The above comments indicate an ongoing history of conflict with authority, which suggests that the Applicant was not psychologically suited for the demands of military service and its inherent discipline.

After completing their storeman training, the Applicant was posted to 2 Training Group, Ingleburn. It is argued that posting the Applicant, an inexperienced storeman, to a Reserve unit was inappropriate for the reasons outlined in the following paragraphs.

The role of 2 Training Group was principally to train Army Reserve officers and soldiers in general and specialist skills. This meant the unit was organised into semi-independent Training Wings that taught specific skills and courses. The unit operated with a small cadre of full-time regular personnel. Reserve staff and students attended training principally on weekends and for two-week blocks. As a result, the Applicant would have been required to be on duty on weekends, evenings and during the week to receive and issue stores and equipment.

Due to its role, 2 Training Group's organisation and day-to-day operations differed from the organised structure and operation of larger regular units, where daily routines of physical training, parades, and structured work groups were the norm. The chain of command was clear, and junior soldiers were supervised and mentored in their duties. In the Applicant's case, due to 2 Training Group's small regular Army cadre, a more structured chain of command and supervision of duties was lacking for the Applicant, a storeman, on their initial posting after trade training.

Despite the marginal performance of their military duties, disciplinary issues, and well documented domestic issues at 2 Training Group, the applicants were posted to another small logistic unit, 232 Supply Company, in Maroubra, approximately 36 km from Holsworthy. The transfer took place despite the applicant's wife's advanced pregnancy carrying twins (T14 p. 128).

The Applicant's service records note that Defence housing was unavailable at Randwick, necessitating an approximately 72 km daily commute to and from work. Given the applicant's wife's difficult pregnancy, this was an avoidable and unnecessary stressor for the Applicant and their family. As noted at T14 p. 123, the Applicant travelled the 72km to and from work by motorcycle.

232 Supply Company was a small specialist logistic unit that held and supplied medical and dental drugs and equipment to the Army. It was manned by specialist personnel. Again, given the size and role of this unit, the applicant did not receive the structured discipline, mentoring, and supervision they needed to address the administrative warning they were placed on at 2 Training Group.

It is an agreed fact that the Applicant was diagnosed with a psychiatric condition, an "inadequate personality anxiety state" during service in August 1977 (T14 pg. 139).

The Applicant's service medical records suggest that no medical treatment was offered or given apart from a diagnosis and recommendation of administrative discharge.

As a result, the Applicant was administratively discharged from the Army on 10 November 1977 and contends that their psychiatric conditions were not treated or properly explained at discharge.

It is contended that the Army's duty of care to the Applicants during their service was inadequate because they were posted to units where the necessary levels of supervision and discipline for new soldiers were not provided.

Is the Applicant's current psychiatric diagnosis a result of their Army service?

It is an agreed fact that the Applicant was diagnosed with a psychiatric condition of "inadequate personality anxiety state" during service T14 pg.139.

It is acknowledged that on 15 September 2014, the Applicant was involved in a motor vehicle accident, which was the subject of an insurance claim and assessment by several Psychiatrists and Psychologists. All of which reported that the Applicant displayed symptoms of depressive conditions attributable to the motor vehicle accident (Respondent SFIC para. 40 - 46).

In December 2020, the Applicant's treating GP noted a nexus between their mental health and aspects of their Army service.

In a report dated 26 October 2022 (T9 pg. 71), Dr Gavilan made a diagnosis of "Major Depressive disorder (MDD) with severe anxious distress" that he attributed to the Applicant's Army service.

In a report dated 3 May 2023, Dr Leah Simpson (Clinical Psychologist) noted that the Applicant had a major depressive disorder.

In a report dated 5 July 2023 (T2.1), Dr Penzhorn, the Applicant's treating Psychiatrist since 2022, made a diagnosis of PTSD and symptoms of major depressive disorder and wondered, in terms of longitudinal background, whether the Applicant may also have ADHD.

The report by Dr Penzhorn provides the first detailed clinical history of the Applicant's mental health during and after service and is consistent with the Applicant's statement.

On 14 March 2024, Dr Wasim Shaik (Psychiatrist), an Independent Medical Examiner (IME) retained by the Respondent, provided the first of two reports on the Applicant. In response to the Tribunal on this report, the Applicant's response to the initial report was that the report was:

(a) Not based on any clinical examination of the Applicant or detailed consideration of the Applicant's Army service.

(b) The report was a file review focused on the 15 September 2014 motor vehicle accident as the significant contributing factor to the Applicant's mental health diagnosis.

On 15 July 2024, Dr Penzhorn, the Applicant's treating clinician, provided a supplementary report that confirmed a diagnosis of PTSD contributed to by the Applicant's Army service.

In a supplementary report dated 12 September 2024, Dr Shaik commented on Dr Penzhorn's 15 July 2024 report rejecting a PTSD diagnosis. A position that the Respondent has adopted. Despite this position, Dr Shaik and, by extension, the Respondent conceded that the Applicant:

"...would have developed temporary psychological distress as a result of his ill experiences whilst in the service and it may from time to time have led to emotional distress when experiencing recall of those events..."

Dr Shaikh says he had no doubt the Applicant would have developed temporary psychological distress as a result of his ill-experiences whilst in the service (Respondent SFIC para. 71 and 71).

The applicant agrees with the Respondent's acceptance that they suffer from an "ailment" for the purpose of s4(1) of the DRCA (Respondent SFCI para. 85).

The issue is what ailment the Applicant suffers from, is it:

(a) Major Depressive Disorder with Severe Anxious Distress, the contemporary diagnosis of the 1977 diagnosis of inadequate personality and anxiety state. (T pg. 105); or

(b) Adjustment Disorder with Depressed Mood, the Respondent's preferred diagnosis; or

(c) The Applicant's treating Psychiatrist's diagnosis of post-traumatic stress disorder (PTSD).

What "ailment" does the Applicant suffer from?

The Applicant has been under the psychiatric care of Dr Penzhorn since at least 2022. It is argued that Dr Penzhorn's diagnosis and medical opinion should be preferred to Dr Shaik, who has not clinically examined the Applicant or recorded a clinical history around the Applicant's Army service.

Booth v MRCC (2022 AATA 4183) at para. 149 provided persuasive advice on IME opinions versus treating specialist opinions:

"A treating practitioner will often have a relationship of trust and confidence with a patient and is able to form an opinion and diagnosis of the patient over time. [and] may result in more fulsome disclosures being made by the patient and may allow for the treating practitioner to form a more accurate picture of the patient because they have the advantage of seeing the patient on many occasions over a lengthy period."

The Applicant contends that they suffer from PTSD, as diagnosed by their treating psychiatrist, and this condition was caused or significantly contributed to multiple adverse events during their Army service that included:

(a) The Applicant's suitability for Army service was questionable.

(b) The Army's Duty of Care to the Applicant during their service was inadequate, in particular, the posting to 232 Supply Company immediately following the postnatal death of his twin children.

(c) The Applicant was suffering from a diagnosed but untreated psychiatric condition when discharged from the Army.

When did the Applicant first seek treatment for their "ailment"?

It is argued that the Applicant first sought treatment for a mental health condition on or about 4 August 1977 when they were admitted to 2 Military Hospital and subsequently diagnosed with inadequate personality and anxiety state on 19 August 1977.

It is further argued that the Applicant was not treated for the condition at the time of diagnosis and was administratively discharged without explanation of their psychiatric condition.

As to reasons why the Applicant did not seek medical treatment or compensation on discharge from the Army.

(a) The Applicant was unaware they had a mental condition when discharged from the Army.

(b) The Applicant was unaware that compensation for disease and injury due to their Army service existed.

(c) In the years post-service, the Applicant describes working excessive hours in a variety of positions as a method of suppressing the psychiatric symptoms from his Defence Service.

(d) As Dr Penzhorn explains (Respondent SFCI para. 58).

"The Applicant has operated a strategy of active and aggressive suppression of symptoms of PTSD since that time." There has been profound avoidance behaviour and very few social connections outside the family. Since discharge, the Applicant has worked as a boilermaker, long-distance truck driver and digger operator. He has had a lack of social contact and focus on work to displace his PTSD symptoms."

The Applicant contends that their "ailment" was contributed to, to a significant degree, by their military service and is a disease under s5B and is, therefore, an injury under s5A of the DRCA.

1. At the hearing, Mr Gallagher further contended that the Tribunal should apply the Repatriation Medical Authority's statement of principles for:

(a) PTSD - citing the factor of experiencing the traumatic death of a significant other within the two years before the clinical onset of PTSD.

(b) Depressive Disorder - citing the factors of experiencing the death of a family member or close friend two years before the clinical onset of depressive disorder and experiencing a category 2 stressor (disharmony in the workplace) within 6 months of the clinical onset of depressive disorder.

(c) Anxiety Disorder - citing the factors of experiencing the death of a family member or close friend two years before the clinical onset of general anxiety disorder and experiencing a category 2 stressor (disharmony in the workplace) within 6 months of the clinical onset of general anxiety disorder.

(a) Mr Satora suffers from an ailment, namely 'adjustment disorder with depressed mood'. > > (b) Mr Satora did not present with symptoms of a mental health disorder until 6 April 2021. > > (c) Dr Penzhorn's diagnosis of PTSD should not be accepted and Dr Shaikh's evidence should be preferred. > > (d) If Mr Satora suffers from PTSD, it is related to the death of his twins in 1977 but was not caused by his military service. > > (e) Mr Satora,

was involved in a motor vehicle accident in September 2014, unrelated to his military service. Following this motor vehicle accident the Applicant suffered a pathological change in his mental state. Following this event he suffered symptoms including: nightmares, memory loss, poor attention, erratic sleep and insomnia, flashbacks, episodes of tearfulness, inability to cope with stressors, increased negativity, decreased happiness, increased withdrawal and emotional symptoms, giving up easily and feeling defeated and tired. He experienced a reported loss of time and memory issues, variable mood, social withdrawal and suicidal thoughts.

(f) Mr Satora did not suffer from the effects of a recognisable psychiatric condition prior to the motor vehicle accident.

(g) Mr Satora,

suffered an Adjustment Disorder with Depressed Mood as a result of his 2014 motor vehicle accident and his psychiatric symptoms resurfaced again following unsuccessful knee surgery (unrelated to his Service) and in the context of his facing retirement and financial difficulties in or around 2020.

(h) Mr Satora identifies a number of hardships experienced in or around 2020 that contributed to his mental health.

(a) Cited Beezley v Repatriation Commission [2015] FCAFC 165 to support the contention that if an applicant does not provide evidence sufficient to meet the statutory requirement that it is unlikely that the Tribunal will exercise in their favour.

(b) Cited Rodriguez v Telstra Corporation [2002] FCA 30 to support the contention that, whilst the Tribunal is not bound by the rules of evidence, it must make findings of fact on the balance of probabilities based on probative evidence.

(c) Contended that the Tribunal should exercise caution in weighing the evidence of Mr Satora given the passage of time and the inconsistencies in his evidence over time, particularly in respect to the motor vehicle accident in 2014.

(d) Cited Dekker and Australian Postal Corporation [2018] AATA 682 for the contention that weight should be given to the contemporaneous documentary history when inconsistent with Mr Satora's evidence.

(e) Cited Comcare v Mooi [1996] FCA 1587 for the contention that a diagnosis under the 'DSM' would be an 'ailment' for the purposes of the DRCA.

(f) Contended that the Tribunal should prefer the opinion of Dr Shaikh over that of Dr Penzhorn as Dr Penzhorn has not justified the change of diagnosis from 'PTSD with suppressed symptoms' to 'generalised anxiety disorder' by reference to the DSM criteria.

(g) Cited De Tarle v Comcare [2022] FCA 175 for the contention that 'the eggshell skull principle' does not, in and of itself, establish the existence of 'a significant contribution' under the DRCA.

(h) Cited Wiegand v Comcare [2002] FCA 1464 and DXVN and Telstra Corporation Limited (Compensation) [2018] AATA 2152 for the contention that whilst perception of events may contribute to a mental disorder, that perception must not be a distortion of reality.

1. The events at the centre of Mr Satora's claims about his Army service occurred over 40 years ago. There is no evidence of Mr Satora recounting his negative Army experience to any medical practitioners in the period between the end of his service in 1977 to the present claim to the Commission in 2021, including those Mr Satora consulted in response to his motor vehicle accident in 2014.
2. Mr Gallagher contends that Mr Satora's Commanding Officer (CO) and his direct superior were 'hardened veterans' and Mr Satora's narrative of his experiences at 2 TRG GP and the Kapooka are 'credible and indicative of the Army culture in the late 1970s'.
3. Mr Gallagher cited Booth and Military Rehabilitation and Compensation Commission (Compensation) (Booth) [2022] AATA 4183 in support of his contention that Mr Satora's evidence as to his treatment at Kapooka and in the Army was credible. Booth was a case that was in respect to an applicant's experience as a recruit at Kapooka in 1992. Ultimately the decision turned on the Tribunal preferring the evidence of the applicant, who gave evidence at the hearing, and was subject to cross-examination about specific incidents that occurred during training.
4. The Tribunal accepts the contention of Mr Gallagher that the Army of the 1970s was likely less empathetic to the individual needs of its soldiers than in its contemporary form. The Tribunal is not reasonably satisfied that the experiences of the applicant in Booth can be used as a credible analogous experience for Mr Satora.
5. The Tribunal accepts that Mr Satora was relatively young and immature when he joined the Army and may have been a marginal candidate for service as contended by Mr Gallagher. However, it was not uncommon, especially in the 1970s, for soldiers to join the Army as young as 15 as apprentices, and the Tribunal finds no breach of duty in the manner which the Army recruited Mr Satora, because nothing is disclosed in the enlistment documents that would fairly put the Army on notice of pre-existing circumstances or mental health conditions that should have been taken into account.
6. However, there is evidence that the Army took Mr Satora's personal circumstances into account when deciding to post him to 2 TRG GP at Ingleburn in response to the posting preference submitted by Mr Satora. Even though that posting was likely not to be the most suitable for a soldier who had just completed his initial employment training, rather than a larger regular logistic unit with soldiers more likely to be around his age and experience.
7. Mr Satora's negative evidence in respect to the CO of 2 TRG GP is difficult to reconcile with the service records, where Mr Satora's performance is evaluated and decisions made consistent with the advice contained in the welfare report prepared during Mr Satora's detention after his period of absence without leave (AWOL), namely, to post Mr Satora away from his direct superior and a unit that did not have the same out of normal hours demands of 2 TRG GP as a Citizen Military Force training establishment that often required the regular staff to work weekends and evenings.
8. The main focus of Mr Satora's negative experience in the period of his service post Kapooka is with his 'direct' superior at 2 TRG GP. There is evidence in Mr Satora's service records of Mr Satora's complaints about his direct superior, but not to the details included in Mr Satora's statements before the Tribunal, particularly the threats of sexual violence towards Mr Satora's wife.
9. The documentation in Mr Satora's service records discloses that he felt confident to raise complaints about his perception of treatment in Army on at least 2 occasions and the complaints were treated seriously by Army and the results communicated to him.
10. The posting to Randwick in June 1977 is an example where Army considered his complaints about the treatment meted to him by his supervisor at 2 TRG GP and sought to move him to a location where he did not have to interact with that particular superior.
11. The Tribunal is reasonably satisfied that Mr Satora and his supervisor had a difficult interpersonal relationship that required Mr Satora to be posted to another unit to provide Mr Satora an opportunity to progress his service in the Army. That difficult relationship might have been one that could be categorised as bullying and harassment in a contemporary context.
12. The Tribunal is not reasonably satisfied that Mr Satora's direct supervisor made the threats of sexual violence, because Mr Satora showed the confidence to complain about his superior during his service and, in particular, if they had been reported to the welfare officer preparing the welfare report whilst he was in detention, it is inherently unlikely details of threats of that nature (that likely in the context of the chronology had occurred prior to his detention) would not have been included and actioned.
13. The Tribunal takes into account the traumatic and tragic death of Mr Satora's twins, along with the passage of the following 4 decades, in weighing the reliability of Mr Satora's memory of the events of his Army service.
14. The Tribunal is reasonably satisfied the best evidence of Mr Satora's service in the Army is the chronology of his service summarised above as a reliable and accurate chronology of facts, referable to contemporaneous documents from the detailed records of the Army.
15. The Tribunal is not reasonably satisfied that the following parts of Mr Satora's account of his service in the Army can be relied upon by the Tribunal because:

(a) Mr Satora's various accounts of being assaulted, knocked unconscious for 3 days and hospitalised whilst at Kapooka are contradicted by the contemporaneous medical records that show he was temporarily knocked unconscious whilst playing soccer and then held for observation in hospital overnight.

(b) There is no evidence before the Tribunal that supports Mr Satora's assertion that he was assaulted and knocked unconscious at any time during his service.

(c) Mr Satora's account of his period AWOL as a result of Army not providing him leave arising from the death of his twins is contradicted by the chronology contained in his service records because Mr Satora:

(i) Applied for discharge on 4 March 1977 citing financial reasons.

(ii) Went AWOL from 10 to 24 March 1977.

(iii) Was in military detention for 7 days from 25 March 1977.

(iv) Was confined to barracks for 7 days from 7 April 1977 for a military offence.

(v) States that the twins passed away on 31 May 1977.

(vi) Was given leave, including leave without pay, for the period 7 June to 26 July 1977.

(d) As stated above, the Tribunal is not reasonably satisfied that Mr Satora's supervisor made the threats of sexual violence.

(e) The Tribunal is satisfied that Mr Satora was posted to Randwick on 7 June 1977, but did not commence at his new posting locality until after 26 July 1977, which is inconsistent with Mr Satora's assertions about his treatment by Army in the period after the death of his twins.

1. The High Court in Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468 at [49] explained that the first task the Tribunal must undertake under the SRC Act is to consider the facts to determine if the employee is suffering a 'disease' or an 'injury'.
2. On the last day of the hearing, the day after Dr Penzhorn gave his oral evidence, Dr Penzhorn provided a letter that Mr Gallagher sought leave to tender to the Tribunal disclosing a supplementary opinion that Mr Satora suffered 'severe anxiety disorder' from his service. The link to service was described as 'aggravated ASD' and 'a psychiatric disorder characterised by severe anxiety, being either: PTSD...Generalised Anxiety Disorder'.
3. The Commission objected to the inclusion of the diagnosis of 'aggravated ASD' on the basis that it had prepared for the hearing in respect to the diagnosis of ASD but not that Mr Satora's service in the Army had aggravated a pre-existing condition of ASD, referring to the requirements in s 5B of the DRCA.
4. The Tribunal ruled that the diagnosis of aggravated ASD was a new claim and as it had not been agitated prior to the last day of hearing it was not procedurally fair to be considered as part of the present application for review, and that part of the letter was struck out.[62]
5. Mr Gallagher contended that the Tribunal should have regard to the Repatriation Medical Authority statement of principles in respect to the various diagnoses made by Dr Penzhorn. Those statement of principles apply to the determination of liability for veterans under the Veterans' Entitlement Act 1986 (Cth) and the Military Rehabilitation and Compensation Act 2004 (Cth).
6. Whilst Mr Satora is a veteran, consistent with the decision of Deputy President Muller in Vivian and Military Rehabilitation and Compensation Commission [2005] AATA 875, the Tribunal is satisfied that statement of principles have no evidentiary basis in Mr Satora's claim under the DRCA and gives them no consideration in determining the present application for review.
7. As to the preference the Tribunal should make between the opinion of Dr Shaikh as an 'independent medical expert' and Dr Penzhorn as a 'treating physician' as the respective parties press, the Tribunal notes the analysis of this tension in Perich and Secretary, Department of Social Services [2018] AATA 963, where Deputy President Boyle and Senior Member Evans stated at [44]:

Many reports are commissioned from assessors who do not treat the patient but are asked as part of the forensic process to provide an independent assessment of the patient. These are often called 'third party reports'. The advantage of such reports is that they are generally commissioned from practitioners who are familiar with the needs and expectations of the litigation process. In addition, they are unaffected by contaminants such as therapeutic bias or treatment advocacy. However, their limitation is that they are commissioned for forensic purposes and, often, comparatively little time is spent by the assessor with the patient, meaning that the assessment is either somewhat superficial or heavily dependent upon patient self-report.

1. The Tribunal is guided by the decision of Pollock v Wellington (1996) 15 WAR 370 (Pollock), as Anderson J, at 3, states:

Before an expert medical opinion can be of any value the facts upon which it is founded must be proved by admissible evidence and the opinion must actually be founded upon those facts: see Ramsey v Watson [1961] HCA 65; (1961) 108 CLR 642; Trade Practices Commission v Arnotts Ltd (1990) 21 FCR 324; Parric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 at 845-846.

As with any other evidence, expert opinion must be comprehensible and the conclusions reached must be rationally based. A court ought not to act on an opinion, the basis for which is not explained by the witness expressing it: see Steffen v Ruban (1966) 84 WN (Pt 1) (NSW) 264.

1. The guidance from Pollock is particularly persuasive in the present circumstances due to the importance of the factual findings made by the Tribunal that stand largely in contradiction to the history Mr Satora has provided of his experiences of his Army service to various doctors and their resulting opinions on diagnosis derived from Mr Satora's self-reporting.
2. Further, in 2014, Mr Satora was involved in a motor vehicle accident and in the process of his claim for compensation he saw numerous specialists:

(a) In the history provided by Mr Satora to Dr Storor[63], Mr Satora told Dr Storor that 'he had never previously suffered from depression, anxiety or any other psychiatric disorder. He had never seen a Psychologist, Psychiatrist or Counsellor before. He had never been diagnosed with any psychiatric disorder'. Dr Storor diagnosed Mr Satora as having 'adjustment disorder with depressed mood, mild to moderate severity' with no evidence of any pre-existing psychiatric condition.

(b) Dr Varghese, a psychiatrist, in an expert report dated 29 October 2015[64], recounts in the history 'there is decrease in interests such as riding his motor bike...he used to enjoy fishing but lost complete interest in this' and his diagnosis is major depression.

(c) Dr Todman, a neurologist, prepared a report dated 30 July 2015[65]. In the history, Dr Todman notes that Mr Satora 'used to enjoy hunting and shooting and has had to discontinue this since the accident.'

(d) Dr Journeaux, an orthopaedic surgeon, prepared a report dated 13 October 2015[66], for Mr Satora's claim from the motor vehicle accident where, in the history, he recounts 'the claimant normally enjoys hunting, motorbike riding, clubbing and dancing and general socialising and all these activities have been severely curtailed by the motor vehicle accident.'

(e) Dr Cronje, a psychiatrist, in a letter dated 15 December 2015[67], states Mr Satora, 'feels very struck at the moment and is very anxious about his future and financial affairs' and makes a diagnosis of major depressive disorder.

1. Mr Satora in providing his history to all the specialists he sees as part of his motor vehicle claim makes no mention of any negative experience in his Army service or any mental illnesses or symptoms arising from that service.
2. The evidence on diagnosis from the medical experts was:

(a) Dr Shaikh has consistently diagnosed Mr Satora with an adjustment disorder that was evident at the end of Mr Satora's Army service, that resolved at some point after he left the Army with no present diagnosis of a mental disorder.

(b) Dr Penzhorn diagnosed Mr Satora with

(i) Firstly, with PTSD.

(iii) Lastly, with PTSD with delayed presentation, ASD and generalised anxiety disorder.

1. The Tribunal is reasonably satisfied that the correct diagnosis of Mr Satora's condition is the disease 'adjustment disorder' during Mr Satora's Army service, but certainly by the time of his discharge in 1977, that resolved sometime shortly after his discharge, because:

(a) Dr Penzhorn's opinion that Mr Satora's perception of his service in the Army was not factual and that Mr Satora 'was not proceeding as a reasonable man', whilst maintaining that his various diagnoses of Mr Satora were caused by Mr Satora's Army service were irreconcilable.

(b) In forming his opinion of diagnosis, Dr Penzhorn did not alter or explain his opinion when a factual basis was put to him that the events as described by Mr Satora were not reliable, acting as an advocate of Mr Satora as his treating psychiatrist.

(c) The evidence supports the finding that Mr Satora did not display symptoms at any time consistent with Dr Penzhorn's diagnosis of PTSD or generalised anxiety disorder in the period after Mr Satora's discharge from the Army.

(d) Dr Penzhorn's diagnosis of ASD, even if correct, is a developmental condition, that has no connection .

(e) Dr Penzhorn conceded that the evidence of Mr Satora's social pursuits disclosed by him prior to the motor vehicle accident in 2014 were in contradiction to his understanding of Mr Satora's functioning after discharge from the Army, but did not make any concession as to his opinion.

(f) Prior to the motor vehicle accident in 2014 there is no evidence that Mr Satora was treated for any mental health issues and that event caused him to be diagnosed with 'major depressive disorder' or 'adjustment disorder with depressed mood' with no prior history of any psychiatric illness.

(g) Dr Shaikh's opinion of a diagnosis of Mr Satora as having an 'adjustment disorder' that has resolved is consistent with the factual findings of the Tribunal.

Was Mr Satora's 'adjustment disorder' contributed to, to a 'material' or 'significant' degree, by his employment so as to constitute a 'disease'?

1. The earliest Mr Satora sought treatment for a mental health condition arises on the evidence as a consequence of the motor vehicle accident in 2014. As such, pursuant to s 7(4) of the DRCA, the earliest possible date Mr Satora can be taken have sustained a mental health disease under the DRCA is 2014.
2. The definition of 'injury' under ss 5A(1) of the DRCA includes 'a disease suffered by an employee'. Subsection 5B(1) of the DRCA defines 'disease' to mean either 'an ailment suffered by an employee' or 'an aggravation of such an ailment', that was 'contributed to, to a significant degree, by the employee's employment by the Commonwealth'.
3. The application of the term 'contributed to a significant degree by the employee's employment by the Commonwealth or a licensee' in s 5B of the SRC Act, in the same terms as s 5B of the DRCA, was considered in Comcare v Power [2015] FCA 1502 by Katzmann J at [93]-[94]:[68]

There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of "significant" as "substantially more than material" makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be "more than trivial"; it had to be substantially more than trivial. The Tribunal did not recognise this, despite its reference to the definition. The error the Tribunal made is similar to the one made by the Tribunal in Sahu-Khan. In a valiant attempt to save the decision Ms Robinson drew attention to the fact that Dr Lewin had said "certainly more than trivial", but this was no more than an emphatic way of saying "more than trivial". It did not satisfy the statutory test and the Tribunal was mistaken in thinking otherwise.

Moreover, the current test of contribution also requires an evaluative exercise to be undertaken. That is apparent both from the words used in subs (1) of s 5B and also the matters to which subs (2) draws attention. The Tribunal did not engage with any of them. Indeed, it did not mention subs (2) at all. While the chapeau to the subsection states that those matters "may" (not "shall") be taken into account, a word which is generally permissive, properly construed it is at least arguable that in this context it is directory; in other words that "may" means "shall": see Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 222-223 (Earl Cairns LC); North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41 at [209] (Nettle and Gordon JJ). In the absence of argument on this question I refrain from expressing a concluded view. Nevertheless, there is nothing in the Tribunal's reasons to indicate that it carried out the kind of evaluative exercise required by the statute.

1. In deciding whether Mr Satora's was contributed to a 'significant degree' (substantially more than material) by his service with the Army, the DRCA expressly provides by reference to s 5B(2) matters for the Tribunal to consider including the duration of his service; the nature of, and particular tasks involved in his service; any predisposition of the member to; and activities of the member not related to his service; and any other matters affecting the member's health.
2. The list is non-exhaustive, and s 5B(2) specifically provides that the matters listed do 'not limit the matters that may be taken into account'.
3. The Tribunal is not reasonably satisfied that Mr Satora's Army service significantly contributed to Mr Satora's condition of 'adjustment disorder' because:

(a) The most significant cause of Mr Satora's condition of 'adjustment disorder' was the death of his twins and the end of his relationship with his then wife in 1977.

(b) Mr Satora's experiences in the Army did contribute to Mr Satora's feelings of anxiety and his 'adjustment disorder' but the factual findings of the Tribunal above are not supportive of a finding that they satisfied the requirements of s 5B of the DRCA.

(c) The Tribunal is reasonably satisfied because of the opinion of Dr Shaikh and Mr Satora's own evidence of his personal circumstances and social functioning in the period before the motor vehicle accident in 2014, that Mr Satora's condition of 'adjustment disorder' had resolved shortly after he discharged from the Army.

(d) Mr Satora's relatively short service in the Army in the context of his complex personal, financial and family circumstances during his service does not weigh significantly to contributing to his condition of 'adjustment disorder'.

1. The Tribunal affirms the decision under review.

Application for review, dated 21 July 2023 (T2)

Initial Determination, dated 30 November 2022 (T10)

Request for review, dated 1 December 2022 (T11)

Summonsed Records from Chevron After Hours Medical Centre - Patient Health Summary, dated 7 May 2024 (HB Vol 2 - 5.3 - Pages 284 - 285)

Summonsed Records from Toowoomba Medical and Dental - Complete Record, dated 9 November 2023 (HB Vol 3 - 5.11 - Pages 310 - 332)

Summonsed Records from Middle Ridge Family Practice - Summons to Produce Documents and Consultation Notes (HB Vol 3 - 5.8 - Pages 66 - 75)

Summonsed Records from Toowoomba Medical and Dental - Dr Andrew Whittaker's Determination, dated 7 October 2010 (HB Vol 3 - 5.11 - Page 338)

Summonsed Records from Dr Catharina Van De Hoef, Dr Philip M. Yantsch and Dr Andrew West, dated 6 December 2013, 15 January 2012 and 1 December 2011 - Toowoomba Medical and Dental (HB Vol 3 - 5.11 - Page 326)

Summonsed Records from Middle Ridge Family Practice - Consultation Notes (HB Vol 3 - 5.8 - Pages 66-91)

Summonsed Records from Renew Psychology - Case Notes (HB Vol 3 - 5.9 - Pages 218-222)

Summonsed Records of Allianz Australia - Dr David Storor's Medical Report on the Applicant, dated 31 July 2015 (HB Vol 2 - 5.1 - Pages 84-93)

Summonsed Records from Renew Psychology - Letter from Dr F T Varghese dated 29 October 2015 (HB Vol 3 - 5.9 - Pages 256)

Summonsed Records of Allianz Australia - Independent Medico-Legal Report from Dr Simon Journeaux, dated 13 October 2015 (HB Vol 2 - 5.1 - Pages 113 - 127)

Summonsed Records of Allianz Australia - Occupational Therapy Report from Zitek Consulting, dated 1 July 2016 (HB Vol 2 - 5.1 - Pages 158 - 176)

Summonsed Records from Toowoomba Medical and Dental - Letter from Dr Hardus Cronje, dated 15 December 2015 (HB Vol 3 - 5.11 - Page 346)

Summonsed Records from Renew Psychology - Letter from Dr Ashrath, dated 16 June 2017 (HB Vol 3 - 5.9 - Page 290)

Summonsed Records from Turbot Street Medical Centre - Assessment from Dr Sid O'Toole, dated 30 December 2020 (HB Vol 3 - 5.12 - Page 411-412)

Medical Report of Dr John Gavilan, dated 26 October 2022 (Psychiatrist) (T9)

Summonsed Records from Dr John Gavilan - Dr John Gavilan's Psychiatrist Statement, dated 6 April 2021 (HB Vol 2 - Pages 297-299)

Summonsed Records from Dr Leah Simpson - DVA Session 1, 4, 5, 6, 7 & Dr Vivian Cham's Reports, dated 3 May 2022 and 24 July 2022 (HB Vol 2 - Pages 313-315, 324-325, 326-329, 330-331, 353-355, 356-357)

Briefing letter to Dr Wasim Shaikh, dated 6 February 2024 (HB Vol 1 - 4.1)

Letter to Dr Shaikh, dated 6 February 2024 (HB Vol 1 - 4.2)

Medical Report of Dr Wasim Shaikh, dated 14 March 2024 (HB Vol 1 - 4.3)

Letter to Dr Shaikh, dated 9 September 2024 (HB Vol 1 - 4.5)

Supplementary Medical Report of Dr Wasim Shaikh, dated 12 September 2024 (HB Vol 1 - 4.6)

Applicant's statutory declaration, dated 3 April 2024 (HB Vol 1 2.3.1)

Applicant's statutory declaration, dated 6 December 2024 (HB Vol 1 2.3.2)

Applicant's statement, dated 30 October 2023 (HB Vol 1 3.1)

Statutory Declaration of Ms Debbie Satora (Applicant's Partner), dated 10 December 2022 (T11.1)

Statutory Declaration of Ms Lucy Okilicz (Applicant's Sister), dated 10 December 2022 (T11.2)

Medical Report of Dr Manfred Penzhorn, dated 5 July 2023 (T2.1)

Supplementary Report of Dr Manfred Penzhorn, Consultant Psychiatrist, dated 15 July 2024 (HB Vol 1 4.4)

Correspondence from Dr Manfred Penzhorn on the Applicant's capacity to give evidence

Diagnosis Letter from Dr Manfred Penzhorn on the Applicant (Paragraph 1 Struck Out), dated 4 April 2024

[2] On 14 October 2024, the Administrative Appeals Tribunal became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.

[36] This date was agreed by the parties.

[59] Applicant's Statement of Issues, Facts and Contentions dated 26 September 2023.

[60] Applicant's Statement of Issues, Facts and Contentions in reply, dated 9 December 2024.

[61] Respondent's statement of facts, issues and contentions dated 18 November 2024.

[68] [2015] FCA 1502 at [93]- [94].