BOYS and REPATRIATION COMMISSION

[2011] AATA 389

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 389

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/4464

VETERANS' APPEALS DIVISION		)
Re		DALE BOYS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr K S Levy RFD, Senior Member

Date6 June 2011

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...................[Sgd]...........................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Benefits and entitlements – Pension – Eligible defence service with Australian Army – Motor vehicle accident resulting in frontal lobe dysfunction – Motor vehicle accident occurred during personal activity unrelated to official duties – Frontal lobe dysfunction not defence-caused – Decision under review affirmed

Veterans’ Entitlements Act 1986 (Cth) s 68, 70(5), 70(7), 120(4)

Briginshaw v Briginshaw (1938) 60 CLR 336

Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281

Holthouse v Repatriation Commission (1982) 1 RPD 287; [1982] FCA 113

Re Brown and Repatriation Commission (1990) 80 ALD 850

Re Penhall and Repatriation Commission (1992) 28 ALD 26

Repatriation Commission v Law (1980) 31 ALR 140

Repatriation Commission v Smith (1987) 15 FCR 327

Roncevich v Repatriation Commission (2005) 218 ALR 733; [2005] HCA 40

The Commonwealth v Wright (1956) 96 CLR 536

Woodward v Repatriation Commission [2006] AATA 1099

REASONS FOR DECISION

6 June 2011 Dr K S Levy RFD, Senior Member           

INTRODUCTION

1. Dale Boys served with the Australian Army in the Royal Australian Corps of Transport (RACT) from 6 June 1979 to 30 June 1986. It is accepted by the respondent that his service in that period constitutes eligible defence service under s 68 of the Veterans’ Entitlements Act 1986 (Cth) (the Act). He has previously applied for recognition of a number of conditions, including frontal lobe dysfunction. As a result, he seeks to be granted a pension on the grounds that his frontal lobe dysfunction is connected with his eligible defence service. His application to the Repatriation Commission in respect of this condition was dated 30 November 2009. The Commission rejected his application on 2 March 2010 (the original decision). He sought review by the Veterans’ Review Board, which affirmed the original decision on 22 September 2010.

2.      Mr Boys now appeals to this Tribunal for further review of the original decision to reject his application for pension.

ISSUE

3.      The issue for determination is:

Is the applicant’s condition of frontal lobe dysfunction connected to his eligible defence service in terms of the law prescribed under s 70(5) of the Act?

THE APPLICANT’S CASE

4.      Mr Boys was represented by his advocate Mr Horan. Mr Horan submitted on his behalf that:

(a)While Mr Boys was posted to the Land Warfare Centre at Canungra (LWC), he made a private arrangement with an Army colleague in relation to the repair of his car. Mr Boys and his colleague agreed to leave his car with his colleague on 22 October 1983. The colleague would arrange for repairs to the transmission of the car in Canungra village, while Mr Boys left early that morning from LWC on…