Richardson and Repatriation Commission - [2001] AATA 578

DECISION AND REASONS FOR DECISION [2001] AATA 578

ADMINISTRATIVE APPEALS TRIBUNAL )

)Nos. N1997/1527 N1999/1658

VETERANS' APPEALS DIVISION       )
           Re      Ian RICHARDSON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr M E C Thorpe, Member Rear Admiral A R Horton, AO, RAN Rtd, Member.

Date22 June 2001
PlaceSydney

Decision The Tribunal – (a) Affirms that part of the decision of the Repatriation Commission ("the Respondent") dated 27 November 1996 that determined that the condition of Asthma suffered by Ian Richardson ("the Applicant") is not war-caused; and (b) Varies that part of the decision of the Respondent dated 27 November 1996 that assessed pension payable to the Applicant at 50 percent of the General Rate by adding the words "and at the Special (Totally and Permanently Incapacitated) Rate with effect on and from 8 July 1997; and (c) Sets aside the decision of the Veterans' Review Board dated 21 July 1999 and substitutes therefor its decision that the decision of the Respondent dated 5 February 1999 made pursuant to s31(6) of the Veterans' Entitlements Act 1986 is ultra vires.

..............................................
M T Lewis
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS
ENTITLEMENT – operational service – reasonable hypothesis – whether Applicant's asthma was war-caused condition – Statements of Principles applied – whether Applicant "experienced a stressor" – whether Applicant exposed to "nonantigenic stimuli within 24 hours immediately before clinical worsening of asthma" – clinical worsening of asthma after operational service was concluded – whether Respondent had power under s31(6) of the Veterans' Entitlements Act 1986 to revoke entitlement to post traumatic stress disorder, depressive disorder and psychoactive substance abuse – whether a review by the Respondent under s31(4) would have allowed it to revoke decisions already made accepting war-caused conditions – whether decision of Respondent ultra vires
ASSESSMENT – whether Tribunal had jurisdiction to consider Special Rate assessment
WORDS AND PHRASES: definition of "vary" in s31(4) Veterans' Entitlements Act 1986.

Fitzmaurice v Repatriation Commission (1989) 19 ALD 297
Repatriation Commission v Deledio (1999) 83 FCR 82

Veterans' Entitlements Act 1986: ss9(1)(e)(ii), 24(1)(a), 31(4), 31(6), 120(1), 120(3)

Statement of Principles, Instrument No.5 of 1994 (Pyschoactive Substance Abuse)
Statement of Principles, Instrument No.15 of 1994 (Post Traumatic Stress Disorder) as amended by No.225 of 1995
Statement of Principles, Instrument No.65 of 1996 (Depressive Disorder)
Statement of Principles, Instrument No.59 of 1996 (Asthma)

REASONS FOR DECISION

Mrs M T Lewis, Senior Member Dr M E C Thorpe, Member Rear Admiral A R Horton, AO, RAN Rtd.

This is a review of two applications before the Tribunal.
First application – Repatriation Commission decision dated 27 November 1996
The first is in respect of that part of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 27 November 1996 that refused the claim made by Ian Richardson ("the Applicant") in respect of asthma, and which assessed payment of pension at 50 percent of the General Rate with effect from 6 June 1996. The Assessment arose out of another part of that decision of the Respondent that accepted the Applicant's conditions of depressive disorder and post traumatic stress disorder were war-caused.
On 20 January 1997 the Applicant lodged an application for review by the Veterans' Review Board ("the VRB") (T16) both in respect of asthma and assessment, but by that time the Respondent had also made another decision that increased the Applicant's pension to 60 percent of the General Rate. There is no evidence before the Tribunal that the VRB conducted a review in respect of assessment arising from the Respondent's decision of 27 November 1996, but on 18 July 1997 the VRB affirmed that part of the Respondent's decision in respect of asthma. No reference was made in the VRB decision to the assessment issue. The Applicant then sought review by this Tribunal (N1997/1527), noting inter alia, that an appeal for increase in pension was "now pending".
The Tribunal notes that in the Applicant's application for review by the VRB (N1997/1527, T16) his advocate sought review of –
(1) asthma rejected dws * entitlement appeal
(2) DP assessed at 60% * assessment appeal

He also referred to the date of the decision being "28/11/96". Clearly, in respect of asthma, the date of the decision under review was 27 November 1996.

The next day, 28 November 1996, another decision was made (N1999/1658,T10) that accepted the Applicant's claim for bilateral sensorineural hearing loss, and increased pension to 60 percent of the General Rate. Ultimately, on 1 December 1997 (N1999/1658, T24) the VRB affirmed that part of the Respondent's decision of 28 November 1996 in respect of assessment. That decision was not appealed to this Tribunal. Nowhere has the VRB reviewed the part of the Respondent's decision of 27 November 1996 that relates to assessment.
The Tribunal considers that, taking into account that this is beneficial legislation, the Applicant had the right to have the whole of the decision of the Respondent of 27 November 1996 reviewed, and not merely that part that related to asthma: Fitzmaurice v Repatriation Commission (1989) 19 ALD 297. That omission is reviewable by this Tribunal, under the head of N1997/1527, notwithstanding the Applicant's reference to the date of the decision as "28/11/96" and to the fact that pension was at the time assessed at 60 percent. The Tribunal's jurisdiction to review the assessment part of the Respondent's decision dated 27 November 1996, (noting the failure of the VRB to do so, which was an omission), is the only basis for the Tribunal proceeding to make its decision in respect of Special Rate. The need to do this will become clear later in these reasons for decision.
Second application – Veterans' Review Board decision dated 21 July 1999 - section 31 issue
The second application for review is that in relation to a decision of the VRB dated 21 July 1999 (N1999/1658,T2), that reviewed a decision of the Respondent dated 5 February 1999 made pursuant to s31(6) of the Veterans' Entitlements Act 1986 ("the Act"). The decision dated 5 February 1999 purported to "revoke", with effect from 1 September 1997, the decision of the Respondent dated 27 November 1996 insofar as it related to the acceptance of depressive disorder and post traumatic stress disorder as war-caused conditions, and to reduce pension from 70 percent of the General Rate to 30 percent of the General Rate with effect from 25 February 1999.
The Applicant sought review of that decision by the VRB. On 21 July 1999 the VRB set aside the decision of the Respondent and determined that the Applicant's condition of depressive disorder, post traumatic stress disorder and psychoactive substance abuse are war-caused conditions and that pension was payable at 70 percent of the General Rate with effect from 8 July 1997. The Applicant then sought review by this Tribunal in respect of that part of the VRB decision regarding assessment, seeking to have it increased to the Special Rate (N1999/1658).
In turn, the Respondent asked the Tribunal, under the head of the Applicant's application, to include in its review, that part of the VRB decision that set aside the s31(6) decision and determined that the Applicant's conditions of depressive disorder, post traumatic stress disorder and psychoactive substance abuse were war-caused. The Respondent relied on the decision of the Full Federal Court in Fitzmaurice (supra), that the Tribunal has jurisdiction to review the whole of the decision under review. The Tribunal agreed at the time of the hearing that it had such jurisdiction, and proceeded to hear the evidence in respect of the Applicant's psychiatric conditions.
The Respondent conceded at the outset of the proceedings that if the Applicant succeeded having the Tribunal accept the psychiatric conditions as being war-caused, then he met all the conditions for the payment of pension at the Special Rate.
At the end of the hearing for the purpose of taking evidence, this matter was adjourned for the parties to make written submissions, which occurred over a protracted period and were finally lodged on behalf of the Applicant on 4 June 2001. No attention was given by the parties to the question of whether the Respondent had power under s31(6) to make the decision it made, and unfortunately the Tribunal was not alert to the full import of the issues at that time. However, having now considered that issue, the Tribunal has some fundamental concern about it, as will become apparent in the following paragraphs.
The Respondent purported to make its decision to "revoke" its determination to accept certain conditions as war-caused, under s31(6) of the Act, which provides:
Where the Commission is satisfied that;
(a)       having regard to any matter that affects the payment of a pension or attendant allowance, being a matter that was not before the Commission, the Board or the Administrative Appeals Tribunal, as the case requires, when the decision to grant the pension or attendant allowance, or a decision to vary the rate of the pension or attendant allowance, was made;
(b)       by reason of as refusal or failure of any person to comply with a provision of this Act;
(c)       by reason of a refusal or failure of a veteran to comply with a notice served on the veteran under subsection (5A) or with a request made under paragraph 32(1)(c); or
(d)       by reason of the circumstances referred to in a paragraph of section 24A being applicable to the veteran;
in a case to which paragraph (a), (b) or (c) applies, a pension or attendant allowance should be cancelled or suspended or is being paid at a higher rate than it should be or, in a case to which paragraph (d) applies, a pension is being paid at a higher rate than it should be, the Commission may, by determination in writing, cancel or suspend or decrease the rate of the pension or attendant allowance, or decrease the rate of the pension, as the case may be, with effect, subject to subsection (7), from the day on which the determination was made or such later day as is specified in the determination. (Tribunal's emphasis)
On a careful reading of s31(6), the Tribunal is of the view that the Commission has power to cancel the rate of pension payable in a case where, having regard to a matter that was not before the Commission when the primary decision was made to grant the pension, it is satisfied that the pension should be cancelled. It merely enables the Commission to determine, for example, that no pension shall be paid in respect of that condition. It does not give the Commission power to revoke its decision that a particular condition is war-caused.
In its decision dated 21 July 1999, the VRB has proceeded to review that decision in respect of the substantive issues, presumably assuming that the Respondent had power to make the decision under review. The VRB decision is the decision under review by this Tribunal, and it is incumbent on the Tribunal to consider this issue of the Respondent's power to make the decision it made.
In the circumstances the Tribunal finds that the VRB was wrong in proceeding to review the merits of the application without ensuring that the decision it was reviewing was one that the Respondent had power to make. The decision of the Respondent should have been set aside by the VRB on the basis that the Respondent had no power to make the decision, thereby leaving in place that part of the decision of the Respondent dated 27 November 1996 that the conditions of depressive disorder and post traumatic stress disorder are war-caused conditions, and leaving in place the decision of the Respondent dated 1 September 1997 that psychoactive substance abuse was war-caused.
The Tribunal now sets aside the decision of the VRB dated 21 July 1999 and the decision of the Respondent dated 5 February 1999 on the basis that the Respondent's decision is ultra vires.
The Tribunal has also considered whether the Respondent would have had power to make the decision it made under any other subsection of s31. It is apparent from the s31 decision that the Respondent was in effect concerned that the decisions to accept the psychiatric conditions as war-caused were based on evidence that was false in a material particular. In considering the various subsections of s31, the only other one that may on its face be relevant is subs.(4), which provides –
Where the Commission is satisfied that evidence before the Commission when it made a decision was false in a material particular, the Commission may, in its discretion, review the decision and, if it varies the decision, it may approve as the date as from which the variation shall operate a date, which may be a date before or after the commencement of the review, considered by the Commission to be appropriate in all the circumstances.
The Tribunal considers that it was not open for the Respondent to use subs.(4) to revoke the previous decision. Subsection (4) merely empowers the Commission to vary the decision. The word "vary" is defined in the New Shorter Oxford Dictionary (1993 edition) as –
Cause to change or alter; introduce changes or alterations into (something); modify. Also, introduce variety into, make varied.

The definition of "revoke", from the same reference, insofar as is relevant, is –

Annul, repeal, cancel, (a decree, promise, etc); rescind. Retract, withdraw, recant.

The Tribunal interprets the word "varies" in subs.(4) to allow the decision to be changed to another form, but the process it allows falls short of rescinding. Therefore, even if the Respondent had intended to use subs.(4) but used subs.(6) in error, it still would not have had power to do what it did. Moreover, the Tribunal considers there is no opportunity for the Respondent to use any part of s31 to "revoke" a previous decision it has made in error.
The Tribunal and the Respondent must take cognisance of the fact that the Act is beneficial legislation that should be interpreted liberally rather than restrictively. The Tribunal also notes that s31 was amended, more or less to its present form, at the time the Act was enacted in 1986, representing a significant restriction of the previous powers held by the Commission in respect of internal review of its own motion. It is not open to the Respondent to attempt now to open up some of that power by an overly restrictive interpretation of s31. It would be overly restrictive to interpret in s31(4) that the Commission's power to vary decisions amounts in fact to revoking the decision.
The Tribunal has come to its decision having already taken extensive evidence in this matter without considering this prior legal issue. In good faith the parties have put that evidence to the Tribunal on the assumption that the Tribunal's decision would be made on the facts of the matter. Therefore the Tribunal will proceed to make findings on the basis of that evidence should that save the parties from having to present that evidence again at some further time.
The Tribunal notes that it may have been open to the Respondent, after the Tribunal's decision is handed down, to make another decision pursuant to s31(6) of the Act, to the effect that the Applicant's psychiatric conditions are to be assessed as nil. As such a decision, if it were to be made, would be reviewable, and as the Tribunal has evidence before it that would go to such a review, we considered in the circumstances that it was appropriate to proceed to consider that evidence in case the Tribunal's findings are of assistance to the parties in clarifying the issue.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975, for applications numbered N1997/1527 (including supplementary documents numbering 67 pages), and N1999/1658. The following documents were tendered as evidence on behalf of the Applicant:

Statement of the Applicant, unsigned and undated (exhibit A)
Statement of John Richardson dated 11 July 1999 and letter from John Richardson to Mr Brian Day (the Applicant's advocate) dated 11 July 1999 (exhibit B)
Letter from John Richardson to Mr Brian Day dated 3 July 1999 (exhibit C)
Statement of Dennis Wynne dated 26 November 1997 (exhibit D)
Statement of Gary Everitt dated 22 November 1997 (unsigned) (exhibit E)
Statement of Maurice Roberts dated 23 November 1997 (unsigned) (exhibit F)
Statement of Maria Goodwin undated and unsigned (exhibit G)
Report of Dr P Gianoutsos, thoracic physician, dated 17 September 1998 (exhibit H)
Report of Dr M Baz, occupational physician, dated 21 September 1998 (exhibit J)
Reports of Ms Sharon Daniels, clinical psychologist, dated 7 July 1999 and 13 January 2000 (exhibit K)
Reports of Dr U Stephenson, psychiatrist, dated 20 March 1998, 14 July 1999 and 12 January 2000 (exhibit L)
Report of Dr J Schneider, occupational physician, dated 22 December 1999 (exhibit M)
Letter of instruction from Mr J Marsh, Department of Veterans' Affairs, to Dr G Simpson, dated 13 March 2000 (exhibit N)
Letter of instruction from Mr J Marsh, Department of Veterans' Affairs, to Dr W Richards, dated 6 March 2000 (exhibit O)
Photograph of Applicant with machine gun on Clive Steele (exhibit P)
Colour map from Internet with markings (exhibit Q)
Statement of Dr Brian Day dated 2 May 2000, with attachments (exhibit R)
Part of document entitled "Body Count" (page 2 missing) (exhibit S)
Publication entitled "Green Berets at War" by Shelby L. Stanton (exhibit T)
Extract from publication entitled "The Vietnam War" on "The TET Offensive, 1968" (exhibit U)
Extract from "Diggers: The Australian Army, Navy and Air Force in Eleven Wars – From 1860 to 1994", by George Odgers (exhibit V)
Document entitled "ADA Units in Vietnam" (exhibit W)
Letter from Lt Col Bernard O'Sullivan to Mr John Tilbrook dated 31 January 2000 and fax from Mr J Tilbrook, historian, to Lt Col O'Sullivan dated 11 January 2000 (exhibit X)
Letter from Army to Department of Veterans' Affairs dated 14 October 1997, with addendum (exhibit Y)
Letter of instruction from Mr J Marsh, Department of Veterans' Affairs, to Lt. Col J Bullen, historian, dated 20 December 1999 (exhibit Z1)
Letter of instruction from Mr J Marsh, Department of Veterans' Affairs, to Mr B O'Keefe, historian, dated 16 December 1999 (exhibit Z2).

The following documents were tendered as evidence on behalf of the Respondent:

Report from Lt Col J E Bullen, historian, dated 15 March 2000, with attachments (exhibit 1)
Reports from Mr J Tilbrook, historian, with attachments, dated 21 January 2000, (exhibit 2) and 19 February 2000 (exhibit 3)
Report of Mr B G O'Keefe, historian, with attachments, dated 29 February 2000 (exhibit 4)
Report of Dr W Richards, psychiatrist, dated 7 December 1999 (exhibit 5)
Reports of Dr G Simpson, thoracic physician, dated 22 June 1998, 22 November 1999 and 21 March 2000, and letter of instruction from Department of Veterans' Affairs to Dr Simpson dated 22 November 1999 (exhibit 6)
Sketch drawn by Mr Wynne during the course of his oral evidence (exhibit 7)
Internet map showing markings made by Mr O'Sullivan (exhibit 8).

The Applicant was born on 24 September 1946. He was enlisted as a National Serviceman on 1 February 1967 and detached to the 32 Small Ships Squadron on 11 January 1968. He undertook operational service in Vietnam from 29 January 1968 (the date he left Townsville) until 11 March 1968 (the date he arrived in Darwin). He served in Vietnam from 12 February 1968 to 9 March 1968.
depressive disorder, post traumatic stress disorder and psychoactive substance abuse

Two and a half days of oral evidence was taken from eleven witnesses, all dealing with the issue of post traumatic stress disorder, including the Applicant and a number of witnesses called by the Applicant. Ultimately, and somewhat surprisingly, Counsel for the Applicant took the position that –
The fact that the Respondent seeks to re-open entitlement issues does not mean that the applicant has to re-establish his entitlement to particular conditions. It is incumbent on the Respondent to convince the Tribunal as to why particular entitlements should be withdrawn or altered. (Applicant's submissions dated 20 January 2000 (sic) [2001]

This does not take into account that, apart from the legal issue to which the Tribunal has already referred (and noting that the legal issue was not one raised on behalf of the Applicant), the Tribunal was assumed to be involved in a hearing de novo and has to determine whether the Applicant's conditions, the subject of the s31(6) review, were war-caused. The Tribunal assumes, therefore, that the Applicant intends that the Tribunal use hypotheses that it considers to be raised by the evidence before it, in determining in the first instance whether a reasonable hypothesis exists.

The parties agreed, and the Tribunal concurs, that the following Statements of Principles apply in relation to the psychiatric conditions at issue –

Psychoactive Substance Abuse Instrument No.5 of 1994
Post Traumatic Stress Disorder Instrument No.15 of 1994, amended by No.225 of 1995
Depressive Disorder Instrument No.65 of 1996.

The standard of proof to be applied in determining this matter is found in ss120(1) and 120(3) of the Act. This section requires the Tribunal to determine that the Applicant's conditions were war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the Applicant's death was war-caused if, after consideration of the whole of the material, it is of the opinion that the material before it does not raise a reasonable hypothesis connecting his conditions with the circumstances of his service.
The Respondent assumed, and reasonably so, that the hypothesis before the Tribunal can be articulated as follows (Respondent's written submissions dated 23 March 2001) –
… the Applicant's alleged PTSD arose following the alleged massacre of innocent civilians at Qui Nhon. This is advanced in the reports of Ms Daniels and Dr Stephenson. In other words the exposure to this incident constituted "experiencing a stressor" for the purpose of paragraph 1(a) and paragraph (4) of the relevant Statement of Principles.
The Tribunal notes that paragraph 1(a) of Instrument No.15 of 1994 for Post Traumatic Stress Disorder requires –
Experiencing a stressor prior to the clinical onset of post traumatic stress disorder;

Paragraph 4 of the Statement of Principles sets out the definition of "experiencing a stressor" and defines "post-traumatic stress disorder". As the Respondent has conceded that the Statement of Principles has been met it is not necessary at this stage to reproduce the Instrument here.

The Respondent conceded, based on this assumed hypothesis, that the hypothesis has been pointed to, that a relevant Statement of Principles exists and that the hypothesis fits the "template" of that Statement of Principles. This is based on an assumption that the Applicant's asserted facts were true. In effect, therefore, the Respondent conceded that s120(3) of the Act has been met and a reasonable hypothesis has been raised.
The Tribunal is now required to consider whether s120(1) has been met. The Applicant's post traumatic stress disorder will be determined to be war-caused unless the Tribunal is satisfied beyond reasonable doubt that the condition did not arise out of the conditions of his war service in Vietnam. If not so satisfied, the claim must succeed. It is only at this stage that the Tribunal is required to find facts from the material before it, and in so doing there is no question of onus of proof on either party: Repatriation Commission v Deledio (1999) 83 FCR 82.
the evidence
The Applicant
On 11 January 1968 the Applicant was detached for duty as a plant operator with 32 Small Ship Squadron, as a member of the crew of AV 1356 Clive Steele. The Chief Officer's Log Book shows that Clive Steele sailed from Sydney to Vung Tau, thence to Qui Nhon, remaining at that port from 16 February to 20 February 1968, before returning to Vung Tau. Further deployments to Qui Nhon followed later in February and again in early March 1968. Whilst the records confirm that the Applicant left the Clive Steele on 8 March for the return passage to Australia by air, it is not clear whether he was landed at an earlier time. The Applicant's evidence was that he could not remember the ship's movements after the mid February visit to Qui Nhon, nor when he had finally disembarked, but after being landed he was "taken to Back Beach for two or three days" where he said "I was drunk most of the time". He recalled being told by an officer that he was being sent home because he was "a trouble maker and a coward".
Despite the voluminous records available to the Tribunal it remains unclear whether the Applicant was returned to Australia as a part of a normal turnover of personnel from within 30 Terminal Squadron, or for disciplinary reasons. Again, the evidence was not conclusive in respect of any policy for giving personnel short term front line experience in Vietnam. Suffice that the Applicant continued his Army service until his discharge on 31 January 1969, being upgraded in posted trade and pay groupings. His evidence was that when he returned to Australia he "was getting drunk most of the time". He said in cross-examination that he could not remember signing the final medical examination wherein he indicated he had no disabilities, and he said he was "drunk at the time of the examination". He said he rarely drank before the incidents at Qui Nhon, but after those events he drank heavily.
In his written statement (exhibit A) and oral evidence the Applicant said he had never been to sea before going to Vietnam and he described the passage of Clive Steele as "absolutely horrific". He said that on one occasion, whilst the ship was in a "force 7 gale off Labuan", he was sent to the well deck during the rough weather to resecure a tank. He was concerned that the flat bottomed landing ship medium would capsize. He recounted an occasion some days later when he believed a collision with a freighter was narrowly avoided.
Dennis Wynne
The Tribunal also heard evidence from Dennis Wynne and received his written statement (exhibit D). He travelled on the same journey on the Clive Steele as a signalman. He confirmed a period of bad weather and the relatively poor sea keeping qualities of the vessel. In referring to the ship's log for 2 February 1968 he noted engine movements which he ascribed to manoeuvring to avoid the collision to which the Applicant referred. There was some inconsistency between his memory and the times referred to in the log, apparently due to the difference between local and Greenwich times. The Tribunal notes that engine movements were recorded at various times on that and other days, and in the absence of any reference in the log to a "near collision", the Tribunal is unable to reach any conclusion as to the seriousness of the incident.

Incident involving the Clive Steele at Qui Nhon, 16 – 20 February 1968

The city of Qui Nhon came under attack during the TET offensive on 30 January 1968. Contemporaneous accounts indicate that the city was returning to normal by 3 February, but in a letter written by Dr P H E Smith, leader of a medical team at a hospital in Qui Nhon, snipers were evident in the town well into the month of February, and the Viet Cong were still very active inland of the town (exhibit 4). In cross-examination the Applicant said he made only one trip to Qui Nhon, and from the evidence in respect of activities that occurred on that occasion, this was from 16 to 20 February. In his oral evidence the Applicant described the position of the Clive Steele at Qui Nhon, viz.
The boat was positioned on the beach in the middle of the harbour – directly onto the beach I'm not sure whether it was still floating or it was on hard stand at that stage, but it was in the middle of the bay on the sand. We were anchored – well we were not anchored, we were up on the hard stand".

In cross-examination the Applicant said –

[the ship was berthed] straight onto the beach, that whole cove is just a full beach runs the whole way around and you just come in and onto the beach. You actually have an anchor out the back, about 300 metres, so you can pull yourself off …
In his written statement (exhibit A) the Applicant said he did not know how long the ship was at Qui Nhon, "but one day we were told we were to have Harassment and Interdiction (H & I) fire". The ship commenced firing after dark, and he was stationed on the 40 mm bofors gun in the forward part of the ship. He recalled firing for hours. In cross-examination he said that he knew the ship was firing across the bay. He did not know the coordinates of the target, but he understood the target to be a hill and he could see the tracer fire; after a few rounds he believed the gun was not on target, and accordingly he informed the corporal. He said he was given instructions to keep firing. He said - I was involved in a heated argument with the gun corporal … I said, there is something wrong, we are not firing, we are firing at the wrong place or something because I could see the explosions were too close to it. … it had to be close to a town you know. I could see it and I was told to mind my own business and do as I was told.

Some time later 'check-fire was called' and the ship repositioned in order to bring the gun to bear on a target.

The Applicant referred to a Korean LSM across the bay, subsequently referring to this area as the Korean naval base. He believed the firing from Clive Steel was landing near this base. He also recalled that an American twin 40mm Mobile gun was also firing at what he presumed was the same target. In cross-examination he confirmed that his belief, at the time, was that his ship was not firing at a village. He said he has since come to believe that leading up to the 'check fire', his ship was firing at a village. The Applicant considered that his treating psychiatrist, Dr Stephenson, had subsequently misconstrued his recollections when she wrote as follows (exhibit L) –
His ship was sent to shell a township supposedly held by Vietcong troops; he realised almost right away that they had the wrong coordinates and were aiming at the wrong target, at what he describes as an innocent village where families of friendly South Vietnamese servicemen were housed …. His protests were ignored, and the village was fired on for about 45 minutes …
The firing was completed in the early hours of the morning. The Applicant said he then left the ship and walked to the Korean naval base at the end of the beach. He followed a road around and behind the base, where he encountered what he first described as a Vietnamese compound, but subsequently he agreed in cross-examination that it could be described as a hamlet or village. He looked through the wire gates and said he saw –
… bodies lying on the road. Women and children screaming.

The Applicant also said that after a few minutes he returned to his ship. He then had a confrontation with the Captain He said –

… I told him what I thought we had done that night and then I was told to shut my mouth otherwise disciplinary action would be taken against me as nothing happened in Qui Nhon that night.

Later in his evidence the Applicant said in fact he had not had a chance to tell the Captain what he had seen as he was ordered off the bridge.

Mr Wynne also gave evidence on this issue. In his statement (exhibit D) he recalled the firing starting at 2030 or 2100 and that no other gun was firing. He said the US forces provided re-supply of ammunition, and at one stage Clive Steel was swung on to another target. Mr Wynne said he was involved in passing directions from the Forward Observers to the gunnery officer, Mr O'Sullivan, and the gun captain. He said this group was standing in the port side rear of the bofors. He said that he did not hear any heated argument between members of the gun crew, although an argument could have occurred without his knowledge when he was talking with the Forward Observers. He affirmed that the 'check fire' and subsequent movement of the stern of the ship was to give a better angle of fire and perhaps an alternate target. He said that by their voices and calls for fire adjustment, he believed the two Forward Observers were at times "walking the fall of shot towards each other's positions".
Mr Wynne was referred to the entry in the ship's log for 17 February that states "firing practice commences". He said he thought the firing was more of an operational nature than a practice for the gun crew. His recollection was that the ship was on the hard, berthed at right angles to the beach, and firing over the stern. He did not recall the ship taking any particular precautions against Viet Cong or North Vietnam attack whilst at this berth. He also said he was unaware of the reason the Applicant returned to Australia.
The records indicate that the Applicant returned to Australia by RAAF aircraft in the company of Sapper Wilkinson from the Clive Steele, via Butterworth to Darwin, arriving on 11 March 1968. The aircraft carried some 20 to 30 coffins, that the Applicant said he found distressing.
Mr Tilbrook - Historian
Mr Tilbrook, an historian, provided a report (exhibit 2) and gave oral evidence. He had located and spoken with three persons who had also served on Clive Steele, namely Warrant Officer Fitzgerald (2nd Mate), Warrant Officer Madgwick (Sergeant sotreman) and Corporal Harris (gun captain) in relation to the Applicant's allegations. He reported that Mr Fitzgerald was unable to substantiate the allegations, Mr Madgwick refuted the "three contentions" and Mr Harris could not support them "as currently described". This sort of evidence has considerable limitations, however, as the Tribunal has no understanding of the information provided to these three persons or to the precise terms of their reply.
Mr Madgwick subsequently gave oral evidence to the Tribunal. He said that the Clive Steele was a small ship and he would certainly have been aware if there had been the death of a number of innocent civilians caused by the firing of its gun. He said he went to Qui Nhon on many occasions during the two years he served on the Clive Steele. He was "almost certain" on the occasion at issue, they were tied up to the wharf to unload a cargo of timber. He also said that he left the ship to get away from the noise of the gun going off. He recalled that this was the first time the gun was "fired in anger". He said the gun was firing on a hill. He had little recollection of the layout on the shore. He said that when he went ashore he visited a US establishment, and suggested that the gun fire from the Clive Steele was across the top of the US establishment. Moreover, he did not think that was unusual.
Lt. Colonel O'Sullivan was also contacted by Mr Tilbrook. Colonel O'Sullivan was the Gun Communications Officer on 16 February 1968. He was provided with the allegations of the Applicant in writing, by Mr Tilbrook. He wrote to Mr Tilbrook on 31 January 2000 (exhibit X) providing photographs of the hillside used as the target area in a practice shoot in Qui Nhon harbour on 17 February 1968. In his oral evidence he said he recalled the evening in question. He said they were providing some harassing fire for the US Navy who were directing the fire. They were in contact by VHF radio. He said there was no occasion when check-fire was called and their position changed. Colonel O'Sullivan marked the location of a village and various other landmarks relevant to the Applicant's allegations (exhibit 8). He said that none of the firing was at Vietcong and there was no battle as such. He said that the strategic reason for selecting the target was a suggestion that the area may be used by the enemy to gain access to the US Navy boat base that operated its patrol boats from a little bay there. He said that during the operation he was on the deck, and in the turret itself for a while. He said that "hundreds of rounds" of ammunition were expended during that night. He then agreed it would not be unreasonable to say it was more than 195 rounds. He said that they had to 'check fire' while the barrels cooled. He said he had no personal recollection of the Applicant.
Colonel O'Sullivan said he was not aware that there was a " H & I" purpose for the shoot, but he added -
I never knew precisely what the Americans motives or intents were. We put it up as a practice. They enthusiastically embraced the opportunity to have a few rounds thrown around this hillside and even provided us with the ammunition and the spare barrel …There was some sort of rumour that they wanted to, some sort of harassing fire or addiction to deny this ground to the enemy but I don't know.
Colonel O'Sullivan said he was not aware that any civilians had been injured in the operation and would have been surprised were that reported to him. He said that after the TET offensive Qui Nhon was infiltrated by some Viet Cong sappers for about a week and they did quite a lot of damage to the infrastructure, but that was over by the time they arrived. He also said that while at Qui Nhon they were granted shore leave, and he agreed it was "entirely possible" that the Applicant left the ship and had gone to an area where he came across a village where something had been going on the night before. He then clarified that when he said the area was "secure" it was secure to the extent that there "was still a great deal of enemy activity and coming and going" that "was largely directed towards infiltrating villages on the outskirts of the cities". The response to that was to call in fire. He also said that although there was no Korean Naval establishment on shore, the Koreans had ground forces and they took no prisoners. It was possible that they had an establishment within a short distance of their ship.
consideration of evidence and findings of fact
Colonel O'Sullivan said that he was aware that two soldiers were put off the ship in Vung Tau about late February early March of 1968 because of "personal problems", but he had no further recollection about this apart from recalling –
… there were two soldiers put off the ship for personal reasons, one of them had been doing some very strange things. We came back to the ship one night and he was on quartermaster duty and he was stark naked with his rifle up against the side of the ship and taking a bath in the rain with a cake of soap and this rather unnerved the Captain and he decided he'd get rid of him.
While there is a great deal more evidence before the Tribunal that we have taken into account, the evidence of Colonel O'Sullivan is such that it does not dispel the Applicant's allegations beyond reasonable doubt. Colonel O'Sullivan gave his evidence with confidence and without bias or apparent embellishment. He voiced some concern about recalling specific detail more than 30 years after the event even though the Tribunal finds that his recall appeared to be quite good.
It is reasonable to assume, however, that the recall of the Applicant has suffered a worse fate. He has been a heavy drinker and is taking a cocktail of prescribed psychotropic drugs. He also has a serious psychiatric disability. All these are likely to have taken a toll on his memory and recall. His treating specialists do not doubt that he has experienced a traumatic event while serving in Vietnam that underpins his present psychopathology. The Tribunal finds that his psychiatric condition itself may well now cause him to distort his recollection of some traumatic events, like his visit to Qui Nhon.

There is no doubt from the evidence before the Tribunal that the events described by the Applicant in Vietnam did not occur as he now describes them. There is no evidence that the ship shelled a village or indeed anywhere other than the target as directed, nor did the Applicant believe at the time of the shelling that a village had been hit. However, it remains possible that the practice firing from the Clive Steele in which the Applicant was involved could have been perceived by him later to have caused the devastation that it was possible he witnessed in a village he visited for a very short period the next morning. It also remains possible that he was distressed about what he saw to a point where he became troublesome when he returned to his ship and was sent back to Australia because he was "a troublemaker". On the evidence of Colonel O'Sullivan it is possible that the Applicant was one of the two people he understood to have been returned to Australia for "personal reasons". There is no doubt from his evidence that the behaviour of one of those two persons was quite bizarre.
The Tribunal cannot be satisfied beyond reasonable doubt that the reasonable hypothesis raised in respect of post traumatic stress disorder has been dispelled. Thus the Tribunal finds that his depressive disorder and psychoactive substance abuse arise as a consequence of his post-traumatic stress disorder.
This analysis of the evidence before the Tribunal about his service in Vietnam may assist the Respondent in reconsidering whether it is still worthwhile exercising its power under s31(6). Now that the Tribunal has determined, as can be seen in the next section of these reasons for decision, that Special Rate is payable to the Applicant and given the Tribunal's decision that the Respondent's decision made on 5 February 1999 is ultra vires, the Applicant is on notice that it is still open to the Respondent to properly exercise its power under s31(6) in respect of his Special Rate pension.
It should be made clear, lest there is any doubt, that the Tribunal does not consider its analysis of the evidence and its findings on the substantive issues to be binding on the Respondent at this stage. The analysis was undertaken for two reasons; firstly, because the Tribunal perceived it could assist the Respondent in deciding whether any further action under s31(6) was worthwhile; and secondly, in case the Tribunal's decision in respect of its interpretation that the Respondent's decision was ultra vires is not upheld by any appeal that might be brought in this regard, leaving a need for the matter to be determined on the facts.
special rate
On the basis that the conditions of depressive disorder, post traumatic stress disorder and psychoactive substance abuse have already been accepted as being due to war-service and having found that the primary decisions determining those matters cannot be revoked by the Respondent pursuant to s31 of the Act, and noting the concession made on behalf of the Respondent in respect of the Applicant's entitlement to payment of pension at the Special Rate, the Tribunal now determines that he is entitled to payment of pension at the Special Rate. The Tribunal finds on the evidence before it that the concession made by the Respondent was properly made.
No submissions were made in respect of effective date for the payment of pension at the Special Rate. The Tribunal notes that the Applicant's pension was increased to 70 percent of the General Rate with effect from 8 July 1997, when his condition of gastro-oesophageal reflux was accepted as being war-caused. Therefore, pursuant to s24(1)(a) of the Act, that is the first date from which he met that provision.
That part of the decision of the Respondent dated 27 November 1996 that assessed payment of pension at 50 percent of the General Rate is varied by adding the words "and at the Special (Totally and Permanently Incapacitated) Rate with effect on and from 8 July 1997.
claim for asthma
The parties agree, and the Tribunal concurs, that the relevant Statement of Principles for Asthma is Instrument No.59 of 1996. It is not in contention that the Applicant suffered from asthma or that it developed when he was a child. The Tribunal accepts the submissions for the Respondent that the only relevant factor on which the Applicant can rely in the circumstances is factor 5(b) –
being exposed to antigenic or nonantigenic stimuli within the 24 hours immediately before the clinical worsening of asthma;

The following definitions in paragraph 7 of the Statement of Principles are also relevant –

"antigenic stimuli" means any substance which is capable of inducing a specific immune response and of reacting with the products of that response, that is, with specific antibody or specifically sensitised T-lymphocytes. Antigens may be soluble substances, such as toxins and foreign proteins, or particulate such as bacteria and tissue cells. In the case of asthma this may include:

Airborne – pollens, feather, animal danders, dust mites, moulds and spores; or
Pharmacologic – aspirin and sulfating agents; or
Occupational – wood and vegetable dusts, metal salts (platinum, chrome, nickel), biological enzymes such as laundry detergents; or
Infections – respiratory viruses;
"nonantigenic stimuli" means exposure to cold, emotional stress, exercise, drugs (including beta blockers), respiratory infection or inhaled irritants such as ozone, sulphur dioxide, mustard gas or smoke, including cigarette smoke;
"clinical worsening of asthma" means evidence of:
At least one severe episode eg status asthmaticus; or
Permanent decline in pulmonary or other organ function due to asthma (conceivably hypoxia could lead to cardiovascular or cerebrovascular dysfunction in some cases); or
Mortality from asthma:
which are all evidence of permanent aggravation of the disorder. (The presence of triggers which are suggested to alter temporarily the frequency and need for medication are not alone, evidence of permanent aggravation of the disease. Frequency of symptoms may relate to a range of individual and seasonal factors and medication alterations may be an indication of better surveillance and medical care);

It was conceded for the Respondent that on the evidence the Applicant developed worsening of his asthma some time during or after his service. It was not conceded that he satisfied the definitions in the Statement of Principles.
Dr Gianoutos, thoracic physician, examined the Applicant and reported on 17 September 1998 (exhibit H). He noted the diagnosis of asthma when the Applicant was aged 12 years, and that the condition later came under good control. The Applicant told Dr Gianoutos of the incident in Vietnam on Clive Steele when he was:
… exposed to one thousand rounds of ammunition fired from 44 mm cannons leading to a large amount of cordite fumes being released into the environment causing a flare in his asthma. He alleges since that time he has been plagued by asthma to the present day.

Dr Gianoutos considered that this episode could have caused an aggravation of the Applicant's underlying asthma. It was submitted for the Respondent that if the Tribunal relied on this as evidence of exposure to cordite, the hypothesis would be reasonable. The Respondent was not suggesting, however, that the Tribunal should so rely on that evidence.

Dr Simpson, thoracic physician, examined the Applicant and provided a report dated 22 June 1998 (exhibit 6). He said, inter alia –
He was apparently arrested after he made complaints about an incident in which many Vietnamese civilians were killed and was imprisoned for a short time in Australia. He was released without charges and returned to his unit, but never went back overseas. During this period he experienced a recurrence of breathlessness and wheeze and was diagnosed as having asthma and started on Alupent. At this stage he had only been smoking cigarettes for two or three months. (Tribunal's emphases)

Dr Simpson provided another report dated 22 November 1999 (exhibit 6), in which he reiterated the incident of the Applicant's repatriation to Australia after the incident in Vietnam. He said –

During this period he was smoking more heavily and his respiratory symptoms were increasing.

Dr Simpson provides the best evidence available about the Applicant's smoking.

The Applicant's evidence was that he did not smoke prior to going to Vietnam. He said he had decided never to smoke because of his asthma. However, he said after his Vietnam service he smoked heavily. In his written statement (exhibit A) he said that it was "around this time" (presumably during the visits to Qui Nhon and Vung Tau), that he smoked heavily. He also said in his written statement that whilst at South Head he had "breathing troubles" but although he told some officers about it he was not offered treatment. Two days later he was told to return to Mosman and on the way he consulted a doctor at a medical clinic and was given an Alupent inhaler and told he had asthma.
There is no evidence to suggest that the incident of the Applicant assisting with the Bofor gun firing on 17 February 1968 caused, within 24 hours, the clinical onset of asthma. His evidence is that he had breathing difficulties at South Head, that would have been no earlier than 11 March 1968 when he returned to Australia. Therefore the Tribunal finds that in respect of the cordite exposure, the requirements of the Statement of Principles have not been met.
The Tribunal notes in the Statement of Principles that the "clinical worsening of asthma" requires there to be "at least one severe episode, eg status asthmaticus". His evidence that he had "breathing difficulties" at South Head is not evidence that he had a severe episode. That he was prescribed an Alupent inhaler is not evidence of the Applicant having had a "severe episode". Indeed, there is no evidence that goes to the severity of the condition at that time, but merely to the Applicant having breathing difficulties for which Army officers did not refer him for treatment. The first evidence of a "severe episode" is in the evidence of John Richardson, the Applicant's brother (exhibit C), on a skiing trip for the Applicant's birthday. As his birthday is 24 September, that is many months after he returned to Australia, and by then he had been smoking heavily at least since the end of March.
On the evidence of Maria Goodwin (exhibit G) the Applicant was "smoking constantly" about two weeks after his return from Vietnam. The Tribunal accepts that one does not commence smoking and then smoke constantly over a very short period. This would suggest that he commenced smoking while he was in Vietnam and by the end of March 1968 he was smoking "constantly" and he was also using a bronchodilator.
The fundamental question to ask in order to determine whether the raised facts meet the Statement of Principles is whether the Applicant was exposed to nonantigenic stimuli, that is, cigarette smoke, within the 24 hours immediately before the clinical worsening of asthma. The first incidence of the clinical worsening of asthma is when the Applicant was skiing with his brother, probably about September 1968. He was by then a heavy smoker, and therefore it could be said that he had been subjected to the inhalation of cigarette smoke within 24 hours immediately before the clinical worsening of asthma. The fact that he had been smoking, probably since February 1968, and having breathing difficulties at least since mid March 1968, does not detract from the fact that at the time of the "clinical worsening" of his asthma, as defined in the statement of Principles, he had been subjected to tobacco smoke as a result of his war-caused smoking habit.
In considering the factor of aggravation in factor 5(b) of the Statement of Principles, it must be considered within the provisions of s9(1)(e)(ii) of the Act, which state –
(e)       the injury suffered, or disease contracted, by the veteran:
(i)        …..
(ii)       was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service:
and in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.

Thus the aggravation occurred, some six months after the completion of the Applicant's eligible service, and therefore he does not meet the requirements of the Act. On this basis it cannot be held that his condition of asthma was war-caused, within any of the provisions of s9 of the Act. Hence, the decision under review in respect of asthma is affirmed.

I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed:         .....................................................................................
  Associate
Date/s of Hearing  10,11 & 12 May 2000
Date of Decision  22 June 2001
Counsel for the Applicant        Mr N Dawson
Solicitor for the Applicant         R L Whyburn & Associates
Counsel for the Respondent    Mr I Butcher
Solicitor for the Respondent    Australian Government Solicitor