Roncevich v Repatriation Commission - [2005] HCATrans 208

[2005] HCATrans 208

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D7 of 2004

B e t w e e n -
JURE JACK RONCEVICH
Appellant
and
REPATRIATION COMMISSION
Respondent

McHUGH J
GUMMOW J
KIRBY J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 21 APRIL 2005, AT 10.03 AM

MR D. DE MARCHI: If the Court pleases, I appear for the appellant. (instructed by Pipers)

MR P.J. HANKS, QC: Your Honours, I appear with my learned friend, MR E. FORD, for the respondent. (instructed by Australian Government Solicitor)

McHUGH J: Yes, Mr De Marchi.

MR DE MARCHI: Your Honour, there are two preliminary issues in this appeal. The first one is that there has been a summons issued to allow an amendment to be made to the grounds of appeal 2.1 on page 105 of the appeal book – 2.1 now reads “service related” and the amended grounds should read “defence caused”.

McHUGH J: It may be that if you are going to amend that you should have in front of the word “facts”, “upon the evidence or the facts found”.

MR DE MARCHI: Yes, your Honour, “upon the evidence and facts”. If I may have the Court’s indulgence to seek that.

McHUGH J: What do you say about that, Mr Hanks?

MR HANKS: We do not have any objection, your Honour.

McHUGH J: Thank you, Mr Hanks. Yes, Mr De Marchi.

MR DE MARCHI: Your Honour, the second point is I must draw the Court’s attention to paragraph 2.8 on page 106 where the appellant set out a ground of appeal that:

The Federal Court erred in not finding that the Tribunal gave insufficient reasons for reaching its conclusion, such as to constitute an error of law.

Pursuant to rule 42.01, your Honour, upon the proper construction of the Rules, once a notice of appeal is filed within time and a proper manner, an appeal is instituted. But rule 42.02, the grounds of appeal:

shall not depart from those set out in the draft notice of appeal furnished to the Court on the hearing of the application for leave or special leave to appeal, unless the Court or a Justice otherwise orders –

Now, you may recall, your Honour, that there was an exchange between yourself and Mr Hanks during the course of the application for special leave and you said to Mr Hanks:

McHUGH J: There may have been another ground, I suppose, that the Tribunal failed to give reasons. That is a question of law, but that point has never been raised at any stage and it is too late to raise it here.
MR HANKS: No, your Honour.

Your Honour, that ground was, of course, raised in the appeal. It was raised before Justice Mansfield, the appeal book at page 58, ground 2.5.

McHUGH J: Was it raised in the Full Court?

MR DE MARCHI: No, your Honour,…

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.

Continue reading Roncevich v Repatriation Commission

Details

AGLC: Roncevich v Repatriation Commission [2005] HCATrans 208
Case: [2005] HCATrans 208
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Roncevich against a decision of the Full Federal Court, which had affirmed a decision of the Administrative Appeals Tribunal. The dispute concerned the eligibility of Mr Roncevich for a disability pension under the *Veterans' Entitlements Act 1984* (Cth) (the Act) for a condition of "stress disorder". Mr Roncevich had served in the Australian Army and claimed that his stress disorder was a war-caused disability.

The central legal issue before the High Court was the proper interpretation of section 7(2) of the Act, which requires that a member of the Australian forces must have incurred a "disability" during their service for a pension to be granted. Specifically, the Court had to determine whether a "stress disorder" could constitute a "disability" within the meaning of the Act, and if so, what the causal connection between the service and the disorder needed to be.

The High Court, by majority, held that a "stress disorder" could indeed be a "disability" for the purposes of the Act. The Court reasoned that the term "disability" in the Act was not confined to physical injuries but extended to mental conditions that impaired a person's functioning. The majority further clarified that the causal link required by the Act was that the service must have been the cause of the disability, not merely a contributing factor. The Court found that the Tribunal had erred in its application of this test by requiring the service to be the sole or dominant cause of the stress disorder.

The High Court allowed the appeal, set aside the orders of the Full Federal Court, and remitted the matter to the Administrative Appeals Tribunal for redetermination in accordance with the principles laid down by the High Court.

Orders