2.Set aside the order of the Full Court of the Federal Court of Australia dated 30 June 2003 and, in place thereof, order that:
(a)the appeal be allowed;
(b)the order of Mansfield J in the Federal Court of Australia dated 2 December 2002 be set aside and, in place thereof, order that:
(i)the appeal be allowed;
(ii)the decision of the Tribunal be set aside; and
(iii)the matter be remitted to the Tribunal to be determinedaccording to law.
3.The respondent is to pay the appellant's costs in the Federal Court, both at first instance and in the Full Court, and the appellant's costs of the appeal to this Court.
On appeal from the Federal Court of Australia
Representation:
D De Marchi for the appellant (instructed by Pipers)
P J Hanks QC with E Ford for the respondent (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
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".
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").
Facts
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).
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Roncevich v Repatriation Commission [2005] HCA 40
Case
[2005] HCA 40
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Mr Roncevich against a decision of the Repatriation Commission concerning his claim for a pension. Mr Roncevich, a Warrant Officer in the Australian Army, sustained a knee injury when he fell from a window due to intoxication after attending a Sergeants' Mess function. He argued that his injury was "defence-caused" as it arose out of or was attributable to his defence service, specifically his attendance at the Mess function, which he contended was effectively compulsory due to the presence of a distinguished visitor. The Repatriation Commission, however, maintained that his attendance and subsequent intoxication were personal choices, not directly related to his defence service.
The central legal issues before the High Court were the interpretation of the terms "defence-caused," "defence service," and "arose out of, or was attributable to, any defence service" as used in the *Veterans' Entitlements Act 1986* (Cth). The Court also had to consider whether the Administrative Appeals Tribunal had provided reasons that conformed to the law, whether perverse findings of fact by the Tribunal constituted an error of law, and whether the Federal Court had the jurisdiction to disturb such findings. Furthermore, the Court was asked to determine if remitting the matter back to the Tribunal would be futile and if the High Court itself should substitute a finding on the facts.
The High Court allowed the appeal, finding that the Tribunal had erred in law. The Court reasoned that the Tribunal's finding that attendance at the Mess function was a personal choice, despite the evidence of custom and expectation for non-commissioned officers to attend when a distinguished visitor was present, was perverse. The Court emphasised that the beneficial provisions of the Act should be interpreted liberally and that the attendance at the Mess, in the context of fostering camaraderie and presenting a positive image of the unit, was an integral and valuable part of army life, thus constituting defence service. The Court concluded that the appellant's injury, which occurred as a consequence of his attendance and subsequent intoxication at the function, was attributable to his defence service.
Consequently, the High Court set aside the orders of the Federal Court and remitted the matter to the Administrative Appeals Tribunal to be determined according to law. The respondent, the Repatriation Commission, was ordered to pay the appellant's costs in the Federal Court and the High Court.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order of the Full Court of the Federal Court of Australia dated 30 June 2003 and, in place thereof, order that:
(a) the appeal be allowed;
(b) the order of Mansfield J in the Federal Court of Australia dated 2 December 2002 be set aside and, in place thereof, order that:
(i) the appeal be allowed;
(ii) the decision of the Tribunal be set aside; and
(iii) the matter be remitted to the Tribunal to be determined according to law.
3. The respondent is to pay the appellant's costs in the Federal Court, both at first instance and in the Full Court, and the appellant's costs of the appeal to this Court.
Background
Background to the litigation
Mc 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").Facts 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). 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. 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 Court[1]:"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." [1]Roncevich v Repatriation Commission (2003) 75 ALD 345 at 350-351 [26]-[27]; 37 AAR 397 at 402. 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. 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.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
HUGH, GUMMOW, CALLINAN AND HEYDON JJ
(dissent)
KIRBY J
(dissent)
The resulting forensic contest:The foregoing evidence explains the forensic contest before the Tribunal. The appellant sought to bring himself within the entitlements of the Act by linking the causative element of his intoxication to the circumstances in which that had occurred in a Mess activity which he was expected to attend because of the visit of an Army dignitary. In his written statement, Sergeant Lee described attendance at the Mess as "required" of all living-in members of the Regiment in order "to make up the numbers". On the other hand, the respondent sought to demonstrate that attendance and drinking beer and other alcoholic beverages at the Mess was a personal choice, not compulsory and, when the consumption passed over to intoxication it became a private and voluntary act of the soldier, the consequences of which he must wear for himself and not seek to attribute to his defence service.The legislation and decisional history The legislation:The provisions of the Act under which the appellant made his claim for a pension are set out in the joint reasons[31]. I will not repeat this material. Before this Court, the appellant sought to bring himself within the general provisions of the Act entitling him to a "pension by way of compensation"[32] for a "defence-caused injury"[33]. [31]Joint reasons at [9]-[11].[32]Under the Act, s 70(1)(c).[33]Under the Act, s 70(1)(b). The appellant submitted, as he had done before the Tribunal and in the Federal Court, that his injury arose out of, or was attributable to, his defence service and was thus a "defence-caused injury" within the principal definition in s 70(5) of the Act. As a fall-back position, the appellant sought to bring himself within the extended definitions covering post-injury material aggravation by defence service[34] and a notional defence service injury attributable to changes in the member's environment consequent on his service[35].[34]Under the Act, s 70(5)(d)(ii).[35]The Act, s 70(7)(a). Decision of the primary judge:The "appeal" to the Federal Court from the relevant decision of the Tribunal[36] failed. Essentially, this was because the primary judge in the Federal Court (Mansfield J) and the majority in the Full Court,[37] were of the opinion that the issue for decision, as concluded by the Tribunal, was one of fact, not law and involved a conclusion open to the Tribunal upon the evidence before it.[36]As explained in the joint reasons at [13], there were two Tribunal decisions. The first decision was set aside by order of von Doussa J in the Federal Court for error of law. A fresh hearing was then undertaken by the Tribunal but with the same consequence adverse to the appellant affirming the decision of the respondent.[37]Whitlam and Marshall JJ; Heerey J dissenting. Addressing himself to the principal way in which the appellant had sought to bring himself within the Act, under s 70(5)(a), Mansfield J was unimpressed. In effect, he accepted that it was open to the Tribunal to conclude that the cause of the appellant's injury was personal and not service related[38]. The judge recorded the appellant's complaint that the Tribunal had erred in law in failing to find that his attendance at the Mess function, with consequent consumption of alcohol, was obligatory, thereby rendering the consequent fall and knee injury causally related to his defence service at the function[39]. But his Honour said[40]:"The Tribunal made a different finding, namely that the [appellant's] attendance at the function and his excessive consumption of alcohol at the function was not related in any relevant way to his defence service. It found his attendance at the function was a matter for the [appellant], as was the extent of his alcohol consumption. In my view these findings were clearly open to the Tribunal."[38]Roncevich v Repatriation Commission [2002] FCA 1458 (2 December 2002) at [17]-[18].[39][2002] FCA 1458 at [15].[40][2002] FCA 1458 at [16]-[17].