Summers v Repatriation Commission - [2013] AATA 439

[2013] AATA 439

Division	VETERANS' APPEALS DIVISION
File Numbers	2007/3957, 2009/2689
Re	Ronald John Summers
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member
Date	27 June 2013
Place	Melbourne

The Tribunal sets aside the decisions under review and substitutes a decision that post‑traumatic stress disorder suffered by Mr Summers is war-caused. In all other respects the Tribunal affirms the decisions under review.

...........................[sgd].............................................

G. D. Friedman, Senior Member

VETERANS' AFFAIRS – veterans’ entitlements – post-traumatic stress disorder – traumatic events – whether condition diagnosed and war-caused – alcohol dependence – whether war-caused – whether intermediate or special rate of pension applies

Veterans' Entitlements Act 1986 ss 9, 23(1), 23(2), 23(3), 24(1), 24(2), 120(1)

Benjamin v Repatriation Commission (2001) 70 ALD 622
Flentjar v Repatriation Commission (1997) 48 ALD 1
Giesen v Repatriation Commission [2005] FCA 846
Kaluza v Repatriation Commission [2010] FCA 1244
Leane v Repatriation Commission [2004] FCAFC 83
Lees v Repatriation Commission [2002] FCAFC 398
Re Summers and Repatriation Commission [2010] AATA 803
Repatriation Commission v Bawden [2012] FCAFC 176
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Gosewinckel [1999] FCA 1273
Repatriation Commission v Hill [2002] FCAFC 192
Summers v Repatriation Commission [2011] FCA 1451

Summers v Repatriation Commission [2012] FCAFC 104

REASONS FOR DECISION

G. D. Friedman, Senior Member

27 June 2013

Ronald Summers served in the Australian Army from 12 July 1967 to 11 July 1969. His service in Vietnam from 24 June 1968 to 14 October 1968, and in Australia from 14 October 1968 to 28 October 1968 (when he returned to Australia on emergency leave on compassionate grounds) constitutes operational service under the Veterans' Entitlements Act 1986 (the Act).
Mr Summers is currently receiving a disability pension at 100 per cent of the general rate. The Repatriation Commission has previously accepted that Mr Summers’ medical conditions of bilateral sensorineural hearing loss, chronic bronchitis and emphysema, and lumbar spondylosis are war-caused. The respondent previously rejected his claims that gout and cervical spondylosis are war-caused conditions.
On 10 December 2007 Mr Summers lodged a claim which was interpreted by the respondent as being for post-traumatic stress disorder (PTSD) and alcohol dependence to be accepted as war-caused. He is also seeking a special rate pension, which is a higher rate of pension, paid to a working-age recipient who is unable to work due to accepted disabilities alone. His applications were refused by the Repatriation Commission and the Veterans’ Review Board (VRB), and he sought review of those decisions by this Tribunal. On 20 October 2010 the Tribunal affirmed the decisions (Re Summers and Repatriation Commission [2010] AATA 803).
Mr Summers appealed the Tribunal’s decision to the Federal Court of Australia and on 8 November 2011 North J dismissed the appeal (Summers v Repatriation Commission [2011] FCA 1451). Mr Summers appealed the decision to the Full Federal Court of Australia and on 31 July 2012 the Full Court set aside the orders of North J and remitted the matter to the Tribunal for determination according to law (Summers v Repatriation Commission [2012] FCAFC 104).

ISSUES

There was no dispute that the preliminary or threshold diagnosis of alcohol dependence is made out. Therefore, the issues before the Tribunal are:

Does Mr Summers suffer from PTSD? If so, is the condition war-caused?
Is alcohol dependence war-caused?
Does Mr Summers qualify for intermediate rate pension or special rate pension?

DOES MR SUMMERS SUFFER FROM PTSD?

The Tribunal is required to determine to its reasonable satisfaction whether Mr Summers suffers from any particular injury or disease (Benjamin v Repatriation Commission (2001) 70 ALD 622).
In the Diagnostic and Statistical Manual of Mental Disorders (Fourth Ed, Text Revision) (DSM-IV-TR) a diagnosis of PTSD requires that:
A.        The person has been exposed to a traumatic event in which both of the following were present:
(1)        the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or threat to the physical integrity of self or others
(2)        the person’s response involved intense fear, helplessness, or horror…
Using this definition there must be both a traumatic event, which answers the description given, and a response of the required intensity. In Repatriation Commission v Bawden [2012] FCAFC 176 the Full Federal Court held that a finding that a traumatic event has occurred is indispensable to a diagnosis of PTSD.
Mr Summers told the Tribunal that after leaving school in Year 10 he worked in the retail industry before being called up for National Service. He explained that he was posted to the Ordnance Corps and when the opportunity to serve in Vietnam arose he volunteered. He said that he was assigned to the Other Ranks canteen at Vung Tau, where he was the sole person operating the bar. He said that there were several events during his three and a half months’ service in Vietnam that caused significant distress.
The first event occurred on his first night when, in accordance with the orders that had been given to him, he closed the canteen at 10 pm but was confronted by angry soldiers who threatened and abused him, and threw objects such as chairs and cans at the closed wooden shutter for about one hour (the canteen event), as apparently the bar had never closed at the designated time. Mr Summers told the Tribunal that he was uninjured but frightened, although the situation improved on the second and subsequent nights after he was advised to close the shutter but to continue serving drinks through a small door. He said that there were no further incidents of this nature. He did not report the disturbance until a later date.
Under cross-examination Mr Summers conceded that he told the VRB that he was not at risk of physical harm as long as the shutter remained closed, although he stated that he did not feel safe …not when things were being thrown at them [the shutters]. Just the noise and the language is enough to scare you. He also agreed that he made no mention of the canteen event in his claim dated 30 October 2007, in his statement dated 27 November 2007, or to psychiatrists Dr N Pomorin and Dr P Debenham.
Dr A Velakoulis, consultant psychiatrist, stated in reports dated 23 June 2008 and 20 February 2013 that he has been Mr Summers’ treating psychiatrist since January 2007. He said that the canteen event constituted …a threat of serious assault. Under cross-examination Dr Velakoulis stated that this conclusion was based on a history given by Mr Summers that the incident occurred …a few nights until I could stand it no more and relented to their hours. When Dr Velakoulis was informed at the hearing that the incident occurred only on the first night and that Mr Summers was instructed to continue serving alcohol after 10pm from the second night, he agreed that this presented a different picture.
In a report dated 27 November 2009 Mr W Barsley, an historian of Writeway Research Services Pty Ltd, stated that there was no official record of any disturbance when Mr Summers closed the bar at 10 pm, and that there was no evidence of a brawl when he did so. Mr Barsley said that there would only have been about six personnel present in the bar, and that the shutter was made of solid timber.
The second event concerned Mr Summers’ accommodation behind the canteen (the accommodation event). He said that he had to sleep by himself away from other personnel and guards at the main gate and he was scared because he was situated near the perimeter fence of the Australian base, which consisted of strands of wire. He was afraid that he would be killed by enemy forces, and stated that he did not sleep for the first few nights. Mr Summers said that the noise from distant American bombers heightened his fear, although he gradually became used to his environment, and no serious incidents occurred.
Under cross-examination Mr Summers agreed that sometimes after drinking he slept in the open and after about a month he believed that he was safe while at Vung Tau. Mr Barsley stated that the canteen complex at Vung Tau was secured after hours and was patrolled by the guard commander and roving armed personnel to protect the area from break-ins and burglary. He added that the main gate guard was adjacent to Mr Summers’ unit, and that his fears should have been minimal.
The third event occurred when Mr Summers received news while in Vietnam that his father had died (the father’s death event). He said that he had lived with his father before joining the army and they had a close relationship. Mr Summers explained that he was extremely upset because he believed he would not be able to reach Australia in time for the funeral. However, he managed to attend the funeral with the assistance of the Salvation Army.
The fourth event concerned stories Mr Summers heard while working at the canteen involving Australian casualties. These stories upset him greatly (the casualties event).
The fifth event concerned an alleged assault near Watson’s Bay, Sydney on 26 October 1968, when Mr Summers was found at the bottom of a cliff after an altercation with a group of sailors (the Watson’s Bay event).
Mr Summers stated that after his father’s funeral in Melbourne he travelled to Sydney to await transport to Vietnam to resume his normal duties. In a written statement dated 27 November 2007 Mr Summers said that he had been drinking in a hotel with a friend and was confronted by a group of sailors and became involved in a fight as they left the hotel to walk back to the army base near a cliff face. His friend ran off. He said that four or five sailors came at him. One picked up a branch and struck him in the head, fracturing his cheekbone. He said: I was bashed up and thrown down a cliff. In a further written statement dated 15 January 2013, Mr Summers said that he remembered the incident in about the third week of his hospitalisation and the memory distresses him enormously even now. What particularly distresses him is thinking about Australian service personnel acting this way against their own people by leaving him at the bottom of the cliff and not seeking medical assistance or informing the authorities.
In a written statement dated 24 January 2013, Mr Summers said that he was scared when the sailors…approached me and when I was hit with the branch of a tree with a diameter of 2 inches. He expressed amazement and shock when he was told of the circumstances of the incident, and said that he still thinks about the events a lot. He said:
When I think about the sailors leaving me at the bottom of the cliff I feel agitated, angry and wound up. I go through the events again over and over. I am very emotional and tears come and my legs start shaking. I hide in my “Men’s Cave” every day – my garage under the house. There I have my fridge, my television and my dog. I sit there in the darkness with the telly on.
Mr Summers stated that he was kept in hospital for several weeks and was unable to return to Vietnam. He said that he was in intensive care for four weeks and was then sent to Concord Rehabilitation Hospital for one week and three weeks of rehabilitation followed, after which he returned to Victoria.
Under cross-examination Mr Summers agreed that in an injury report dated 5 November 1968 he stated that he had no clear recollection of the Watson’s Bay event, but maintained that he did not remember making the statement as he was interviewed only 10 days after suffering serious injuries and was probably taking prescribed medication at the time. He also agreed that the investigating officer’s report dated 6 November 1968 referred to the injuries having occurred …as a result of a fall down a cliff face at South Head… following a brawl between Mr Summers and a sailor from HMAS Watson. The investigating officer noted:
After wrestling around on the ground they both fell over a cliff onto the rock ledge below. From the statements made by the five sailors interviewed it would appear that everybody was affected by alcohol.
Mr Summers stated that he was never interviewed by military authorities about the incident, and that no other person was found with him at the base of the cliff the next day. He was not aware of any charges or disciplinary action against the sailors, but believed that they threw him over the cliff and left him there. He agreed that at the Tribunal’s first hearing he stated: I can remember them coming at me and I can remember, sort of, a flash then that was it. I don't know whether I got king hit with a branch or… He also agreed that before the Watson’s Bay event he had been looking forward to returning to Vietnam, as he enjoyed his role operating the canteen and had settled in well at Vung Tau. His remaining commitment to National Service was served as a steward in the Officers’ Mess at Victoria Barracks, Melbourne.
Mr Summers denied that he had reconstructed the Watsons Bay event and maintained that he was thrown down the cliff after he was assaulted by the sailors. He said that originally he had been advised that the Watson’s Bay event did not occur during operational service and that this accounts for him not referring to the event at the earliest opportunity.
Mrs D Summers told the Tribunal that she has been married to Mr Summers since 1969. In a written statement dated 10 January 2013 she said that when she was told about the incident she drove to Sydney and at the hospital she observed him to be seriously injured and in great pain. He was in and out of consciousness for some time. She said she remained in Sydney for about two weeks while he was in intensive care.
Mrs Summers said that after the incident Mr Summers’ personality and behaviour changed and he was not the young man whom she had known before he went to Vietnam because he was always angry and irritable with her, his family and friends. She explained that since the incident Mr Summers will not visit hospitals and will not discuss the incident at any length, although she said that he told her that he remembers one of the sailors coming towards him with a piece of wood. She described his anger, impatience and rudeness, and said that he has nightmares and has difficulty sleeping. Recently, she and Mr Summers were on a cruise ship and, knowing that Watson’s Bay would be visible, Mr Summers became anxious and suffered from flashbacks. She said that the incident was, and continues to be, a major part of their lives and that he thinks about it every day.
The Tribunal had before it reports from a number of psychiatrists who have examined Mr Summers. In a report dated 5 March 2003 Dr Pomorin stated that Mr Summers did not experience any emotionally traumatic event during his period of service, and there was no history of re-experiencing symptoms, anxiety or depressive illness. Dr Pomorin concluded that the symptoms of irritability, nervous tension and sleep disturbance were caused by the effects of alcohol.

In reports dated 14 May 2008 and 17 February 2010 Dr N Strauss, consultant psychiatrist, stated that Mr Summers had given a history of nightmares at times about the Watson’s Bay event, and flashbacks about fearful experiences in Vietnam about which Mr Summers had been apprehensive. However, Dr Strauss concluded that Mr Summers did not have a diagnosable PTSD as there was insufficient reliable information to substantiate the claim of risk of death or serious injury. Dr Strauss noted that Mr Summers was unable to remember the alleged assault and the circumstances of being thrown over the cliff or falling because he was unconscious when found. Dr Strauss said that Mr Summers had claimed to dream about the incident despite having a vague recollection of the events and no memory of any actual assault. Dr Strauss concluded that there was no psychological impairment arising from the alleged assault.
In a further report dated 16 January 2013 Dr Strauss did not re-address the question of PTSD. In oral evidence he confirmed his opinion that Mr Summers did not suffer from PTSD because none of the events in question involved experiences that were sufficiently severe to meet the criteria for a diagnosis of PTSD. He said that Mr Summers was distressed and upset when told about the circumstances of being found at the bottom of the cliff, but that memory of the fear arising from a stressful event is required in order to show that PTSD has resulted from the event.
Under cross-examination Dr Strauss agreed that PTSD is subjective and is difficult to diagnose. He acknowledged that Mr Summers feels sad and emotional and is isolated, and noted that there has been no change in his condition despite considerable treatment. Dr Strauss concluded that the primary problem has been a misuse of alcohol. He said that a possible diagnosis of Mr Summers’ psychological condition may be depressive disorder which is largely associated with alcohol dependence. He did not believe that Mr Summers is suffering from an anxiety disorder.
In his report dated 23 June 2008 Dr Velakoulis diagnosed PTSD on the basis of the canteen event and the accommodation event, which he described as …potentially life‑threatening traumatic incidents (that were perceived as highly life threatening)… Dr Velakoulis made no mention of the father’s death event or the Watson’s Bay event, but he told the Tribunal that both events could have exacerbated Mr Summers’ alcohol and psychological conditions as an accumulation of trauma. Under cross-examination at the first hearing he agreed that his conclusions were based on the history given by Mr Summers and that, in respect of the Watson’s Bay event, conscious recall is normally required before a diagnosis of PTSD may be made. Dr Velakoulis said that he had taken a more detailed history of that event on 1 September 2010 which was after the first day of the Tribunal’s first hearing.
In his further report dated 20 February 2013, Dr Velakoulis stated that the psychological trauma related to the Watson’s Bay event fulfils the criteria for a diagnosis of PTSD. He said that Mr Summers’ recall of events prior to and after the Watson’s Bay event seems reasonably intact, although he appears to have suffered from a delirium in hospital as a result of his injuries, such that his recall during the early period of hospitalisation remains absent or patchy. Dr Velakoulis concluded that Mr Summers experienced several life threatening events and has re-experienced symptoms, psychological reactivity in the context of triggers, avoidance and numbing symptoms and a variety of hyperarousal symptoms including prominent irritability.
Dr Velakoulis told the Tribunal that Mr Summers described being fearful after the Watson’s Bay event and ruminating about being left alone at the bottom of the cliff, which caused significant stress that contributed to PTSD at a mild to moderate level. Under cross-examination he said that he disagreed with the proposition that recollection of an event is essential to ascribing emotions arising from that event. Dr Velakoulis said that issues such as anxious avoidance and alcohol-related cognitive impairment can result in seemingly inconsistent recall of traumatic and other life events. He said that if the Tribunal finds that PTSD is not made out, neither generalised anxiety disorder nor a major depressive disorder is likely to be an appropriate diagnosis.

In a report dated 6 March 2006 Dr Debenham stated that Mr Summers had been assessed and was suffering from service-related PTSD. He gave no reasons.
In respect of the Watson’s Bay event, the Tribunal takes into account that Mr Summers suffered life-threatening injuries and was not discovered until the day after his altercation with the sailors. The Tribunal accepts that the incident prevented Mr Summers from returning to Vietnam and had far-reaching consequences regarding his physical and psychological health. However, Mr Summers admitted that he was intoxicated at the time and had no clear memory of the incident itself. His recollection about the incident contained many inconsistencies, including varying accounts of whether a branch or stick was involved, whether he fell over the cliff or was pushed, and the circumstances of the altercation with the sailors. After the first hearing, Mr Summers made two written statements in which he clarified his reaction to the incident from the time he awoke in hospital the next day. In one statement he said that he remembered the incident during his third week in hospital.
Dr Velakoulis made no mention of the incident in his first report, and only clarified the matter with Mr Summers on 1 September 2010, which was after the matter had been raised as a significant stressor by Mr Summers on the first day of the Tribunal’s first hearing. Dr Debenham diagnosed PTSD but gave no reasons.
Although there are inconsistencies in the accounts of the Watson’s Bay event given by Mr Summers over the years since 1968, the Tribunal takes into account that he was affected by alcohol during and after the incident. Mr Summers suffered life-threatening injuries and was hospitalised for several weeks. The Tribunal accepts the evidence from Dr Velakoulis that alcohol-related cognitive impairment can result in seemingly inconsistent recall of traumatic events. Mr Summers has attempted to clarify the impact of the incident on his daily life, and in his statements dated 15 and 24 January 2013 he described his response to the event at the time and afterwards. His evidence was supported by Mrs Summers, whose evidence was frank and credible.
Having considered all the material, the Tribunal is satisfied that the additional evidence, provided at this hearing, overcomes the lack of reliable information identified by Dr Strauss. The Tribunal finds that Mr Summers was exposed to a traumatic event in which he experienced an event that involved actual or threatened death or serious injury, and that his response involved intense fear, helplessness or horror. Therefore, the Tribunal finds that Mr Summers satisfies the diagnostic criteria, and suffers from, PTSD.

IS PTSD WAR-CAUSED?

Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war‑caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. That requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
In the circumstances of this case, where Mr Summers has rendered operational service, the issue of whether the diagnosed conditions were caused by operational service is to be decided by applying the four-step process identified by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98:
1.        The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.        If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.        If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.        The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
In relation to the first step from Deledio, after considering evidence from Mr Summers, Mrs Summers and the psychiatrists about his PTSD and the Watson’s Bay event, the Tribunal determines that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr Summers. Therefore, he satisfies the first step.
In respect of the second step from Deledio, there is a Statement of Principles (SoP) in force, being SoP Nº 5 of 2008 concerning PTSD. Factor 6 in Instrument Nº 5 of 2008 provides:
(a) experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder;
…
(c)having a significant other who experiences a category 1A stressor within the one year before the clinical onset of posttraumatic stress disorder;

In paragraph 9 of the SoP:

"a category 1A stressor" means one or more of the following severe traumatic events:
(a)experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;

As there are SoPs in force, Mr Summers satisfies the second step.
In relation to the third step from Deledio the Tribunal takes into account that in Repatriation Commission v Hill [2002] FCAFC 192 the Federal Court held that the material must raise or point to the hypothesis that the condition was caused by operational service, which must fit the relevant SoP. In Repatriation Commission v Bey (1997) 79 FCR 364 the Federal Court held that a reasonable hypothesis involves more than a mere possibility, and is pointed to by the facts, even though not proved upon the balance of probabilities.
The Tribunal has considered all the material, including the evidence from Mr Summers, Mrs Summers and the psychiatrists about the Watson’s Bay event, and forms the opinion that the hypothesis raised is a reasonable one. Therefore, Mr Summers satisfies the third step.
In relation to the fourth step from Deledio, the Tribunal must decide whether it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Summers’ PTSD was due to his operational service within the meaning of the Act. It is at this stage that the Tribunal is called upon to make findings of fact. Mr Summers’ claim will succeed unless one or more of the facts necessary to support the hypothesis is disproved or the truth of a fact inconsistent with the hypothesis is proved.
There is no definition of the term clinical onset in the SoPs or in the Act. In Kaluza v Repatriation Commission [2010] FCA 1244 Jacobson J stated at [92] and [93]:
92. The meaning of the expression “clinical onset” was considered by the Full Court in Lees. The effect of what their Honours (Heerey, Moore and Kiefel JJ) said at [13] was that there is aclinical onsetof a disease, either:
when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or
when a finding is made on investigation which is indicative to a doctor that the disease is present.
93. The definition therefore emphasises the need for a determination of theclinical onsetby medical evidence. It is for the doctor to say when theclinical onsetoccurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment.
Dr Strauss referred to psychological symptoms experienced by Mr Summers in the years after his service in Vietnam. Dr Velakoulis stated that symptoms first occurred during 1968 and were likely to have achieved clinical significance in 1968-1969. After considering the medical and other evidence, the Tribunal finds that clinical onset of Mr Summers’ PTSD occurred after service in Vietnam.
For reasons given in relation to whether Mr Summers suffers from PTSD, the Tribunal accepts his evidence, supported by the medical evidence, that the Watson’s Bay event was a life-threatening event that constituted a category 1A stressor that was experienced by Mr Summers before the clinical onset of PTSD. Consequently, Mr Summers satisfies factor 6(a) of SoP Nº 5 of 2008 and satisfies the fourth step from Deledio, and the Tribunal finds that his condition of PTSD is war-caused.

IS ALCOHOL DEPENDENCE WAR-CAUSED?

Mr Summers told the Tribunal that before joining the army he was a light social drinker, but that when he was assigned to operate the canteen at Vung Tau he began to drink to excess, especially as he did not pay for drinks and had unlimited access to beer. Mr Summers also noted that the weather was hot and humid, and drinking helped him sleep. He said that he had a good job at the canteen, was his own boss and no-one bothered him. He could wake up at 11 am each day. Mr Summers stated that he could drink whenever he wanted to, and was soon consuming about 18 to 24 cans of beer each day. Mr Summers stated that he continued to drink heavily after leaving the army and for 20 years he consumed about 10 pots of beer each day at a hotel and then continued drinking at home. He conceded that his drinking caused him to become angry and abusive, which led to marriage problems. He said he has reduced his consumption to about six cans of beer each night.
Mrs Summers confirmed that Mr Summers was a light social drinker before joining the army and that when he returned to Australia in October 1968 for his father’s funeral he was a changed person. He arrived drunk and has been drinking since then. She stated that excessive alcohol consumption has caused enormous difficulties in their relationship and that alcohol was a factor in Mr Summers being unable to be located at the time of the birth of their second child in 1976. Mrs Summers stated that they also lost a furniture franchise in 1985 because of his alcohol dependence, despite Mr Summers’ success as a salesperson. Mrs Summers explained that Mr Summers had completed numerous alcohol abuse courses but his drinking still affects him and his family relationships.
In his reports, Dr Strauss stated that Mr Summers’ alcohol consumption increased greatly while he was in Vietnam because of the nature of his work in operating a bar seven days per week and associating with people who were drinking. In a further report dated 16 January 2013 Dr Strauss said that Mr Summers has developed a tolerance for excessive alcohol consumption and has an ongoing desire to drink, despite the associated family and other problems. Dr Velakoulis took a family history of heavy drinking by Mr Summers’ father and brother, and concluded that during his service in Vietnam Mr Summers’ alcohol consumption escalated significantly because of the threats he encountered (referring to the canteen event and the accommodation event) and his bar work role. Dr Pomorin stated that Mr Summers told him …I mainly drank over there because it was more than accessible.
In relation to the first step from Deledio, after considering evidence from Mr Summers, Mrs Summers and the psychiatrists about his alcohol dependence and operational service, the Tribunal determines that the material points to a hypothesis connecting the preliminary diagnosis of the condition with the circumstances of the particular service rendered by Mr Summers. Therefore, Mr Summers satisfies the first step.
In respect of the second step from Deledio, there is an SoP in force, being SoP Nº 1 of 2009 concerning Alcohol Dependence or Alcohol Abuse. In SoP Nº 1 of 2009 the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence with the circumstances of a person’s relevant service are stated in paragraph 6:
(a)having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or
…
(g)having a clinically significant psychiatric condition at the time of the clinical worsening of alcohol dependence or alcohol abuse; or
(h)experiencing a category 1A stressor within the five years before the clinical worsening of alcohol dependence or alcohol abuse; or
…

Paragraph 5 of the SoP states:

Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.

Paragraph 9 of the SoP states:

For the purposes of this Statement of Principles:
"a category 1A stressor" means one or more of the following severe traumatic events:
(a)experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;

"a clinically significant psychiatric condition" means any Axis 1 or Axis II disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, excluding alcohol-related disorders. The ongoing management may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;

Paragraph 6 of SoP Nº 17 of 2008 provides:

(a)having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or
…
(e)having a clinically significant psychiatric condition at the time of the clinical worsening of alcohol dependence or alcohol abuse; or
(f)experiencing a category 1A stressor within the five years before the clinical worsening of alcohol dependence or alcohol abuse; or
…

Paragraph 9 of the SoP states:

"a clinically significant psychiatric condition" means any Axis 1 or Axis II disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management. The ongoing management may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;

As there are SoPs in force Mr Summers satisfies the second step in Deledio. If he does not satisfy SoP No. 1 of 2009 the Tribunal is required to consider SoP Nº 17 of 2008 concerning Alcohol Dependence or Alcohol Abuse, which has now been revoked but was in force at the time Mr Summers made his claim (Repatriation Commission v Gorton (2001) 110 FCR 321).
In relation to the third step from Deledio, the Tribunal must assess whether the hypothesis fits the template of the SoPs and is reasonable. In Lees v Repatriation Commission [2002] FCAFC 398 the Full Court at [14] referred to RepatriationCommission v Gosewinckel [1999] FCA 1273 in which Weinberg J stated at [64] and [67]:
[64] The SoP requires the presence of a number of distinct symptoms, of which "clinically significant distress" and "restlessness or feeling keyed up or on edge" are only part. Unless the symptoms referred to in cl 4(a)(i), at least three of (a)(ii)(A) to (F), and (a)(v) are all present, and the case does not fit within (a)(iii) and (iv), (b) and (c), it cannot be said, consistently with the medical-scientific standard prescribed by the SoP, that generalised anxiety was present.
…
[67] The AAT cannot use the evidence of an expert to contradict or provide an alternative to the requirements of the SoP…
In paragraph 3(b) of SoP No.1 of 2009 alcohol dependence is defined as:
...
A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
(1)Tolerance, as defined by either of the following:
(a)a need for markedly increased amounts of the alcohol to achieve intoxication or desired effect; or
(b)markedly diminished effect with continued use of the same amount of the alcohol.
(2)Withdrawal, as manifested by either of the following:
(a)the characteristic withdrawal syndrome for the alcohol; or
(b)the same (or a closely related) alcohol is taken to relieve or avoid withdrawal symptoms.
(3)The alcohol is often taken in larger amounts or over a longer period than was intended.
(4)There is a persistent desire or unsuccessful efforts to cut down or control alcohol use.
(5)A great deal of time is spent in activities necessary to obtain the alcohol, use the alcohol or recover from its effects.
(6)Important social, occupational, or recreational activities are given up or reduced because of alcohol use.
(7)The alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the alcohol (e.g., continued drinking despite recognition that an ulcer was made worse by alcohol consumption).
Dr Strauss stated that Mr Summers’ alcohol dependence came about as a consequence of his time in Vietnam, when alcohol was freely available and he worked in the canteen, and that the condition developed as a result of his exposure to alcohol and the fact that everyone else was drinking. Dr Strauss stated that clinical onset of alcohol dependence occurred in Vietnam in 1968 before Mr Summers returned to Australia. He told the Tribunal that in making this assessment he used the relevant criteria in DSM-IV-TR such as consumption, tolerance and withdrawal, but that sometimes an overall assessment of the individual is preferable to a strict adherence to the classification of the factors as set out in DSM-IV-TR.
Dr Velakoulis told the Tribunal that clinical onset of alcohol dependence was in 1968 when Mr Summers was working in the canteen at Vung Tau. He referred to matters such as a tolerance for alcohol, high alcohol intake, genetic pre-disposition to alcohol dependence, easy access to alcohol, exposure to stressful events and a lack of supervision, together with attempts to self-medicate anxiety through alcohol. Dr Velakoulis told the Tribunal that Mr Summers satisfied the relevant criteria in DSM‑IV-TR during his brief period in Vietnam and before returning to Australia.

In Summers the Full Court stated at [66]:
… The fact that Mr Summers drank excessively in Vietnam is not, of itself, indicative of the clinical onset of alcohol dependence. As far as can be ascertained there was no material before the Tribunal which pointed to Mr Summers, whilst in Vietnam, having “clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period”, the following being the criteria for alcohol dependence specified in items (1) to (7) of cl 3 of SoP No 1 of 2009. He drank heavily over the period of three and a half months and thus the material pointed to tolerance as set out in item (1) and greater consumption than intended in item (3) but that seems to be all.
Therefore, in order to determine the requirements of the definition of alcohol dependence the Tribunal must apply the relevant SoP, rather than relying solely on the opinions of Dr Strauss and Dr Velakoulis, who applied the guidelines in DSM-IV-TR rather than adhering strictly to the diagnostic criteria.
In relation to the SoP diagnostic criteria, Mr Summers developed a tolerance for alcohol by 12 October 1968, so he satisfies factor (1). In respect of the period beginning on 12 October 1968, given a lack of any evidence that Mr Summers was experiencing withdrawal symptoms, Mr Summers did not experience withdrawal within a 12-month period and does not satisfy factor (2). In his evidence Mr Summers did not state that he often took alcohol in larger amounts or over a longer period than was intended, so he does not satisfy factor (3).
Mr Summers continued drinking heavily after his service in Vietnam and demonstrated no desire or unsuccessful efforts to reduce consumption, so he does not satisfy factor (4). There is no material to suggest that Mr Summers spent a great deal of time in activities necessary to obtain the alcohol, use the alcohol or recover from its effects, so he does not satisfy factor (5). There is evidence that Mr Summers left a social event in December 1968 for reasons that included alcohol consumption. There is also evidence from Mrs Summers that Mr Summers was not present at the birth of his second child in 1976 because of his drinking, and that the loss of a business franchise in 1985 was attributable to alcohol. However, on all the material, important social, occupational or recreational activities were not given up or reduced because of alcohol use within the same 12-month period, so Mr Summers does not satisfy factor (6). There is also no persuasive material to lead to a conclusion that Mr Summers continued his alcohol use despite knowledge of a persistent physical or psychological problem that was likely to have been caused or exacerbated by the alcohol, so he does not satisfy factor (7).
Therefore as three (or more) of the SoP diagnostic criteria for alcohol dependence were not met in the same 12-month period following Mr Summers’ service in Vietnam or the Watson’s Bay event, the hypothesis advanced by Mr Summers is not reasonable and does not fit the template of either SoP No. 1 of 2009 or SoP No. 17 of 2008. Therefore, Mr Summers does not satisfy the third step from Deledio and there is no necessity for the Tribunal to consider the fourth step. The Tribunal is satisfied beyond reasonable doubt that there is no causal connection between Mr Summers’ alcohol dependence and his operational service during the relevant period, and there is no sufficient ground for determining that Mr Summers’ alcohol dependence was war-caused.

DOES MR SUMMERS QUALIFY FOR INTERMEDIATE RATE PENSION OR SPECIAL RATE PENSION?

Sections 23 and 24 of the Act make provision for payment at rates higher than 100 per cent of the general rate of pension:
23 Intermediate rate of pension
(1)This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i)     the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)     the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c)the veteran is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free from that incapacity; and
…
(3)For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity:
(i)     if the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both;
(ii)     if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason;
…
24 Special rate of pension
(1)This section applies to a veteran if:
…
(a)either:
(i)     the degree of incapacity of the veteran from war‑caused injury or war‑caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)     the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war‑caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
…
(2)For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)     the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war‑caused disease, or both; or
(ii)     the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
…
Mr Summers is receiving 100 per cent disability pension so he satisfies the criteria in s 23(1)(a) and s 24(1)(a) of the Act, and there was no dispute that he satisfies s 23(1)(b) and s 24(1)(b) of the Act. In view of the Tribunal’s findings, that Mr Summers suffers from PTSD and that alcohol dependence is not war-caused, the conditions relevant to the question of eligibility for the special rate pension are the accepted conditions of bilateral sensorineural hearing loss, chronic bronchitis and emphysema, lumbar spondylosis and PTSD.
In relation to s 23(1)(c) and s 24(1)(c) of the Act, Mr Summers told the Tribunal that after his discharge from the army he returned to the retail industry. He worked for Myer for three years, then Capt’n Snooze for four years, before purchasing a franchise with the company. However, he lost the franchise in 1985 because his alcohol problems prevented him from managing the business properly. He was also having problems with lifting objects and with breathing. He returned to work for retail outlets, working with Stan Cash as a salesperson for five years, Billy Guyatts for three years and back to Stan Cash for two years. In 1995 he took up a sales position with Greensborough Bulk (trading as Betta Electrical) and remained there for 10 years. In a written statement dated 27 November 2007 Mr Summers said that he left on 16 November 2005 because he could not walk up the stairs. He also stated that his back was causing considerable pain and he became angry with staff and customers.
In a written statement dated 6 July 2010, Mr Summers clarified his employment history and said that he was made redundant by Betta Electrical even though he considered himself to be one of the better salespeople. He said that at the time he was not sleeping well, was over-indulging in alcohol, suffered from anxiety and felt angry at the world. He had an aggressive manner with colleagues and his supervisor. He stated his belief that if he had not been suffering from anxiety and alcohol dependence he would still be employed by Betta Electrical.
In oral evidence at the first hearing, Mr Summers reiterated that his breathing difficulties and alcohol problems, plus his anger towards other staff, were the major factors in preventing him from working. He agreed that he learnt after his redundancy that the company had been experiencing financial difficulties and had been placed in receivership in 2006, although he said that a less-qualified salesperson had been appointed to replace him three weeks after he left. In evidence on 5 March 2013, Mr Summers stated that prior to his redundancy he was having difficulty lifting objects because of his breathing problems. He said:
… I just couldn’t handle it in the end. I had to do it because no-one else would help you there anyway. So in the end I just – I was going to see my doctor about it at the end of the year or probably early in January after Christmas cos I didn’t want to let them down over Christmas and before that I knew I got the shaft.
Under cross-examination Mr Summers agreed that he told the VRB on 27 June 2007 that he had considered himself to be retired and that…I couldn’t hack going back to work to the sort of job that I wanted. I didn’t feel like, you know, retraining at that age. He reiterated in evidence that in 2005 he had considered himself retired…in a way, yes, yes. In relation to the redundancy, Mr Summers stated:
They said that they were getting rid of me because the business was bad, and because of the petrol situation. I think it was pretty bad then at the time. That was, I think, the main two reasons. So, “We've got to cut down and unfortunately you've got to go, Ron”. And I thought, oh well. It was, you know, unfortunate.
In relation to efforts to find alternative employment after his redundancy, Mr Summers agreed that he did not seek remunerative work between the date of his redundancy in 2005 and June 2007, and he had not registered with any employment agencies. He agreed that at the first hearing he told the Tribunal that in 2009 he started to look for work because he was bored at home. On 5 March 2013 he stated:
I probably didn’t want to be retired. I wanted, you know, to do something. So that I looked around, I – that's when I went into Retravision, a couple of stores really.
Mr Summers acknowledged that he rang a Harvey Norman store and that no-one wanted to employ him because of his age, physical disabilities and the economic situation in the retail industry.
Mrs Summers told the Tribunal that Mr Summers lost his franchise business in 1985 because of alcohol addiction. She said that he also had problems with his back and chest and difficulty in relating to other people. In oral evidence, she confirmed her belief that anxiety and alcohol were the major factors in his redundancy, although she said that he was shocked when he was told of the decision.
Dr R Horsley, occupational physician, stated in a report dated 20 December 2007 that Mr Summers ceased work because of a redundancy. She also said that he was experiencing aggressiveness as a result of alcohol abuse and PTSD. Dr Horsley concluded that Mr Summers would have great difficulty returning to the workforce because of his respiratory condition, his age and lack of computer skills, and that he does not have a realistic capacity to work.
Dr A Sillcock, occupational physician, stated in a report dated 28 November 2007 that Mr Summers’ accepted condition of chronic bronchitis and emphysema is the main reason that he is unable to work, and that he is not capable of working more than eight hours per week. She told the Tribunal that the sensorineural hearing loss does not affect his ability to work, although his back condition prevents him from lifting heavy objects.
Dr Strauss agreed that Mr Summers gave up working because of respiratory problems rather than alcohol abuse, but that from a psychiatric perspective he is capable of undertaking remunerative work, subject to any physical incapacity.
In his report dated 23 June 2008 Dr Velakoulis stated that Mr Summers would not be able to work for more than eight hours per week as a salesperson. He said:
It would also seem that in addition to his COPD and lumbar back problems, his PTSD and alcohol dependence were quite significant in the deterioration of his sales career leading to him eventually being offered a redundancy in 2005.
The factors affecting his work capability would appear to be his alcohol dependence (50%) and chronic PTSD (50%).
In an Employer’s Questionnaire completed by Mr Summers’ former employer on 31 March 2006, the employer stated that Mr Summers had ceased work on 16 November 2005 due to an involuntary redundancy.
In Flentjar v Repatriation Commission (1997) 48 ALD 1 the Full Federal Court described the test in s 24(1)(c) of the Act as:
(1)What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s 24(1)(c) of the Act?
(2)Is the veteran, by reason of war caused injury or war caused disease, or both, prevented from continuing to undertake that work?
(3)If the answer to question 2 is yes, is the war caused injury or war caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
(4)If the answer to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
In respect of question (1), the relevant remunerative work is retail salesperson.
In respect of question (2), there is no dispute that, on all the material, Mr Summers is prevented from continuing to undertake that work by reason of his war-caused conditions. So the answer to question (2) is yes.
In respect of question (3), the Tribunal accepts the evidence from Dr Horsley about the impact of aggressiveness resulting from Mr Summers’ alcohol abuse and his psychological condition, which is strongly supported by the evidence from Mr Summers and Mrs Summers. The Tribunal accepts the evidence from Mrs Summers that anxiety and alcohol were the major factors in the redundancy. This is consistent with Mr Summers’ written statement dated 6 July 2010 that if he had not been suffering from anxiety and alcohol dependence he would still be employed by Betta Electrical. This is also consistent with the evidence from Dr Velakoulis. Therefore, Mr Summers’ accepted conditions of chronic bronchitis and emphysema, lumbar spondylosis and PTSD have contributed to his incapacity.
However, the Tribunal finds that the non-accepted condition of alcohol dependence has contributed significantly to Mr Summers’ incapacity. In addition, the redundancy and Mr Summers’ decision to consider himself as retired were important elements in the cessation of employment and in preventing him from continuing to undertake that work, so there was no need to seek other employment for some time afterwards. Consequently, the answer to question (3) is no.
In view of its findings in respect of question (3) there is no necessity for the Tribunal to consider question (4).
In Giesen v Repatriation Commission [2005] FCA 846 Gray J stated at [21]:
… the view has been expressed in a number of authorities that s 24(2)(b) of the VE Act is an ameliorating provision, of which a veteran who has ceased to engage in remunerative work may avail himself or herself, if he or she can show that war-caused incapacity is the substantial cause of inability to obtain remunerative work, which the veteran has been genuinely seeking.
In Leane v Repatriation Commission [2004] FCAFC 83 the Full Federal Court held at [28]:
The primary judge interpreted the word 'seeking' to mean 'attempting to' or 'trying to'. This may be accepted. Such a meaning involves something more than a mere wish or hope. It requires that a claimant 'do' something. On the other hand the word 'genuinely' is used in the sense of 'sincerely' or 'honestly'. It involves an assessment of the subjective intention or purpose of a claimant. What is required is that the claimant honestly be trying to engage in remunerative work.
The Tribunal takes into account that in 2009 Mr Summers made an approach to Retravision and a telephone call to a Harvey Norman store. The Tribunal does not consider that these approaches, four years after the redundancy, constitute genuinely seeking to engage in remunerative employment during the assessment period. Further, the Tribunal accepts Mr Summers’ evidence that the stores did not want him because of his age and the financial state of the retail industry at that time. The Tribunal is reasonably satisfied that Mr Summers’ incapacity from his accepted disabilities was not the substantial cause of his inability to obtain remunerative work in which to engage. For these reasons, the Tribunal finds that Mr Summers does not satisfy s 23(3)(b) or s 24(2)(b) of the Act.
In relation to s 23(3)(a) and s 24(2)(a) of the Act, the Tribunal accepts Mr Summers’ evidence that he had intended to work through the busy 2005 Christmas period before ceasing work. Therefore, Mr Summers’ cessation of work in November 2005 through involuntary redundancy was not due to incapacity at that time, and he cannot be taken to have suffered a loss of salary or wages, or of earnings on his own account, by reason of his incapacity. For these reasons, the Tribunal finds that Mr Summers does not satisfy s 23(3)(a) or s 24(2)(a) of the Act.
Consequently, Mr Summers does not satisfy s 23(1)(c) or s 24(1)(c) of the Act and cannot satisfy s 23(1) or s 24(1) of the Act, so he is not eligible for disability pension at the intermediate rate or the special rate.

DECISION

The Tribunal sets aside the decisions under review and substitutes a decision that post‑traumatic stress disorder suffered by Mr Summers is war-caused. In all other respects, the Tribunal affirms the decisions under review.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member.

...........................[sgd].............................................
Associate
Dated 27 June 2013

Dates of hearing	5 and 6 March 2013
Date final submissions received	24 June 2013
Advocate for the Applicant	Mr D De Marchi
Solicitors for the Applicant	De Marchi & Associates
Counsel for the Respondent	Ms C Dowsett
Solicitors for the Respondent	Australian Government Solicitor