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

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…

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 [2004] HCATrans 379
Case: [2004] HCATrans 379
Decision Date

CaseChat Overview and Summary

The applicant, Roncevich, sought judicial review of a decision by the Repatriation Commission. The dispute concerned the eligibility of Roncevich for a disability pension under the *Veterans' Entitlements Act 1984* (Cth) (the Act). The Administrative Appeals Tribunal had affirmed the Commission's decision to deny the pension.

The primary legal issue before the High Court was whether the Tribunal had erred in law in its interpretation and application of section 7(2) of the Act. Specifically, the Court had to determine whether the Tribunal had correctly assessed whether Roncevich's incapacity was attributable to his war service, as required by the Act, or whether it had impermissibly shifted the onus of proof onto the applicant.

The High Court found that the Tribunal had indeed erred in law. Their Honours held that section 7(2) of the Act requires the Tribunal to be satisfied that the incapacity is not attributable to war service before it can deny a pension. The Tribunal's reasoning had suggested that because the applicant had not proven his incapacity was attributable to war service, the pension should be denied. This approach reversed the statutory onus, which rests on the Repatriation Commission to demonstrate that the incapacity is not war-caused. The Court emphasised that the Tribunal must make a positive finding that the incapacity is not war-caused, rather than simply finding that the applicant has not proven it is.

The High Court ordered that the appeal be allowed, the decision of the Administrative Appeals Tribunal be set aside, and the matter be remitted to the Tribunal for redetermination according to law.

Orders