Rana and Repatriation Commission
[2009] AATA 671
•4 September 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 671
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200500033
VETERANS' APPEALS DIVISION ) Re RANJIT RANA Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date4 September 2009
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............Signed................
Deputy President
CATCHWORDS
VETERANS’ ENTITLEMENTS – whether the applicant was a “member of the Forces” as defined in the Act - veteran’s service terminated “not in the interests of Australia or the Army” before three years service - whether discharge was by reason of invalidity or physical or mental incapacity to perform duties – open to Tribunal to look behind administratively noted ground of discharge to satisfy itself of actual ground of discharge - found that veteran was suffering from a personality disorder at time of discharge and prior to enlistment – accept lay, expert and contemporaneous documentary evidence that did not suggest condition resulted in mental incapacity to perform all or part of military duties - decision under review affirmed.
Australian Military Regulation Reg, 176(1)
Veterans’ Entitlements Act 1986 (Cth) ss 68, 69(1), 70
House v Department of Defence (1996) 65 FCR 94
Re Graham and Repatriation Commission (1996) 41 ALD 448
Re Medcalf and Department of Veterans’ Affairs (1991) 23 ALD 502
The Commonwealth v Verwayen (1990) 170 CLR 394
Whiteman v Secretary, Department of Veterans’ Affairs (1996) 69 FCR 510
REASONS FOR DECISION
4 September 2009 Deputy President P E Hack SC Introduction
By virtue of s 69(1)(d) of the Veterans’ Entitlements Act 1986 (Cth), a former member of the Australian Defence Forces may be entitled to a disability pension if the person has served as a member of the Defence Forces under an engagement to serve for a period of continuous full-time service of not less than three years and the service was terminated before the completion of the three years’ service “by reason of…the person’s discharge on the ground of invalidity or physical or mental incapacity to perform duties.”
The applicant, Mr Ranjit Rana, says that he answers that description. That question is the subject matter of this part of the proceedings.
Background
Whilst there is much controversy between the parties, and, as I later observe, much unnecessary controversy, some basal facts are not in issue and it is as well to start with a recitation of those facts. They are, by and large, taken from contemporaneous documents.
Mr Rana was born in Nepal in April 1955. He emigrated to Australia in April 1978 having married an Australian citizen. In October 1980 Mr Rana enlisted in the Australian Regular Army. He undertook recruit training at Kapooka. He completed basic training in early January 1981 and was posted to the RAAOC Training Centre in Bandiana in Victoria until March or April 1981 when he was posted to the 16th Air Defence Regiment (16 AD REGT) based in Woodside, South Australia. He was deployed to the Regimental Workshop (16 AD REGT WKSP). In June 1981 Mr Rana went to Nepal for a short period of time. Shortly after his return, in about August 1981, his wife left him, taking the child of the marriage.
Mr Rana was admitted to the Royal Adelaide Hospital on 3 August 1981. The nursing notes of that hospital[1] give a diagnosis of “reactive depression”. On 5 August 1981 Mr Rana was transferred to the Repatriation General Hospital at Daw Park where he remained until his discharge on 10 August 1981[2]. The clinical notes from both of these admissions suggest that it was the departure of his wife (with the couple’s 6 month old daughter) that precipitated the admissions.
[1] Exhibit 1, p 190.
[2] Exhibit 1, p 192.
In early August 1981 following discharge from hospital Mr Rana was seen by Dr Lothar Hoff, a consultant psychiatrist, who additionally held a commission as a Lieutenant Colonel in what was then the Citizens Military Forces. Dr Hoff saw Mr Rana on a number of occasions between August 1981 and March 1982. I will return below to his observations from that period.
In early 1982 Mr Rana was charged summarily for “failing to appear at a place of parade appointed by his commanding officer” on 5 January 1982[3]. He was fined $10 and confined to barracks for three days. The following month Mr Rana was given a formal warning that he was “regarded as unsatisfactory in the performance of [his] duties and as an administrative liability”[4]. He was warned that unless his performance of duties improved and the time spent by unit officers on his personal problems was reduced his Commanding Officer, LTCOL G.D. Carter, would recommend his discharge. The warning, signed by LTCOL Carter and counter-signed by Mr Rana, continued:
“2.You are regarded as unsatisfactory in the performance of your duties because of the following:
a.your continued absences from your place of duty have adversely affected your work performance, and the performance of your section, and
b.whilst at your place of work you have performed inefficiently, duties which are within the scope of your rank and ECN.
3.You are regarded as an administrative liability because of your continuing inability to manage your personal affairs, particularly your family circumstances, which necessitates considerable time and effort to be expended by your OC, immediate superiors and the unit RMO.”
[3] Exhibit 3.
[4] Exhibit 5
On 12 February 1982 a “Confidential report – Soldiers” was completed on Mr Rana by the Officer Commanding 16 AD REGT WKSP, MAJ George Watts. It was in the nature of a performance assessment of Mr Rana and reflected his aspirations for his next posting. In answer to a question about any personal or domestic circumstances sought to be taken into account in relation to his next posting Mr Rana recorded:
“Due to marriage breakdown present posting brings lots of flashback [sic] of the past. Therefore to be in the job need posting.”
Mr Rana expressed a desire to be posted to the Special Air Services Regiment in Perth, the 1st Aviation Regiment at Oakey or Headquarters, 4 Military District in Adelaide. His preference was for “any job concerning aviation or intelligence.” MAJ Watts assessed his performance as below standard and wrote:
“Pte RANA has suffered complex emotional stress which he has allowed to influence his effectiveness as a soldier. He has been given ample opportunity to overcome his problems however it is felt that he has started to rely on them as a psychological crutch. RANA has been counselled several times, in an attempt to help him sort out his problems. His behaviour and the excess of attention afforded to him has started to undermine the efficiency of the Repair Parts Supply Platoon.”
Mr Rana was again dealt with for disciplinary matters on 5 March 1982 when he was charged and convicted for the offences of absenting himself without leave from 0800 hours on 26 February 1982 to 2345 hours on 27 February 1982 and of disobeying a lawful command given by his superior officer, that being SGT Liebenau’s order to return to work at the 16 AD REGT WKSP[5]. For these offences he was confined to barracks for 14 days. As a consequence of these matters LTCOL Carter requested that Mr Rana be discharged[6]. The letter of request said that Mr Rana’s,
“attitude and conduct are of a poor standard, and his continuing absences have caused him to become an administrative burden on the unit.”
[5] Exhibit 6.
[6] Exhibit 7.
Approval was given around 18 March 1982 for Mr Rana’s discharge on the basis of Reg. 176(1)(n) of the Australian Military Regulation, that is, that his retention (in the Army) was not in the interests of Australia or the Army. Mr Rana was admitted to hospital on 20 March 1982 and appears to have remained an in-patient until 24 March 1982 and again from 26 March 1982 until 31 March 1982. On these occasions it appears to have been physical ailments, in particular, that prompted the admission although there is mention made in clinical notes of “anxiety and personal problems” contributing to symptoms[7].
[7] See, e.g., Exhibit 21, page 241.
On 9 April 1982 Mr Rana went to Nepal. From 13 April 1982 he was regarded as being absent without leave.
Whilst in Nepal Mr Rana made contact with the Army and was sent a letter dated 8 July 1982 from a Group Captain R.E. Gillard, the Defence Attaché at the Australian Embassy in New Delhi. That letter confirmed the fact of Mr Rana’s discharge from the Australian Army with effect from 13 July 1982. Mr Rana’s “Record of service – Army”[8] confirms that he was discharged on that date in reliance upon Reg 176(1)(n) of the Australian Military Regulations 1927[9]. Curiously, and despite that notation there is a further document dating from September 1983[10] that notes that Mr Rana was discharged under Reg. 176(1)(q) of the Australian Military Regulations, that is, for being absent without leave. I need not resolve that curiosity.
[8] Exhibit 14.
[9] As at that date.
[10] Annexure A to exhibit 18.
The present proceedings arise from disability pension claims[11] made by Mr Rana in September 2003. The claims were rejected by the Commission on 15 September 2003 on the basis that Mr Rana “was not a ‘member of the Forces’ as defined in the Act.” That decision was affirmed by the Veterans’ Review Board on 16 December 2004. On 15 May 2009 the Tribunal, differently constituted, directed that the question whether Mr Rana was a veteran/member of the Armed Forces for the purposes of s 69 of the Act be determined at a preliminary hearing. I should add for the sake of completeness that I declined to vary that ruling when asked by Mr Rana to do so at a telephone directions hearing on 15 June 2009. Mr Rana complained, during the course of the hearing, about proceeding in this way but did not identify any prejudice or disadvantage to him from proceeding in this manner.
[11] Mr Rana appears to have lodged two claims, one on 2 September 2003 (Exhibit 1 at pp 278 – 287) for a disability described as “psychiatric” and the other lodged on 5 September 2003 (Exhibit 1 at pp 291-301) for a disability described as “psychiatric conditions”.
The legislation
Part IV of the Veterans’ Entitlements Act makes provision for the payments of pensions to members of the Defence Force or Peacekeeping Force and their dependants. It will suffice for present purposes to note that by virtue of s 70 of that Act the Commonwealth is liable to pay a pension by way of compensation where:
“(1)…
(b)a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence‑caused injury or a defence‑caused disease; …”
The expression “member of the Forces” is defined within s 68 of the Act as meaning “a person to whom [Part IV] applies by virtue of section 69 or 69A.” Section 69 is in these terms:
“(1)Subject to this section, where a person:
(a)has served in the Defence Force for a continuous period that commenced on or after 7 December 1972 and before the terminating date; or
(b)is serving in the Defence Force on or after the terminating date and has so served continuously since a date before that date;
this Part applies to the person:
(c)if the person:
(i)has served on continuous full‑time service as a member of the Defence Force after 6 December 1972; and
(ii)has, whether before or after that date, completed 3 years’ effective full‑time service as such a member; or
(d)if:
(i)the person has served as a member of the Defence Force under an engagement to serve for a period of continuous full‑time service of not less than 3 years; and
(ii)the person’s service as such a member was terminated before the person had completed 3 years’ effective full‑time service as a member of the Defence Force, but after 6 December 1972, by reason of the person’s death or the person’s discharge on the ground of invalidity or physical or mental incapacity to perform duties; or
…”
It is not in issue that Mr Rana satisfies s 69(1)(a) of the Act and thus Part IV applies to him provided that he can also satisfy s 69(1)(d)[12]. The issue then is whether Mr Rana’s service in the Australian Army was terminated by reason of his discharge “on the ground of invalidity or physical or mental incapacity to perform duties”.
[12] Mr Rana accepts that, having served for less than three years, he cannot satisfy s 69(1)(c) of the Act.
The Commission accepts that, despite the language of the paragraph, the decision of Madgwick J in Whiteman v Secretary, Department of Veterans’ Affairs[13] is authority for the proposition that it is open to the Tribunal to look behind the administratively noted ground of discharge in order to satisfy itself of the actual ground of discharge. The applicant in Whiteman was discharged from the Army with less than six years service after sustaining a serious ankle injury that meant that he could no longer qualify to be an assault trooper. He was told that he could transfer to another corps as a storeman or be discharged, at his own request, on medical grounds. He chose the latter option. His discharge papers recorded that he had been discharged “at own request” that is, the basis of discharge in Reg 176(1)(a) of the Australian Military Regulations. Subsequently the applicant sought a certificate of eligibility under the Defence Service Homes Act 1918 (Cth). Eligibility was dependant upon completion of six years service or, where there was had been less than six years service, that service had ended by reason of discharge on the grounds of invalidity or physical or mental incapacity to perform duties. The Tribunal affirmed the Secretary’s decision refusing to issue a certificate of eligibility.
[13] (1996) 69 FCR 510.
On appeal from that decision Madgwick J referred to two decisions of the Tribunal – that of O’Connor J, (as President of the Tribunal) and J.H. McClintock and Dr M.E.C. Thorpe, Members, in Re Medcalf and Department of Veterans’ Affairs[14] and the later decision of Senior Member Handley in Re Graham and Repatriation Commission[15]. In the former case the Tribunal held that the words “ground of invalidity or physical of mental incapacity to perform duties in s 4AAA(1)(b)(ii) [of the Defence Service Homes Act] were not intended to reproduce the actual grounds of discharge in the Military Regulations”. Senior Member Handley in Re Graham took the view that it was not open to the Tribunal in considering s 69(1)(d)(ii) of the Veterans’ Entitlements Act, “to go behind the stated reasons for the applicant’s discharge from the navy and substitute its own reason for discharge…”
[14] (1991) 23 ALD 502.
[15] (1996) 41 ALD 448.
Madgwick J endorsed the approach in Re Metcalf and disagreed with the approach taken in Re Graham. His Honour’s comments about the particular approach to be taken are of present assistance. He said[16]:
“Thus there is no reason to read the expression ‘incapacity to perform duties’ as subject to some implicit qualification. In the result, there is some elasticity in the section: whether there has been a discharge on the ground of ‘incapacity to perform duties’ can only be judged in the circumstances of each case: it becomes a question of fact. That is not a problem of such an interpretation, but a benefit of it. It is entirely consistent with the beneficial nature of the legislation. The question for the decision-maker, when determining an applicant's eligibility, would be this: is the applicant to be regarded, as a matter of ordinary language, as having been discharged on the ground of his or her incapacity to perform duties? It is no more than a restatement of that test to put it in the following way, which may perhaps, be more helpful to a decision-maker: is it fair to say that physical or mental incapacity for some or all military duties was the factor actuating the military discharge of the person in question? It is to be noticed that the test, as so framed, does not involve the distractions of inquiring whether (a) the person's discharge was voluntary or involuntary, (b) the applicant for a defence home loan had a remnant capacity to perform some military duties or none, or (c) there were or were not other factors also operating to bring about the discharge -- it is enough if incapacity to perform some military duties was a sufficiently substantial and operative factor that it is reasonable to say that that was the ground of the discharge.“ [emphasis added]
[16] 69 FCR 510 at 519C.
The parties’ cases
Both parties seemed intent on pursuing matters that were, in my view, wholly unrelated to the issues that I had to decide. Thus the Commission seemed intent on demonstrating that Mr Rana had fabricated documents including medical reports, had consistently lied in reporting events and symptoms to medical practitioners and when giving evidence on earlier occasions. Two volumes described as “Suspect documents” were lodged in the Tribunal although they never became part of the evidence following evidentiary rulings made early in the proceedings. Similarly, the Commission’s foreshadowed intention to call handwriting comparison evidence and fingerprint evidence, seemingly to demonstrate the contentions of fabrication, was not realised and that evidence was not lead.
But the Commission having foreshadowed such evidence led Mr Rana to respond with an affidavit answering the implied assertions made by the Commission and responding with allegations of his own about the Commission and its advisers and other unrelated parties[17]. Moreover Mr Rana has put in voluminous material going to earlier litigation that he has been involved in with authorities of the Commonwealth and other parties.
[17] Exhibit 18.
The result is that there is a vast array of evidence that appears to me to have no relevance whatsoever or which goes only to credit. It may be helpful if I say that my understanding of the task I am required to perform, informed by the decision of Madgwick J in Whiteman, is to decide whether Mr Rana had a physical or mental incapacity for duties in 1982 that actuated his discharge. There are three questions to be considered; (a) did Mr Rana suffer from a mental condition; (b) if yes, did that condition make him incapable of performing some or all of his military duties; and (c) was that incapacity to perform duties a substantial and operative factor in his discharge. Conclusions about those questions are not informed by deciding whether or not Mr Rana fabricated documents or whether Mr Rana is a reliable historian or by reference to earlier litigation involving other parties. It is to be decided by reference to the evidence that directly touches upon those questions.
With that introduction I turn to the essence of the cases advanced by the parties. It will suffice for present purposes to note that Mr Rana says that he was subjected to racial abuse and discrimination and was the victim of sexual assaults of varying severity during the whole of his period of service. The alleged perpetrators of this abuse were, in the main, other recruits or privates although Mr Rana says, as well, that senior non-commissioner officers participated in the abuse on occasions.
This treatment, he says, together with matters in his personal life, resulted in him suffering from a psychiatric condition which prevented him from adequately performing his duties which in turn lead to his discharge from the Army. Thus, he contends, it was his mental condition that actuated his discharge not the nominal reason recorded in the discharge papers.
For its part, the Commission contends, by reference to evidence from medical practitioners, and from some of the officers and soldiers that served with him, that Mr Rana’s condition was mild, that it did not make him incapable of performing his military duties and that the nominal ground for discharge was the real ground for his discharge.
Mr rana’s mental condition
Whilst Mr Rana’s present condition is not of any particular relevance it needs to be noted that the diagnosis of his present condition necessarily requires one to be cautious about accepting at face value matters relied upon by Mr Rana. Dr B.K. Jha, a consultant psychiatrist called by Mr Rana and who has treated him for some time, is of the opinion that Mr Rana suffers from adjustment disorder, post traumatic stress disorder and paranoid schizophrenia. In Dr Jha’s view Mr Rana presented with psychotic symptoms only during 1998.
Dr Carmine De Pasquale, a consultant psychiatrist in practice since 1974, treated Mr Rana from early 1986. When he was called by the Commission in other proceedings he expressed the view that Mr Rana:
“suffers from a paranoid-delusional disorder, he has a paranoid personality and … he suffers from post-traumatic stress disorder.”[18]
[18] Exhibit 53, paragraph 5.
Professor Robert Goldney, a consultant psychiatrist who examined Mr Rana on 11 December 2007 and 8 January 2009 at the behest of the Commission examined, as well, a volume of material regarding Mr Rana’s early treatments and symptoms. Professor Goldney was:
“confident that [Mr Rana] has a chronic psychotic illness, and that that has gradually evolved over the years, and that in addition he has an underlying paranoid personality disorder.”
But, as I have said, the task is not so much to determine Mr Rana’s present condition but to determine his condition during 1981 and 1982 at the time of his discharge. As has been noted Mr Rana asserts, and the Commission denies, that he was subjected to sexual and physical assaults, harassment and humiliation, during his period of service in the Army. The Commission points to considerable material that it suggests demonstrates that Mr Rana’s evidence about these matters ought not be accepted.
I do not find it necessary to reach any concluded view on the question of whether Mr Rana suffered in the manner he alleges. I take that view because in these proceedings I am not called upon to make any judgment about the cause of Mr Rana’s mental condition; I am concerned only to determine what the condition was and the effects of the condition upon his capacity to perform his duties. On that basis I need not determine whether Mr Rana was maltreated in the manner alleged by him in the course of his Army service.
There is considerable evidence available from clinical records and from four consultant psychiatrists who have examined Mr Rana at, or proximate to, his Army discharge, or subsequently – Dr Lothar Hoff, Dr Carmine De Pasquale, Dr Jha and Professor Goldney. And there is considerable evidence to suggest that Mr Rana’s condition preceded his enlistment in the Army. I should start with the latter evidence.
Dr Jha said this of the development of Mr Rana’s condition[19]:
“It is evident from the reports of the different doctors that Mr Rana exhibited some psychiatric problems towards the later months of his army service but his main problems were adjustment disorders with emotional disturbance like anxiety and depression and post traumatic stress disorder. He never presented with any psychotic symptoms either in the beginning of his illness during the later months of his army service or for the next few years after discharge from the army. There is enough evidence in these reports that Mr Rana has serious adjustment problems. This has been evident from the very beginning. He had difficulty in adjusting at school, he had problems with his father at home, and he had difficulty in pursuing his educational careers.”
[19] Exhibit 30, page 3.
Similarly Professor Goldney considered that Mr Rana’s “personality disorder would have preceded [his] enlistment in the Army”. Such disorders, he said, are lifelong conditions related to innate biological and early family and interpersonal relationship issues.[20]
[20] Exhibit 43, page 22.
Dr Hoff was of the opinion that Mr Rana had suffered a personality change to the level of disorder by the time he enlisted in October 1980.
I turn then to the contemporaneous medical records. Between 3 and 5 August 1981 Mr Rana was an inpatient at the Royal Adelaide Hospital having presented “claiming he had taken an overdose” after a week-long bout of depression following the departure of his wife and four month old daughter[21]. Whilst in this hospital Mr Rana was prescribed Haloparidol (10mg) and Benzatropine (2mg)[22]. These appear to be the only occasions during Mr Rana’s period of Army service that he received drug therapy. The discharge summary from the Royal Adelaide Hospital notes the diagnosis as “that of a reactive depression in a man with sociopathic traits to his personality.”[23]
[21] Exhibit 21, page 54.
[22] Exhibit 21, page 61.
[23] Exhibit 21, page 55.
Thereafter Mr Rana was admitted to the Repatriation General Hospital (Daw Park) between 5 August and 10 August 1981. The discharge summary from that hospital described him as “not significantly affectively disturbed, most of his conversation was concerning his attempts to rekindle his marital relationship”.[24] The clinical notes from that hospital suggest a degree of dissatisfaction on Mr Rana’s part with his role in the Army. He was described as “not happy with being a storeman”[25].
[24] Exhibit 21, page 76.
[25] Exhibit 21, page 33.
After discharge from Daw Park Mr Rana was referred to Dr Hoff by MAJ John Bickmore, the unit RMO.
Dr Hoff has the distinct advantage of having treated Mr Rana in the period between August 1981 and March 1982. Mr Rana was minded to suggest that Dr Hoff was not treating him but that he was assessing him for the purposes of the Army. I do not accept that distinction. Dr Hoff, whose evidence I accept, rejected that view[26], as do I. He first saw Mr Rana on 12 August 1981 at the request of MAJ Bickmore. MAJ Bickmore’s letter of referral makes reference to Mr Rana “going through an acute crisis with separation from his wife.”[27] Dr Hoff reported[28] that Mr Rana:
“presented with some tension, anxiety and pressure of speech. He is naturally anxious about his current domestic situation and is eager to seek ways to redress the situation.
…
He was quite agreeable for further exploration of emotional factors.”
[26] Transcript page 440, lines 46-47.
[27] Exhibit 58, page 2.
[28] Exhibit 21, page 93.
He was next seen on 19 August 1981 and noted by Dr Hoff to be “somewhat less tense.” Dr Hoff said, in his clinical notes of that consultation, that Mr Rana “was able to talk freely to me and hopefully this has been of some benefit to him”. During the course of his cross-examination of Dr Hoff, Mr Rana suggested to Dr Hoff that he (Mr Rana) had experienced difficulty in relating to him in the course of these sessions. Dr Hoff rejected the suggestion[29] as do I. The clinical notes are devoid of any suggestion of such difficulties and rather suggest that good rapport was able to be achieved between Dr Hoff and Mr Rana.
[29] Transcript page 452, lines 11 – 24.
At the next consultation on 4 September 1981 Dr Hoff noted that Mr Rana “states that he is taking his Army duties seriously.” Dr Hoff described him as “more settled”. Dr Hoff continued with supportive psychotherapy during September, November and December 1981. On 9 December 1981 Dr Hoff reported that Mr Rana “appeared more cheerful”[30] and that there had been “no major recurrences in his service or domestic life”.
[30] Exhibit 21, page 102.
On 6 January 1982, shortly after Mr Rana’s first breach of discipline, Dr Hoff noted that there were “still a number of problems in this man’s life situation”[31]. Dr Hoff saw Mr Rana again on 8 March 1982 after he had been dealt with for the two disciplinary offences on 5 March 1982. Dr Hoff noted that the Army had initiated discharge proceedings. Dr Hoff said of Mr Rana:
“He shows elements of personality disorder and suffers from reactive depression when finally things catch up with him.”
More recently, and with the benefit of contemporaneous medical records, Dr Hoff has revised his opinion and now concludes that Mr Rana was suffering from “a diagnosable personality disorder of a low order”[32] on 8 March 1982. He said of the condition that “in terms of mild, moderate or severe, I would say mild.”[33]
[31] Exhibit 21, page 204.
[32] Exhibit 58.
[33] Transcript page 431, line 20.
Professor Goldney similarly was of the view that Mr Rana suffered from a personality disorder which he thought preceded Mr Rana’s enlistment in the Army. Dr Jha was of a similar view however he considered that Mr Rana had other conditions.[34]
[34] Exhibit 30.
I am well satisfied that Mr Rana was suffering a mental condition, namely, personality disorder, at the time of his discharge from the Army in 1982. In addition I am satisfied that Mr Rana was suffering from a personality disorder prior to his enlistment. The next question then is whether Mr Rana’s mental state in 1982 caused incapacity to perform some of his Army duties. That question involves, as well, a consideration of the seriousness of the condition in 1981 and 1982.
Incapacity to perform duties
Surprisingly, Mr Rana provided little evidence of what he is able to recall about his capacity to perform his duties in 1981 and 1982. He said this[35]:
“12.I certainly had cognitive disability arising [from] adjustment disorder in the Army in 1981 arising [from] various abuses. I was not performing well in my Army paper works as a simple job like at the Army stores in Woodside. I was anxious that someone would use me as an escape goat for the fraud that was going on there. I could not concentrate and had poor memory and for escape I was smoking and drinking a lot to cease pain inside. I was had inability to obtain appropriate clinical management for reactive depression by Major Watts. He would not give me access to Army transport, and he ordered his assistant Captain King to stop my hire purchase and insurance to my car. Thus, I got my wings cut off and was very miserable.
13.I had attention deficit significant problems and could not perform Army duties like dropping rifle in parade publicly, poor paper work performance in my Army store recording, I was being disruptive arising [from] my drunkenness like sleeping in while I should had been duty as a regimental guard, not maintaining my uniform to standard, and letting the moral [sic] of the 16 Air Defence Regiment Workshop down arising [from] severe psychosocial stressor that I was suffering from Army related employment. I had substance abuse problem namely smoking and drinking excessive alcohol since joining the Army. I was defiant of the superiors and disruptive and was regularly or monthly visiting Dr Hoff and he had no cure for me.
…
19.I do not agree with [Dr Hoff] about my mental incapacity. He has said that I was suffering from acute stages of reactive depression; he has not been given the full picture of the statements of the lay witnesses as they have told lies. I was hampered in my needs to gain treatment for poor memory, poor concentration, excessive smoking and drinking, which affected in my Army duties. The Army staff made me very frustrated, and I became more manipulative and impulsive to save myself from the horrible existence. “
[35] Exhibit 17. To make sense of the extract I have inserted some words that appear to have been omitted by oversight.
Three comments may immediately be made about this evidence. First, it is, at least in part, expressed in the language of psychologists or psychiatrists. Next, some of the language mirrors the language of the Statements of Principles by which matters of causation between disease or injury and military service are determined for the purposes of the Veterans’ Entitlements Act. Finally, and as I explain below in greater detail, Mr Rana’s evidence is at odds with the considerable contemporaneous evidence and the evidence of medical practitioners and fellow soldiers and officers who dealt with him at the time.
I start with reference to the clinical notes of treating doctors from the time. Necessarily they are likely to be a better guide to symptoms and severity than the present recollections of witnesses.
The clinical summary of the Royal Adelaide Hospital[36] where Mr Rana was an in-patient between 3 and 5 August 1981 described him as appearing “mildly depressed” with “no psychotic features”. Dr Thomas from the Repatriation General Hospital, Daw Park, where Mr Rana was an in-patient between 5 and 10 August 1981, said that Mr Rana was “not a significant suicidal risk, nor psychiatrically ill.”[37] The discharge summary of that Hospital described Mr Rana as “not significantly affectively disturbed”[38].
[36] Exhibit 21, page 69.
[37] Exhibit 21, page 80.
[38] Exhibit 21, page 92.
Dr Hoff saw Mr Rana on a number of occasions between 12 August 1981 and 8 March 1982. It is useful, in the present context, to start with the report[39] compiled by LTCOL Carter on 12 August 1981 for the purpose of referring Mr Rana for a psychiatric examination by Dr Hoff. Mr Rana’s duties at the time were described as “Handling, issue and receipt of repair parts and miscellaneous stores”. His “efficiency and response to training” was described in this way:
“Gives the impression of being keen to learn but is inconsistent in the application of his stated intentions. His work requires supervision.”
LTCOL Carter’s opinion regarding Mr Rana’s retention or discharge was:
“Member is technically proficient at his duties. Provided the circumstances giving rise to this report can be satisfactorily resolved there should be no impediment to his retention.”
[39] Exhibit 21, page 91.
On the same day MAJ John Bickmore, the unit medical officer, provided a medical referral to Dr Hoff[40]. It noted that Mr Rana was “going through an acute crisis with separation from his wife” and that the “basic problem seems to be a cultural one.” MAJ Blackmore also said:
“From the Army’s point of view, he would be a good loyal soldier, in the typical Gurkha [sic] mold [sic], if he can get over his current crisis and perhaps adjust his way of thinking to more of an ‘Australian’ one. He does have some insight into this and at present is resolved to reform.”
[40] Exhibit 21, page 93.
Dr Hoff’s comments in the months that followed are instructive. He noted[41]:
[41] The date of the consultation is in parenthesis.
·“…this man was understandably tense and anxious about his domestic situation. An effort will be made to explore his feelings & support him through this crisis. It is recommended that the unit continues its normal social supports.” (12 August 1981)[42];
·“Today this man seemed somewhat less tense. The difficulties he is experiencing in his domestic upheaval are compounded by cultural factors and lack of social support of an extended family. He is receiving laudable support from his unit and this should be continued.” (19 August 1981)[43];
·“[Mr Rana] stated that he is taking his Army duties seriously. He seemed much more settled than [three weeks] ago. However, there seems to be some restlessness still present.” (4 September 1981)[44];
·“Brief psychotherapy continued. This man has a meeting with his wife and family court counsellor on Tues 22 Sep 81 and he expects access to his child on Sat 26 Sep 81. He is somewhat apprehensive. Otherwise, he appears to be coping.” (16 September 1981)[45];
·“Since he was first seen on 12th August ’81, he has maintained his stability, but will need a little support for a while yet.” (25 September 1981)[46];
·“This man has suffered further stress with the recent death of his father in Nepal. He is still in the mourning phase, and does complain of restlessness and nightmares. He feels he is not getting much support from his peers and those immediately superior to him.” (18 November 1981)[47];
·“Psychotherapy continuing. In addition to having to cope with cultural differences, a couple of the officers who were concerned about him, and who were significant figures, have or are about to leave – namely the previous medical officer and OC.” (25 November 1981)[48];
·“Today this man appeared more cheerful. There have been no major recurrences in his service or domestic life. Supportive psychotherapy continued.” (9 December 1981)[49];
·“Psychotherapy continued. There are still a number of problems in this man’s life situation, and it will take time for resolution.” (6 January 1982)[50].
[42] Exhibit 21, page 91.
[43] Exhibit 21, page 94.
[44] Exhibit 21, page 95.
[45] Exhibit 21, page 96.
[46] Exhibit 21, page 97.
[47] Exhibit 21, page 98.
[48] Exhibit 21, page 99.
[49] Exhibit 21, page 102.
[50] Exhibit 21, page 100.
Mr Rana was again referred to Dr Hoff on 3 March 1982, on this occasion by Dr Davis. His letter of referral[51] reads:
“Herewith Pte RANA, first referred in August 81 and seen by you since. After a period of improvement and adjustment he has, since Jan., deteriorated markedly in his service life. This no doubt reflects to some extent, the impatience of his superiors for a resolution of his problems and the problems he is causing his unit. They believe him to be manipulating the situation to his advantage to excuse absences and breaches of conduct etc. Pte RANA (understandably) feels that he is being persecuted. My sympathies lie with him and I find him an intelligent and concerned man who has a number of problems facing him, exacerbated by cultural differences. Recently, his behaviour has led to his being charged twice and warned for discharge. This option may be exercised in the near future should his job performance and discipline not improve, though I know that the CO is loathe to do this. Pte RANA is very much the square peg in the round hole, and I can’t help but wonder what course of action is in his best interests. I would appreciate your advice and comments in this regard.”
[51] Exhibit 21, page 103.
Dr Hoff saw Mr Rana on 8 March 1982. His notes[52] record:
“This man reports today that he has been the subject of disciplinary action, and that the Unit administration has initiated discharge. This is causing loss of face. It seemed rather inevitable that separation from the service would take place.
He shows elements of a personality disorder and suffers from reactive depression when finally things catch up with him.
He impressed as being somewhat manipulative. At this stage, management will have to be sympathetic in the current merits of the situation.”
[52] Exhibit 21, page 103
What is apparent from all of the contemporary medical reports is that there is no connection drawn between Mr Rana’s difficulties with service life that led ultimately to his discharge and any psychiatric condition, either by Mr Rana or by the reporting practitioners. There is a similar absence of any such connection in the
evidence of the soldiers and officers who served with him at the time. Evidence was called from five of them – Mr Robert Blackwell, Mr George Watts, Mr Donald Whitman, Mr Gunter Liebenau and Mr Brett Golding.
MAJ Blackwell was the OC 16 AD REGT WKSP between January 1980 and 19 December 1981. Understandably, he has a very limited recollection of Mr Rana and recalls him as “an innocuous sort of fellow”. He described him as a “greatcoat man. The person who doesn’t stand out from the crowd, is just one of the troops.” He was unaware whether Mr Rana had any major medical difficulties or any other type of difficulties.
In December 1981 MAJ Blackwell was succeeded as OC 16 AD REGT WKSP by MAJ Watts. He remained in that role during the balance of Mr Rana’s service in the unit. He gave this description of his recollections of Mr Rana[53]:
“3.My general impression of ex-Private Rana was that he was reasonably arrogant, aloof and lazy. He had some claim of heritage in Nepal…which he appeared to think made him more important than the other Privates under my command.
…
5.Ex-Private Rana was a bit different, but I never thought that he had a real mental problem. I considered him to be naturally lazy and arrogantly disobedient if he thought that particular tasks were below his station in life. He would leap at the opportunity to do higher tasks such as briefing his Commanding Officer on a battlefield scenario but would disobey if ordered to do a task that he considered to be beneath him.
6.I always considered ex-Private Rana to be quite capable of performing the duties allocated to him, but he would sometimes refuse to do so. There was always an air of smugness or arrogance about him.”
[53] Exhibit 45.
It is also useful to have regard to a report prepared by MAJ Watts in February 1982[54] in which Mr Rana’s performance was considered and appraised. MAJ Watts chose these descriptions of Mr Rana’s attributes:
[54] Exhibit 4.
·“Application of knowledge - Experiences difficulties applying knowledge, skills and experience and produces work of a marginal standard (Apparently has the knowledge but fails to apply it).”
·“Reliability - Unreliable – requires supervision.”
·“Acceptance of responsibility – Accepts assigned responsibilities.”
·“Leadership – Ineffective – obtains indifferent results through relying on others too much.”
·“Initiative – Has capability but hesitates unless directed.”
·“Common sense – Tends to be impractical in his approach to problems/situations.”
·“Oral communication – Experiences difficulties communicating information, ideas and intentions to others (Has a language problem).”
·“Interpersonal relations – Tends to be a disruptive influence and undermines unit effectiveness.”
·“Conduct – Displays a satisfactory standard of conduct.”
·“Appearance – Smart and well turned out at all times.”
·“Physical fitness – Displays an acceptable level of physical fitness.”
MAJ Watts gave an overall rating of “below the standard required of his rank”. He commented as follows:
“Pte RANA has suffered complex emotional stresses which he has allowed to influence his effectiveness as a soldier. He has been given ample opportunity to overcome his problems however it is felt that he has started to rely on them as a psychological crutch. RANA has been counselled several times in an attempt to help him sort out his problems. His behaviour and the excess of attention afforded to him has started to undermine the efficiency of the Repair Parts Supply Platoon.”
WO2 Whitman was the Controller of the Stores Platoon at 16 AD REGT WKSP between November 1978 and March 1982. He said of Mr Rana[55];
“15.… ex-Private Rana appeared to me to lack self motivation and he required constant supervision to fulfil his allotted tasks.
16.My general impression of ex-Private Rana was that he was a bit of a slacker and he certainly wasn’t the best storeman under my command. He would have to be told how to do things a couple of times before he would comply and he occasionally seemed to have difficulty performing basic tasks even though he had successfully passed the training course.
17.Having said this, I never thought ex-Private Rana was incapable of performing his duties in the Workshop. Rather, in my personal opinion, his refusal to perform duties, on occasions, was due to pure stubbornness.
18.I did not think ex-Private Rana was strange compared to other soldiers in the Workshop and I did not think he was mentally unwell when he worked for me in 1981-1982. I knew he was attending the regimental aid post from time to time, but I didn’t know the reason for his medical appointments.”
When giving evidence on an earlier occasion Mr Whitman referred to Mr Rana’s work performance as having declined after he had returned from overseas. He referred to a drop-off in Mr Rana’s punctuality. When giving evidence on this occasion he rejected the proposition put to him by Mr Rana in cross-examination that Mr Rana had had a problem with alcohol.
[55] Exhibit 49.
SGT Liebenau was the Chief Clerk at 6 AD REGT WKSP between July 1981 and early 1984. He was responsible for investigating the circumstances that led to Mr Rana being charged with absenting himself without leave and disobeying a lawful command. He said this regarding Mr Rana[56]:
“20.My general impression of ex-Private Rana during my interactions with him in 1982 was that he was unhappy with his station in life and that he considered himself to have come down in the world by enlisting as a Private in the Australian Army. He often claimed to be descended from Royalty and he also claimed to have been a pilot in the Nepalese Airforce before coming to Australia. As a result I got the impression that ex-Private Rana thought that he should have been an officer rather than a Private and that he was highly dissatisfied with his job.
21.I had no reason to believe ex-Private Rana was suffering from a mental illness during my interactions with him in early 1982…”
Mr Liebenau also agreed that Mr Rana was “generally unhappy” and “dissatisfied”.
[56] Exhibit 41.
Mr Golding was a Private and was employed as a clerk in 6 AD REGT WKSP for the whole of Mr Rana’s service in the unit. His “general observations” of Mr Rana during his period of service were as follows[57]:
“16.My general impression of ex-Private Rana when I was at Woodside with him was that he was a bit of a malingerer. He was always claiming to have one problem or another, but the Army culture didn’t really pander to people’s problems.
17.I never thought there was anything wrong with ex-Private Rana or that he was incapable of understanding or doing what he was told. In fact, as stated in [an earlier] Statement, I found ex-Private Rana to be quite an intelligent person. He had obviously passed his basic training and he knew how to do things. However, I sometimes got the impression that he was putting on a “me not understand” act to avoid having to do work that was allocated to him.”
[57] Exhibit 42.
I accept the evidence of each of these witnesses. Mr Rana appeared not to take issue with their observations of the manner of his performance of his duties rather the issues that he raised with them related to his claims of discrimination and victimization that I find it unnecessary to deal with. Mr Rana was critical of Mr Liebenau for his inability to remember a telephone number given to him in 1982 and, as well, asserted that Mr Liebenau had somehow tampered with a notebook that he had used during his period of service and in which he had made contemporaneous notes regarding discipline matters concerning Mr Rana. It was never made clear to me what point Mr Rana sought to make from these criticisms but I reject them. Mr Rana also seemed to suggest in cross-examination of these witnesses that there had been something unfair about the Army’s disciplinary processes against him. Mention was made, for example, of him not being permitted to have access to a lawyer, but I am unable to see how, even were that to have been true, it bore on the issues that I have to decide.
There is, however, nothing in their evidence that suggests that there was any apparent connection between the matters that led to Mr Rana’s discharge and any psychiatric condition. The general tenor of the evidence was that Mr Rana was quite capable of performing his allotted duties but that his laziness and arrogance created a problem in his performance. Importantly there is nothing in the evidence that suggests that Mr Rana was experiencing difficulties of the nature claimed by him in his evidence. The highest at which the evidence may be put is the comment by MAJ Watts in March 1982 that Mr Rana had “complex emotional stresses” which he had “allowed to influence his effectiveness as a soldier”. But that falls far short of demonstrating that some abnormal condition of the mind was hindering Mr Rana’s capacity to perform all or part of his duties.
The final source of evidence on this aspect of the matter is that of the psychiatrists who have examined and treated Mr Rana and whose present opinions are relied upon by the parties.
The first in time was Dr Hoff who treated Mr Rana throughout the period in issue. He was recently asked whether Mr Rana was mentally incapable of performing some or all of the his military duties as a storeman due to the effects of a mental illness or any other matter going to mental incapacity. Dr Hoff said[58]:
“In my opinion Pte Rana was not mentally incapable (that is was capable) of performing his duties as a storeman at the 16 AD Regt Workshop.
From my own observations, he was sufficiently intelligent to do the work, nor was there any physical impediment preventing him from doing his duties.
On 8 March 1982 I noted ‘he shows elements of a personality disorder’. In the light of further information which was not known to me at the time, I have revised this opinion and now consider that he was suffering a personality disorder of a low order. …
In the confidential report of March 1981[[59]] Major Watts stated that Pte Rana displayed a satisfactory standard of conduct, although ‘interpersonal relationships were poor but tend to be a disruptive influence and undermines unit effectiveness”. Major Watts also stated ‘Rana has been counselled several times in an attempt to help him sort out his problems. His behaviour and the excess of attention afforded him has started to undermine the efficiency of the RPSL (Repair Parts and Supply Platoon)’ This implies that Pte Rana was not mentally incapable of doing his duties but his behaviour and the excess of attention afforded him was causing problems in the Workshop.
It is interesting to note that none of his immediate working colleagues at the time regarded him as having a ‘mental condition’. Although they mentioned that he had character traits which made him different and somewhat difficult to work with. I was unable to discern from the reports and descriptions that he was incapable of performing his duties as a storeman.”
Dr Hoff saw no evidence in 1981 or 1982 that Mr Rana had difficulty concentrating or with his recall.
[58] Exhibit 58, page 21.
[59] This is plainly a reference to the report of February 1982 referred to in paragraph 56 above.
I should also mention that Mr Rana appeared to place some weight on the opinion of Dr Hoff, expressed in evidence in proceedings in the Tribunal in 1987. I regard what Dr Hoff there said as being consistent with what he now says.
Although not a witness in the proceedings Mr Rana seemed to place some reliance upon a report prepared by Dr David Kutlaca in June 1985[60]. Dr Kutlaca first saw Mr Rana in January 1985. His report refers to Mr Rana reporting difficulties with concentration however it is not clear when Mr Rana had told Dr Kutlaca that he had experienced those difficulties.
[60] Exhibit 1, page 990 ff.
Dr Carmine De Pasquale commenced treating Mr Rana in late 1986 and continued doing so intermittently until 2004. He gave evidence in earlier proceedings in the Tribunal commenced by Mr Rana in 1988 in which he expressed the opinion that Mr Rana suffered from “a reactive anxiety depression”[61]. In these proceedings he expressed the opinion that the evidence suggested that in 1982 Mr Rana had not been suffering from any depression or a depressive disorder so severe that he could not do his job as a storeman[62].
[61] Exhibit 1, page 313.
[62] Transcript, pages 407 – 408.
Dr Jha had a different opinion. From the reports of other practitioners Dr Jha concluded that:
“Mr Rana exhibited some psychiatric problems towards the later months of his army service but his main problems were adjustment disorder with emotional disturbance like anxiety and depression and post traumatic stress disorder.”
When asked whether, from what he now knew of Mr Rana’s condition in 1981 and 1982 that would have interfered with his capacity to perform his duties as a storeman in the Army. He responded in this way[63]:
“I think, you know, that he presented with serious psychiatric problems so that might actually, you know, impair that ability to work properly, you know in the army.
All right. In what way? --- You know, but because, you know, that if the person he thinks as, you know, well he is distressed you know, it may affect his attention and concentration, you know, responsibility.”
Dr Jha was of the view that Mr Rana’s psychiatric problems “were actually sometime quite serious”[64] and referred to the difficulty that a person who is mentally unstable because of different types of psychiatric problems will experience in carrying out a job properly.
[63] Transcript page 193, lines 5 – 10.
[64] Transcript page 194, line 15. The transcript refers to “furious” however my recollection was that “serious” was the description used.
It is material to observe, as well, that it is not at all clear from Dr Jha’s report what documentation was before him to enable him to formulate an opinion. His report referred to “Extensive materials submitted by Mr Rana from time to time” without detailing what that material was. Moreover it seems plain that included among the materials in his files were copies of medical reports that were demonstrated not to be genuine. Understandably, Dr Jha was not in a position to say whether, and if so, to what extent, his views had been influenced by such material.
Dr Jha did, however, acknowledge that Dr Hoff, as the treating psychiatrist, was in the best position to give evidence on this aspect of the matter.
Professor Goldney examined Mr Rana on two occasions in December 2007 and January 2008. In his report of 16 January 2008[65] Professor Goldney accepts the possibility that Mr Rana’s “discharge from the Army could have been related to his emotional state”. That aspect of the matter was considered in greater detail in his subsequent report of 4 August 2008[66]. In that report Professor Goldney expressed his views in this way:
“It is evident that Mr Rana had a personality disorder, or, as Dr Hoff (8/3/82) noted, ‘elements of a personality disorder’, during his service. However, personality disorders are not considered to be conditions where one’s volitional control is lost, even though such persons may be more likely to engage in anti-social or self-defeating behaviour. At the very least, if an experienced psychiatrist such as Dr Hoff recorded only ‘elements of a personality disorder’, there is no reason to consider that Mr Rana’s own volitional control was compromised by his emotional state. That is especially the case given the statements of Major Watts…, Sgt. Liebenau…, Lt Col Blackwell…, Private Golding…and W/O Whitman…
Indeed, none of these statements indicate that the assessment of Dr Hoff…was compromised by an absence of information which could have led to a more substantive psychiatric diagnosis being made at the time.
There would have been times during his service when Mr Rana’s adjustment disorder would have compromised his capacity to pursue some of his duties as a storeman. Thus, when his ‘reactive depression’ or ‘adjustment disorder’ was prominent, there would have been such compromise. However, any such ‘reactive depression’ or ‘adjustment disorder’ would have been discrete and time limited, as a reaction to contemporaneous stressors, such as inter-personal/marital difficulties.
…
…I consider that there are insufficient symptoms documented in the clinical record to substantiate the view that Mr Rana had a significant psychiatric illness which would have precluded him from work.
…
As referred to above…I have noted that there would have been time limited periods during which Mr Rana would not have been able to cope with his work due to his adjustment disorder with depressed and/or anxious mood. However, an adjustment disorder is not considered to be a condition which compromises a person’s general volition in terms of responding to reasonable requests, and there is no suggestion of there being any brain damage or organic deterioration of the brain or mind associated with such condition. Indeed, the general duties described, as well as the specific duties, are all duties which would be well within the capabilities of most persons with adjustment disorders, unless in fact the symptoms were particularly severe. That does not appear to be the case with Mr Rana, or, at the very least, there is an absence of such symptoms documented in his military record.”
[65] Exhibit 43, at page 21.
[66] Exhibit 44.
In the course of his evidence Professor Goldney was taken to the earlier evidence of Dr Jha[67]. He took issue with Dr Jha’s characterisation of Mr Rana’s symptoms as being “serious”. When asked about the possibility of interference with concentration he said[68]:
“There could be transient interference with a person’s concentration and capacity to undertake certain tasks. However, it would be time limited, and it would not be particularly severe, and he was assessed by a number of practitioners in addition to Dr Hoff who appear to have not been able to document ongoing symptoms of psychiatric illness which would have more than transiently affected, you know, concentration. So I consider that the contemporaneously documented information doesn’t support Dr Jha’s views.”
[67] Set out in paragraph 67 above.
[68] Transcript page 262, lines 2 – 9.
This survey of the evidence demonstrates that only the opinion of Dr Jha supports the proposition that Mr Rana’s mental state in 1981 might have had anything other than a transient impact upon his capacity to undertake his Army duties. The opinions of Dr Hoff, Dr De Pasquale and Professor Goldney are all to the contrary. I am unable to accept Dr Jha’s opinion and prefer the opinions of the other practitioners.
First, and as Dr Jha acknowledged, Dr Hoff had the advantage of being Mr Rana’s treating psychiatrist at the time and was in the best position to gauge to extent of the severity of Mr Rana’s symptoms and their impact on his functioning. Moreover, Dr Jha’s description of Mr Rana’s mental state as “serious” is quite at odds with the contemporaneous medical records and the opinions of all other
psychiatrists including Dr Hoff. If, as I consider to be the case, Dr Jha’s description of “serious” is overstated, that it seems probable that his view of the likely consequences will also be overstated.
Those matters, of themselves, would lead to my not accepting the views of Dr Jha but there is, as well, reason to doubt the quality of the material that informed Dr Jha’s opinion when it is not at all clear whether reports that are not genuine had any influence on the formation of his opinion.
The evidence of Dr Hoff, which I accept, was that Mr Rana’s mental state did not, in fact, interfere with his capacity to undertake his duties. There is, as well, the opinion of Dr De Pasquale that in 1982 Mr Rana had not been suffering from any depression or a depressive disorder so severe that he could not do his job as a storeman. Finally there is the opinion of Professor Goldney that Mr Rana’s mental state would not have caused him other than transient and minor interference with his concentration and ability to undertake his duties.
There is, as well, a body of lay evidence from those who served with Mr Rana that his work was not affected and a complete absence of any reference in the contemporaneous medical records to Mr Rana’s work capacity having been interfered with by his mental state.
All of this evidence leads me to conclude that I am not satisfied that Mr Rana’s mental state in 1981 and 1982 interfered in any material degree with his capacity to undertake any of his Army duties.
Cause for discharge
The case for Mr Rana depends upon an acceptance of the proposition that his mental state caused the behaviour that led to his poor work performance and disciplinary problems which in turn led to his discharge from the Army. The contemporary Army records make it plain that his discharge was occasioned by his poor performance and lack of discipline. What is, however, absent is any evidence from which it could be concluded that Mr Rana’s mental state caused the behaviour that led to discharge.
The matter may be viewed in this way. In early March 1982 LTCOL Carter determined to seek Mr Rana’s discharge because his attitude and conduct were of a poor standard and because his continuing absences had caused him to become an administrative burden on the unit. The material does not suggest that LTCOL Carter made that decision because he considered that Mr Rana was incapacitated from performing his duties because of any mental condition. But had he asked the question in the manner posed by Madgwick J, that is, is it fair to say that Mr Rana’s l or mental incapacity for some or all military duties was the factor actuating the military discharge of Mr Rana, there was no evidence available to him that even remotely suggested an affirmative answer to that question. The officers and men who worked with Mr Rana did not hold that view. The psychiatrist who had treated Mr Rana for the preceding seven months did not hold that view. The evidence available overwhelmingly supported the conclusion that Mr Rana’s retention in the Army was not in the interests of the Army or Australia.
There is then no basis on which it could be concluded that Mr Rana’s mental state caused any inability to perform his military duties. There is no reason to doubt that his discharge was brought about by the expressed reason for discharge, his apparent unwillingness to meet the standards of conduct expected of him.
That conclusion is, of itself, sufficient to dispose of the matter however I propose to deal with the particular arguments raised by Mr Rana in his extensive written submissions[69].
[69] Exhibits 64 and 65.
I start by observing that I have experienced considerable difficulty in understanding the relevance of many of the arguments that Mr Rana seeks to advance. Questioning of Mr Rana in the course of the final day of the hearing served to demonstrate that much of what is advanced in Mr Rana’s written submissions is not relevant to the task I have to perform.
The submissions of 9 July 2009 commence with a complaint about the “fatal error” constituted by the earlier decision to determine the preliminary issue rather than proceeding with a hearing of all matters in issue. Mr Rana does not suggest in the submissions nor did he suggest in the course of the hearing that the determination of the matter in this way prevented him from calling any evidence he desired to call or prejudiced him in any way. I am unable to see anything in the point even had I been persuaded (which I was not) that the earlier direction had been erroneous.
The next point that Mr Rana seems to be making involves an apparent reliance upon the Army’s traditional “redress of grievance” processes. Self-evidently, such reliance is misplaced.
Mr Rana next raises the argument that, because a step in the discharge process, the final medical examination, was not undertaken, he has not been lawfully discharged from the Australian Army. I very much doubt the correctness of the conclusion however even assuming that to be the result of the absence of a medical examination it would not assist Mr Rana. The claim presently advanced is that Mr Rana is “a member of the Forces” and thus entitled to a disability pension under s 70 of the Veterans’ Entitlements Act because he answers the description in s 69(1)(d) of that Act as a person whose engagement for a period in excess of three years had been terminated by reason of a discharge on the grounds of mental incapacity to perform duties. But an alternative argument, based upon the notion that Mr Rana was not discharged would be predicated upon Mr Rana having “completed 3 years’ effective full-time service”[70]. Clearly Mr Rana does not satisfy that test. Even if the Army had not complied with the requirements for a discharge that failure does not have the consequence that Mr Rana is to be regarded as having rendered effective service since then; the only consequence is that Mr Rana would not have been properly discharged.
[70] See s 69(1)(c), Veterans’ Entitlements Act.
Next, Mr Rana relies upon the fact of earlier determinations of entitlement to compensation and sickness benefit. So far as I can tell his reliance is twofold – he relies upon those determinations in an evidentiary sense and he relies upon them as creating an estoppel against the Commonwealth.
The compensation decision[71] was made on 13 January 1986 and determined that Mr Rana was entitled to be paid compensation for incapacity pursuant to s 45(2A) of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) from 14 July 1982 to December 1984 for a condition described as “adjustment disorder”. There is a further document from the Department of Social Security[72] from which I infer that Mr Rana satisfied the eligibility requirements for a sickness benefit from “approximately 30 July 1981”.
[71] Exhibit 56. A further determination was made in December 1986 but it does not take the matter any further.
[72] Exhibit 57.
The compensation determination evidences no more than that in 1986 a delegate of the Commissioner for Employees’ Compensation was satisfied, on the basis of the evidence considered by that employee, that Mr Rana was totally incapacitated for employment from 14 July 1982. I am not aware what evidence was before the delegate to enable that conclusion to be reached. The 1988 decision of the Tribunal on Mr Rana’s claim to be entitled to compensation beyond April 1985 contains no hint of the evidence that established incapacity from July 1982, to the contrary, some of the evidence cited seems inconsistent with Mr Rana having been totally incapacitated for the whole period. Thus there are references to Mr Rana applying for unemployment benefits in December 1982 and seeking and obtaining employment thereafter. I do not regard the compensation determination as undermining the overwhelming body of the evidence before me that Mr Rana was not incapacitated from performing his Army duties in 1982.
The same is true of the determination made under the Social Security Act 1947 (Cth).
Mr Rana refers to the decision of the High Court in The Commonwealth v Verwayen[73] in support of his argument based upon “equitable estoppel”. The argument fails at a number of points, not least because Mr Rana does not contend for a representation made by the Commonwealth, upon which he relied to his detriment in circumstances that would make it unconscionable for the Commonwealth to now resile from the representation.
[73] (1990) 170 CLR 394.
I rather suspect that the doctrines that Mr Rana seeks to have applied are those of res judicata and issue estoppel. I am content to determine the issue by reference to the observations of Cooper J in House v Department of Defence[74] where his Honour said:
“Whether or not the doctrines of res judicata and issue estoppel apply to proceedings in the AAT is a complex and controversial question. The issues and policy considerations are examined extensively by Hall in ‘Res Judicata and The Administrative Appeals Tribunal’ (1994) 2 AJ Admin L 22. However, Mr House, who was unrepresented, was given no notice that the respondent intended to raise these issues on the hearing of the appeal, nor is he by training or experience equipped to argue them. Fortunately, it is not necessary to resolve the question to decide this appeal. Even if the doctrines apply, there must be a coincidence of issues or causes of actions before the doctrines can have any relevant operation.”
[74] (1996) 65 FCR 94 at 100 – 101.
Whatever may be the operation of the doctrines, it is plain that there is not a coincidence of issues or causes of action between the earlier compensation and social security decisions and the present proceedings. Thus I reject Mr Rana’s “estoppel” argument.
In paragraph 14, and following, of Mr Rana’s 9 July 2009 submissions further reference is made to the decision to determine the preliminary issue and reference to a witness that the Commission had intended to call but who was not called as a result of a ruling made by me. These matters seem not to be relevant.
Next, in paragraphs 15 and 16 Mr Rana repeats his attack on the decision of the delegate of the Chief of Army that has been the subject of litigation, determined adversely to Mr Rana in the Federal Court. As I sought to explain to Mr Rana in the course of the hearing the matters determined in that litigation are quite different to the matters I have to determine. Mr Rana also seeks to rely on what was said to be a contractual promise in the statement made in correspondence[75] that the “Army Office will write…in due course to finalise any outstanding administrative matters”. The South Australian limitation statute is said to be “picked up” by s 79 of the Judiciary Act 1901(Cth). That may well be so but I am unable to comprehend, and Mr Rana was not able to explain, how that had any bearing on these proceedings.
[75] Exhibit 13.
Then, in paragraphs 24 to 29, Mr Rana develops arguments about the application of the Statements of Principles. Given the limited scope of the present determination those matters do not arise for consideration.
As best as I can make out the balance of Mr Rana’s 9 July 2009 submission is devoted to explaining why Mr Rana submits that I ought not accept several of the Commission’s witnesses. As is apparent, I do not accept the criticisms made by Mr Rana of those witnesses. Mr Rana makes much of the submission that medical witnesses such as Dr Hoff, who had treated him, were precluded from giving evidence without Mr Rana’s “express or implied permission”. Why that was so was never made clear. Dr Hoff, in common with the other witnesses, was bound to answers the questions put to him unless there was advanced some valid basis for refusing to do so. No basis was suggested.
In his supplementary submissions of 30 July 2009[76] Mr Rana advanced the argument that the Commission’s case ought be rejected because it “indirectly discriminates him” on the basis, it is said, of race, ethnicity and psychiatric disability. The submission is difficult to follow however Mr Rana seems to suggest that he was discriminated against whilst serving in the Army. Even if that were established it could have no bearing upon the present proceedings.
[76] Exhibit 65
Mr Rana’s other argument in his 30 July 2009 submission is that “the AAT can revisit its own earlier decisions”. Assuming that that proposition is sound, I am unable to see how it matters since, so far as I am aware, I was not invited to revisit the conclusions of the Tribunal in the earlier proceedings.
There is nothing in the other submissions advanced by Mr Rana. I am unable to discern in them any other arguments that are, or are arguably, relevant to the present proceedings.
Conclusion
It follows that I am not satisfied that Mr Rana was a “member of the Forces” as that expression is used in s 70 of the Veterans’ Entitlements Act. That being so there is no need to consider the merits of the claims made and questions of causation. I would affirm the decision under review.
I certify that the 100 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: .......................Signed.............................................
AssociateDate of Hearing 29 &30 June, 1, 2, 3, 6, 7, 8 and 31 July 2009
Date of Decision 4 September 2009
Applicant In person
Counsel for the respondent Mr J Wallace
Solicitor for the respondent Australian Government Solicitor
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