Roncevich v Repatriation Commission

Case [2003] FCAFC 146

FEDERAL COURT OF AUSTRALIA

Roncevich v Repatriation Commission [2003] FCAFC 146

DEFENCE AND WAR – Veterans’ Entitlements – whether injury is connected to defence service – failure to find whether consumption of alcohol in Sergeants’ Mess a contributing cause to accident – whether participation in life of Sergeants’ Mess an incident of service

Administrative Appeals Tribunal Act 1975 (Cth) s 44
Veterans’ Entitlement Act 1986 (Cth) ss 70(1), 70(5), 70(9), 120(1), 120(3), 120(4)

Brutus v Cozens [1973] AC 854 – cited
Goward v The Commonwealth (1957) 97 CLR 355 – applied
Hansell v Repatriation Commission (1992) 38 FCR 202 – cited
Hope v Bathurst City Council (1980) 144 CLR 1 – cited
Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281 - cited
Lowerson v Repatriation Commission (1994) 50 FCR 252 – cited
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 – cited
NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 – cited
Repatriation Commission v Law (1981) 147 CLR 635 – cited
Repatriation Commission v Tuite (1993) 39 FCR 540 – followed
Roncevich v Repatriation Commission [2002] FCA 1458 – affirmed

JURE JACK RONCEVICH v REPATRIATION COMMISSION
D19 OF 2002

HEEREY, WHITLAM AND MARSHALL JJ
30 JUNE 2003
MELBOURNE (HEARD IN DARWIN)


IN THE FEDERAL COURT OF AUSTRALIA

DARWIN DISTRICT REGISTRY

D19 OF 2002

BETWEEN:

JURE JACK RONCEVICH
APPELLANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

HEEREY, WHITLAM AND MARSHALL JJ

DATE OF ORDER:

30 JUNE 2003

WHERE MADE:

MELBOURNE (HEARD IN DARWIN)

THE COURT ORDERS THAT:

1.        The appeal is dismissed.

2.        The appellant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

DARWIN DISTRICT REGISTRY

D19 OF 2002

BETWEEN:

JURE JACK RONCEVICH
APPELLANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

HEEREY, WHITLAM AND MARSHALL JJ

DATE:

30 JUNE 2003

PLACE:

MELBOURNE (HEARD IN DARWIN)

REASONS FOR JUDGMENT

HEEREY J:

  1. The appellant, then a sergeant in the Australian Army and a member of the 3rd Battalion Royal Australian Regiment, suffered an injury to his left knee on 27 February 1986.

  2. At the time the appellant was living on the first floor of a two-storey building at Holdsworthy Barracks.  The Sergeants’ Mess was situated on the ground floor of the building.  The appellant’s injury resulted from his falling from the window of his living quarters.

  3. The appellant’s claim for benefits under the Veterans’ Entitlement Act 1986 (Cth) (“the Act”) in respect of the injury was rejected by a delegate of the respondent Repatriation Commission.  That rejection was affirmed by the Veterans’ Review Board and the Administrative Appeals Tribunal.  An appeal was dismissed by a judge of this Court: Roncevich v Repatriation Commission [2002] FCA 1458. The appellant now appeals.

    Evidence before the Tribunal

  4. The appellant had been posted to Holdsworthy a few weeks before the accident.  He was then single.  The Army gave him the choice of living on…

Continue reading Roncevich v Repatriation Commission

Sign in free to access the full text

Details
AGLC
Roncevich v Repatriation Commission [2003] FCAFC 146
Case
[2003] FCAFC 146
Decision Date

CaseChat Overview and Summary

In Roncevich v Repatriation Commission, the appellant, Mr Roncevich, sought to establish that a knee injury sustained in 1986 was a "defence caused injury" within the meaning of s 70(5) of the Veterans’ Entitlements Act 1986 (Cth). This appeal was against the determination of the Administrative Appeals Tribunal (AAT) that the injury was not defence caused. The Tribunal had rejected Mr Roncevich's arguments that the injury was linked to his defence service, including his attendance at a social function at the Army base where he consumed alcohol and subsequently fell through a window. The primary judge's task was to assess whether the Tribunal's determination was correct and whether the injury met the statutory criteria for being considered defence-caused.

The legal issue before the court was whether Mr Roncevich’s injury met the statutory definition of being "arose out of, or was attributable to, any defence service" as per s 70(5)(a) of the Act. The court had to examine whether the AAT's finding that the injury was not defence-caused was supported by the evidence and consistent with the statutory requirements. Specifically, the court needed to determine if the AAT was correct in concluding that the injury did not arise out of or in the course of Mr Roncevich’s defence service.

The court reviewed the evidence and the AAT's reasons, confirming that Mr Roncevich was not compelled to live on the Army base, and that the social function he attended was akin to any other social gathering that might have occurred off-base. The court found that the AAT correctly identified that the intoxication, which led to the injury, was not caused by, nor did it arise out of, any task Mr Roncevich had to perform as a soldier, nor did it occur in the course of his defence service. The court held that the injury was not service-related or defence-caused, as required by the Act. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant pay the respondent’s costs.

Background

Background to the litigation

This appeal puts in issue the determination by the Administrative Appeals Tribunal (“AAT”) of the question whether an injury sustained by the appellant, Mr Roncevich, to his knee was “a defence caused injury” within the meaning of s 70(5) of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The appeal is from the judgment of a judge of the Court (“the primary judge”) delivered on 2 December 2002.Factual background Mr Roncevich sustained an injury to his left knee on the night of 27 February 1986. At that time he was serving in the Australian Army, holding the rank of Sergeant. He was posted to the Holdsworthy Barracks. His residential quarters were on the first floor of the two-storey building. The Sergeants’ Mess was on the ground floor. On the relevant evening, Mr Roncevich attended a function in the Sergeants’ Mess for dinner and some drinks with a visiting senior Non-Commissioned Officer. He drank beer in the Mess for about four hours after which he went to his room to do some ironing before retiring to bed. The primary judge described the incident that led to the injury in the following way at [3]:“During the course of his ironing he felt an urge to spit. He attributed that to his smoking habit. He walked across to an open window, climbed onto a trunk which was just below the window sill, and bent forward to spit out of the window. He over-balanced, and fell to the ground below, suffering the left knee injury.”The Administrative Appeals Tribunal On 14 May 2002 the AAT affirmed a decision of a delegate of the respondent that Mr Roncevich’s left knee injury was not defence caused. At [6] of its reasons for decision, the AAT recited five reasons given by Mr Roncevich for his claim that the injury was defence caused. Those five reasons were:“(i)Mr Roncevich was on 24 hour call as a sergeant in the Army and therefore he was on duty when he fell through the window.(ii)Mr Roncevich was living on the Army Base when he fell through the window and that therefore there is a direct link between his injury and his defence service.(iii)Mr Roncevich had attended the sergeants mess for dinner and a few drinks with a visiting senior NCO. He was under some moral obligation to attend the mess as a gesture of hospitality towards the visitors.(iv)The hospitality included the conviviality of eating and drinking beer together and sharing stories, jokes and “shop talk”.(v)He would not have fallen through the window if he had not been drunk at the time.” The AAT rejected that submission. It found that Mr Roncevich was not required to live at the Holdsworthy Barracks, but did so by choice. It considered that the social function was no different to what might have occurred had it been held at a hotel away from the base. At [10] it said that:“The only links between the Army and the intoxication of Mr Roncevich were that the intoxication occurred on an Army Base and that Mr Roncevich and his fellow drinkers were soldiers. The intoxication was not caused by, nor did it arise out of any task that Mr Roncevich had to do as a soldier, nor did it arise out of his defence service, nor did it occur in the course of his defence service.”The primary judge’s reasons

Evidence

Evidence Before The Court

The appellant’s claim for benefits under the Veterans’ Entitlement Act 1986 (Cth) (“the Act”) in respect of the injury was rejected by a delegate of the respondent Repatriation Commission. That rejection was affirmed by the Veterans’ Review Board and the Administrative Appeals Tribunal. An appeal was dismissed by a judge of this Court: Roncevich v Repatriation Commission [2002] FCA 1458. The appellant now appeals.Evidence before the Tribunal The appellant had been posted to Holdsworthy a few weeks before the accident. He was then single. The Army gave him the choice of living on or off Base. As he had nowhere in Sydney to live he opted for the former. He said:“I could apply to live out, and then I would have to search for accommodation and then pay for it, which is not viable with the amount of bush time you get; it’s all dead money in flat rent, so just about all the singles lived in.” On the day in question the appellant finished his duties and went to the Mess about 4.00 to 4.30 pm. This was in accordance with the usual practice, as he described it:“You would attend the Mess because I lived in the Mess. It was expected I’d be in the Mess and have a few hours with the RSM [Regimental Sergeant Major] and other singles and marrieds that wanted to discuss the day’s activities. So we’d go to the Mess and we’d drink beer and just talk about military stuff”. The appellant said that among the matters discussed with other members of the Mess were problems about soldiers under their command, including personal problems – “financially or wife or kids at school – we’d actually talk about these and find a fix for them”. They also discussed military matters. The appellant had joined the Army at 17 and “had seen no outside life, had no other life, there was no life but the military”. The RSM and President of the Sergeants’ Mess at the time, RSM Colin Lee, said in a written statement that when in camp the normal duties for Senior Non-Commissioned Officers (SNCOs) such as the appellant was that they would normally gather at the Mess after normal duties had finished for the day to meet and discuss with him and the other Warrant Officers and SNCOs “the state of the unit and iron out any problems that may have existed”. He said:“These gatherings were a useful tool to disseminate information and in a busy and tough environment, it was also a good way to unwind.On occasions when a guest or special dignitary visited the Mess, it would be expected that all of the unit Warrant Officers and SNCOs, would also attend and in some cases the activity would be compulsory.At such functions alcohol would be available and on some occasions subsidised.It would be fair to say that living in members would be expected to be at all these functions, simply because they did not have to drive home, or in the case of married members, have their wives pick them up. Drink driving is very much frowned upon in the Army.” On the day of the appellant’s accident the Mess was hosting a visit by Wally Thompson, the senior RSM in the Australian Army. RSM Lee said in his statement:“The visit occurred with very little warning and although the word was passed around the unit it was late in the afternoon, plus a large percentage of the Battalion were away on exercise. All living in members were required to make up the numbers”.

Decision

Reasons for decision

HEEREY, WHITLAM AND MARSHALL JJ
Generally in relation to attendance at the Mess the appellant said:“The RSM liked NCOs to attend the Mess and drink together as he believed it was essential in maintaining the camaraderie, mateship and loyalty amongst the NCOs living on Base for the overall benefit of the unit. We would not be able to leave the Mess without the permission of the RSM. He would insist that it was our duty to attend the Mess, and not just a matter of recreation.”Decision of the Tribunal After summarising the evidence, the Tribunal said:“8.It was established during the course of the evidence that Mr Roncevich was not obliged to live on the Base. He could have rented civilian quarters away from the Base if he had wished to do so. If he had so rented premises away from the Base he could have returned to those premises at the end of the working period, which would have been after 4.30pm on the day in question. He would not have been required to return to the Base until the following day, unless some emergency arose during the night which required his presence on the Base.9.The Tribunal finds that on the evening of 27 February 1986, between 4.30pm and 9.pm, the applicant attended the Sergeants' Mess at the Holdsworthy Army Base to socialise with fellow NCOs. They drank alcoholic beverages, ate a meal and had a friendly conversation. The situation was in fact no different to what they might have done, had they decided to go to a hotel away from the Base.10. The only links between the Army and the intoxication of Mr Roncevich were that the intoxication occurred on an Army Base and that Mr Roncevich and his fellow drinkers were soldiers. The intoxication was not caused by, nor did it arise out of any task that Mr Roncevich had to do as a soldier, nor did it arise out of his defence service, nor did it occur in the course of his defence service.11.Consequently, the subsequent injury to Mr Roncevich's knee was not caused by his defence service, nor did it arise out of or in the course of his defence-service. It was not service related, nor was it defence-caused, within the meaning of those terms in the Veterans' Entitlements Act 1986.”Legislation Paragraph 11 of the Tribunal’s reasons does not cite, or accurately paraphrase, the applicable provision of the Act. Under s 70(5)(a) the injury of the appellant was to be taken to be “defence-caused” (and thus pension-entitling: s 70(1)(b) and (d)) where it “arose out of, or was attributable to, any defence service … of” the appellant. The standard of proof is “reasonable satisfaction”: s 120(4). By s 120B(3) the Commission is to be reasonably satisfied that an injury was defence-caused only if the material before the Commission “raises a connection between the injury … of the person and some particular service rendered by the person” and there is in force a Statement of Principles (SoP) that “upholds the contention that the injury … of the person is, on the balance of probabilities, connected with that service”.

Ratio Decidendi

Legal Principle Established

Established by: HEEREY, WHITLAM AND MARSHALL JJ

Full text does not contain this section.