Brereton, G.E. v Commonwealth of Australia [1987] FCA 405

GENERAL DISTRIBUTION NOT REQUIRED

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY No. VG 289 of 1985

GENERAL DIVISION

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT THOMPSON, MS. RODOPOULOS AND DR. SUTHERLAND, MEMBERS

BETWEEN:

GRAEME EDGAR BRERETON

Applicant AND: COMMONWEALTH OF AUSTRALIA Respondent COURT: NORTHROP, KEELY AND RYAN JJ. DATE: 23 JULY, 1987 PLACE: MELBOURNE

REASONS FOR JUDGMENT

The Court: This is an appeal from a decision of the Administrative Appeals Tribunal (the Tribunal), given on 11 December 1985, affirming a decision of a delegate of the Commissioner for Employees' Compensation, made on 27 July

1982, under the Compensation (Commonwealth Government

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Employees) Act 1971 (the Act). The delegate had decided that

the Commonwealth was not liable to pay compensation to the applicant who was, at the material time, a member of the Defence Force, serving aS a private in the Army. The Tribunal decided that the Commonwealth was "not liable to pay compensation to [the applicant] because the personal injury he suffered did not arise out of or in the course of his employment by the Commonwealth and cannot be deemed to have done so" and affirmed the delegate's determination. The appeal to this court from the decision of the Tribunal is on

questions of law only.

The findings of fact made by the Tribunal included

the following:-

"J... from early in 1980 until about 17 February 1981 the applicant was stationed at the Army's 2 Military Hospital, Ingleburn. On about 17 February 1981 he was posted from that unit to the Army's 2 Military District Personnel Depot at Watsons Bay to await his discharge from the Army. While at that depot he resided in barracks and was required to undertake such duties as might be assigned to him until he was discharged. February 20, 1981 was ae Friday; the applicant was on duty on that day until about 4.00 p.m. After that he rode his motor cycle from Watsons Bay, which is a part of metropolitan Sydney situated to the east of the city centre, to 2 Military Hospital, Ingleburn. Ingleburn is situated between Liverpool and Campbelltown. The hospital there is located between Campbelltown Road and the South Western Freeway, which is part of the Hume Highway. The applicant arrived at the hospital early in the evening and spent the evening with his friends there; until 10.00 p.m. he was