Jefferys and Repatriation Commission (Veterans' entitlements) - [2020] AATA 1927

Jefferys and Repatriation Commission (Veterans' entitlements) [2020] AATA 1927 (26 June 2020)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2017/2733
Re:Adrian Jefferys
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member T. Tavoularis
Date:26 June 2020
Place:Brisbane

The decision under review is affirmed.
.............................[SGD]....................................
Senior Member T. Tavoularis
Catchwords
VETERANS’ COMPENSATION – Veterans’ Entitlements Act 1986 (Cth) – Service Related Injury or Disease – Post Traumatic Stress Disorder – Whether PTSD Service Related – Whether pre existing sensitivity is relevant consideration – PTSD requires objectively traumatic experience – Decision affirmed
Legislation
Veterans’ Entitlements Act 1986 (Cth)
Cases
HNGN and Military Rehabilitation and Compensation Commission [2018] AATA 4096
McKenna and Repatriation Commission [1999] FCA 323
Re Cooke and Repatriation Commission (1998) 50 ALD 907
Repatriation Commission and Bawden [2012] FCAFC 176
Repatriation Commission v Deledio (1998) 83 FCR 82
Secondary Materials
Statement of Principles concerning Posttraumatic Stress Disorder (Instrument No. 82 of 2014)
REASONS FOR DECISION
Senior Member T. Tavoularis
26 June 2020
INTRODUCTION

This is an application for review of the decision by the Veterans’ Review Board (‘the VRB’) dated 17 February 2017. The VRB’s decision affirmed the Repatriation Commission’s (‘the Respondent’) decision dated 16 April 2015, which refused a claim by Mr Adrian Jefferys (‘the Applicant’) for his Post-Traumatic Stress Disorder (‘PTSD’) to be accepted as service-related.[1] Specifically, the VRB decided that the Applicant’s claimed PTSD condition was not war-caused and a pension was not payable under the Veterans’ Entitlements Act 1986 (Cth) (‘the Act’).
[1] Note: in its decision, the VRB, in addition to PTSD, also decided that the Applicant’s alcohol use disorder, major depressive disorder, cannabis use disorder, amphetamine use disorder, social anxiety disorder and amphetamine-induced psychotic disorder were also not war-caused.
BACKGROUND
The Applicant served in the Australian Army from

15 April 2003 to 3 June 2005. In that time, he spent a period of roughly two months in operational service in East Timor, from 16 April 2004 to 28 June 2004.
The two primary issues now propounded by the Applicant comprise the following:
(a)that his claimed condition of PTSD was caused by his operational service; and
(b)the only factor propounded by the Applicant in the Statement of Principles (‘SoP’) for PTSD (SoP 82 of 2014) is factor 6(a) (a category 1A stressor).
TIMELINE
This application has reached the Tribunal via the following timeline:
·24 January 2015: the Applicant submitted a claim for disability pension to the Department of Veterans’ Affairs on the basis of his claimed PTSD;[2]
[2] Exhibit 10, s37 T Documents, T13, pages 69-79.
·6 March 2015: the Applicant submitted a lifestyle questionnaire to the Department of Veteran’s Affairs to assist the Department to determine his eligibility for the disability pension;[3]
·16 April 2015: the Repatriation Commission made a determination that the Applicant’s claimed PTSD was not related to his eligible war service pursuant to the VEA and that a disability pension was consequently not payable;[4]
·2 June 2015: the Applicant requested that the Department of Veterans’ Affairs review the immediately preceding determination of the Repatriation Commission;[5]
·11 June 2015: a review officer of the Department of Veterans’ Affairs did not alter or intervene in the decision of the Repatriation Commission;[6]
·17 February 2017: the VRB:
ovaried the Repatriation Commission’s decision to include certain additional diagnoses (that is, not including PTSD); and
odetermined that these certain additional diagnosed conditions were not related to the Applicant’s VEA eligible service and thus not war-caused;[7] and
·10 May 2017: the Applicant lodged an Application for Review of the VRB’s Decision with this Tribunal.[8]
[3] Ibid, T17, pages 96-105.
[4] Ibid, T23, pages 151-154.
[5] Ibid, T24, page 155.
[6] Pursuant to s31 of the VEA; see also Exhibit 10, s37 T Documents, T25, page 156.
[7] Ibid, T31, pages 195-204.
[8] Ibid, T2, pages 3-17.
ISSUES AND PRELIMINARY ITEMS
The issues for consideration in this matter are as follows:
(a)whether a diagnosis of PTSD is present;
and if so:
(b)whether that PTSD is war-caused, having reference to the applicable Statement of Principles;[9]
and if so, then:
(c)what the appropriate rate of pension should be.
[9] See Statement of Principles concerning Posttraumatic Stress Disorder No. 82 of 2014.
Section 9 of the Act provides that an injury suffered by or a disease contracted by the veteran is said to be war-caused if it resulted from an occurrence that happened while the veteran was rendering ‘operational service’. Section 13(1) of the Act provides that a veteran is eligible for a pension under PII of the Act where the veteran is incapacitated from a war-caused injury or war-caused disease. The standard of proof to be applied to the alleged connection between the Applicant’s claimed PTSD condition and his operational service is that of the ‘reasonable hypothesis’.[10] In order to deny a claim for a pension, the Tribunal must be satisfied beyond reasonable doubt that the claimed injury or disease that is said to relate to the veteran’s operational service is not war-caused.[11]
[10] See the Act, ss120(3) and 120A.
[11] See the Act, s120(1).
The necessary steps that a decision-maker should follow when applying section 120A of the Act, in light of section 120 of the Act, were enunciated by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 92-93 and 97-98, (‘Deledio’) and can be summarised as follows:
the decision-maker must consider the facts raised by the material before it and determine if that material points to a hypothesis connecting an injury, disease or death with the service;
(b)ascertain whether a relevant Statement of Principles is in force;
(c)where a relevant Statement of Principles (‘SoP’) is in force, the decision-maker must then form an opinion as to whether the hypothesis raised is a reasonable one. This will be the case, if the hypothesis fits, or put another way, is consistent with the ‘template’ to be found in the SoP;
(d)it is then necessary to consider whether (under section 120(1) of the Act) the decision-maker is satisfied beyond reasonable doubt that the injury, disease or death, was not war-caused. The onus of proof or the application of any presumption is applied at this stage.
THE CLAIMED TRAUMATIC INCIDENTS
As mentioned earlier, the Applicant spent a period of operational service in East Timor from 16 April 2004 to 28 June 2004. During that specific period of service, the Applicant claims he was exposed to two traumatic events which have now resulted in his claimed condition of PTSD. Those events can be shortly referred to as (1) ‘the rubbish tip incident’ and (2) ‘the gun incident’.
The Rubbish Tip Incident
In the decision under review, the VRB summarised this incident as follows:
16. About half to three quarters of the way through his tour of duty Mr Jefferys was tasked with going from his unit base some 3 km to the rubbish tip to dispose of general waste. This was a regular and routine task and was the third occasion that he had the duty. Nothing of significance occurred during the earlier trips to the tip. The tip visits always comprised three soldiers. On this occasion, the other two soldiers were privates from another contingent. They drove to the tip in a truck and were armed with pistols. By this time their standard issue Steyr rifles had been packed for shipping back to Australia.
17. On arrival at the tip, the two other soldiers dropped Mr Jefferys at the gate to stand guard while they drove some 100 to 200 metres to the tip itself. On the previous two occasions, Mr Jefferys said, two soldiers had guarded the gate while the third proceeded to the tip. The tip was enclosed in a six to eight foot chain wire perimeter fence. When they arrived there was a small crowd of locals at the fence. This was usual. Local people had become accustomed to Australian soldiers going to the tip every two or three days and, after the soldiers left, the locals would enter the tip and scavenge. As Mr Jefferys waited for the other soldiers the crowd increased to upwards of 60 local men, women and children. All three soldiers were inside the perimeter fence two at the time and Mr Jeffries [sic] at the closed but unlocked gate.
18. While Mr Jeffries [sic] was standing inside the gate the crowd was gathering opposite him. He became anxious and called out words to the effect, ‘stop or I’ll shoot’. However, he did not draw his pistol from its holster. The crowd then dispersed (except for about eight men who remained and stared at him in a threatening manner) and started moving around the fence and climbing it.
19. Mr Jefferys called to the soldiers at the tip who saw what was happening, stopped what they were doing, and hurried to him in the truck. The other soldiers appeared worried but they said nothing to the crowd. They had no trouble leaving the area in the truck and Mr Jefferys saw that locals had scaled the fence as they drove away. It was usual for locals to climb the fence after Australian soldiers left the tip, but on this occasion the locals entered the tip more quickly than usual.
20. Mr Jefferys told the soldiers that he ‘had fucked up’. He felt that he had made a poor decision in threatening the locals and he had endangered the soldiers. He could not recall the conversation, but said that two soldiers were not pleased with him. Mr Jefferys felt a sense of guilt at having placed himself and others in harm’s way through a poor decision.
21. Mr Jefferys said that he had heard nothing further about the incident and that to his knowledge no changes were made to the routine of the tip visits. He did not speak to anyone about the incident.[12]
[12] Exhibit 10, s37 T Documents, T31, pages 198-199.
The gun incident
In its decision under review, the VRB also summarised the gun incident as follows:
22. On this occasion Mr Jefferys was working in a shed when he head [sic] raised voices in an adjacent storage container. Mr Jefferys looked in and saw two soldiers arguing. Soldier A had Soldier B by the throat and was holding a pistol to his head. Pistols were required to be loaded outside buildings and Mr Jefferys is sure the gun was loaded. Soldier A was shouting ‘I’m going to shoot you’, and Soldier B was laughing and taunting him saying ‘Go on but you won’t.’ Mr Jefferys said that Soldier B was laughing while Soldier A looked serious, with veins bulging in his head. Mr Jefferys said that he did not fear for his safety but he immediately fetched a corporal from an adjacent office who grabbed Soldier A by the shirt, disarmed him and dragged him away. As soon as he had fetched the corporal Mr Jefferys said that he basically felt removed from the situation.
23. Mr Jefferys said that Soldier A was a normal person while Soldier B was intensely aggravating and ‘gave everyone stick’. Throughout their tour of duty Soldier B picked on Mr Jefferys. Soldier B would often deliberately bump into him in doorways and press against him; he often told Mr Jefferys that he would rape him and on occasions Soldier B would lick his ear.[13]
[13] Ibid, page 199.
THE MEDICAL EVIDENCE
The Applicant relies on reports from three medical practitioners, comprising:
(a)the report of Dr Christopher Slack, consultant psychiatrist, dated 13 March 2015;[14]
(b)the report of Dr Tony Wild, psychiatrist, dated 26 September 2016;[15] and
(c)the reports of Dr Bruce Lawford, consultant psychiatrist, dated 18 August 2017[16] and 16 March 2018.[17]
Dr Slack
[14] Ibid, T20, pages 131-138.
[15] Ibid, T28, pages 166-182.
[16] See Exhibit 5.
[17] See Exhibit 6.
The report of Dr Slack
In terms of a diagnosis, Dr Slack opined that, pursuant to Axis 1 of the DSM-IV diagnostic methodology, the Applicant was suffering from ‘Posttraumatic stress disorder of moderate severity, chronic.’ Dr Slack thought that, pursuant to Axis-IV of the DSM-IV, the Applicant’s PTSD was the result of ‘Exposure to traumatic events during his time in the military.’ Up to the point of providing his report, Dr Slack had been treating the Applicant for six months and noted that he did not have any history of psychiatric symptoms and that any such symptoms became evident when the Applicant returned from East Timor.
In his report, Dr Slack responded to specific questions posed to him as follows:
3. Has the condition worsened of been aggravated as a result of the service with the ADF after 30 June 2004?
I believe most of the traumas occurred prior to that date, but there were also some traumatic incidents that Adrian believes occurred in the first week of July after he left Moliana and when he was working at Port Hera. These occurred apparently in 2004. I think one would say that his PTSD was aggravated as a result of incidents that occurred after 30 June and that aggravation is of a permanent nature.
…
6. What are the diagnostic criteria that support the diagnosis?
Adrian has been through some traumatic events during his time in the military where he felt his life was at risk of threatened and this meets criterion A for a diagnosis of PTSD. Since that time he has suffered intrusive recollections of the incident, flashbacks and dreams of the event. There [sic] are often triggered by news events or newspaper articles. He has difficulty discussing these events and tends to avoid such discussions. There has certainly been evidence of hyperarousal with his anger and sleep disturbance and a general sense of depression and numbing and nihilistic preoccupations. His irritability has caused deterioration in his social and occupational functioning. He has lost several jobs because of his irritability and anger.
…
8. What is the onset of the conditions?
I believe the date of onset of both the PTSD and alcohol abuse would have been June 2004.
9. In your opinion what is the relationship between the diagnosed conditions and events that occurred before or after service?
I think both his PTSD and alcohol abuse developed as a result of traumatic event that mostly occurred before 30^th June 2004, but there were also some traumatic events in early July which aggravated the condition. Details have been covered in the body of the report.
…
Prognosis:
10. Would the claimant benefit from treatment?
He is currently benefitting from treatment. He is seeing me on a regular basis. He has had two admissions to hospital under my care. He has managed to abstain from alcohol in the short-term. I think he will benefit from attending a drug and alcohol outpatient course and also a PTSD outpatient course and these are planned to happen later this year. I would hope that with treatment he would be able to extend his periods of abstinence from alcohol and remain abstinent and also learn techniques to deal with his distress and manage his irritability and anger.
11. Capacity for employment: Has the claimant’s ability to undertake remunerative employment been affected by any disability?
I believe it has been affected by his PTSD and alcohol abuse. He has lost several jobs as a result of his irritability and anger. His alcohol use also has an impact on his ability to be employed. I think it is more probable than not that the limitation is permanent. I believe he is prevented from undertaking full time employment solely because of the PTSD and this is aggravated by his alcohol abuse.[18]
[18] Ibid, T20, pages 135-137.
In terms of concluding remarks, Dr Slack noted ‘I believe his PTSD is the primary cause of his inability to find employment and contributes some 90% of this inability and the alcohol abuse contributes about 10%.’[19] Dr Slack was not called to give evidence at the hearing and his evidence was thus not tested by the Respondent in cross-examination.
Dr Wild
[19] Ibid, page 137.
The report of Dr Wild
Dr Wild first consulted with the Applicant on 9 September 2015[20] and continued treating him for about a year, until 26 September 2016.[21] The Applicant relayed both the rubbish tip incident and the gun incident to Dr Wild. In terms of recording the Applicant’s history, Dr Wild noted:
14. Also at first presentation to me on 9 September 2015, Mr Jefferys reported a history since 2004 of flashbacks and triggered anxiety about past experiences as a soldier in East Timor in 2004. Symptoms included intrusive thoughts and images about East Timor, strong feelings of guilt and anxiety about past events in East Timor, current fears of being physically attacked and being inadequately able to defend himself, and reminders bringing back distressing thoughts and feelings about his service in East Timor. Mr Jefferys said he carried a great sense of failure and shame at being unable to succeed in an army career. He said he had wanted to be like his step-father, who had served in the Royal Australian Air Force.
15. Regarding the events during his military service, Mr Jefferys says he was a Private in the Australian Army from 2003 to 2005. He said he had no past psychiatric history prior to going into the army and passed the psychological assessments for both intake into the Australian Army and, later, for deployment overseas.[22]
[20] Ibid, T28, page 167.
[21] Ibid, page 168.
[22] Ibid, page 169.
In terms of a diagnosis, Dr Wild opined as follows:
34. Regarding diagnosis, using DSM-V criteria, Mr Jefferys has post-traumatic stress disorder (PSTD), dating back to Australian Army service in East Timor in 2004. From his account it appears Mr Jefferys experienced, for example, his guarding of the rubbish dump in the face of a potentially hostile mob as an actual threat of death or serious injury. He describes ongoing intrusion and avoidance symptoms and distorted cognitions and emotions which appear to flow from experiences in East Timor.
35. Mr Jefferys also suffers major depressive disorder, dating back to 2006, and social anxiety disorder, dating back to 2004.[23]
[23] Ibid, page 171.
In terms of written material perused and taken into account by Dr Wild in the formulation of his report, he lists the following documents:
·Letter dated 9 September 2014, from Psychiatrist Dr Christopher Slack to GP Dr Nilesh Champaneri;
·Day Program Psychiatrist Assessment Notes dated 19 February 2015, by Psychiatrist Dr Andrew Khoo;
·Day Program Social and Occupational Assessment Notes dated 19 February 2015, by Social Worker Anna Golding; and
·Perusal of report dated 13 March 2015 from Psychiatrist Dr Christopher Slack to Department of Veterans’ Affairs.
Dr Wild reached the following concluded opinions:
51. As I stated in paragraph 34 above, using DSM-V criteria, Mr Jefferys has post-traumatic stress disorder, dating back to Australian Army service in East Timor in 2004. From his account, it appears Mr Jefferys experienced, for example, his guarding of the rubbish dump in the face of a potentially hostile mob as an actual threat of death or serious injury. He describes ongoing intrusion and avoidance symptoms and distorted cognitions and emotions which appear to flow from experiences in East Timor.
52. I agree broadly with the opinion expressed by Dr Slack to Dr Champaneri in his letter of 9 September 2014 that Mr Jefferys would have ended up having problems with alcohol and impulsivity even without military service, but that he also met the criteria for PTSD following his service in East Timor and this had worsened his behaviour and mental state.
53. Regarding the causation of Mr Jeffreys’ condition of post-traumatic stress disorder, in my opinion this was caused by his service in the Australian Army in East Timor in 2004.
…[24]
[24] Ibid, pages 174-175.

Dr Wild was not called to give evidence at the hearing and his evidence was thus not tested by the Respondent in cross-examination.
Dr Lawford
The reports of Dr Lawford
As mentioned earlier, Dr Lawford has prepared two reports. The first of those is dated

18 August 2017.[25] In terms of material he reviewed in compiling this report, Dr Lawford said:
I have reviewed the reports by Dr Slack and Dr Wild regard Mr Jeffery’s [sic]. I have also read the determination regarding Mr Jefferys’ case produced by the Veterans’ Review Board – VRB No. Q15/0186. Mr Jefferys’ case was heard in Brisbane on 17 February by the Board.
I agree with Dr Wild and Dr Slack that Mr Jefferys meets DSM-V criteria for Post-Traumatic Stress Disorder…’[26]
[25] See Exhibit 5.
[26] Ibid, first page.
The Applicant relayed his recollection of both the gun incident and the rubbish tip incident to Dr Lawford, who noted the following:
The veteran reports to me that the incident at the rubbish dump, which was been [sic] well-documented, was experienced by him as a life-threatening event. He felt that his life was threatened. He also considered that the incident with the soldier holding the gun to the other soldier’s head was a life-threatening event. He felt that when he intervened that the soldier may have even decided to shoot him as well. When he tried to intervene, he said something like ‘Please don’t do that’. He took few several [sic] steps back and yelled out to his corporal to come quickly. The corporal was only approximately 5 to 10 metres away. The corporal then overpowered the soldier who was holding the gun and ceased [sic] his weapon and took him down to a warehouse. The soldier was repatriated back to Australia. In both situations, the veteran considered that his life was threatened, firstly by the villagers and secondly by the soldier who became quite agitated when he was discovered holding a gun at another soldier’s head. He considered that he may have been shot as well because he was a witness.[27]
[27] Ibid, second page.
Dr Lawford is in no doubt about the attribution of liability for the symptoms now propounded by the Applicant:
I do not consider that the veteran suffers from social Anxiety Disorder or a Depressive Disorder. Furthermore, I consider that due to the veteran’s difficult childhood, he was more vulnerable to develop Post-Traumatic Stress Disorder when placed in life-threatening situations.
The army accepted the veteran with his background and placed him in these situations. Therefore, any sequelae related to this vulnerability is in my view the responsibility of the system.[28]
[28] Ibid.
In terms of findings, Dr Lawford recorded the following:
Also, I have been asked to complete the Emotional and Behavioural Worksheet. Please find this enclosed with this report. At present, 80% of this rating is due to PTSD and 20% is due to his residual symptoms of his amphetamine-induced psychosis…His conditions listed on the claimed conditions were PTSD, amphetamine-induced psychosis and Alcohol Use Disorder in remission…
…
It seems that the incidents described were not described fully by the previous doctors, in particular the incident when the veteran discovered one soldier holding a gun to another soldier’s head. When he discovered this, he felt that he was a witness and therefore likely to [sic] a great danger himself of being killed by this soldier. The soldier holding the gun to the other soldier’s head was clearly a disturbed person and when approached by the veteran he began yelling at the veteran. The veteran had a 9 mm on him but did not produce his weapon but had the sense to retreat and call for help. However, he felt that during that for a number of seconds that he was actually at risk of being shot by the soldier who was quite disturbed. Regarding the incident at the dump, he was very concerned that the villagers were very angry and likely to do something quite bad to him and he was concerned for his life and the lives of his other two mates.
Furthermore, in my view we have a clear history of a change in behaviour pre and post – service in East Timor. It is also my opinion that his substance abuse problems arose from his Post-Traumatic Stress Disorder and his loss of self-esteem secondary to being discharged from the army.[29]
[29] Ibid, third page.
The second of Dr Lawford’s reports is dated 16 March 2018.[30] He disagrees, on a number of fronts, with the findings of the Respondent’s medical witness, Dr Frank Varghese, consultant psychiatrist. In this second report, Dr Lawford takes issue with the findings of Dr Varghese to the effect that the Applicant was not suffering, and has never suffered, from PTSD:
Dr Varghese considers that the veteran cannot be suffering from Post Traumatic Stress Disorder as he has not been exposed to an event or events during service that would be able to result in Post Traumatic Stress Disorder. According to DSM V, Post Traumatic Stress Disorder can follow exposure to an actual or threatened death, serious injury or sexual violence and this can occur in the way of directly experiencing a traumatic event.
The veteran felt threatened by an angry crowd of civilians in East Timor. He felt that he was in danger of threatened death or serious injury. To be confronted with a large group of angry civilians when isolated from other soldiers would certainly be a very threatening situation for a person who was approximately 18 years of age at the time.
In addition, when he discovered a soldier holding his gun to the head of another soldier and threatening to kill the soldier, he felt that it was likely that the soldier may have pulled the trigger and shot the other soldier in the head and turned the gun on the veteran and shot him as well because he was a witness. He felt very threatened in this situation as well.[31]
[30] See Exhibit 6.
[31] Ibid, first page.
Further, Dr Lawford noted:
Dr Varghese also criticised my report regarding the use of davidson et al structured interview for PTSD. Dr Varghese stated that in Item A1, the criteria has not been met. The criteria is, ‘Has the subject experienced, witnessed or been confronted with an event which involves actual or threatened death or serious injury, or a threat to the physical integrity of self or others. If yes, did the person’s response involve intense fear, helplessness and horror.’
It is clear to me that the veteran certainly was confronted with an event that involved threatened death or serious injury and his response did involve intense fear and helplessness.
Dr Varghese felt that there was no point proceeding beyond the first item of this instrument as the criteria for that item is not met. I cannot see how being threatened by a crowd of angry civilians would not be an event that involved threatened death or serious injury or a threat to the physical integrity of self, and that the veteran reports having responded to this situation with intense fear and helplessness.[32]
[32] Ibid, second page.
In terms of findings in this second report, Dr Lawford said:
My formulation is that the veteran has suffered from adverse experiences in childhood including sexual abuse. He was posted to East Timor and his difficulties in childhood and traumatic experiences in childhood made him more susceptible to developing PTSD. It is interesting that his problems certainly began in the army after his posting to East Timor.
Following his discharge, he has certainly increased his drug use and developed psychosis. He became involved in criminal activity. In my opinion, it is not advisable to diagnose Antisocial Personality Disorder in the presence of ongoing psychotic illness and alcohol and illicit drug use, particularly methamphetamine.
…
I respectfully disagree with Dr Varghese’s conclusion that the veteran is suffering from Antisocial Personality Disorder…[33]
[33] Ibid, second and third page.
Dr Lawford’s evidence in chief
Dr Lawford’s evidence in chief was relatively brief. He provided personal particulars and affirmed the contents of his two abovementioned written reports respectively dated

18 August 2017 and 16 March 2018. He attended the hearing in person.
Dr Lawford’s evidence in cross-examination
Dr Lawford was initially asked about the period of time he had spent consulting with and treating the Applicant. In a treatment context, Dr Lawford confirmed that he first saw the Applicant in May 2017.[34] He further confirmed that he is the current treating psychiatrist for the Applicant.
[34] Transcript, 10 July 2019, page 42, lines 34-36.
Certain comments made by Dr Varghese about the Applicant’s change of psychiatrists were then put to Dr Lawford. The following exchange occurred between him and the legal representative of the Respondent:[35]
[35] Mr Matthew Hawker, Partner, Sparke Helmore, Lawyers.
MR HAWKER: When he came under your care as his treating psychiatrist did he explain to you why he had changed treating psychiatrists from his earlier psychiatrist, Dr Wild?
DR LAWFORD: No.
MR HAWKER: Have you seen the discussion recorded as to what he told Dr Varghese as to why he changed psychiatrists?
DR LAWFORD: And what did he tell Dr Varghese?
MR HAWKER: So Dr Varghese records - obviously you didn’t have a conversation about it with him?
DR LAWFORD: Look, it’s very hard to remember all these things. I have like hundreds of patients. Sorry; hundreds of patients.
MR HAWKER: I’ll just read out what Dr Varghese records then. Senior Member, I’m reading from Dr Varghese’s report of 8 November 2017, which I can find an exhibit number for you. That one’s been marked exhibit 8. Does it strike you before I do just put to you what Dr Varghese records, does it strike you as unusual at all where you have a patient that has gone through or has had a number of past treating psychiatrists?
DR LAWFORD: No, I think in this case Mr Jefferys has been pretty chaotic in his behaviour over the last, quite a few years. It’s not unusual for people to change psychiatrists. What did Dr Varghese say?
MR HAWKER: So Dr Varghese recorded that as to why he changed to see you, he said it was after the process with DVA, with the Department of Veterans’ Affairs, this is page 6 of the report, Senior Member, of Dr Varghese, page 6, above the heading, ‘Mental state examination’. He records that it was after the process with DVA, Department of Veterans’ Affairs, that Dr Wild wrote a report to DVA and he wasn’t happy with Dr Wild’s report. Is any of this refreshing your memory about the conversation - - ?
DR LAWFORD: No.
MR HAWKER: He says Dr Wild suggested that his alcohol and drug problems were unrelated to his military service. At the time of the interview he had seen - and this is then recording how many times he’d seen you by that time?
DR LAWFORD: M’mm.
MR HAWKER: So that’s I suppose a new piece of information to you, or a conversation you haven’t had with the applicant in the past?
DR LAWFORD: No.[36]
[36] Transcript, 10 July 2019, page 44, lines 13-46.
Dr Lawford then introduced a largely irrelevant contention in his evidence. He purported to impugn the independence of Dr Varghese as a witness in this matter. According to Dr Lawford, psychiatrists, such as Dr Varghese, who are privately retained to examine a litigant for the purposes of preparing a report for use in that litigation somehow lacks ‘independence’. This contention, which ultimately went nowhere, was rightly rebutted by the Respondent’s representative in cross-examination :
MR HAWKER: And so this is distinct, for example, if you were to see him for an independent medico-legal, a forensic examination where you dive into the veracity of what he’s telling you?
DR LAWFORD: Yes, I’d like to - I’d like to talk about independent medical examinations. I mean they’re paid - these people are actually paid by - by the people who are seeking these opinions and therefore there’s a huge conflict of - potential conflict of interest. Many people depend on their livelihood for these reports as well.
MR HAWKER: We’re not seeking to cast any allegations in these proceedings?
DR LAWFORD: No, not at all, I’m just saying there’s a huge potential for conflict of interest for - I don’t believe they’re independent, that’s what I’m saying. If they weren’t being paid by the people to produce the reports then they wouldn’t be independent.
…
MR HAWKER: And so picking up on that question about the approach to an independent formulation of a medical opinion, and I take it from your response you dispute independent - - ?
DR LAWFORD: Yes, I don’t believe they’re independent.
MR HAWKER: Is that because you adopt that sort of - do you hear that complaint from patients - - ?
DR LAWFORD: No, it’s just clearly if you’re being paid by someone you can’t be independent.
…
MR HAWKER: And you don’t believe he’s independent because he gets paid to provide the report?
DR LAWFORD: I think that’s the problem.
MR HAWKER: In terms of formulating an opinion, however, as part of your practice I take it then you don’t do any independent medical assessments?
DR LAWFORD: I - I - I do assessments for DVA.
MR HAWKER: And do you get paid for that process?
DR LAWFORD: Yes.
MR HAWKER: How does that sit with your - - ?
DR LAWFORD: By the - well, I’m paid by the DVA, but I don’t - in my - in my case I don’t depend on this (indistinct) - never do another assessment in my life it wouldn’t matter. So I believe I am independent with my views.
MR HAWKER: So you are but others aren’t?
DR LAWFORD: I don’t believe I have any other - I have any other influences that would affect my views, possibly affect my views.[37]
[37] Ibid, page 44, lines 46-47, and page 45, lines 1-6 and 17-32.
A line of questioning then followed about the usual procedure followed by psychiatrists in the formulation of an independent medical opinion. Dr Lawford agreed that there are three broad points to be covered in the formulation of such an opinion, those points being (1) taking a fulsome and complete history from the patient; (2) conducting and opining upon a mental state examination; and (3) the consideration of all available and relevant documentation referable to the history reported by the patient. Dr Lawford conceded that documents such as ‘contemporaneous medical records over time’ would be included as part of the exercise of thoroughly reviewing the relevant documentation.[38] The following exchange then transpired between Dr Lawford and the Respondent’s representative:
[38] Ibid, page 45, see lines 34-46.
MR HAWKER: And so turning to your report of 18 August 2017 when you prepared that report for these proceedings, the way I read it you - the first two parts, firstly you took a history, secondly you make - I take it you did a mental state - or you undertook observations that would allow you to make a mental state assessment, but can I just ask you, in terms of the available documentary material that you had available to you in formulating the opinion, from what I can tell from your record you didn’t have available the service medical records from 2003 to 2005, that’s correct?
DR LAWFORD: Absolutely.
MR HAWKER: And you didn’t have available also the any of the summons medical records that were produced to the tribunal, that’s correct?
DR LAWFORD: That’s correct.
MR HAWKER: So from what I can tell reading your report, you didn’t have the benefit of any accounts or other material that predates that 2014/2015 period of time?
DR LAWFORD: No, sorry, I - I - I did have information from Dr Wild and Dr Slack’s reports.
MR HAWKER: Yes, Dr Wild and Dr Slack, yes?
DR LAWFORD: Yes, I did. All right, that was not - not correct, I did have that information.
MR HAWKER: So I take it then in terms of the account that you had to rely on, this was an account about the applicant’s health and history that was given - that picks up at a point in time that’s about 10 years after his period of service finishes, is that correct?
DR LAWFORD: That’s right.[39]
[My underlining]
[39] Ibid, page 46, lines 1-24.
Dr Lawford was taken to his report of 18 August 2017 and, in particular, a component of that report which, on any reasonable view, contained certain judgmental and subjective remarks which were most likely beyond the scope of his role as they purported to reach legal rather than medical conclusions. On the second page of that report, after making reference to certain components of the Act, Dr Lawford purports to determine the issue of liability in this matter, by noting ‘The army accepted the veteran with his background and placed him in these situations. Therefore any sequelae related to this vulnerability is in my view the responsibility of the system.’[40] Consequent upon this comment, the following exchange ensued in cross-examination:
MR HAWKER: Yes, but you would agree though that part of your role is not to determine the responsibility of the system?
DR LAWFORD: I can have an opinion on it. I think that if - you know, my son just recently went into the Army Reserves and they have a very strong - a very strong sort of screening process for people who are joining the army, and I think if someone’s had pre-existing, you know, childhood abuse or trauma, it’s very unfair later on to say, well, that’s the reason that he’s got the problems, he’s not liable for - not likely to have any - or able to have any compensation because he’s had previous problems. I think that’s not - I can have an opinion on that. I don’t think that’s correct, I don’t think that - I think if the army accepts someone after all their screening, and then they’re put in harm’s way and they have psychological problems as a result of that, I believe they should be able to be compensated. It’s just my opinion. I don’t think you can discriminate against someone who’s been unfortunate enough to have childhood trauma.
MR HAWKER: And is it through that opinion that you obviously formulate your opinions and that diagnosis and causation, and all the rest of it?
DR LAWFORD: Well, I can say this; because he had childhood trauma he’d be far more likely to - more susceptible to developing posttraumatic stress disorder. He wouldn’t need - a lot - there’s a great - there’s a great deal of literature about this, that if you have had a previous childhood trauma or problems in childhood you can - you’re much more likely as an individual to develop PTSD.[41]
[My underlining]
[40] Exhibit 5, second page.
[41] Transcript, 10 July 2019, page 47, lines 1-22.
The cross-examination then evolved towards questions being put to Dr Lawford about the two claimed traumatic events during the Applicant’s period of operational service in East Timor: (1) the rubbish tip incident, and (2) the gun incident.
First, with reference to the rubbish tip incident, Dr Lawford was specifically taken to the portion of his first report dated 18 August 2017, wherein he observes ‘The veteran reports to me that the incident at the rubbish dump, which was [sic] been well-documented, was experienced by him as a life-threatening event.’[42] He was challenged about his observation that this incident had been ‘well documented’:
[42] Exhibit 5, second page.
MR HAWKER: So when you say ‘well documented’ are you referring to well documented in recent times?
DR LAWFORD: Well, in reports; in reports.
MR HAWKER: And are you aware how long after the incident that it was first documented in the report?
DR LAWFORD: It’d be quite - quite a long time, yes.
MR HAWKER: And are you aware if there’s any mention of the incident on the service records?
DR LAWFORD: No, I believe there’s no incident, no mention.
MR HAWKER: ‑ ‑ ‑ discharge?
DR LAWFORD: No mention, as far as I’m - I’m aware.
MR HAWKER: So when you’re saying ‘well documented’ as I understand you to be saying, once he started - it starts to feature in reports, from there it has been well documented?
DR LAWFORD: That’s right, it’s documented in - that’s right, documented in reports.
MR HAWKER: Yes, and it was about a decade since the incident from when it actually was started to be documented?
DR LAWFORD: Yes, absolutely; absolutely.
MR HAWKER: All right. And just some of the factual elements of this incident, as you understand them; you say, for example, that at the tip he was isolated from other soldiers?
DR LAWFORD: There were two other soldiers and they were - had a truck and I think they were unloading things at the dump, and he was standing near the gate, maybe 10, 20 metres from the gate he says.
MR HAWKER: And do you know if he was within earshot of the other soldiers?
DR LAWFORD: I believe he was.
MR HAWKER: So he would be able to call out to them for assistance if needed?
DR LAWFORD: Yes, I believe so.
MR HAWKER: And do you know if this was a tip run that he’d done before, to your knowledge?
DR LAWFORD: I don’t know about that.
MR HAWKER: We’re not sure if it’s a familiar dump?
DR LAWFORD: A regular thing or not; I don’t know.[43]
[My underlining]
[43] Transcript, 10 July 2019, page 47, lines 42-46 and page 48, lines 1-29.

Dr Lawford was then questioned about the second incident – the gun incident. He was referred to the following passage on the final page of his first report, dated

18 August 2017:
It seems that the incidents described were not fully described by the previous doctors, in particular the incident when the veteran discovered one soldier holding a gun to another soldier’s head. When he discovered this, he felt that he was a witness and therefore likely to [sic] a great danger himself of being killed by this soldier. The soldier holding the gun to the other soldier’s head was clearly a disturbed person, and when he was approached by the veteran he began yelling at the veteran.[44]
[44] Exhibit 5, third page.
The following exchange then ensued between Dr Lawford the Respondent’s representative:
MR HAWKER: That’s as you understand the incident?
DR LAWFORD: Yes.
MR HAWKER: And was this an important part of the history when you were considering whether the gun incident was threatening or life threatening that they had turned and started yelling at the applicant?
DR LAWFORD: I think that’s - that’s - I think that is important, yes. Yes.
MR HAWKER: And so if they didn’t actually turn around and yell at the applicant and they kept to their confrontation between each other, then equally that has a potential to impact your assessment as to whether that would be life threatening to this applicant, correct?
DR LAWFORD: It’s - it’s very hypothetical I think. In that situation there’s always a possibility that anything could happen, if someone’s holding a - if a soldier’s holding a gun to another soldier’s head, it’s a very unusual experience in the army, and to know how that - the person who had the gun would behave in that situation, you know, it’s very unpredictable, in my opinion. It’s very, very - - -
MR HAWKER: Yes, but just going back to the question, and I appreciate it’s hypothetical?
DR LAWFORD: Yes, I - I - I can’t - I can’t say anything that’d make much difference at all. I mean if I - if you came round the corner and someone was holding a gun to another soldier’s head I think it’d be very disturbing and quite possibly quite a dangerous situation to be in. The fact that he started yelling - if he did start yelling at the veteran it would mean that he wasn’t happy that the veteran was there.[45]
[My underlining]
[45] Transcript, 10 July 2019, page 49, lines 19-42.
Dr Lawford was specifically questioned about when he thought the Applicant’s onset of PTSD actually occurred. He was of the view that that the PTSD manifested when the Applicant returned from his period of service in East Timor (i.e. June 2004). This is what transpired during the cross-examination:
MR HAWKER: When you talk about the applicant having PTSD, what I can’t tell from your report is whether you’re able to express an opinion as to the onset of the PTSD?
DR LAWFORD: I - I have - I have had further conversations with the veteran. When he arrived back in Sydney from East Timor he was not performing well in the army and he started using alcohol and drugs to excess at that time, and had many disciplinary action problems in the army and eventually was - eventually he was found to be unsuitable for service. So it was basically he had symptoms of disturbed behaviour when he returned from East Timor.
MR HAWKER: And on that basis you’d be satisfied that that was the onset?
DR LAWFORD: Sure.
MR HAWKER: In 2004?
DR LAWFORD: Sure.[46]
[My underlining]
[46] Ibid, page 49, lines 44-47 and page 50, lines 1-8.
To my mind, detrimental inroads were made into Dr Lawford’s evidence when he was questioned about the sustainability of his opinion regarding the Applicant’s PTSD, given the paucity of documents and other material that he (Dr Lawford) had reviewed, compared to the significantly greater volume of material reviewed by Dr Varghese:
MR HAWKER: I appreciate you haven’t had the service medical records but are you aware that there were psychological assessments and indeed a psychiatric assessment in 2005?
DR LAWFORD: M’mm.
MR HAWKER: Have you seen Dr Varghese’s comment with respect to this, that if the applicant did suffer from PTSD and it was linked to these claimed traumatic events in East Timor, that one might expect to see it mentioned in any of the number of psychological assessments. Would you agree with that assessment?
DR LAWFORD: It depends if the veteran mentioned it. I mean people don’t like talking about traumatic events. They avoid talking about them. In addition I believe at that time he was disorganised already from the drug and alcohol abuse, so he wouldn’t have been a very good historian anyway at that time.
MR HAWKER: I appreciate you haven’t seen the documents, but if you’ve got someone who the documents indicate did talk about other traumatic events, for example childhood issues, traumatic childhood issues, another incident in terms of breakups of relationships, wouldn’t you expect perhaps in those circumstances you would also see if someone was subject to a traumatic event that led to PTSD you would also see recorded in the records at that time having been examined by a psychiatrist?
DR LAWFORD: Well, you’d hope so but I think that sometimes soldiers are fairly - have a lot of pride and they don’t like to admit that they were frightened or scared or whatever in situations, and I think that that’s part of the ethos of the military. You know, you’d have to ask the veteran why he didn’t mention it really.
MR HAWKER: So you’d really be speculating, it’s really a matter to us - the applicant?
DR LAWFORD: A lot of people - I know that people don’t - avoid - it’s in the criteria, they avoid talking about it, and if they didn’t really know the psychiatrist, if they didn’t know the person who was examining them, they would probably have trouble talking about these things.[47]
[My underlining]
[47] Ibid, page 50, lines 10-40.
Dr Lawford was asked about whether he had taken a history from the Applicant regarding any issues he may have has with alcohol prior to his deployment to East Timor. His response was tepid and unconvincing:
MR HAWKER: Did you take a history in relation to whether he had any issues with alcohol prior to East Timor?
DR LAWFORD: It’s a good question; good question. He did certainly - he certainly reports that his alcohol problems became worse. Whether he had a problem beforehand, I think that’s a good question.
MR HAWKER: You’re not aware of the answer to that question?
DR LAWFORD: No.[48]
[My underlining]
[48] Ibid, page 50, lines 46-47, and page 51, lnies 1-4/
There followed a question about the Applicant’s instances of ‘going AWOL’[49] from the Army. Once again, it was clear that Dr Lawford’s examination of the Applicant had not traversed this aspect of his behavioural history:
[49] AWOL stands for Absent Without Official Leave.
MR HAWKER: So I take it then you wouldn’t be aware, for example, if he had issues with going, for example, AWOL before his East Timor deployment or not during his period of service, is that correct?
DR LAWFORD: That’s right, I didn’t have that information. All I can say is he reports that his alcohol problems became much worse and he started using drugs, which was a first, when he got to Sydney.
MR HAWKER: And when you say all you can rely is that he reports that that’s the history that he gave to you?
DR LAWFORD: That’s it; that’s it.
MR HAWKER: Over a decade?
DR LAWFORD: That’s right. That’s right. That’s right.
MR HAWKER: Or after a decade of that period of time?
DR LAWFORD: That’s right.[50]
[My underlining]
[50] Transcript, 10 July 2019, page 51, lines 6-18.
Finally, Dr Lawford was again asked about the paucity of documents and other material relating to the Applicant that he consulted in reaching his assessment about whether or not the Applicant was suffering from PTSD:
MR HAWKER: Can I just ask one final question; a lot of the responses you’ve been giving, seeking to flesh out various aspects, are that you haven’t had, for example, the service records or other records but you rely on some of the history that was later reported to you. You would, however, accept that if someone in your situation or if a psychiatrist who was expressing an opinion does have the benefit of those contemporaneous records and the assessment, it would obviously be of assistance in formulation of your opinion?
DR LAWFORD: Everything’s an assistance, yes. Thank you.[51]
[My underlining]
Dr Varghese
[51] Ibid, page 52, lines 44-47, and page 53, lines 1-4.
The reports of Dr Varghese
Dr Varghese has provided two medico-legal reports. The first is dated 8 November 2017[52] and the second is dated 3 May 2018.[53] The first report is very lengthy and comprehensive, and has been written on the basis of Dr Varghese being provided with a very significant level of documentation. Dr Varghese’s first report involves three clearly delineated components. First, he took a lengthy and extremely detailed history from the Applicant. That history is described and summarised from pages 1 to 6 of the report.
[52] See Exhibit 8.
[53] See Exhibit 9.
Second, Dr Varghese conducted a mental state examination on the Applicant, which included a discussion and analysis of diagnostic issues relevant to the Applicant. The mental state examination appears at pages 6 to 8 of the report.
Third, Dr Varghese perused, consulted and discussed a very significant amount of written material provided to him by the Respondent’s solicitors. Dr Varghese makes it clear that he was presented with the ‘contemporaneous service records’ and he refers to ‘a large bundle of documents’. Stated as briefly as possible, the material referenced and ventilated by Dr Varghese in his first report may be summarised as follows:
·The section 37 T Documents, comprising documents T1 to T34:
oT1: Notice of application for review of decision dated 12 May 2017 (pages 1-2);
oT2: Application for review of decision dated 10 May 2017 (pages 3-17);
oT3: Section 37 Statement dated 7 June 2017 (pages 18-20);
oT4: Statement of Principles: Post Traumatic Stress Disorder dated 22 August 2014 (pages 21-27);
oT5: Statement of Principles: Alcohol Dependents and Alcohol Abuse dated 19 December 2008 (pages 28-34);
oT6: Statement of Principles: Depressive Disorder dated 19 June 2015 (pages 35-52);
oT7: Statement of Principles: Drug Dependence and Drug Abuse dated 19 December 2008 (pages 53-59);
oT8: Interviewing officer’s report dated 20 February 2003 (page 60);
oT9: Personal history profile dated 20 February 2003 (pages 61-62);
oT10: Psychological screening record dated 8 June 2004 (pages 63-64);
oT11: Report: Mr Adams, psychologist, dated 20 may 2005 (pages 65-66);
oT12: Psychology assessment record dated 30 May 2005 (pages 67-68);
oT13: Claim: disability pension dated 22 January 2015 (pages 69-79);
oT14: Request for report: Dr Slack, Psychiatrist dated 6 February 2015 (pages 80-840;
oT15: Medical history and examination dated 12 February 2015 (pages 85-91);
oT16: Report from Department of Human Services dated 12 February 2015 (pages 92-95);
oT17: Lifestyle questionnaire dated 16 February 2015 (pages 96-105);
oT18: Employment questionnaire dated 6 March 2015 (pages 106-126);
oT19: Employer’s questionnaire dated 10 April 2015 (pages 127-130);
oT20: Report of Dr C Slack, Psychiatrist dated 13 April 2015[54] (pages 131-138);
[54] Note: The Index I am quoting gives the date 13 April 2015. In fact, the document is dated 13 March 2020.
oT21: Work ability report dated 16 March 2015 (pages 139-146);
oT22: Employer’s questionnaire dated 8 April 2015 (pages 147-150);
oT23: Determination dated 16 April 2015 (pages 151-154);
oT24: Request for review dated 3 May 2015 (page 155);
oT25: Section 31 non-intervention – file minute dated 11 June 2015 (page 156);
oT26: Veteran community details report dated 22 June 2015 (pages 157-163);
oT27: Letter from applicant dated 26 January 2016 (pages 164-165);
oT28: Medical report: Dr Wild, Psychiatrist dated 26 September 2015 (pages 166-182);
oT29: Veteran community details report dated 18 January 2017 (pages 183-186);
oT30: RSL report: Mr Cullen, pension advocate dated 16 February 2017 (pages 187-194);
oT31: Reviewable decision dated 17 February 2017 (pages 195-204);
oT32: ADO service record (pages 205-206);
oT33: Service psychology records (pages 207-229), noting the following specific documents:
§Psychology assessment record dated 20 February 2003 (page 209);
§Recruiting psychology report dated 20 February 2003 (page 213);
§‘Critical incident mental health supports screening pro forma’ dated 5 June 2003 (page 216);
§‘Report on a case referred for a psychiatric or psychological examination’ dated 16 March 2015 (page 221);
§Report of Lieutenant Cooper dated 30 March 2005;
§Assessment by Lieutenant Larkin, psychologist, on 30 May 2005 (page 229);
oT34: Service medical records (pages 258-392), noting the following documents:
§Annual health assessment made on 25 November 2004;
§Specialist referral dated 3 March 2005 to Dr A Green (presumably a psychiatrist) (page 268);
§Outpatient clinical records (from page 272), containing:
·Notes dated 21 January 2004 (page 272);
·Notes dated 2 December 2003;
·Annual health assessment of 2 December 2003 (page 275)
§Further outpatient clinical records, containing records from:
·26 February 2005 (page 347);
·26 February 2005 (page 348);
·22 February 2005 (page 350);
·19 February 2005;
·22 February 2005;
·26 February 2005;
·27 February 2005;
·27 February 2005;
·28 February 2005;
·3 March 2005 – detailed psychiatric assessment (pages 358-361);
·Inpatient summary dated 3 March 2005;
At page 21 of his report, Dr Varghese noted ‘On 24 August 2017 Sparke Helmore Lawyers sent me a huge amount of documentation as follows. (I note there are five large files)’. That material may be shortly summarised as follows:
·     Volume 1: Records of the Department of Justice and the Attorney-General, referring to 16 individual documents referenced by Dr Varghese;
·     Volume 2: Documents with respect to classification regarding level of security. Dr Varghese noted there was a recommendation in one of the documents in this Volume that the Applicant be classified as ‘high security’;
·     Volume 3: containing:
o   Records of the Morayfield 7 Day Medical Centre, referring to nine individual documents referenced by Dr Varghese;
o   Records of the Australian Federal Police;
o   Records of the Toowong Private Hospital; referring to 10 individual documents referenced by Dr Varghese;
o   Records of Pine Rivers private Hospital; referring to four individual documents referenced by Dr Varghese;
·      Volume 4: Records of ACT Department of Justice and Community Safety, referring to, in particular, the written findings of Ms Barbara Knight, probation and parole officer;
·     Volume 5: Documents relating to periodic detention, including records of the Commissioner of Queensland Police;
[Emphasis and underlining in original]
Dr Varghese says the final component of material he received comprised the following:
·Statement of Adrian Joel Jefferys dated 23 August 2017;
·Statement by Janine McClure and Mark McClure dated 23 August 2017;
·Report from Dr Bruce Lawford dated 18 August 2017.
In terms of ultimate findings and conclusions, Dr Varghese’s investigations yielded the following:
CONCLUSIONS
…
(i)The principal clinical issue is that Mr Jefferys has a ‘disorder of personality’. The personality configuration is of a mixed or non-specific type but the predominant characteristics relate to antisocial personality as per DSM (called dissocial personality in ICD 10)…A note a history of behavioural disturbance from his school days and moreover problems with Army discipline both before and after his deployment to East Timor.
(ii)Individuals with this spectrum of personality configuration will almost inevitably experience problems when placed in a military situation both for themselves and more so for others…
(iii)Mr Jefferys has in the past had significant alcohol abuse and also polysubstance abuse including amphetamine. I would regard both these issues as being symptomatic of the personality…
(iv)I note Mr Jefferys has been diagnosed as suffering from Major Depression in the past, however given the extent of alcohol and drug abuse it does not seem to me that such a diagnosis can be made with any confidence.
(v)Mr Jefferys’ current mood by self-report could be understood as constituting a Dysthemic Disorder as a reflection of his overall adverse circumstances. There is certainly no mental state evidence for Major Depression.
(vi)Mr Jefferys does not suffer from PTSD nor could he suffer from this syndrome as he has not experienced any event that could possibly give rise to PTSD. I note that the incident at the dump does not rate a mention in the psychology assessment prior to return to Australia. Indeed his experience in East Timor is described in positive terms. Moreover there is no mention of the incident in psychology reports while he was still in the Army on his return to Australia. The incident and alleged PTSD is not offered as an exculpatory factor with respect to his disciplinary problems in the Army leading to discharge.
The incident is not mentioned to the only psychiatrist Mr Jefferys saw in this period (Dr Green). I note Dr Green’s opinion was that the principle issues were related to personality.
Further as far as I can make out from the documentation there is no mention of the incident and its putative effects for almost a decade until Mr Jefferys is seen by Dr Slack and even then it is discussed in a general way among other issues in East Timor, at least initially, before a specific incident is described, as can be gleaned from Dr Slack’s reports.
I also note that the incident and its putative effect is not offered as an exculpatory factor with respect to Mr Jefferys’ criminal behaviour resulting in imprisonment nor is it mentioned to any prison psychology or counselling service documents.
(vii)It seems to me that the four psychiatrists who have diagnosed PTSD have not paid attention to issues of personality or Personality Disorder when it seems to me that these are quite obvious on the data available to them. The exception is Dr Wild who notes antisocial traits in the hospital notes but not in his reports.[55]
[Emphasis in original, my underlining]
[55] See Exhibit 8, pages 32-33.
Dr Varghese’s second report is dated 3 May 2018. It has been written largely in response to Dr Lawford’s supplementary report dated 16 March 2018. Dr Varghese commences this second report by saying ‘The supplementary report by Dr Lawford does not cause me to change my opinion.’ Dr Varghese then made the following points:
…
·I would reiterate that the diagnoses of PTSD…stands or falls on whether there has been a seriously traumatic event. That a particular psychometric incident shows that there are significant symptoms of PTSD which are entirely subjective symptoms is immaterial if there is no traumatic event.
·The event Mr Jefferys describes as having experienced in East Timor at the dump would not, in my view, qualify for such an event. Dr Lawford reports that Mr Jefferys was threatened by civilians. In his account to me, there were no threats made as against that they stared at him in an angry manner. He was the only one who made a threat ‘Stop or I’ll shoot’ and he was the only one in the situation who was armed.
·If the incident had been regarded as potentially life threatening, I would have expected that there would be a report of such an incident in the Army records. I was unable to find any.
·When interviewed for a psychological screening record…he does not mention any life-threatening event. Indeed, he reports that he enjoyed his deployment and described positive experiences from the deployment including riding in a Blackhawk helicopter and seeing East Timor. The only negative experience was working hard. This psychological assessment was done close to the time of the alleged event.
·There is no mention of the event in the psychological assessment by Lieutenant Cooper…nor in the psychological assessment of Lieutenant Larkin and in the psychiatric assessment of Dr Green, Psychiatrist…while Mr Jefferys was still in the Army.
·I note further that there is no mention of the alleged incident as an exculpatory factor with respect to Mr Jefferys criminal offences leading to imprisonment. I was unable to find any mention of the incident in the prison medical and psychological records.
·As far as I can make out the first reference to the alleged incident is in the report of Dr Slack, Psychiatrist, dated 9 September 2014 (pages 23 and 24) when he reports seeing desperation of the civilians’ faces…[56]
[My underlining]
[56] Exhibit 9, pages 1-2.
Dr Varghese’s evidence in chief

Dr Varghese’s evidence in chief commenced by him recounting his personal particulars and professional qualifications. He was also asked to comment on two additional items. First, he was asked to comment on Dr Lawford’s earlier contention that Dr Varghese’s opinion is somehow impugned because he was privately retained by the Respondent’s solicitors to produce the two reports. This is what transpired in cross-examination:
MR HAWKER: Thank you. Can I just ask you at the outset and I apologise if it’s a slightly unusual question but arising from some earlier evidence, getting paid to provide your reports, does that in your view in any way compromise the independence of you formulating a medical opinion?
DR VARGHESE: Not at all. Quite the opposite. I would say that when you get paid as an independent person you take an objective view of the data and moreover you’re paid to look at the sometimes extensive data which you wouldn’t do if you were a treating psychiatrist. So I don’t think it any way compromises independence or objectivity. I’ve given evidence in mental health court, Family Court, personal injury cases, AAT. In fact with the AAT I would say that almost a third or more in military cases they don’t come before the tribunal because the independent report is sufficient.[57]
[57] Transcript, 10 July 2019, page 57, lines 17-28.
Dr Varghese was also asked about his methodology in formulating a diagnosis and opinion. His response, to my mind, goes to a fundamental difference between his methodology and that of Dr Lawford:
MR HAWKER: Thank you. We have your lengthy report in evidence already of 8 November 2017 in your supplementary report. Can I ask you to outline you approach to formulating your opinion?
DR VARGHESE: Yes. My approach is – it may be different from some of my colleagues who do medical legal reports. My approach is not to read any of the material until after I have seen the individual and the reason I do that is I want to hear the individual’s own account of what happened and what his problems are and his symptoms are and not be distracted by other opinions when I am in that process. I then do provisional formulation of the – what I think are the clinical issues and after that I look through the documentation with the aim of refuting the hypothesis which I have arrived at or looking for data that supports the hypothesis and it’s the reputation of the hypothesis that is more important.
MR HAWKER: Just in terms of that process that you undertake in the formulation of an independent opinion, are you able to speak about the – what do you see as the importance of the documentation, that part of your process?
DR VARGHESE: The documentation is critical in – where there is litigation. In an ordinary clinical interview where you’re treating the patient, documentation isn’t important. The clinical data that arises from the patient is important and that usually – if you’re a treating psychiatrist you take that as face value. In – where there is litigation then you’re looking for opinions of other doctors, looking for objective data if possible, contemporaneous medical records are critical and so you do a thorough forensic examination of the material with respect to the hypothesis.[58]
[My underlining]
[58] Ibid, page 57, lines 35-46, and page 58, lines 1-11.
Dr Varghese’s evidence in cross-examination
Dr Varghese was initially asked about the specific basis upon which his report was prepared, having particular regard to how he treated the two specific incidents referable to the Applicant’s claimed PTSD condition:
MR FEELY:[59] It’s the case isn’t it you prepared your report on the basis that the specific incidents, one at the rubbish tip and the gun incident didn’t in fact occur in this case?
[59] Mr J.P. Feely of Counsel, representative of the Applicant.
DR VARGHESE: I’m not saying they didn’t occur.
MR FEELY: I see?
DR VARGHESE: I have no way of knowing whether they occurred or not.
MR FEELY: I see?
DR VARGHESE: They – I’m saying that even if one accepted the account it does not fill the criteria for being stressor of the category that is required for PTSD.
MR FEELY: I see. What you’re saying is it wasn’t a life threatening event, is that right?
DR VARGHESE: Yes.
MR FEELY: You’ve relied in your initial report on a definition that was provided – a legal definition from the Federal Court?
DR VARGHESE: Yes. Yes.
MR FEELY: All right. So you’ve really come to a conclusion that no life threatening event had happened based upon that definition haven’t you?
DR VARGHESE: Yes.[60]
[60] Transcript, 10 July 2019, page 59, lines 1-17.
Dr Varghese was then questioned about whether he was answering the question about whether an event could be considered life-threatening from a personal perspective and not from a medical one:
MR FEELY: Your roll I suppose is to bring your medical experience to your opinions of those sort?
DR VARGHESE: Yes.
MR FEELY: You do say that – you do the phrase seriously traumatic event for instance?
DR VARGHESE: Yes.
MR FEELY: Now that – there’s no real particular methodology that you’ve brought to bear in coming to that conclusion is there, Doctor?
DR VARGHESE: Yes, there is. Looking at what Mr Jefferys described as having happened.
MR FEELY: I see?
DR VARGHESE: Was that event of a seriously life threatening, was it threat of (indistinct), was there threat of mutilation, dismemberment.
MR FEELY: You really brought your – I suppose you brought your personal opinions on about whether that would be life threatening to bear on that definition have you not? A seriously traumatic event in your personal opinion, it wasn’t. Is that the case?
DR VARGHESE: Yes.
MR FEELY: I see?
DR VARGHESE: Yes.
MR FEELY: But it really has no medical significance does it?
DR VARGHESE: Yes it does because if it’s not a seriously threatening event there can be no PTSD consequence.’[61]
[My underlining]
[61] Ibid, page 60, lines 1-23.
Dr Varghese was questioned about vulnerabilities in the Applicant’s psychological symptomatology and the relevance of those vulnerabilities in assessing whether an asserted traumatic event would predispose the Applicant to developing PTSD:
MR FEELY: Specifically in Mr Jefferys’ case, you might recall there was discussion of his previous vulnerabilities. What you suggest are issues with his personality before he was deployed. Those kind of vulnerabilities are certainly relevant are they not in how someone would experience a traumatic event and whether it rises to the level of a traumatic event if someone is predisposed to experiencing an event in a different way?
DR VARGHESE: I think the predisposition would certainly effect – almost certainly effect whether or not PTSD or adjustment arises. I mean if you have a traumatic event of the type that is defined in DSM, it’s only about a third of the people who develop PTSD. So the assumption – this reasonably good research evidence is that there is some predisposition vulnerability that has been brought about by the PTSD.
MR FEELY: It’s impossible to assess it objectively though, it has to be taken from the perspective of the person though, is that not the case. Because you’ve given a gradation of five say - - - ?
DR VARGHESE: Yes - - -
MR FEELY: - - - perhaps small events that trigger a catastrophic – you can have - - - ?
DR VARGHESE: Yes but the – yes, so perhaps I could explain this a bit better. If you have an adjustment disorder, an adjustment disorder can be the reaction for a normal person, an ordinary person, to some serious event like, you know, death of a spouse or something like that. A normal person would expect some kind of reaction and might get adjustment disorder. On the other hand, a vulnerable individual with predisposition would get adjustment disorder to ordinary events that don’t cause difficulties in others. PTSD is a different illness because by definition it requires a catastrophic type of experience, an exceptionally traumatic event.
MR FEELY: I see. So are you saying you can almost completely discount someone’s subjective experience of it?
DR VARGHESE: Yes, yes, otherwise you’re talking about PTSD sans trauma.’[62]
[My underlining and emphasis]
[62] Page 60, lines 44-47, and page 61, lines 1-26.
The Applicant’s representative then explored the point raised by Dr Varghese in his report that any consequent PTSD diagnosis was not raised as an exculpatory factor at the time of the Applicant’s sentencing for certain criminal offending he had committed:
MR FEELY: … Now, you’ve come to the conclusion the two events described weren’t traumatic ones, and am I correct in saying you base that upon the fact that it doesn’t appear in records and reports?
DR VARGHESE: Yes, partly.
MR FEELY: I see. And also that it doesn’t appear as an exculpatory factor in later criminal behaviour engaged in by Mr Jefferys?
DR VARGHESE: Yes, nor even in his discharge from the army.
MR FEELY: I see. But you can imagine it’s quite possible, isn’t it, you can imagine a number of reasons why those things wouldn’t have appeared? For instance, the culture of the army, for instance?
DR VARGHESE: Perhaps the culture of the army, yes.
MR FEELY: Yes, but I mean those two things in particular, that’s not definitive proof that he wasn’t traumatised by these events?
DR VARGHESE: Well, it’s not definitive proof, I accept that, but - - -
MR FEELY: It’s not really proof at all, is it?
DR VARGHESE: An individual facing prison for crimes, will usually ask for mitigation in circumstances. Our society is very sympathetic to veterans, particularly veterans who’ve had bad things happen to them, who’ve served their country overseas. None of that appears as a mitigation, exculpatory factor in his imprisonment.
MR FEELY: But - - ?
DR VARGHESE: I can’t find any evidence of him even mentioning it during the in the prison records.
MR FEELY: Yes, but that’s not to – that’s not proof that he was not traumatised by those events, is it?
DR VARGHESE: No, I’d accept it’s not proof.
MR FEELY: It’s really just a circumstance, in your opinion?
DR VARGHESE: Yes.[63]
[My underlining]
[63] Ibid, page 62, lines 25-46, and page 63, lines 1-7.
Dr Varghese was then questioned about his opinion that the Applicant had a pre-existing psychiatric symptomatology before his deployment to East Timor, and how this symptomatology may have more readily predisposed him to a stressor or stressors giving rise to PTSD:
MR FEELY: Now, you say that Mr Jefferys had underlying or pre-existing psychiatric issues before he was deployed to East Timor?
DR VARGHESE: Yes.
MR FEELY: You’d accept that some people are certainly more susceptible to being traumatised by an event than others?
DR VARGHESE: Yes.
MR FEELY: Mr Jefferys, you’d agree, was someone with a vulnerability, a psychiatric one, before he joined the army?
DR VARGHESE: Yes.
MR FEELY: Are you suggesting that being on operational service, being armed, facing a crowd of Timorese people, some of whom are looking at you menacingly, who could quite possibly be armed, are you suggesting that Mr Jefferys did not perceive this event as a life-threatening event?
DR VARGHESE: Well, if he did I’m saying that it’s not reasonable in the circumstances. Villagers staring at you in an angry way is not the sort of threat that gives rise to PTSD. I mean, if that were the case, you know, we might as well give up. I mean, you can’t have an army.[64]
[My underlining]
[64] Ibid, page 63, lines 9-25.
The following question from the Applicant’s representative related to whether Dr Varghese was satisfied, beyond a reasonable doubt, that there is no sufficient ground for reaching a conclusion that the Applicant’s claimed PTSD was war-caused:
MR FEELY: Given that there’s a subjective element to the experience of an event like this, you can’t exclude beyond a reasonable double, for instance, that post-traumatic stress disorder has resulted from that event?
DR VARGHESE: Beyond a reasonable doubt is a very severe test.
MR FEELY: Yes?
DR VARGHESE: Yes.
MR FEELY: So - - ?
DR VARGHESE: No, certainly not if you apply that test.
MR FEELY: No, and neither could you exclude it from the situation where Mr Jefferys was – approached another soldier who was pointing a gun at a fellow soldier, and during which Mr Jefferys feared that he as a witness might be shot? You couldn’t exclude the fact that – you couldn’t exclude the finding that post-traumatic stress disorder has resulted from that event?
DR VARGHESE: Not if you use the test of beyond reasonable doubt, but the – it depends on what happened. If it was a major event of military discipline, I’d expect there’d be a record about it.
MR FEELY: Well - - ?
DR VARGHESE: He tells me this account with humour.
MR FEELY: I see?
DR VARGHESE: He’s not – if he had post-traumatic stress disorder from it, I would expect him to be hyper-aroused and distressed when telling me this, ‘I could have been killed.’ No.
MR FEELY: But you agree that you can’t – given that there is a – that people have different susceptibilities to these events, you can’t exclude the fact that he could have suffered this?
DR VARGHESE: He could have had an adjustment disorder, yes.
MR FEELY: Post-traumatic stress disorder can arise from an adjustment disorder. Is that the case?
DR VARGHESE: No, no, post-traumatic stress disorder, by definition has to occur arising from a highly life-threatening – near life-threatening event.[65]
[My underlining]
[65] Ibid, page 63, lines 38-45, and page 64, lines 1-22.
The Applicant’s representative then sought to question Dr Varghese about differential diagnoses involving the Applicant being found to have a personality disorder as opposed to displaying symptoms indicative of a definitive diagnosis of PTSD:
MR FEELY: Okay. But is it the case – it’s the case, isn’t it, that you can really – you can also make differential diagnoses as between personality disorder and post-traumatic stress disorder?
DR VARGHESE: No, one is personality and the other is an illness. A personality disorder is not an illness. It’s a variation. It’s the nature of a person. It’s something a person is, rather than something they suffer from.
MR FEELY: I see. But for instance in Mr Jefferys’ case some of the symptoms you say he was exhibiting 30 years ago, they may well have just been described as interpersonal difficulties rather than at that stage of things a diagnosable antisocial personality disorder?
DR VARGHESE: Well, you can’t diagnose any personality disorder before the age of 18.
MR FEELY: No, and it can arise later, can it not?
DR VARGHESE: No, it can’t arise later unless there has been some organic change in the brain that you’d say caused brain injury, personality change.
MR FEELY: I see?
DR VARGHESE: But so I would say before the age of 18 the behavioural difficulties in school, bagging school, involvement with the criminal justice system, being expelled from school, suspended from school, I would regard that as the nascent personality disorder. You can’t diagnose personality disorder in that group. You could possibly – you could diagnose what we call conduct disorder.
MR FEELY: Yes?
DR VARGHESE: Oppositional defiance disorder, and those disorders are very predicted, highly predicted of adult anti-social personalities.
MR FEELY: I see, but you’d agree this is a slightly hypothetical given we’re digging back 30 years ago to someone who wasn’t then assessed in relation to this specific case?
DR VARGHESE: Well, no, there is data that has come from Mr Jefferys, himself, recorded by several people about the previous difficulties.[66]
[My underlining]
[66] Ibid, page 68, lines 28-47, and page 69, lines 1-10.
Dr Varghese was also questioned about the comparative weight and value between (1) a report opinion provided by a psychiatrist with a longitudinal history with the Applicant as opposed to (2) a practitioner such as himself, who had a singular engagement with both the Applicant and (albeit voluminous) material relating to the Applicant:
MR FEELY: .... Now can I suggest to you that a longitudinal assessment by a treating psychiatrist, an assessment of that nature is really preferable or more advantageous in Mr Jefferys case given the kind of symptoms he was exhibiting?
DR VARGHESE: A longitudinal assessment would include the developmental history. If (indistinct) sometimes you can do that over several interviews, yes.
MR FEELY: What I’m saying is, you would have been in a better position – it would be preferable to conduct your assessment if you’d seen Mr Jefferys on a number of occasions, whether funding or commercial matters allowed for that?
DR VARGHESE: I don’t agree with that.
MR FEELY: You really have to judge the authenticity of his symptoms for instance. Are you suggesting that seeing him on more occasions isn’t more advantageous for that?
DR VARGHESE: It would not – whether it would have any added benefit is doubtful. It’s very rare - rarely in medicolegal appointments – rarely I ask to see the patient again.
MR FEELY: No, but in terms of - - - ?
DR VARGHESE: That’s because - - -
MR FEELY: In terms of coming to an accurate assessment, it’s preferable to see the patient more times is it not?
DR VARGHESE: I don’t think it ever added anything because the data isn’t the corroborator. It’s in the documents.
MR FEELY: I see. So your preference is to – you place more weight on for instance the documentation you receive than the interview you conduct with the subject?
DR VARGHESE: Depending on what the information is. I mean if somebody tells me there were no traumatic events in childhood and that there were no – particularly – he had a particularly happy childhood and nothing wrong with his behaviour and then the documentation indicates the opposite of that, I would pay more attention to the documentation.[67]
[My emphasis and underlining]
[67] Ibid, page 69, lines 37 to 46 and page 70, lines 1-20.
Dr Varghese’s concluded with two final questions being put to him. The first of those involved an enquiry about whether he had considered other diagnoses relevant to the Applicant:
MR FEELY: You’ve – I understand you were conducting an independent assessment but did you place any weight on the fact that Dr Slack, Dr Wild and Dr Lawford confirmed diagnoses for post-traumatic stress disorder in this case?
DR VARGHESE: Yes, I took that into account.[68]
[My underlining]
[68] Ibid, page 70, lines 34-37.
The second question involved a revisitation on whether the Applicant’s now-propounded PTSD resulted from either or both of the subject stressor events:
MR FEELY: Assuming that those two incidents occurred, the rubbish tip and the gun incident, you can’t sensibly rule out that post-traumatic stress disorder resulted from those incidents can you?
DR VARGHESE: I don’t think the incidents are of the type that could give rise to post-traumatic stress disorder. I’ve stated that previously. The incidents may have given rise to adjustment disorder which is a transient condition.
MR FEELY: The approach you’ve taken is basically in your opinion, those events aren’t serious traumatic ones?
DR VARGHESE: No, that’s right.
MR FEELY: You haven’t then gone onto explore the possibilities that he has incurred post-traumatic stress disorder from it?
DR VARGHESE: Yes because the diagnosis stands or falls on the events.
MR FEELY: You can’t rule it out to the standard of beyond reasonable doubt can you?
DR VARGHESE: As I’ve said that’s a very severe test.[69]
[My underlining]
[69] Ibid, page 71, lines 24-38.
The re-examination of Dr Varghese
In re-examination, the Respondent’s representative sought to clarify whether Dr Varghese’s acceptance (in cross-examination) of the existence of certain PTSD symptoms in the Applicant necessarily pointed to a definitive diagnosis of PTSD:
MR HAWKER: Doctor, your thought process might have moved on so if you don’t have anything further to add to this question that’s okay but when you were being questioned about the symptoms – a list of symptoms of him, you started a sentence and you were saying, ‘The problem with’ – presumably the list of symptoms and then that line of thought was cut off and the symptoms continued to be listed, can I give you an opportunity - - - ?
DR VARGHESE: I’m trying to think of where I was at the time. Yes, I think I recall. I was going to say two things. One is the symptoms are entirely subjective. They are not – they cannot be observed. The only post-traumatic symptom one can observe is a hyper arousal during the interview when the person is talking about the symptoms. They get distressed, they get hyper aroused, they get hyper vigilant. The second thing I was going to say was that all those symptoms can be accounted for by disturbance of personality.[70]
[My emphasis and underlining]
[70] Ibid, page 72, lines 1-14.

The fundamental reason as to why s120(4) of the Act is engaged for the purposes of a diagnosis derives from the language of clause 6(a) of the SoP. It relevantly provides:
‘The factor that must exist before it can be said that a reasonable hypothesis has been raised connecting posttraumatic stress disorder or death from posttraumatic stress disorder with the circumstances of a person’s relevant service is:
(a) Experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder.
...
For the purposes of this Statement of Principles:
‘a category 1A stressor’ means one of the following 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;
…’
As mentioned earlier, the only factor propounded by the Applicant in the Statement of Principles for PTSD (SoP 82 of 2014) is factor 6(a) (a category 1A stressor). This Tribunal has recently outlined the methodology and basis for how PTSD is to be diagnosed in cases such as this:
‘37. So how is PTSD to be diagnosed? Should it be diagnosed with reference to the applicable SOP, or with respect to the DSM-5 (which replaced the DSM-IV)? Guidance can be found in Repatriation Commission v Bawden (2017) 206 FCR 296…
In summary, the threshold question for the Tribunal is one of clinical diagnosis in accordance with the criteria in the DSM-5. This question of fact – namely whether the correct diagnosis for the Applicant is one of PTSD, which necessarily requires an examination of the expert medical evidence. If the Applicant does not suffer from PTSD, the Tribunal does not need to proceed to consider the next question regarding the application of the SOP to determine the linkage between the PTSD and the Applicant’s operational service.
…
Thus, when considering the diagnosis of PTSD, the Tribunal will need to consider whether the traumatic event occurred. In the words of the Federal Court in Bawden at [49], ‘A finding that a traumatic event occurred is indispensable to a diagnosis of PTSD.’[122]
[122] HNGN and Military Rehabilitation and Compensation Commission [2018] AATA 4096 at paragraphs [37] and [38], per Senior Member Dr M Evans.
The central question thus becomes whether the Tribunal is reasonably satisfied that the evidence supports a diagnosis of PTSD. That exercise necessarily turns on there being a traumatic event(s) apparent from the evidence. For reasons that follow, I prefer and accept the medical evidence of Dr Varghese over and above that of Drs Slack, Wild and Lawford. The necessary consequence of that preference is that the diagnosis of PTSD is not established. I have, earlier in these Reasons, sought to analyse and discuss, in some detail, the totality of the evidence received by the Tribunal at the hearing. On the basis of making definitive findings, I will now deal with the evidence of each of those lay and medical witnesses in turn.
The Applicant purported to recount his experiences both during his period of active service and during the post-service period. I took the unavoidable impression from his evidence, that when tested, it proved to be both unreliable and unconvincing. In many respects, as I have earlier outlined, it was simply implausible.
To my mind, the primary difficulty with the Applicant’s evidence of the two specific events he now contends have caused him the stress or trauma resulting in PTSD is that there is a total absence of any contemporaneous records demonstrating (1) that these events happened at all; and (2), any adverse impact of those two events on the mental well-being of the Applicant. This is not a case where it can be said that the volume of records is sparse or threadbare. On the contrary, there is a significant level of contemporaneous Army records relating to this Applicant both during and after his period of deployment. Significantly, there is a contemporaneous psychiatric assessment of the Applicant which says nothing about the impact of the two claimed events on the Applicant’s state of mental health.
During cross-examination, when questioned about the two specific events, he spoke of making a connection in his own mind between the two claimed events and the psychological distress they apparently caused him at that particular time (in 2004). Yet when questioned about this connection and why it is not revealed in any of the contemporaneous documents (medical or otherwise), his evidence went no higher than it not being part of accepted Army culture to report one’s discomfort or difficulty arising from a mental health issue.
To my mind, it is very significant that there were several different opportunities for the Applicant to ventilate mental health difficulties he was experiencing from the two claimed events because the material reveals seven psychological or psychiatric assessments were performed on him during his period of service. A very significant difficulty that arises in the Applicant’s evidence: he failed to mention any apprehension of those events being life-threatening or traumatic to him in any way to expert people such as psychologists and a psychiatrist who examined him during his period of service. In fact, in all of those ‘in-service’ examinations and consultations, he said nothing to any expert about any traumatic or life-threatening event arising from his service.
On the contrary, following his discharge, he told Barbara Knight in 2006 that his experience in the Army had been very positive and that he was seriously interested in re-enlisting because it had been the best part of his life. Having regard to (1) the complete absence of any record of the Applicant telling any of the in-service experts about claimed trauma, and (2) his positive and glowing reports about Army life to Barbara Knight in 2006, it is very difficult to come to any sort of conclusion that the two claimed incidents should now be accepted as traumatic events upon which to ground a finding confirming a diagnosis of PTSD.
It is plain from his evidence that in the absence of any contemporaneous reporting and resulting written evidence, his primary position of default was to suggest that any memory or recollection of the two claimed incidents had been repressed for something like 10 years. The difficulty with that contention is that it is not supported by the medical evidence. The further difficulty with the contention about repression of the symptoms is that it emerges very late in what the Applicant has been telling those examining him. His evidence about repression would have had more credibility if he had been saying those sorts of things to experts shortly after his discharge from the Army. He said no such thing to anyone until some 10 years later and unconvincingly sought to explain the silence on the basis that ‘…it was army culture’ to not say anything about difficulties one was experiencing with their mental health as a result of their military service.
The Applicant had no rational explanation for why he did not seek assistance from his two fellow servicemen during the rubbish tip incident, if, in fact, he was as seriously concerned about his personal safety from the apparently threatening crowd. His contention about becoming frightened as a result of certain angry looks or gestures from the surrounding crowd at the rubbish tip that resulted in him apparently brandishing his weapon with the words ‘stop or I’ll shoot’ is, absent any corroboration from either or both of his co-servicemen, both contrived and implausible. In terms of corroboration, no supportive statements were obtained from either servicemen and the claimed incident does not appear in any of the Army records.
The Applicant cannot even recall the names of his co-servicemen and I find it difficult to accept that he had performed the rubbish tip task on several previous occasions, all of which had passed without difficulty or concern. There is no valid or sustainable explanation as to why there was no crowd trouble or other trouble during his previous rubbish tip tasks, yet this one particular task became somehow traumatic for the Applicant.
As was seen from his evidence, the Applicant sought to ameliorate the very low level of detail about this incident by trying to divert his answer away from providing any detail and into a suggestion of (1) good luck or fortune that it did not escalate further and (2) that he was embarrassed to tell anyone about it due to Army culture.
I have earlier stated that the evidence of the Applicant’s step-father, Mr McClure, is, although well-intended, of little or no value. I accept that both he and the Applicant’s mother have had to deal with – at a domestic level – the difficulties arising from the Applicant’s psychological state during the course of his post-service period. The primary difficulty with his evidence is that he was simply not present when the things he deposes to were said to have occurred. He was obviously not present in East Timor when either or both of the claimed traumatic events occurred.
Likewise, he was not there when he sought to suggest that, contrary to other evidence, the Applicant was not involved in fights and/or disrespectful conduct during his school years that resulted in the Applicant’s expulsions and/or suspensions from school. What can also be said about Mr McClure’s evidence is that his attempts to play down or minimise the Applicant’s antisocial conduct as a child is at odds with Dr Varghese’s observations from the very large number of documents that Dr Varghese perused.
In terms of expert medical evidence, the Tribunal had the benefit of both Drs Lawford and Varghese – consultant psychiatrists – personally attending the Tribunal to give their oral evidence. Prior to moving on to a discussion about their evidence, I have, for the sake of completeness, earlier in these Reasons summarised the evidence of Drs Wild and Slack. First, Dr Slack made a diagnosis of PTSD pursuant to Axis-IV of the DSM-IV. He clearly thought that the Applicant’s PTSD was the result of exposure to traumatic events during his time in the military. Dr Slack also thought that PTSD is the primary cause of the Applicant’s inability to find employment and t represents some 90% of that inability, while alcohol abuse contributes about 10% towards it.
The difficulty with allocating any significant measure of weight to Dr Slack’s report is that it is plain that he did not consult any of the contemporaneous military and other records in the formulation of his diagnosis and opinion. He is responding to a request from a government assessor for a clinical report regarding the Applicant. It is not clear from his report exactly what, apart from what the Applicant told him, Dr Slack has based his findings upon. The further difficulty with the allocation of any weigh to his evidence is that he was not called as a witness to the hearing before me and the Respondent did not have an opportunity to test his evidence in cross-examination. Marginal, if any, weight out to be allocated to Dr Slack’s opinion.
Second, Dr Wild first saw the Applicant in September 2015 and treated him for about a year into 2016. Similar to Dr Slack, Dr Wild made a PTSD diagnosis using the DSM-IV criteria. He thought the PTSD dated ‘back to Australian Army service in East Timor in 2005’. The same difficulties arise with the allocation of any weight to Dr Wild’s findings as is the case with Dr Slack. Dr Wild did take into account four documents in the formulation of his opinion. Those four documents, in terms of volume, represent a miniscule percentage of the material consulted, digested and reported upon by Dr Varghese. Dr Wild was not called to give evidence at the hearing before me and the thus, the Respondent did not have an opportunity to test his evidence in cross-examination. Marginal, if any, weight ought to be allocated to Dr Wild’s opinion.
Third, as I have previously stated, I prefer the evidence of Dr Varghese to that of Dr Lawford, and I do so for a number of reasons. Referring firstly to Dr Lawford, I am of the view that his contention that psychiatrists who get paid for a report somehow lack of independence and objectivity, and that, on this basis, the evidence of those psychiatrists should somehow be impugned, should be promptly dismissed as baseless and of no value. For reasons outlined by Dr Varghese, the retainer of an arm’s length and independent medical consultant and the remuneration of that expert for the provision of a clinical opinion about an Applicant/patient he does not know is surely a scenario of independence. There is (1) no pre-existing relationship between the retained expert and the Applicant, and (2) there is no pre-existing or other relationship between the retained expert and those who instructed him.
In submissions, the Respondent’s representative thought a ‘glaring’ point of difference between Dr Lawford’s evidence and that of Dr Varghese was the very significant disparity between the level of documentation consulted by Dr Varghese compared to that consulted by Dr Lawford in the formulation of their respective opinions. While I agree with the contention, I think the difference is more than glaring. I am of the view that the difference is fatal in terms of the allocation of comparative weight between the respective opinions of Dr Varghese and Dr Lawford.
Earlier in these Reasons, I sought to particularise and outline the total extent of the material perused and digested by Dr Varghese in the formulation of his report. I would further suggest that it is one thing for Dr Varghese to cursorily say that he received a large volume of material as part of his instructions to prepare a report. It is a completely different – and much more significant – thing for Dr Varghese to receive this material, and to describe and discuss the totality of that material in the very detailed and particular way that he has. In other words, Dr Varghese has both received and described virtually every document provided to him.
On the other hand, it was clear from his cross-examination that Dr Lawford accepted that he did not consult anywhere near the level of the material that Dr Varghese did. Relevantly, Dr Lawford has not heard of and never read the 2005 psychiatric assessment of the Applicant by Dr Green, who is recorded as a treating psychiatrist of the Applicant in the Army service records. Dr Lawford purported to suggest that he knew of Dr Green’s assessment of the Applicant, but that he had not read it because a copy had not been provided to him. Dr Lawford’s lack of familiarity with an obviously important document such as Dr Green’s assessment impacts directly upon any opinion Dr Lawford may have formed about the Applicant. This is especially the case in circumstances where Dr Green says in his medical record dating from 3 March 2005 that the Applicant was ‘not depressed, now symptom-free’ and that in terms of any condition the Applicant had a ‘probable adjustment disorder’.
There is no requirement to again repeat and recount Dr Varghese’s oral evidence. It suffices for present purposes to refer to the second of his two reports (that dated 3 May 2018), in which he says that ‘If the incident had been regarded as potentially life-threatening, I would have expected that there would be a report of such an incident in the Army records. I was unable to find any.’
Those Army records are not of a small volume. However, the critical point is that there are very few records corroborating the Applicant’s contention about the now-claimed traumatic events. As mentioned earlier, there is nothing in the records of a contemporaneous nature – be it an incident report or a witness statement, for example – corroborating what the Applicant says occurred. Whatever records do exist about the period of the Applicant’s deployment to East Timor are not favourable to him.
For example, when the Applicant undertook psychological screening on 8 June 2004, the examiner noted ‘…no major issues or comment…no health or other issues…’ The examiner also noted that the Applicant was enjoying his time in East Timor and enjoyed the experience of riding in a Blackhawk helicopter, and that his only major negative experience was recorded as ‘working too hard’. There is no reference to any traumatic event(s) affecting his mental health.
Similarly, in an out-patient clinical record dating from 26 February 2005, there is reference to the Applicant being under stress for a couple of months since Christmas 2004, but the clear reference in this record is that this occurred ‘…after relationship broke down with his girlfriend.’ The clinical record from this time noted the Applicant reporting feelings of being under stress and otherwise starting to think of self-harm, but there is no reference to the reason or basis for these feelings of stress referable to either the gun incident or the rubbish tip incident. The only factor noted by the clinician involved the Applicant’s relationship breakdown with a prior girlfriend.
At this time, February 2005, the Applicant was admitted as an inpatient for a period of five days in late February until about the end of February 2005. At the conclusion of this period as an inpatient, the medical records demonstrate that the Applicant had ‘nil thoughts of self-harm’ and it culminated with Dr Green’s abovementioned observation on

3 March 2005 that the Applicant was, inter alia, symptom-free.
It is worth noting at this juncture that Dr Varghese made detailed reference to the findings of Dr Green at this time (i.e. March 2005), whereas Dr Lawford accepted that he had not reviewed Dr Green’s notes as they appear in the records. Dr Green’s notes run for five pages and they are the notes that culminate in Dr Green opining that the Applicant was not depressed, symptom-free and that he was suffering from a probable adjustment disorder. It is, to my mind, a significant deficiency in the evidence of Dr Lawford that he made no reference to the views of Dr Green made in March 2005.
This lack of familiarity with Dr Green’s views from March 2005 directly and adversely impacts upon the respective findings and opinions of Drs Slack and Wild in the same way that it does in the evidence of Dr Lawford. None of those three psychiatrists had the benefits of whatever contemporaneous records there were relating to the Applicant’s claimed experiencing of the two stressful events, whereas, it is clear that Dr Varghese has.
To my mind, the Applicant’s willingness to engage with multiple mental health experts while in the Army and at a time relatively contemporaneous to the claimed incidents, removes any presumption or finding that he did not report his claimed symptoms (arising from the two claimed traumatic events) due to some cultural issue arising from Army life that it would be ‘embarrassing’ for him to do so or that he would be seen as some kind of weakling if he did so. He was obviously willing to tell multiple mental health experts about the issues with his past girlfriend, and he agreed to being an inpatient for five days based upon the recommendation of those experts. I therefore accept the Respondent’s contention that it is not the case that there has been an absence of any willingness on the part of the Applicant to discuss issues that were traumatic for him.
Upon his discharge from the Army, the Applicant was subjected to a usual psychological screening/assessment exercise. The relevant clinical record recommends that he be discharged from active military service but contains absolutely no mention of the Applicant saying anything about the two claimed incidents in East Timor and that those incidents somehow represented traumatic or life-threatening events to him. Instead, there is mention of other traumatic elements in his life, including his being assaulted when he was 12 years old. Once again, it is clear that the Applicant did not allow so-called factors of cultural embarrassment to prevent him to disclose sensitive incidents, because he obviously did so.

In a similar vein, in a Discharge Health Statement Form, in response to the question ‘Have you suffered any disabilities during your service’, he spoke of a sprained ankle (in April 2004) and a re-injuring of that ankle (in August 2005). Upon discharge from the Army, the Applicant told the relevant clinician that he was feeling ‘pretty good’ and that he felt ‘about an 8-9/10’.
It does not seem controversial that the Applicant’s first mention of the now-claimed two traumatic incidents occurred a decade later when he was under the care of Dr Slack. The difficulty arising from the chronology of evidence running from the Applicant’s discharge up to his reporting of the claimed traumatic events to Dr Slack, is that not only is there no mention of the incidents during this 10 year period, but the Applicant actually speaks glowingly of his time in the Army to independent people such as his probation officer (in 2006), Ms Barbara Knight.
As mentioned earlier, he told Ms Knight that, ‘I still think it [his time in the Army] was a positive thing overall, it was a pretty positive experience.’ The Applicant gave evidence of seriously wanting to re-enlist. Thus, I agree with the Respondent’s contention that the Applicant’s comments to Ms Knight are a more accurate reflection of his experience in the Army than that intended for the purpose of this claim.
One is left with the unavoidable impression that the evidence about the two subject incidents is both unconvincing and implausible. Apart from neither of the incidents being the subject of any official investigation, notation, report or inquiry, the Applicant was, for all intents and purposes, in a minority of one in propounding them. He accepted that at any stage during the course of the rubbish tip incident, he was within earshot of his two fellow servicemen and could have called out for them for support at any time, yet did not do so.
I have earlier recounted the implausible and unlikely sequence of events that saw him make a threat to the local people apparently surrounding the rubbish tip. It stretches the bounds of credibility to suggest that the Applicant was the only person holding a weapon and was still fearful about a risk of harm from the crowd. I have earlier mentioned the significant deficiency arising from the Applicant’s inability to recall the names of his co-servicemen and that there is nothing of a corroborative nature in the material from either of them. If anything, this lack of particularity in the Applicant’s evidence points to the event, assuming it occurred, not being particularly significant. That would explain why he may not be able to recall the names of his fellow servicemen. If the matter were in fact of a more significant nature, involving official investigation, enquiry or reporting, it is more likely that the Applicant would have remembered the names of his co-servicemen because they would have no doubt featured such an investigatory process.
With particular reference to the gun incident, the Applicant conceded that although he claimed it to be a life-threatening and very traumatic event, he accepted that he reported it to Dr Varghese in humorous terms and had no explanation for having done so other than to tepidly and unconvincingly suggest that ‘I take everything with humour.’
There is a further and more significant difficulty with allocating any level of credibility or weight to the Applicant’s evidence about the gun incident. It derives from the significant disparity between the history of what occurred in that incident when one compares what the Applicant says in his written statement compared to what Dr Lawford recorded as having occurred. Dr Lawford was of the view that while the Applicant was witnessing the claimed incident between the other two servicemen, one of those servicemen apparently turned around and started yelling at the Applicant. This is significantly at odds with the Applicant’s recounting of the incident, which effectively says that he watched the claimed incident and the two participants completely ignored him, and at no time did either of them turn around and yell at him.
In his statement of 23 August 2017, the Applicant says that ‘I yelled out something like ‘What’s going on here?’’ to both of the participants. It is clear from the Applicant’s statement that the two participants ignored him but continued to yell and scream at each other. The Applicant’s position is that he was not fearful for himself, but that he was fearful for the life of one of the participants, namely, ‘Millsy’. Dr Lawford’s position is that one of the two participants in the incident actually turned around and started yelling at the Applicant. The Respondent’s contention is thus correct: there is a significant difference between one of the two participants pointing a gun at the Applicant and yelling at him, compared to both participants completely ignoring him with the Applicant doing all of the talking.
I make two final points about the medical evidence. First, no weight can be safely allocated to Dr Lawford’s misconceived and plainly incorrect purported determination of the issue of liability in this matter, when he noted, ‘The army accepted the veteran with his background and placed him in these situations. Therefore any sequelae related to this vulnerability is in my view the responsibility of the system.’[123] Determination of liability is not the function of Dr Lawford and it is not a valid basis for the predication of whatever opinion and diagnosis he may arrive at. This misconception probably goes a great deal of the way towards explaining the unsustainability and unconvincing nature of his findings compared to those of Dr Varghese.
[123] Exhibit 5, second page.
Second, I consider it significant that neither of the claimed traumatic events and the apparently harmful and adverse impact of them on the Applicant’s state of mental health were raised as exculpatory factors in the course of the Applicant’s sentencing for his armed robbery offending. If the Applicant was truly cognisant of the now-claimed traumatic events, then such trauma would surely have been part of submissions made on his behalf in the course of him being sentenced for quite serious criminal offending. As noted by Dr Varghese:
I note further that there is no mention of the alleged incident as an exculpatory factor with respect to Mr Jefferys’ criminal offences leading to imprisonment. I was unable to find any mention of the incident in the prison medical and psychological records.
I therefore (1) do not accept the Applicant’s evidence or that or Mr McClure as being demonstrative of the two claimed traumatic incidents having occurred, and (2) find that I prefer the evidence of Dr Varghese, based as it is on his extremely thorough perusal and digestion of the best available total evidence, over that of Dr Lawford and the untested (in cross-examination) evidence of Drs Slack and Wild.
CONCLUSION
Based on the preceding analysis of the written and oral evidence before the Tribunal, I am not reasonably satisfied that the Applicant suffers from PTSD. Given that I am not reasonably satisfied that the Applicant suffers from PTSD, it is unnecessary to determine the second issue as to whether the claimed PTSD was war-caused.
This decision will unquestionably disappoint the Applicant. There can be no question that mental health issues have been a feature of his relatively short life thus far. The difficulty with the evidence presently before the Tribunal is that it is not demonstrative of the two claimed traumatic incidents, nor of any other similar incidents, of the type that could give rise to a finding, to the Tribunal’s reasonable satisfaction, that he suffers from PTSD. As noted by Dr Varghese, the claimed traumatic incidents have more likely given rise to adjustment disorder, which is a transient condition.
DECISION
I affirm the decision under review.

I certify that the preceding 142 (one hundred and forty two) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

..............................[SGD]....................................
Associate
Dated: 26 June 2020

Date(s) of hearing: 26 and 27 November 2018 and 10 July 2019

Date final submissions received: 27 November 2018

Counsel for the Applicant: J. Feely

Solicitors for the Applicant: Wallace Davies Solicitors

Solicitors for the Respondent: M. Hawker, Partner, Sparke Helmore
Index
Decision
REASONS FOR DECISION
INTRODUCTION
BACKGROUND
TIMELINE
issues and preliminary items
THE CLAIMED TRAUMATIC INCIDENTS
The Rubbish Tip Incident
The gun incident
THE MEDICAL EVIDENCE
Dr Slack
The report of Dr Slack

Dr Wild
The report of Dr Wild

Dr Lawford
The reports of Dr Lawford
Dr Lawford’s evidence in chief
Dr Lawford’s evidence in cross-examination

Dr Varghese
The reports of Dr Varghese
Dr Varghese’s evidence in chief
Dr Varghese’s evidence in cross-examination
The re-examination of Dr Varghese

THE LAY EVIDENCE
The Applicant
The Applicant’s evidence in chief
The Applicant’s evidence in cross-examination
The Applicant’s evidence in re-examination

Mark McClure
The evidence in chief of Mark McClure
Cross-examination of Mr McClure

ISSUE 1: DOES THE APPLICANT SUFFER FROM PTSD?
CONCLUSION
DECISION

Date(s) of hearing:	26 and 27 November 2018 and 10 July 2019
Date final submissions received:	27 November 2018
Counsel for the Applicant:	J. Feely
Solicitors for the Applicant:	Wallace Davies Solicitors
Solicitors for the Respondent:	M. Hawker, Partner, Sparke Helmore