The Tribunal's reasons
23 The Tribunal's narrative of the respondent's history was substantially as set out above. The Tribunal noted the evidence of Mr Modystack, now a civilian, who virtually conceded raising his voice to the applicant and threatening to "hunt her like a dog". He did admit making the applicant remake her bed a number of times. He denied requiring her to run around holding blankets as she described. He did not remember her refusing to eat lunch. He denied grabbing her around the throat or threatening to shove her lunch down her throat. He denied that he had been trying to break her. The Tribunal noted the evidence of Mr Bulley, who had also left the Army. He denied the making of any improper comments to the applicant or discrimination or prejudice on the grounds of sex. He denied any impropriety in relation to the disciplinary charges of August 1986.
24 In dealing with the evidence as to the respondent's movements in 1988 after her arrival in Tasmania, the Tribunal said (in this and subsequent passages quoted from the Tribunal's reasons "the applicant" is of course a reference to the present respondent):
"19. In a statement she signed for her solicitor on 9 May 1995, the applicant said that she had that job [at Stepping Stones] from June to November 1988. In her oral evidence the applicant said she stayed with Mr Curtis for about six months and then worked for Stepping Stones for approximately 3 or 3 ˝ months. The statement of 9 May 1995 suggests that she may still have been living near Port Arthur some months after starting work at Stepping Stones. Mr Curtis gave evidence that he was living in the Hobart suburb of Glebe from April 1988 until September 1988 and that the applicant used to stay there on occasions. There is other evidence as to the activities of the applicant, and of Mr Curtis, in late 1988, but none of that other evidence is of any assistance in relation to the date the applicant left her employment with Stepping Stones. The most reliable evidence as to when she left is in the statement of 9 May 1995 which was submitted to Comcare by the applicant's solicitor. On the basis of that unchallenged and uncontradicted evidence, we find as a fact that the applicant left her employment with Stepping Stones in November 1988."
25 The Tribunal referred to the medical evidence. Dr Sale's view was that there was no indication of any emotional disturbance before the respondent entered the Army and that she was suffering from an atypical post-traumatic stress disorder which was of chronic condition. She was incapacitated for any work involving others. The impairment was permanent. Her difficulties were a consequence of her Army service, particularly the period of imprisonment at Kapooka and her service under WO Bulley.
26 The Tribunal noted Dr Pargiter as disagreeing with that diagnosis and expressing a belief that the respondent was suffering from a dysthymic disorder and an atypical personality disorder. The precipitating cause of her problems was her failure to achieve her ambition of being selected for officer training. At the hearing, he suggested the onset of her dysthymic stress disorder might have occurred prior to her Army service. Also, the failure for selection aggravated her pre-existing condition. She needed treatment, including anti-depressant medication, cognitive behaviour therapy and long term psychotherapy. Without rehabilitation she was fit only to work in socially isolated circumstances. He did not believe that there was any nexus between the treatment the respondent received and the Army and her psychiatric condition or symptoms. As already mentioned, the Tribunal observed that there was much common ground between Dr Sale and Dr Pargiter as to the respondent's present condition.
27 The Tribunal recorded the submission of counsel for Comcare that Dr Sale's evidence should be rejected because his conclusions were dependent on an untruthful or unreliable history given to him by the respondent and Mr Curtis. The Tribunal noted that it needed to make findings in relation to disputed factual issues. It commenced by an assessment of the respondent's credibility. The Tribunal thought the respondent's evidence had to be treated "with great caution, not just because she has psychiatric problems, but also because of her capacity for dishonesty". After referring to the evidence about the motor cycle theft and the Bruny Island land, the Tribunal said:
"Her evidence as to where she has lived since leaving the army, when, and with whom, was vague, confused and disjointed. As the hearing progressed, we learned of more and more addresses and more and more individuals with whom the applicant had shared accommodation. In relation to the alleged incident when the applicant fired a shot through a window, counsel for the respondent made a very forceful submission, pointing out that Mr Curtis was her landlord at the relevant premises, that he had heard nothing of any such incident and that that fact suggested that it had never occurred. Further, aspects of the applicant's evidence of events that occurred when she was in the army were contradicted by Miss Dodd, Mr Modystack, Mr Bulley and Mr Stephens."
28 Despite all of these matters the Tribunal nevertheless came to the conclusion that the respondent was "generally honest in the evidence that she gave". Her lie to the Tribunal about the motor cycle theft "seemed impulsive and opportunistic". If her claim for compensation was a fraudulent one, she would have probably made it at an earlier stage. Under cross-examination she seemed to be doing her best to recall dates, people and events, but seemed not to have a good memory in relation to such things. Dr Sale had observed that he had great difficulty extracting a history from her and that "one needed to ask the right questions in order to get any information from her".
29 The Tribunal then embarked on a detailed analysis of the evidence of Mr Modystack. The Tribunal reviewed his evidence and noted some discrepancies. Since much of Comcare's case on the present appeal has rested on an alleged lack of "transparency" in the Tribunal's reasons, it is useful to quote a substantial passage, which itself is only about a third of the space taken up with an analysis of Mr Modystack's evidence. The Tribunal said:
"Given the culture of strict discipline in the detention centre, (Mr Modystack's) lack of appropriate training, his inexperience with female prisoners and his assessment of the applicant's character, it would not be surprising for him to have behaved as alleged by the applicant. We were somewhat unimpressed by the way he gave his evidence in particular by his apparent keenness to have us believe that the accessibility of a padre made any misconduct on his part unthinkable. There was no suggestion that the applicant's psychiatric condition has ever caused her to suffer from delusions or to invent stories of persecution. We accept Mr Curtis' evidence as to her confidence and ability before she joined the army, and as to the state she was in after she left the army. All of these matters have led us to accept her evidence in preference to that of Mr Modystack as to his conduct towards her."
30 The Tribunal was less confident as to the accuracy of the respondent's memory in relation to the behaviour of WO Bulley, but having seen and heard Mr Bulley as a witness, the Tribunal thought it likely that he was tougher in his conduct towards the respondent than he was prepared to admit. However it was the effect his behaviour had, rather than its propriety or otherwise, that was important. The Tribunal found that his behaviour towards her was seen by her to be so harsh that it troubled her. The drunken incident at the swimming pool was a result of her feeling that he had been giving her too hard a time.
31 The Tribunal accepted Dr Sale's evidence as to the causation of the respondent's psychiatric disorder and rejected the evidence of Dr Pargiter that it was self-generating and/or the result of the respondent's reaction to her not being selected for officer training. Dr Pargiter seemed to have seized on a comment given by the respondent in relation to officer training and given her non-selection an importance that could not be justified by the evidence. There was no evidence of any strong ambition to become an officer, nor of her having been told at any particular time that she could not undertake officer training, nor of any significant disappointment or concern as a result of officer training being unavailable to her. The Tribunal thus rejected non-selection as a factor causing or aggravating her mental disorder. The only other explanations for her disorder were that it could have been self-generating or that it could have been caused by harsh treatment when she was in the Army. The Tribunal accepted the evidence of Dr Sale as to harsh treatment in the Army being the cause for a number of reasons. First, Dr Sale knew far more about the respondent, having seen her on numerous occasions as a treating doctor whereas Dr Pargiter saw her only once. Secondly, Dr Pargiter's views as to the degree of the respondent's incapacity was more optimistic than his recommendations for treatment would suggest. He was, in the Tribunal's view, too ready to treat the respondent's political activism in her youth as evidence of a disturbed personality. The Tribunal thought that Dr Pargiter made a mistake in accepting without question certain comments as to the respondent's personality in a "so-called psychological report" of 7 March 1985 written by an unknown author of unknown qualifications in the Army shortly after the respondent assaulted Recruit Dodd. The Tribunal attached some significance to the fact that another psychiatrist, Dr Woo, agreed with Dr Sale's diagnosis. Dr Woo had seen the respondent as part of an assessment following her burglary charges.
32 The respondent's psychiatric symptoms as observed by Dr Pargiter included depression, dysfunctional relationships, social isolation, an explosive temper, insomnia with morbid dreams, anergia, a tendency to easily become agitated, anxiety and a need for reclusiveness. As well there was a flattened affect, something conspicuous both to Dr Sale and the Tribunal. The challenge to Dr Sale's diagnosis on the basis of one essential criterion being absent, namely experiencing events involving actual or threatened death or serious injury, the Tribunal thought no more than a question of labelling. If the respondent was incapacitated as a result of the psychiatric condition with the requisite connection to her employment as a soldier, the appropriate name for her condition was immaterial. However, the Tribunal accepted Dr Sale's evidence to the effect that her condition was an atypical post-traumatic stress disorder. The Tribunal also accepted Dr Sale's evidence to the effect that the respondent's experiences under military detention at Kapooka caused her to feel under threat to such an extent that his diagnosis was appropriate.
33 The Tribunal said it was reasonably satisfied on the basis of the evidence of the respondent, Dr Sale and Dr Woo that the respondent was incapacitated for work, except in jobs where she does not have to deal with other people, as a result of the treatment that she received in the Army from Cpl Modystack and, to a lesser extent, WO Bulley. The Tribunal found that her psychiatric condition first had an impact on her ability to work when she resigned from Stepping Stones in November 1998. The Tribunal accepted her evidence that she resigned because she was not coping and was more confused than those she was meant to help. This was consistent with Dr Sale's evidence that by his best estimate the time when the respondent first had a condition that required treatment was sometime during 1988 when she started living under rather frugal circumstances on the Tasman Peninsula. This was at a stage prior to her obtaining work with Stepping Stones.
34 The Tribunal then quoted the relevant legislation and found that the respondent's atypical post-traumatic stress disorder was a mental ailment, disease or morbid condition and therefore within the definition of "disease" in the 1971 Act. She suffered a partial incapacity for work as a result of that condition at the time she resigned from Stepping Stones in November 1988. As her employment by the Commonwealth was a contributing factor to the contraction of her condition, it followed that her condition constituted an "injury" within the meaning of the 1971 Act and compensation would have been payable under that Act in respect of her incapacity for work from the time she left Stepping Stones. Therefore, by virtue of s 124(1A) of the 1988 Act she was entitled to compensation under that Act. It was therefore not necessary to consider the exclusion in relation to reasonable disciplinary action as that did not form part of the definition of "injury" in the 1971 Act.
35 The Tribunal then remitted the matter with the directions already referred to at the outset of these reasons.
36 As to costs, s 67(9) of the 1988 Act provides:
"Where the Administrative Appeals Tribunal gives a decision setting aside a reviewable decision and remitting the case for re-determination by the determining authority, the Tribunal shall, subject to this section, order that the costs of the proceedings before it incurred by the claimant shall be paid by the responsible authority."
37 A general practice direction issued by Matthews J as President of the Tribunal on 18 May 1998 directed that costs payable under, inter alia, s 67(9) should include witnesses expenses at the prescribed rate, all reasonable and proper disbursements, and 75 per cent of all professional costs, including counsel fees, which would be allowable under the Federal Court scale.
38 Counsel for Comcare submitted that in various respects the respondent and/or her counsel had wasted time during the hearing and that as a result Comcare's legal representatives were caused to waste their time. Counsel in particular referred to adjournments for the purpose of the respondent seeking legal advice and to adjournments for the purpose of her counsel having discussions with witnesses.
39 In a ruling given on 16 March 2000 the Tribunal noted it was clear from the wording of the 1988 Act that the policy of Parliament was that costs orders were not to be made in favour of respondents. For a reduction to be made in the percentage of Federal Court costs on such grounds would be to compensate the respondent for costs incurred by it and that would be contrary to the will of Parliament. After referring to the circumstances of Major General Dunne's evidence, the Tribunal made a finding that any delay would not have any impact on the quantum of the respondent's party and party costs. The Tribunal rejected the Comcare submission and ordered that the respondent's costs be taxed by the District Registrar in accordance with the practice direction.