Kuhn and Repatriation Commission (Veterans' entitlements)
[2023] AATA 536
•28 March 2023
Kuhn and Repatriation Commission (Veterans' entitlements) [2023] AATA 536 (28 March 2023)
Division: GENERAL DIVISION
File Number(s): 2020/3297
Re:Glenda Kuhn
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Deputy President Sosso
Date:28 March 2023
Place:Brisbane
The decision under review is set aside and substituted with a decision that the Applicant is entitled to a war widow’s pension pursuant to section 13 of the Veterans’ Entitlements Act 1986.
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Deputy President Sosso
Catchwords
VETERANS’ ENTITLEMENTS — War widows’ pension — Operational service — Veteran killed while in a plane crash — Hypothesis that veteran’s service-caused PTSD contributed to plane crash — Standard of reasonable hypothesis applies — material pointing to a connection between PTSD and service— Hypothesis reasonable — Whether veteran’s death resulted from serious default or wilful act on his part — No evidence of a wilful act — Decision under review set aside and substituted.
Legislation
Veterans’ Entitlements Act 1986 (Cth)
Crimes (Aircraft) Act 1963 (Cth)Cases
Boral Resources v Pyke (1989) 93 ALR 89
Bushell v Repatriation Commission (1992) 175 CLR 408
Bull v Repatriation Commission [2011] FCA 1832
Byrnes v Repatriation Commission (1993) 177 CLR 564
Collins v Repatriation Commission (2009) 177 FCR 280
Collins v Administrative Appeals Tribunal (2007) 163 FCR 35
Deledio v Repatriation Commission (1997) 47 ALD 261
Dunlop v Repatriation Commission [2003] FCAFC 201
East v Repatriation Commission (1987) 16 FCR 517
Ellis v Repatriation Commission [2014] FCA 847; 142 ALD 352
Forrester v Repatriation Commission [2013] 16 FCR 898
Hardman v Repatriation Commission [2005] FCAFC 83
Hill v Repatriation Commission (2009) 177 FCR 434
Lynch and Repatriation Commission (1988) 8 AAR 240
McClure and Repatriation Commission [2000] AATA 292
McLean v Repatriation Commission [2001] FCA 243
McPherson v Repatriation Commission [1989] FCA 84
Nelson and Repatriation Commission [1988] AATA 148
Onorato v Repatriation Commission [2011] FCA 1507
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Codd (2007) 95 ALD 619
Repatriation Commission v Law (1981) 147 CLR 635
Russell v Commonwealth [1999] VSC 437
Ryan and Repatriation Commission [2010] AATA 230
Willman v Repatriation Commission [2007] AATA 1480
Woodward v Repatriation Commission [2003] FCAFC 160
Secondary Materials
Statement of Principles No. 97 of 2022 – Posttraumatic Stress Disorder
Civil Aviation Safety Regulation 1998
REASONS FOR DECISION
Deputy President Sosso
28 March 2023
1. Ms Glenda Kuhn (the Applicant) seeks a review of a decision of the Veterans’ Review Board (the Board) of 17 March 2020 which affirmed a decision of a Delegate of the Repatriation Commission (the Respondent) dated 3 September 2019 that the death of the Applicant’s husband, Mr Anthony Francis Kuhn (the veteran) was not war-caused and that, accordingly, a war widow’s pension was not payable to her.
2. The veteran was born in January 1949 and served in the Royal Australian Airforce (RAAF) from 15 April 1966 until 15 April 1971. The veteran rendered operational service in South Vietnam from 20 April 1968 until 16 April 1969. He had only just turned 17 years of age when he enlisted and rendered almost 12 months service in South Vietnam when he was 19 years of age – Exhibit 1 T2 p. 11.
3. After enlisting the veteran served as a General Hand. It would appear that the veteran had intended to become a cook, but there were no available openings in that muster. He subsequently volunteered for service in Vietnam. The veteran served at Phan Rang Airbase as a member of 2 Squadron RAAF as a General Hand on the headquarters staff. He continued to serve in the RAAF until he received an early discharge on compassionate grounds – Exhibit 2 A1 p. 4, Exhibit 10 p. 243.
4. A perusal of the Confidential Reports prepared by the Section Commander and Commanding Office on the assessment of the conduct and personal qualities of the veteran, illustrates a steady decline following his operational service.
5. The first of these reports is dated 10 August 1967 and the Section Commander made these observations of the veteran – Exhibit 10 p. 274:
“A likeable airman who has yet to mature. Somewhat easily led by more dominating airmen but will no doubt grow out of this. He has potential to do well in the service but must learn to be more independent and improve his appearance.”
6. The veteran was awarded a score of 17 and was regarded as being likely to become fit for promotion.
7. The next report is dated 17 April 1968 and was prepared three days before the veteran commenced duties in South Vietnam.
8. The Section Commander made these observations – Exhibit 10 p. 271:
“LAC Kuhn performs his duties well requiring very little supervision. He is popular with his contemporaries, happy and confident of his future in the service, but shows a little immaturity in his dealings with the business community.”
9. The Commanding Officer concurred with these remarks.
10. The veteran was awarded a score of 20.
11. In the report of 21 March1969 the Section Commander assessed the veteran’s overall conduct as “VG”, awarded him a score of 20 and opined that he was now fit for promotion. The following comments were made by the Section Commander – Exhibit 10 p. 261:
“Kuhn is a good worker and will do any job which is given to him.”
12. The Commanding Officer was less effusive:
“Kuhn is an average airman.”
13. From this point onwards the assessment of the veteran by his superior officers becomes increasingly critical.
14. In the report of 17 June 1970, after the veteran had returned to Australia for more than 12 months, the Section Commander awarded a score of 16 and opined that he was likely to be fit for promotion as distinct from fit now, as was the case in the 21 March 1969 report. The Section Commander made these observations – Exhibit 10 p. 258:
“LAC Kuhn works well with supervision. He is well liked in the section but is not confident in his outlook. He has improved in his general attitude over the past 5 months.”
15. The Commanding Officer made these comments:
“LAC Kuhn gives satisfactory service but requires to adopt a more mature attitude and an improve service attitude before becoming ‘fit now’”.
16. The final report is dated 11 May 1971. By this time the Section Commander awarded him a score of 12, and made these comments – Exhibit 10 p. 254:
“LAC Kuhn personnel qualities reflected widely upon his outlook to service life. He was easily distracted and by the will of others tempted the code of discipline.
In workshops, section activity by the various musterings failed to improve the airman’s sense of responsibility and his personnel qualities. This lack of interest may have been attributed to his desire to return to New Zealand.”
17. The Commanding Officer made these comments:
“This airman’s personal problems certainly affected his POA and his work. However, I doubt if he would have ever settled down to service life or accept service discipline. He is, I believe, immature and easily led.”
18. The veteran’s mental state on his return to Australia, and prior to his discharge, is illustrated firstly in a letter dated 2 September 1970 from Dr L E Jabour of Casino to the Senior Medical Officer, Medical Section, RAAF, Perth. Dr Jabour, who was treating the veteran, made the following observations – Exhibit 11 pp. 335 – 337:
“I have been asked to write about LAC F.A. KUHN A113613 who I saw on the 11th and 29th August.
I feel that he warrants the help of a psychiatrist. He is subject to rages which are suppressed but finds outlet in bumptious and sometimes ruthless behaviour.
He spent 12 months in VIETNAM and had 10 days leave in that time. He felt well in VIETNAM but blows up easily now…”.
19. Following receipt of this letter, Squadron Leader Laney wrote to Dr Prentice, Psychiatrist, on 11 September 1970. Squadron Leader Laney made the following observations – Exhibit 1 T3 p. 16:
“Over the past 15/12 since his return from VIET NAM, this member has suffered from bouts of uncontrollable rage which have occasionally resulted in physical attacks on his mother. Prior to his return from VIETNAM the member regarded himself as placid. Until JANUARY 70 he was a very heavy drinker, but since then, has not touched a drop (helped, no doubt by 2 convictions of driving in excess of 0.08%).
His father died when he was 14 and he is 2nd eldest of 6 sibs. From leaving school at 14 he did unskilled labour, which is what he is doing at present in the RAAF. His brother, who is a Marist Brother has had ‘2 nervous breakdowns’ but he states there is no other [nervous] trouble in the family…
I feel this members problem is one of personality disorder, and possibly psychotherapy could help straighten him out, but before I send him to MR. SARFATY I would value your comments.”
20. Dr Prentice examined the veteran on the same day, and in a Consultation Record advised against the veteran undertaking individual psychotherapy with Mr Serfaty – Exhibit 1 T3 p. 17. Dr Prentice advanced a number of reasons for this opinion.
21. The first two centred on timing. Dr Prentice noted that the veteran had put in an application for discharge and that psychotherapy would need to be continuous, lasting three to six months.
22. Next, Dr Prentice noted that the veteran’s brother had two “ neurotic breakdowns of long duration” and an eight year old brother who “appears to be mental defective”. Mr Prentice opined that this “this does not necessarily preclude him from psychotherapy but militates against his prognosis of his condition.”
23. Dr Prentice concluded as follows – Exhibit 1 T3 p. 17:
“In summary I feel that this man does not represent good psychotherapeutic material, in the view of the above and I recommend that he would be better advised to have such help after discharge. This might be possible through the Repatriation Commission...”
24. It is tolerably clear to the Tribunal that the veteran received no significant mental health assistance from medical professionals whilst he was awaiting discharge from the RAAF.
25. Unfortunately, on 8 March 1971 the veteran attempted to commit suicide by taking 10 25mg Amitriptyline tablets. He was admitted to hospital and diagnosed with “increasing exogenous depression”. The veteran was discharged the following day. Despite this suicide attempt, there does not appear to have been any serious psychiatric medical intervention by the RAAF – Exhibit 11 p. 321. This is despite the fact that in a report of 18 March 1971 by Wing Commander Foster, it was noted that the veteran had, subsequent to his suicide attempt, stated that “he will ‘do it again’” – Exhibit 13 p. 547.
26. In a report dated 29 March 1971 by Squadron Leader C.A. Selkirk, reference is made to “one token attempt at suicide” – Exhibit 13 p. 546. Moreover, Squadron Leader Selkirk noted that if the veteran was not released from service there were two possibilities namely:
“a. the member will try again to end his life (and may meet with success); or
b. he will suffer permanent mental damage.”
27. It would appear that the response of the RAAF to the veteran’s “obvious signs of anxiety and depression” (Exhibit 13 p. 547) was to expedite his application for a compassionate discharge.
28. The veteran’s mother, in a statement provided in support of the Applicant in 1994, made the following observations about her son – Exhibit 1 T6 p. 25:
“My son Tony enlisted in the RAAF from the age of 17 and volunteered to serve 12 months in Vietnam from 1967 to 1968. When he left Australia he was a normal healthy 17 year old, but on his return he was a nervous wreck, frightened of noise and traffic and continuously in need of alcohol to function…
After only having leave for 2 weeks at home in Casino he was transferred to Perth, which was an extreme distance from family under his condition..
Tony returned only once to Casino before he left to be married in New Zealand. After he was married in New Zealand they returned to Casino and resided there for approximately 1 year…
During his time in Casino Tony suffered fits of deep depression with continuous highs and lows.
I feel when Tony returned from Vietnam he was the total opposite in his nature then prior to leaving.”
29. The Applicant made these comments about the veteran’s two week stay with his family in Casino on his return from South Vietnam – Exhibit 1 T4 p. 19:
“Tonys nerves were in a state when he returned home from Vietnam. He had a short holiday with his family on his return before being stationed in the Air Force in Perth. Within that short stay with his family, they had a lot of problems and fights with Tony and the brothers and sisters were pleased when he left. His mother had to reassure the children that he was in as state of nervousness due to Vietnam.”
30. The Applicant met the veteran whilst on holidays in Perth – Exhibit 1 T6 p. 25. On 12 December 1970 the veteran married the Applicant in Auckland, New Zealand. They subsequently had three children, Marc born in 1971, Janine in 1975 and Karl in 1981 – Exhibit 1 T9 p. 32.
31. The relationship from the outset was strained by the veteran’s erratic behaviour, anxiety and mood swings. The Applicant described the veteran’s behaviour as follows – Exhibit 1 T4 p. 19:
“Tony had very bad mood swings with erratic behavioural, and anxiety problems throughout our marriage. I found him very nervous at times and very hard to live with. He had made comments like if you had, have had, bombs going off all hours of the night, you would have been a wreck also. This seemed to go on for years. Tony was like a living bomb at times to live with…
We broke up three times throughout our marriage. The first time I was pregnant with Marc. The other two were due to his erratic drinking behavioural pattern which got worse as the years went on. He become more and more erratic as he sicker with rash and emphysema and his behaviour pattern got worse.”
32. According to the Applicant, the veteran manifested the following symptoms, amongst others – Exhibit 5 p. 155:
(a)intolerance;
(b)mood swings, nervousness, anxiety;
(c)high and lows, with lows lasting days on end;
(d)depression to the extreme;
(e)psychiatric problems, fatigue (loss of energy).
33. This account of the veteran’s behaviour is consistent with the account given by the Applicant’s father, Mr A F Lewis, in a statement dated 10 September 1993. Mr Lewis provided the following information – Exhibit 5 p. 163:
“After marriage the couple stayed with us for a few weeks. This was when we noticed his peculiar behaviour, black moods for hours on end, he would sit in one position all day, just thinking, not speaking, like in a depressed state of mind. Very difficult to snap him out of himself…
I…offered him a job in the office of my business…
Tony took up the new position in the office, telephone and general duties and meeting up with my clients…Tony and I got along quite amicably from the start…After a short time I discovered he could not cope with the work or the stress.
His highs and lows were disturbing & grandiose ideas were not practical. The Customs Agents that I was doing work for asked what was wrong with Tony as he would go into their office and seemed to go into a trance, with black moods and sit and sit. Some nights he would sit up in the….Office with his heavy Air Force coat on and be there in the morning. In the end I changed his office job to driving one of the trucks. This also caused him stress….Finally, I reluctantly came to the decision that I must have my son-in-law leave my business or the [business] would have folded up…Sad to say, his moods, highs, lows, lack of communication depression and unusual behaviour patterns continued after his settling back in Australia until his death in April 1988 as my wife and I were able to observe when we visited the Kuhn family…”
34. The Applicant recounted how the veteran tried to strangle her one night after he was drinking and on another occasion assaulted her and acted “like a mad man” – Exhibit 5 p. 155.
35. The Applicant also recounted how the veteran engaged in dangerous risk taking activities which endangered not only his life but that of the Applicant and other road users – Exhibit 1 T4 p. 22:
“When Tony and I were just engaged a week, Tony was driving up to the Gold Coast through the Lindsay Highway, which is very bendy and steep in parts in his MBG Sportscar. Going through the bad parts of the highway with steep drops Tony was driving like a maniac at a very dangerous and fast speed which well exceed the speed limit. It was something like 100 miles per hour. I was frantic and started screaming for him to stop, by bashing my hands on the dash board, I eventually sat huddled on the floor in terror and that is when he decided to snap out of himself and stop the car. We would have had a very bad accident if he had have continued. He was in one of his moods at the time. He seemed to think it was a great joke. I could not understand him for being so out of control of himself. Luckily Tony got a drink driving charge soon after which forced him to sell the car a month or so later.”
36. The Tribunal has been presented with an undated statement of the Applicant wherein she outlines this incident as well as a number of others where the veteran behaved in an erratic and dangerous manner – Exhibit 8. Without setting out all of the incidents, reference can be made to the final one which, according to the Applicant, took place the day before the fatal plane crash – Exhibit 8 p. 237:
“The day before Tony’s death he was in a disassociate state sitting at the table opposite me glaring with glazed eyes starring at the wall and was unaware of any conversation going on around us at the table. There were 4 of us including Tony sitting at the table. When he came out of his disassociate state we left in his car and he was driving back home at a very fast and dangerous manner. He was scarring me with his erratic driving behaviour.”
37. On 4 March 1983 the Applicant was granted in New Zealand a Student Pilot Licence to fly aeroplanes. The licence expired on 14 February 1985 – Exhibit 1 T8 p. 30.
38. It would appear that the veteran had flown 33 hours dual and 3.5 solo in Cessna 152 aircraft during 1983 – 1984 – Exhibit 1 T31 p. 87.
39. The Applicant gave the following account of the veteran’s attitude to flying – Exhibit 1 T4 p. 21:
“Tony used to make comments that when he was flying it put him on a HIGH. I could never understand whey [sic] he would make such a statement, and could never work out why he would want to be on a high. Tony had a pattern that he seemed to like being out of himself…”
40. On 25 September 1984 the veteran made a claim for medical treatment and pension – Exhibit 1 T9 pp. 31 – 35. The disabilities claimed were anxiety, hiatus hernia, fungal rash and haemorrhoids – Exhibit 1 T9 p. 31. The veteran claimed that all “symptoms” for the claimed disabilities started whilst he was serving in South Vietnam – Exhibit 1 T9 p.33.
41. By letter dated 5 November 1984, the veteran provided a detailed statement in support of his claim. He explained that he was applying for a “full pension” and provided the following details of his claimed anxiety condition – Exhibit 1 T10 p. 36:
“When I arrived home from Viet-Nam my nerves were in a very bad state. I gave Everyone a bad time. I ended up trying to Commit Suicide by taking an overdose of tablets. I was put into an R.A.A.F. Hospital Pearce. I have been very hard to live with due to my nerves over the years and my wife and I have broken up a few times due to my anxiety. I feel being in Vietnam has effected [sic] my nerves and the way I react. I also feel my Hiatus Hernia and Fungal Rash has’nt [sic] helped my nerves which causes me to be irritated as I am continually sick with my Hiatus Hernia and Fungal rash which I have to live with every day.”
42. The veteran’s claimed anxiety condition ultimately was not determined as no diagnosis of a psychological ailment was made.
43. Arrangements were made for the veteran to be examined in New Zealand (where he was then living) by specialist psychiatrist, Dr L Gluckman – Exhibit 1 T42 p. 158.
44. The veteran was unsuccessfully examined and assessed by Dr Gluckman in 1986. In his report of 8 July 1986, Dr Gluckman concluded as follows – Exhibit 1 T12 p. 45:
“From my point of view then he is uncooperative, had no idea of any specific complaints, his statement ‘Jesus I haven’t a clue’ about those complaints is significant. I think it likely because he could not supply a history, because he found himself in an overwhelming situation in that regard, he lost his temper or lost impulse control and stalked out and refused to listen to reason even though I tried to explain to him and he clearly understood that if he did so that might well be the end of his claim. His answer was it didn’t matter, he might as well call it a day.
This is a near unique situation in some 35 years of examining patients such as this. I spent a few months in Australia working for the Department of Repatriation as a Medical Officer about 1950 and in my recollection most applicants such as this went to great lengths to specify their symptomatologies. I wonder if he is not under some local stress that he will not specify, that he can not specify, that the is using that for other purposes. Even that must be unlikely as one would expect him to catalogue the associated symptoms. I think his present situation is most likely the result of defective impulse control and that would be constitutionally related, possibly aggravated by alcohol or alcohol withdrawal. That too is speculative.
I am sorry I can not be more helpful. It is difficult to describe how he entered my room. He walked in in a dominant, aggressive manner, thrust out his hand, gave the superficial impression of a hail well met fellow in complete control of his situation.”
45. Dr Gluckman was unable, because of the veteran’s lack of cooperation, to make a formal diagnosis. However, Dr Gluckman made the following observations – Exhibit 1 T12 p. 44:
“When I asked him to amplify again his statement he had nerves his answer was ‘you might as well forget the whole examination’. He refused any physical examination, he could not be persuaded to permit an examination and left the room.
His handshake was firm, the palms felt dry. He gives the impression of being short tempered or of having defective impulse control, of believing he is entitled to compensation without further ado merely because he has served overseas. He said several times he was of the view he was in perfect health when he went overseas, he is not now and that is all there is of it. He really can not see why he can not make a certain demand and have that demand met.
Superficially he looks a healthy man, he moves rapidly and agilely, he coordinates well. His attitudes raise the question of factitious disorder, of malingering, of a man with defined opinions about compensation. There is also the question of cerebral disinhibition but I have no idea what medications he is taking or if he had taken some noxious substance on the morning concerned. All I can say is he was dogmatic, could not realise the point of giving specific complaints, appeared to suffer defective impulse control in evaluating the situation. Hence I am unable to make a firm diagnosis. I have the impression of a personality disorder.”
46. On 17 April 1988 the veteran, together with two other persons (Michael Graham Niebling and Mark Anthony Love), was killed when the aircraft he was travelling in (a Piper PA28-140) crashed approximately 15 km south south east of Archerfield Aerodrome, Brisbane – Exhibit 1 T13 pp. 46 – 47. The aircraft crashed approximately 10 minutes after take-off.
47. The veteran occupied the right hand front seat of the aircraft, whilst Mr Niebling as the pilot, occupied the left hand front seat and Mr Love was the rear seat passenger – Exhibit 1 T15 pp. 49 – 51.
48. The Queensland Police Report on the veteran’s death provided the following information – Exhibit 1 T15 p. 49:
“The deceased was believed to occupy the right hand front seat of a light aircraft. It is believed that the light aircraft was performing aerial manoeuvres in the Park Ridge area when difficulties arose in its flight. The light aircraft was believed to come in contact with the ground, and it is believed that the deceased was killed instantly. The incident occurred at approximately 3.15pm on 17.4.88.
The aircraft came into the contact with the ground in a paddock approximately 70 meters south of Rosia Road, Park Ridge. The aircraft, at the time, contained three other male persons, and it is unknown at what height the aircraft was when it first appeared to have difficulties in its flight.
When located, the deceased was seen to be strapped into the seat of the aircraft.”
49. The veteran underwent a post-mortem examination, and his cause of death was reported as - Exhibit 1 T21 p. 60:
“1.(a) Multiple Injuries (b) Aircraft Accident (Passenger)”.
50. Likewise, the Death Certificate issued by the Queensland Registrar-General records the cause of death as “Multiple injuries” - Exhibit 1 T26 p. 81.
51. No alcohol was located in the veteran’s blood, nor that of the other two persons who were killed – Exhibit 1 T21 pp. 61, 66, 71. Further, the veterans carbon monoxide reading was 10% saturation – Exhibit 1 T21 p. 61. This compared with 1% for Mr Niebling and 3% for Mr Love – Exhibit 1 T21 pp. 64, 69. There does not appear to have been any commentary on this extremely high reading for the veteran or what the implications of it may have been.
52. On 3 January 1989 the Bureau of Air Safety issued Aircraft Occurrence Report No 8803450 into the crash of Piper PA28-130 Registration No VH-EJK on 17 April 1988 – Exhibit 1 T31 pp. 86 – 88.
53. The Report contains the following information – Exhibit 1 T31 pp. 86 – 87:
“The aircraft was seen to complete a number of level orbits over a chicken farm and then to head south for about two kilometres. Whilst this was occurring the engine sound died and picked up again a few times, as if the pilot was practising setting the aircraft into a glide. The aircraft then flew a level left turn through about 270 degrees before suddenly entering a 30 to 40 degree dive. At close to tree-top height it abruptly changed attitude and entered a steep, perhaps vertical, climb. Some witnesses felt that the pilot was about to fly a loop. As the aircraft climbed, the speed rapidly decayed. During these manoeuvres, the engine note was to heard to die and pick up twice. The aircraft was then observed to fall, nose first and right wing slightly low, into a near vertical dive. Apart from completing one or possibly two rotations, it remained at this altitude until lost from sight amongst trees.
The aircraft impacted the ground in a 90 degree nose down attitude. When recovered from the wreckage the airspeed indicator was indicating 105 knots.
It was established that the engine was operating at impact. No evidence was found of any abnormality in the aircraft or its systems which may have contributed to the accident.
No explanation was found for the apparent operation of the aircraft at a relatively low height, or for the dive to a very low level followed by the steep climb.”
54. Therefore, whilst ruling out mechanical failure as a cause of the accident, the Bureau did not advance another plausible cause. However, the following observations were made out regarding the seating of the front two passengers – Exhibit 1 T31 pp. 87 - 88:
“The front seats of the aircraft were adjustable fore-and-aft along rails attached to the floor. Examination of the cockpit revealed the adjustment of the front left-hand seat (occupied by the pilot-in-command) at impact to have been five notches from the front. The front right seat was positioned in the forward-most notch. Tests of these seating positions were conducted in another PA28 aircraft using persons of the same height and those involved in the accident. These tests indicated that the right seat occupant should have been able to comfortably manipulate the engine and flying controls of the aircraft. However, the left seat appeared to be too far to the rear for the pilot-in-command to have been in a normal flying position in relation to the controls...
The seating position tests suggested that the pilot-in-command may not have been manipulating the controls during the final stages of the flight, and it is also probable that the person occupying the right-hand seat had not received any training in recovery from unusual altitudes. It is considered probable that once the aircraft had reached the nose-high altitude at low speed, that it was beyond the experience level of either of the front seat occupants to effect a safe recovery, particularly in view of the low level of the aircraft at the time.”
55. In short, the Bureau of Air Safety concluded that it was probable that Mr Niebling may not have been manipulating the controls during the final stages of the flight. It follows that the veteran may well have been in control of the aircraft at the critical time with all of the fatal consequences that followed.
56. A Coronial Inquest was held in Beenleigh on 15 September 1989 – Exhibit 1 T33 pp. 92 – 131.
57. Mr Michael John Cavenagh, Accident Investigator, with the Bureau of Air Safety Investigation was called as a witness. Mr Cavenagh was the author of the Report quoted above.
58. The following exchange occurred between Mr Cavenagh and Mr T F McLaughlin, a solicitor who represented the partner of one of the deceased persons – Exhibit 1 T33 pp. 95 – 96:
“NOW, YOU SAY THAT THE SEATING POSITION TESTS SUGGESTED THAT THE PILOT IN COMMAND MAY NOT HAVE BEEN MANIPULATING THE CONTROLS DURING THE FINAL STAGES OF THE FLIGHT. NOW, YOU GIVE SOME SORT OF INDICATION HOW YOU CAME TO THAT CONCLUSION?
As explained in the report and using identical aircraft, with the seat adjusted to the same position as I concluded that it was in at the time of the accident, a person of similar height to the pilot of the aircraft sat in the seat and the person in that seat was a pilot, he was also an Accident Investigator assisting me and we proceeded to manipulate the various controls in the cockpit and came to a conclusion following that.
WITHOUT BEING TEDIOUS ABOUT THIS POINT, WHAT THE ACTUAL MANIPULAITON OF THE CONTROLS ENTAIL?
Well, there are…directly in front of the pilot is the control column, which controls the up and down and left right movement of the aircraft. To the pilots right in the centre of the cockpit console are the engine controls and the radio controls. It was this area in the centre console where the pilot would have had to reach across with his right hand that we concluded the area of difficulty would’ve been in that the pilot sitting in a normal position with his right arm outstretched could not we felt or was not we felt in a normal comfortable position that a pilot would put himself in to fly an aeroplane.
THE PILOT IN YOUR ESTIMATION, WAS HE TOO FAR FORWARD OR TOO FAR BACK?
Too far back.
SO HE WAS…WHAT YOU’RE SAYING IS THAT HE APPEARED TO BE SITTING THERE AS A PASSENGER OR IF HE WAS IN FACT IN CONTROL, HE WASN’T IN THE PROPER SEATING POSITION.
That’s correct.
WOULD IT HAVE BEEN POSSIBLE FOR HIM TO BE FLYING THE PLANE GIVEN THE SEATING POSITION?
It would have been possible, yes.
SO, BUT WHAT CONCLUSION WE CAN IN FACT DRAW THAT…IS THAT HE WASN’T IN…LET’S SAY THE PROPER POSITION AS PER TRAINING INSTRUCTIONS OR MANUAL?
Yes, that’s correct.”
59. At the conclusion of the evidence, the Coroner made no finding as to who was controlling the aircraft when it crashed – Exhibit 1 T33 p. 131:
“ON THE EVIDENCE BEFORE ME I AM UNABLE TO MAKE ANY SPECIFIC FINDING AS TO WHICH OF THE DECEASED PERSONS, MICHAEL GRAHAM NIEBLING, OR FRANCIS ANTHONY KUHN, WERE MANIPULATING THE CONTROLS OF THE AIRCRAFT DURING THE FINAL STAGES OF FLIGHT.”
60. On 1 March 1993 the Applicant made a claim for a pension with the Respondent. In rejecting the claim the Delegate of the Respondent provided the following reasons – Exhibit 1 T38 pp.144 – 145:
“The veteran was killed in a light aircraft crash at Acacia Ridge. From official investigations it would appear the cause of the crash was pilot error, and that the veteran was most likely to have been piloting the aircraft at the time. The veteran had no pilot’s licence and had 36.5 hours flying experience. The pilot-in-command, it was found, did not have control of the aircraft, based on the setting of his seat back from the controls.
Medical advice is that the veteran had a psychiatric disability related to his Vietnam service.
The question is, was the veteran’s death attributable to his psychiatric disability which, in turn, is attributable to his war service?
As all passengers were killed in the accident, there is no direct way of knowing how or why the pilot (ie the veteran) was behaving at the controls of the aircraft. It has been concluded that the aircraft was performing a manoeuvre (a loop) which neither the pilot nor the pilot-in-command was trained in and were not capable of effecting a recovery.
There was no alcohol found in the veteran’s blood and it is far too tenuous to infer that the crash was an attempt at suicide. Clearly the veteran made an error of judgment whilst in control of the aircraft which resulted in the crash, however there is no evidence that this error was brought about by his psychiatric disability. Errors of judgment which cause accidents are unfortunately made every day and it is fanciful to blame this on psychiatric defects.”
61. The Applicant was seen on 10 March 1994 by Dr R J Troup, Psychiatrist. The Applicant provided Dr Troup with information about the veteran and it would appear that Dr Troup also had access some of the veteran’s service records. In a report dated 5 April 1994, Dr Troup, after outlining the symptoms and behaviour of the veteran, as reported by the Applicant, opined as follows – Exhibit 1 T41 p. 151:
“The man’s history is suggestive of a chronic post traumatic stress disorder. He suffered from a rash which was accepted as war related in 1986. Whether or not the rash was related to dioxin exposure is presumably not known but the veteran apparently believed it was, according to his wife. He did have, according to the history given by his wife
(i)a low frustration tolerance
(ii)marked mood swings
(iii)depression
(iv)periods of activity when he would act out in a dangerous manner with little regard for the consequences, for example, when driving a car.
He was killed when piloting a plane and he had stated that flying gave him a high. It is a reasonable hypothesis that he may have piloting the plane in an unsafe manner due to an upward mood swing related to his post traumatic stress disorder and hence his post traumatic stress could have led to his death from the plane accident. This hypothesis is in line with his frequent previous dangerous behaviour as outlined by his wife.”
62. On 27 September 1993 the Applicant sought review of the Delegate’s decision by the Board. In a decision dated 27 July 1994, the Board affirmed the Delegate’s decision – Exhibit 1 T42 pp. 152 – 161.
63. The Board made the following findings:
(a)the veteran lodged a claim on 12 November 1984 for a number of conditions, one of which was fungal rash;
(b)conditions described as intertrigo and hyperhidrosis were recognised as service-related on the ground that these diseases may have occurred in the heat of South Vietnam;
(c)there is no factual basis for it to be reasonably said that fungal rashes he suffered from were due to exposure to Agent Orange;
(d)the veteran was a General Hand serving at Phan Rang Airport as a storeman. There is no evidence that he was ever exposed to Agent Orange at the Airport;
(e)an upward mood swing is not a symptom of PTSD;
(f)a specialist psychiatrist on 8 September 1970- expressed the view that the veteran’s “problem” was one of personality disorder;
(g)Dr Gluckman, who attempted to examine the veteran in 1986, opined that the veteran’s situation was most likely the result of defective impulse control;
(h)Dr Troup, in comparison, could not examine the veteran when writing her report, as he was then deceased, and relied on information provided by the Applicant;
(i)Dr Troup whilst diagnosing PTSD did not refer to any incident or event which the veteran was exposed to in South Vietnam which would have induced such a disease;
(j)Dr Troup refers to exposure to Agent Orange, which was not the case;
(k)Dr Troup’s scenario that the veteran was piloting the plane in an unsafe manner because of an upward mood swing relating to PTSD “is fanciful in the extreme”;
(l)the licensed pilot was Mr Niebling and the Police report indicates that he was found holding part of the aircraft’s joy stick in his right hand;
(m)the aircraft accident was likely caused by pilot error;
(n)even if the aircraft was being piloted by the veteran, the evidence does not support a conclusion that the aircraft accident was caused by anything other than pilot error as neither the veteran nor Mr Niebling had the experience to engage in the aircraft manoeuvres being executed prior to the crash;
(o)to blame the accident on the veteran’s Vietnam service was “fanciful in the extreme”;
(p)there is evidence that the veteran suffered from a psychiatric illness;
(q)there is nothing in the veteran’s behaviour on the day of the crash to suggest he was then affected by a psychiatric illness, however described;
(r)the veteran was not then on medication and according to the Applicant was not “on a high” on the day of the crash;
(s)while the evidence presented did raise a reasonable hypothesis of connection between the veteran’s war service and his death in an aircraft accident in 1988, the essential facts did not support this hypothesis.
64. The Applicant subsequently sought review by the Tribunal, but the Tribunal, on 19 September 1995, affirmed the Board’s decision. Unfortunately, the oral reasons given by the Tribunal were not published – Exhibit 1 T43 p. 162.
65. Some 14 years later, on 9 August 2019, the Applicant lodged a further claim for the war widows’ pension – Exhibit 1 T46.1 pp. 168 – 176.
66. Attached to the claim was a document prepared by Mr John Sutton, Compensation and Entitlement Advocate – Exhibit 1 T46.2 pp. 177-179. So far as is relevant, Mr Sutton made the following submissions – Exhibit 1 T46.2 p. 179:
“It is my contention that Mr Kuhn was affected by undiagnosed PTSD and that he was discharged from the RAAF with looming mental health issue’s which affected both his and his families lives for many years. Mr Kuhn was discharged from the RAAF as a Compassionate Discharge whereas it is my belief that he should have been awarded a Medical Discharge. If his discharge would have been the latter and his medical condition of PTSD had been correctly diagnosed and had been an accepted condition by DVA, it would have at least allowed Mr Kuhn the opportunity to have ongoing medical treatment and eventually the final outcome may have been different. Mr Kuhn’s long standing undiagnosed PTSD would go a long way in explaining his irrational and iritic behaviour such as his excessive drinking, smoking and his fearless thrill seeking adventures in the operation of motor vehicles and ultimately leading to his death in an aircraft accident.”
67. On 3 September 2019 the Applicant’s claim was denied by a Delegate of the Respondent – Exhibit 1 T47 pp. 189 – 193. In rejecting the Applicant’s claim, the Delegate referred to a 27 September 1993 decision of the Veterans’ Review Board (the Board) which rejected an earlier claim by the Applicant. The Delegate accepted the following earlier findings of the Board:
(a)there was evidence that the veteran suffered from a psychiatric illness;
(b)there was nothing in the veteran’s behaviour on the day of the accident to suggest he was then affected by such an illness;
(c)the cause of the aircraft crash was pilot error, the aircraft was not suitable for the manoeuvres then being carried out;
(d)the evidence suggests the veteran’s death was pilot error rather than suicide.
68. The Applicant sought review by the Board, and on 17 March 2020 the Board affirmed the Respondent’s decision of 3 September 2019 - Exhibit 1 T52 pp. 205 - 213. In reaching this conclusion, the Board made the following findings:
(a)the Applicant was eligible to apply for a widow’s pension;
(b)the “kind of death” suffered by the veteran was multiple injuries;
(c)the veteran was not unable to obtain appropriate clinical management for PTSD whilst serving in the RAAF;
(d)the Board was not satisfied that it could be stated as a fact that the veteran was piloting the aircraft that crashed;
(e)there was no evidence that the veteran experienced a potentially traumatic event during his operational service;
(f)the medical evidence suggests that the veteran may have been suffering from a personality disorder;
(g)the Board was not satisfied that a diagnosis of PTSD was properly before it for consideration
(h)even if it is accepted that the veteran suffered from PTSD, there is no evidence he was suffering mood swings on the day of the crash, that he was in control of the aircraft or that he somehow disturbed the functioning of the aircraft. Both Queensland Police and the Coroner attributed the crash to pilot error. The hypothesis that the veteran was suffering from PTSD, piloted the aircraft and deliberately crashed the aircraft was therefore not reasonable.
69. The Board concluded that it was not satisfied that there was a diagnosis of PTSD, and, accordingly, affirmed the decision of the Respondent.
70. On 28 May 2020, the Applicant applied to the Tribunal for a review of the Board’s decision – Exhibit 1 T1 pp. 1 – 9.
FURTHER EXPERT EVIDENCE
Introduction
71. The Tribunal has also been presented with reports and evidence from independent experts.
72. The Applicant provided the Tribunal with a report dated 1 March 2021 from Dr Greg Apel, psychiatrist and Dr Geoff Dell, safety specialist, dated 24 November 2020.
73. The Respondent has provided the Tribunal with a report dated 7 August 2021 and a supplementary report dated 10 November 2021 from Dr Marty Ewer, psychiatrist.
74. All of the above independent experts were called to give evidence at the Hearing and were subject to cross-examination.
Dr Greg Apel
75. Dr Apel was provided with “a significant file” of the veteran’s medical records, including service records in the period 1969 – 1970. He was also given material prepared by the Applicant, the veteran’s mother, the reports of Dr Gluckman and Dr Troup, the coronial inquest, the report of Dr Dell and a report by Dr Albert Palazzo.
76. At the outset Dr Apel noted that the matter had a number of layers of complexity, one being the passage of time and other being the inability to interview the veteran – Exhibit 6 p. 221.
77. Dr Apel also referred to the practice of psychiatry having evolved significantly over time. It was noted that in the past there was not the medical interest or capacity to treat less than grave psychiatric illness and the diagnosis of PTSD was first introduced into DSM-III in 1980 – Exhibit 6 p. 221. It was also noted that diagnosis of PTSD has evolved slowly – Exhibit 6 pp. 221 – 22:
“However, I note as a psychiatrist who was in training and in the early practice of psychiatry in this period, the diagnosis of PTSD was not widely grasped and its full ramifications not recognised for possibly a further 10 or 15 years after this. It has taken time and experience for the psychiatrists and psychologists to fully digest the pervasiveness and gravity of post-traumatic issues.”`
78. After outlining background information, Dr Apel then addressed specific questions that where posed. The first question was whether the veteran, in his opinion, suffered from PTSD or other service related psychiatric illness secondary to his service in South Vietnam. In response to this Question, Dr Apel opined as follows – Exhibit 6 p. 223:
“I would consider this a reasonable hypothesis. This is based on the points that:
He was generally well as far as we can gather, prior to enlistment…Service records indicate a young man who was doing reasonably well and had adapted to service life and was seeing this as a long-term career. Over the duration of his 5 years in the air force, his reports are of deterioration to a man with a poor attitude and lack of responsibility, seeking early compassionate discharge and taking an overdose with suicidal intent. As such, there is some evidence of a man who was generally well before the air force and going to Vietnam, and strong evidence of a functional decline after this time.
His symptoms post discharge are non-specific. Excessive use of alcohol, excessive smoking, rage attacks and chronic insomnia and irritability of mood and depression, at times being anxious are non-specific symptoms that could arise with PTSD or a Major Depressive Disorder or personality problem, all compounded by Alcohol Use Disorder. It would appear his functional level was quite impaired at times and he was capable of poor judgment.
A diagnosis of PTSD is difficult to make without at least some pathognomonic features of traumatic memories of an intrusive nature, traumatic nightmares, some emotional numbing, irritability and excessive arousal, especial associated with triggering reminders, some of these acute features settle and the more common chronic scenario of irritability and emotional withdrawal, difficult functioning and maintaining concentration and poor judgment with a degree of impulsivity.
As such Mr Kuhn’s symptoms are consistent with PTSD but are not pathognomonic of it. Alternative explanations would be that he suffered from Major Depressive Disorder that has been present since his Vietnam service. He has never received specific treatment for this and did not see a psychiatrist, and it is a plausible hypothesis that his depression aggravated by alcohol has been present since the time of his military service.
A third is that he suffers from Anxiety Disorders such as Panic Disorder and Agoraphobia. This is less likely given his capacity to function in retail roles, engaging in the hobby of flying a plane, etc.
The fourth hypothesis is that all of the above can be explained by alcohol dependence and that his difficulties arising in Vietnam and turning 18 and alcohol becoming available to him and all else has arisen secondary to this. This could be explanatory of his irritability and insomnia. The hypothesis is possible but not entirely likely. Firstly, there is not a progression in the condition as one would expect with alcohol dependence with sufficient gravity to cause such diversity of psychiatric symptoms. This is inevitable over time, with progressive impairment. To be an alcoholic to this degree, I do not feel would be consistent with his engaging to obtain a pilot’s license. I do not at any point have evidence of physiological dependence on alcohol.
In conclusion, I feel whilst the evidence is certainly not overwhelming, the hypothesis that can clearly be made is that this man has been psychiatrically unwell since his time in Vietnam. He was generally well beforehand but never regained his balance since.
I think it is reasonable to conclude that PTSD is a plausible hypothesis in this situation…”
79. Dr Apel then went on to consider whether the veteran’s PTSD was causally related to his death and opined that there were multiple pathways to link the veteran’s mental health to the aeroplane crash – Exhibit 6 pp. 225 – 226.
80. The first was poor judgment on the part of Mr Niebling to give the controls of the aircraft to the veteran who had neither the experience or skills to attempt the manoeuvre that resulted in the crash of the aircraft.
81. The second was that the veteran’s judgment was affected by his psychiatric illness. Dr Apel noted that the records disclosed that the veteran could display a “breezy superficial arrogance in anxiety provoking situations, but was misunderstood in having confidence in his skills which in practice was not there.”
82. The third possibility was the crash was a suicide attempt. Dr Apel opined that this was possible but there was no evidence of such intent.
83. Dr Apel concluded as follows – Exhibit 6 pp. 225 – 226:
“Of all of these, all three are realistic possibilities. If the issue is of better judgment or human error then it is nothing to do with his military service. However, I think I would agree with the position of Dr Troup that certainly impulsivity and poor judgment are quite characteristic of PTSD and support the hypothesis…
As such, whilst matters could not be certain I believe there is a reasonable hypothesis that causal linkages can be made here that there is reasonably strong evidence that he suffered from PTSD subsequent to his Vietnam service. I think there is modest evidence that his misjudgement second to his PTSD was a significant contributor to his death whilst piloting a light aircraft in April 1988.”
84. Dr Apel’s testimony at the Hearing is dealt with below.
Dr Marty Ewer
85. The Tribunal has also had the benefit of a report dated 7 August 2021 by Dr Marty Ewer, psychiatrist – Exhibit 14.
86. Dr Ewer was briefed with copious documentation, and first opined that the veteran was suffering from a psychological condition when he returned from Vietnam. However, it was less clear to Dr Ewer if the veteran was suffering from a psychological condition at the time of his death – Exhibit 14 p. 665.
87. Next, Dr Ewer opined that the veteran may have been suffering from an alcohol abuse disorder when he returned from Vietnam. Dr Ewer then dealt with the question of possible PTSD – Exhibit 14 p. 666:
“Mr Kuhn’s history contains features consistent with the diagnosis of post-traumatic stress disorder. For example, he may have been exposed to traumatic events in Vietnam that met criteria A in the DSM 5. His wife said he was disturbed during sleep. There is evidence of negative alterations in mood, but it is unclear whether these were associated with the traumatic events. There is a history of depression and anger. There is evidence of reckless behaviour. Having made these observations, it is important to point out that this information alone is insufficient to make the diagnosis of post-traumatic stress disorder.
There is mention of Mr Kuhn’s suffering from depression and his wife said he had electrical treatment in 1987 (which I assume is ECT). This would suggest significant depression that would attract the diagnosis of a major depressive disorder. I say this based on the treatment he had. There is insufficient information available to me to make this diagnosis. I note there is a history of his brother having to prolonged ‘nervous breakdowns’ and these may have been depressive episodes.
In summary he may have been suffering from PTSD. It is highly possible that he was suffering from alcohol abuse disorder. It is highly possible that he was suffering from a major depressive disorder. To say he probably was suffering from any given psychiatric disorder is speculative.”
88. In response to further Questions, Dr Ewer opined that he could not say, on the balance of a reasonable degree of medical probability, that the veteran was suffering from a psychiatric disorder at the time of his death – Exhibit 14 p. 667.
89. As to the possibility of a causal linkage between the veteran’s mental health and the circumstances of his death, Dr Ewer opined as follows – Exhibit 14 p. 668:
“First, there is evidence that he had significant psychiatric symptoms when he returned from Vietnam. Second, there is evidence that he engaged in risky behaviour after he returned from Vietnam. There is evidence that people with a history of trauma, engage in risky behaviour. Third, there is evidence that he was in control of the plane on the day he died and from what I understand, the manoeuvre was a risky one. It is my understanding that the manoeuvre ended as it did because the carburettor failed. This would make it unlikely that it was a suicide attempt.
If there was evidence that Mr Kuhn was suffering from a post-traumatic stress disorder at the time of his death, I think there would be a stronger case for suggesting a link between his metal state and his death.
In the absence of more information, in my opinion, proposing a connection between a psychiatric disorder suffered by Mr Kuhn and the circumstances of his death is a possibility or speculation.”
90. Dr Ewer’s attention was drawn to Dr Apel’s report and his view that it was reasonable hypothesis that the veteran suffered service-related PTSD. In response, Dr Ewer opined as follows – Exhibit 14 pp. 668 – 669:
“I think the conditions that Dr Apel considered are quite reasonable and I can understand his reasoning. I think it is reasonable to hypothesise that Mr Kuhn suffered from PTSD as a result of his service. I also think it is reasonable to hypothesise that he may suffered from a major depressive disorder. Dr Apel ruled out the possibility of an alcohol abuse disorder.
I agree that the above conditions are possible. If Dr Apel is stating that he believes there is evidence that Mr Kuhn met the diagnostic criteria for these conditions, I would disagree with that, because I have not seen the evidence supporting this.”
91. Dr Ewer also agreed with Dr Troup that the veteran’s impulsivity and poor judgment could be reasonably linked to a diagnosis of PTSD. In Dr Ewer’s opinion the link was a possibility rather than a probability – Exhibit 14 p. 671.
92. Dr Ewer agreed with Dr Apel that there is no strong evidence that the veteran’s misjudgement secondary to PTSD was a significant contributor to his death. It was unlikely, in Dr Ewer’s opinion, that the veteran’s death was due to suicide. He opined that “Dr Apel’s opinion is at the level of a possibility” – Exhibit 14 p. 671.
93. At the request of the Respondent, Dr Ewer prepared a supplementary report dated 11 November 2021 – Exhibit 16.
94. In response to further Questions, Dr Ewer gave the following opinions – Exhibit 16 pp. 690 – 692:
(a)given the lack of contemporary information, Dr Ewer could not say if the veteran was suffering from a major depressive disorder and could not make a diagnosis to that effect;
(b)there was insufficient information to make a diagnosis of PTSD;
(c)there was no evidence that the veteran was suffering from PTSD at the time of the plane crash;
(d)there was insufficient evidence to conclude the veteran’s cause of death was a suicide attempt.
Dr George Dell
95. The Tribunal has also been presented with a report dated 24 November 2020 from Dr Geoff Dell, an aircraft safety specialist. Dr Dell stated that he had been investigating air flight safety incidents and accidents since 1979 – Exhibit 3 p. 73.
96. Dr Dell concluded that it was very unlikely that the pilot-in-command was flying the aircraft at the time of fatal crash – Exhibit 3 p. 74.
97. In reaching this conclusion, Dr Dell proffered the following reasons – Exhibit 3 pp. 74 – 75:
“a. The Australian Transport Safety Bureau (ATSB) , in the report of their investigations of the crash…reported that the seat of the pilot-in-command (PIC) was found to be 5 notches from the forward-most seat position, and the results of subsequent trials ATSB conducted using an equivalent PA-28 aircraft and pilots of equivalent stature to the two front seat occupants of VH-EJK , caused ATSB to conclude: ‘The position to which the pilot-in-command’s seat was adjusted was such that it could have been difficult to him to manipulate the flight and engine controls’…
2. It is very possible the right seat occupant was flying the aircraft at the time of the crash.
This opinion is based on the following:
a.the above-mentioned trials, reported in the ATSB report…indicated that due to the seat position of the right front seat, ‘the right front seat occupant should have been able to comfortably manipulate the engine and flying controls of the aircraft’.
b.The ATSB report…also reported that the right front seat occupant had previously flown 33 hours dual (ie with an instructor pilot in the other seat) and 3.5 hours solo, both in a Cessna C152 aircraft. The Cessna C152 and Piper PA28 are both popular ab-initio pilot training aircraft with roughly similar flying characteristics and performance. In my opinion a person with 36.5 hours in a C152 ought to have been able to maintain safe level flight if flying in a PA28…
e. It is possible the pilot-in-command of PA28 VH-EJK similarly trusted his passenger, given the passengers 36.5 hours flying experience, and allowed him to take the controls of the aircraft. It may also explain why the PIC’s seat was adjusted back to the 5th notch, if the PIC’s trust was sufficient robust, however misguided.”
ISSUES
98. Pursuant to s 13(1) of the Veterans’ Entitlements Act 1986 (Cth) (the Act), where, inter alia, the death of a veteran is war-caused, the Commonwealth is liable to pay pensions by way of compensation to the dependants of the veteran.
99. The Tribunal has to resolve in this matter three issues:
(a)antecedent issues;
(b)whether the veteran’s death was war-caused; and
(c)whether the veteran’s death resulted from serious default or wilful act of the veteran pursuant to s 8(3).
.
LEGAL FRAMEWORK
100. As explained above, s 13 provides, inter alia, that when a veteran’s death is war-caused, the Commonwealth is liable to pay a pension to the dependants of the veteran. “Dependant” is defined by s 11(1)(c) to include the widow of a veteran.
101. Subparagraph 7(1)(a) of the Act provides that a person who has rendered operational service shall be taken to have rendered eligible war service while the person was rendering operational service.
102. It is not contested that the veteran rendered operational service whilst serving in South Vietnam from 20 April 1968 to 16 April 1969.
103. The death of a veteran is taken to be “war-caused” if, inter alia:
“(f) the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or war-caused disease, as the case may be…” – s 8(1)(f).
104. Importantly, the Act contains provisions facilitating proof of the relationship between death and war-service.
105. Subsection 120(1) of the Act provides that where a claim under Part II for a pension in respect of the death of a veteran relates to operational service by the veteran, the Respondent shall determine that the death was war-caused, unless it is satisfied beyond reasonable doubt that there is not sufficient ground for making that determination.
106. Subsection 120(3) provides that in applying subsection (1) in respect of the death of a veteran, the Respondent shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the death was war-caused if the Respondent is of the opinion that the material does not raise a reasonable hypothesis connecting the death with the circumstances of the service rendered by the veteran.
107. Subsection 120(3), however, must read in conjunction with s 120A. Subsection 120A(3) provides that for the purpose of s 120(3), an hypothesis connecting the death of a person to the circumstances of any service rendered by a person is reasonable only if there is in force a Statement of Principles (SoP) determined under s 196B(2) that upholds the hypothesis.
108. Subsection 120A(3) must be read subject to s 120A(4). Subsection 120A(4) provides that s 120A(3) does not apply in relation to a claim if the Repatriation Medical Authority (the Authority) has neither determined a SoP nor declared that it does not propose to make such an SoP.
109. Section 196A establishes the Authority. The main function of the Authority is to determine SoPs – s 196B(2).
110. If the Authority is of the view that based on available sound medical-scientific evidence that it is more probable than not that a particular disease, injury or death is related to the relevant service rendered by the veteran, the Authority must determine an SoP setting out:
·the factors that must as a minimum exist; and
·which of those factors must be related to the service rendered by the veteran,
before it can be said that a reasonable hypothesis has been raised connecting the injury, disease or death of that kind with the circumstances of the service – s 196B(2).
111. A factor causing, in this case, a death, is related to service rendered by a person if it constitutes one or more of the seven circumstances outlined in s 196B(14).
112. In understanding the role and use of SoPs it is helpful to refer to the following observations of Heerey J at first instance in Deledio v Repatriation Commission (1997) 47 ALD 261 at 275:
“It is necessary to repeat that the SoP has no function in relation to proof or disproof (under s 120(1)) of the particular facts of a veteran’ case. The SoP’s function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent – so that the SoP can ‘uphold’ the hypothesis. In the words of the minister (Hansard, 9 June 1994 at 1808) the SoPs were intended to ‘provide the template within which the individual’s claims will be determined’. Put another way, the SoP is a subset of proved (Bushell at 414) or known (Byrnes at 571) scientific fact. Where a SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact.”
113. The methodology to be adopted in reaching a decision mandated by ss 8, 13 and 120 as to whether a death is “war-caused” was explained on appeal by Beaumont, Hill and O’Connor JJ in Repatriation Commission v Deledio (1998) 83 FCR 82 (“Deledio”) as follows (97 – 98):
“1. The Tribunal must consider all of the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11)…
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by s 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused…If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
114. The Deledio methodology is a helpful tool but is clearly not a substitute for complying with the requirements of the Act. To apply the Deledio methodology in a mechanistic manner and without proper regard to compliance with the Act would lead a decision-maker into error: Dunlopv Repatriation Commission [2003] FCAFC 201 at [33], Hardman v Repatriation Commission [2005] FCAFC 83 at [32].
115. It is important to highlight this caveat as the suggestion made by the Full Court in Deledio that if there is no SoP the application must fail, has been recognised as being incorrect – Woodward v Repatriation Commission [2003] FCAFC 160 at [55]. If there is no SoP then the question of causation falls to be determined under s 120(1) and (3) rather than s 120A – Repatriation Commission v Hancock [2003] FCA 711 at [10] (Hancock).
116. There are antecedent inquiries required of the Tribunal before applying the Deledio methodology which were explained by the Full Federal Court in Collins v Repatriation Commission (2009) 177 FCR 280 (Collins) as follows [18]/284:
“It is common ground that there are necessarily antecedent inquiries before applying ss 120 and 120A as explained by the ‘Deledio principles’. They are:
1.whether the claimant was a veteran, or a dependant of a deceased veteran;
2.whether the veteran has suffered an injury or disease or has died..; and
3.…the cause of death or the ‘kind of death’ of the veteran..
117. Mansfield and Stone JJ, then went on to observe (at [20]/285):
“…those matters are to be determined on the balance of probabilities, or to the reasonable satisfaction of the decision-maker…”
CONSIDERATION
Preliminary issues
118. As explained in Collins it is necessary to deal with certain antecedent threshold issues.
119. First, it is not contested that the Applicant is the widow of the veteran and was dependant on him at the time of his death.
120. Second, it not contested that the veteran rendered operational service whilst serving in South Vietnam between 1968 - 1969.
121. Third, it is also not contested that the veteran died on 21 April 1988 and that his Death Certificate lists his cause of death as “multiple injuries” – Exhibit 1 T26 p. 81.
122. Fourth, the cause of death for the purposes of ss 120 and 120A requires an inquiry into the “kind of death” met by the veteran – s 120A(4).
123. The “kind of death” for the purposes of s 120A(2) and (4) refers to the medical cause or causes of death. It is not made by applying s 120, s 120A or any SoPs. It is made independently of them- Collins at [47]/289.
124. Thus, in Repatriation Commission v Codd (2007) 95 ALD 619 (Codd), the veteran was killed at a level crossing in a collision with a train. The post-mortem listed the cause of death as “multiple injuries including brain damage”. The veteran had rendered operational service and accepted conditions of chronic eczema, labile hypertension and had infected tonsils. The veteran also suffered from alcohol dependence and abuse. The Tribunal found that the kind of death was road accident and, as there was no relevant SoP, determined the issue in accordance with s 120(1) and (3).
125. In rejecting that the “kind of death” of the veteran was a road accident, Gordon J gave the following reasons – 625 - 627:
“[31] The phrase ‘kind of death met by the person’ in s 120A(4) asks a causative question. It is not a question about whether the death was slow, fast or the like. It ask ‘questions of medical causation’ about the cause of death and does so in a particular context – the VE Act and, in particular, Pt VII of the VE Act…
[32] The notion of ‘causing’ has been said to be one of common sense…
[33] The answer to the question of causation posed by s 120A(4)…requires identification and examination of the purpose for which the question is being asked. The purpose or reason for asking the question is not at large. The nature and scope of the purpose for asking the question is to be found in the VE Act…the purpose for which the question in s 120A(4) is being asked, is to be found in s 120A(3)….one identifies the nature and purpose of the causal question in s 120A(4) (the ‘kind of death met by the person’) by reference to the matters identified in s 120A(3) – a hypothesis connecting a veteran’s death with circumstances of that veteran’s service…
[35] What then is the purpose for which the question in s 120A(4) about the kind of death met by the person is being asked? As a matter of statutory construction the answer is that the purpose is to ascertain whether or not there is a SoP which addresses the question of the reasonableness of the hypothesis about the connection between the cause of death of the veteran and the circumstances of the service.
[36] The ‘kind of death met by the [veteran]’ that is to be identified requires examination of the causal connection between the death and the circumstances of the service. In particular, it requires examination of the relevant hypothesis that is said to provide the causal link between death and service. In the present case, the hypothesis was that the death was war-caused and that cause, or at least one of the causes of death, was the veteran’s ‘service related alcohol habit [,] the effects of which [had] impaired his concentration and contributed to the fatal collision’…
[40] In the present case, the kind of death met by the veteran was not death by road accident but death from (in the sense of arose out of, or was attributable to) alcohol dependence or alcohol abuse.”
126. It is also the case that there may be more than one medical causes for a veteran’s incapacity or death – Collins at 289 – 290 per Mansfield and Stone JJ.
127. Further, in reaching a conclusion on the ‘kind of death’ the Tribunal is not bound by terminology used in the Death Certificate. The Tribunal must consider the medical evidence presented and reach an independent conclusion based on that evidence in the context of the specific inquiry mandated by the Act – see generally, Willman and Repatriation Commission [2007] AATA 1480 at [23] and Hill v Repatriation Commission (2009) 177 FCR 434 (Hill) [61]/445.
128. In this matter the Applicant contends that “multiple injuries” is the “kind of death” suffered by the veteran, and not aircraft crash or PTSD - Applicant’s Statement of Facts, Issues and Contentions (ASFIC) para 11, Applicant’s Outline of Submissions in Reply (AOSR) para 5.
129. In support of this proposition, the Applicant submits that the Full Court in Collins did not endorse Gordon J’s conclusion in Codd as to the proper characterisation of the death in that case, namely the kind of death was alcohol dependence or alcohol abuse – AOSR para 3.
130. The Tribunal does not agree with this submission.
131. First, a plain reading of the judgments in Collins clearly illustrate that the Full Court saw no error in the characterisation of kind of death reached by Gordon J. Mansfield and Stone JJ made the following observations – [48]/289:
“In Codd, it was concluded that the decision of the Tribunal that the kind of death was ‘death by road accident’ was in error. The Tribunal had not correctly construed ss 120 and 120A of the VE Act. The Tribunal had not asked itself what was the medical cause (or causes) of the death so it had not then correctly considered whether there was any applicable Statement of Principles (as there may have been) and then applied the Deledio principles in deciding whether the death was war-caused. In Hancock also, it was concluded that the Tribunal had wrongly applied ss 120 and 120A in determining the kind of death (see per Selway J at [14] – [16]). Each of those decisions reflects the analysis referred to above, even though the focus in each of them was upon the ‘kind of death’ because the Tribunal itself had focused on that question.”
132. Second, attention need also be given to the Full Court decision of Hill. The Full Court, as in Collins, was constituted by Mansfield, Stone and Edmonds JJ. Their Honours made the following observations – [72]/446:
“The legal error of the Tribunal in this instance is similar to that found by Gordon J in Codd. In that case, the veteran died from injuries sustained in a road accident. The Tribunal found that the cause of death, or the kind of death, was ‘death by road accident’. It thus failed to properly address the claim that the veteran’s death in the road accident was caused by war-caused alcohol dependence which so impaired the veteran’s concentration as to have contributed to the road accident.”
133. Initially, the hypothesis relied upon by the Applicant was as follows – ASFIC para 12:
(a)the veteran suffered a mental health condition, namely PTSD and/or Major Depressive Disorder (MDD) which causally contributed to the aircraft accident in which he was killed; and
(b)as to causation
i.the veteran experienced Category 1A and 1B stressors before the clinical onset of PTSD/MDD; and/or
ii.the veteran worked in a hostile or life-threatening environment for a period of at least four weeks before the clinical onset of PTSD/MDD.
134. The hypothesis relied upon in the Applicant’s Outline of Submissions were worded slightly differently – AOS para 20:
(a)the veteran suffered from a war-caused mental disorder; and
(b)the veteran’s death…resulted from his judgment being affected because of his disturbed state of mind which arose out of his war-caused mental disorder with his affected judgment adversely affecting his ability to pilot the plane.
135. Clearly, the Applicant’s case is predicated on the veteran suffering from a war-caused mental disorder. The label placed on that mental disorder most frequently has been PTSD. It is also the case, that the Applicant’s hypothesis is predicated on the veteran piloting the plane at the time of the crash and being afflicted with a war-caused mental condition, which condition was a contributing cause of the accident.
136. It is not disputed that the veteran died of severe injuries following the plane crash. Central to the Applicant’s case is that the veteran suffered mental injuries as a result of his operational service in South Vietnam and that his mental instability resulted in him taking over the controls of the plane and crashing the plane. As the Tribunal understands it, the Applicant’s case is that the veteran’s mental instability resulted in him engaging in dangerous risk-taking activities that threatened his life and others. This will be dealt with in detail below.
137. It is tolerably clear to the Tribunal, based on the analysis of Gordon J in Codd, that the “kind of death” in this matter is PTSD. If the Tribunal were to find that the “kind of death” was either aircraft accident or multiple injuries, the Tribunal would be in error for the reasons Gordon J outlined in Codd and which are quoted at length earlier.
138. The Respondent contends that before the Tribunal can move to consider the Deledio steps it must be satisfied, on the balance of probabilities, that the veteran in fact suffered from PTSD. Only after making a positive finding to that Question is it permissible, submits the Respondent, for the Tribunal to go further. The Respondent also submits that, based on Dr Ewers reports, and evidence, the Tribunal could not be reasonably satisfied that the veteran was suffering from PTSD at the time of his death. – RSFIC para 104.
139. The Applicant, however, submits that the issue of whether the veteran suffered from a clinically significant disorder of mental health is not to be resolved to the Tribunal’s reasonable satisfaction.
140. In support of this submission, the Applicant refers the Tribunal to Onorato v Repatriation Commission [2011] FCA 1507, a decision of Katzmann J.
141. Mr Onorato died of ischaemic heart disease (IHD). He was a member of the ADF in World War II. A claim was made by his widow. Mrs Onorato submitted that her husband suffered not only from IHD but also hypertension and an anxiety disorder. The hypothesis raised was that Mr Onorato suffered an anxiety disorder from his war service, which in turn caused hypertension, resulting in IHD and then death. It was not disputed that Mr Onorato died from IHD and that he suffered from hypertension. However, the Tribunal rejected the claim that Mr Onorato suffered from an anxiety disorder. In reaching this conclusion, the Tribunal found that s 120(4) applied, and it had to be reasonably satisfied that Mr Onorato suffered a diagnosable anxiety disorder.
142. Katzmann J summed up the central issue to be determined – at [18]:
“The issue raised by the first question in the notice of appeal is whether, in determining whether Mr Onorato suffered from anxiety disorder, the tribunal erred by applying the standard of proof in s 120(4) of the Act, rather than s 120(3). More particularly, it is whether the existence of the disorder should be determined according to the standard of ‘reasonable satisfaction’ imposed on Mrs Onoarto s 120(4), or its non-existence established by the Commission ‘beyond reasonable doubt’ by application of the test imposed by s 120(1) and qualified by s 120(3).”
143. Mrs Onorato contended that once the Tribunal had determined to its reasonable satisfaction in accordance with s 120(4) the kind of death suffered (in that matter IHD, in this matter PTSD), the subsection was exhausted. The Tribunal was then required to considered the claim connection between the disease and Mr Onorato’s service in accordance with s 120(3) – at [19].
144. Katzmann J made the following observations (at [24]):
“…the questions of whether the death occurred and whether the death resulted from ischaemic heart disease (that being the kind of death which triggers the operation of the SoP), were questions to be determined according to the standard of reasonable satisfaction in s 120(4). But where, as here, the hypothesis connecting the death from ischaemic heart disease raised questions about the existence of antecedent facts (one of which in this case is the presence of an anxiety disorder), those questions were not to be determined at this stage of the inquiry by the application of the reasonable satisfaction standard.”
145. His Honour referred to Collins, which was also a matter involving a claim by a widow whose husband it was said developed PTSD resulting in hypertension and then dying of a myocardial infarction following the development of IHD.
146. The Tribunal in that matter found that Mr Collins did not suffer from PTSD because he did not satisfy two of the criteria in the SoP. Therefore, it was found that that there was no reasonable hypothesis connecting his death to his war service. The Full Court held that the Tribunal fell into error because it exceeded the task required of it pursuant to s 120(3) of the Act. In resolving competing medical opinions, it had engaged in a process of fact-finding at a point in its deliberations when it was not permitted to make such findings.
147. In summing up, Katzmann J made the following observations:
38 …Here the only antecedent questions to be established to the tribunal’s reasonable satisfaction according to s 120(4) were
(a) whether Mr Onorato was dead;
(b) whether he died from ischaemic heart disease;
(c) whether Ms Onorato was dependent on him at the time of his death; and
(d) whether he had engaged in operational service.
40 In Collins, as here, there was material before the tribunal that was capable of raising a reasonable hypothesis connecting the veteran’s death with his war service. That was evidence from a psychiatrist. There, as here, instead of forming an opinion as to whether the material did raise a reasonable hypothesis, the tribunal embarked on the task of weighing the evidence and deciding whether or not the veteran suffered from the particular anxiety disorder. As Emmett J put it in Collins (at [21]) that was not the task called for by the statutory provisions…
“Persistent avoidance of stimuli associated with the traumatic event(s) occurred , as evidenced by one or both of the following:
i. avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely related with traumatic event(s); or
j. avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s)…”
268. Having considered the Respondent’s submissions, the Tribunal now makes the following factual findings:
(a)the veteran served in the RAAF from 15 April 1966 until 2 April 1971;
(b)the veteran rendered operational service in Vietnam from 20 April 1968 to 16 April 1969;
(c)the veteran was an eyewitness to a person being killed (category 1B stressor), namely the death of another serviceman due to a landmine explosion on or about 14 February 1969 at Phan Rang Air Base, South Vietnam;
(d)the Applicant and the veteran were married on 12 December 1970;
(e)on 8 March 1971 the veteran took an overdose of Amitriptyline tablets;
(f)on 4 March 1983 the veteran was granted a student pilot licence in New Zealand which expired on 14 February 1985. At the time of his death he did not hold a pilot’s licence.
(g)the veteran had flown 33 hours dual and 3.5 hours solo in a Cessna C152 aircraft;
(h)the evidence presented points to:
i.the veteran suffering mental health problems on his return from Vietnam;
ii.those mental health problems were as a result of his war-service and, in particular, him experiencing a category 1B stressor;
iii.the preferable label for the veteran’s mental health condition is PTSD;
iv.the veteran was still suffering from PTSD at the time of his death.
(i)one of the symptoms of the veteran’s PTSD was engaging in risk-taking activities, which he did from the time he returned to Australia from South Vietnam until the day before his death;
(j)the veteran and two other persons were killed in an aircraft accident on 17 April 1988 in Brisbane;
(k)the aircraft was seen to taking dangerous manoeuvres immediately prior to the crash;
(l)the pilot-in-command was seated, at the time of impact, five notches back which rendered it difficult, if not impossible, for him to effectively pilot the aircraft;
(m)the veteran was piloting the aircraft when it engaged in dangerous manoeuvres resulting in the plane crashing and killing all onboard;
(n)the veteran’s judgment was impaired due to his war-caused PTSD, and thus the fatal accident was caused by the veteran’s PTSD;
(o)at the date of the veteran’s death, the Applicant was a dependant of the veteran.
269. Accordingly, there are no grounds for a finding that either one or more of the facts necessary to support the veteran’s hypothesis have been disproved beyond reasonable doubt or that the truth of any material fact which is inconsistent with the hypothesis has been proved beyond a reasonable doubt.
Serious default or wilful act
270. Normally, having concluded the Deledio methodology the task of a decision-maker has concluded, however in this matter, the Respondent draws to the attention of the Tribunal the operation of subsection 8(3) of the Act, namely:
“(3) Subsection (1) does not apply to the death of a veteran if the death of the veteran resulted from the serious default or wilful act of the veteran that happened after the veteran ceased, or last ceased, to render eligible war service.”
271. The Respondent’s submission is as follows. If the Tribunal makes a finding that the veteran piloted the plane when it crashed, as it has, then such a finding enlivens s 8(3) because there is evidence before the Tribunal that the veteran’s piloting of the plane was both illegal and premeditated. Thus, the veteran’s death resulted from a “serious default or wilful act” of the veteran, and, here, a wilful act – SR para 66.
272. The Respondent points out that flying a plane without a licence, unless under the supervision of a licenced instructor, was an illegal act in 1988. Given the obvious danger to passengers, persons in other aircraft and persons on the ground, such behaviour warrants severe condemnation. The seriousness of such behaviour is underlined by various laws concerning piloting aircraft in Australia which were in force at the time of the accident. The following laws were drawn to the attention of the Tribunal.
273. Sections 14 – 15 of the Crimes (Aircraft) Act 1963 (Cth)provided:
“14. A person shall not do an act or thing capable of prejudicing the safe operation of an aircraft to which this Part applies with intent to prejudice the safe operation of that aircraft.
Penalty: Imprisonment for fourteen years.
15.A person who does an act or thing capable of prejudicing the safe operation of an aircraft to which this Part applies:
(a) with intent to prejudice the safe operation of that aircraft; and
(b) with intent to cause to cause the death of a person with reckless indifference to the safety of the life of a person;
Is guilty of indictable offence punishable by death.”
274. The penalty of death was replaced with life imprisonment in 1973.
275. Further, the Respondent contends that the Civil Aviation Safety Regulations provided in 1988 – SR para 71:
“A person shall not manipulate the controls of an aircraft in flight unless the person is
(a)the pilot assigned for duty in the aircraft; or
(b)a student pilot assigned for instruction in the aircraft.
Penalty: $2,500.”
276. The Respondent points out that the $2,500 penalty is now 50 penalty units or $13,750 - SR para 71. Further, it is submitted that performing an act that draws a penalty of 50 penalty units, particularly when it endangers the lives of others, warrants severe condemnation – SR para 72.
277. The Tribunal’s attention was drawn to the testimony of the Applicant (referred to above) when she testified that her husband told her the day before the crash that he intended to fly the plane even though he did not have an Australian pilot’s licence and his New Zealand pilot’s licence had lapsed in 1985. It was also observed that the veteran was not trained to perform any of the manoeuvres that were observed, and those manoeuvres were effected in a plane that was not capable of them – SR para 73.
278. In conclusion, the Respondent submits that if the veteran was flying the plane, though unlicensed and unqualified, he did so with intent, thereby contributing to, or causing, his death. Moreover, it is submitted, that there is no evidence before the Tribunal that the veteran was not psychologically responsible for his actions. It follows, it is submitted, that if a finding is made pursuant to s 8(1) that the evidence raises a reasonable hypothesis that the veteran’s death was war-caused, which is dependent on the veteran flying the plane, then a further finding should be made pursuant to s 8(3) that s 8(1) does not apply – SR paras 74 – 76.
279. The Respondent drew the Tribunal’s attention to the following observations of Morling J in McPherson v Repatriation Commission [1989] FCA 84 at [18] (McPherson):
“To my mind, in the context of the Act ‘wilful act’ connotes conduct which is blameworthy and deserving of serious censure. The effect of depriving a veteran of a pension to which he is otherwise entitled is to penalise him severely. The legislature cannot have intended that such a severe penalty should be visited upon a veteran in the absence of conduct warranting severe condemnation.”
280. McPherson was a case involving a veteran who enlisted in the Second World War falsely failing to disclose that he had club feet. Not only did Mr McPherson fail to disclose his condition on enlisting, but he subsequently failed to disclose it when making a further application. In addition, even though he was forced to march and suffered great pain as a result, he never disclosed his condition or complained. In short his patriotism resulted in him suffering greatly, and his failure to disclose was not brought about by malice or to gain an advantage, but, on the contrary to serve his country at a time of dire strife. Morling J, found that the motivation in failing to disclose or actually providing false information, was a relevant consideration:
21. In this passage the Tribunal draws a distinction between the appellant's conduct, and the motivation which lay behind it. In its opinion, it was the fact that he told lies and failed to bring his condition to the attention of his superiors that was determinative of the issue. His motivation was, as the Tribunal said, "beside the point".
22. In my opinion it was erroneous for the Tribunal to disregard the appellant's motivation. A veteran's motivation must be relevant to the question whether his conduct was such as to warrant him being deprived of a pension. In the present case, whether the appellant's conduct was so blameworthy and deserving of censure as to warrant depriving him of a pension could not properly be determined without regard to his motivation. If his motivation in suppressing information as to the condition of his feet had been, say, to advance his financial or other interests, his conduct in that regard might have been deserving of censure. But if his motivation for that conduct was a desire to serve his country in time of war it was well open to the Tribunal to find that his conduct was not so blameworthy as to warrant a finding that it was a "wilful act".
23. There is a danger in considering the nature and seriousness of the appellant's conduct in the cold light of s.9(6) without regard to the very special conditions which existed in time of war. It was unwise for the appellant to give wrong answers to questions relating to the condition of his feet and to suppress the fact that they gave him trouble. But I doubt whether it would have occurred to any young man in the war years that there was anything seriously wrong in what he did.
24. In my opinion, the Tribunal erred in law in concluding that the appellant's conduct disqualified him from receiving a pension without taking into account and giving due weight to his motive for engaging in that conduct.
281. The Applicant submits that the evidence supports a finding that the veteran intended to fly the plane. He previously held a restricted pilot’s licence in New Zealand and had flown solo on several occasions. Thus, the veteran had demonstrated the skills to fly the aircraft and previously had the necessary qualifications to do so – AOSR para 15.
282. It is further submitted by the Applicant that there is no evidence to support a finding that the veteran intended to crash the plane, rather the evidence supports a finding that the crash occurred due to his judgment being affected because of his disturbed state of mind which was arose out of his war-caused mental disorder – AOSR para 16.
283. The Applicant submits that sections 14 and 15 of the Crimes (Aircraft) Act 1963, require an intent to prejudice the safe operation of an aircraft, whereas the evidence does not support a finding that the veteran had this intention – AOSR para 17.
284. Section 228 of the Civil Aviation Regulations is a strict liability provisions not requiring any intent and only provides for a monetary penalty. It was therefore submitted that a breach of that provision would not amount to “serious default” – AOSR para 18.
285. Attention was also drawn to Dr Dell’s observation that previously it was not uncommon for a pilot to hand over the controls of an aircraft to a passenger if that passenger had some relevant flying experience. It was submitted that whether the veteran’s actions amounted to a “serious default” should be viewed in that context – AOSR para 19.
286. Finally, it was submitted that judging the veteran’s conduct by reference to circumstances and standards of 1988, and not by those prevailing now, or even with the benefit of hindsight, and taking into account the veteran’s mental health issues, the appropriate finding is that s 8(3) does not apply – AOSR para 20.
287. The Applicant drew the Tribunal’s attention to the following observations of Deputy President Forgie in McClure and Repatriation Commission [2000] AATA 292 (McLure):
“21.What is a "serious default"? The ordinary meanings of the word "default" include "… failure to act; neglect …" (The Macquarie Dictionary, 2nd edition, 1991). The word "serious" is defined, in so far as it is relevant, to mean "… 3. being in earnest; not trifling. 4. demanding earnest thought or application: serious reading, serious music. 5. weighty or important: a serious matter. 6. giving cause for apprehension; critical: serious illness …" (The Macquarie Dictionary, 2nd edition, 1991).
22.Reference was made to the expression "serious default" in the context of the Act in Repatriation Commission v Hayes (1982) 43 ALR 216 (Keely J) but its meaning was not considered. It was considered in Repatriation Commission v Levi (1994) 33 ALD 79 but Einfeld J did so as part of the composite expression "serious default or wilful act" and did not separate its component parts. He said of s. 9(3), which has a similar disentitling effect to s. 9(4) at 89:
"As I read the Act, the parliament intended by s 9(3) to exclude from entitlement to a pension those service personnel who were in a serious or significant way the deliberate creators or knowing authors of their own injuries or diseases; people who contracted their conditions while quite outside their proper functions and activities as members of the Australian armed services; people who brought upon themselves their injuries or diseases by acting in such manifest disregard of their duties as service personnel as to take themselves outside an entitlement to compensation at the hands of the Australian taxpayers for injurious events in their war service."
23.In Girlock (Sales) Pty Ltd v Hurrell (1981-82) 149 CLR 155, the High Court considered whether Mr Hurrell had suffered personal injury, without any "substantial default or wilful act" on his part, while he was travelling between his residence and his place of employment. Mr Hurrell had been injured when the motor vehicle he was driving came to be broadside across the lanes of traffic on the wrong side of a highway. His motor vehicle collided with another travelling in the opposite direction. Evidence was given before the Workers' Compensation Board of Western Australia that the percentage of alcohol in his blood would severely impair his ability to drive a motor vehicle.
24.There was no challenge to the Board's finding that Mr Hurrell's driving in that state amounted to a "substantial default or wilful act". It had also found that to drive on the incorrect side of the highway had almost compelled the collision and so was itself a "substantial default or wilful act ". Mason J did not consider that this conclusion could be maintained. He said at pages 166-7:
"In Bagot v Commissioner for Railways (1943) 44 SR (NSW) 173 at p. 175 Jordan CJ speaking of the phrase 'default or wilful act' in s. 7(1)(b) of the Workers' Compensation Act 1926-1942 (N.S.W.), a provision similar to s. 7(1a), though it did not contain the adjective 'substantial' said:
'In its present context, the purpose of the phrase is to relieve employers in certain circumstances from liability which is otherwise cast upon them to compensate employees for disabling injuries which they received whilst travelling to or from their place of employment. In these circumstances, I think that 'default' means failure by the worker to comply with a legal duty to be careful, the failure being of a kind inherently likely to cause disabling physical injury to himself, and in fact causing or contributing to the injury in question.'
This statement implicitly denies the proposition that an involuntary act can constitute a 'default', let alone a 'substantial default'. To drive on the incorrect side of the highway could, for many reasons, be a purely involuntary act and thus not in itself the subject of a 'substantial default or wilful act'. Of course, this Court can only set aside a finding of the Board which was not open on the evidence. But, putting aside the respondent's intoxication as a separate issue, for my part I cannot see that there was any evidence which went to establishing that the respondent's behaviour in driving on the wrong side of the highway amounted to a default. The respondent's intoxication must be seen as a separate and distinct issue because, even if he was on the wrong side of the highway as a consequence of his intoxication, that is not the same thing as saying that his behaviour in so doing itself amounted to a 'substantial default or wilful act' under the Act…"
31.In light of the general principles expressed in these cases in relation to the particular expressions and contexts with which they were concerned, I now return to s. 9(4) of the VE Act. A "serious default" might be thought to be a failure to act that it is not trifling. In view of the purpose of the Act to provide for the payment of pensions, benefits and medical and other treatment for veterans, it must be a failure that warrants severe condemnation for the effect of finding that there has been a "serious default" in the context of s. 9(4) is to penalise a veteran severely.
32.In determining what is and is not a serious default in the context of the Act requires a consideration of the whole of the circumstances surrounding the veterans' actions, or lack of action. His or her reasons for acting, or failing to act, in a certain way are relevant as are the standards of behaviour expected of a person in the circumstances in which he or she finds him or herself. It is apparent from what Morling J said in McPherson (see paragraphs (29), (30) above), that the person's conduct is to be judged by reference to the circumstances and standards prevailing at the time the relevant events occurred and not by reference to those prevailing at the time of the hearing or even with the advantage of the perfect vision given by hindsight.”
288. It is helpful to consider the factual matrix of this determination. Mr McLure served in the Australian Army for two years, and rendered operational service in Vietnam in the period 17 September 1969 to 17 September 1970. As a result of his war-service he developed psychoactive substance abuse and PTSD. Both conditions were accepted as war-caused diseases.
289. On 12 June 1972 Mr McLure was involved in a motor vehicle accident and was injured. As a consequence of the injuries he suffered, Mr McLure suffered from cervical spondylosis. It was accepted that the accident would not have occurred but for Mr McLure having suffered PTSD and/or psychoactive substance abuse. Consequently, Mr McLure’s cervical-spondylosis was accepted by the Tribunal as a war-caused disease.
290. On the afternoon and evening of 11 June 1972 Mr McLure was consuming alcohol first at the Surfers’ Paradise Beer Garden, then at a private party at Broadbeach. He also smoked some cannabis. – McLure at para 12 – 15 Mr McLure left the party at some time after 3:00 am on 12 June 1972 and was involved in the traffic accident shortly before 3:30am. The Tribunal was satisfied that Mr McLure’s blood alcohol concentration would have exceeded 0.05 at the time of the accident – McLure at para 44.
291. Mr McLure was involved in an argument with two young women at the party about the Vietnam War. After the argument he left the party as he was angry. His residence was only a short distance away and he determined to drive home. Whilst driving her overtook a car, but was still thinking about the argument he had with the young women. The road changed into a divided highway and the right hand wheel of his motor vehicle struck the kerb of the dividing strip. Mr McLure gave the following account of the accident – McLure at [17]:
"...I was in the right hand lane. In Vietnam we drove on the right hand side of the road. When I came back to Australia this could be confusing at times. That night my head was full of Vietnam and the right hand lane would seem the one to be in. This rocked the vehicle and caused my head to hit the driver's side window. This hurt like hell. I tried to straighten my thoughts out, but my ear was still hurting. I then put my hand up to my ear and saw that it had blood on it and felt a bit of my ear ripped. This seemed to make it hurt more and I thought, 'what else could go wrong'. This made me thing (sic) that it was pretty well the end of me. In despair, I fell down across the driver's seat and I veered the car across to the left hand side. I then put my foot on the brake intending to stop in the left hand lane. I then stuck my head up and saw that I was on the footpath, fence on the left, power poles on the right and saw that Shaster House was coming up quickly. I then put my foot on the brake a bit more and lay back down on the seat. That's about all I remember (sic) When I woke up in Southport Hospital and they asked me if I knew what happened I told them no. The more they told me about the accident, the more I remembered. I told them I must have gone to sleep. The whole time that the accident was occurring my head was filled with anger and frustration about my argument earlier in the evening. The next thing I know my car hit Shaster House." (Exhibit A, paragraph 10)”
292. He was admitted to hospital at 4:00am and remained hospitalised for 80 days.
293. Mr McLure was charged with, and convicted of, driving without due care and attention and a nominal fine was imposed.
294. Deputy President Forgie pointed out that in 1972 Queensland did not have a blood alcohol concentration limit of 0.05, nor even a limit of 0.08 – McLure at [46]. Whilst in Queensland in 1972 there was an offence of driving a motor vehicle whilst under the influence or liquor or a drug, that was determined by objective evidence such as a person’s observed behaviour, their speech, appearance or manner of driving – McLure at [47].
295. The Tribunal had before it no evidence of this nature and the Police reports had subsequently been destroyed. In those circumstances Deputy President Forgie was not satisfied that Mr McLure was driving his vehicle under the influence of alcohol or drugs - McLure at [48]. Moreover, Deputy President Forgie was also not satisfied that Mr McLure was in serious default in choosing to drive home a short distance when he was angry and there was no evidence to suggest he was under the influence of alcohol or drugs – McLure at [50]. Importantly for this matter, Deputy President Forgie then went on to make the following finding (at [51]):
“51. In any event, the accident did not result from any incapacity to drive on the night per se but from the disorientation and confusion caused by his PTSD. Accepting as I do that Mr McClure thought that he was in Vietnam, it was the effect of his becoming disoriented and thinking that he was in Vietnam, and so required to drive on the right hand side of the road, that was the ultimate cause of his having the accident. I am satisfied that his disorientation, and subsequent despair, were symptoms of his PTSD. That he suffered from that condition was not a matter over which he had any control. In view of the lack of evidence to suggest that he knew that he was suffering from PTSD at the time or that he had any reason to consider that his driving was likely to be impaired, I am not satisfied that his choosing to drive in those circumstances and driving as he did amounts to a serious default.”
296. As was pointed out in McLure (at [31]), a serious default must be a failure warranting severe condemnation, and not be characterised as a trifling matter. This is so, as the operation of s 8(3) is draconian, and has the effect of depriving the dependant of a deceased veteran of entitlement’s they otherwise would receive.
297. Attention should first be given to the Tribunal determination of Lynch and Repatriation Commission (1988) 8 AAR 240. This matter involved a person who had attempted to enlist for military service in Tasmania in 1941 but had been rejected for medical reasons. Mr Lynch then travelled to Melbourne and succeeded in enlisting on 16 October 1941. He gave deliberately incomplete and false answers as to his medical history. Nonetheless the Tribunal rejected a submission that any aggravation of Mr Lynch’s back condition resulted from his serous default or wilful act. In reaching this conclusion, the Tribunal made the following observations (at p. 243):
“18…it is entirely clear that he gave incorrect answers to the question was set out in that paragraph, and I am entirely confident that he did so deliberately, and with full knowledge of what he was doing. His actions must be seen in the context of the times. He was twenty one years old, from a small farming and mining community, and had been rejected for military service. In 1940 Germany had conquered most of Western Europe. In 1941 the 6th, 7th and 9th Australian Divisions were fighting in the eastern Mediterranean. Greece fell in April and Crete in May, with significant Australian losses….Mr Lynch wanted to take an active part in these momentous events.
19. Had Mr Lynch’s condition been contributed to in a material degree, or aggravated, for example by his deliberately shooting himself in the foot, or by injuries received in a drunken brawl while AWL for an extended period, I might have accepted the submission of Mr Smith. But that is not what happened to Mr Lynch….It is inconceivable that Parliament in 1921, with the First World War so fresh in the minds of its members, could have intended that a man who gave false information about his medical condition in order to enlist was thereby to be deprived of a repatriation pension.”
298. The same conclusion, on a not dissimilar factual matrix, was reached by Morling J in McPherson. As will be recalled, his Honour found that a “wilful act” connotes conduct which is blameworthy and deserving of serious censure. His Honour also found that a veteran’s motivation in (this case) providing false information, is relevant to the question whether his conduct was such as to warrant him being deprived of a pension. Finally, his Honour found that in considering the nature and seriousness of a veteran’s conduct, the very special circumstances which existed in time of war need to be appropriately factored in.
299. Here, of course, the aircraft accident occurred in 1988, long after the conclusion of the Vietnam War. The conduct in question, namely flying the aircraft, was not motivated by patriotism nor by altruism. The manner in which the aircraft was flown was, based on the evidence presented, dangerous and inappropriate. Indeed, the manoeuvres being performed were not the type that an inexperienced pilot could or should undertake, nor were they appropriate for the aircraft itself. Considered in this light, without more, the submissions of the Respondent are persuasive. However, the Tribunal needs, as Deputy President Forgie pointed out in McLure (at [32]), to consider the whole of the circumstances surrounding the veteran’s actions.
300. The Tribunal has found that the veteran was suffering from PTSD at the time of his death, and that his PTSD developed as a result of his war-service. Further, the Tribunal has also found that the veteran was piloting the plane immediately prior to it crashing and that as a result of his dangerous and inappropriate piloting, the plane crashed resulting in the death of three persons.
301. The Tribunal has also found that the veteran’s war-caused PTSD had so impaired his judgment that it was the genesis of his risk-taking and fatally dangerous piloting.
302. In Lynch and McPherson, the veterans were suffering from physical ailments. Their alleged wilful acts or serious defaults occurred prior to them rendering service. Their actions were intentional and with both veterans having a clear understanding of their misleading behaviour. Despite this, their actions were found not be wilful acts or serious defaults, because their motivation was patriotic and were committed at the height of World War Two when Australia was in mortal danger.
303. This matter is similar in some respects to McClure. In both matters the veterans served in Vietnam, and in both instances they suffered from war-caused PTSD. In McClure Deputy President Forgie found that Mr McClure’s motor vehicle accident arose not from his incapacity to drive but from the disorientation and confusion caused by his PTSD.
304. The Respondent’s submissions are predicated on the veteran’s actions in flying the plane were wilful and with intent. In that regard, the Respondent submits that there is no evidence before the Tribunal that he was not psychologically responsible for his actions.
305. Reference can be made to Ryan and Repatriation Commission [2010] AATA 230. Mr Ryan served in the Australian Army from 1944 to 1946 and suffered hearing loss for 20 years prior to his death. He died in July 1999 from injuries sustained when he was hit by a car while crossing a road near his home. It would appear that Mr Ryan attempted to cross the road against a “Don’t walk” sign. The car that struck Mr Ryan had the green light, and the accident occurred shortly before dawn while the street lights were still on.
306. It was contended that s 8(3) was engaged because it was a serious default by Mr Ryan to cross a busy road against a “Don’t walk” sign. It was submitted that Mr Ryan’s conduct constituted a wilful act on his part.
307. The Tribunal found that “wilful” connotes conduct that is intentional, or that the person apprehends its consequences – at [40]. The Tribunal made the following observations:
“42.The Commission asks us to conclude, from the fact that Mr Ryan went for a walk on route he knew well and crossed the road against a Don’t Walk sign away from the pedestrian crossing when there was a car approaching, that he must have wilfully placed himself in that situation. It may be possible to infer, from the circumstances in which it occurs, that an act is wilful but we do not accept that we can do so in this case.
43. According to Mrs Ryan, her husband was a happy person who had no reason to do himself harm, and there is nothing in the evidence to suggest otherwise. We have no way of knowing his state of mind just before the accident and we do not know how he came to walk in front of the oncoming car that morning. No one knows if he saw the Don’t Walk sign, or saw or heard the oncoming car, let alone whether he chose to ignore them. Age might have been a factor; perhaps he was distracted by something; perhaps he was absent-minded. We cannot know. His death may be inexplicable but that is very different to concluding that it was the result of his wilful act.”
308. The very same analysis can be applied to this matter, albeit with a totally different factual matrix. The evidence points to the veteran not being a happy person and who engaged in strange behaviour, which sometimes resulted in dangerous risk-taking activity. Indeed, that strangeness of behaviour apparently manifested itself just the day and night before the fatal aircraft crash. The veteran “zoned out” at the afternoon tea in Beenleigh, drove in a dangerous manner on return to his home at Springwood, then stayed by himself watching (or, at least, apparently watching) television until 4 am the following morning.
309. Again, we have no way of knowing what the veteran’s state of mind was when he arrived at Archerfield Aerodrome. The only objective evidence we have is that of the Applicant, who testified that the veteran said he intended to fly a plane and, after sleeping in, was in a hurry to get to the airport.
310. No one knows what transpired when the aircraft took off from Archerfield. Clearly, at the outset, Mr Niebling was in control of the machine. Subsequently, based on the seating arrangements, he allowed the veteran to take control of the aircraft. From that point of time all that is known is that the aircraft was being piloted in a dangerous and erratic fashion.
311. In this matter, however, the evidence leads the Tribunal to the conclusion that the veteran was mentally unwell, and that psychiatric state was war-caused. He was suffering from a mental disease which, ostensibly at least, affected his judgment and resulted in him performing risk-taking activities. It would appear from the evidence, that the veteran failed to understand, or even care, about the welfare and safety of other people. For those persons living with him, working with, or interacting with him, this psychiatric condition must have been extremely difficult to deal with. For the other two persons flying with the veteran in 1988, it proved fatal.
312. As was held in Ryan, a wilful default connotes conduct that is intentional, or that the person involved apprehends its consequences. In Boral Resources v Pyke (1989) 93 ALR 89 (at p. 97), Thomas J observed that wilful conduct is entirely different from, and far beyond, negligence. Thomas J opined that there “must be the doing of something which the person doing it knows will cause risk or injury…”
313. In short for a veteran, or a dependant of a veteran, to lose entitlements because of the existence of those conditions, there must be evidence that a veteran has consciously engaged in behaviour he or she knows will cause risk, injury or death. In order to reach that standard, a veteran must at least have formed a conscious, independent and mentally healthy viewpoint. As pointed out above, the underpinning of veterans’ entitlements legislation since 1921 has been to support those men and women who have put their lives and health at the service of the nation. The various statutory enactments since 1921 have been framed in a manner to support our veterans for the service they have rendered, and not to punish them for lapses of judgment which are understandable having regard to the circumstances of their service.
314. The exclusory provision in s 8(3), the substance of which is duplicated in other provisions of the Act, should be seen for what it is. It is an exception to the rule. It is to be applied in circumstances where a right-thinking person would independently come to the conclusion that the generous provisions of the Act should not apply. This is not very difficult to discern having regard to the extant jurisprudence.
315. Illustrative is Nelson and Repatriation Commission [1988] AATA 148. Mr Nelson enlisted in the Australian Military Forces (AMF) on 6 August 1941 but deserted on 28 April 1942. He subsequently joined the Merchant Navy. He was later arrested, court martialled and sentenced to 120 days detention at Bendigo Gaol. He was confined at Bendigo Gaol from 5 January 1943 until 8 March 1943. Having been discharged from the AMF on 14 April 1943, Mr Nelson rejoined the Merchant Navy and served until 8 February 1945.
316. Amongst other matters, Mr Nelson claimed he was suffering from an anxiety state due to his confinement at the Bendigo Gaol. This claim was contested, inter alia, on the basis that it was excluded by s 9(3) of the Act, namely that his anxiety state resulted from Mr Lynch’s serious default. The Tribunal agreed that s 9(3) applied, and gave the following reasons:
“15. Other medical evidence at least confirmed this. But at the end of the day, I considered that assessment of the manner and extent to which the applicant's gaol experience caused, contributed to, or aggravated some kind of anxiety state, must be highly speculative. However, assuming that the gaol experience was causally relevant to some condition in the applicant which can be described as "an anxiety state", entitlement in respect of it is excluded by Section 9(3) of the Veterans’ Entitlements Act.
16. The offence of which the applicant was convicted was "deserting His Majesty's Service". Clearly, desertion is a breach of discipline. It is difficult to know by what standard one determines, in the military context, whether a breach of discipline should be ranked as "serious". I am prepared for these reasons to adopt a standard by which any breach which can result in imprisonment should be regarded as "serious", for the purposes of Section 9(3) of the Veterans’ Entitlements Act..
17. The next question is whether an anxiety state which resulted from a gaol sentence, which resulted from the veteran's serious default, can be regarded as having resulted from that serious default.
18. I do not consider that the bar on entitlement under Section 9(3) requires direct causation for its operation. A condition can be regarded as having resulted from a previous act or omission, but for which it would not otherwise have occurred, notwithstanding that, in order to bring it about, some intervening act or omission was also required. For example, a veteran, in defiance of orders, might have alighted from a troop carrier and attempted to cross the highway to effect his desertion. He might then have been knocked down by a truck coming in the opposite direction being driven by a driver who was not keeping a proper lookout. The injuries which the veteran thereby suffered, although immediately the result of the negligence of the oncoming driver, are still to be regarded as the result of the serious default of disembarking from the carrier in the first place. Intervening negligence rarely breaks the chain of causation between the threshold conduct, but for which the injury in question would not have occurred, and that injury.
19. Applying this principle in the present context, even if it were established that there was something unusual about the gaol conditions under which the applicant laboured, his anxiety state must nevertheless be regarded as the result of the serious default which led him to prison in the first place. Thus, his entitlement to pension for anxiety state is prevented by s. 9(3) of the Veterans’ Entitlements Act.”
317. The Tribunal has, in previous determinations, been careful to distinguish between behaviour born of conscious volition, and behaviour tainted by service-caused mental illness. In the former case, as the above cases illustrate, the focus has been on the degree of intent, the magnitude of the event, the motivation of the veteran and the temporal circumstances.
318. This is not one of those cases. This is an instance of a veteran who has returned from rendering war-service with a war-caused mental health condition, which did not resolve with the passage of time. It is tolerably clear to the Tribunal that the veteran did not form an intent to injure or kill himself or the other passengers of the plane. His risk-taking behaviour was a long-standing symptom of his war-caused PTSD.
319. In conclusion, the Tribunal finds that s 8(3) does not apply and that the veteran’s death did not result from a wilful act.
DECISION
320. The decision under review is set aside and substituted with a decision that the Applicant is entitled to a war widow’s pension pursuant to section 13 of the Veterans’ Entitlements Act 1986.
I certify that the preceding 320 (three hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Sosso .............[Sgd]...........................................................
Associate
Dated: 28 March 2023
Date(s) of hearing: | 7 and 8 December 2022 |
Date final submissions received: | 2 February 2023 |
Counsel for the Applicant: | Anthony Harding |
Solicitors for the Applicant: | Cockburn Legal |
Counsel for the Respondent: | Andrew Dillon |
Solicitors for the Respondent: | Australian Government Solicitor |
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