Kennett and Repatriation Commission
[2005] AATA 1307
•23 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1307
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2005/86
VETERANS’ APPEALS DIVISION ) Re ROBERT JOHN KENNETT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member R W Dunne
Dr E T Eriksen (Member)Date23 December 2005
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
VETERANS’ ENTITLEMENTS – disability pension – rate of pension payable – entitlement to special rate – applicant’s war-caused injuries alone did not, during the assessment period, prevent him from continuing to undertake remunerative work – decision under review affirmed
Veterans’ Entitlements Act 1986 s 24
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Braund (1991) 23 ALD 591
Jackman v Repatriation Commission (unreported, Federal Court of Australia, Tamberlin J, No NG521 of 1996, 30 June 1997, BC9702806)
Re Banovich and Repatriation Commission (1986) 9 ALN N223
Doig v Repatriation Commission (unreported, Federal Court of Australia, Lindgren J, 18 December 1996)
Starcevich v Repatriation Commission (1987) 18 FCR 221
Repatriation Commission v Graham 39 AAR 426
Sheehy v Repatriation Commission (1996) 66 FCR 569
Re Bertram and Repatriation Commission (AAT 2783, 29 July 1986)
Chambers v Repatriation Commission (1995) 55 FCR 9
Repatriation Commission v Buckingham (unreported, Federal Court of Australia, Ryan J, 7 February 1996)
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Hendy (2002) 76 ALD 47REASONS FOR DECISION
23 December 2005 Senior Member R W Dunne
Dr E T Eriksen (Member)1. The applicant, Robert John Kennett, is a Vietnam veteran. He currently has accepted disabilities of sensorineural deafness with tinnitus, lumbo-sacral spondylosis with disc degeneration, anxiety disorder, tension headaches and post-traumatic stress disorder (“PTSD”). He also suffers from migraine, perivascular dermatitis, hypermetropia, lipoma left thigh and sleep apnoea, which are non-war-caused disabilities.
2. On 16 March 2004, Mr Kennett lodged a claim with the respondent (“Commission”) for an increase in pension to the special rate payable in respect of his accepted disabilities. Prior to this claim, the pension of the applicant was assessed at 100 percent of the general rate. A delegate of the Commission decided that the applicant’s disability pension would continue at 100 percent of the general rate. This decision was affirmed on review by the Veterans’ Review Board (“VRB”) in a reviewable decision dated 7 April 2004. The applicant has applied to this Tribunal for review of the Commission’s decision.
3. At the hearing before the Tribunal, the applicant was represented by Mr Christopher Swan, and the Commission was represented by Mr Adrian Crowe, an advocate employed by the Commission. Evidence was given by Mr Kennett. The documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“T Documents”) were tendered on behalf of the Commission. No other documents were tendered by the parties.
4. The applicant’s entitlement to the special rate of pension is to be determined under s 24 of the Veterans’ Entitlements Act 1986 (“VE Act”). It was common ground that the applicant satisfied the first criterion under s 24 (namely, a determination of entitlement to a pension at a rate higher than 70 percent of the general rate), and the second criterion (namely, an incapacity from war-caused conditions of such a nature as, of themselves alone, to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week). These criteria are contained in s 24(1)(a)(i) and s 24(1)(b) respectively of the VE Act.
issues for determination
5. The issue before the Tribunal is whether the applicant satisfies s 24(1)(c) of the VE Act, that is:
·whether he is, by reason of incapacity from his war-cased injuries alone, prevented from continuing to undertake remunerative work that he had been undertaking; and
·whether in consequence he is suffering a loss of wages or earnings on his own account which he would not be suffering if he were free of that incapacity.
It was common ground that the applicant had not sought to engage in remunerative work since ceasing work, and so the ameliorating provisions of s 24(2)(b) are not relevant.
legislation
6. Section 24(1)(c) and s 24(2)(a) of the VE Act relevantly provide as follows:
“24(1) This section applies to a veteran if:
…
(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; …”
If s 24(1) of the VE Act applies to the applicant, he will be entitled under s 24(4) to a pension at the special rate provided in that section.
background and evidence
7. According to his statement of facts and contentions, which is largely undisputed, the applicant was born in Port Lincoln on 15 April 1950. He worked as a farm labourer until he joined the Australian Army (“Army”) in 1970. He was trained as a rifleman and served in Vietnam from May 1971 until December 1971, when he was discharged. Upon his discharge, he commenced a brick-laying apprenticeship, which he completed, and worked for various brick-layers in the building industry in country South Australia. In 1982, while living at Berri and working as a brick-layer, he started experiencing back pains and headaches and was forced to give up that work. He attempted to engage in grape-picking and working at a packing shed. He lasted one day grape-picking, because of back pains and headaches, and was only able to work for 2 to 3 weeks in the packing shed, for the same reasons.
8. Mr Kennett frankly admitted that he had not engaged in any “commercial” work since 1982. When asked whether there were any other disabilities that had stopped him from working, he said that he had been suffering from joint pains, in his knees and elbows, but that physiotherapy had helped him to relieve the soreness in the last 2 years. He believed the aching in his knees had come from his back pains. He had received no treatment for his knees, where the soreness in them had been present for the last 10 to 15 years. He said the soreness in his knees had not been present in 1982 when he gave up brick-laying. He had also experienced some wrist problems, and had had surgery performed on his right index finger, which had been injured in an accident with an angle grinder. This had occurred 3 years ago and the surgery had repaired the injured finger. When examined further, Mr Kennett said that only his knees and elbows had caused him any problems. His wrist had only given him general pain, which did not last for very long.
9. When asked about surgery that had been performed on him since his Army service, he pointed to the operation on his right index finger, an operation on his nose and for Dupuytren’s contracture on his right hand, which had taken place some 5 years ago. Mr Kennett said that he had no problems with his hand and that the operation had only been cosmetic. He had undergone the surgery because his doctor had recommended it. He also said that he had suffered tendonitis in his elbows, some 3 or 4 years ago, which he had pointed out to his doctor. He said that, because of soreness in his left elbow, he had difficultly in lifting things with his left arm. He had no difficulty with his right elbow. His other joint pains had never stopped him working.
10. When asked about his work experience, he said that he had only ever been engaged in brick-laying and had not worked otherwise. He said that he would probably not go back to brick-laying. He also said that he would be looking for work if he did not have problems with headaches and back pains. In the last 23 years he had not tried to work. He had only tended to the garden, but after 10 minutes his headaches and back pains would return.
11. The applicant said that he had not tested out his knees and elbows through physical work. His headaches were not necessarily related to physical work – often, simply bending over, coughing, sneezing and recently yawning had caused his headaches to occur. When asked further about situations where headaches occurred, Mr Kennett said that stress made them worse. He said that, before this hearing, his headaches had become more painful.
12. Under cross-examination by Mr Crowe, the applicant said that he had made the following recent disability pension claims with the Commission:
12.1In May 1999, he had claimed an increased pension over the 80 percent of the general rate that he was then receiving. His claim was based on PTSD and sleep apnoea. He said that his advocate had made a mistake in claiming an increased pension, based on sleep apnoea. The claim for PTSD was accepted, the claim for sleep apnoea was refused, and the applicant’s disability pension was increased to 100 percent of the general rate, with effect from 24 February 1999.
12.2In 2002, he made a further claim for an increased disability pension. The application was unsuccessful and the applicant’s pension continued at 100 percent of the general rate.
12.3In January/February 2004, the applicant requested that an application for review that he had made to this Tribunal be withdrawn. The evidence is unclear as to which decision of the Commission the withdrawal related. It appears from the available evidence that the applicant withdrew his application to the Tribunal in February 2004, in order to obtain more medical evidence to enable a fresh application to be made to the Commission.
12.4In March 2004, he made a fresh application for an increased disability pension. The application was unsuccessful and his pension continued at 100 percent of the general rate. He applied to the VRB for review of the Commission’s decision. The VRB affirmed the decision under review and the applicant applied to this Tribunal for review in April 2005.
13. Although the evidence is unclear, it appears from the T Documents (exhibit R1, T94, page 352) that the applicant applied to the Commission on 26 November 2002 for an increased disability pension. The application was unsuccessful and his disability pension continued at 100 percent of the general rate. On 14 March 2003, he applied to the VRB for review of the Commission’s decision. It appears that the VRB affirmed the Commission’s decision, which may have provoked Mr Kennett’s application to this Tribunal that was withdrawn on 23 February 2004 (exhibit R1, T98, page 389). The transcript of the VRB proceedings, conducted on 10 July 2003, appears as exhibit R1, T96, pages 363-386.
14. In response to further questioning from Mr Crowe, Mr Kennett admitted that he had also undergone an arthroscopy on his right knee. His evidence was that he was in Mildura at the time, some 10 years ago, and the operation had been exploratory to ascertain the reason for his joint pains. The operation had not resolved his problems and only pool physiotherapy in the last 2 years had done this. In the period from 10 years ago to 2 years ago, he said he had experienced continual pain with his knees. However, the pains would not have prevented him from working.
15. Under further cross-examination by Mr Crowe regarding physical work, Mr Kennett said he had only engaged in light physical activities in the last 10 years. He would only engage in these activities when necessary, such as climbing a ladder to change a light bulb. He also mentioned walking approximately 100 metres to collect and retrieve firewood in a wheelbarrow to his back door. This would take approximately 10 minutes, in which time he would feel back pain and some headaches. He did not suffer any knee pains over this short distance. However, he acknowledged that the distance was not enough to test his knees. He could not remember when he last did anything to test his knees in any physical way.
16. Mr Kennett was then cross-examined about his involvement as care-taker at the Mildura Pistol Club. He would often have to walk distances in caretaking the Club grounds. When doing this, his knee was not affected, but he often suffered back pains and headaches. The Club grounds involved a large area, approximately 760 hectares, but he was not required to patrol the whole of this area. The Club was concerned about possible litigation if the public trespassed onto its grounds. He acknowledged that he performed a role for the Club and that there was a reason for him being there. However, being aware that he had a role with the Club, did not change his approach to dealing with his responsibilities. He said he lived in a motor home on the Club grounds. He used the shower and toilet in the Club premises on a daily basis. A lake was situated adjacent to the Club grounds and access was gained through a gate opposite the Club. Water was pumped from the lake to the Club. Mr Kennett’s responsibilities included arranging for the pumping of water to the Club from the lake.
17. Mr Kennett’s motor home was 360 metres from the entrance to the lake and arranging for the pumping of water would cause him back pains and headaches. He did not notice pain to his knees. However, in cross-examination, he admitted that there was enough pain to his knees for him to report it to his doctor. He said he took Panadeine Forte and other inflammatories for his back pain. He said there were some side effects from the medication, but he could not remember specifically what they were.
18. Mr Crowe referred the applicant to a medical report in November 1988 (exhibit R1, T60, page 210) and to the reference to a family history of migraines and other types of headache. The applicant acknowledged that he had had migraines in the past, but he had not experienced them for a number of years. Mr Crowe also referred the applicant to a medical report of Dr Gartley in April 2002 (exhibit R1, T87, page 334) and to his sleep apnoea, which required him to have daily short naps, 3 or 4 times a day. The applicant admitted that he found these naps were necessary from time to time.
19. Mr Crowe then referred the applicant to the transcript of the VRB hearing on 10 July 2003 (exhibit R1, T96, pages 363-386 referred to in paragraph 13 above). In cross-examination on the transcript (exhibit R1, T96, page 377), Mr Kennett acknowledged that he had been experiencing pain in all his joints (fingers, wrists, elbows and knees) and that these pains had been occurring for about 10 or 11 years and had been getting a little worse each year. However, he said these comments had been made in July 2003 when he was experiencing joint problems. Since then (from October 2003) he had been undergoing pool physiotherapy and the pain had improved. The applicant was also referred by Mr Crowe to the comment that he had trouble holding tools and that this had been the case for the last 2 or 3 years or longer (exhibit R1, T96, pages 378-379). When questioned on this, Mr Kennett said that he believed the problem with holding tools had now gone, but admitted that he could not be sure without testing his hands.
20. When asked further about his joint pains and driving (exhibit R1, T96, page 381), Mr Kennett said that there was pain, but this did not stop him from driving. He acknowledged, however, that with his joint pains he could have lost his licence, which would have been a problem for him. He said that his joints had ached until the time he commenced the pool physiotherapy.
21. Mr Kennett was questioned about the pool physiotherapy. He said that the exercise was to his neck and shoulder, once a week from October 2003. However, there was no exercise during the winter when, last year during the winter break, his problems returned. He said they had not been as bad as the winter before.
22. Mr Kennett was cross-examined further about his problem with holding tools. He said the problem had continued until the time of this hearing and that he could not have worked commercially at brick-laying because of the problem with his hands. The problem had not gone away, but came back in winter, although not the last winter. When asked whether the pain in his joints would stop him working 5 days a week, he said this had not been tested and he did not know if it would stop him working. When asked whether he had been undertaking treatment for his back pains recently, he said that he was involved in a program with an exercise machine at home, nearly every day.
consideration
23. In considering the application of s 24(1)(c) of the VE Act, we refer first to the very helpful analysis of Branson J, with whom the other members of the Full Court of the Federal Court agreed in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4.9. Her Honour said that a proper consideration of s 24(1)(c) required responses to the following 4 questions:
“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 answers 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 account that he would not be suffering if he were free of that incapacity?”
24. A determination of the responses to these questions entails an examination of the facts relevant to each question. Under s 120(4) of the VE Act, the Tribunal must decide these issues to its reasonable satisfaction, a standard which equates with proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327. Neither party has an onus of proof (s 124(6) of the VE Act), and the Tribunal must act according to substantial justice, and the substantial merits of the case, without regard to legal form and technicalities (s 119(1)(g)).
25. The time at which the assessment under s 24(1)(c) is to be made is not the date when the veteran gave up work; the veteran’s entitlement should be considered at the time of application to the primary decision-maker, and an assessment must be made of the rate of pension payable from time to time during the assessment period, being the period between the date when the application was lodged and the date when it was determined: ss19(5)(c) and 19(9) of the VE Act: Rehabilitation Commission v Braund (1991) 23 ALD 591; Jackman v Repatriation Commission (unreported, Federal Court of Australia, Tamberlin J, No NG521 of 1996, 30 June 1997, BC9702806).
26. With regard to the first question in Flentjar (supra), the reference to “remunerative work which the veteran was undertaking” is to be read as a reference to the type of work which the veteran had previously undertaken, and not to any particular job: Re Banovich and Repatriation Commission (1986) 9 ALN N223). Accordingly, the loss of a particular job for reasons unrelated to the war-caused condition, is immaterial: Doig v Repatriation Commission (unreported, Federal Court of Australia, Lindgren J, 18 December 1996).
27. The remunerative work does not have to be the last work undertaken by the veteran (unless the veteran is over 65 at the time of a claim or application): Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225 per Fox J. It is relevant to consider any “substantive” remunerative work that the veteran has undertaken in the past, but this may not necessarily include work that the veteran had undertaken in the far distant past, as this may not be a relevant consideration: Repatriation Commission v Graham 39 AAR 426. Finally, the remunerative work must be substantial remunerative work which the veteran has effectively performed: Starcevich v Repatriation Commission (supra) at 225; Sheehy v Repatriation Commission (1996) 66 FCR 569.
28. In the present matter, Mr Kennett ceased working as a brick-layer in 1982 and he frankly admitted that he had performed little work since then. His evidence was that he could not have worked commercially at brick-laying because of the problem with his hands. His position at the Mildura Pistol Club was the only work of any substance that he had performed since 1982, and this was in a “volunteer” care-taking capacity. On the evidence, the only “remuneration” he received was the occupation of a motor home on the Club grounds and the use of the Club shower and toilet facilities. In this regard, we refer to the analysis of the concept of remunerative work in Re Bertram and Repatriation Commission (AAT 2783, 29 July 1986), where Senior Member McMahon said:
"‘Remunerative work’ does not mean necessarily profitable employment or profitable undertakings. It is a term used to distinguish activities from private or domestic work or from voluntary non-profit activities. It means activities in which the aim is to make a profit, whether or not that aim is successful. Remunerative work is intended to recompense in money terms. It is the intention that gives to the work its distinctive character. It is work that one would not normally carry out, unless one at least hoped to be recompensed. It is the very antithesis of voluntary work, for example, carried out on behalf of a charity. It bears no relationship to the physical or mental difficulty of the work. The creation of a new garden at home can be demanding but could not be described as remunerative work. A genealogical research project can absorb much time and energy. If it is merely for the information of one’s family, it is not remunerative work."
29. We consider that, in the circumstances, Mr Kennett’s work as a brick-layer constituted the remunerative work for the purposes of s 24(1)(c).
30. The second question in Flentjar is whether the applicant, by reason of his war-caused conditions, is prevented from continuing to undertake the type of work which we have found is relevant. As mentioned above, the Commission has conceded that s 24(1)(b) is satisfied. This paragraph of s 24(1) requires an examination of the veteran’s capacity to undertake any remunerative work which the veteran is physically and mentally able to carry out; the test is not limited to the type of work previously undertaken or for which the veteran is qualified by training or experience: s 28 of the VE Act; Chambers v Repatriation Commission (1995) 55 FCR 9 at 19, per Moore and Sackville JJ. Further, the test requires an examination of all of the different kinds of work that a hypothetical person with the relevant skills and experience of the veteran might reasonably undertake: s 28(b) of the VE Act; Repatriation Commission v Buckingham (unreported, Federal Court of Australia, Ryan J, 7 February 1996).
31. The remunerative work referred to in s 24(1)(b) accordingly has a broad meaning, and the Commission’s concession that s 24(1)(b) has been satisfied therefore entails an acknowledgment of the very significant extent to which Mr Kennett’s war-caused conditions have interfered with his capacity to undertake the type of work which he had been previously undertaking. We are satisfied from the evidence before us that, by reason of his war-caused conditions (namely, his headaches and back pains), Mr Kennett has, at least since the date of his application for pension (namely, 16 March 2004), been prevented from continuing to undertake the type of remunerative work which he had previously undertaken.
32. The third question in Flentjar refers to the “alone” test in s 24(1)(c). On the authority of Cavell v Repatriation Commission (1988) 9 AAR 534, and the analysis of Burchett J’s judgment in that case in Forbes v Repatriation Commission (2000) 101 FCR 50 at paragraph 33, the word “alone” should not have substituted for it other words in the absence of ambiguity. The word “alone” as it appears in s 24(1)(c) requires a practical decision on whether the veteran’s loss of remunerative work is attributable to his or her service-related incapacities, and not to something else as well; and any factor having employment consequences which plays a part in the veteran’s inability to work or to obtain and hold remunerative employment is sufficient to displace the veteran’s case for pension at the special rate.
33. In Cavell (supra), Burchett J said further, at 539, that the true task of the Administrative Appeals Tribunal, in applying the “alone” test in s 24(1)(c) of the VE Act, was “to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide”. In Forbes (supra), RD Nicholson J said (at para 39): “The question whether the veteran by reason of the war-caused condition ‘alone’ has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists”.
34. The correct approach to the “alone” test, and the potential relevance of other factors which might prevent a veteran from continuing to undertake the relevant remunerative work, was further explained in Repatriation Commission v Hendy (2002) 76 ALD 47 at [36] - [37] as follows:
“[36]The tribunal’s task was to assess what the veteran probably would have done, if he had none of the service disabilities during the assessment period. The requirement to consider ‘remunerative work that the veteran was undertaking’ does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past. That is the exercise that the tribunal undertook. The tribunal was not bound to limit its consideration to the last employment that the veteran actually undertook.
[37]The consideration of what the veteran probably would have done, absent the service disabilities, is a hypothetical exercise. The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. … (H)aving considered any or all of the factors which may have contributed to a veteran’s incapacity, the tribunal is then required to determine whether it is the veteran’s war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work.”
35. On the evidence before the Tribunal, Mr Kennett had been experiencing pain in all his joints (fingers, wrists, elbows and knees) for about 10 or 11 years and the pain had been getting a little worse each year, certainly until July 2003. He acknowledged that, for the last 2 or 3 years or longer, he had difficulty holding tools. He said he believed the problems had gone, but could not be sure without testing his hands. He said that, since October 2003, he had been undergoing pool physiotherapy and the joint pains had improved. However, there was no pool physiotherapy during the winter and last year, during the winter lay-off, his joint pains returned, as they had the year before.
36. There is evidence that Mr Kennett’s non-accepted disabilities or conditions, particularly in his hands, have contributed to his incapacity to undertake the remunerative work up to the commencement of, and during, the assessment period. In the circumstances, we find that Mr Kennett’s war-caused injuries alone have not prevented him from continuing to undertake the remunerative work.
37. The fourth question in Flentjar is whether, if the veteran has been prevented by his war-caused conditions alone from undertaking remunerative work, he has suffered a loss of wages or earnings that he otherwise would not have suffered. As we have found against Mr Kennett in answering the third question in Flentjar, it is unnecessary for the Tribunal to answer the fourth question.
summary and conclusion
38. Although we find that Mr Kennett is, by reason of his war-caused conditions, prevented from continuing work as a brick-layer, being the relevant remunerative work for the purposes of s 24(1)(c) of the VE Act, we are not satisfied (and we find) that his war-caused injuries alone have not, during the assessment period, prevented him from continuing to undertake the remunerative work. It follows that Mr Kennett is not eligible for an increase in pension to the special rate payable in respect of his accepted disabilities and his disability pension should continue at 100 percent of the general rate.
decision
39. The Tribunal affirms the decision under review.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne and Dr E T Eriksen (Member)
Signed: .............J Coulthard...........................................
AssociateDate of Hearing 29 September 2005
Date of Decision 23 December 2005
Counsel for the Applicant Mr C Swan
Solicitor for the Applicant Swan Lawyers
Counsel for the Respondent Mr A Crowe
Solicitor for the Respondent DVA
0
10
0