Roncevich v Repatriation Commission

• Jurisdiction: Australia Federal only
• Judge: McHugh,Gummow,Callinan,Heydon JJ
• Judgment Date: 10 August 2005
• Neutral Citation: [2005] HCA 40,2005-0810 HCA C
• Court: High Court
• Docket Number: D7/2004
• Date: 10 August 2005

[2005] HCA 40

HIGH COURT OF AUSTRALIA

McHugh, Gummow, Kirby, Callinan AND Heydon JJ

D7/2004

Jure Jack Roncevich

Appellant

and

Repatriation Commission

Respondent

Administrative Appeals Tribunal Act 1975 (Cth) ss 29, 43, 44, 57A.

Federal Court Act 1976 (Cth) ss 19, 20.

Veterans' Entitlement Act 1986 (Cth) ss 44(1), 70(1), 70(5), 70(7), 70(9), 120(4), 120B(3), 180A(3).

Roncevich v Repatriation Commission

Repatriation pension — Whether injury arose out of or was attributable to defence service — Whether attendance at Mess function compulsory — Whether attendance at Mess function constituted defence service — Applicant injured as a result of falling from window due to intoxication.

Administrative law — Tribunal of the Commonwealth — Whether Administrative Appeals Tribunal gave reasons which conformed to law — Sufficiency of reasons — Whether perverse findings of fact constitute an error of law — Jurisdiction of Federal Court to disturb perverse findings of fact — Whether returning matter to the Administrative Appeals Tribunal would be futile — Whether High Court should substitute a finding on the facts.

Statutes — Construction — Interpretation of beneficial provisions.

Words and phrases — ‘defence-caused’, ‘defence service’, ‘attributable to’, ‘arose out of’.

1 McHugh, Gummow, Callinan AND Heydon JJ. The matters for determination in this appeal are the meaning of the terms ‘defence-caused’, ‘defence service’ and ‘arose out of, or was attributable to, any defence service’ as used in sub-ss ( 1) and (5) of s 70 of the Veterans' Entitlement Act 1986 (Cth) (‘the Act’).

McHugh

Facts

2 Between 11 February 1974 and 13 February 1998 the appellant was an enlisted non-commissioned officer (‘NCO’) in the Australian Army. On his discharge, which was voluntary, he held the highest non-commissioned rank in the Army, Warrant Officer (Class 1).

3 On 27 February 1986 the appellant, who was then a Sergeant, attended a dinner at the Sergeants' Mess at Holsworthy Military Barracks (the ‘Base’) where he was stationed and resided. The reason for his attendance at the Mess was that the Regimental Sergeant Major of the Army (‘RSM Army’), the most senior soldier in the whole Army and a person of considerable military importance, was visiting the Base. Short notice only had been given of this officer's visit.

4 The evidence was that at the time of the relevant events it was the expectation and custom of the Army for NCOs on Base to attend at the Mess when a distinguished visitor was a guest. The circumstances and implications of the appellant's attendance at the Mess were well summarised by Heerey J in the Full Court of the Federal Court1:

‘The evidence of the present appellant and RSM Lee, the truthfulness of which was not disputed and which was implicitly accepted by the tribunal, show that attendances by a SNCO at the sergeants' mess, and especially at a function to welcome visiting dignitaries, were an integral, and valuable, part of army life. Sergeants and other SNCOs need to be in regular informal contact about the operation of the unit and the well-being of those serving in it. The longstanding tradition is that a mess, whether sergeants' or officers', is perhaps the best place where this can be done effectively. Moreover the camaraderie of the mess

encourages the maintenance and development of trust, loyalty and regimental pride which are essential for an effective military organisation.

When the mess entertains a distinguished visitor the unit is, so to speak, on show. If 3 Battalion RAR were to provide an embarrassingly small turnout of Warrant Officers and Sergeants for the Senior RSM in the Australian Army because the appellant preferred to read a book in his own quarters, it may be doubted whether his conduct would have been accepted by his colleagues and RSM Lee as purely a matter of free choice for him.’

5 The appellant was present at the Mess from about 4:30pm until 9:00pm. In this period he drank a considerable quantity of beer, indeed to the extent that he became inebriated. The evidence was that alcoholic drinks were from time to time and in various ways subsidised, and that it was ‘frowned upon’ to consume drinks of low alcoholic content.

6 Later in the evening the appellant left the Mess with the permission of RSM Colin Lee, his immediate superior. He intended to change from his military fatigues into civilian clothes, iron his uniform for the next day, and then return to the Mess. Others present there were already in civilian clothes. The appellant's military commitments had prevented him from changing earlier.

7 The appellant returned to his room on the second floor of the barracks at the Base, opened his windows to air the room, and began to iron his uniform. The appellant was a smoker. He felt the need to clear his throat. He walked to a window, stood on a trunk beneath it and lent forward with the intention of expectorating. He overbalanced and fell to the ground below. The fall caused an ‘internal derangement’ of his left knee.

The proceedings below

8 On his retirement the appellant made a claim under the Act seeking recognition, for the purpose of claiming compensation, of various injuries he had suffered during his service, including the derangement of his knee. The respondent rejected the claim. The appellant made an application for review of the decision in the Administrative Appeals Tribunal (‘the Tribunal’).

9 It is convenient to set out the applicable statutory provisions at this point. Relevantly, s 70(1) of the Act provides:

‘70 Eligibility for pension under this Part

(1) Where:

…

(b) a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease;

the Commonwealth is, subject to this Act, liable to pay:

…

(d) in the case of the incapacity of the member — pension by way of compensation to the member;

in accordance with this Act.’

Section 70(5) is as follows:

‘(5) For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:

• (a) the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;

• …

• (c) the death is to be deemed by subsection (6) to be defence-caused, the injury is to be deemed by subsection (7) to be a defence-caused injury or the disease is to be deemed by subsection (7) to be a defence-caused disease, as the case may be; or

• (d) the injury or disease from which the member died, or has become incapacitated:

  • (i) was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or

  • (ii) was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; …’

10 The appellant sought to rely in this Court and in the Full Court of the Federal Court on s 70(7) which is as follows:

‘(7) Where, in the opinion of the Commission, the incapacity of a member of the Forces or member of a Peacekeeping Force was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered defence service or peacekeeping service, as the case may be, or but for changes in the member's environment consequent upon his or her having rendered any such service:

• (a) if the incapacity of the member was due to an accident — that incapacity shall be deemed to have arisen out of the injury suffered by the member as a result of the accident and the injury so suffered shall be deemed to be a defence-caused injury suffered by the member; or

• (b) if the incapacity was due to a disease — the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a defence-caused disease contracted by the member, for the purposes of this Act.’

11 There are other relevant provisions. Section 120(4), requires, in respect of an injury caused during general service2 that the standard of proof be to the

‘reasonable satisfaction’ of the respondent. Sub-section (3) of s 120B should also be noted:

‘(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:

• (a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and

• (b) there is in force:

  • (i) a Statement of Principles determined under subsection 196B( 3) or (12); or

  • (ii) a determination of the Commission under subsection 180A(3);[3]

‘180A Determination by Commission

…

(3) A determination under this subsection in respect of a particular kind of injury, disease or death must be in writing and must:

(a) state that it has effect only in relation to the class of veterans or members of the Forces referred to in subparagraph (1)(b)(i); and

(b) state that it applies only in respect of claims relating to:

(i) eligible war service (other than operational service) rendered by a veteran; or

(ii)...