"SAN" and Comcare
[2004] AATA 445
•6 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 445
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2001/378
GENERAL ADMINISTRATIVE DIVISION ) Re “SAN” Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President D G Jarvis and Dr E T Eriksen, Member Date6 May 2004
PlaceAdelaide
Decision The Tribunal sets aside the decision under review, and in substitution therefor decides that the applicant is not entitled to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 in respect of the conditions of paranoid psychosis and post traumatic stress disorder. D G Jarvis
(Signed)
Deputy President
CATCHWORDS
COMPENSATION – paranoid psychosis – post traumatic stress disorder – conditions not employment related – army service – notice of injury – respondent not prejudiced by delay in notice of injury – claim for compensation – respondent not prejudiced by delay in serving claim for compensation – determination of applicable legislation – decision under review varied
Safety, Rehabilitation and Compensation Act 1988 s 53
Compensation (Commonwealth Government Employees’) Act 1971
Compensation (Commonwealth Government Employees’) Regulations 1971 (Cth)
Australian Postal Corporation v Burch (1998) 26 AAR 312
Buttfield and Comcare (2001) 64 ALD 281
Comcare v Luck (1999) 29 AAR 403
Re Deveson and Comcare (1999) 53 ALD 794; (1999) AATA 80
Comcare v Mooi (1996) 69 FCR 439
Thompson v Goold & Co [1910] AC 409
Re Welsford and Commonwealth Banking Corporation (1984) 5 ALN N570; 1 AAR 42
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Suters v Australian Postal Corporation (1992) 28 ALD 320
Wiegand v Comcare (2002) 72 ALD 795
Federal Commissioner of Taxation v Grbich and Shen (1993) 31 ALD 97REASONS FOR DECISION
6 May 2004 Deputy President D G Jarvis and Dr E T Eriksen, Member Introduction
1. The applicant enlisted in the Australian Army on 14 October 1980 and was discharged from the Army on 14 July 1982. On 28 August 2001, the applicant made a claim against the respondent for rehabilitation and compensation for “psychotic paranoid reaction” resulting in a “mental condition” attributed to “emotional and physical harassment by the other defence force members at Adelaide, Kapooka and Bandiana” during his service with the Australian Army (T4, page 42). He subsequently asserted that the “correct diagnosis” should have been “post-traumatic disorder with features of paranoid pscizonphrenia (sic)” (T6).
2. In a reviewable decision dated 28 September 2001, a delegate of the respondent rejected the applicant’s claim. He referred to a previous claim for compensation in respect of “acute depression” which the applicant had lodged on 4 September 1984 due to asserted severe racial discrimination during his employment by the Army. The delegate went on to say that an earlier decision of this Tribunal had affirmed an earlier decision by a delegate of the respondent that the applicant was entitled to compensation in relation to his psychiatric condition only up to and including 11 April 1985. He said that he had reviewed the 1988 Tribunal decision and noted that it dealt with “the same issues” that appeared to be the subject of his present claim, namely a claimed psychiatric condition arising out of his military service; he was therefore satisfied that the circumstances of the current claim had already been fully investigated, and the applicant had not provided any new evidence that would require a departure from the findings of fact made in relation to the previous claim. The delegate therefore considered that “the findings of the Tribunal remain persuasive in relation to your claim for a psychiatric condition, however described, arising out of your military service between 1980 and 1982”. (T1, page 8).
3. By letter dated 9 October 2001 the applicant applied for review of the decision of the delegate dated 28 September 2001. In his application for review, the applicant claimed that he had “continued to suffer other psychiatric conditions like chronic depression, post-traumatic stress disorder and paranoid pschizonphrenia (sic) beyond 11 April 1985 in which my army employment was a contributing factor”. (T1).
4. The respondent claimed that the applicant was not entitled to bring the present claim before the Tribunal, as this would require the Tribunal to revisit issues which were the subject of the determination of the Tribunal in 1988.
5. At a directions hearing on 2 July 2003, Deputy Presidents Forgie and Jarvis decided that this Tribunal had jurisdiction to hear the application for review of the respondent’s decision to refuse the applicant’s claim for compensation in relation to the conditions of psychotic paranoid reaction and post traumatic stress disorder (“PTSD”) on the basis that the 1988 Tribunal decision did not determine the applicant’s entitlement to compensation for those two conditions. The Tribunal further directed that the application for review was to be limited to the conditions of psychotic paranoid reaction and PTSD. The hearing before us proceeded in accordance with this direction. We note also by way of introduction that it was apparent from the evidence of the two psychiatrists who gave oral evidence at the hearing that the reference to “paranoid psychotic reaction” described or embraced a condition identified as paranoid psychosis.
6. We have carefully considered all of the evidence before us, as well as the parties’ submissions, and have concluded, for the reasons set out in detail below, that the applicant is not entitled to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (the “1988 Act”) in respect of the further conditions he asserted at the hearing, namely paranoid psychosis and PTSD.
7. The applicant represented himself at the hearing. Mr S Millazzo of counsel, on instructions from the Australian Government Solicitor (the “AGS”), represented Comcare.
8. The applicant, his treating psychiatrist, Dr Carmine DePasquale and Keith Mayers-Brown gave evidence in support of the applicant’s claim. The respondent called a consultant psychiatrist, Dr A Davis, and Michael James O’Neill, Paul Desmond Garrett and Benjamin William Charles Renfrey to give evidence in person, and John Bruno, Peter Sarusi-Kiss, Peter Baxter and Judge Peter Herriman gave evidence for the respondent by telephone. The witnesses O’Neill, Bruno, Sarusi-Kiss and Baxter were all employed by the Army at the time of certain events asserted by the applicant, to which the Tribunal will refer in detail later in these reasons. The Tribunal received into evidence the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, together with 45 exhibits tendered by the applicant and a further 30 exhibits tendered by the respondent.
Issues Arising
9. The principal issues before the Tribunal were:
(a)whether the applicant’s entitlement (if any) to compensation arises from the Compensation (Commonwealth Government Employees’) Act 1971 (the “1971 Act”) or the 1988 Act;
(b)did the applicant give notice of the injury as required by s 53 of the 1971 Act (if applicable) or s 53 of the 1988 Act (if applicable);
(c)did the applicant claim compensation within the prescribed period as required by the 1971 Act (if applicable);
(d) is the applicant suffering from paranoid psychosis;
(e) is the applicant suffering from post traumatic stress disorder; and
(f)if the applicant is suffering from either or both of those conditions, whether the applicant’s employment by the Army contributed in a material degree to the development of either or both of those conditions.
10. In order to put the above issues in context, it is necessary to refer again to the decision made by this Tribunal in 1988 (T3), and also to a claim made by the applicant in 1998 for compensation for sexual abuse in the Army.
The 1988 AAT Decision
11. On 4 September 1984 the applicant claimed compensation for a psychiatric condition (personality disorder and/or an adjustment disorder or reactive depression) as a result of his employment in the Australian Army. He alleged that during his employment by the Army, he was subjected to physical, emotional and sexual harassment because of his race, creed and colour, and that as a result he was incapacitated for work. On 9 October 1985, a delegate of the Commissioner for Employees’ Compensation determined that the applicant suffered from a disease, namely adjustment disorder, to which his employment was a contributing factor and that the Department of Defence was liable to pay compensation up to and including 11 April 1985. In a second determination made on the same date, the delegate determined that he was unable to find that any loss of capacity of the applicant to engage in sexual intercourse was due to employment with the Department of Defence.
12. The applicant applied for review of those determinations, and in a decision dated 22 April 1998, the Administrative Appeals Tribunal decided that it was not satisfied that since April 1985 the applicant had been incapacitated for work as a result of the contraction and/or aggravation of an injury arising out of or in the course of his employment with the Army, or that he had been totally or permanently incapacitated from engaging in normal sexual relations. The Tribunal accordingly affirmed the determinations of the Commissioner.
13. In the course of its determination, the Tribunal found that the applicant’s employment with the Army was a contributing factor to the aggravation of an adjustment disorder or reactive depression, but that since April 1985 any continuance of symptoms of that disorder were probably the result of other life stress factors then operating and not those relating to the applicant’s period of army service. The Tribunal further found that even if the aggravation of his adjustment disorder as the result of army service continued after April 1985, he had not been incapacitated for work as a result of that aggravation.
The 1998 Claim for Sexual Abuse
14. On 7 January 1998 the applicant made a claim for “repressed memory of sexual abuse and assault, sleep problems, anxiety and depressions”. (ST112, page 246).
15. On 15 October 1998 a delegate of the respondent issued a determination that the Department of Defence was not liable to pay compensation in respect of the injury or illness claimed (ST135). This decision was reconsidered at the request of the applicant, and on 12 April 1999 the decision was affirmed (ST141). The applicant did not apply to this Tribunal for review of that decision.
Course of the Present Proceedings in the Tribunal
16. The events which form the basis of the applicant’s claim happened more than 20 years ago. Notwithstanding this, and notwithstanding the pre-hearing procedures of the Tribunal in this matter, two significant events occurred late in the piece which affected the course of the hearing before the Tribunal. On the applicant’s side, within a few weeks of the commencement of the hearing before us, the applicant made a statement to one Karen Brumpton of the Sexual Assault Unit of the South Australian Police Department. A copy of this statement was admitted in the proceedings before us as exhibit A6. The statement contains very specific details of the sexual assaults alleged by the applicant, and includes the names of the alleged perpetrators of those assaults and of witnesses to the assaults. On the respondent’s side, part way through the hearing the respondent produced a copy of a report prepared by the military police in 1985 following a complaint made by the applicant as to his treatment in the Australian Army. This report was provided to the Tribunal, and presumably also the applicant, only two working days before the hearing was due to resume after the first four days of the hearing, nearly two months earlier.
Statement to Sexual Assault Unit (Exhibit A6)
17. It appears that the respondent had originally proposed to call only one of the alleged perpetrators of the assaults on the applicant, namely the witness O’Neill. In addition, the respondent tendered the death certificate of another of the alleged perpetrators, one Coppleman, who died on 6 June 1984 (exhibit R2). The respondent also called Paul Desmond Garrett, a licensed investigator, who gave evidence that on 29 July 2003 he was requested by the respondent’s solicitor to locate or attempt to locate and interview a number of members and ex-members of the Australian Army. However, the list of persons concerned was prepared before the respondent was aware of the identity of the persons referred to in the applicant’s statement to the Sexual Assault Unit (exhibit A6), and this statement did not implicate most of the persons whom Mr Garrett had been asked to locate. The statement to the Sexual Assault Unit was made on 29 July 2003, and was provided to the respondent and the Tribunal on 11 August 2003.
18. At the conclusion of the first four days of the hearing on 4 September 2003, the Tribunal requested that the respondent should endeavour to call as witnesses in the present proceedings the persons identified in exhibit A6. These persons were Messrs Kiss, Schmidt, Baxter, Devereaux, Bruno, Bullivant and Lance Corporal Power. When the hearing resumed on 14 January 2004, the Tribunal also requested that the person referred to in exhibit A6 as Lance Corporal Brown should also be called as a witness. By then the respondent had traced Messrs Kiss, Baxter and Bruno, and they had previously given evidence. Mr Schmidt was located, but neither party wished to call him. The respondent was unable to locate Messrs Devereaux, Bullivant, Power and Brown, in spite of their attempts to do so. The applicant also maintained that the Army would still have records of the communications relevant to his claims of abuse, but these records were not located. Exhibits R19 and R23 to R30 evidence the respondent’s attempts to locate the further persons and additional records concerned. Whilst the applicant remained critical of the respondent’s efforts in this regard, the Tribunal can understand the difficulties of locating witnesses and records of events which occurred so many years ago. Having regard to the information in exhibits R19 and R23 to R30 and to the evidence referred to later in these reasons regarding the applicant’s failure to complain about the alleged sexual assaults until many years after the events, we draw no adverse inference against the respondent for failing to produce the witnesses or records in question.
The Military Police Report (Exhibit A26)
19. We now refer to the events which led to the production of the military police report. It appears from exhibit A33, being a letter dated 10 March 2003 from the AGS to the applicant, that at a directions hearing on 3 March 2003 the applicant had advised the AGS that there were further documents which were being held at the Keswick Army Barracks in Adelaide, and also Ministerial correspondence regarding a military police investigation. In that letter the AGS advised the applicant that the AGS was instructed that all files held by the respondent were provided to him under cover of a letter of 28 October 2002 from the AGS, and that the Department of Defence did not hold any further files.
20. On the third day of the hearing, after the applicant had drawn our attention to the matter, the Tribunal asked the respondent to follow up the information in a letter of 23 July 2003 from the AGS to the applicant to the effect that inquiries would be made of the military police about the military police report which the applicant had requested at a directions hearing (transcript 3.09.03, at page 61.2).
21. On the Thursday before the hearing of this matter was due to resume, namely Thursday, 20 November 2003, a copy of a lengthy report of the military police investigation was lodged with this Tribunal, and it is understood that a further copy of this report was provided to the applicant at about the same time. A copy of the report was subsequently tendered and is exhibit A26. It appears that one Major A G Mercer was the investigator responsible for preparing the report. His final report dated 22 April 1986 records that no further action was required (exhibit A26, page 2). However, the report refers in considerable detail to the applicant’s then complaints of mistreatment whilst he was in the Army, and was potentially highly relevant to the applicant’s claim in the present matter.
22. We point out that this Tribunal can only arrive at the correct and preferable decision in matters which come before it if all relevant material is placed before the Tribunal by the parties. Usually the relevant documents are in the possession of respondents to proceedings in the Tribunal, or sometimes other government departments, and applicants frequently do not have copies of the documents and may not even be aware of their existence. It is essential that respondents make all necessary inquiries to obtain and lodge all relevant documents with the Tribunal, and also make timely disclosure of such documents to the applicant or the applicant’s lawyers. The Tribunal should be able to rely upon the cooperation and assistance of respondents, particularly where applicants are unrepresented. We confirm the concern we expressed during the hearing that the report of the military police investigation was not obtained or provided to the Tribunal or the applicant until after the matter was part heard, and almost two months after the date fixed for the hearing, despite its relevance and the applicant’s repeated requests for it to be produced.
Further Evidence and Material provided to Tribunal after Parties’ Addresses
23. On the morning of the seventh day of the hearing, namely 26 November 2003, it seemed likely (as in fact transpired) that the respondent would not be able to locate the remaining witnesses, although counsel assured the Tribunal that efforts would continue to be made to do so. The Tribunal also requested the respondent to follow up its inquiries to locate any file relating to complaints made by the applicant to regimental police whilst he was at the Kapooka and Woodside army camps, and also to locate a file relating to an investigation made by one Sergeant Schwartz when the applicant was stationed at Darwin. The Tribunal further intimated that it would permit the applicant to issue a summons to the Australian Federal Police to produce their files, since the applicant had indicated that the Australian Federal Police file would include a copy of information obtained by the Queensland Police who he said had interviewed the witness O’Neill and obtained a statement in which (the applicant said) certain admissions had been made. The parties then proceeded with their final addresses on the material already before the Tribunal on the basis that if the further inquiries revealed anything further then the Tribunal would give both parties an opportunity to make further submissions based on that new material. Both parties expressed a preference to adopt this course, rather than the alternative of adjourning the hearing until the outcome of further inquiries was known, and then proceeding with final addresses after that. Further resumed hearings took place on 14 and 30 January and 13 and 27 February 2004 to address issues arising from the specific matters which remained outstanding on 26 November 2003.
24. Following the conclusion of the parties’ addresses on 26 November 2003, we indicated that there were four specific issues not dealt with adequately by the parties (being matters arising out of the material already before the Tribunal) which we would like the parties to address in supplementary written submissions. The applicant subsequently sent further extensive written submissions to the Tribunal, which went substantially beyond the four specific issues which the Tribunal had requested the parties to address. We have identified all of the further submissions by having the applicant’s submissions marked for identification “MFI A1” to “MFI A11”, and the respondent’s submissions marked for identification “MFI R1” and “MFI R2”. We observe that the applicant’s submissions included references to approximately 60 earlier decisions of various courts or this Tribunal. We have taken the applicant’s further submissions into account notwithstanding that they deal with additional issues on which further submissions had not been sought. We will refer later in these reasons to certain of these further submissions, and to applications made by the applicant after the parties completed their addresses on 26 November 2003. However, we consider that many of the submissions refer to irrelevant matters or to judgments or decisions which are not relevant to the issues in the present matter.
Legislation
25. Section 14(1) of the 1988 Act provides as follows:
“14(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
26. The words “injury” and “impairment” used in s 14(1) are relevantly defined in s 4(1) of the 1988 Act as follows:
“injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment; …”
“impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.”
27. The words “disease” and “aggravation” (which are referred to in the definition of “injury”) are defined in s 4(1) of the 1988 Act as follows:
“disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”
“aggravation” includes acceleration or recurrence.”
28. The word “ailment”, which is referred to in the definition of “disease” is defined as follows:
“ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
29. Section 53(1) of the 1988 Act provides, in effect, that the Act does not apply in relation to an injury unless notice of the injury is given to the relevant authority as soon as practicable after the employee becomes aware of the injury. Under s 53(3), if notice is not given as soon as practicable and the relevant authority “would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from … ignorance, from a mistake or from any other reasonable cause” the notice is taken to have been given under the section.
30. The commencing day of the 1988 Act was 1 December 1988. Part X of this Act contains transitional provisions. Under s 124(1), the 1988 Act applies in relation to an injury, loss, or damage suffered by an employee whether before or after the commencing day. Subject to Part X, a person is entitled to compensation under the 1988 Act in respect of an injury, loss, or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under (relevantly) the 1971 Act (s 124(1A)). Section 123A provides that a reference in Part X of the 1988 Act to an injury suffered before the commencing day is a reference to an injury within the meaning of (relevantly) the 1971 Act. Section 7(4) of the 1988 Act makes provision for the date when an employee is taken to have sustained a disease, or an aggravation of a disease, and is in the following terms.
“7(4)For the purpose of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a)the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.”
31. Section 124(2) provides, in effect, that a person is not entitled to compensation under the 1988 Act if compensation was not payable to that person pursuant to (relevantly) the 1971 Act. Under s 124(10)(c) where a claim for compensation by a person under the 1971 Act, in respect of an injury suffered after the commencement of the 1971 Act but before 1 July 1986 (being the commencement date of amendments to the 1971 Act) was not admissible because of s 54 of the 1971 Act, as that section was in force before 1 July 1986, the person is not entitled to compensation under the 1988 Act in respect of that injury.
32. We now refer to the relevant provisions of the 1971 Act. Section 29 of the 1971 Act provides, in effect, that where an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease, and any employment by the Commonwealth was a contributing factor to the contraction of the disease or the aggravation, acceleration or recurrence of it, and total or partial incapacity for work results, then the contraction, aggravation, acceleration or recurrence is deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth. The definition of “disease” in the 1971 Act is in the same terms as the definition of “ailment” in the 1988 Act, but is an inclusive rather than exhaustive definition.
33. Section 53(2) of the 1971 Act provides, in effect, that the Act does not apply in relation to a disease contracted, or an aggravation, acceleration or recurrence of a disease suffered, by an employee unless notice in writing of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease, as the case may be, was served on the Commonwealth as soon as practicable after the employee became aware of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or the recurrence of the disease. Regulation 15(2) of the Compensation (Commonwealth Government Employees’) Regulations sets out the requirements of the notice, namely that the notice must state the name and address of the employee, where and when the symptoms of the relevant disease, aggravation, acceleration or recurrence first became apparent, the circumstances in which the symptoms became apparent and whether any persons, other than the employee, were present at the time when those symptoms became apparent and, if known to the employee, the names and addresses of those other persons. We note that if the employee sustains an injury, the requirements under the Regulations include a requirement to give notice of the circumstances in which the injury occurred and whether any persons other than the employee were present when the injury occurred and, if known, the names and addresses of those persons. However, these specific requirements (which would have necessitated the applicant giving particulars of the sexual assaults alleged in his present claim for compensation) did not apply where the notice was for a disease rather than an injury. Under s 53(4) of the 1971 Act the notice is deemed to have been served in accordance with s 53(2) notwithstanding that the employee has failed to give notice as required by s 53(2) where the Commonwealth would not “by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from … ignorance, from a mistake or from any other reasonable cause.”
34. Section 54(1) of the 1971 Act provides, in effect, that compensation is not payable unless a claim for compensation is served on the Commissioner for Employees’ Compensation within the “prescribed period”. Under s 54(2)(b), in the case of a claim in relation to a disease, or an aggravation, acceleration or recurrence of a disease, the prescribed period is six months commencing on the day on which the claimant becomes aware of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease, or the recurrence of the disease. However, under s 54(6) if a claim has been served on the Commissioner, but the claimant has failed to make the claim within the prescribed period and the Commonwealth would not “by reason of the failure be prejudiced if the claim were treated as a sufficient claim or the failure resulted … from ignorance, from a mistake, or from any other reasonable cause” the claim is deemed to have been served in accordance with the requirements of s 54(1).
Determination of Applicable Legislation
35. We consider that each of the psychiatric conditions asserted by the applicant in the present proceedings is a “disease” for the purpose of both the 1971 Act and 1988 Act, in that each condition is a mental ailment, disorder or morbid condition, whether of sudden onset or gradual development. We refer in this regard to the helpful discussion by Northrop J of the concepts of “disease” and “injury” and the use of those expressions in the 1971 and 1998 Acts in Australian Postal Corporation v Burch (1998) 26 AAR 312. (An appeal against Northrop J’s decision was dismissed : Australian Postal Corporation v Burch (1998) 85 FCR 264).
36. In response to our request during his final address to clarify which Act is said by the respondent to apply to the applicant’s claim, counsel for the respondent submitted that the 1971 Act applies, because the applicant first sought medical treatment for the “psychotic episodes” in 1984 and 1986, and first alleged that he was suffering from PTSD in 1988. We note that the concept of seeking medical treatment for the purposes of s 7(4) of the 1988 Act was explained in a helpful decision of Senior Member Sasella in Re Buttfield and Comcare (2001)] 64 ALD 281, in which he also reviews a number of earlier decisions relevant to this concept.
37. As regards the “psychotic episodes”, counsel relied on a report dated 21 March 1985 from Dr C H Cantor, a senior psychiatry registrar of the Royal Brisbane Hospital, to the Department of Defence (ST33). This report records that the applicant was an in-patient at that hospital from 17.9.84 to 2.10.84, and that at the time of admission he talked of “spying and various other topics which were suggestive of delusional and/or hallucinatory experiences”. The report went on to say that subsequent exploration of these made a psychosis “seem unlikely” and that he was “deemed to have personality problems of an inadequate type and was treated by individual and milieu psychotherapy.” The reporting doctor therefore concluded that the applicant was not suffering from paranoid psychosis, and we are not therefore satisfied that he first sought medical treatment for any such disease at that time. Counsel’s reference to seeking treatment for “psychotic episodes” in 1986 is based on exhibit R15, but this exhibit does not support his submission. Exhibit R15 is a further claim made by the applicant in 1986 against the Army for “bi-polar affective disorders”, where the applicant in describing the asserted injury refers to “conduct of prejudice by service members along with violence. A normal pattern of mood started with association leading to various bouts of psychosis.” This assertion in the claim form is not evidence that the applicant was then suffering from paranoid psychosis, or that he sought treatment for it. We will refer in more detail later in these reasons to the relevant medical evidence, but at this stage we point out that the applicant’s treating psychiatrist, Dr DePasquale, did not diagnose the condition of paranoid psychosis until he commenced treating the applicant in 1998, and (subject to the provisional reference to psychosis referred to above, and subject to one other reference to which we will refer below) Dr Davis noted that the condition of paranoid psychosis had not been diagnosed prior to 1998. We will analyse the medical evidence in detail later in these reasons, but for now we record that we find that the condition of paranoid psychosis was not diagnosed until 1998, that it did not exist until at or about the date when it was diagnosed, and that the applicant did not seek treatment for this condition before 1998. It follows from this that the 1988 Act applies, not the 1971 Act.
38. As regards PTSD, the respondent relied upon an extract from the transcript of the earlier Tribunal proceedings and claimed that this demonstrated that the applicant claimed to be suffering from PTSD in 1988. However, exhibit A5 (the extract from the transcript of the earlier proceedings), merely shows that on 16 December 1987 (not in 1988) the applicant asked Dr DePasquale a question relating to the distinction between personality disorder and “post trauma disorder” and then went on to “present” Dr DePasquale with a theory that he was suffering from “post trauma stress disorder”, and asked him to comment on this. According to the transcript, the doctor went on to explain that in his opinion the “umbrella” was post traumatic stress disorder but the “specific” was reactive anxiety depression. In our opinion, these somewhat unsatisfactory references in the transcript of the earlier proceedings do not establish that the applicant was suffering from PTSD in 1988 (or more correctly, in December 1987, when the above evidence was given). We find that the applicant was not suffering from PTSD at that time. There is no evidence that the applicant sought treatment for PTSD prior to the time when Dr DePasquale diagnosed this in 1998. Subject to Dr DePasquale’s “umbrella” reference in the transcript of the earlier proceedings, there is no other reference to any other psychiatrist having diagnosed PTSD until 1998, when Dr DePasquale did make this diagnosis. On the evidence before us the applicant resumed seeing Dr DePasquale in 1998, and it was after that that the two conditions now asserted by the applicant were diagnosed by Dr DePasquale. We therefore conclude that the applicant did not seek treatment for PTSD before 1998. It follows that in our opinion, the 1971 Act does not apply to the conditions now asserted by the applicant.
39. In considering when the applicant first sought treatment for paranoid psychosis and PTSD, we have also considered the applicant’s submission to the effect that the two psychiatric conditions for which he is claiming compensation were caused or contributed to by his experiences in the Army, and that these two conditions amounted to diseases or ailments which developed over time to the point where they became full-blown by 1998. He claims to have suffered the relevant symptoms from a date very much earlier than 1998, being the year when the conditions were first diagnosed by Dr DePasquale. We do not accept the submission that the conditions were caused or contributed to by the army service, or that they developed in the manner contended for. Nevertheless, on this argument, it could be reasonably inferred that when the applicant sought treatment for psychotic episodes in 1984, and perhaps earlier when he sought psychiatric treatment before his discharge from the Army, he sought treatment for the two conditions in question, even though they had not then been diagnosed. In view of the applicant’s argument, and in case we are wrong in our conclusions in paragraphs 37 and 38 above, we will also consider the application of the 1971 Act.
Notice of Injury
40. The respondent submitted that the 1988 Act does not apply to the applicant because he had not given notice of injury as soon as practicable after he had become aware of the injury, as required by s 53(1)(a) of the 1988 Act.
41. On the material before us, it appears that the earliest notice to Comcare of the asserted condition of PTSD was exhibit A1, being a Comcare form completed by Dr DePasquale in April 1998 at the respondent’s request. (This request from Comcare apparently arose as a result of the claim made on 7 January 1998 for “repressed memory of sexual abuse and assault, sleep problems, anxiety and depressions”, being the claim to which we referred in paragraph 14 above and which was subsequently rejected by the respondent). In exhibit A1, Dr DePasquale advised that the applicant was suffering from “Paranoid disorder-Reactive Depression Post-Traumatic stress disorder”. We also note that the only evidence before us of a notice of the injury in respect of the claim for psychotic paranoid reaction (or paranoid psychosis) is the Comcare claim form dated 28 August 2001 (T4), which was signed by the applicant and date stamped as having been received by Comcare on 29 August 2001.
42. It therefore appears that as regards the claim for PTSD, notice of the injury was given to Comcare as soon as practicable after the employee had become aware of the injury. We refer in this regard to Comcare v Luck (1999) 29 AAR 403, in which French J makes it clear that a claim form can constitute a notice of injury for the purpose of s 53 of the 1988 Act.
43. As regards the claim for psychotic paranoid reaction, there is no evidence before us as to when the applicant became aware of that claim and associated it with his employment (see Re Deveson and Comcare (1999) 53 ALD 794; [1999] AATA 80 at [13], where Deputy President Burns found as fact that:
“The first point in time at which the applicant could be said to have become aware, in any meaningful sense, of his injuries, being injuries that arose out of or in the course of his employment, was after he had gathered together all the material relevant to his claim and had confirmed in his own mind that there was a connection between the circumstances of his employment and his medical conditions.”
Further, the only evidence before us of when the applicant gave notice of this ailment is that he lodged the Comcare claim form (that is, the claim form referred to above) on 29 August 2001. If the applicant failed to give notice of injury as soon as practicable after becoming aware of the injury (as claimed by the respondent) it is necessary to consider the effect of s 53(3) of the 1988 Act, and whether the respondent was prejudiced by the applicant’s failure to give such notice within the time required. We note that there is no requirement for the notice of injury to specify the circumstance which gave rise to the asserted disease, or particulars of those circumstances such as disclosing the names and addresses of persons present when a particular incident took place. In the present matter, after the claim was lodged in August 2001, the respondent was in a position to investigate the relevant medical history in relation to paranoid psychosis and to obtain an independent medical assessment, and subsequently did so. On the assumption that the applicant became aware of the ailment in January 1998, when it was first diagnosed by Dr DePasquale, there was in fact a delay of more than three years before the claim for this asserted condition was lodged on 29 August 2001. However, we consider that the respondent was not prejudiced by this delay; there is no suggestion that relevant evidence would have been available if notice of injury had been given in 1998, but was not available in 2001, or that the respondent has been prejudiced by this period of delay (bearing in mind that the diagnosis was made some 16 years after the applicant’s employment by the Army ceased). The respondent was already prejudiced by the long delay until 1998, when the applicant became aware of the condition, and in our view, the additional delay of another three years did not result in any prejudice which would not have existed in 1998. We accordingly find that the applicant is deemed to have complied with the notice requirements of s 53 of the 1988 Act.
44. We further consider that even if the 1971 Act applied, the applicant would be deemed to have given notice of injury within the prescribed time. This Act would have applied if, contrary to our above finding, the applicant had sought treatment for either or both of the two conditions at the earlier times referred to in paragraph 39 above. Under the 1971 Act, the applicant would have been obliged to have given notice of the contraction of the disease, or of the commencement of the aggravation or acceleration of the disease, as soon as practicable after becoming aware of the contraction of the disease, or of the commencement of the aggravation or acceleration of the disease, but if he did not give notice as soon as practicable, he would be deemed to have given notice in time if the Commonwealth would not have been prejudiced by the late notification (see s 53(2) and (4) of the 1971 Act).
45. As mentioned in paragraph 11 above, the applicant claimed compensation for the psychiatric conditions there referred to on 4 September 1984, and that claim gave rise to the 1988 decision of the Tribunal. There is no suggestion that the respondent took any point in those earlier proceedings that compensation had not been claimed within the proper time, or that notice of the contraction of the disease had not been given within the proper time. As mentioned in paragraph 33 above, because the claim was based on the contraction of a disease, there was no obligation on the applicant to give notice of the particular incidents which gave rise to the disease (that is, the alleged sexual assaults) or of the circumstances in which the assaults occurred, or particulars of other persons present when the assaults occurred, as would have been the case if the applicant had claimed compensation for an injury.
46. We further consider that the requirement to give notice of a disease would not entail an obligation to identify the disease in the notice by its medical description, especially where at the relevant time a medical diagnosis of the disease has not been made. In this respect, we refer to Comcare v Mooi (1996) 69 FCR 439 at 444 where Drummond J decided that while it is not necessary to identify the employee’s condition with the label of a recognised medication condition, the employee had to demonstrate that he or she was “in a condition that is outside the boundaries of normal mental functioning and behaviour”.
47. In theory, if (as the applicant asserts) one or both of the two conditions now complained of existed when the applicant made his earlier claim for compensation in 1984, then the condition(s) so existing might have been diagnosed then, and the respondent could have fully investigated the relevant condition(s) and their cause. It seems to us that it was the applicant’s failure to give a complete history to the psychiatrist then involved of all of the circumstances which the applicant claims caused his diseases (namely sexual assaults), and not any failure to give notice of the contraction of the disease(s) within the prescribed time, which has prejudiced the respondent, because (as already mentioned) the applicant was not obliged to include in his notice information which would have revealed details of the alleged sexual assaults or other abuse in the Army.
48. As mentioned above, under the 1971 Act, it was also necessary to claim compensation within a prescribed time. It appears that there was no prescribed form for claiming compensation under s 54 of the 1971 Act. The purpose of the obligation to claim compensation within the limited time prescribed by s 54 was apparently to put the employer on notice that a claim was to be made, and to protect the employer from stale demands (see Thompson v Goold & Co [1910] AC 409 at 413). With effect from 1 July 1986, s 54 was amended to remove any requirement to claim compensation within any particular period. (This amendment only applied in relation to an “injury” sustained by a person on or after the commencement of the amending section: s 50(2) of the Social Security Legislation Amendment Act, 1986 (Cth). As the word “injury” is defined in s 5(1) of the 1971 Act in terms which expressly exclude a disease or the aggravation, acceleration or recurrence of a disease, the 1986 amendments had no application to a claim for a disease or the aggravation, acceleration or recurrence of a disease. However, this apparent anomaly was removed by s 124(10)(c) of the 1988 Act, because the exclusion from entitlement produced by that subsection is expressed only to apply to a claim for an “injury” suffered after the commencement of the 1971 Act but before 1 July 1986, and the word “injury” is defined in the 1988 Act to include a disease and an aggravation of a disease). In any event, as mentioned in paragraph 42 above, we find that the applicant made a claim for PTSD as soon as practicable after he had become aware of that condition. We further find, for the reasons referred to in paragraph 43 above, that the respondent was not prejudiced by the failure to claim compensation in respect of the paranoid psychosis within the period required by s 54 of the 1971 Act. We accordingly consider that, if we are wrong in our conclusion that the 1988 Act applies and the 1971 Act applies, then the applicant has complied with the requirements of s 53 and s 54 of the 1971 Act.
Background of Applicant Prior to Joining Australian Army
49. We make the following findings of fact based partly on certain of the findings made by the Tribunal in its 1988 decision, being findings which the applicant adopted (in some cases with certain comments or qualifications) as his evidence in the present matter, and partly on exhibit A13 (being a summary prepared by the applicant entitled “The Life and Times of (“SAN”)”) (transcript 02.09.03, at pages 21.7 to 23.4 and exhibit A14).
50. The applicant was born on 24 April 1955. He is the eldest son of a brigadier-general of the Royal Nepalese Army and comes from a noble family. He had a happy early childhood, and at the age of six was sent to a boarding house run by the Jesuits in Patan, Nepal. He had a miserable existence at the boarding school at first, and was then befriended by a Jesuit priest. However, when the applicant was aged 10, the priest began to sexually molest him.
51. He said that as a result of this, in 1965 he failed an exam and could not go to another senior school. The headmaster of the Jesuit boarding school told the applicant’s father that he was lazy and that that was why he failed. After that his father started to physically abuse him. The applicant’s father later became an alcoholic and started to neglect the applicant. The applicant completed his secondary schooling in a government school and entered the Nepalese National University in 1973 and completed two years of a Bachelor of Science Degree. In 1974, whilst still at the university, the applicant accepted work as an undercover agent, having been approached by the American Drug Enforcement Agency in Nepal. The applicant continued to work for this agency until 1978, and his work as an undercover agent required him to infiltrate the hippy community in Nepal, and later he worked in a casino in Nepal in this capacity.
52. In December 1977, in New Delhi, he met a woman from Australia who had just completed her student teacher’s course. He married her in January 1978. In April 1978 he migrated to Australia. His wife worked as a full-time school teacher and initially he lived with his wife at her parents’ house in Adelaide. When he first came to Australia his wife supported him on her income as he was unable to find employment. In June 1978, the applicant began a commercial pilot’s licence course. This was financed largely by the applicant’s wife who raised various loans up to $5,000 in total. At least $3,500 of this money was used to pay for the applicant’s training course in addition to other sums which she paid from her teacher’s salary.
53. From about October 1978, the applicant obtained employment which included casual employment teaching yoga for two institutions and part-time casual work as a waiter and from April 1979 until the end of 1979, worked with his brother-in-law tomato farming for a share of the profits.
54. From the commencement of their marriage, the applicant and his wife had significant financial problems largely because the applicant’s employment was limited and sporadic, and much of their money was used to finance his pilot’s course. In addition, the applicant appeared to have expensive tastes and prevailed upon his wife to buy him luxury items. The applicant said that he was at that time immature, naive and had misguided self-confidence, and admitted that he was not a very stable husband to his wife.
55. In May 1980, the applicant’s wife became aware that she was pregnant. They had not planned to have a child until the applicant had finished his commercial pilot’s course. There were immediate financial implications as his wife would be obliged to give up her job for a period of time and care for the child and the applicant had no full-time employment. There was considerable tension between the applicant and his wife.
56. In July 1980 the applicant gave up his commercial pilot’s training course as a result of several factors, including his wife’s pregnancy, his instructor terminating his training with the training company and his perceived need to obtain some employment in order to maintain himself and his family.
57. After that the applicant told his wife that he was going to join the Australian Army. His wife reacted against this suggestion as she did not think he would be able to cope with Army life having regard to his personality, his being easily antagonised, and his inability to take orders. His wife indicated that the applicant continually gave orders and ultimatums to her and that he would not react favourably to orders coming from others. Nevertheless, the applicant joined the Army against his wife’s wishes on 14 October 1980.
Events Following Applicant’s Enlistment in the Army and Until His Discharge
58. We now recount the evidence of the applicant as to events which occurred after he enrolled in the Army and until his discharge (but excluding reference to his complaints of assaults, abuse and harassment whilst he was in the Army being matters to which we will refer below). Once again, the facts referred to in paragraphs 59 to 90 below are based on the reasons for the 1988 decision (T3) and A13 and A14. These facts were not disputed by the respondent.
59. The applicant’s initial training was at Kapooka in New South Wales for a period of 16 weeks. He then went to Bandiana in Victoria where he became a trainee storeman between January 1981 and March 1981. He said that he was then transferred to the 16th Air Defence Regiment workshop at Woodside in the Adelaide Hills where he was under the command of one Major Blackwell, and his wife took up married quarters at the campsite.
60. The applicant’s daughter was born on 31 January 1981. During the period of his training up until the time his daughter was born, the applicant and his wife saw little of each other.
61. In February 1981, the applicant’s father, who was in Nepal, became ill and in June 1981 his father’s condition worsened and the applicant wished to see him. This visit required the applicant’s wife to apply to extend her loans to finance the travel. The applicant was granted special extended leave of two to three weeks to enable him to visit his father in Nepal. On the way to Nepal, the applicant had a stopover at Bangkok and, as a result of a casual sexual encounter, he contracted venereal herpes simplex II.
62. Whilst in Nepal the applicant had an emotionally difficult and stressful reconciliation with his father. He returned to Adelaide on 9 July 1981.
63. Within a short time of his return, it was noted that there was a drop-off in his work performance as a storeman and an increase in absenteeism for duty or parades. The applicant was having very painful symptoms because of his herpes condition which he had not disclosed. His stress symptoms (to which we will refer later) continued and he felt depressed.
64. Following his return to Adelaide, the applicant became less communicative with his wife, partly as a result of stress which had built up because of harassment in the Army, about which he did not inform his wife because he thought that she would think less of him. Further, he did not wish to tell his wife that he had contracted herpes simplex II, particularly because of the circumstances in which he had contracted it.
65. On 27 July 1981, the applicant’s wife left him. She decided that she could no longer stay for the sake of her young daughter whom she did not wish to be exposed to the type of relationship which existed between the applicant and his wife.
66. Early in August 1981, the applicant began to have panic attacks and on 3 August 1981 he was admitted to the Royal Adelaide Hospital upon referral by a friend who was a general practitioner. The treating medical officers at the Royal Adelaide Hospital formed the view that the applicant had a sociopathic personality disorder. He remained in hospital until 5 August 1981. He was then admitted to the Daw Park Hospital on 8 August 1981 due to what was thought to be an overdose of medication. On 12 August 1981 he received domestic counselling. On 19 August 1981 he was referred to see Dr Hoff, a psychiatrist employed by the Australian Army. He continued to receive domestic counselling from Dr Hoff in September, October and November 1981. (Whilst confirming his agreement with these matters, the applicant commented in exhibit A14 : “However, I like to present report of Dr Bal Bahadur Swar from CRS files too. I need another summons for the whole file as the report is missing”. We understand from his evidence before us that he claims he had no personality disorder before coming to Australia, and that the report of Dr Swar would confirm this).
67. On 1 September 1981, Family Court proceedings were commenced. A decree nisi order was eventually made, on the application of the applicant’s wife, on 24 October 1984.
68. The applicant was posted to a camp in Queensland in early September 1981. During the first week of September 1981 his father died, but the applicant was not told of the telegram dated 10 September 1981 informing him of that event until the end of that camp in October 1981. This was a matter of grave concern to the applicant because there were Hindu rituals which a first-born son must fulfil and the applicant felt deprived of having fulfilled his filial and religious obligations. Upon being informed, he shaved his head and performed certain rituals.
69. The applicant began drinking alcohol heavily in October 1981. In late November 1981, Major Blackwell left the Woodside Camp and was replaced by one Major Watson. Major Watson was of Chinese extraction and did not give the applicant the same support as Major Blackwell had done. The applicant was first charged with being AWOL at the end of December 1981 for failing to appear on parade. In February 1982, a second charge was laid against the applicant for being AWOL and giving a false account. Also in February 1982, the applicant was sent a letter stating that he was maintaining unsatisfactory performance of duties. In the first week of March 1982, a third charge was laid as he was found sleeping when he should have been on duty.
70. In March 1982, Dr Hoff concluded that the applicant was suffering from a personality disorder with reactive depression. He was admitted to the Daw Park Hospital on 20 March 1982 for three days when he disclosed for the first time details of problems relating to the Army and, in particular, he revealed that he was suffering from herpes. He was re-admitted to the Daw Park Hospital from 26 to 31 March 1982. As regards the matters referred to in this paragraph, the applicant in the present proceedings disputed having ever had a personality disorder and referred to reports from Dr Metzer and John Mellowship from the CRS file and the Glenside Hospital file (see exhibit A14, paragraph 41).
71. On 9 April 1982, whilst still absent on sick leave, the applicant went to Nepal to live with his mother. He said that he went there as he knew his discharge was going to be recommended and he wanted to avoid military prison. On 8 July 1982, the Department of Defence wrote to the applicant in Nepal advising him that he was being discharged effective from 13 July 1982 giving the reason that “… retention of [the applicant] in the Army not being in the interest of Australia or the Army” (ST13).
Events After Discharge From Army
72. The applicant remained in Nepal where he continued to receive medical treatment for his herpes condition.
73. On 14 December 1982 the applicant returned to Australia and applied for unemployment benefits. He moved to Queensland and performed labouring and tractor driving work for about two months for which he was not remunerated. He then travelled to Brisbane. He applied to the Queensland Police Force for employment. His application was refused, but he was requested to work as an undercover agent for ASIO and was requested to infiltrate the Ananda Marga sect. He lived with this sect for four months living a double life. He thought the Ananda Marga believed he was a spy and they were following him wherever he went. His stress symptoms continued. (In the present proceedings he adds that he was “fearful of the Special Branch as they did not pay [him] reasonable money. [He] was under lots of stress and wanted to escape the place. The Special Branch told [him] to keep [his] mouth shut and never link [his] association with them” : exhibit A14, paragraph 48).
74. The applicant was subsequently convicted of certain charges of false pretences and stealing certain sums of money and cheques. He defaulted in paying the fines imposed and was imprisoned for two months ending on 12 January 1984. In the present proceedings he added that he did not challenge the charges as he could not afford a lawyer and wanted to come to South Australia to see his daughter (exhibit A14, paragraph 49).
75. The applicant applied for an invalid pension on 9 February 1984 and was sent for a medical assessment for that pension at which time he was regarded as suffering from anxiety/depression and also a personality disorder with an incapacity to the extent of 50%, but was regarded as suitable for labouring duties; he was therefore unable to obtain the invalid pension. Subsequently the applicant sought employment in restaurants, worked as a trainee chef, worked (but without remuneration) for a travel agent seeking to extend his travel business to Nepal, and worked as a waiter in a Chinese restaurant until, according to the applicant, his employment in these positions was terminated because of harassment of the proprietor by members of the Federal police, ASIO and the Australian Special Branch.
76. On 17 September 1984 the applicant was admitted to the Rosemont Psychiatric Hospital in Queensland. Reference will be made later in these reasons to the applicant’s psychiatric condition at that time.
77. The applicant returned to Adelaide in October 1984. He could not obtain a job in Adelaide. He found some drifters and said that by that time he was a “desperate drifter”.
78. In January 1985 he decided to go to Darwin. On the way there he had a motor vehicle accident, when the motor vehicle he was driving overturned, resulting in injuries to himself and more serious injuries to the other occupants of the vehicle. The applicant made an unsuccessful claim for damages in respect of his injuries.
79. After a period of incapacity the applicant obtained work in February 1985 in a Japanese restaurant, and this work continued until April 1985.
80. In May 1995 the applicant travelled by bus to Darwin to take up a job as a cook at a station in the Northern Territory. This work was terminated after two weeks because of complaints from a few ex-soldiers from Vietnam and in about September 1985 he returned to Adelaide and took up residence in a Hari Krishna monastery. In late 1985 the applicant obtained work as a chef and waiter in a late night piano bar.
81. In January 1986 the applicant went to Nepal and stayed with his mother. He sought medical treatment there largely for problems related to his herpes condition.
82. He subsequently returned to Adelaide. In June 1986 he obtained work as a waiter and kitchen hand in an Indian restaurant. As a result of this work he suffered repetitive tendonitis and as a result was dismissed after one month. He took an action for wrongful dismissal and also for compensation.
83. He had a personal and financial disagreement with the owner of the house where he was boarding, a Mr Roka, and alleged that the owner of the rooms where he later went to board was harassed by Mr Roka, whereas Mr Roka alleged that it was the applicant who was making the threats to the owner pretending to be Mr Roka. During late 1986 there were a number of court actions involving Mr Roka. These events indicated the continuous level of tension under which the applicant was living. As regards the matters referred to in this paragraph, the applicant in the present proceedings said that Mr Roka “went to be witness for the Australian Government Solicitor”, presumably in the earlier proceedings of this Tribunal, (exhibit A14, paragraph 70).
84. In April 1987, the applicant obtained employment at a Thai restaurant as a kitchen hand or waiter. He was able to work on two or three evenings per week depending on how he felt. During this period of employment he still suffered from symptoms of stress which meant that he was unable to work regularly.
85. In October 1987, the applicant was involved in a second motor vehicle accident when again he was the driver and his then girlfriend was a passenger. This caused an aggravation of his stress condition, and appeared to be the beginning of a demise of his new relationship with his girlfriend with whom he had begun living at that time. The applicant claimed compensation and settled for only $1,000.
86. The owner of the Thai restaurant would not re-employ the applicant after his second motor vehicle accident because of alleged visits by persons from the Federal Police and because the owner was a refugee. The applicant commenced proceedings for unlawful dismissal against his former employer.
87. In November 1987, the applicant enrolled to study science, maths and English at a College of Technical and Future Education. He has not been employed since 1987. He said he has looked for employment, and sent off 500 - 600 resumes, but is told he is too old or not wanted.
88. In about 1990 the applicant was getting on a bus and became involved in an argument with someone else and was hit with a walking stick. He said he made a claim for criminal injury compensation and was paid out less than $2,000. He had to pay resulting doctors’ fees and had to go bankrupt.
89. The applicant was involved in a very protracted dispute with his former wife who refused to grant him access to their daughter. He said that he had to fight in court case after case and “finally everything started to peter out around 1994-1995” (transcript 02.09.03, page 31.4). He said he has not seen his eldest daughter since 1994 and she does not even say “Hello” to him because she is very angry with the applicant for taking her mother to the Family Court for the previous 10 or 11 years.
90. Between 1993 and 1995 the applicant did an Associate Diploma of Management at Adelaide TAFE. He then went to Flinders University. He obtained a Bachelor of International Business and a Graduate Certificate in Management and was apparently doing a Master of Business Administration at Flinders University when the University took steps to exclude him from that course. He has brought proceedings against the Flinders University in the Federal Magistrates’ Court based on discrimination. He said that he has applied to the University of South Australia and has been refused and thinks he might take proceedings against that University for discrimination also.
Applicant’s Evidence Re Abuse in the Army
91. In the earlier proceedings which gave rise to the 1988 decision, the applicant complained that during his time in the Army, he was called a variety of derogatory names and was subjected to harassment, which included physical harassment. We again refer to the applicant’s adoption in the present proceedings of various facts referred to in the reasons for decision of the Tribunal in 1988 (see paragraph 49 above).
92. The applicant said that he was called names such as “yellow peril”, “Viet Cong”, “monkey”, “black cunt”, “gherkin” and similar. He felt alienated. Soldiers did not talk to him, partly because they found his accent difficult to understand and in consequence he made no friends. He described an incident in which a 2 litre can of orange juice was thrown at him just prior to his passing out parade on 4 January 1981. The applicant was cut under his eye, causing him to wear a bandage on his passing out parade which interfered with the passing out activities on that day. He interpreted the incident as a specific assault on him because of his race (although in the proceedings before us, this interpretation was disputed by the witness Bruno, as mentioned in paragraph 110 below).
93. The applicant said that in December 1980 he began to feel what he later recognised as stress symptoms due to the harassment which he received in the Army. He described nightmares, feeling socially withdrawn, lazy, defensive and having breathing problems. In his evidence in the present proceedings, whilst adopting these matters, he said he “would like to add also being very much suspicious of others, hearing voices, having tactile and auditory hallucinations about people trying to touch my sexual organs or my body and much more” (see exhibit A14, paragraph 22).
94. He said that when he was at Bandiana in early 1981, he alleged that he was also punched and kicked because of his colour and race, and he reported one such incident to the adjutant, and the soldiers responsible were reprimanded.
95. After he was posted to Woodside, he alleged that he was called racist names as well as Christian names which were insulting to him, particularly by the soldiers with whom he worked in the store. He referred to instances of bashings which he reported. He said that when he was at Woodside, under Major Blackwell, he was called racist and Christian names and was punched, hit and knocked on various occasions by fellow soldiers and that this was probably associated with his race, colour or creed. He also visited the Army doctor frequently complaining of minor symptoms of headaches and dizziness (paragraph 31 of T3). He also gave evidence that Major Blackwell appreciated that he was being harassed by the younger soldiers and took measures to speak with the soldiers in order to prevent recurrences. The level of harassment thereafter subsided.
96. After Major Blackwell left the Woodside camp in late November 1981, the applicant encountered more difficulties. We refer to paragraph 69 above which refers to the charges laid against the applicant after Major Blackwell left.
97. The material before us in the present proceedings indicates that the applicant made similar complaints to the same general effect as those referred to in paragraphs 91, 92, 94 and 95 above at various times over the period since he enlisted in the Army. However, the documentary evidence before us indicates that in 1998, the applicant for the first time alleged in connection with his claim for compensation that he had been subjected to a serious sexual assault whilst in the Army. Other subsequent documentary material indicates that there was more than one such alleged serious sexual assault. We will refer later in these reasons to the varying references made by the applicant to having been abused in the Army, and the explanations given by the applicant for the absence of any reference in the documentary material prior to 1998 of the serious sexual assault(s).
98. The applicant also tendered an “affidavit for materials of reliance” sworn on 17 July 2003, which was admitted as exhibit A12. This affidavit includes the following assertions.
(a)The Australian Army failed in its duty to protect him from risk and to provide him with a safe workplace, because of the racism and sexual abuse with violence against him. He says his quality of life has suffered and he is still suffering from mental illness, and could not perform at his work then or now, and the future looks bleak.
(b)Comcare and the Australian Army have been deceitful by declaring that the military police had never investigated his claims to the then Defence Minister, Gordon Scholes. (In the event, the military police report was eventually produced and is exhibit A26, and we referred to this matter in paragraphs 19 to 21 above).
(c)Comcare and the Australian Army have breached a duty of care owed to him by not providing a safe place of work and failed in their duty to protect him from “racialising, sexualising, stigmatising and marginalising with violence”.
(d)The Australian Federal Police have not investigated his claims of sexual assault and rape in the Australian Army and he has not received satisfactory responses to inquiries made of the New South Wales Police or Yarrow Place, which is a rape and sexual assault service based in North Adelaide.
(e) He draws attention to contrasts between traditional and modern societies.
(f)He believes (and he asserts, so does Dr DePasquale) that paragraph 31 of the previous Tribunal’s decision and the matters accepted therein are a sufficient basis for the delayed onset of PTSD and says he was not suffering from acute stress. This paragraph of the 1988 decision recites evidence that the applicant had been called racist and insulting names and had been bashed, and recorded that the Tribunal accepted that the applicant “was called racist and Christian names and was punched, hit and knocked on various occasions by fellow soldiers and that this was probably associated with his race, colour or creed, and he had also visited the Army doctor frequently complaining of minor symptoms of headaches and dizziness”. He says that PTSD is “usually unrelenting like in my case”, and that he has medical symptoms as described in an article attached as appendix “G” to exhibit A12 headed “Etiological Factors in Development of Post Traumatic Stress Disorder”. He says these symptoms are headaches and migraines, sleepless nights and constant tiredness/lethargy, and mental health symptoms comprising irritability, depression, suicidal thoughts, withdrawal, anxiety and low self-esteem, and psycho-social symptoms comprising heavy drinking and breakdown of relationships.
(g)He also disputes that he has a personality disorder and addresses other matters to which we will refer later in these reasons, when we consider the medical evidence.
99. In the course of his examination-in-chief in the present proceedings, the applicant also tendered the statement made by him on 29 July 2003 to an officer from the Sexual Assault Unit of the South Australian Police Department (exhibit A6), to which we referred in paragraph 17 above. The applicant said that he approached the Sexual Assault Unit following a recent amendment of the law in South Australia which had the effect of removing the restriction on instituting prosecutions for sexual assaults which had occurred prior to 1982. As mentioned above, Exhibit A6 includes a very detailed account of one serious non-sexual assault and three sexual assaults relied on by the applicant in the present proceedings. The applicant said in his evidence that this statement contains a complete and accurate account of what happened to him in the Army (transcript 01.09.03, at page 72.1). We summarise the applicant’s description of the relevant assaults in exhibit A6 as follows.
(a)The first assault happened one night near the end of the applicant’s basic training at Kapooka. He was in bed after lights out. He felt something which he took to be a blanket thrown over his head and body and had the sensation of being lifted and pulled up out of bed. He could feel hands on his body and knew that there were at least two or three people carrying him. He heard voices whom he recognised as those of three other people in his platoon, namely O’Neill, Baxter and Devereaux. He next had the sensation of being thrown through the air and landed heavily on concrete, landing on his bottom and banging his head. He pulled the blanket off and saw that he was in front of the ablution block. (It is apparent from later evidence that the applicant refers to the recruits’ living quarters as the “ablution block”). He pulled the blanket off and O’Neill, Baxter and Devereaux and another person called “Bullivant or similar” approached him and pulled off all his clothes, against his will. He was locked outside for half an hour and was subject to derogatory name-calling. One Sergeant Bruno then came long and verbally abused him and called him indecent names. The applicant tried to explain what had happened but Sergeant Bruno was not interested and the other soldiers told Sergeant Bruno that they did not know what had happened. Sergeant Bruno told the applicant to go to the regimental aid post. He did this the next morning, but the medical officer said he was a malingerer and reprimanded him for being there every day for one reason or another.
(b)The second episode happened on the night of the passing out parade at Bandiana. The applicant was asleep and was woken up by the sensation of a blanket being thrown over him. Someone was holding him tightly. He struggled and got the blanket off and saw O’Neill, Kiss and Coppleman in the room. O’Neill held him down and Coppleman ripped his pyjama pants off. Coppleman grabbed his penis and scratched it, and attempted to masturbate him for about five minutes and then sucked his penis for about 10 to 15 minutes. Kiss slapped him three or four times on the face painfully. O’Neill pulled down his own pants and masturbated himself and ejaculated over the applicant and his bed. The applicant said that after this episode his penis was scratched and sore, but he did not feel that he could go to the medical officer. He was very embarrassed and mortified. The trauma of what had happened left him numb. He decided not to tell anyone because he was leaving the next day. Further, his wife was due to give birth to their first child and he did not want her to find out about what had happened in case it caused her a problem with the pregnancy. O’Neill said that if he told anyone he would have someone rape his wife and kill him, and he was very scared for himself and his wife.
(c)The third assault happened during his employment at Woodside. The applicant had been on perimeter guard duty at the base and at 3.00 am he went back to his room and went to sleep in his bed. He was awakened by Coppleman and one Lance Bombardier Brown who pushed into his room. Brown held him against the wall and verbally abused him. Coppleman grabbed his penis and tried to masturbate him and threatened a further sexual assault. After about five minutes two other men entered the room, including one Schmidt. There was then a fight and other people arrived. As a result everyone, including Coppleman and Brown, left. The incident caused the applicant more problems and he began to drink a lot more alcohol.
(d)The fourth assault happened when the applicant was serving punishment which required him to report to the duty officer wearing full battle gear every hour for 48 hours. At about 4.00 am on the second day of this punishment he was in his room getting ready to report again when O’Neill entered his room and forced him face down on the bedroom floor, saying “I like to see black people suffer, I have a present for you.” The applicant could feel something was being pushed really hard into his bottom from outside his clothing and it really hurt him. He had a haemorrhoid problem and could feel liquid at his bottom and realised that he was bleeding. The applicant screamed. Then one Lance Corporal Power entered the room and urged O’Neill to leave. O’Neill threatened to come looking for him and rape his wife and molotov cocktail his room if he told anyone about what had happened. The applicant found his bottom was bleeding and used tissue paper to stop the bleeding. After O’Neill left he saw that he had left behind a 750 ml beer bottle and he realised that that was had been put inside his bottom. It was really painful for many days afterwards. The applicant did not tell anyone what had happened as he was scared that O’Neill would carry out his threat.
100. Further details of physical and verbal abuse are contained in exhibit A6. The applicant asserts that throughout all of his basic training he was subjected to verbal, racial and physical abuse, was threatened and was given all of the dirty jobs to do. He also refers to being punched so roughly that he became frightened, and on one occasion he suffered a chipped wisdom tooth as a result of being punched in the face. He also says that about three days after the first assault at Kapooka, another person in the regiment committed suicide. He said that after he went to Bandiana, Kiss and Bullivant verbally and racially abused him and also physically assaulted him but there were no sexual assaults. Further, after he went to Woodside, he was still being beaten and kicked constantly by his “counterparts” at work.
101. The applicant tendered a photograph taken on the occasion of the Kapooka passing out parade, and he identified a number of the persons involved in the assault episodes from this photograph (exhibits A11 and R7).
Evidence in Rebuttal of Applicant’s Complaints of Abuse in the Army
102. The respondent called a number of witnesses to refute the applicant’s evidence that he was abused in the Army. We summarise this evidence below.
Evidence of O’Neill
103. A witness statement signed by Michael James O’Neill was received as exhibit R6. Mr O’Neill said that he was in the Australian Army between 1980 and retired from the Army in 1986. He did his basic training at Kapooka with the applicant. He lived in the room opposite the applicant’s during his training at Kapooka. He said that the trainees were all taught to support each other as a team and help each other get through their basic training course, which was extremely hard. He assisted the applicant a couple of times with his locker inspections and knew of a few other soldiers who had helped him with spit polishing boots. In his written statement, he deals with each of the allegations in exhibit A6 (being the applicant’s statement to the Sexual Assault Unit of the South Australian Police Department regarding the four assaults referred to in paragraph 99 above). Where the allegations involved soldiers other than himself, Mr O’Neill did not observe or hear of the relevant conduct on the part of the other soldiers. He also felt sure that he would have heard of it if the applicant had been assaulted at Kapooka in the manner alleged. He also denied allegations made by the applicant in this statement that he was verbally abused and pushed and punched on the train trip from Adelaide to Kapooka.
104. Mr O’Neill further said the training was extremely disciplined but all the trainees “copped” exactly the same amount of instructions from the instructors “that we could possibly handle”. There was no differentiation as regards age, colour, level of education, height, or ethnic background. There was a very good team structure through the platoon. He did not hear anyone else refer to the applicant, or anyone else, in racial tones or make any comment which might be called racially offensive, degrading or debasing, although he admitted that as part of the training, probably at some stage, the trainees were called “idiots and stupid dogs and didn’t know anything”. Everyone took turns in doing the dirty jobs, such as cleaning the accommodation block, showers and toilets. If there was any form of admonishment it was towards the platoon as a group and the instructors were trying to stress that they were a team and had to help each other through every difficult moment. Mr O’Neill disputed certain allegations made by the applicant in exhibit A6 to the effect that Coppleman used to taunt him with offensive language when asking the applicant to get cigarettes for him, and Mr O’Neill said further that he did not think that Coppleman smoked and he was a “very quiet and dedicated bloke” (exhibit R6, page 12). He added that Coppleman was a very responsible and timid type of person and he did not think that he would have hurt a fly (exhibit R6, page 39).
146. Of course, the fact that the applicant has apparently researched PTSD would not of itself lead us to discount his evidence. However, for reasons referred to below, we do not accept that the applicant’s evidence as to other matters was truthful, and the fact that he is well aware from his research of the symptoms which would lead to a diagnosis of PTSD means that we have serious doubts about the truthfulness of his evidence as to the symptoms he described in support of this claim based on this condition.
147. We have made our above findings notwithstanding the applicant’s contention that Dr Davis has only seen him on two occasions and for a very short period of time compared with the extent of his consultations with Dr DePasquale. However, in our view a very important aspect in arriving at the correct diagnosis in this matter entails making an assessment of the applicant’s medical condition and relevant symptoms and experiences over the period prior to, during and since his service in the Army. The applicant’s conditions and treatment in the period since 1998, when Dr DePasquale commenced to treat the applicant on an ongoing basis, will not necessarily assist in diagnosing the cause of the paranoid psychosis.
148. We further reject the applicant’s contention that his army service caused or contributed to the condition of paranoid psychosis and that this developed during or soon after his army service, and then further developed over the years until it was diagnosed in 1998. We consider that this contention is contrary to the evidence before us and to our above findings.
149. We have also concluded that the two conditions of paranoid psychosis and PTSD were not an aggravation of an ailment which was contributed to by the applicant’s employment by the Army. We referred in paragraph 138 above to the difference of opinion between Doctors DePasquale and Davis as to whether the applicant is suffering from a paranoid personality disorder. We also note the applicant’s submission, based on the report from Dr Swar (exhibit A9), Dr Metzer (attachment N to the affidavit of the applicant described as materials of reliance (exhibit A12)) and the report of Mr Mellowship (exhibit A8) that he does not have a personality disorder, and that those who have arrived at this diagnosis have not taken into account this material or his family background, his Nepalese culture and his religious beliefs. However, as mentioned in paragraph 5 above, the issues before us are limited to the conditions of paranoid psychosis and PTSD. We find that the applicant was not previously suffering from either of these conditions and so the applicant’s employment by the Army could not be said to have contributed to an aggravation of these conditions.
150. We should add that although we have accepted the opinion of Dr Davis in preference to that of Dr DePasquale for the reasons referred to above, we also note that Dr DePasquale was caring and compassionate, and had forged a strong patient relationship with the applicant, with the result that he appears to have been of considerable support and assistance in his treatment of the applicant.
Consideration of Evidence re Sexual Assaults
151. As mentioned in paragraph 133 above, Dr DePasquale acknowledged that if the applicant was lying about the sexual assaults, then the more minor events in the Army such as verbal abuse would be a minor or insignificant contributing factor in the development of paranoid psychosis, and as regards PTSD there must be some other explanation for this other than his service with the Army. We are mindful that the opinion expressed by Dr DePasquale as regards paranoid psychosis on this hypothesis would nevertheless mean that the applicant had suffered an injury within the meaning of s 14(1) of the 1988 Act, because once the link between that condition and the applicant’s employment by the Army is established, it does not matter that the contribution of employment to the relevant condition is only small (see paragraph 140 above). Nevertheless, on this hypothesis, and when comparing the opinions expressed by Dr DePasquale and Dr Davis, we consider that the absence of any diagnosis of paranoid psychosis for so many years after the applicant’s discharge from the Army becomes even more significant. In any event, the issue of whether or not the applicant was sexually assaulted is also relevant to Dr Davis’ opinion regarding PTSD, because if the applicant was not subjected to the sexual assaults he is asserting, there was no employment related event sufficient to constitute a stressor which could have resulted in PTSD, and this would reinforce Dr Davis’ opinion that the applicant is not suffering from PTSD. We will now accordingly consider the issue of whether the applicant was sexually assaulted in the Army.
152. We have already noted that there is no reference to the applicant having been sexually assaulted in the records of the Royal Adelaide Hospital (exhibit A40), or in the reports resulting from referrals of the applicant for medical assessment whilst he was still in the Army. Further, there is no such reference in the records available to the Tribunal relating to his treatment in Brisbane in 1984 (ST33, page 63). In fact, as we have already observed, the available medical records in relation to these matters (and also other medical reports available to this Tribunal prior to 1998) refer to a variety of other issues affecting the applicant at relevant times. We further note that the applicant made no claims of sexual assault in a letter of complaint about his experiences in the Army to the then Minister of Defence, which the Minister apparently received on 2 January 1985 (ST25, page 50). In addition, the applicant did not in his evidence in the previous Tribunal proceedings complain of any of the sexual assaults which he alleged in the proceedings before us (see transcript 04.09.03, at pages 67.6 to 69.7).
153. We refer next to the military police report (exhibit A26). It appears from Major Mercer’s interim report dated 17 October 1985 (page 3 of exhibit A26) that the report was initiated as the result of a letter dated 16 June 1985 from the applicant to a Mr Barton of the Department of Defence in Adelaide. A copy of this letter is included at pages 13 and 14 of exhibit A26, and a further copy appears at page 98 of the supplementary T documents and is ST40. The Tribunal notes that the applicant’s letter contains a number of complaints, including that he was “regularly attacked physically and verbally in terms of (his) colour, race and religion”. The letter then details a number of specific complaints, but does not refer to any of the four specific assaults of which the applicant complained in his evidence to this Tribunal, or to any other assaults of a sexual nature.
154. In the course of the military police investigations into the matters raised in the letter to Mr Barton of 16 June 1985, a detailed statement was obtained from the applicant by one Warrant Officer W G Schultz on 9 August 1985. A copy of the statement appears at pages 16 to 18 of exhibit A26. We note that in this statement, the applicant made reference to a number of specific episodes, but again the statement does not contain any allegations as to the four specific assaults referred to in the statement to the Sexual Assault Unit (exhibit A6). We also note that the military police report also includes statements by some 21 other Army personnel, but again there is no suggestion in any of these statements that the applicant was subjected to the sexual assaults of which he now complains, or of the blanketing episode which he alleges occurred at Kapooka.
155. We also note that the applicant alleges in his statement in the military police report that all the members (presumably of his platoon) were attempting to see him thrown out of training at Kapooka, with the exception of Coppleman and Henderson. The inference from this that he has no issue with Coppleman is inconsistent with the complaints he has made in this Tribunal against Coppleman, to the effect that Coppleman was a major perpetrator of the assaults at Bandiana and Woodside described in exhibit A6.
156. The applicant said that when the sexual assaults occurred he was concerned that if he advised other persons of what had happened this would jeopardise his claim for access to his infant child who was born in January 1981. He said in this connection that his mother-in-law had accused him of being a sexual pervert. The applicant also claimed that he was very young at the time when he was sexually assaulted in the Army, and he did not have the mental capacity to articulate what had happened. He further said that after the events he was numbed and in total shock and did not know what to do. He further said that because of his culture he was ashamed and did not want to tell other people that he had been sexually assaulted.
157. In the proceedings before us the applicant gave evidence that on some specific occasions, or in communications with some specific persons, he did refer to the sexual assaults which he described in the present proceedings. These references include the following.
(a)He said that he complained about the bottle incident to a regimental sergeant major in 1982 (transcript 02.09.03, at page 42.6 and 03.09.03, at page 25.2), but that person refused to do anything. We note, however, that in exhibit A6 the applicant said that he did not tell anyone what had happened, because O’Neill said after the event that if the applicant told anyone about what had happened he would rape his wife and molotov cocktail his room, and the applicant was really scared that O’Neill would carry out these threats.
(b)The applicant also said that the “very first time” he ever told anyone about the sexual abuse was in a letter to the then Prime Minister, Mr Hawke, in 1984 (exhibit A6, page 8). We note that the supplementary T documents include at page 15 a copy of an undated letter from the applicant to Mr Hawke which from its contents appears to post-date the 1988 Tribunal decision. We further note that there is no reference in this letter to the applicant having been sexually assaulted.
(c)In cross-examination in the proceedings before us, the applicant gave differing accounts. In examination-in-chief, he said that the first time he reported any of the sexual assaults was to Warrant Officer Schulz of the military police in 1984 (transcript 01.09.03, page 84.9). In cross-examination, he said that he had reported the sexual assault to the regimental police at Woodside on 25 February 1982 (transcript 02.09.03, page 42.8).
(d)The witness Keith Mayers-Browne gave evidence that he had known the applicant since 1982, and about 10 years ago the applicant had complained about being sexually assaulted in the Army and also that the same thing had happened with a Jesuit priest. The witness said that since then, whenever they met, the matter comes up. We also note that this witness’s account of the applicant’s description of the relevant event makes no reference to the use of a bottle, and on the face of it is therefore inconsistent with his evidence to this Tribunal.
(e)The applicant further said that he had told the solicitor then acting for him in connection with his access proceedings, Mr (now Judge) Herriman, that he had been roughed up sexually in the Army, but did not go into detail about what had happened, and Mr Herriman told him not to talk about being sexually molested in the Army because if that happened he would not be given access to his daughter. The applicant waived the privilege attaching to these communications, and Judge Herriman gave evidence in the proceedings before us. From inquiries made by the respondent, it was found that the relevant file had been destroyed, and Judge Herriman’s evidence was based wholly on his recollection. He said that whilst he recalled the applicant, and also recalled his saying that he was having some difficulties in the Army, he could not recall being told that those difficulties were in the nature of assaults of a sexual nature. He further said that whilst he could not recall giving the advice deposed to by the applicant, he could not imagine that he would have considered any roughing up of the applicant sexually whilst in the Army to be relevant to any question of access or custody concerning his children.
(f)The applicant also said that he had told a former girlfriend in 1985 about being assaulted but she thought he was fantasising. He said he told a second girlfriend in 1986.
(g)He said that he had told another psychiatrist, Dr Alan Cotton, in 1992 about the sexual assault, and Dr Cotton treated him from 1992 to 1997. However, he said that Dr Cotton did not want the applicant to talk about Army problems because he did not specialise in compensation, and that when he tried to subpoena Dr Cotton’s files, he was told they had been destroyed. We note that the first medical report which records a complaint of being sexually assaulted in the Army is the report of Dr DePasquale dated 4 February 2002 (exhibit A2). Dr DePasquale gave evidence that the applicant had first reported being sexually assaulted at a consultation with him on 20 February 1998. The applicant’s description then appears to refer to the assault with the beer bottle referred to in paragraph 99(d) above, although Dr DePasquale’s record of the applicant’s account to him differs from the description in exhibit A6 of this alleged assault. Dr DePasquale has never been told about the other sexual assaults reported by the applicant in July 2003 to the Sexual Assault Unit (transcript 01.09.03, at page 48.2).
(h)As mentioned above, in a claim form dated 7 January 1998 the applicant claimed compensation for “repressed memory of sexual abuse and assault, sleep problems, anxiety and depressions”. This claim form also appears on the face of it to be inconsistent with the assertions he has made before this Tribunal, insofar as the form refers to a repressed memory of the relevant events. The applicant’s explanations to us of his reasons for not reporting the sexual assaults earlier do not include any suggestion that his memory of the relevant events had been repressed. In cross-examination he denied that he had forgotten about the sexual assaults but said that his memory was suppressed because he was not able to let out his suppressed stress because no-body showed any interest in it (transcript 02.9.03, at page 82.1). This explanation is inconsistent with his explanation for not complaining earlier about the alleged sexual assaults.
(i)In answer to a request from the respondent for particulars of the applicant’s allegations in connection with the claim lodged on 7 January 1998, the applicant referred to being assaulted and molested at Kapooka and to the main perpetrators being Messrs O’Neill and Kiss (PST129, at page 727). He further said that he was sexually assaulted and molested more than 10 times. He provided no particulars of the nature of these assaults. This again is inconsistent with his evidence in the present proceedings before us.
(j)In a document headed “Life and Times of (“SAN”)” dated 23 July 2002, which is attachment “H” to an “Affidavit for Materials of Reliance” sworn by the applicant on 17 July 2003 (exhibit A12), the applicant referred to a “bastardising ritual” where Coppleman attacked him and sucked his penis in front of Private Kiss. He said further in this document that he met Coppleman again at Woodside and again Coppleman started to sexually attack him. There is no mention whatsoever in this document of Mr O’Neill, or any incident involving him.
158. We found the applicant’s evidence in relation to the asserted sexual assaults to be unreliable and to contain many unsatisfactory or unexplained inconsistencies. Further, the applicant’s asserted concern about prejudicing his claim for access did not apparently dissuade him from pursuing a claim against the Army for contracting genital herpes in Bangkok when he visited a prostitute. We would have expected the applicant to be more concerned about this in the context of his claim for access than his being the victim of sexual assaults from other soldiers while he was in the Army.
159. We have already referred to his evidence that he had been advised by his then solicitor, Judge Herriman, not to disclose if he had been roughed up sexually whilst in the Army, but from the evidence of this witness, it appears that it is most unlikely that the applicant would have been given this advice (see paragraph 157(e)) above). We find it hard to understand why, if the alleged assaults took place, the applicant’s position as a victim of such assaults could count against him in the access proceedings. We also note that during the time when the access proceedings were current, the applicant told Dr DePasquale that he had been sexually abused in adolescence by the Jesuit priest (see exhibit A3, being the report of Dr DePasquale dated 20 November 1986), and he also informed Dr Helen Moody in November 1989 of his childhood sexual abuse (apparently when seeking assistance while formulating a claim for compensation against the Jesuits : exhibit A29). It seems to us that these disclosures of his sexual abuse in adolescence are inconsistent with his explanation that he did not disclose the sexual abuse whilst in the Army because of his concern about the impact of this on the Family Court proceedings.
160. We further note that in exhibit A6 the applicant referred to being verbally abused and pushed around and punched during the train trip from Adelaide to Melbourne on his way to Kapooka when he enlisted in the Army. He said that Mr Kiss was on the train, and was one of the principal offenders then. This is inconsistent with the evidence of Mr Kiss, who said that he lived in Queensland when he enlisted in the Army and he travelled to Kapooka from Queensland. We accept this evidence, and regard this as another example of the unreliability of the applicant’s evidence.
161. A number of the witnesses who disputed the applicant’s allegations of sexual assaults gave their evidence by telephone, and we are mindful that it is difficult for the Tribunal to assess credibility when evidence is given in this way (see Federal Commissioner of Taxation v Grbich and Shen (1993) 31 ALD 97). However, in the circumstances of this matter we think that it was not unreasonable for the respondent to adduce the evidence of these witnesses in this way, having regard to the expense which would have otherwise been involved in their travelling from interstate to attend the Tribunal hearing. The witnesses concerned contradicted the applicant’s evidence of the assaults. They all gave their evidence carefully and were not evasive in answering questions put to them in cross-examination. We found no reason to doubt the truthfulness of their evidence, and we also accept the truthfulness of the evidence given by Mr O’Neill, who did give evidence in person. The applicant was, however, evasive at times in giving his evidence, and we found his evidence inconsistent and unsatisfactory. We do not accept the applicant’s evidence that he was sexually assaulted whilst employed by the Army. We find that no such assaults took place.
162. This finding reinforces our conclusion that we prefer the opinions express by Dr Davis to those expressed by Dr DePasquale, having regard to Dr DePasquale’s expressed reservations regarding his diagnosis of both paranoid psychosis and PTSD in the event that the applicant was not being truthful in the history he gave of being sexually assaulted (see paragraph 133 above).
Consideration of Other Issues
163. We referred in paragraph 98(e) above to the Tribunal’s findings in its 1988 decision to the effect that the applicant was subjected to physical assaults or racial vilification or verbal abuse during his army service. The proceedings before us did not focus on the question of whether these events occurred, and this issue clearly would not have affected the opinion of Dr Davis, which we have accepted in preference to that of Dr DePasquale, because he took into account the applicant’s history that he had been subjected to the sexual assaults as well as non-sexual physical abuse and verbal abuse. We refer in particular to his evidence at pages 7.7 to 8.2 and 10.1 to 10.4 of the transcript of 04.09.03. We are inclined to accept that the applicant was subjected to certain non-sexual assaults and abuse as found in the 1988 decision, but we find on all of the evidence before us that these events did not have the effect that the applicant’s employment contributed to the conditions asserted by the applicant in the present proceedings.
164. In the course of his submissions, the applicant complained that the respondent had not produced various earlier communications with various authorities which detailed his suffering. The respondent was, however, able to locate and tender considerable medical material which recorded examinations and psychiatric evaluations of the applicant over the years. We have already referred to the respondent’s attempts to locate further files and documents (see paragraph 18 above), and we confirm that we draw no adverse inference against the respondent because of any failure to produce other documents.
165. As mentioned in paragraph 23 above, we had intimated to the applicant that we would permit him to issue a summons to the Australian Federal Police (“AFP”). On 11 December 2003 the applicant issued a summons to the AFP to produce all of their files relating to him. On the return of this summons, a solicitor from the Australian Government Solicitor’s Office appeared for the AFP and opposed the summons on the grounds that it was oppressive and sought the production of documents which might go beyond documents relevant to the issues before the Tribunal. We agreed with this contention, but informed the applicant that we would permit the issue of a summons seeking the production of any files held by the Australian Federal Police which contain information pertaining to claims of physical, verbal or sexual abuse and/or racial vilification, including any statements obtained by or supplied to the Australian Federal Police in relation to those matters arising from the applicant’s time in the Australian Army for the period from 14 October 1980 to 14 July 1982. The applicant maintained that the Tribunal was wrong to disallow the summons he had first issued, but he nevertheless issued a summons substantially in the above amended form. This summons was later answered, but neither party wished to tender any documents adduced in response to the amended summons. The AFP did not produce the file of the Queensland Police, or a copy of any statement made by the witness O’Neill. The applicant asserted that this meant that material evidence had been destroyed. However, there is no evidence of this, and no evidence that even if this were so, the respondent was a party to the destruction of evidence.
166. On the last occasion when the matter was before the Tribunal, 27 February 2004, the applicant applied to recall Dr DePasquale on the basis that if the Tribunal found that the sexual assaults did not occur, he wanted to ask Dr DePasquale what his opinion was having regard to the information in the military police report. This application was opposed by the respondent on the grounds that the applicant had had every opportunity to make that application on 14 January 2004 and had not done so and, in addition, any supplementary evidence from Dr DePasquale at that late stage would potentially further protract the conclusion of the hearing, as it might necessitate further evidence in rebuttal from the respondent. We refused the applicant’s application, for the reasons referred to by counsel for the respondent, and also because Dr DePasquale had previously provided his opinion as to the relationship between the applicant’s employment and the two psychiatric conditions now asserted by him on the assumption that the sexual assaults did not take place (see paragraph 133 above).
167. We also record that on 27 February 2004, the applicant for the first time submitted to us that the respondent should be requested to trace and call as a witness one Gunter Leibnau. The applicant said that he was a regimental police officer at Woodside at the time of one of the sexual assaults committed by the witness O’Neill, and that he (the applicant) had reported that particular assault to Leibnau after it had occurred. Also on 27 February 2004, the applicant applied for the first time to call one Dr Graham Norton to give evidence. He said that he was a doctor friend who had provided him support when he was raped on 3 March 1982, and had taken him to the Royal Adelaide Hospital in private to fix his “wounds”. The parties acknowledged that the Royal Adelaide Hospital files, which had been produced in response to a summons, did not include any reference to an attendance at the Hospital on the above date by the applicant. The applicant offered no explanation as to why he had not previously applied to call Dr Norton or to enlist the Tribunal’s support in requesting the respondent to locate Mr Leibnau. These applications were also opposed by counsel for the respondent, and we refused them. The respondent had cross-examined the applicant at length regarding the times when he had complained that he had been sexually assaulted and also the persons to whom he had made such complaints. If the applicant had wished to rely on evidence from either of the two witnesses concerned, he had had ample opportunity to refer to Dr Norton and to identify Mr Leibnau, and to request the respondent to trace Mr Leibnau.
168. In refusing the applications referred to in paragraphs 166 and 167 above, we were also mindful that the hearing of this matter was very protracted; that the applicant is not unexperienced in conducting litigation; that he had placed before us a voluminous quantity of documents and submissions (much of which is, on examination, of marginal relevance); that, in any event, the issue of whether the applicant had been sexually assaulted was not in itself and on our final analysis of all of the evidence before us determinative of our views on the relationship between the applicant’s army service and the development of the two conditions in issue; and it is in the public interest that there should be finality in litigation. Whilst this Tribunal is not governed by the rules of evidence, we consider that this public interest is relevant, and is a matter which this Tribunal can and should properly take into account in conducting a review of an administrative decision.
Determination
169. We referred in paragraph 2 above to the reviewable decision made by a delegate of the respondent. The delegate rejected a claim for any psychiatric condition, however described, arising out of the applicant’s employment by the Army between 1980 and 1982. However, the issue considered by us in these proceedings was the liability of the respondent for the two specific conditions which were the subject of the proceedings before us, namely paranoid psychosis and PTSD. Whilst we agree with the delegate’s decision that the applicant’s claim should be refused, we consider that our decision should be confined to these two specific conditions. We accordingly consider that the decision under review should be set aside, and in substitution for that decision we decide that the applicant is not entitled to compensation pursuant to the Act in respect of conditions of paranoid psychosis and post traumatic stress disorder.
I certify that the 169 preceding paragraphs are
a true copy of the reasons for the decision herein
of Deputy President D G Jarvis and Dr E T Eriksen, MemberSigned: .....................................................................................
N. Quirke AssociateDate/s of Hearing 1, 2, 3 and 4 September 2003, 24, 25 and 26 November 2003, 14 and 30 January 2004 and 13 and 27 February 2004.
Date of Decision 6 May 2004
Counsel for the Applicant In Person
Solicitor for the Applicant -
Counsel for the Respondent Mr S Millazzo
Solicitor for the Respondent Australian Government Solicitor
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