Pesch and Repatriation Commission (Veterans' entitlements)

Pesch and Repatriation Commission (Veterans' entitlements) [2020] AATA 4907 (4 December 2020)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2019/0223
Re:Hans Pesch
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Britten-Jones
Member Ormston
Date:4 December 2020
Place:Adelaide

The decision under review is affirmed.
.......................................................................
Deputy President Britten-Jones
CATCHWORDS
VETERANS' AFFAIRS – Veterans' entitlements – Operational service in Vietnam – the meaning of ‘taken to have been allotted for duty’ in section 5B(2)(c) of the Veterans’ Entitlements Act 1986 – the effect of the dates in the written instrument signed by the Defence Minister and dated 23 December 1997 - Whether the veteran suffers from Generalised Anxiety Disorder – Whether the veteran suffers from Alcohol Use Disorder –– Decision under review affirmed.
LEGISLATION
Veterans' Entitlements Act 1986 ss 6, 9, 13(1), 120, 120A
SECONDARY MATERIALS
Ministerial Determination of the Minister for Defence Industry, Science and Personnel dated 23 December 1997
Statement of Principles Instrument No. 102 of 2014
REASONS FOR DECISION
Deputy President Britten-Jones
Member Ormston
INTRODUCTION

The applicant, Mr Hans Pesch, served in the Royal Australian Navy (RAN) as a diver from 2 January 1968 to 2 March 1973, which included two periods of operational service in Vietnam on HMAS Swan in October and December 1971. In 1970, as a 17-year-old, he was posted to HMAS Derwent. In March 1970 his ‘diving buddy’ died during a night diving exercise in Manila harbour. Mr Pesch was greatly affected by his friend’s tragic death. He later developed an anxiety disorder and an alcohol use disorder. Mr Pesch seeks a pension by way of compensation under the Veterans’ Entitlements Act 1986 (the Act).
Mr Pesch suffers sensorineural hearing loss that has been accepted as service-related and for which he has been receiving a disability pension at 50 per cent of the general rate of disability. Mr Pesch has also been diagnosed with generalised anxiety disorder and alcohol dependence, though neither condition has been accepted by the Repatriation Commission.
Background to this application
On 8 June 2000, Mr Pesch lodged a claim for disability pension for ‘anxiety’. On 2 November 2000, the Repatriation Commission refused claims for anxiety disorder and alcohol abuse on the basis that these conditions were not related to his operational or eligible service. Mr Pesch then applied to the Veterans’ Review Board (VRB) for a review of that decision. On 9 August 2002, the VRB affirmed the decision of the Repatriation Commission. Mr Pesch appealed the VRB’s decision to the Administrative Appeals Tribunal (the Tribunal) but his application was subsequently withdrawn.
On 2 February 2007, Mr Pesch lodged a claim for disability pension for ‘emotional behaviour’, which was refused by the Repatriation Commission (as anxiety disorder and alcohol dependence) on 3 April 2007 on the basis that these conditions were not related to his operational or eligible service.
On 12 June 2009, Mr Pesch lodged a claim for disability pension for an ‘emotional/ psychological condition’, which was refused by the Repatriation Commission (as anxiety disorder and alcohol dependence) on 22 July 2009 on the basis that these conditions were not related to his operational or eligible service.
On 6 March 2017, Mr Pesch lodged a claim for disability pension for ‘anxiety disorder’, ‘alcohol abuse’ and ‘nicotine dependence’. On 4 August 2017, the Repatriation Commission refused the claims for anxiety disorder and alcohol dependence on the basis that these conditions were not related to his operational or eligible service, while determining there was no medical condition present to answer the claim for nicotine dependence. On 1 September 2017, Mr Pesch applied to the VRB for a review of the decision, which was affirmed on 9 November 2018. On 14 January 2019, Mr Pesch sought a review by the Tribunal, giving rise to these proceedings.
Contentions of the parties

Mr Pesch contends that HMAS Derwent entered Vung Tau harbour in the waters of Vietnam sometime in May or June 1970 and that he suffered a mental breakdown because he felt like a sitting duck and feared diving in the fast flowing and dark waters.
The respondent denies that HMAS Derwent sailed to Vung Tau harbour but says that the Tribunal need not resolve that factual dispute because liability does not arise in any event under the relevant provisions of the Act. We refer to this as the respondent’s primary argument and we deal with it first.
Legislative Scheme relevant to consideration of the Respondent’s primary argument
Under s 13(1) of the Act, the Commonwealth is liable to pay a pension by way of compensation to a veteran who is incapacitated from a war-caused injury. The word “veteran” is legislatively loaded. To determine if Mr Pesch comes within its meaning, it is necessary to have reference to s 13(11), s 7(1)(a), s 6C, s 5B(2)(c), Schedule 2 – Operational areas and a ministerial instrument dated 23 December 1997.
Section 13(11) provides that a veteran is a person who is, because of s 7, taken to have rendered eligible war service. Section 7(1)(a) provides that a person who has rendered operational service shall be taken to have been rendering eligible war service whilst the person was rendering operational service. Operational service post World War 2 is defined in s 6C which provides:
Operational service-post World War 2 service in operational areas
(1) Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as:
(a) a member who was allotted for duty in that area; or
(b) a member of a unit of the Defence Force that was allotted for duty in that area;
is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.
An operational area, by reference to Schedule 2 of the Act, includes Vietnam and its immediate waters. The effect of s 5B(2)(c) in this case is that a person that is allotted for duty is a person that is, by written instrument, taken to have been allotted for duty in an operational area of Vietnam. In this case, the written instrument is a determination made by the Minister for Defence Industry, Science and Personnel dated 23 December 1997 (the Ministerial Determination). The Ministerial Determination defines the period during which a person is taken to have been allotted for duty in the operational area of Vietnam. Consequently, there is both a temporal and geographic element needed to satisfy the requirements of being allotted for duty for the purpose of the s 6C(1) definition of operational service.
Consideration of the Respondent’s primary argument
The Ministerial Determination provides for three separate periods in 1966, 1969 and 1971 for a person on HMAS Derwent to be taken to have been allotted for duty in the operational areas of Vietnam and its waters. Mr Pesch’s case centres around events on the voyage of HMAS Derwent from Singapore to Japan and back again in 1970. For this reason, the respondent says that Mr Pesch’s case must fail because, leaving aside the issue of whether HMAS Derwent entered the waters of Vietnam, it is not in dispute that the relevant voyage took place in 1970 which is not a period included in the written instrument. Schedule A of the Ministerial Determination dictates the periods in which any veteran posted to HMAS Derwent was ‘allotted for duty’ in an operational area. Those periods are limited to 26 May to 13 June 1966; 10 February to 18 February 1969; and 4 November to 8 November 1971. It follows that the temporal requirement is not satisfied and Mr Pesch has failed to establish that he was a person allotted for duty as required by the definition of operational service in s 6C. It further follows that Mr Pesch was not a person who rendered eligible war service and is therefore not a veteran who may make a claim for a pension under s 14.
An issue arose as to whether Mr Pesch could establish that he was in fact allotted for duty in an operational area by establishing on the facts that he had entered Vung Tau harbour during the 1970 voyage. Support for this proposition comes from the inclusion of the words ‘is taken to have been allotted for duty’ in both the Ministerial Determination and s 5B(2)(c). Do these words amount to a statutory presumption which can be rebutted by evidence that he was in fact allotted for duty in an operational area?
This is a question of statutory interpretation which requires a contextual approach. We answer that question in the negative. The Act provides for a statutory scheme of compensation under which the Commonwealth will be liable if certain provisions in the Act are satisfied. There is no other way that a veteran can establish liability other than by satisfying the provisions in the Act. Mr Pesch does not satisfy those provisions.
We accept the respondent’s contention that it is fatal to Mr Pesch’s case that the Ministerial Determination does not include any dates in 1970. Even if Mr Pesch satisfied the other elements required to establish liability on the part of the Commonwealth, the case fails because of this temporal requirement in the legislative scheme. Mr Pesch does not come within the dates set out in the Ministerial Determination for HMAS Derwent and he is therefore not entitled to compensation arising from the voyage in 1970. If we are wrong about this, we deal below with the case as contended for by Mr Pesch.
THE ISSUES on Mr Pesch’s case
It is common ground that Mr Pesch suffers from generalised anxiety disorder, as first diagnosed by Dr Martyn Ewer, a consultant psychiatrist, in a report to the Department of Veterans Affairs (DVA) dated 7 September 2000.[1] That diagnosis was corroborated by Dr Barry Rowe, also a consultant psychiatrist, in a report dated 20 June 2017, who identified that the first signs of general psychiatric disruption (clinical onset) became manifest ‘very soon after Mr Pesch’s service in the Navy’, which concluded in March 1973.[2]
[1] Exhibit 1, T6/23-30, Report of Dr Marty Ewer, Consultant Psychiatrist dated 7 February 2000, p 27.
[2] Exhibit 1, T30/127-137, Report of Dr Barry Rowe, Psychiatrist dated 20 June 2017, p 136.
However, Dr Ewer was mistaken in his September 2000 report in asserting that ‘Mr Pesch’s generalised anxiety disorder is directly related to his war service’ because he was incorrectly advised by Mr Pesch that he had been exposed to a severe psychosocial stressor in the form of the death of his friend and fellow diver when HMAS Derwent was berthed in Vietnam, when in fact the incident occurred in Manila (a non-operational area of service), as later corrected and admitted by Mr Pesch.
Mr Pesch also contends that, in addition to his two accepted periods of operational service, he was on board HMAS Derwent when he alleges it visited Vung Tau (a port city of Phuoc Tuy province in southern Vietnam) in either May or June 1970, during the era commonly referred to as the Vietnam War, and that he experienced a severe psychosocial stressor during that visit.
The issues, therefore, from the perspective of Mr Pesch, are
(a)whether HMAS Derwent was present in an operational area, specifically Vietnam (Southern Zone), during May or June 1970; and
(b)whether Mr Pesch experienced a severe psychosocial stressor during any period of his operational service.
THE LEGAL FRAMEWORK
Section 13(1) of the Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
Section 9 of the Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
9        War-caused injuries or diseases
(1)       Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)     the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)     the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)     the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)     the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war‑caused injury or a war‑caused disease;
(e)       the injury suffered, or disease contracted, by the veteran:
(i)        was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)       was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
The expression “operational service” is defined in ss 6 to 6F of the Act. Under s 6C, a person renders operational service if he or she is, inter alia, allotted for duty in an operational area. It is common ground that Mr Pesch’s service in (or off) Vietnam in October 1971 and December 1971 was operational service.
Section 120 of the Act provides for the standard of proof applicable to the determination of whether any psychiatric condition suffered by Mr Pesch is war-caused. That section provides relevantly as follows:
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.
...
(3)       In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining
(a)        that the injury was a war-caused injury or a defence-caused injury;
(b)       that the disease was a war-caused disease or a defence-caused disease; or
(c)       that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A
(4)       Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction
Note: This subsection is affected by section 120B.
Section 120A of the Act provides relevantly that in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority has made a Statement of Principles (SoP) in respect of a particular kind of injury or disease, the reasonableness of a hypothesis connecting the relevant injury or disease with the veteran’s operational service is to be assessed by reference to that SoP.
CONSIDERATION OF THE EVIDENCE
Was HMAS Derwent present in the operational area of Vietnam (Southern Zone) during May or June 1970?
Mr Pesch’s contention is that HMAS Derwent, while in transit from Japan to Singapore in May 1970 – or after berthing in Singapore in June 1970 – diverted to Vung Tau harbour in Vietnam to drop off Australian or US covert agents. His recollection is that this most likely occurred in May 1970, after the ship had briefly visited Subic Bay (in the Philippines). Mr Pesch said in evidence to the Tribunal that he recalled rumours among the crew that several covert agents came aboard at Subic Bay and were in the ship’s ward-room (the officers’ accommodation/mess hall). Mr Pesch said HMAS Derwent then proceeded to Vung Tau, where he believes it dropped the agents and stayed overnight before resuming its voyage to Singapore.
In support of his contention, Mr Pesch called as a witness David Roderick Mitchell, who had served with him on HMAS Derwent. Mr Mitchell had provided a statutory declaration asserting that ‘[on] HMAS Derwent 1970, I and Hans Pesch was on board for a trip … to Japan, including trip into Vung Tau harbour’.[3] Mr Mitchell appeared before the Tribunal via telephone and confirmed his declaration. In his oral evidence he said that ‘I was told that we went in to Vung Tau’ and ‘apparently dropped people’. He said he had heard the rumours about covert agents being on board after the ship departed Subic Bay. He also said he was a stoker, working in the engine-room, and that he had not gone on deck while the ship was at Vung Tau. The evidence of Mr Mitchell is hearsay based on rumour and we give it very little weight.
[3] Exhibit 1, T34/159, Statutory Declaration of Mr David Mitchell dated 29 September 2017, p 159.
Mr Pesch had also intended to call as a witness another person who had been on the ship at the time, John Lindfield, who had provided an email to Mr Pesch to the effect that in 1970 ‘we were deployed over a few nights to enter into Vung Tau harbour in Vietnam to take in US CIA operatives’.[4] Unfortunately, Mr Lindfield has since passed away and his evidence could not be tested by the Tribunal. In these circumstances we give it little weight.
[4] Exhibit 1, T35/160-161, Email from Mr John Lindfield dated 11 October 2017, p 160.
Mr Pesch also referred the Tribunal to a report from Mr Ralph Bönig, special counsel at Finlaysons Lawyers, dated 5 May 2020.[5] It included a detailed analysis of the location and activities of HMAS Derwent during the period 1 January 1970 to 30 June 1970, derived from an examination of the official ‘reports of proceedings’, being monthly reports submitted by the ship’s captain to RAN Fleet Headquarters, including day-by-day records of the ship’s location and activities. The report contends that during the period 14 to 21 May 1970, while undertaking a passage from Japan to Singapore, HMAS Derwent would have been in the South China Sea approximately off the coast of Vietnam. It also contends that the official report of proceedings contains only a ‘generalised comment’ as to the ship’s activities at that time and that on 20 May 1970 ‘HMAS Derwent travelled in excess of an economical speed for a period of 24 hours at 20.1 knots’.[6]
[5] Exhibit 6, Report of Mr Ralph Bönig, Special Counsel dated 5 May 2020.
[6] Exhibit 6, Report of Mr Ralph Bönig, Special Counsel dated 5 May 2020, p 2.
Mr Bönig’s report also contends there are a total of 28 hours unaccounted for by the June 1970 report of proceedings at the time HMAS Derwent was operating in the South China Sea, based on only very sketchy details of the ship’s involvement in a naval exercise, and asserts that ‘the exact whereabouts of the ship is unknown for approximately 3 days’.[7] Mr Pesch contended that the inconsistencies and gaps in the official reports, revealed by the Bönig report, support his contention that HMAS Derwent made a ‘secret’ visit to Vietnam in either May 1970 or June 1970, which was excluded from the official reports of proceedings because of the covert nature of the operation.
[7] Exhibit 6, Report of Mr Ralph Bönig, Special Counsel dated 5 May 2020, p 3.

Counsel for the respondent referred the Tribunal to a report by Mr Garry Heald, a military researcher commissioned by the VRB, dated 31 May 2018 that included the official ‘reports of proceedings’ of HMAS Derwent for the months of May and June 1970.[8] Those reports made no mention of the ship entering Vietnamese waters or being berthed at Vung Tau or any other Vietnamese port during those months. Mr Heald concluded that he had not been able to identify or locate any record that supports the contention that HMAS Derwent deployed to Vietnam during those months. Attached to the report are HMAS Derwent’s Reports of Proceedings for May 1970, dated 5 June 1970, and June 1970, dated 10 July 1970, both signed by the Captain. These contemporaneous and official records document the itinerary of HMAS Derwent in May and June 1970 and neither includes mention of Vung Tau.
[8] Exhibit 5, Report [Confidential].
We have considered the evidence given with respect to the whereabouts of HMAS Derwent in 1970 and prefer the official records over the unsubstantiated recollections of Mr Pesch, Mr Mitchell and Mr Lindfield. The report from Mr Heald is comprehensive and does not support the recollection of Mr Pesch. The Tribunal considers that Mr Pesch’s memory of the issues has understandably been eroded by the passage of time, including where and when the death of his friend Able Seaman McKee occurred. The Tribunal also notes that Mr Mitchell admitted he spent the majority of his time at sea ‘below decks’ and that his understanding of the events in question was not first-hand.
We consider that the evidence supports a finding that HMAS Derwent did not enter Vung Tau harbour in 1970. This finding is supported by the Ministerial Determination which records the deployment of HMAS Derwent to operational areas in 1966, 1969 and 1971.
Did Mr Pesch experience a severe psychosocial stressor during any period of his operational service?
As mentioned earlier, Mr Pesch told Dr Ewer at his first interview in September 2000 that the ‘one particular event that affected him both at the time and subsequently’ related to the death of his close friend (Able Seaman McKee) in a diving accident that occurred in Vietnam.[9] As recounted by Dr Ewer, Mr Pesch ‘had difficulty telling me precisely when this event occurred but he said it occurred during his trip to Vietnam’.[10] In the event, it was later established that the death of Able Seaman McKee occurred in Manila (a non-operational area of service in the Philippines) during a diving exercise from HMAS Derwent on 25 March 1970.[11]
[9] Exhibit 1, T6/23-30, Report of Dr Marty Ewer, Consultant Psychiatrist dated 7 September 2000, p 24.
[10] Exhibit 1, T6/23-30, Report of Dr Marty Ewer, Consultant Psychiatrist dated 7 September 2000, p 24.
[11] Exhibit 1, T13/51-52, Letter from Department of Defence to Department of Veterans’ Affairs dated 3 October 2001, p 51.
In a 2002 meeting with Dr Brian Timney, a consultant psychiatrist, Mr Pesch reportedly said his later tour of duty on HMAS Swan ‘was uneventful and without difficulty’.[12] In a 2009 meeting with Dr Ewer, Mr Pesch said he could not recall any other stressors whilst in the navy’.[13]
[12] Exhibit 1, T16/57-64, Report of Dr Brian Timney, Consultant Psychiatrist dated 17 July 2002, p 58.
[13] Exhibit 1, T20/83-87, Report of Dr Marty Ewer, Consultant Psychiatrist dated 15 July 2009, p 84.
Mr Pesch, however, contended in a letter to DVA dated 12 December 2000 that ‘every time I went back into the water [on naval diving operations after the Manila incident], I did so very reluctantly and feared for my own life’.[14] Mr Pesch also told the VRB on 25 October 2018 that ‘he did not dive in Vietnam but was frightened to do so’.[15] In his evidence to the Tribunal, Mr Pesch said that when HMAS Derwent was in Vietnam in May or June 1970, ‘the water was murky, we were sitting ducks and I was terrified of dying’.
[14] Exhibit 1, T10/39-40, Letter from Applicant to Respondent dated 19 December 2000, p 40.
[15] Exhibit 1, T1/1-15, Notice of Application for Review of Decision dated 15 January 2019, p 9.
Mr Pesch also asserted in a statement sent to the Tribunal on the morning of the hearing that ‘I had a mental breakdown that day which I never told anyone at the time as it was not the done thing’.[16] In answering a question from the Tribunal, Mr Pesch could not explain what constituted the threat to the ship (as a ‘sitting duck’) nor whether he was aware of any Australian or allied warships having come under enemy attack while at Vung Tau. His consistent contention was that he was grievously concerned at the death of his friend in Manila and feared something similar would happen to him.
[16] Exhibit 7, Statement of Hans Pesch dated 12 November 2020.
There is no question that Mr Pesch experienced a severe psychosocial stressor as a result of the death of Able Seaman McKee. However, the SoP currently in force relating to anxiety disorder, namely Instrument No 102 of 2014, relevantly provides as follows:
Factors
6.      The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service is:
(i)experiencing a category 1A stressor within the five years before the clinical onset of anxiety disorder; or
(ii)experiencing a category 1B stressor within the five years before the clinical onset of anxiety disorder; or
(iii)experiencing a category 2 stressor within the one year before the clinical onset of anxiety disorder
For the purposes of this Statement of Principles:
"a category 1A stressor" means one of the following severe traumatic events:
(a)experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means one of the following severe traumatic events:
(a)killing or maiming a person;
(b)being an eyewitness to a person being killed or critically injured;
(c)being an eyewitness to atrocities inflicted on another person;
(d)participating in the clearance of a corpse or a critically injured casualty; or
(e)viewing a corpse or a critically injured casualty as an eyewitness
"a category 2 stressor" means one of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:
(a)   being socially isolated and unable to maintain friendships or family relationships, due to physical location, language barriers, disability, or medical or psychiatric illness;
(b)   having concerns in the work or school environment including on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful workloads, or experiencing bullying in the workplace or school environment
As already mentioned, Dr Rowe in his report of 20 June 2017 assessed the clinical onset of Mr Pesch’s anxiety disorder as occurring after March 1973. To substantiate that Mr Pesch’s anxiety disorder was service-related, the Tribunal would therefore need to be reasonably satisfied that he experienced a Category 1A or 1B stressor in the five years after March 1968 or a Category 2 stressor in the one year after March 1972 that was related to his operational service.
The Tribunal heard no contentions from Mr Pesch relating to a Category 1B or Category 2 stressor, nor the subparagraph (b) or (c) provisions of a Category 1A stressor. Moreover, Mr Pesch said he experienced no particular stressors while on operational service with HMAS Swan in October and December 1971. Therefore, the question is whether Mr Pesch’s contention that he ‘was terrified of dying’ while on HMAS Derwent during its purported visit to Vietnam in May or June 1970 could be construed as ‘experiencing a life-threatening event’.
It is understandable that Mr Pesch would have been frightened being on a RAN warship in Vietnamese waters during the Vietnam War, particularly as a young man of 17 or 18, a point stressed by his wife to the Tribunal. It is also likely he would have heard stories of enemy limpet bombs being attached to ships, even though he made no mention to the Tribunal of any such possibility influencing his threat perception at the time, other than the mention of murky water around the ship, which presumably related more to the likely difficulties that divers would encounter should they be deployed. He was also unable to articulate his concern that the ship was a ‘sitting duck’, while conceding he knew of no Australian or allied warship having been attacked in Vung Tau harbour. Mr Pesch’s contention that he suffered a mental breakdown while HMAS Derwent was at Vung Tau cannot be corroborated.
Mr Pesch’s main concern, as expressed to the Tribunal, was that he was fearful he might suffer the same fate as his friend Able Seaman McKee, whose death he asserted was never properly investigated and, indeed, was ‘covered up’ by the authorities. However, such concerns and understandable fears by a young man, disillusioned with ‘the authorities’ and probably alienated from his immediate chain of command, could not reasonably be construed as ‘experiencing a life-threatening event’ within the meaning of the SoP.
CONCLUSION
We conclude that Mr Pesch did not have operational service in Vietnam in May or June 1970 and that he did not experience any of the factors that must exist as a minimum before it can be said that a reasonable hypothesis has been raised connecting his conditions with the circumstances of his relevant service.
DECISION
The decision under review is affirmed.

38.     I certify that the preceding forty-three [43] paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.

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Administrative Assistant Legal
Dated    4 December 2020
Dates of hearing:  12 November 2020
Applicant’s Representative:  Self-represented
Respondent’s Representative:  Mr P d’Assumpcao of counsel, instructed by Sparke Helmore

[2020] AATA 4907

4 December 2020

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