Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] aata 660
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2005/18
VETERANS' APPEALS DIVISION ) Re JURE JACK RONCEVICH Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Justice Downes, President
Deputy President P E Hack SC
Brigadier Ermert, MemberDate26 July 2006
PlaceSydney
Decision The decision of the respondent of 5 January 1998 to refuse the applicant’s claim for internal derangement of the left knee is set aside and the matter is remitted to the respondent for assessment in accordance with these reasons.
....................[sgd].....................
President
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – fall from a window causing injury in 1986 – applicant’s knee injury ‘defence-caused’ – Veterans Entitlements Act 1986 (Cth) – Statement of Principles, No. 60 of 1997 concerning internal derangement of the knee – Statement of Principles, No 32 of 2005 concerning osteoarthrosis – the former is satisfied but not the latter in respect of the knee injury - three separate pathologies regarding the knee - nature and diagnosis of the applicant’s knee injury in dispute – knee injury determined to be connected with the applicant’s defence service - decision set aside and matter remitted to respondent for assessment in accordance with these reasons
Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 44
Evidence Act 1995 (Cth) ss 135, 136
Veterans Entitlements Act 1986 (Cth) ss 70, 120Lees v Repatriation Commission (2002) 125 FCR 331
Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Robertson v Repatriation Commission (1998) 50 ALD 668
Roncevich v Repatriation Commission 66 ALD 105
Roncevich v Repatriation Commission 75 ALD 345
Roncevich v Repatriation Commission 218 ALR 733REASONS FOR DECISION
Justice Downes, President
Deputy President P E Hack SC
Brigadier Ermert, MemberStatement of the Case
1.The applicant, Jure Jack Roncevich, injured his knee when he fell from the window of his room at the Holsworthy Military Barracks where he was stationed. He was affected by alcohol at the time because he had earlier attended a function in the Sergeants’ Mess at the Barracks. Mr Roncevich says that he is entitled to a pension under the Veterans’ Entitlements Act 1986(Cth) because the injury arose out of, or was attributable to, his defence service. That is, that it was “defence-caused”.
2.The respondent Repatriation Commission contends that the injury was not defence-caused. Moreover, the Commission contends now that the injury that afflicts Mr Roncevich’s knee is not capable of being regarded as a compensable injury. It raised this new argument for the first time just prior to the hearing, on 10 and 11 April 2006, having conceded the issue in two earlier hearings, held in November 2000 and April 2002.
Background
3.The applicant enlisted in the Australian Regular Army in February 1974 when he was aged 17 years. From all accounts he was a good soldier. He served until February 1998 when he was discharged with…
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- AGLC
- Re Roncevich and Repatriation Commission [2006] aata 660
- Case
- [2006] AATA 660
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the knee injury Roncevich suffered was connected to his service, and if so, whether the Commission had correctly applied the relevant statutory provisions and evidence in making its decision. This required the court to examine the nature and diagnosis of Roncevich's knee injury, and to determine whether it fell within the relevant Statement of Principles concerning internal derangement of the knee and osteoarthrosis. The court also had to consider the applicability of precedent cases such as Lees v Repatriation Commission and Robertson v Repatriation Commission, which dealt with similar issues of service connection and evidence evaluation.
The court found that the Repatriation Commission had not adequately addressed the evidence and the connection between Roncevich's knee injury and his service. The court highlighted that the injury involved three separate pathologies, and that the Commission had not fully considered the evidence regarding these conditions. The court concluded that the Commission's decision to not recognise the knee injury as service-connected was flawed. The matter was thus remitted back to the Commission for reassessment in light of these findings.
The decision of the Repatriation Commission to refuse Roncevich's claim for internal derangement of the left knee was set aside, and the matter was remitted to the Commission for reassessment in accordance with the court's reasons. The court did not make a final determination on the pension claim but required the Commission to reassess the claim in light of the findings that the knee injury was indeed connected to Roncevich's service.
Orders
Orders of the court
The decision of the respondent of 5 January 1998 to refuse the applicant’s claim for internal derangement of the left knee is set aside and the matter is remitted to the respondent for assessment in accordance with these reasons.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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