McKinley and Repatriation Commission (Veterans' entitlements)
[2017] AATA 872
•15 June 2017
McKinley and Repatriation Commission (Veterans' entitlements) [2017] AATA 872 (15 June 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2013/4333
Re:Jennifer McKinley
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Miss E A Shanahan, Member
Ms Anna Burke, Member
Date:15 June 2017
Place:Melbourne
1. The Tribunal affirms the decision under review
2. The Tribunal does not have jurisdiction to hear the claim under section 70 of the Veterans’ Entitlement Act 1986.
[sgd]........................................................................
Miss E A Shanahan, Member
REPATRIATION – remittal from the Full Court of the Federal Court – incorrect standard of proof applied in decision of September 2014 – claim for post-traumatic stress disorder, generalised anxiety disorder and alcohol abuse – accepted physical conditions – pension at 60 per cent of the general rate – claims dating from 2005 to the present – new Statements of Principle – s 70 claim – conflicting evidence of the applicant – unreliability of evidence of applicant – decision affirmed – claim under s 70 of the Act- the Tribunal does not have jurisdiction.
Legislation
Veterans’ Entitlement Act 1986
Cases
McKinley and Repatriation Commission [2007] AATA 1298
McKinley and Repatriation Commission [2014] AATA 670
Warren v Repatriation Commission [2015] FCA 145
Warren v Repatriation Commission (2015) FCAFC 159
Repatriation Commission v Stafford (1995) FCR 132
Lees v Comcare and Another (1999) FCA 753
Davenport v Repatriation Commission [1995] 39 ALD 560
Ellis v Repatriation Commission [2014] FCA 847
Bushell v Repatriation Commission (1992) 175 CLR 408
Repatriation Commission v Bawden (2012) 206 FCR 296
Repatriation Commission v Deledio (1998) 83 FCR 82 at 97Roncevich v Repatriation Commission (2005) 222 CLR 115
Secondary Materials
Diagnostic and Statistical Manual of Mental Disorder, 5th Ed. (DSM‑V)
published in late 2014
Diagnostic and Statistical Manual of Mental Disorder, 4th Ed. (.DSM-IV-TR)
REASONS FOR DECISION
Miss E A Shanahan, Member
Ms Anna Burke, Member15 June 2017
Jennifer Anne McKinley joined the Australian Army (the Army) on 12 February 1986 and served in clerical and administrative roles until 13 October 2005. During this period she had operational service in East Timor from 11 October 1999 until 1 February 2000. For approximately two years she served with the Army Reserve and then re-joined the Regular Army on 14 December 2002.
On 7 August 2001 the Repatriation Commission (the Commission) accepted that Ms McKinley’s chondromalacia patellae of both knees and recurrent sprains of both ankles were service-caused. The Commission assessed her incapacity at 30 per cent of the general rate. This was later increased to 60 per cent. On 25 February 2005 Ms McKinley lodged a claim for an increase in disability pension and for the acceptance of two psychiatric disorders, post-traumatic stress disorder (PTSD) and alcohol dependence, as being war-caused due to her operational service in East Timor.
When Ms McKinley joined the Army, she was unmarried and her surname was Hildred. On 31 August 1991 she married and changed her surname to that of her husband, Russell. This marriage ended in divorce. On 18 October 1998 she married Mr McKinley and adopted his surname. In 2013 she married Mr Warren and has adopted his surname. All of her husbands have been members of the Regular Army and all have retired from service, her first and third husband being Vietnam veterans’ and her second husband a member of the Regular Army.
The Tribunal has used the surname of McKinley, as this has been the name under which she has made all her applications to this Tribunal, the first of which was lodged in 2005.
The matter was first heard by the Administrative Appeals Tribunal (the Tribunal) in 2014. The Tribunal handed down its decision on 12 September 2014. Ms McKinley appealed to the Federal court of Australia.
The matter was remitted to the Tribunal by the Full Court of the Federal Court in its decision dated 12 November 2015. The Full Court directed the Tribunal to reconsider the 2014 decision by a differently constituted Tribunal. The Full Court found that in its decision of 12 September 2014 the Tribunal had applied the wrong standard of proof in relation to one particular incident, having determined it had probably not occurred; whereas the standard of proof was beyond reasonable doubt, as required by s 120(1) of the Veterans’ Entitlement Act 1988 (the Act). The Tribunal conducted the re-hearing (the hearing) of the matter on 20 and 21 February and 24 March 2017.
At the hearing Ms McKinley was represented by Mr Dino De Marchi, solicitor of De Marchi and Associates, Solicitors. The Commission was represented by Ms Cathy Dowsett of counsel, instructed by Mr David Brown of the Australian Government Solicitor. The Tribunal was provided with the documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents). Both parties tendered further documentation and reports, as listed in the appendix to this decision. Ms McKinley (now Warren) and Mr Warren gave evidence in person and Dr Scott Jenkins and Dr Peter Ironside gave evidence by telephone.
Mr De Marchi informed the Tribunal prior to the hearing that he would be seeking to rely on new Statements of Principles with respect to generalised anxiety disorder (GAD) and relating to alcohol abuse, as well as those now in force in relation to attempted suicide. In a supplementary Statement of Facts and Contentions, Mr De Marchi contended that the Tribunal should also consider Ms McKinley’s claim under s 70 of the Act, which relates to defence-caused injury or defence-caused disease. This new claim related to events during Ms McKinley’s defence service while deployed at the Queenscliff Army Base in 2004. This new application raised the question of the Tribunal’s jurisdiction to hear such a claim. The Tribunal determined to reserve its decision on jurisdiction until it had heard the evidence and argument relating to s 70 of the Act.
HISTORY OF THE APPLICATION
Ms McKinley first lodged a claim for psychiatric disorders, be they PTSD or GAD and alcohol dependence or alcohol abuse, on 25 February 2005. Her claim was rejected by a delegate of the Commission. This determination was subsequently affirmed by the Veterans’ Review Board (VRB). The Board determined that the GAD was not related to service, either operational or eligible, as no severe psychosocial stressor meeting the Statement of Principles criteria was identified. On 3 May 2007 the AAT affirmed the decision and determined that the conditions being claimed as war-caused or defence caused were, on a balance of probabilities according to the evidence, GAD and alcohol abuse.
Ms McKinley lodged a further claim on 19 March 2012 (T17, pg. 272). Again the claimed conditions were GAD or possibly PTSD, and alcohol abuse. For the first time Ms McKinley referred to suicide attempts that had occurred in 2004-5. The delegate of the Commission made a decision on 20 September 2012 (T19, pg. 317) finding that the conditions were not associated with the experiencing of a Category 1A stressor in either her operational or eligible service. A similar finding was made in respect to the alcohol abuse.
On 30 November 2012 Ms McKinley lodged a further claim for an increase in pension and acceptance of the psychological conditions. New evidence and opinion was provided by the then treating psychiatrist. Once more, a delegate of the Commission considered all of the medical conditions under both eligible and operative service criteria and rejected the claim, as no Category 1A, Category 1B or Category 2 stressor had been identified in relation to either operational or eligible service. The VRB affirmed this decision on 30 May 2015 and confirmed the diagnoses as being GAD and alcohol dependence.
On 12 September 2014 Senior Member Handley of the Tribunal affirmed this decision in all respects. He considered all of the incidents raised by Ms McKinley and eventually determined that he was satisfied beyond reasonable doubt that the conditions of alcohol use disorder or GAD were not war-caused. With respect to the alternative diagnosis of PTSD, he was satisfied on the balance of probabilities that the applicant did not experience intense fear, helplessness or horror in relation to the incidents described as the Dili Hospital incident and the Balibo incident. As a result, Ms McKinley did not satisfy Part A of the Diagnostic and Statistical Manual of Mental Disorder (DSM-IV-TR) definition and criteria required to found a diagnosis of PTSD. The definition and the diagnostic criteria were the basis of the then relevant SoP.
On appeal to the Federal Court, His Honour Justice Pagone found that no error of law had been made and affirmed the Tribunal’s decision.
Ms McKinley appealed to the Full Court of the Federal Court and on 12 November 2015 the court upheld the appeal. The Full Court found that the Tribunal and Justice Pagone had applied the wrong standard of proof in relation to the Dili Hospital incident. Ms McKinley had claimed she saw critically injured civilians or military personnel. The standard of proof delineated by the Act was beyond reasonable doubt. Mortimer J agreed with this finding but also expressed the opinion that the Dili Airport finding of fact that there were no Indonesian soldiers present at the airport on Ms McKinley’s arrival was based on historical Writeway- provided evidence in contrast to Ms McKinley’s eye witness account. Justice Mortimer identified the Tribunal’s finding, that Ms McKinley was highly medicated on her arrival in Dili and that, by inference, this affected the determination in relation to the presence of armed Indonesian soldiers at the airport, was not supported by any evidence as to medication. Hence, her Honour’s conclusion that there was no evidence in support of the finding and this equated to an error of law.
In view of the above history, this Tribunal believes it should review the matter de novo, including the consideration of all of the evidence amassed over a period of 34 years.
BACKGROUND TO THE APPLICATION
Ms McKinley was born in 1964 She was educated to Year 9, after which she was asked to leave school because of her disruptive behaviour. She has since attributed her unacceptable behaviour as a child to her parents’ separation and subsequent divorce in 1979. (T3, pg. 53)
Ms McKinley had a period of unemployment for two years after she left school and then obtained several short term jobs as a switchboard operator, kitchen hand and barmaid (Exhibit R4, pg. 124). She applied for acceptance into the Army in July 1982, September 1983 and October 1985, but was found unsuitable on psychological assessment. In February 1986 her application was classified as being marginally recommended and she enlisted in the Army on 10 April 1986. Her application to join the RAAF in December 1993 was rejected as she was unsuitable on the basis of her mathematical abilities. (Exhibit R4, pg. 142)
Throughout her service in the Army Ms McKinley worked as a clerk. In 1997 (Exhibit R4, pg. 196) and again in 1998 she expressed her preference to be posted overseas nominating Sinai/Asia/L/Look (Exhibit R3, pg. 210).
Ms McKinley’s first marriage lasted from 1991 until April 1995. She remarried in October 1998 and she and Warrant Officer McKinley divorced in the early 2000s. In her evidence before the Tribunal she said: I’ve married two men who have beaten me within an inch of my teeth. (Transcript pg. 59, 20 February 2017). She had told several psychologists and psychiatrists that she had been subjected to physical violence at the hands of her father.
Between 5 July 1999 and 10 September 1999, Ms McKinley underwent a basic specialist course in the Indonesian language. She passed the course and was certified as having achieved good results in a short period of time.Her assessment said:
In speaking although she was not fluent she was able to take part in simple chat about her family and career in the Army. Her sound knowledge of military matters in general has helped her attain good results in reading and translating. In listening she was said to be able to process simple utterances with the use of a dictionary.
It had been estimated that she was capable of translating into the receptor language at a rate of 100 words per hour.
Ms McKinley was deployed to East Timor for 16 weeks and 2 days between 10 October 1999 and 1 February 2000. She claimed she experienced 10 stressful incidents leading to the development of PTSD or GAD, and subsequently to alcohol abuse. Her evidence with respect to these incidents will be dealt with separately.
On 2 April 1997 Ms McKinley was involved in a motorcycle accident, the motorcycle being ridden by her future husband, Mr McKinley. She and Mr McKinley sustained soft tissue injury and were hospitalised in Hobart for a period of 5 days; following which they returned to Canberra where they were stationed. Mr McKinley apparently suffered a fracture of his left hand. Following this accident Ms McKinley developed psychiatric symptoms. She was seen by Dr Steven Stern, psychiatrist, who made a diagnosis of PTSD; which he assessed as being improving rapidly and not impacting on her fitness for work.
This accident lead to Ms McKinley making claims for personal injury. As part of that litigation, she was assessed by a psychologist, Major Pert, on 3 December 1999, while serving in East Timor. Major Pert issued a report on 27 December 1999. The psychologist found that her anxiety levels were within normal limits whenever she rode a motorcycle. The nightmares she had previously experienced had completely resolved 12 months earlier, and generally Ms McKinley did not appear to have any symptoms of chronic PTSD. Major Pert concluded that no further assistance was necessary.
Following her return to Australia, Ms McKinley was assessed by a psychiatrist, Dr Burges Watson, in Hobart on 11 October 2000 (Exhibit R4, T20 pg. 113).
The consultation with Dr Burges Watson took place eight months after Ms McKinley had returned from East Timor. In this interview she told Dr Burges Watson she did not like going on a motorcycle and never rode one herself. Dr Burges Watson concluded that Ms McKinley suffered from PTSD. He opined that she had continued to have significant symptoms for up to 18 months thereafter and continued to have residual symptoms and remained vulnerable to an aggravation of the PTSD if exposed to any future event perceived as life‑threatening.
Ms McKinley left the Army but remained in the Reserves between 10 September 2000 and 14 December 2002; when she re-joined the Army on a full time basis. She re-enlisted as she had a mortgage to repay and legal fees to pay arising from her divorce. While she was in the Reserves she had only been able to find short-term employment in Hobart as a cleaner in a hotel for several weeks. When she left the Army in September 2000 her performance reports recommended her for future promotion to Warrant Officer Class 2.
On re-enlisting in the Army, Ms McKinley was posted to Darwin; and then from 19 January 2004 to the base in Queenscliff. Her Darwin reports were satisfactory and concluded that she would make a good Chief Clerk. The only medical restrictions in place as of 24 March 2004 related to her accepted physical conditions.
During her service at Queenscliff, Ms McKinley worked in administration and lived in a rental property at Point Lonsdale. During her service in Queenscliff she was charged with prejudicial conduct (driving an army vehicle while under the influence of alcohol) and was investigated for unacceptable behaviour. But there was insufficient evidence to support any charge. Her service was terminated on 12 October 2005 on medical grounds, these being described as PTSD, depression, anxiety and another unnamed medical condition.
Ms McKinley had been referred to the Vietnam Veterans’ Counselling Service (VVCS) in Geelong while she was based in Queenscliff. She subsequently saw Dr Carol Newlands, psychiatrist, in Geelong. Dr Newlands made the diagnoses of GAD and alcohol dependence. Dr Newlands continued Ms McKinley’s medication of Fluoxetine 20mg daily and Diazepam 5mg, 3 to 4 times a day. Prior to seeing Dr Newlands, Ms McKinley had self‑referred to the Laverton Hospital in late 2004 and had been seen and treated by the psychiatrist, Dr Bill Atkin. She apparently had suicidal ideation at this time and her general psychiatric status was unstable in terms of anxiety, agitation and sleep disturbance, said to be secondary to her ceasing her medication. On 10 February 2005 Ms McKinley was referred to the VVCS in Geelong as it was closer to the Queenscliff base.
Ms McKinley had also seen several psychiatrists between 2005 and 2007 in relation to her first application to the Tribunal. Their conclusions are considered later in this decision.
In 2011, while attending a VVCS gathering, Ms McKinley met Mr Ronald Warren, a Vietnam Veteran who suffers from PTSD and has been receiving a disability pension at the special rate since 2001. They entered into a relationship and married in 2013; following which they relocated to Hervey Bay in Queensland.
EVIDENCE BEFORE THE TRIBUNAL
Jennifer McKinley
In her evidence-in-chief Ms McKinley was taken through all of the claimed incidents. (These will be detailed and addressed separately and compared with her previous evidence later in this decision.) However, the evidence she gave on this occasion was imprecise and unconvincing. For example, the description of events relating to Indonesian soldiers at the Dili Airport making threatening comments to two young girls accompanying Ms McKinley differed to that previously given. When asked if the soldiers were Indonesians, she said they could have been. When asked if they were in uniform, she said she thought so. And as to whether they were armed, she said her memory was unclear and to the best of her knowledge they did have weapons.
Similarly, in relation to the Balibo incident she said she had a conversation with a couple of soldiers or militia while in Balibo and they were speaking in Indonesian and saying how easy it would be to kill us (that is Ms McKinley and those with her). She made the comment that they didn’t know I could speak it; it being Indonesian. In relation to having to sleeping overnight in the jungle in Balibo, it was eventually clarified that 60 or more soldiers from Royal Australian Regiments 5 and 7 were encamped at Balibo in a tent village.
In relation to the Dili Hospital incident, Ms McKinley said she had visited the hospital a few times but only one or two visits remained in her memory. One of these had been her appointment with a psychologist for assessment in relation to her civil claim for PTSD resulting from the motorcycle accident in 1997. Ms McKinley said she had fully recovered from the effects of that accident and her PTSD had completely abated as she had learnt how to ride a motorcycle herself and therefore felt she had control. The other visit to Dili hospital that she recalled was when she had to deliver documents to and collect documents from the administration office. She said that there were casualties, I guess. Or injuries. Or civilians ... (Transcript page 21, 20 February 2017). When pressed by the Tribunal as to exactly where she had viewed these casualties, Ms McKinley said they were seated in the walkways or hallway area leading to the office. She thought it may well have been a waiting area. She said some had bloodied limbs and maybe missing fingers, toes, I don’t know.
On the roadway to the hospital Mrs McKinley had seen what she thought might be a slightly buried or not well buried limb like a hand, such that what appeared to be fingers are sticking up out of the ground. Later, under cross-examination by Ms Dowsett on the topic of partially buried hands, Ms McKinley said well it could have been anything, I don’t know. When it was suggested it could have been part of a tree she agreed, although at the time it looked like a shallow grave. When it was suggested she had no actual memory of this event, Ms McKinley’s answer was I have dreams about things like that. (Transcript page 63, 20 February 2017).
Ms McKinley detailed her alcohol consumption. She said her drinking to excess had commenced in late December 1999, in response to her experiences in East Timor. Her husband was sending her alcohol, initially small sample bottles of spirits and later large bottles of whisky and vodka. Her intake had further increased on her return to Australia and in 2003 she had been required to attend an Army alcohol abuse course in Perth. She agreed she had been found guilty of driving an Army vehicle under the influence of alcohol. Ms McKinley described her current drinking pattern as trying not to start before midday. In the course of the day she would drink approximately 700 ml of white wine, half a bottle of vodka or other spirits and several cans of beer. She frequently drank to the point where she blacked out and had no recall of events and had suffered several falls while intoxicated, the last being three days prior to the hearing when she had walked into a door, fell over and split her lip. She described herself as a binge drinker with her intake maximal on Fridays and Saturdays. The longest she had gone without alcohol was two days.
Ms McKinley outlined what she described as her isolation while deployed to Queenscliff. Her administrative duties related to looking after the pay and payroll of the Special Air Services Infantry staff. She said she had only one close friend while at Queenscliff. During this period she claimed she was heavily medicated, taking the anti‑depressant Xanax, Valium and Panadeine Forte. In the past she had been on different anti‑depressants, namely Effexor and Zoloft; and she was currently taking Fluoxetine 80mg daily. She took Valium every day and later informed the Tribunal that in the luncheon break that interrupted her evidence, lunch had consisted of two 5mg Valium tablets and two glasses of wine. She gave evidence that some days she would remain in bed all day and that it was her habit to stay up late at night, sometimes until 3.00am, and then sleep until midday.
The Tribunal asked Ms McKinley what she had been expecting in her tour of duty in East Timor. She replied that she didn’t know what she expected but it wasn’t what she got. She had wanted to join the Army and be a soldier and do something for her country. She agreed with Ms Dowsett that she had been overwhelmed by the experience of her service as she had found her time in East Timor very distressing. She gave the example of her concerns regarding what she called pipe guns, which appear to be lengths of plastic down-piping, which she thought could have been guns or pipe bombs which might explode and kill her at any time. She also thought she could be shot at any time. However, Ms McKinley did freely admit that she had never experienced such occurrences.
Given that Ms McKinley could not remember the events clearly, the Tribunal asked her to describe the content of her dreams. She said her dreams placed her in the Army barracks, where she got lost. There were people with guns who wanted to shoot her and she was chased but couldn’t get away. She couldn’t find her way out of the barracks. These dreams or thought content, she described as occasionally popping up. She related the frequency of these events to the amount she drank and the medication she was on. Ms McKinley refused to speak about either of her ex-husbands, except to say I have married two men who have beaten me within an inch of my teeth and I don’t want to have to talk about either of them ever again.
Ms McKinley gave evidence that she saw her general practitioner, Dr Ironside, every two weeks in order to obtain prescriptions for Endone and Valium. She takes the Endone for her knee and ankle pain and normally takes four 5mg tablets a day. It would appear she takes about four 5mg tablets of Valium daily.
Ms McKinley gave evidence that the amount of alcohol she was drinking in 2004 and 2005 remained at the same levels as before she did the alcohol abuse course. However, in relating her history to both Army doctors and civilian psychiatrists she had said that she only drank at the weekend and had greatly reduced her intake. She agreed that was totally inaccurate.
Ms McKinley gave evidence that she started self-harming in approximately 2005. This consisted of using a pair of scissors to scratch her legs until they bled. She has continued to self-harm intermittently and Mr Warren subsequently gave evidence that in the six years that he has known and lived with her she has self-harmed on about 10 to 15 occasions, although he has never witnessed her cutting/scratching her legs.
In the course of examination-in-chief and cross-examination it became clear that Ms McKinley could not recall in any detail the evidence she had given in relation to the stressful incidents she had experienced in East Timor in the Tribunal hearings of 21 February 2007 and 26 August 2014. Similarly, she could not recall the history she had given to the numerous psychiatrists she has seen since 2000.
In re-examination, Mr De Marchi concentrated on establishing the accuracy of Ms McKinley’s memory. She said she could remember things from primary school but not from high school. Ms McKinley believed she put stressful things in a box or an imaginary carrot sack, and said it’s just like a box ... inside you ... put a lock on it and you don’t open it unless you really have to. She likened her thought processes in trying to remember these events as being like a train that just won’t stop at the station – my brain just keeps – continues going around. As her memories were contained in this locked box, she had been able to perform her duties as a sergeant in a normal fashion and in East Timor she had drunk alcohol in order to forget; although she believed that for some unknown reason drinking alcohol did not help. Mr De Marchi re-visited some of the evidence Ms McKinley had given under cross-examination but her responses were essentially unchanged.
She did enlarge on her experiences in Queenscliff, where it was rumoured that she was involved in the running of sex parties and despite being found not to have been involved she had been humiliated and embarrassed and felt very alone.
Mr Ronald Warren
Mr Warren is Ms McKinley’s third husband. He is a Vietnam Veteran in receipt of a disability support pension for PTSD. He provided a statement (Exhibit A3) outlining what his wife had told him of her experiences in East Timor, describing her nightmares, her drinking habits and her self-harming.
In his evidence Mr Warren confirmed his wife’s excessive alcohol intake, her poor sleep and frequent practice of drinking until 2.00 or 3.00am, nightmares occurring up to twice a week and that she said that the nightmares were always the same. These she described as being chased through the barracks or maybe through the jungle. Mr Warren had noted that she could have gaps of up to a fortnight without any nightmares. He was of the opinion that the nightmares were triggered by seeing something on television or perhaps when she drank to excess. While in general they did not discuss their army service and experiences Mr Warren was aware of the Dili Airport incident and the Balibo incident. He also recalled a third incident when there was mortar fire in the distance. On prompting he recalled the Dili Hospital incident.
Mr Warren described their pattern of life. On pension day, once a fortnight, they went shopping and bought their supplies of alcohol for the next two weeks. This would involve two casks of white wine, several bottles of vodka or rum and some beer. Mr Warren is a beer drinker and also was a collector of malt whisky. He had tried to get his wife to reduce her alcohol intake without success.
Mr Warren confirmed that he had met his wife at a Vietnam Veterans’ counselling service and that they attended the RSL club in Hervey Bay every Friday afternoon, it only being open on Friday afternoons for approximately three hours.
Dr Scott Jenkins – psychiatrist
Dr Jenkins provided a report to the Tribunal in 2014 and this was referred to in the decision of Senior Member Handley dated 12 September 2014. At that time, Dr Jenkins had only seen Ms McKinley on three occasions, his report being dated 23 April 2014 (Exhibit A5). At that time Dr Jenkins had made a diagnosis of PTSD but had also noted that Dr Carol Newlands, the treating psychiatrist, had made a diagnosis of GAD. Since 2014 Dr Jenkins has seen Ms McKinley a further 22 or more times. Dr Jenkins had provided the opinion that Ms McKinley’s PTSD onset was in 1999 and he identified Ms McKinley as having a pervasive fear while she was in East Timor. While he believed that she feared for her life in that she had exhibited a subjective response to her situation in East Timor, he had found no evidence that she had experienced a 1A or 1B stressor and at the most had been confronted with a Category 2 stressor. Dr Jenkins was very familiar with the DSM-IV-TR and the DSM-V criteria for the diagnoses of PTSD and GAD and was also familiar with the Statements of Principles (SoP) required to be applied in accordance with the Act. Based on the requirements of both the DSM’s and the SoP’s, he could not identify a stressor beyond that of a Category 2.
In terms of Ms McKinley’s alcohol intake, he believed that she was a binge drinker, a condition that was long standing. In relation to the new DSM criteria and those of the most recent SoP, the diagnosis would now be alcohol abuse rather than alcohol dependence, and would now be called alcohol use disorder in line with the most recent SoP. Dr Jenkins agreed that she met all of the stated criteria to make such a diagnosis. He opined that the alcohol use disorder occurred simultaneously with the anxiety disorder GAD. Dr Jenkins considered both PTSD and GAD as being anxiety disorders differentiated diagnostically only by the stressor to which the individual had been exposed.
While Dr Jenkins was aware that Ms McKinley had attempted suicide he did not know when this occurred. He was not acquainted with the recent SoP concerning attempted suicide. Under cross-examination by Ms Dowsett, Dr Jenkins confirmed that he had been provided with the reports of Dr Newlands and Dr Peterson. He was taken to the report of Dr Peterson wherein Dr Peterson had concluded that Ms McKinley should not have been considered for active service in an area such as East Timor. This was based on Ms McKinley’s recorded responses to the incidents in East Timor. Dr Peterson had considered Ms McKinley’s responses to be those of a sufferer of PTSD, i.e. a response to a Category 1A stressor, although the actual incidents did not meet the defined criteria for a 1A or 1B stressor. Having been read the relevant paragraphs from Dr Peterson’s report, Dr Jenkins agreed completely with the conclusions drawn.
On further questioning, Dr Jenkins said he had found no clinical evidence that Ms McKinley had a defective memory although he had had to expend extra effort in order to obtain a detailed clinical history. In terms of the history she had given him, he had checked the answers given to him against those reported by Dr Newlands and Dr Peterson. Dr Jenkins explained that he had no history or record of Ms McKinley’s motorcycle accident and diagnosis of PTSD in 1997, nor had he any medical records from her time in the Army. Thus his diagnosis of anxiety due to PTSD was based solely upon the history given by Ms McKinley. Dr Jenkins reiterated his opinion that none of the incidents in Ms McKinley’s East Timor service, according to the history she had provided, met the criteria for a 1A or 1B stressor. She had what he described as a pervasive sense of fear throughout her time in East Timor.
The Tribunal asked Dr Jenkins if the PTSD diagnosed in 1997 and attributed to the motorcycle accident of that year would, although said to have completely abated, predispose Ms McKinley to a relapse or future development of PTSD. He was of the opinion that given her PTSD had been ascribed to a very clear single event, the only predisposing sensitivity to which such patients were prone was related to experiencing a similar situation such as a car accident or another motorcycle accident.
Mr De Marchi again asked Dr Jenkins if Ms McKinley met the current SoP for PTSD; to which he again answered no.
Dr Peter Ironside – general practitioner
Dr Ironside is a general practitioner of 35 years’ experience, who in addition to general practice performs some cosmetic surgery and treats skin lesions. He provided a report dated 31 January 2017 (Exhibit A6). He had apparently provided two reports of that date but only one of these had been filed. The second report was said to be the same as the first except for the inclusion of additional paragraphs in response to a question placed by telephone by Mr De Marchi’s office. The hearing proceeded on the basis of the filed report.
Dr Ironside informed the Tribunal that he had first seen Ms McKinley on 21 March 2014. But this and subsequent consultations until approximately 2015, when she elected to see Dr Ironside as her family general practitioner, had been for Botox injections as treatment for facial lines/wrinkles. During the first year Dr Ironside had no knowledge of her psychiatric disorders. In March 2015 he was asked to continue her prescriptions and thereafter she attended every two weeks, primarily for a resupply of Endone and Valium. Ms McKinley had told the Tribunal she took up to four 5mg tablets of Endone daily and four or more 5mg tablets of Valium. To Dr Ironside’s knowledge, she had been taking those two medications at that level for a very long time. The Tribunal expressed its surprise that there were no controls on the prescribing of Endone in Queensland, Endone being a Section 8 drug. In Victoria a special authority is required to prescribe Endone beyond a period of 8 weeks. Dr Ironside said Victoria had the highest standards in Australia and there was no need for any special authority for any drug in Queensland.
To his recollection, Dr Ironside had never had a report from Dr Jenkins and was therefore ignorant of his diagnosis. Dr Ironside had been aware that Ms McKinley had made one suicide attempt while living in Hervey Bay but had no knowledge of any other attempts. He knew that she frequently, as he put it, attacks herself with something sharp and scratches herself or gives herself little cuts and makes herself bleed.
Dr Ironside described his consultations with Ms McKinley as providing a listening ear and a venting situation. When she visits him, she frequently curls up in a chair in a semi-foetal position, vents her frustrations at whatever it is on the day, and having done so, settles and usually leaves the appointment after about 15 minutes. He described the attempted suicide as Ms McKinley having shut herself in the car in the garage with the engine running but had not fed a hose from the exhaust into the car itself and so no raised level of carbon-monoxide resulted.
While Dr Ironside was unaware of Ms McKinley’s level of alcohol intake, he was of the opinion that she was a binge drinker rather than an everyday heavy drinker.
Dr Ironside said he had accepted the diagnosis of PTSD as that was what Ms McKinley had told him. He said he had not received any correspondence from a psychiatrist. Dr Ironside had no knowledge of the SoP for any condition, and thus no knowledge of the criteria for the various psychiatric disorders Ms McKinley was claiming. The only information Dr Ironside had received was a summary from her previous general practitioner sent to him by post and providing a list of medications, these being Endone, Tegretol, Valium Imovane, Nexium and Lovan. Dr Ironside had prescribed Lyrica for her chronic knee pain and had ceased the Tegretol.
The Tribunal asked Dr Ironside of his opinion of Ms McKinley’s memory. He said that had he conducted a mini-mental examination he would anticipate she would score 30 out of 30. He did not see any major problem with her short term memory or her long term memory. However, he had not explored the basis of her diagnosis of PTSD as she was already attending a psychiatrist and a psychologist. In terms of her day-to-day function, he believed her memory was normal. He also considered her to be incapable of any remunerative work because of her ongoing agitation and anxiety, her fluctuating episodes of euphoria and depression, her inability to sustain personal relationships (which would extend to a work situation) and the likelihood that she would require time off work in an erratic and untimely manner should she be employed.
Psychiatric and Psychology Reports
Ms McKinley’s psychiatric assessments between 1982 and 1986 prior to her enlistment have been addressed under BACKGROUND TO THE APPLICATION; as was the psychologist’s report from East Timor in December 1999, in relation to her previously diagnosed PTSD.
Doctors Stern and Burges Watson had seen Ms McKinley in relation to the motorcycle accident of 1997 and her subsequent development of PTSD. There was no disagreement as to the diagnosis or that she met the criteria for PTSD, given the nature of the motorcycle accident. Dr Stern had seen her on 13 June 1997, three months after the accident, and recorded that since the accident she had been drinking six glasses of whiskey per night after work. He also recorded that she had had psychological counselling in 1995 and 1996 as a result of her first marriage breakdown.
Dr Burges Watson, who saw Ms McKinley on 13 October 2000, also diagnosed PTSD and depression in June 1997 and when seen again in September of 2000 he regarded her as having suffered from PTSD for 12 to 18 months and still had residual symptoms. In the course of the history he took, Ms McKinley made no reference to her recent service in East Timor or to her alcohol intake.
Dr Newlands first saw Ms McKinley in 2005 (T-docs, pgs. 92 and 110). She made a diagnosis of GAD as she did not believe the various stressors Ms McKinley described met the Category A criteria required by the SoP for the diagnosis of PTSD. Dr Newlands did mention that Ms McKinley was using alcohol to reduce her symptoms but did not address the quantity or frequency of alcohol intake and made no comments regarding treatment, other than the existing medication and that she reduce her alcohol intake.
Dr Debenham, Austen Hospital psychiatrist, provided a report on 25 July 2005 (T-docs, pg. 249) making a diagnosis of PTSD, a major depressive disorder, alcohol abuse and benzodiazepine dependence which he attributed to both the motorcycle accident of 1997 and Ms McKinley’s East Timor experiences. He recommended that she have inpatient hospital treatment.
Dr Nigel Strauss, psychiatrist, saw Ms McKinley on two occasions in 2006. Dr Strauss obtained a very detailed history from Ms McKinley and had been provided with many psychology and psychiatric reports. She did not tell him of any Category A type situations she confronted in East Timor and in particular did not mention the Dili Airport episode, the Dili Hospital episode or the Balibo episode. She did provide information regarding the motorcycle accident and the diagnosis of PTSD. And she told him that she had been drinking alcohol to excess from about 2004 onward, as well as using and abusing prescribed and illicit drugs. He obtained the history of self-mutilation which was said to have started in 2004.
In his first report dated 31 May 2006, Dr Strauss made a diagnosis of depression and did not believe that her depressive disorder was related in any way to her service, be it operational or defence service. He considered it arose from unhappy teenage years, her failed marriages and her perceived isolation in Queenscliff.
In his second report dated 22 November 2006, Dr Strauss confirmed that he did not accept that she had suffered a severe psychosocial stressor during her time in East Timor but had subsequently developed major depression, an obsessive compulsive disorder and substance abuse relating to her personal circumstances and not to her military service. His second report was in response to having received the reports from the Austin Hospital regarding Ms McKinley. The Austin Unit had made a diagnosis of PTSD attributed to her Army experience. He also reviewed Dr Debenham’s report, noting that there was no reference in this report to any incidents that might have caused PTSD although reference was made to the motorcycle accident.
Ms McKinley attended the Austin Health Mental Health Service in July 2005 and was seen by Dr Debenham, whose report has already been referred to above. He diagnosed PTSD, major depression, alcohol abuse and benzodiazepine dependence. He recommended admission to hospital for detoxification from alcohol and Valium.
Dr Peterson saw Ms McKinley for the purpose of a medico-legal report on 5 June 2006. He had treated her for approximately six months. He agreed with Dr Newland that Ms McKinley was suffering from a GAD and alcohol dependence precipitated by her experiences in East Timor.
In 2012, following receipt of reports from other practitioners, Dr Peterson reviewed his diagnosis. He had been provided with information that it had been inadvisable to have ever sent Ms McKinley into an area of active service, particularly as her role as an interpreter was additionally stressful. He noted that she had recently recollected overhearing two Indonesian-speaking men making plans to steal materials. He said she had a pervading fear of sabotage, ambush and pipe bombs, all of which he regarded as generally being accepted as Category 1 stressors. Dr Peterson concluded that Ms McKinley’s continuing psychiatric history was that of someone with PTSD and associated alcohol abuse, attributable to operational service.
Dr Sheehan saw Ms McKinley on 1 November 2012. He had difficulty obtaining a detailed history as Ms McKinley was very agitated. She described several frightening incidents, the first of which was the presence of armed soldiers at the Dili airport who pointed their rifles at them and were not saying nice things. She also related overhearing the staff in the laundry talking about us in Indonesian. She said she had gone to the hospital a couple of times and saw injured people, lots of blood and people with missing bits of their bodies. Ms McKinley related the Balibo incident, including that there were Indonesian troops in Balibo and it was very scary. The history she gave included a description of buildings where the walls had bloody handprints and signs saying Get out Australians. She had concluded there was human or animal faeces on the walls. They had had to clean the walls before they could sleep in the building. Ms McKinley told Dr Sheehan that she had attempted suicide three times in 2004 by taking overdoses of Valium and Xanax. She described her nightmares and flashbacks.
At the time she was seen by Dr Sheehan, Ms McKinley had ceased all medication having previously trialled Zoloft, Avanza and Effexor, all of which she found ineffective and causing side effects. She admitted to drinking at least 80 standard drinks a week. She confined herself to the house but was able to drive and visit her general practitioner regularly and attended the Vietnam Veterans’ Counselling Service. Ms McKinley admitted to gambling and said she had lost $40,000.00 before she ceased in 2006.
Ms McKinley told Dr Sheehan that her memory fluctuated and her concentration was poor. She did not provide any history of the motorcycle accident of 1997 and the subsequent diagnosis of PTSD. Dr Sheehan had been provided with Dr Newlands’ reports and Ms McKinley’s Army file, which contained psychiatric and psychological reports. Dr Sheehan made a diagnosis of GAD and alcohol dependence and attributed both conditions to Ms McKinley’s exposure to sights and experiences in East Timor. He recommended ongoing psychiatric treatment and in particular an alcohol and drug detoxification program. He found Ms McKinley to be totally incapacitated for remunerative employment.
The Austin Health records referred to above, recorded on 25 July 2005 that Ms McKinley was previously a heavy drinker and had reduced her drinking to less than 12 standard drinks per week. These records also reveal that she admitted to using amphetamines and Ecstasy as a pain control measure, smoked 20 cigarettes per day and regularly played poker machines. She requested that the psychologist not mention these activities to the Army. Prior to the development of her psychiatric disorders, Ms McKinley claimed to have been happy and the life of the party, with many friends. (T-docs, pg. 240)
Writeway Research Service, Historical Report
Mr Barry Morgan of Writeway Research Service had undertaken historical research relating to Ms McKinley’s claims relating to her East Timor service. In a lengthy report Mr Morgan addressed the Australian role in the International Force East Timor (INTERFET), the various duties Ms McKinley had undertaken, definitions as to readiness of weapons and the Army definition of threats (low, medium and high). He addressed the 10 incidents that Ms McKinley claimed to have experienced.
According to Mr Morgan’s report, President Habibie had announced on 12 September 1999 that he had invited the United Nations to despatch an international force to assist in restoring security in East Timor. The United Nations Security Council authorised the establishment of INTERFET, with Australia as the lead nation. The Commander of INTERFET was Major‑General (now Sir Peter) Cosgrove and it was tasked to restore peace and security in East Timor, protect and support the United Nations Assistant Mission East Timor and facilitate humanitarian assistance operations.
On 27 September 1999 the head of the Indonesian forces in East Timor, Major-General Syahnakri, handed over responsibility for the security of East Timor to INTERFET. Within eight days the Indonesian forces in East Timor were reduced from 15,000 to 1,300 and the Indonesian Air Force, Special Force and Marines had left the Dili Airport and the Dili Port. INTERFET troops were based at the Comoro Airfield from 20 September 1999 and all Indonesian and East Timor military personnel had been withdrawn from that airport by 27 September 1999. By 11 October 1999 the INTERFET forces numbered 5,400 and two days later the Dili markets reopened for trade. The situation progressively returned to normality, although the western border regions still reported clashes with militia or rebels. From 11 October 1999 displaced East Timorese began returning to Dili by air, sea and road.
Mr Morgan’s report addressed each of the incidents claimed by Ms McKinley. He was unable to find any evidence in the official army records to substantiate Ms McKinley’s claims in four of the 10 incidents. He could neither substantiate nor disprove five of the claims made. The latter related to the Dili Hospital incident and to the trips to Dili during which she was fearful of injury from pipe bombs. It confirmed that Ms McKinley had been required to make perimeter patrols.
The Tribunal notes that the varying diagnoses made depended greatly on the history given by Ms McKinley, her description of the incidents (which also varied greatly over the years) and at times the total exclusion of past history and details of the incidents.
VRB Transcript
In the course of the hearing, Mr De Marchi provided the Tribunal with the transcript of the VRB hearing of 30 May 2013. This related to Ms McKinley’s recently extended claim under s 70 of the Act. The section of the transcript provided related to the discussion that took place between the Members of the VRB and Mr Meurer, the advocate who appeared for Ms McKinley. Ms McKinley did not attend the hearing or participate in any manner. In the transcript Mr Meurer indicated that Ms McKinley was, in addition to her claims for GAD and alcohol dependence, also appealing the assessment made by the delegate. The VRB found that this had not been outlined in the application and did not consider the question of assessment further as, in their view, an assessment was not warranted. In the five pages of transcript provided there is no discussion between the advocate and the VRB relating to s 70 matters. In its decision the VRB clearly states that Ms McKinley was only relying on a connection between her psychiatric conditions and her operational service in East Timor. As a result, the Board specifically stated it would not consider any possible connection between these conditions and Ms McKinley’s defence service.
RELEVANT LEGISLATION
The requirements of s 9 and s 14 or s 15 of the Act have been met in this matter and thus the relevant legislation relates to the standard of proof as outlined in s 120(1) to (3) which states:
120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war caused injury, that the disease was a war caused disease or that the death of the veteran was war caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
(2) Where a claim under Part IV:
(a)in respect of the incapacity from injury or disease of a member of a Peacekeeping Force or of the death of such a member relates to the peacekeeping service rendered by the member; or
(b)in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to the hazardous service rendered by the member; or
(c)in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to British nuclear test defence service rendered by the member;
the Commission shall determine that the injury was a defence caused injury, that the disease was a defence caused disease or that the death of the member was defence caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note 1:For member of a Peacekeeping Force, peacekeeping service, member of the Forces, hazardous service and British nuclear test defence service see subsection 5Q(1A).
Note 2:This subsection is affected by section 120A.
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war caused injury or a defence caused injury;
(b)that the disease was a war caused disease or a defence caused disease; or
(c)that the death was war caused or defence caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
In relation to the standard of proof of the medical condition claimed s 120(4) is attracted and this states:
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
While not considered by the Tribunal in the two earlier decisions, nor by the Federal Court decisions, a claim has now been filed in the current matter under s 70 of the Act. Section 70 provides:
70 Eligibility for pension under this Part
(1)Where:
...
(b)a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence caused injury or a defence caused disease;
the Commonwealth is, subject to this Act, liable to pay:
...
(d)in the case of the incapacity of the member—pension by way of compensation to the member;
in accordance with this Act.
Section 70(5)(d)(i) and (ii)
(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence caused, an injury suffered by such a member shall be taken to be a defence caused injury or a disease contracted by such a member shall be taken to be a defence caused disease if:
...
(d)the injury or disease from which the member died, or is incapacitated:
(i) was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or ...
The Tribunal, in applying the reasonable hypothesis standard of proof, is required to do so in accordance with any SoP made pursuant to s 196(b)(2) and (8) of the Act. The applicable SoPs in this matter, as elected by the applicant, are:
·Instrument No 82 of 2014 concerning Post Traumatic Stress Disorder;
·Instrument No 65 of 2016 concerning Suicide and Attempted Suicide;
·Instrument No 102 of 2014 as amended by compilation No 1 of 2 November 2016 concerning Anxiety Disorder; and
·Instrument No 2 of 2009 as amended by Instrument No 30 of 2014 concerning Alcohol Use Disorder
The Tribunal notes that these more recent amendments to the SoPs have followed from the publication of the 5th edition of The Diagnostic and Statistical Manual of Mental Disorder (DSM‑V) in late 2014.
In determining the question of whether a disease or injury is war-caused the Tribunal is required to follow the steps established by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97:
... the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:
1.The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4.The tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
SUBMISSIONS
The representatives of both parties addressed the s 70 claim. This was a new claim which had not been before the Federal Court or any previous Tribunal. As a result, it raised the question of the Tribunal’s jurisdiction to hear this claim. The Tribunal will therefore deal with this these submissions before those of the substantive issue as remitted to the Tribunal by the Federal Court.
Ms McKinley first gave notice of the s 70 claim in December 2016. At the Commission’s request a telephone directions hearing was conducted on 14 December 2016. The Tribunal adjourned the hearing listed on 15 December 2016 as it would be prejudicial to the respondent not to do so, it having had no time to consider the s 70 claim. In accordance with the General Direction of the Tribunal the parties had been required to file all their documentation by 6 June 2016.
Mr De Marchi submitted that Ms McKinley’s defence service contribution to her psychiatric disorders had been before the VRB as she had never withdrawn such a claim; and the decision-maker at first instance had considered and determined her claims in relation to both operational and defence service. As Ms McKinley had not withdrawn the defence service claim, it was contended that the VRB and therefore this Tribunal were bound by s 155 of the Act with respect to dismissal of an application.
Mr De Marchi contended that the VRB had committed an error of law, despite the advocate reporting to the VRB that Ms McKinley’s 2012 claim related only to operational service. He further submitted that the VRB had to satisfy itself as to the extent of the claim and did not do so when it accepted the advocate’s statement that only operational service was to be considered.
In support of his submissions, Mr De Marchi relied on the authority of Budworth and Repatriation Commission (2001) 63 ALD 422 and the Repatriation Commission v Stafford (1995) 56 FCR 132. In Budworth the Court stated that the Tribunal had a duty to enquire and consider alternative diagnoses in relation to a mental disorder, and in Stafford the Full Court held that it was not open to the VRB to find that Mr Stafford had withdrawn from consideration two medical conditions addressed by the Commission delegate. Mr De Marchi did not refer to the obiter of the Full Court indicating that if the conditions had been formally withdrawn they would not be subject to review by the Tribunal.
Mr De Marchi cited several other authorities tangentially relevant to the argument. Based on the cited authorities it was contended that the Tribunal could consider the defence service in relation to whether Ms McKinley’s service at Queenscliff contributed to the development or aggravation of her GAD, alcohol abuse and attempted suicide. He argued that Ms McKinley was exposed to a Category 2 stressor while at Queenscliff and that this exposure had occurred within six months of the worsening of her psychiatric conditions.
Mr De Marchi had referred to the decision of Finn J in Repatriation Commission and Milenz (2006) 93 ALD 107 as an authority for the clinical worsening of conditions but did not address this in his submissions.
Ms Dowsett for the respondent agreed that both defence and operational service had been considered by the delegate of the Commission in their determination of 3 December 2012. The 2005 decision of the delegate of the Commission also considered both operational and defence service and as to whether either of these had contributed to Ms McKinley’s psychiatric disorders.
The Tribunal has found Ms McKinley to be a very unreliable witness, as illustrated by the conflicting statements and descriptions of stressors that she has made during the past 12 years. While she has attributed this conflicting evidence to her poor memory, associated with GAD and her alcohol abuse disorder, any memory defect has been refuted by her treating psychiatrist and treating general practitioner.
In applying Step Four of Deledio to the nominated stressful incidents, the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for accepting the raised facts as the evidence on which they are based is so unreliable that their existence is unsubstantiated.
The Tribunal affirms the decision under review.
I certify that the preceding 173 (one hundred and seventy-three) paragraphs are a true copy of the reasons for the decision herein of:
Miss E A Shanahan, Member and Ms A Burke, Member
[sgd]........................................................................
Associate
Dated: 15 June 2017
Dates of hearing: 20 & 21 February 2017, 24 March 2017 Solicitor for the Applicant: Mr Dino De Marchi De Marchi and Associates Counsel for the Respondent: Ms Cathy Dowsett Advocate for the Respondent: Mr David Brown Australian Government Solicitors APPENDIX
APPLICANT’S EXHIBITS
A1 Witness Statement of Jennifer Anne Warren dated 14/6/16
A2 Witness Statement of Jennifer Anne Warren dated 3/2/17
A3 Witness Statement of Ronald Warren dated 8/6/16
A4 Two photographs of Applicant's legs displaying cuts
A5 Medical Report of Dr Jenkins dated 23/4/14
A6 Medical Report of Dr Ironside dated 31/1/17
A7 Transcript of VRB proceedings 30/5/13 prepared by Tribunal
RESPONDENT’S EXHIBITS
R1 T-Documents lodged with Tribunal on 12/9/13 (pages 1-372)
R2Witness Statement of Jennifer Anne McKinley dated 11/12/13 (previously "Exhibit A1" in 2014 hearing)
R3 Army personnel records lodged with Tribunal on 1/4/16 (pages 192-432)
R4 T-Documents from V2005/970 lodged with Tribunal on 1/4/16 (pages 1-146)
R5 Supplementary T-Documents lodged with Tribunal on 16/2/17 (pages 1-24)
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Appeal
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Standing
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