohol dependence in remission since 1992. He also diagnosed an adjustment disorder which “is mild and causing limited impairment”.
The Tribunal also had before it a psychiatric report by Dr David Weissman, consultant psychiatrist, dated 11 April 2017 and Dr Weissman gave evidence at the hearing. Dr Weissman recorded what Mr Hunt told him:
He told me that from November 1969 [date corrected in oral evidence by Dr Weissman], Warrant Officer Church kept “pressuring” him (Mr Hunt) for months. He told me that on one occasion, in or around late December 1969, he (Mr Hunt) pointed his loaded rifle at Warrant Officer Church.
Thereafter, Mr Hunt had been anxious “all the time” that Warrant Officer Church was going to charge him. Mr Hunt explained to me that had he been charged with pointing a loaded rifle at Warrant Officer Church it could have been a court martial offence.
…
I asked him what was the worst thing that Warrant Officer Church did to him. He told me that in or around January 1970 Warrant Officer Church charged him with failing to follow standing orders.
He told me that he went to urinate about 30m away. He did so without his rifle. He told me they were meant to have their firearms on them at all times. He told me that he tried to defend himself against the charge (failing to follow standing orders) and in so doing was also charged with insubordination
…
Mr Hunt told me that in or around early March 1970 Warrant Officer Church “forced” him to “voluntarily” reduce his rank from Corporal down to Private.
Dr Weissman went on to describe two events that occurred during the Applicant’s time serving in Saigon:
Mr Hunt told me that he observed a Vietnamese civilian being pursued by the Vietnamese Military Police whilst he was on guard duty at the Canberra Hotel. The Canberra Hotel was where the Australian forces were accommodated. He said that he initially heard a commotion and after he identified what was going on, he saw the Vietnamese Military Police open fire at the civilian while the civilian was fleeing from them. He told me he saw the Vietnamese civilian “drop to the ground”.
He told me he still has “no idea” to this day whether the Vietnamese civilian was shot “but he wasn’t in a good position…the truck picked up his body and he was put in the back of the truck (by the Vietnamese Military Police). I’m not sure if he was alive. I was a bit shocked by it.” He told me it was traumatic. He told me that he (Mr Hunt) was “close to the line of fire”. He told me he was “close to pulling the trigger on the Vietnamese Military Police”.
Dr Weissman went on to give an account of another incident Mr Hunt described, while he was posted in Saigon:
He told me that the third incident (the second discrete incident in Saigon) occurred about one or two weeks later. He told me he was on night duty at gun post at the time. He was the Number 1 gun post. There was someone else at the Number 2 gun post. The person who was at the Number 2 gun post reported seeing someone (a person) near the Australian military vehicles.
He told me that the guard sent him and the Number 2 gun post out to investigate. He told me that they investigated and apprehended a Vietnamese civilian who was “poking around our truck”. He told me that it was a stressful incident up to that point. He said “It turned out that he (the civilian) was a former member of the Army of the Republic of Vietnam (ARVN).”
He told me that he and the number 2 gun post planned to bring the civilian back to the other side of the “wire”. However, as they apprehended him, the Vietnamese Military Police came, its officer “jumped out” and simply instructed Mr Hunt to “give” the man over to them. Mr Hunt told me that this event was “fairly hair-raising”. He also told me that they (the Australian Army) had “no jurisdiction”. He told me that he had no choice but to give the Vietnamese man over to the Military Police. He told me that immediately after they did this, they walked around the back of the truck. Mr Hunt heard a gunshot and saw the Vietnamese man lying on the ground from underneath the truck. He told me that the man was “dead, most certainly.”
Dr Weissman diagnosed that Mr Hunt has been suffering from both a chronic anxiety disorder and a chronic depressive disorder. He also concluded that Mr Hunt’s alcohol abuse and dependence is in full remission.
In cross-examination, Dr Weissman said he had seen Mr Hunt on one occasion, for about an hour. When asked if the proof for the events reported by the Applicant to him was absent, would his psychiatric diagnosis still be valid, Dr Weissman said in his view the diagnosis would still be valid but the cause of the condition would no longer be war-related.
The Applicant also saw Dr Lester Walton, consultant psychiatrist, on 3 February 2014 and he wrote a psychiatric report dated 11 February 2014 which was before the Tribunal. Dr Walton relevantly wrote:
Mr. Hunt served in Vietnam between 6 November 1969 and 6 May 1970. Initially he was placed [at] Task Force Base in Nui Dat. He described the second-in-charge of the unit as “psychotic”. Closer questioning revealed that the man was prone to bullying and harassment and that Mr. Hunt, in particular, was persecuted “from day one”.
Mr. Hunt illustrated the intensity of the ill-treatment by describing an incident which occurred a relatively few weeks only after he arrived in Vietnam where he had become so frustrated and angry that he placed his loaded rifle in the mouth of the bullying officer and “I came close to shooting him”. That did have a positive effect in that the persecution subsided to some extent.
…
In December 1969 Mr. Hunt was charged for failing to meet standing orders. He had absented himself to the urinal and he was observed not to be carrying his rifle. He sustained a “severe reprimand” and he was fined. A few weeks later he was given what amounted to Hobson’s choice in relation to rescinding his rank of corporal, with which he reluctantly complied under the threat of his being permanently sidelined for any further promotion.
…
There was a particular incident in March 1970 in the early hours of the morning. Mr. Hunt could hear yelling and thus they manned the machine guns. He observed a figure running and then being pursued by Vietnamese police. The man was shot at Mr. Hunt was actually near the line of fire. He observed the immobile body of the man beside a truck but he remains in ignorance as to whether or not he actually died. It was a distressing experience for him.
In early-April 1970, again in the early hours of the morning, Mr. Hunt was responsible for guarding some vehicles. A man had been observed nearby and they were instructed to investigate and they apprehended a Vietnamese civilian at gunpoint. The man was armed with a screwdriver. He won some sympathy from the Australians by explaining that he was a disabled former South Vietnamese soldier and Mr. Hunt did observe that he seemed to have extensive scarring. Essentially the man was scavenging to support his family.
While they were in the process of escorting their prisoner, Vietnamese police arrived and demanded to take charge. Apparently it was established precedent that such a demand would not be resisted. Very shortly thereafter the Vietnamese police shot the man dead. Mr. Hunt was nothing less than shocked by this.
Dr Walton went on to state:
I believe that Mr. Hunt would qualify for having been exposed to a Category 1A stressor in that he was in a potentially life-threatening situation when in the line of fire when Vietnamese police discharged their weapons. What would seem to be unequivocal is that he was exposed to a Category 1B stressor by being an eye witness of a person being killed, he viewed the corpse and the situation could arguably be described as an atrocity.
Mr. Hunt might also be considered to have been exposed to a Category 2 stressor in the form of the seemingly quite extreme harassment he experienced on Nui Dat and the consequences of that.
Dr Walton’s preferred diagnosis of the Applicant was depressive disorder, in particular dysthymic disorder. He agreed with Dr D’Ortenzio that a diagnosis of post-traumatic stress disorder cannot be sustained, that Mr Hunt did not become alcohol dependent and there is no current diagnosis related to substance abuse.
CONSIDERATION
In Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio), the Full Court of the Federal Court set out four steps for determining claims relating to the application of Statements of Principles under section 120A and subsections (1) and (3) of section 120 of the Act. Their Honours held, at 97-98:
1.The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
The methodology set out in Deledio is a way of considering claims under the Act and has met with judicial approval on many subsequent occasions. It is aimed at taking account of the Parliament’s intentions with the application of the Act, in that the provisions of sections 120 and 120A should be read with an eye to the benefit of the veteran or, as appropriate, the veteran’s dependant.
Deledio Step 1
At the Deledio first step, no fact-finding is undertaken by the decision-maker. The High Court provided a helpful guide in Bushell v Repatriation Commission (1992) 175 CLR 408 when Mason CJ and Deane and McHugh JJ said, at 413:
“…s. 120(3) is not exhaustive of the content of s. 120(1). Sub-section (3) is concerned with whether ‘the material’ raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be opinion or fact. The purpose of sub-s. (3)…is to ensure that a claim to which s. 120 applies is not met unless there is some material which raises the relevant causal hypothesis… The material will raise a reasonable hypothesis within the meaning of s. 120(3) if the material points to some fact or facts (‘the raised facts’) which support the hypothesis and if the hypothesis can be regarded if the raised facts are true…”
(Emphasis added.)
There is a low threshold at this stage of applying the methodology (as Tamberlin J stated in McLean v Repatriation Commission [2001] FCA 243 at [24]). Having considered all the material before the Tribunal, it is open to me to conclude that the experiences of Mr Hunt when posted at Nui Dat and subsequently on piquet duty in Saigon precipitated a depressive condition, and that his consumption of alcohol while on operational service, keeping in mind that he enlisted at the age of 17 and had not had experience of drinking alcohol before joining up, raise, in my mind, a reasonable hypothesis. In coming to this conclusion, I take account of the professional opinion of three consultant psychiatrists who, while they differ in the precise diagnosis, all concluded that Mr Hunt has some form of depressive or anxiety disorder, and I note that the Respondent accepted that position.
Deledio Step 2
The second step of Deledio, as outlined above, is to ascertain if there is a Statement of Principles (SoP) formulated by the Repatriation Medical Authority in force that is relevant to the hypothesis raised. Both parties’ representatives contended that the relevant SoP for adjustment disorder is instrument No 23 of 2016, but as at the date of the primary decision it was instrument No 37 of 2008. The SoP for depressive disorder at the date of the primary decision was instrument No 27 of 2008 as amended by instrument No 40 of 2010, and is currently instrument No 83 of 2015, as amended by instrument No 29 of 2016. The SoP for anxiety disorder is currently instrument No 102 of 2014 as amended by instrument No 99 of 2016, but at the date of the primary decision it was instrument No 101 of 2007 as amended by instrument No’s 42 of 2010 and 15 of 2011. The SoP for alcohol use disorder is instrument No 1 of 2009 which, after the primary decision was made, was amended by instrument No 29 of 2014. SoP No 48 for alcohol use disorder was also made in 2017.
The Full Court of the Federal Court of Australia has found that in a case where a statement of principles has been amended since the primary decision, an applicant is entitled to the benefit of the SoP which is most favourable to his or her application (see Repatriation Commission v Keeley (2000) 98 FCR 108 at 123). Mr Hunt’s application is in this category.
In regard to the Applicant’s condition of depressive disorder, the Repatriation Medical Authority has determined in the SoP concerning depressive disorder, No 83 of 2015, at item 9 that at least one of listed factors “must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder or death from depressive disorder with the circumstances of a person’s relevant service”.
Relevant in Mr Hunt’s case, is item 9(1)(b), which states:
(b)experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder.
Counsel for Mr Hunt contended that the first incident in Saigon fits this requirement because the Applicant believed his life was in danger.
Item 9(1)(c) also states:
(c)experiencing a category 1B stressor within the five years before the clinical onset of depressive disorder.
and, at Item 9(1)(f):
(f)experiencing a category 2 stressor within the one year before the clinical onset of depressive disorder.
Schedule 1 of SoP No 83 of 2015 contains a Dictionary which sets out what is meant by category 1A stressor, category 1B stressor, and category 2 stressor:
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.
Category 1B stressor means 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 inflicted 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 on-going 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 of school environment including on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful work loads, 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 involving 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.
The SoP for anxiety disorder (No. 102 of 2014) uses the same definitions for category 1A, 1B and category 2 stressors. The SoP for adjustment disorder (No. 23 of 2016) also uses the same definitions but is differenced by requiring a veteran to experience a category 1A, 1B or category 2 stressor within the three months before the onset of adjustment disorder.
The Dictionary further defines “eyewitness” as a person who observes an incident at first hand and can give evidence of it.
It would appear that the Applicant’s claim, on the material before the Tribunal, fits the general template of the relevant SoP.
Deledio Step 3
On the face, the Tribunal finds that Mr Hunt’s application satisfies the requirements in the third Deledio step. The hypothesis raised is ‘reasonable’ in the sense as set out by Mortimer J in Forrester v Repatriation Commission [2013] FCA 898, at [32]:
The reasonableness of a hypothesis in the context of a determination under s 120(3) therefore has two aspects: a medical or scientific aspect, and what I shall describe as a factual aspect. One looks to the factual circumstances relating to the particular veteran and the other looks to the medical or scientific basis for what is factually asserted. Since the introduction of s 120A in 1994, consideration of these aspects has become somewhat separated. However it is important to recall that they both form part of the assessment of whether a hypothesis is reasonable. A hypothesis will be reasonable if there are facts that point to or support it, but it also needs to be reasonable because a SoP determined under s 196B(2) or (3) (or medical or scientific opinion if there is no SoP) upholds it…
Applying this approach, there is a medical basis for what is factually asserted; three consultant psychiatrists have separately diagnosed that Mr Hunt has a depressive condition, even though there are variations about the actual description, there is consistency that the Applicant suffers from it.
There was a lacuna in the Applicant’s submissions in regard to the date of clinical onset contended for Mr Hunt’s psychiatric condition, as well as his IBS and polyps conditions. The term ‘clinical onset’ has been considered by the Courts and the Tribunals on several occasions. Notably the Full Federal Court in Lees v Repatriation Commission (2002) 125 FCR 331 referred to a Federal Court decision in RepatriationCommission v Cornelius [2002] FCA 750 where Branson J herself quoted, at [26], an earlier Tribunal consideration of this matter which stated:
…there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present.
Dr Weissman in his oral evidence said that Mr Hunt’s psychiatric symptoms commenced in Vietnam. In his opinion the Applicant had anxiety symptoms from late 1969 to early 1970, and that May 1970 was the date of a ‘full diagnoses’ of those conditions. Dr Weissman said his diagnosis was based on the symptoms reported, the veracity of those symptoms and that he uses experience to link causative factors which might lead to those symptoms.
Dr D’Ortenzio did not give a date for the clinical onset of Mr Hunt’s alcohol dependence but noted it had been in complete remission since 1992. Dr Walton said that Mr Hunt has no psychiatric history antedating his military service and goes on:
…Apart from the temporary anti-anxiety medication he received while actually in service, it seems that it was not until the mid-1990’s that he became more aware of psychiatric problems and I note this corresponds to his reduction in alcohol use. …
On balance, even taking into account this element of vagueness of the date of clinical onset, I am satisfied that there is a reasonable hypothesis of a connexion to the Applicant’s military service.
Deledio Step 4
The Tribunal must now weigh the evidence before it to see whether or not it is satisfied beyond reasonable doubt that Mr Hunt’s claimed conditions were not war-caused. There are two circumstances in which a decision-maker can be satisfied beyond reasonable doubt. The first is the existence of a fact or facts inconsistent with the reasonable hypothesis. The second is the non-existence of a fact essential to the reasonable hypothesis.
Claim of bullying in Nui Dat
In terms of Mr Hunt’s experience in Nui Dat, the Applicant was adamant that he was subjected to being ‘singled out’ by WO Church from when he first arrived at post on 5 November 1969. When it was raised in cross-examination that the Army records obtained in relation to WO Church showed Church did not arrive in Vietnam at all until 21 January 1970, Mr Hunt refused to accept that date and in support of this refusal simply stated that in relation to the Nominal Roll, he had been told by someone, unnamed, that “we can only go on what Army tells us”.
The Tribunal finds that there is no evidence not to accept that the Australian Army Nominal Roll records the correct dates of Vietnam service for WO Church. This, in the Tribunal’s view, is an insurmountable factual obstacle to accepting the evidence given by Mr Hunt about bullying he experienced from WO Church “from day one”. In particular, the Army records show that the incident that Mr Hunt recounted about being disciplined by WO Church for not carrying his weapon when visiting the latrine occurred on 14 January 1970, some seven days before WO Church arrived in that country on deployment.
The independently recorded dates of WO Church’s Vietnam service also mean that what Mr Hunt told Dr Weissman about him pointing a loaded rifle at Church around December 1969 or the version he told Dr Walton that he “placed his loaded rifle in the mouth of the bullying officer” and that this occurred “a few weeks after his arrival in Vietnam” become shadowed with significant doubt.
The Tribunal notes that neither the Applicant nor the Respondent sought to call evidence from Mr Robert Church, who was interviewed by Mr Rowbottom in the course of compiling his research report for the VRB. The Tribunal takes this into account because Mr Church’s contribution to the Rowbottom report cannot be tested. In the Rowbottom report, after Mr Church made an explicit proviso that he was being asked to recall events of some 46 years before, he relevantly told Mr Rowbottom:
“Mr Church stated that Mr Hunt was moved from Nui Dat to Saigon because of poor performance. The disciplinary action was taken after Mr Hunt was tasked to gather and update the personal military financial records of a deceased soldier and despatch them to Australia within 48 hours. Mr Hunt failed to do so and took at least 96 hours to complete the task.
As a result Mr Hunt was offered the option of being charged for dereliction of duty and face a penalty of reduction in rank, or take a voluntary reduction in rank and go to Saigon as a private soldier.”
Mr Church said that these options were given to Mr Hunt on the advice of the Cash Office Liaison Officer at the time, WO1 Tom Nicol, as a means of resolving the issues Mr Church had with Mr Hunt and that Mr Nicol “considered Mr Hunt to be a poor performer”, an opinion echoed by Mr Church who stated that Mr Hunt was “not suited to a forward operational area”. However, when Mr Rowbottom made contact with Mr Nicol, he had no recollection at all of Mr Hunt but did recollect having to move another soldier because that soldier had a clash with WO Church; however the soldier in question was a national serviceman and a private, whereas the Applicant in this matter was a regular and a temporary corporal.
I give no weight to Mr Church’s reported comments to Mr Rowbottom on what Mr Nicol thought of Mr Hunt. This is an example, as I said earlier, of ‘hearsay on hearsay’. I note that Mr Nicol relevantly told Mr Rowbottom that WO Church was “a brilliant clerk but a warrant officer who had man-management problems and was a poor leader”.
I note that Mr Hunt himself, in the course of his evidence at the hearing, volunteered about a particular episode referred to in the Rowbottom report when the Cash Office was put under pressure to process the pay books of a group of deceased servicemen and expressed to the Tribunal his view that: “48 hours was too short. Would take at least 96 hours”. Mr Hunt said he did not accept what Mr Rowbottom said about this particular incident.
It is clear to me on the evidence in the T documents, and it was not in contention, that the demotion of the Applicant from temporary corporal to private in Nui Dat was affected by a flaw in process by the Army. This was corrected when the General Officer Commanding Northern Command endorsed a Redress of Wrongs after Mr Hunt made an application when he returned to Brisbane, and this not only saw the Applicant restored to his previous temporary rank but the reinstatement was backdated and Mr Hunt told the Tribunal he received a significant amount of back-pay.
Evidence in the T documents was that there was a delay in the consideration of the Redress of Wrongs. Army Headquarters in Canberra initially arranged for Mr Hunt’s application for redress to be considered in Vietnam but the matter was referred back to Northern Command in Brisbane in September 1970 by the Commander of Australian Forces in Vietnam because the “principals of the investigation”, a Major Kilner, Captain Taylor and WO Church, had all, by that time, returned to Australia. It is therefore evident to me that those three persons were in fact cited by Mr Hunt in his application to have his rank reinstated, made once he had returned to Brisbane. However, any further assessment of what actually occurred in March 1970 is hampered by the inability of both parties to obtain the papers relating to the Redress, which may have shed some light on: (a) why the original decision was taken; and (b) why it was later found to be wrong. Whether the demotion was related to failure in preparing paybooks for slain soldiers, or related to something else, is simply not something on which the Tribunal can come to a conclusion, because of the paucity of the evidence. I note that the Defence Abuse Response Taskforce, in papers before the Tribunal, remarked in October 2013:
[h]owever the determination [i.e. the Redress of Wrongs] was confidential and the Applicant was not privy to the reasoning or consequences apart from the reinstatement of his rank.
I find it significant that Mr Hunt said he saw Dr D’Ortenzio “eight or nine times” and apparently did not once raise any allegation of bullying by WO Church that was recorded by Dr D’Ortenzio. I consider that this is something that would have been particularly relevant to the information which Mr Hunt was otherwise freely giving to Dr D’Ortenzio in 2011 and 2012 about his Army service to enable him to paint a clinical picture. This would be highly pertinent information for the assessment the psychiatrist was undertaking. I also consider it significant that Mr Hunt made no claim about bullying in his 2012 application to the Department.
The Tribunal takes particular note of the contention by Mr Hunt that he pointed a loaded rifle at WO Church or, in the record of Dr Walton (presumably based on what his patient told him), that Mr Hunt “placed a loaded rifle in WO Church’s mouth”, and that there were apparently no consequences for such a stated action. This type of conduct in the field on operational service soldier-to-soldier would objectively be treated as very serious, especially by a subordinate to an NCO, and I consider it is certainly the sort of life-threatening event that Mr Church would have been likely to have mentioned to Mr Rowbottom. Mr Church did not. When Mr Rowbottom contacted him to ask him if he recalled Mr Hunt, his discussion focussed on Mr Hunt’s performance of clerical work in the Cash Office and his being sent from Nui Dat to Saigon. In the absence of any corroborating evidence about such a major action as pointing a loaded rifle at a fellow soldier or placing a loaded firearm in the mouth of a fellow serviceman, the Tribunal is satisfied beyond reasonable doubt that neither of these particular events occurred as described.
The Tribunal is satisfied beyond reasonable doubt, in relation to Mr Hunt’s contentions about being bullied in Nui Dat by WO Church, that the chain of bullying conduct that he set out at the hearing commencing in November 1969 to the date of his demotion and transfer to Saigon on 4 March 1970 did not take place. In saying this, I accept on the evidence that the Applicant and Mr Church clashed in the period of about five weeks when they served together in Nui Dat and that conclusion is supported by Mr Hunt naming Church and Taylor in his later Redress of Wrongs application for rank reinstatement several months later. However, I conclude that Mr Hunt has since confused events and dates because for much of the time he contended WO Church bullied him, they were factually not in the same country, let alone posted together. I do not conclude that this misremembering is some deliberate action by the Applicant. It is understandable given the extended passage of time that has elapsed that timelines, events and particular persons involved in events have become blurred, but in this particular respect the Tribunal relies on the independently prepared Nominal Roll that stipulates the dates when Mr Church was serving in Vietnam.
I therefore find that there is an absence of fact which renders me unable to accept as credible the particular contentions the Applicant made about bullying by Church.
In terms of the two incidents in Saigon, the Tribunal notes that section 119 of the Act makes clear that the Commission (or the Tribunal in these circumstances) is not to be bound by technicalities and, specifically, at section 119(1)(h)(i) and (ii):
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)the absence of, or a deficiency in, relevant official records, including an absence of deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a member of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.
Taking this provision into account, the Tribunal finds it still surprising, and relevant, that there are no corroborating records or accounts to confirm that these two incidents which Mr Hunt said he witnessed on piquet duty at the BEQ took place. Mr Hunt said it was the obligation of the guard commander to record such incidents, which would seem consistent with duties, but no record was apparently made. Mr Hunt also said that, because he was only posted at the BEQ for a relatively short period before being admitted to hospital, he only undertook two piquet duties. He states that that these two serious incidents of the nature that he outlined happened to take place within a period of about a week during the only two piquet duties he mounted, but there are apparently no contemporary corroborating records of either of these incidents, nor have they been recalled in interviews by others posted to the BEQ at the same time who were interviewed in the compilation of the Rowbottom Report.
The Rowbottom Report contains the written (but not signed) evidence of the OIC Military Police in Saigon at the time, WO2 Ian Laurie. He stated:
…At its rear was a secure vehicle compound, virtually the back yard of the Canberra, where all Australian vehicles were habitually parked. The entire frontage of the BEQ was secured by a chain wire apron, oversighted by sentry posts manned 24 hours a day. No vehicle stopping nor parking along the frontage was allowed or tolerated.
…
At the time of the alleged incidents I was a Sergeant in the RAA Provost Corps, posted to Saigon as the Detachment Commander and Special Investigations Branch Investigator. Any incident of the nature of those mentioned would most certainly have been noted in the daily guard report at the Canberra and would have been common Australian, American and Vietnamese Military knowledge. It would certainly have featured in the local press. Our Detachment interpreter, Sgt Cao Van Lai, was a constant source of information as to events in the ARVN. It is unavoidable that I would have known of these incidents had they occurred, and there is no doubt in my mind that they did not occur.
(Emphasis added.)
The Tribunal does take into account Ms Ryan’s submissions that Mr Laurie’s statement is not signed, but it is attached to a report prepared for the VRB and I have no reason to doubt that it was made by the author as described who had the duties at the time as described. I note that counsel for Mr Hunt submitted that Mr Laurie had not been called to give evidence, so his statement could not be tested in the hearing, but also the Respondent’s response that it was open to Mr Hunt to have summonsed Mr Laurie to give evidence.
The Tribunal cannot be satisfied with Mr Hunt’s contention that bullets, even ricocheting bullets, could have hit the façade of the BEQ during the first incident, and that no records exist or recollections apparently corroborate such a relatively significant incident. Given the importance of the military vehicles in time of war and the possibility of sabotage or simple disablement of them, as Mr Laurie wrote I am satisfied that Australian Army vehicles were not in fact left, essentially unprotected, on the open street at night when there was a secure compound behind the BEQ where the vehicles were kept overnight. Mr Hunt accepted in evidence that the general practice was to park the vehicles in this secure yard at night. It also seemed incongruous to the Tribunal that vehicles would be parked in front of the building at night, effectively blocking the posted guards from a line of sight and being able to protect it, which was their job.
I note that although Dr Walton refers to the experience of the Applicant ‘seeing a man killed’ in terms of examining the experience against the Category 1A Stressors, that does not square with Mr Hunt’s actual evidence to the Tribunal. Mr Hunt was at pains to make clear in the hearing that he did not see someone being shot. In terms of the first incident, Mr Hunt said he “thought the man had dropped to avoid being shot…I don’t know if he was shot or lying doggo”. In terms of the second incident, Mr Hunt said he heard a gunshot and then saw a man lying on the road with a gunshot wound to the chest. However, in spite of witnessing such incidents being something that would objectively be concluded to be traumatic, the Applicant did not cite them in his application in 2012. There are no contemporary accounts which corroborate either of these events occurring and the statement by the most senior Australian Military Police officer in charge at the BEQ at the relevant time that he would certainly have heard of such events and they would have been recorded by the guard commander weighs strongly against the Tribunal concluding that they did, in fact, occur. In relation to these two described incidents I am satisfied that the raised facts are disproved beyond a reasonable doubt.
Mr Hunt gave extensive evidence to the Tribunal about his successful career in business after discharge from the Army, including running his own sawmill and then trucking business, and holding other responsible positions. I also note that, apart from his marriage ending after some 20 years, he gave evidence of regular contact with his two sons and a loving and good relationship with them and his grandchildren. All of this weighs against a conclusion that his diagnosed psychiatric condition was caused by service in 1969-70. In saying that, I do not question the professional diagnosis, but my task in this review is to decide whether Mr Hunt’s depressive condition is war-caused, and on the weight of the evidence as outlined, in particular the lack of evidence to satisfy the category 1A, 1B and 2 stressors in the SoP which are mandatory, I am not satisfied on the whole of the evidence before the Tribunal that it is. The SoP stipulates that a category 1A or 1B stressor must be experienced, in the case of depressive disorder and anxiety disorder within 5 years before the clinical onset of the condition, or in the case of adjustment disorder, within 3 months of the clinical onset. In the case of the category 2 stressor for depressive disorder and anxiety disorder, the experience must be within one year before the clinical onset of depressive disorder. In the case of a category 2 stressor for adjustment disorder, the experience must be within 3 months of the clinical onset. The Tribunal is satisfied that the evidence points away from this and to a much more recent date of clinical onset.
The Tribunal has examined the relevant SoP relating both to those applicable at the time of the primary decision and at the time of the hearing and any material differences have been taken into account in this assessment. As the Tribunal has found that the Applicant does not have a war-caused psychiatric illness, the relevant factors that must as a minimum exist in the applicable Statements of Principles for depression, anxiety and adjustment disorder (as amended and updated) are not established.
Applicant’s IBS condition
The Tribunal had before it a medical letter by Mr Bruce Stewart, colorectal surgeon, dated 24 February 2011 and the report of a colonoscopy carried out by Mr Stewart on the Applicant on 29 February 2012. Mr Stewart reported:
...he had a moderate rectal polyp that I have removed but no major mucosal abnormality. Assuming the histology is okay I will repeat his colonoscopy in 3 years.
The diagnosis of this condition is therefore confirmed in 2012 but the relevant factor on which the Applicant seeks to rely in claiming this condition as war-caused is factor 6(b) in SoP No 27 of 2011, having a specified psychiatric condition within the six months before the clinical onset of irritable bowel syndrome. As I have found that Mr Hunt’s psychiatric condition was not war caused, the relevant factor that must as a minimum exist under the SoP is not established, so it follows that the Tribunal is satisfied beyond reasonable doubt for the purposes of section 120(2) of the Act that there is no sufficient ground for determining that the IBS condition was war-caused.
Applicant’s rectal polyps condition and alcohol use disorder
The SoP for Colorectal Adenoma is instrument No 35 of 2013. Ms Ryan contends that factor 6(b) “drinking at least 250 kilograms of alcohol before the clinical onset of colorectal adenoma” applies. Mr Hunt’s evidence was that he was limited to two cans of beer a day while at Nui Dat, that is from 5 November 1969 to 4 March 1970. He said that the alcohol ration did not apply in Saigon and he drank more, but not when he was on piquet duty. Mr Hunt’s posting records show that he was transferred to Saigon on 4 March 1970 and then admitted to the Australian Field Hospital there with a fungal infection on 10 April 1970. He was medically evacuated from Saigon on 4 May 1970 and transferred to hospital in Australia, from which he was discharged on 22 May 1970. Taking into account that no (or very little) alcohol would be consumed as an in-patient, the period where Mr Hunt may have over-consumed is limited to some four weeks, minus the two days on which he was on piquet duty as he said he didn’t drink alcohol those days. This is a relatively short period and on balance, I am satisfied that the raised facts about the Applicant’s alcohol consumption at this time are disproved.
Dr D’Ortenzio stated in his report that Mr Hunt had been in total “alcohol abstention” since 1992. Mr Hunt gave evidence that he gave up drinking alcohol completely as a result of changes in national drink driving laws for heavy vehicle drivers, but he amended that by telling the hearing that he last had a ‘break out’ in 2016, and there is also evidence in the papers that he said he drank a modest amount of alcohol at the wedding of one of his sons in 2013.
Taking the evidence into account, the Tribunal is satisfied beyond reasonable doubt, for the purposes of section 120(2) of the Act, that there are insufficient grounds for a determination that Mr Hunt’s alcohol use disorder (in remission) was war-caused.
Conclusion
I am satisfied, applying section 120(3) of the Act, for the reasons set out above that, on the whole of the material before the Tribunal, there is no reasonable hypothesis raised that the claimed conditions of the Applicant are war-caused. In coming to this conclusion, I am mindful of the Full Court’s conclusion in East v Repatriation Commission (1987) 16 FCR 517, at 533:
… A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not provided beyond the balance of probabilities.
The particular claims of bullying by WO Church outlined by the Applicant are not consistent with the known facts, because Mr Church was not present serving with the Applicant at the time the instances of bullying Mr Hunt cited took place. I do not find that a reasonable hypothesis is raised in relation to the two claimed incidents in Saigon because of the lack of any corroborative evidence and the facts about the location of Army vehicles there at night that point away from such a hypothesis.
DECISION
The decision under review is affirmed.
I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
.............................[sgd]...........................................
Associate
Dated: 3 May 2018
Dates of hearing: 31 October 2017 & 1 November 2017 Date final submissions received: 6 November 2017 Counsel for the Applicant: Ms Fiona Ryan Advocate for the Applicant: Mr Michael Jorgensen Solicitors for the Applicant: Williams Winter Solicitors Advocate for the Respondent: Mr David Brown Solicitors for the Respondent: Australian Government Solicitor
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