Roncevich v Repatriation Commission

[2004] HCATrans 379

[2004] HCATrans 379

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D10 of 2003

B e t w e e n -

JURE JACK RONCEVICH

Applicant

and

REPATRIATION COMMISSION

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 8 OCTOBER 2004, AT 9.32 AM

Copyright in the High Court of Australia

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

MR P.J. HANKS, QC:   If the Court pleases, I appear for the respondent.  (instructed by Australian Government Solicitor)

McHUGH J:   Yes, Mr De Marchi.

MR DE MARCHI:   Your Honours, if I could take the Court to page 65 of the application book, therein is contained the reason why special leave should be granted.  You will note that the definition of “defence service” and “defence‑caused” are important and frequently contorted questions of proceedings brought under the Veterans’ Entitlements Act in the tribunals and, of course, on appeal to the courts.  The majority decision of the Full Court of the Federal Court in this case sets a precedent and leaves the operation of a significant area of the law in some doubt.

McHUGH J:   Well, what principle does the case stand for that will be of general application and would warrant a grant of special leave?

MR DE MARCHI:   The principle will be, your Honour, that it will be open for the Commission in future to simply find that the applicant for a pension was or was not acting within defence service by simply finding as a question of fact that it was not acting under defence service, without regard to the legislation and without regard to the established principles of law in relation ‑ ‑ ‑

McHUGH J:   That does not tell us very much.  What principle do you say has been applied by this court which is erroneous?

MR DE MARCHI:   Your Honour, the principle is one that has adopted a very narrow interpretation of what might be construed as defence service.  The Tribunal, on page 4 of the application book, in a four‑page decision without regard to the legislation, which is quite intricate and complex, simply found at line 20 that the intoxication did not:

arise out of any task that Mr Roncevich had to do as a soldier –

and consequently the injury that he suffered when he fell out of the window:

was not caused by . . . his defence service, nor did it occur in the course of his defence service.

McHUGH J:   The reasons do not reveal the reasoning process.  That makes it difficult to grant special leave, does it not?

MR DE MARCHI:   Well, those reasons do not, your Honour, but, of course, the matter on appeal before Mr Justice Mansfield – his Honour struggled with the paucity of the decision of the Administrative Appeals Tribunal but found that, essentially, on page 13 of the application book:

If the cause of injury is the personal or domestic activities of the claimant, and the defence service provides no more than the circumstances in which the cause operated, then the injury does not arise out of, and is not attributable to, defence service –

and quoted with authority the decision of Wedderspoon v Minister of Pensions, a decision of Lord Denning.

CALLINAN J:   Is not your point really that there was far too narrow a view taken of what could be connected with defence service and what was defence service?  That it was an excessively narrow view of those two concepts that was taken?

MR DE MARCHI:   It was by the Tribunal, your Honour, quite so.

CALLINAN J:   And by the Full Federal Court.

MR DE MARCHI:   And by the single judge and the majority of the Full Court, Justice Heerey ‑ ‑ ‑

CALLINAN J:   All that is needed is a connection and a connection with defence service, is that not right?

MR DE MARCHI:   That is so, your Honour, but in doing so the adoption of an English case of Wedderspoon, which was dealing with legislation different to the legislation that we are dealing with here, creates a precedent that future tribunals and future courts will, in fact, adopt that narrow view of Wedderspoon rather than adopting the view of the Court in the case of Henderson.

GUMMOW J:   Perhaps paragraph 26 in Justice Heerey’s judgment at page 35 in the application book and following is important for these submissions.

MR DE MARCHI:   Yes, your Honour, that the omission on the part of the Tribunal was the consideration – and, of course, the court followed that narrow interpretation – that a sergeant asked by the RSM to attend a Sergeants’ Mess because the visiting ‑ ‑ ‑

CALLINAN J:   Well, the visitor was, I think, the most senior non‑commissioned officer in the whole of the Australian Army.  Am I correct in saying that?

MR DE MARCHI:   Yes, and the battalion was very short of personnel living in the mess because they were out in camp.

CALLINAN J:   He is an extremely important person in the military.

MR DE MARCHI:   The most important person as far as the senior NCO ranks are concerned, yes, your Honour.

CALLINAN J:   Indeed, not just in relation to the ranks, but the senior officers looked to these people for guidance.  He has direct access, as I understand it, to the commanding officer of the whole of the military forces to bring to his attention any military matters at all concerning ‑ ‑ ‑

MR DE MARCHI:   That is so, your Honour, yes.

CALLINAN J:   ‑ ‑ ‑  non‑commissioned officers and recruits.

MR DE MARCHI:   Indeed, your Honour.

McHUGH J:   There are cases more favourable to you than Henderson.  Henderson is old hat.  There is Commonwealth v Oliver (1962) 107 CLR 353, there is Hatzimanolis in this Court about 10 years ago.

GUMMOW J:   Is there a reference to Oliver in here?

MR DE MARCHI:   Not that I am aware of, your Honour.

McHUGH J:   Or Humphrey Earl v Speechley (1951) 84 CLR 126. All those cases have gone beyond Henderson.  Yes, well, I think we will call on the respondent.  Yes, Mr Hanks.

MR HANKS:   Thank you, your Honours.

McHUGH J:   It is pretty difficult to justify this decision as a decision of fact, Mr Hanks, is it not?

MR HANKS:   All of these cases are decisions on facts, your Honour.  That is all they are.

McHUGH J:   I know, but the question is whether or not they applied the correct principle.  The result they got in this case would seem to indicate that they did not apply the right principle, and the fact that they did not reveal what principle they applied strengthens that conclusion.

MR HANKS:   Well, the facts as found by them, your Honour, would have made it, in my submission, not possible to come to another conclusion – the facts as found, namely, that this was not a compulsory attendance, nor was it ‑ ‑ ‑

GUMMOW J:   It depends by what you mean by “compulsory”.

CALLINAN J:   That is right.

McHUGH J:   It was not compulsory for Hatzimanolis to go out 200 kilometres or something on a sightseeing tour during an interval in work.  As this Court held, he was in the course of his employment.  Why is not this officer in the course of his defence service?

MR HANKS:   Because, your Honour, it was no more than a social occasion where, as the Tribunal found, the only connection between the intoxication ‑ ‑ ‑

GUMMOW J:   What you mean by “social occasion” is another question, is it not?

MR HANKS:   Perhaps your Honour would just allow me to conclude that proposition – where the Tribunal found that the only connection between the intoxication and service was the fact that the occasion took place in the mess and was attended by fellow soldiers.

CALLINAN J:   But this goes beyond that.  The point that I put to the applicant – I do not think you can refute this – was that the importance of the visitor gave this occasion a particular complexion.  I was right, was I not, in what I said about the visitor?

MR HANKS:   I am unable to answer that, your Honour.  The findings made by the Tribunal do not go to that extent.

CALLINAN J:   Well, they do go to the extent that he is the most senior NCO in the whole of the Army, is that not right?

MR HANKS:   I observe that Justice Heerey made that observation, your Honour, but the Tribunal did not make that finding.  That may be the case, but I am not able to confirm or deny that proposition.  In our submission, this is simply a case where, as in many of these authorities, a particular finding of fact was made about the connection between the occurrence, the event, the circumstances leading up to the injury, on the one hand, and defence service, on the other.

Take some of the other authorities that we have referred to in our submissions, particularly the matter of Holthouse, for example, where there was a finding of fact that there was no requirement or interest on the part of the Defence Force in the maintenance by Captain Holthouse of his pot plant.  That was sufficient to justify the conclusion which was reached by the finder of fact that the injury was not defence‑caused.

McHUGH J:   But you seem to be making a case for grant of special leave.  This is an area that maybe needs investigation.  This is not a one‑off case.

MR HANKS:   Not in the least, your Honour, not a one‑off case, but the principles are well settled and they all depend on findings of fact.  There are findings of fact here which, in our submission, justify the conclusion.

CALLINAN J:   Why was not ironing his uniform part of his defence service?

MR HANKS:   If that played any role, your Honour, in the injury – if, for example, the iron had fallen on his foot and burnt his foot, perhaps we might have a different case but ‑ ‑ ‑

CALLINAN J:   But he was interrupted in doing that by an urge, as he said, to expectorate.

MR HANKS:   Yes, your Honour, but your Honour would not seriously suggest that the ironing contributed to the urge to expectorate.  I mean, if that were the case, again we would have a different proposition and perhaps different findings of fact.

CALLINAN J:   Well, say he was on parade and he had an urge to be ill and he fell out in order to be ill and injured himself doing that, would that not be connected with defence service?

MR HANKS:   It may well be, your Honour, but that is not our case.  With respect ‑ ‑ ‑

CALLINAN J:   It is not your case, but it may be the applicant’s case.

MR HANKS:   No.  It is not the case as found by the Tribunal and it is not the case as presented to the Tribunal.

CALLINAN J:   What about paragraph 4 on page 2:

ironing his Army clothes to be ready for the following day.  During the course of his ironing he felt an urge to spit . . . He walked across to an open window –

and so on.  It is an interruption that occurred during an interruption of what was plainly part of his military service, ironing his uniform.

MR HANKS:   With respect to your Honour, it is no more than the setting in which the injury occurred, no contributory cause, and that is critical.  Your Honour referred earlier, in the course of my friend’s submissions, to it being sufficient that there be a connection with defence service.  With respect, it is more than that; it must be a causal connection.  What is required is that the injury arose out of or was attributable to.  As your Honour understands, that requires at least a contributory cause.

Now, the fact that while in the course of ironing his uniform he was interrupted by a call of nature, let us say, and suffered an injury in the course of attending to that call of nature does not create any, with respect, causal relationship between the ironing and the injury.  As I have said, all of these cases do depend on their findings of fact.

GUMMOW J:   Is there a definition of “defence service”?

MR HANKS:   Yes, there is, your Honour.

McHUGH J:   It is defence‑caused where it:

arose out of, or was attributable to, any defence service . . . of the member.

MR HANKS:   That is so, and “defence service” is defined principally in section 68, your Honour, “defence service means” ‑ ‑ ‑

GUMMOW J:   Where do we see that?

MR HANKS:   It is in our material, your Honour, if your Honour has our material, behind tab 1.  It is at page 606 of that reprint of the Act.

GUMMOW J:   Yes, I have it.

MR HANKS:   It means – relevantly, it would be paragraph (a):

continuous full‑time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date;

That date was 7 April 1994, the terminating date.  This injury occurred, I think, in 1986.  So it falls within that definition.  That is what is meant by “defence service”:

continuous full‑time service rendered as a member of the Defence Force –

and then what is required under section 70(5) for the injury to be taken to be defence‑caused is that the injury be one that – this is on page 617, paragraph (a):

arose out of, or was attributable to, any defence service ‑ ‑ ‑

McHUGH J:   It only has to arise out of his defence service.  He only has to show a causal connection.

MR HANKS:   Precisely, your Honour, and that is the point that I thought I was articulating.

CALLINAN J:   Yes, but all those motor car cases with a very expansive reading of a phrase such as “arising out of” or “arose out of” ‑ ‑ ‑

MR HANKS:   Quite so, your Honour, but there must be limit.  That will depend on the facts of the case, the facts as found by the trier of fact.  Here the trier of fact has made finding that this was essentially – although the language is not used – something that occurred within the personal sphere of the applicant and not as part of or caused by his defence service.

McHUGH J:   Well, one can suspect that the Tribunal has not applied the correct principles, but since they do not reveal their reasons it is not a point, I suppose, that the applicant can rely on.  But why is it not a Hayes v Federal Commissioner of Taxation case, namely that on the facts found by the Tribunal as a matter of law it must have found that the case was within section 70(5)(a) on the facts that it has found?

MR HANKS:   Because the facts which it has found, your Honour, in our submission, exclude that conclusion.  They do not allow for the conclusion.  That is, the facts as found are that this was a social occasion where he ate a meal, consumed alcohol and engaged in friendly conversation with his fellow NCOs.  That occasion occurred on Army premises, but there was no other relationship to his service.

CALLINAN J:   That is a rather 19^th century view, that you do not talk shop in the mess.

MR HANKS:   You do talk shop.

CALLINAN J:   I am sure there is a lot of shoptalk in the mess.

MR HANKS:   In answer to Justice McHugh’s question, those findings do not lead to the conclusion that this was defence‑caused, that it arose out of defence service.

McHUGH J:   I am not sure that even all those seamen’s cases that were before the courts at one stage before the 1950s would not apply here, but the modern law as laid down by this Court in Hatzimanolis and Commonwealth v Oliver, the case of playing cricket during lunch hour, Humphrey Earl v Speechley, another lunchtime injury – all those cases were said to be within the course of the employment.  Here the applicant’s case seems to be even stronger, that it “arose out of” his defence service.

MR HANKS:   Your Honours understand how we put our opposition ‑ ‑ ‑

McHUGH J:   I fully understand.

MR HANKS:   ‑ ‑ ‑  that it all depends on the findings of fact, as it has in all of the cases that we have cited in our submissions.  Sometimes those findings are favourable, and, where those findings are favourable, then the conclusion is that it would be defence‑caused.  Indeed, it might have been that a different trier of fact would have found here different facts, that is, would have found that this was an occasion that was causally connected to the defence service, but that is not, with respect, what the Tribunal found.  It found the opposite.  Once the finding of fact is made, then the conclusion which is reached, in our submission, is inevitable.

GUMMOW J:   What is the foundation of the Federal Court’s jurisdiction?

MR HANKS:   It is under section 44 of the AAT Act.

McHUGH J:   A question of law.

MR HANKS:   It must be a question of law.  With respect, that is a limitation which the dissenting judge in the Full Federal Court may not have fully observed.  His Honour, it appears to us, felt free to engage in a retrial of the facts, and that is not appropriate.

McHUGH J:   Well, it is a question on the facts as to whether it falls within the Hayes v Federal Commissioner Case or whether it is one of those that Sir Frederick Jordan spoke about in the New South Wales case, Dennis v Watt (1942) 43 SR (NSW) 32, where he said if on those facts it would be reasonable to find that it did not arise out of the defence service – if that was a reasonable view – then there is no question of law, but if the only

conclusion on those facts is that there is a defence‑caused injury, then there is a question of law.

MR HANKS:   Yes, with one modification, we would adopt that.  If it was open to find on those facts, rather than if it was reasonable to find on those facts, your Honour, that would be, in our submission, the correct formulation.

McHUGH J:   Well, “is reasonably open” I think is the ‑ ‑ ‑

MR HANKS:   Yes, but, essentially, as is sometimes said, if there was a scintilla or more than a scintilla of evidence to support the finding, it cannot be attacked.  It is a finding of fact, and there is no error of law in making the finding.  That is what has occurred here.

GUMMOW J:   Yes, the draft notice of appeal is not all that apt, really.  At page 55 the draft notice of appeal talks about errors of law by the Federal Court.  The real question is whether the Federal Court made an error of law, if you like ‑ ‑ ‑

MR HANKS:   Or an error.

GUMMOW J:   ‑ ‑ ‑  an error, at any rate, in deciding that there was an attraction of section 44 of the AAT Act, because there had been, or there is manifested, at any rate, an error of law by the AAT.

McHUGH J:   Yes, the real ground of appeal is that the Full Court erred in not finding that, upon the facts found by the Tribunal, as a matter of law it was required to find that it was a defence injury.

MR HANKS:   That is right.  That, with respect, identifies the problem that the applicant faces.  The applicant must persuade you that that is an arguable point, that on those facts found there was only one conclusion open to the Tribunal.  We say the facts as found, as the authorities demonstrate, are critical.

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.  Those are our submissions, your Honour.

McHUGH J:   Thank you.  Yes, there will be a grant of leave in this case, subject to your amending your notice of appeal.  You heard what I said about what the appropriate way to formulate your case is, Mr De Marchi.  Would you bear that in mind?  And you ought to pay close attention to what Sir Frederick Jordan said in Dennis v Watt. 

MR DE MARCHI:   Thank you, your Honour.

McHUGH J:   It is a half‑day case, I take it?

MR DE MARCHI:   Yes, your Honour.

McHUGH J:   Yes.  The Court will now adjourn to reconstitute.

AT 9.54 AM THE MATTER WAS CONCLUDED