Pool and Repatriation Commission (Veterans' entitlements)

Pool and Repatriation Commission (Veterans' entitlements) [2024] AATA 2884 (15 August 2024)
Division:VETERANS APPEALS DIVISION
File Number(s): 2020/0386
Re:Fleur POOL
APPLICANT

REPATRIATION COMMISSIONAnd
RESPONDENT

DECISION
The decision under review is affirmed.
Tribunal:Senior Member George and Lieutenant Colonel Ormston
Date:15 August 2024
Place:Adelaide

Click here to enter decision.
.......................[Sgnd].............................................
Senior Member George
.......................[Sgnd]..............................................
Lieutenant Colonel Ormston
CATCHWORDS
VETERANS – jurisdiction of the Tribunal – death of veteran – antecedent cause of death – depressive disorder – alcohol use disorder – substance use disorder – clinical onset – Category 1A stressor – serious physical assault – death threats – Category 1B stressor – viewing corpse – Category 2 stressor – bullying – disharmony in the workplace – marginalisation in the workplace – decision is affirmed
LEGISLATION
Military Rehabilitation and Compensation Act 2004
Military Rehabilitation and Compensation (Consequential & Transitional Provisions) Act 2004
Safety, Rehabilitation and Compensation (Defence-related claims) Act 1988
Veterans’ Entitlement Act 1986
CASES
Beezley v Repatriation Commission (2015) 150 ALD 11
Stafford v Repatriation Commission [1995] FCA 44
Youngnickel v Repatriation Commission [2004] FCA 1691
SECONDARY MATERIALS
Statement of Principles concerning Depressive Disorder (Balance of Probabilities)
(No. 84 of 2015)
Statement of Principles concerning Alcohol Use Disorder (Balance of Probabilities)
(No. 49 of 2017)
Statement of Principles concerning Substance Use Disorder (Balance of Probabilities) (No. 60 of 2017)
REASONS FOR DECISION
Senior Member George
Lieutenant Colonel Ormston
15 August 2024
INTRODUCTION

Fleur Pool (‘the Applicant’) is the widow of the late Michael Pool, who served in the Royal Australian Navy (RAN) from 8 March 1982 to 13 November 2007.
Mr Pool (‘the Veteran’) died on 27 December 2015, aged 51 years. His cause of death was aspiration pneumonia with the antecedent cause of death being mixed drug and alcohol toxicity.[1]
[1] Exhibit R1, T-Documents, T19, NSW Coroner’s Report dated 13 December 2016, page 76.
On 2 May 2016, the Applicant lodged a claim for compensation in respect of the death of her husband.[2] On 10 March 2017, a delegate of the Repatriation Commission rejected the application on the basis that the Veteran’s death was not related to his service and that a pension was therefore not payable under the Veterans’ Entitlement Act 1986 (‘the Act’).[3]
[2] Exhibit R1, T-Documents, T6, Claim for Compensation dated 2 May 2016, pages 11-19.
[3] Exhibit R1, T-Documents, T5, Repatriation Commission Decision dated 10 March 2017, pages 5-10.
On 5 June 2017, the Applicant requested a review of the determination. On 7 November 2019, the Veterans’ Review Board (VRB) affirmed the determination of 10 March 2017.[4] On 15 January 2020, the Applicant lodged an application to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision dated 10 March 2017.[5]
[4] Exhibit R1, T-Documents, T2, Determination by Department of Veterans Affairs dated 10 March 2017, pages B-B8.
[5] Exhibit R1, T-Documents, T1, Appeal to the Administrative Appeals Tribunal dated 15 January 2020, pages A1-A5.
On 27-29 September 2023, the Tribunal considered the Applicant’s appeal and reserved its decision, pending written closing submissions.[6] On 23 July 2024, the parties agreed to the matter being decided by a reconstituted Tribunal, taking account of the tendered material and the transcript of proceedings from the hearing on 27-29 September 2023, together with written closing submissions.
[6] Transcript of Proceedings, AAT No. 2020/0386 dated 27-29 September 2023.
THE LEGISLATIVE FRAMEWORK
Section 70(1) of the Act relevantly provides that where the death of a member of the forces was defence caused then the Commonwealth is liable to pay a pension by way of compensation to the member’s dependants. Under s 70(5) of the Act, the death of a member shall be taken to have been defence-caused if the death arose out of or was attributable to the member’s defence service.
Section 120(4) of the Act relevantly provides that the applicable standard of proof is for the Tribunal to decide the relevant issues to its ‘reasonable satisfaction’.
Section 120B of the Act relevantly provides as follows:
120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
…
(b) a claim under Part IV that relates to the defence service (other than hazardous
service and British nuclear test defence service) rendered by a member of the
Forces.
…
Outline of Submissions
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably
satisfied that an injury suffered by a person, a disease contracted by a person or the
death of a person was war-caused or defence-caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3); that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person; as the case may be.
9.Subsections 196B(3) and (14) of the Act relevantly provide as follows:
Determination of Statement of Principles
…
(3) If the Authority is of the view that on the sound medical-scientific evidence available it is
more probable than not that a particular kind of injury, disease or death can be related to:
…
(b) defence service (other than hazardous service and British nuclear test defence
service) rendered by members of the Forces; … the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(c) the factors that must exist; and
(d) which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.
(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a) it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
(c) it resulted from an accident that occurred while the person was travelling, while
rendering that service but otherwise than in the course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii) away from a place of duty upon having ceased to perform duty; or
(d) it was contributed to in a material degree by, or was aggravated by, that service; or
(e) in the case of a factor causing, or contributing to, an injury—it resulted from an
accident that would not have occurred:
Outline of Submissions
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person’s environment consequent upon his or her
having rendered that service; or
(f) in the case of a factor causing, or contributing to, a disease—it would not have
occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person’s environment consequent upon his or her
having rendered that service; or
(g) in the case of a factor causing, or contributing to, the death of a person—it was
due to an accident that would not have occurred, or to a disease that would not
have been contracted:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person’s environment consequent upon his or her having rendered that service.
ISSUE
10.The reviewable decision is whether the Repatriation Commission (‘the Respondent’) is liable under the Act to pay compensation to the Applicant in respect of the death of her late husband. The issue, therefore, is whether the Veteran’s death was caused by his defence service.
A PRELIMINARY QUESTION OF THE TRIBUNAL’S JURISDICTION
It is common ground that the Veteran served full-time in the RAN from 8 March 1982 to 7 March 1988 and again from 16 October 1989 to 13 November 2007, at which stage he was transferred to the Active Reserve Force. However, a preliminary question arose at the Tribunal hearing on 27 September 2023 as to whether its jurisdiction was limited regarding the Veteran’s second period of full-time service.
The Respondent, represented by Mr O’Brien, presented a written submission to the Tribunal in which he noted that under Part IV of the Act, liability for an injury or disease on peacetime service only arises if the injury or disease was caused during a period of at least 3 years continuous defence service between 7 December 1972 and 6 April 1994, although that period is extended to 30 June 2004 where enlistment occurred before 22 May 1986, the date the Act was enacted.[7]
[7] As recorded in Transcript of Proceedings, AAT No. 2020/0386 dated 28 September 2023, page 2, lines 1-3.
The Respondent contends that because the Veteran’s second period of full-time service commenced on 16 October 1989, he was not rendering service in that instance before 22 May 1986, therefore his period of eligible service under the Act is 16 October 1989 to 6 April 1994, with his service from 6 April 1994 instead covered by the Safety, Rehabilitation and Compensation (Defence-related claims) Act 1988 (‘the DCRA’).[8]
[8] Submission by the Commission to the AAT dated 27 September 2023, page 2, paragraphs 8-14.
The Respondent further contends that because the Applicant’s claim was determined only in relation to the Act, the jurisdiction of the Tribunal is restricted to its review of that decision, and that ‘any other evidence that is given about what may have happened after that time is therefore not relevant to what the tribunal can determine’.[9]
[9] Transcript of Proceedings, AAT No. 2020/0386 dated 28 September, page 8, lines 45-47.
The Applicant, represented by Mr Saunders, contends that while this matter was determined under the Act, rather than other possible legislation, ‘the Repatriation Commission needs to be able to administer their own legislation beneficially for the veteran’.[10] Hence, the Applicant contends it would be ‘an absurdity … to be constrained by the manner in which the Repatriation Commission handled this complaint under the VEA … and then say “if you want to make a claim under MRCA [Military Rehabilitation and Compensation Act 2004] go back and start again”’.[11]
[10] Transcript of proceedings, AAT No. 2020/0386 dated 28 September 2023, page 2, lines 24-28 and page 7, lines 2-6.
[11] Transcript of proceedings, AAT No. 2020/0386 dated 28 September 2023, page 3, lines 12-17.
The Applicant also contends that the Commission ‘misapplied their own legislation’ in determining initially that the Veteran ‘has eligible service for the period 8 March 1982 to 30 June 2004’.[12] The Applicant also referred the Tribunal to s 7 of the Military Rehabilitation and Compensation Consequential Transitional Provisions Act 2004 which says ‘if there’s an aggravation or material contribution to a person’s injury or disease and the aggravation or material contribution … relates to defence service rendered before or after 1 July 2004 … this provision applies’.[13]
[12] Transcript of proceedings, AAT No. 2020/0386 dated 28 September 2023, page 4, lines 14-20.
[13] Transcript of proceedings, AAT No. 2020/0386 dated 28 September 2023, page 4, lines 33-40.
The Applicant accordingly contends that ‘if there was an aggravation of a pre-existing [injury or disease] that may have happened in an undetermined time prior to [the Veteran’s second period of service commencing in October] 1989 ... and it was aggravated up until 7 April 1994, the aggravated provisions would still be relevant for [the Tribunal’s] consideration as an available contention’.[14]
[14] Transcript of proceedings, AAT No. 2020/0386 dated 28 September 2023, page 19, lines 34-40.
Finally, in considering the question of whether the Tribunal’s jurisdiction in relation to his second period of service was limited to 16 October 1989 to 6 April 1994, the Applicant contends the Tribunal is not so restricted, drawing the Tribunal’s attention to Stafford v Repatriation Commission where Northrop J, albeit in relation to a review by the VRB, says
It is impermissible for the Commission to claim now that the tribunal has no jurisdiction to review the decision of the Repatriation Commission because the review board had not reviewed part of the matters forming the basis of the decision.[15]
[15] [1995] FCA 44 and Transcript of proceedings, AAT No. 2020/0386 dated 28 September 2023, page 6, lines 33-37.
After considering the submissions from the parties, the Tribunal held that ‘I’m happy to hear evidence beyond those dates [6 April 1994] but I think ultimately we are constrained by those dates’.[16]
[16] Transcript of proceedings, AAT No. 2020/0386 dated 28 September 2023, page 20, lines 8-10.
While acknowledging the frustrations expressed by the Applicant, the reconstituted Tribunal agrees with the Respondent’s contention that the Veteran’s periods of eligible service under the Act are 8 March 1982 to 7 March 1988 and 16 October 1989 to 6 April 1994, and that the Tribunal’s jurisdiction in relation to the reviewable decision is limited to those dates, excepting the provisions of s 7 of the Military Rehabilitation and Compensation (Consequential & Transitional Provisions) Act 2004.
EVIDENCE
In addition to the documents tendered as Exhibits R1 and R2, the Tribunal heard evidence in person from Mrs Fleur Pool, wife of the late Veteran, Mr Steven Evans, a RAN colleague of the late Veteran, and psychiatrists Dr Anthony Dineen and Dr Yvonne Skinner, as recorded in the transcript of proceedings for the hearing on 27-29 September 2023. The Tribunal also considered written closing submissions from both parties.[17]
[17] Closing Submissions of the Applicant dated 27 November 2023 and Respondent’s Outline of Submissions dated 21 May 2024.
CONTENTIONS
The Applicant
The Applicant, at the Tribunal hearing on 27 September 2023, advised that their submission no longer relied on substance use disorder and that there had been some changes to their contentions.[18]
[18] Transcript of proceedings, AAT No. 2020/0386 dated 27 September 2023, page 5, lines 1-7.
In summary, the Applicant now contends ‘there’s two pathways; one is that there was either clinical onset or an aggravation of a pre-existing depressive disorder that led then to an alcohol use disorder, noting that [the Veteran] died basically with a lot of benzodiazepines and alcohol on board his system, and effectively chocked on his own vomit … [which] we say led to his death’.[19]
[19] Transcript of proceedings, AAT No. 2020/0386 dated 27 September 2023, page 5, lines 7-13.
Alternatively, the Applicant contends ‘a more direct pathway simply using the alcohol use disorder … of either a clinical onset in the mid-90s or aggravation of a pre-existing condition relying on Category 1A and 1B and Category 2 stressors to establish these contentions’.[20] The Applicant contends these stressors are that the Veteran ‘viewed a dead body and viewed dead bodies via photographs on many instances … [in his role as] a naval service policeman’.[21]
[20] Transcript of proceedings, AAT No. 2020/0386 dated 27 September 2023, page 5, lines 13-19.
[21] Transcript of proceedings, AAT No. 2020/0386 dated 27 September 2023, page 5, lines 20-26.
The Applicant further contends that the Veteran was subjected to bullying and ‘if people were not adhering to what [the Veteran] considers was the navy way of doing things, there would be a criticism and ostracising in the workplace on an ongoing basis’.[22] The Applicant similarly contends that if the Veteran ‘was conducting investigations, he would be marginalised and ostracised in the workplace, and this led to .. [him] drinking heavily as a result’.[23] The Applicant contends the Veteran’s depressive disorder and/or his alcohol use disorder was aggravated by his service and by his exposure to these Category 2 stressors.[24]
[22] Transcript of proceedings, AAT No. 2020/0386 dated 27 September 2023, page 5, lines 34-37.
[23] Transcript of proceedings, AAT No. 2020/0386 dated 27 September 2023, page 5, lines 37-40.
[24] Transcript of proceedings, AAT No. 2020/0386 dated 27 September 2023, page 5, lines 40 and 41.
The Respondent
26.The Respondent contends that ‘the kind of death’ suffered by the Veteran, as established by the Coroner, was death from aspiration pneumonia with the antecedent cause being the ingestion of alcohol and other substances.[25] The Respondent notes that because the Repatriation Medical Authority has not determined a Statement of Principles (SoP) in respect of aspiration pneumonia, the issue of whether his death was defence-caused must be determined to the Tribunal’s reasonable satisfaction.[26]
[25] Respondent’s Outline of Submissions dated 21 May 2024, page 6, paragraph 31.
[26] Respondent’s Outline of Submissions dated 21 May 2024, page 7, paragraph 32.
27.The Respondent contends that the Veteran’s death from aspiration pneumonia was not defence-caused.[27] Furthermore, if it is found that a kind of death suffered by the Veteran is death from alcohol use disorder, which is denied, the Respondent contends as follows:
[27] Respondent’s Statement of Facts, Issues and Contentions dated 25 September 2023, page 7, paragraph 32.
(a) None of the factors set out in section 9 of the SoP concerning Alcohol Use Disorder (Balance of Probabilities) (No. 49 of 2017) exist in relation to the Veteran. In particular:
(i)The Veteran did not have a clinically significant disorder of mental health as specified at the time of the clinical onset of alcohol use disorder, as required by s 9(1) of the SoP and, even if he did, it was not related to the relevant service rendered by him, as required by s 10 of the SoP.
(ii) The Veteran did not experience a Category 1A or Category 1B stressor within the two years before the clinical onset of alcohol use disorder, as required by s 9(2) and 9(3) of the SoP and, even if he did, it was not related to the relevant service rendered by him, as required by s 10 of the SoP.
(iii) The Veteran did experience severe childhood abuse before the clinical onset of alcohol use disorder, as required by s 9(5) of the SoP, but it was not related to the relevant service rendered by him, as required by s 10 of the SoP.
(iv) The Veteran did not experience a Category 2 stressor within the six months before the clinical onset of alcohol use disorder, as required by s 9(6) of the SoP and, even if he did, it was not related to the relevant service rendered by him, as required by s 10 of the SoP.
(b) Accordingly, it cannot be said that, on the balance of probabilities, alcohol use disorder or death from alcohol use disorder is connected with the circumstances of the Veteran’s relevant service.[28]
[28] Respondent’s Statement of Facts, Issues and Contentions dated 25 September 2023, page 4, paragraph 29.
28.However, if it is found that the Veteran suffered from depressive disorder (which is denied), the Respondent contends as follows:
(a) None of the factors set out in section 9 of the SoP concerning depressive disorder (No. 84 of 2015) exist in relation to the Veteran. In particular:
(i) The Veteran did not experience a Category 1A or a Category 1B stressor within the two years before the clinical onset of depressive disorder, as required by sections 9(1)(a) and (b) of the SoP and, even if he did, it was not related to the relevant service rendered by him, as required by section 10 of the SoP.
(ii) The Veteran did not experience a Category 2 stressor within the six months before the clinical onset of depressive disorder, as required by section 9(1)(e) of the SoP, and, even if he did, it was not related to the relevant service rendered by him, as required by section 10 of the SoP.
(iii) The Veteran did experience severe childhood abuse before the clinical onset of depressive disorder, as required by section 9(1)(f) of the SoP, but it was it was not related to the relevant service rendered by him, as required by section 10 of the SoP.
(iv) The Veteran did not have a clinically significant disorder of mental health as specified within the two years before the clinical onset of depressive disorder, as required by section 9(1)(g) of SoP, and, even if he did, it was not related to the relevant service rendered by him, as required by section 10 of the SoP.
(b) Accordingly, it cannot be said that, on the balance of probabilities, depressive disorder is connected with the circumstances of the Veteran’s relevant service.[29]
[29] Respondent’s Statement of Facts, Issues and Contentions dated 25 September 2023, page 5, paragraph 31.
29.The reconstituted Tribunal notes that the Respondent included a contention regarding substance use disorder in their Statement of Facts, Issues and Contentions dated 25 September 2023. However, the reconstituted Tribunal acknowledges it was not included in the Respondent’s closing submissions as the Applicant advised the Tribunal on 27 September 2023 that substance use disorder was no longer relied on.

The reconstituted Tribunal understands it is common ground that the Veteran’s death was from ‘aspiration pneumonia, with the antecedent cause being mixed drug and alcohol toxicity’, as found by the NSW Coroner on 13 December 2016.[30] The reconstituted Tribunal notes some references in evidence to the ‘ingestion of alcohol and other substances’ but takes this to be different wording for the same finding, notwithstanding it infers oral administration, although that is not a matter in dispute.
[30] Exhibit R1, T-Documents, T19, NSW Coroner’s report dated 13 December 2016, page 76.
However, the reconstituted Tribunal notes that the Applicant’s claim to the Commission, dated 2 May 2016, did not include a cause of death, responding to the specific question at paragraph 9 of the claim form with the comment ‘waiting for coroner’s report’.[31] The reconstituted Tribunal further notes that in the Commission’s determination, dated 10 March 2017, the delegate stated that ‘I am satisfied that death was due to Alcohol Use Disorder and Substance Use Disorder’, seemingly relying on an internal report from a contracted medical advisor that said ‘the primary cause of death was 1. Alcohol toxicity 2. Drug toxicity’.[32]
[31] Exhibit R1, T-Documents, T6, Claim for Compensation dated 2 May 2016, page 12.
[32] Exhibit R1, T-Documents, T5, Determination by Department of Veterans Affairs dated 10 March 2017, page 7 and Exhibit R1, T-Documents, T20, DVA Minute dated 30 January 2017, page 77.
The reconstituted Tribunal also notes that the VRB, in its decision dated 7 December 2019, noted that the Applicant’s claim ‘contends that your late husband’s death was from either alcohol abuse or substance abuse’, saying also that ‘the Commission refused your claim because it decided your late husband’s alcohol use disorder, substance use disorder and depressive disorder were not related to service’.[33]
[33] Exhibit R1, T-Documents, T2, Determination by Veterans Affairs Board dated 7 December 2019, page B3, paragraph 8 and page B4, paragraph 13.
The reconstituted Tribunal sees no evidence in either the Commission’s decision or the VRB’s decision that a clinical diagnosis of alcohol use disorder, substance use disorder or depressive disorder was addressed or determined with reference to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (commonly referenced as ‘DSM V’ or ‘DSM 5’).[34]
[34] Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Arlington VA, 2023.
The reconstituted Tribunal acknowledges that the Applicant is no longer relying on substance use disorder. However, regardless and for completeness, the reconstituted Tribunal considers it relevant to review whether the Veteran was clinically diagnosed with depressive disorder, alcohol use disorder and/or substance use disorder, noting that a diagnosis for the purposes of establishing a connection between the disease and the particular service by the Veteran requires not only the satisfaction of diagnostic criteria as determined by DSM 5 but also a temporal determination of ‘clinical onset’.[35]
[35] Youngnickel v Repatriation Commission [2004) FCA 1691.
Before doing so, the reconstituted Tribunal considers it useful to review the Veteran’s service record to establish where he served and in what role and, particularly, when he became involved in policing work that involved the investigation of potential offences and/or involvement or responsibility for the maintenance of discipline in relation to other service members.
The Veteran’s service
There is no dispute between the parties that during the Veteran’s first period of service, between 8 March 1982 and 7 March 1988, he served primarily on seafaring postings on HMAS Stuart, a RAN frigate, and HMAS Onslow, a RAN submarine.
The reconstituted Tribunal notes, however, that there are differing views on where the Veteran served during his second period of service from 16 October 1989 and 13 November 2007, and his role during that period. Mrs Pool, for example, was under the impression that ‘he was a naval detective for [that] 18 years’.[36] However, Dr Anthony Dineen, a psychiatrist, said in his in-person evidence to the Tribunal on 29 September 2023 that ‘for at least 12 years [of his second period of service] he was supposedly a naval detective’, noting that the Veteran also ‘spent 6 years on guard duty’.[37]
[36] Exhibit R1, T-Documents, T14, Report by Dr Pickering dated 9 December 2009, page 55.
[37] Transcript of Proceedings, AAT No. 2020/0386 dated 29 September 2023, page 75, lines 18-22.
The reconstituted Tribunal notes that the Veteran’s role on guard duties ashore for the first years of his second period of service accords with the report of Dr John Pickering, a psychologist, dated 9 December 2009, who says the Veteran told him that ‘he re-enlisted in October 1989 as a naval policeman as a leading seaman’ and ‘spent 6 years on guard duties at Garden Island [Darwin] and at HMAS Albatross [a shore-base at Nowra]’ and ‘in that time, the world passed me by’.[38]
[38] Exhibit R1, T-Documents, T14, Report by Dr Pickering dated 9 December 2009, page 55.
The reconstituted Tribunal notes this broadly accords with the Veteran’s official service record, which shows that he served at HMAS Penguin (a shore base in Sydney) from November 1989 to November 1992, at HMAS Coonawarra (a shore base in Darwin) from January 1993 to January 1997, and at HMAS Albatross (a shore base in Nowra) from January 1997 to September 1997, a total of some 8 years on shore postings, excepting his attendance at training courses and short-term deployments in other locations.[39]
[39] Exhibit R1, T-Documents, T17, Statement of Service, pages 73 and 74.
The reconstituted Tribunal notes that the circumstances or responsibilities of the work involved in the Veteran’s guard duties was not disclosed or addressed in evidence. The reconstituted Tribunal notes that apart from Mrs Pool’s use of the words ‘naval detective’, there seemingly is no evidence that the Veteran’s role during those 8 years involved investigative work as a naval policeman. That is corroborated by the Veteran’s comment to Dr Pickering in December 2009 that it was during his posting to HMAS Creswell (a shore base in Jervis Bay) in 2002 that ‘he was trained as an investigator’, confirmed by his service record that shows the Veteran attended and qualified at an Advanced Naval Police Coxswain Course from 14 October to 8 November 2022.[40]
[40] Exhibit R1, T-Documents, T23, Defence Service Record, page 103.
The reconstituted Tribunal further notes that the Veteran had earlier attended an Advanced Naval Police Coxswain Course in May 1991, with one record under the heading of ‘courses’ showing he was awarded a provisional pass but another under the heading of ‘proficiency’ showing the letter ‘N’, whereas all other course records showed the letter ‘Y’, suggesting the Veteran did not attain a sufficient standard to qualify as proficient.[41] The reconstituted Tribunal concludes that because the Veteran attended and qualified at the same course in 2002, he previously had not gained the formal qualification to undertake investigative work.
[41] Exhibit R1, T-Documents, T23, Defence Service Record, pages 104-106.
Was the Veteran diagnosed with Depressive Disorder?
42.The reconstituted Tribunal acknowledges that neither depression nor depressive disorder were specified in the Applicant’s original claim to the Commission. However, the question of whether the Veteran was diagnosed with depression or depressive disorder is relevant not only in determining whether the Veteran suffered such condition but also because ‘having a [concurrent] clinically significant disorder of mental health’ is one of the factors to be considered in connecting alcohol use disorder or death from alcohol use disorder with the circumstances of a person’s relevant service.[42]
[42] Exhibit R1, T-Documents, T27, Statement of Principles Alcohol Use Disorder (No. 49 of 2017), page 233, paragraph 9(1).
The Applicant contends that the Veteran was diagnosed with depressive disorder by Dr Dineen with clinical onset occurring ‘in the 1990s’.[43] The Applicant also contends that the initial and supplementary statements of Mrs Pool and the statement of Mr Steven Evans, a former RAN colleague of the Veteran, ‘provide evidence of the stressors the Veteran was subjected to in performing his role as a Naval Policeman and his lay observations [of] becoming depressed’.[44] The Applicant notes that Dr Dineen also opines that ‘it is unlikely that in his 18 years as a naval policeman that he was not exposed to many of the traumatic circumstances encountered by civil police’.[45]
[43] Exhibit R1, T-Documents, T25, Report by Dr Dineen dated 8 November 2018, page 222.
[44] Closing Submissions of the Applicant dated 27 November 2023, page 3, paragraph 13.
[45] Exhibit R1, T-Documents, T25, Report by Dr Dineen dated 8 November 2018, page 221.
44.The Applicant also cites the Veteran’s reference to an incident he described as ‘the most important one’, where he had made a complaint against a superior officer, as a result of which he said ‘he'd become irritable and unable to relax since the mid-1990s … [and] that he was intensely depressed for a time’.[46] The Applicant further notes that Dr Yvonne Skinner, a psychiatrist, who gave in-person evidence to the Tribunal on 29 September 2023, ‘agreed that the incident did fall [within the definition of] a causal factor for a depressive illness’.[47]
[46] Exhibit R1, T-Documents, T14, Report by Dr Pickering dated 9 December 2009, pages 56 and 57.
[47] Transcript of Proceedings, AAT No. 2020/0386, 29 September 2023, page 113, lines 18-20.
45.The Applicant contends that the date of this incident has not been established but “it is more likely than not, that [it] occurred in the period of May 1991 ‘to the mid-90s’ and caused his depressive illness”.[48] On this particular point, the reconstituted Tribunal notes that the Veteran told Dr Pickering in December 2009 that the incident occurred ‘when he was trained as an investigator’, which Dr Dineen has presumed relates to the Veteran’s attendance at the Advanced Naval Police Coxswain Course in May 1991.[49]
[48] Closing Submissions of the Applicant dated 27 November 2023, page 6, paragraph 34.
[49] Exhibit R1, T-Documents, T14, Report by Dr Pickering dated 9 December 2009, page 56.
46.However, the reconstituted Tribunal notes that Dr Pickering’s report shows that the Veteran links his posting to HMAS Creswell [in 2002] to the time he was trained as an investigator, further linking that timeframe to the incident in question, saying ‘the most important one was [when] he was trained as an investigator there were these two commissioned officers, both very junior [with one who] used her connections in a way that was unethical’ becoming the subject of his complaint and the incident that was the cause of him becoming ‘intensely depressed’.[50]
[50] Exhibit R1, T-Documents, T14, Report by Dr Pickering dated 9 December 2009, page 56.
47.The Respondent notes that the Veteran was referred in January 2007 to Dr Michael Parle, a psychologist, with a history that ‘he had been feeling depressed for six months and that he had mood swings and anger outbursts’.[51] The Respondent notes that Dr Parle’s report, dated 31 January 2007, said ‘the veteran had been feeling depressed for 6 months’.[52]
[51] Respondent’s Outline of Submissions dated 21 May 2024, page 8, paragraph 47.
[52] Respondent’s Outline of Submissions dated 21 May 2024, page 8, paragraph 47.
48.The Respondent also contends that a medical employment classification review record dated 29 August 2007 noted the Veteran ‘had experienced a period of mild depressive symptoms in late 2006/early 2007 for which he was referred to a clinical psychologist’.[53] However, the Respondent contends ‘no history is recorded in relation to any events that occurred in the relevant periods of service to which Mr Pool’s depressive symptoms in 2006/2007 might be attributed’.[54] The Respondent also notes that Dr Pickering ‘relevantly found that there was no diagnosable psychiatric disorder that had its onset since Mr Pool joined the Navy’.[55]
[53] Respondent’s Outline of Submissions dated 21 May 2024, page 8, paragraph 48.
[54] Respondent’s Outline of Submissions dated 21 May 2024, page 9, paragraph 49.
[55] Respondent’s Outline of Submissions dated 21 May 2024, page 9, paragraph 51.
49.The Respondent also notes a medical report from Dr Roberta Leary, a psychologist, dated 10 August 2011, noted that the Veteran ‘experienced a lot of stress in his 30s due to naval military service’.[56] However, the Respondent notes that ‘no other information is recorded regarding the “stress” said to have been experienced by Mr Pool in his 30s and … [regardless], it refers to the period … after the periods of service in question’.[57]
[56] Respondent’s Outline of Submissions dated 21 May 2024, page 9, paragraph 52.
[57] Respondent’s Outline of Submissions dated 21 May 2024, page 9, paragraph 52.
50.The Respondent also contends that the records of Dr Jacqueline Barrett, a psychologist who also treated the Veteran, do not contain any relevant history in respect of Mr Pool’s service up until April 1994, nor do the records produced by the Vietnam Veterans Counselling Service (Open Arms).[58]
[58] Respondent’s Outline of Submissions dated 21 May 2024, page 9, paragraph 53 and page 10, paragraph 54.
51.The Respondent also contends that Dr Dinnen based ‘his opinion of the clinical onset of a depressive disorder on a record made by Dr Pickering of the Veteran having stated that “he had become irritable and unable to relax since the mid-1990s”’.[59] The Respondent contends ‘there is no other evidence of that but, more importantly, such a history, if true, would not sustain a diagnosis of a depressive disorder having regard to the relevant diagnostic criteria’.[60]
[59] Respondent’s Outline of Submissions dated 21 May 2024, page 10, paragraph 56 and 56.1.
[60] Respondent’s Outline of Submissions dated 21 May 2024, page 10, paragraph 56.1.
52.The Respondent contends that while Dr Skinner, in her in-person evidence to the Tribunal, accepted that ‘Mr Pool had depressive episodes and … was vulnerable to depression’, her opinion was that the Veteran did not suffer from a depressive disorder with clinical onset in the 1990s, an opinion the Respondent contends should be preferred to that of Dr Dineen.[61]
[61] Respondent’s Outline of Submissions dated 21 May 2024, page 12, paragraph 65.
The reconstituted Tribunal notes the Respondent’s assertion that the material presented to the Tribunal must be ‘relevant and probative’ rather than speculative.[62] The reconstituted Tribunal is also cognizant of the Applicant’s contentions regarding s 119(1)(h) of the Act relating to the unavailability of witnesses or records on account of the passage of time, which in this instance means the Tribunal has had to rely on service and medical records and the evidence of associated parties rather than directly from the Veteran himself.
[62] Beezley v Repatriation Commission (2015) 150 ALD 11.
The reconstituted Tribunal notes that Dr Dineen’s opinion that the clinical onset of depressive disorder occurred ‘in the 1990s’ is seemingly based both on the Veteran’s claim of being stressed in his 30s which, given the Veteran was born in 1964, would imply this occurred in the mid to late 1990s, and the Veteran’s claim of ‘being irritable and unable to relax since the mid-1990s’. The reconstituted Tribunal considers it could reasonably be concluded that both claims suggest the timeframe referenced by the Veteran was the second half of the 1990s.
The reconstituted Tribunal notes that in the Veteran’s claim to the Commission in September 2009 that included ‘mental conditions’, it was noted that the medical diagnosis was ‘anxiety, depression, anger’ and that the Veteran had been experiencing these symptoms ‘for approximately 3-5 years’ and had first consulted a medical practitioner on 4 April 2008.[63] The reconstituted Tribunal understands the Veteran’s claim was that he had been experiencing mental health-related symptoms since approximately 2004-2006.
[63] Exhibit R1, T-Documents, T9, Claim for Disability Pension dated 11 September 2009, page 36.
The reconstituted Tribunal also notes that Dr Pickering, in his report dated 9 December 2009, diagnosed the Veteran as suffering from Attention Deficit/Hyperactive Disorder, saying ‘the clinical picture that dominates is … one suggestive of ADHD, which is diagnosed’.[64] The reconstituted Tribunal understands that ADHD is not a depressive disorder in the context of the SoP for Depressive Disorder.[65] The reconstituted Tribunal also notes that Dr Pickering opined in the same report, albeit in relation to a possible diagnosis of Post Traumatic Stress Disorder, that the Veteran ‘has not really met the criteria of having been faced with an overwhelming traumatic event’.[66]
[64] Exhibit R1, T-Documents, T14, Report by Dr Pickering dated 9 December 2009, page 61.
[65] Exhibit R1, T-Documents, T28, Statement of Principles Depressive Disorder (No. 84 of 2015), page 253.
[66] Exhibit R1, T-Documents, T14, Report by Dr Pickering dated 9 December 2009, page 61.
The reconstituted Tribunal acknowledges that Dr Dineen is highly qualified and experienced, particularly in matters relating to veterans’ affairs. However, in this instance, the reconstituted Tribunal considers his opinion is not sufficiently definitive either in diagnostic or temporal terms to outweigh the contrary opinion of Dr Skinner, particularly given that Dr Dineen has relied in part on an assumption that the incident involving the Veteran’s complaint against superior officers occurred in 1991, whereas the reconstituted Tribunal considers it more likely occurred in 2002.
Accordingly, the reconstituted Tribunal prefers the opinion of Dr Skinner that the Veteran did not suffer from a depressive disorder in the 1990s. In arriving at that conclusion, the reconstituted Tribunal takes account of the corroborating opinion of Dr Pickering and the absence in the Veteran’s service medical records of any information relating to depression prior to 2007, as well as the Veteran’s claim in 2009 that he had been experiencing mental health-related symptoms since approximately 2004-2006. For completion, the reconstituted Tribunal also notes that Dr Dineen’s opinion regarding a date of clinical onset would likely put its timeframe later than 6 April 1994, which was held by the Tribunal to be the end date of its jurisdiction.
Was the Veteran diagnosed with Alcohol Use Disorder?
59.The Applicant contends that the Veteran was diagnosed with alcohol use disorder by Dr Dineen, with clinical onset occurring ‘in the 1990s’, based on documentary and oral evidence.[67]
[67] Closing Submissions of the Applicant dated 27 November 2023, page 3, paragraph 11.
60.The Applicant notes that Mrs Pool, in her evidence to the Tribunal, said the Veteran ‘could drink up to a bottle of wine at a time and she found that to be quite disturbing’.[68] Mrs Pool also gave an account of the Veteran ‘drinking two bottles of wine and it not affecting him and being shocked by that’.[69] The Applicant also notes that Mrs Pool said the Veteran ‘drank on the weekends, Friday nights and up to three times during the week, when he would go out with his Navy mates to the pub. She said the drinking continued “nonstop”’.[70]
[68] Closing Submissions of the Applicant dated 27 November 2023, page 4, paragraph 20.
[69] Closing Submissions of the Applicant dated 27 November 2023, page 11, paragraph 67.
[70] Closing Submissions of the Applicant dated 27 November 2023, page 11, paragraph 68.
61.The Applicant notes that Dr Dinnen also refers to a letter from Dr Parle, who stated in January 2007 that the Veteran reported that ‘he drank heavily when younger’.[71] The Applicant also draws the Tribunal’s attention to a mental health questionnaire dated 10 August 2011 that noted the Veteran ‘has overused alcohol in the past’.[72] The Applicant also notes that a medical document dated 23 June 2009 said ‘Michael has had drinking issues in the past but now drinks far less’.[73]
[71] Closing Submissions of the Applicant dated 27 November 2023, page 3, paragraph 21.
[72] Closing Submissions of the Applicant dated 27 November 2023, page 3, paragraph 22.
[73] Closing Submissions of the Applicant dated 27 November 2023, page 3, paragraph 22.
62.The Applicant contends ‘while there are periods where [the Veteran] appears to moderate his drinking … there is no doubt the veteran at different periods of his life drank heavily’, asserting that ‘the fact that a condition waxes and wanes does not break the causation chain’.[74] The Applicant also contends that a statement from the Veteran to Dr Barrett that ‘for 18 years … he used alcohol to self-medicate depression … is proof that the alcohol use disorder followed his depressive disorder’.[75]
[74] Closing Submissions of the Applicant dated 27 November 2023, page 3, paragraph 24.
[75] Closing Submissions of the Applicant dated 27 November 2023, page 11, paragraph 69.
63.The Respondent contends that the Veteran did not suffer alcohol use disorder, relying on the opinion of Dr Skinner who, in in-person evidence to the Tribunal, said the Veteran ‘might've had an alcohol use disorder after he left the service [but] I didn't think there was any evidence that he had an alcohol use disorder while he was a serving member of the defence forces’.[76]
[76] Transcript of Proceedings, AAT No. 2020/0386 dated 29 September 2023, page 127, lines 22-24.
64.The reconstituted Tribunal notes that in answering a question at the Tribunal hearing, Dr Skinner said ‘I didn't find any evidence … that you could actually say he had an alcohol use disorder. It wasn't clear. I think he has had some problems with alcohol … [and] that he might've drank too much at times. But I thought he'd been able to carry out his duties … while he was in the service … [and that] there was nothing in the medical records or in the self-report documents … that suggested that he had a problem with alcohol’.[77]
[77] Transcript of Proceedings, AAT No. 2020/0386 dated 29 September 2023, page 128, lines 23-34.
65.The reconstituted Tribunal also notes that in answer to a further question, Dr Skinner said ‘[the Veteran] appears to have had particular problems with alcohol in the last two years and intermittently’ but refuted the Applicant’s suggestion that alcohol use disorder was caused by a depressive disorder, saying ‘sometimes people do drink more when they're depressed, it might be related to it, but not caused by as such’.[78]
[78] Transcript of Proceedings, AAT No. 2020/0386 dated 29 September 2023, parge 129, lines 15-22.

The reconstituted Tribunal notes that DSM 5’s definition of ‘alcohol use disorder’ is ‘a problematic pattern of alcohol use leading to clinically significant impairment or distress, as manifested by at least four … [criteria] occurring within a 12-month period’.[79] However, the Tribunal was seemingly not taken to any evidence regarding the specific DSM criteria or timeframe relied on by Dr Dineen in determining clinical onset, other than it occurred ‘during service’.
Similarly, the reconstituted Tribunal notes that Dr Skinner’s opinion was seemingly based primarily on whether the Veteran’s military service was impacted by alcohol use, with no specific reference in evidence to DSM criteria or a timeframe although, inadvertently or otherwise, her opinion addresses one particular factor, namely ‘recurrent alcohol use resulting in afailure to fulfill major role obligations at work, school, or home’.[80]
68.The reconstituted Tribunal agrees with the Applicant there is anecdotal evidence that the Veteran drank heavily and most likely excessively during his service. The reconstituted Tribunal is also cognizant that Mrs Pool’s evidence understandably focuses largely on the Veteran’s alcohol use between the time she first met him in 2006 and his death in late 2015.
69.In that regard, the reconstituted Tribunal notes that for much of the Veteran’s initial period of service, from 8 March 1982 to 7 March 1988, he served on HMAS Stewart, a RAN frigate, and on HMAS Onslow, a RAN submarine, where his use of alcohol would likely have been limited to when he was off-duty and during periods of shore leave when deployed. The reconstituted Tribunal is not suggesting that is at odds with the contention that the Veteran was ‘drinking heavily when he was younger and misusing alcohol in the past’ but is cognizant of considering the frequency and regularity of his drinking in the context of his postings at the time.
70.The reconstituted Tribunal also considers that the Veteran’s claim of ‘using alcohol for 18 years to self-medicate for depression’ most likely relates to his second period of enlistment from 16 October 1989 to 13 November 2007. The reconstituted Tribunal notes that for the first 8 or so years of that period the Veteran was posted to shore establishments where he said he was largely employed on guard duties and where ‘the world passed me by’. In the absence of corroborating clinical records, the reconstituted Tribunal considers the Veteran’s claim of using alcohol to self-medicate for depression for the entire 18 years is not supported by other evidence.
71.The reconstituted Tribunal acknowledges and obviously takes account of the opinions of Dr Dineen and Dr Skinner, noting that both are based on the documentary evidence of other medical practitioners and the personal evidence of the Veteran’s wife, Mrs Pool, who first met the Veteran in 2006. The reconstituted Tribunal concludes that the evidence in relation to a diagnosis of alcohol use disorder in respect of the Veteran is not sufficiently definitive either in diagnostic or temporal terms to satisfy the criteria of DSM 5 and, accordingly, concludes that the Veteran did not suffer alcohol use disorder.
Was the Veteran diagnosed with Substance Use Disorder?
[79] Exhibit R1, T-Documents, T27, Statement of Principles Alcohol Use Disorder (No. 49 of 2017), page 231.
[80] Exhibit R1, T-Documents, T27, Statement of Principles Alcohol Use Disorder (No. 49 of 2017), page 232, factor 7(2)E.
The reconstituted Tribunal acknowledges that the Applicant is no longer relying on substance use disorder. However, for completeness, the reconstituted Tribunal notes that although the Veteran’s antecedent cause of death was recorded as ‘mixed drug and alcohol toxicity’, the only clinical mention of substance use was Dr Pickering’s note, based on his consultation with the Veteran in December 2009, that ‘there was no history of illicit drug use’.[81]
[81] Exhibit R1, T-Documents, T14, Report by Dr Pickering dated 9 December 2009, page 59.
The reconstituted Tribunal notes that an autopsy-related report says ‘when police attended the Veteran’s residence on 27 December 2015, they found the Veteran deceased in the main bedroom. A search of the premises revealed multiple partially consumed alcohol containers and empty medication packets with tablets scattered around the property. Toxicological analysis detected a potentially toxic blood level of quetiapine, an antipsychotic medication’.[82]
[82] Exhibit R1, T-Documents, T21, Autopsy Report of Mr Pool dated 6 January 2016, page 82.
The reconstituted Tribunal acknowledges that the Veteran’s medical records indicate that he was regularly prescribed various medications but, in the absence of any evidence of a clinical diagnosis, concludes that the Veteran did not suffer substance use disorder.
Was the Veteran’s death connected with his service?
The reconstituted Tribunal considers that the Veteran did not suffer depressive disorder, alcohol use disorder or substance abuse disorder which, if correct, means the Applicant’s appeal must fail. However, for completeness, the reconstituted Tribunal further considers the relevant SoPs to determine if certain factors existed that could be said, on the balance of probabilities, to connect the Veteran’s death to his service if any one of those disorders had been diagnosed, relevantly:
(a)    whether the Veteran experienced a Category 1A or Category 1B stressor within 2 years before the clinical onset of depressive disorder or alcohol use disorder or substance use disorder, or
(b)    whether the Veteran experienced a Category 2 stressor within 6 months before the clinical onset of depressive disorder or alcohol use disorder or substance use disorder, or
(c)    whether the Veteran experienced severe childhood abuse before the clinical onset or clinical worsening of depressive disorder or alcohol use disorder or substance use disorder.
The Applicant contends that a Category 1A stressor experienced by the Veteran was serious physical assault and death threats, that a Category 1B stressor was viewing dead bodies and a Category 2 stressor was bullying and/or marginalisation in the workplace.
Did the Veteran suffer serious physical assault?
The Applicant contends the facial injuries sustained by the Veteran in an assault on 28 November 1993 satisfy a Category 1A stressor in that the Veteran experienced a severe traumatic event, further defined as ‘being subject to a serious physical attack or assault’.[83] The Applicant contends that any head injury would satisfy the definition of serious physical assault as ‘head blows can be life threatening’.[84]
[83] Closing Submissions of the Applicant dated 27 November 2023, page 10, paragraph 59.
[84] Closing Submissions of the Applicant dated 27 November 2023, page 10, paragraph 59.
It is common ground that the assault in question occurred at the Beachcombers Hotel in Darwin either late on a Saturday night or in the early hours of the following Sunday and that the circumstances of the assault and whether the Veteran was on duty at the time are not recorded.[85] The Veteran’s service medical records indicate that he subsequently presented at the sick bay at HMAS Coonawarra, an onshore base in Darwin, and received treatment for lacerations to his mouth requiring 7 sutures.[86]
[85] Closing Submissions of the Applicant dated 27 November 2023, page 9, paragraph 58.
[86] Exhibit R1, T-Documents, T-23, Service Records, pages 108 and 109.
The Respondent contends that the injury sustained by the Veteran could not be construed as satisfying a Category 1A stressor. Dr Skinner, in her evidence to the Tribunal, conceded that an assault does not need to be life-threatening to satisfy the factor, however she opined that it needs to be ‘so serious and so emotionally traumatic [that] it’s likely to lead to the possible development later of a psychiatric disorder … which this injury wasn’t’.[87]
[87] Transcript of Proceedings, AAT No. 2020/0386 dated 29 September 2023, page 109, lines 45-57.
The reconstituted Tribunal agrees it is axiomatic that head injuries can be life threatening. However, particularly in the absence of any evidence of the circumstances, including whether the Veteran experienced trauma as a result, the reconstituted Tribunal is not reasonably satisfied that the injury suffered by the Veteran was a Category 1A stressor.
Did the Veteran receive death threats?
The Applicant contends the Veteran experienced death threats during the course of his service that would constitute a Category 1A stressor, relying on the report by Dr Pickering in which he says ‘[the Veteran] said he received death threats but they did not bother him’.[88] The Applicant asserts that further details were not elicited by Dr Pickering but contends ‘this failure [by Dr Pickering] should not be sheeted home to the Veteran’, further referencing s119(h) of the Act.[89]
[88] Exhibit R1, T-Documents, Report by Dr Pickering dated 9 December 2009, page 56.
[89] Closing Submissions of the Applicant dated 27 November 2023, page 10, paragraph 63.
The reconstituted Tribunal, while acknowledging the Applicant’s contention that Dr Pickering might have elicited more information, notes that no other evidence was offered in relation to the circumstances or timeframe of the threats. Accordingly, the reconstituted Tribunal considers that the assertions regarding death threats were not sufficiently evidenced to say that the Veteran ‘experienced a life-threatening event’ within the definitional meaning of the relevant SoPs and therefore is not reasonably satisfied that the threats experienced by the Veteran were a Category 1A stressor.
Did the Veteran view dead bodies?
The Applicant contends the Veteran viewed dead bodies during the course of his service that would constitute a Category 1B stressor, relying on the report by Dr Pickering in which he says ‘[the Veteran] viewed one dead body and saw pictures of others in training’.[90] The Applicant is again critical that Dr Pickering did not elicit more information, and also contends that the relevant SoPs do ‘not limit the definition of “corpse” to viewing in real life’.[91]
[90] Exhibit R1, T-Documents, Report by Dr Pickering dated 9 December 2009, page 56.
[91] Closing Submissions of the Applicant dated 27 November 2023, page 10, paragraphs 60-62.
The reconstituted Tribunal, while acknowledging the Applicant’s contention that Dr Pickering might have elicited more information, notes that no other evidence was offered in relation to the circumstances or timeframe of the Veteran having viewed a corpse. The reconstituted Tribunal also notes that the relevant factors relate to ‘viewing a corpse … as an eyewitness’ and that the relevant SoPs define ‘corpse’ to mean ‘the human remains or body parts of one or more persons who have met a violent or horrific death’.[92]
[92] See, for example, Exhibit R1, T-Documents, T28, Statement of Principles No. 84 of 2015, page 253.
The reconstituted Tribunal notes that no evidence was offered that the dead body or bodies viewed by the Veteran met the definition of ‘corpse’ in terms of the relevant SoPs and, therefore, is not reasonably satisfied that the viewing of a dead body or bodies by the Veteran were a Category 1B stressor.
Did the Veteran experience bullying and/or marginalisation in the workplace?
86.The Applicant contends there is ample evidence of the Veteran experiencing ongoing bullying and marginalisation during his service that would constitute a Category 2 stressor, relevantly defined as ‘negative life events, the effect of which are chronic in nature and cause the person to feel ongoing distress, concern or worry’.[93]
[93] See, for example, Exhibit R1, T-Documents, Statement of Principles No. 84 of 2015, page 253.
87.The Applicant cites particularly the report by Dr Pickering where the Veteran said ‘there were a number of events that bothered him but the most important one was an incident where he made a complaint against two superior officers’.[94] The Applicant contends the Veteran ‘would have become marginalised from this very serious event … and then having adverse comments made against him during the administrative inquiry’.[95]
[94] Closing Submissions of the Applicant dated 27 November 2023, page 5, paragraphs 29-30.
[95] Closing Submissions of the Applicant dated 27 November 2023, page 7, paragraph 41.
88.The Applicant also cites the report by Dr Barrett from 2011 where the Veteran stated he was ‘burnt out, bitter and angry [and] had some conflict with colleagues for behaviour attitude, especially civilians’, saying also that he ‘got into a lot of conflict with colleagues [and that he also experienced] rudeness and injustice’.[96]
[96] Closing Submissions of the Applicant dated 27 November 2023, page 6, paragraphs 36 and 37.
89.The Applicant also points to the evidence of Dr Dinnen to the Tribunal who, when asked about the possible causal factors for the Veteran’s depressive illness, cited ‘the problems he had in the work place because of his role [as a naval policeman] causing him to be disliked and abused … [compounded by] the dislike generally held in the military for those responsible for criminal investigations and discipline naval police and military police’.[97]
[97] Closing Submissions of the Applicant dated 27 November 2023, pages 7 and 8, paragraphs 46 and 47.
90.The Respondent contends that although Dr Dinnen considered that ‘the cause of the Veteran’s depressive illness was the cumulative effect of traumatic experiences … together with problems in the workplace [and] difficulties with colleagues’, Dr Dinnen was not able to point to any specific experiences.[98] The Respondent contends that Dr Dinnen ‘has merely speculated that [the Veteran’s] experiences were based on his general experience of what a naval policeman would do’ and notes that Dr Dineen conceded that he was ‘drawing an inferences from scattered comments [Mr Pool] made’.[99]
[98] Outline of Submissions [by the Respondent] dated 21 May 2024, page 11, paragraph 56.3.
[99] Outline of Submissions [by the Respondent] dated 21 May 2024, page 11, paragraph 56.3.
91.The Respondent acknowledges that Dr Skinner, in giving evidence to the Tribunal, accepted that disharmony in a person’s workplace could be one of the factors in a causal connection to the development of a depressive illness.[100] The Respondent further notes that Dr Skinner opined that ‘on the assumption Mr Pool had a depressive disorder … the event in question (conflict with a female colleague) constituted a category 2 stressor’.[101]
[100] Outline of Submissions [by the Respondent] dated 21 May 2024, page 12, paragraph 62.
[101] Outline of Submissions [by the Respondent] dated 21 May 2024, page 12, paragraph 62.
92.However, the Respondent contends that Dr Skinner’s opinion remained that ‘the Veteran did not suffer from a depressive disorder (or an alcohol use disorder caused by any depressive disorder) … [and, regardless, did not consider] that any depressive disorder suffered by Mr Pool was caused by any exposure to traumatic events that occurred during his Navy service or to any disharmony in the workplace’.[102]
[102] Outline of Submissions [by the Respondent] dated 21 May 2024, page 12, paragraph 65.
93.The reconstituted Tribunal acknowledges that the Veteran clearly experienced interpersonal difficulties during his service. The reconstituted Tribunal also notes, as earlier concluded, that the incident relating to the Veteran’s complaint against superior officers most likely occurred in 2002, a timeframe outside the Tribunal’s jurisdiction in this matter. Otherwise, the reconstituted Tribunal is not reasonably satisfied that the Veteran experienced a Category 2 stressor in his workplace.
Did the Veteran experience severe childhood abuse?
94.The Applicant notes that Dr Skinner has opined ‘there was a pre-existing depressive illness prior to service, stating “origins in childhood”, attributable it seems, to his father’s abuse and his genetic disposition’.[103] The Applicant contends that ‘if the Tribunal finds the Veteran had a depressive illness operable prior to service, it could also on balance reasonably find that this event aggravated his illness, which led to him identifying a depressive illness himself in mid 90s’.[104]
[103] Closing Submissions of the Applicant dated 27 November 2023, page 11, paragraph 71.
[104] Closing Submissions of the Applicant dated 27 November 2023, page 11, paragraph 72.
The reconstituted Tribunal notes it is common ground that the Veteran suffered severe childhood abuse. However, the reconstituted Tribunal notes that the Tribunal seemingly was not taken to any evidence of its material contribution to or aggravation of a disorder that arose out of or was attributable to his service. The reconstituted Tribunal accordingly agrees with the Respondent that the Veteran’s childhood abuse was not related to his service.
CONCLUSION
On the preliminary question of the Tribunal’s jurisdiction, the reconstituted Tribunal concludes that the Veteran’s periods of eligible service under the Act are 8 March 1982 to 7 March 1988 and 16 October 1989 to 6 April 1994, and that the Tribunal’s jurisdiction in relation to the reviewable decision is limited to those dates.
On the substantive issues before the Tribunal and having regard to the evidence before it and for the reasons given above, the reconstituted Tribunal concludes on the balance of probabilities that the Veteran’s death was not connected to his defence service and, accordingly, that his death was not defence-caused.
The reconstituted Tribunal acknowledges the concerns raised by the Applicant in relation to the Commission’s handling of Mrs Pool’s claim and, particularly, whether her claim should have been progressed only in relation to the Commonwealth’s liability under the Veterans’ Entitlement Act 1986 (Cth). While it is not a matter within the Tribunal’s jurisdiction, the reconstituted Tribunal would invite the Commission to consider discussing with the Applicant the possibility of recourse under other legislation.
DECISION
The decision under review is affirmed.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for the decision herein of Senior Member George and Lieutenant Colonel Ormston.
……………… …[Sgnd]…………..…….…
Feng Jiang, Associate
Date of decision:  15 August 2024
Dates of hearing:  27-29 September 2023
Solicitor for the Applicant:                  Mr T Saunders
Solicitor for the Respondent:             Mr B O’Brien

EXHIBIT REGISTER

Document

Description

Exhibit R1

T-Documents

Exhibit R2

Joint tender bundle

Transcript No. 2020/0386

Transcript of proceedings of Administrative Appeals Tribunal hearing

[2024] AATA 2884

15 August 2024

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Jurisdiction

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Document	Description
Exhibit R1	T-Documents
Exhibit R2	Joint tender bundle
Transcript No. 2020/0386	Transcript of proceedings of Administrative Appeals Tribunal hearing