FEDERAL COURT OF AUSTRALIA
Roncevich v Repatriation Commission [2002] FCA 1458
VETERANS’ AFFAIRS – entitlement to compensation for injury occurring in domestic circumstances – whether injury defence-caused – whether Administrative Appeals Tribunal erred in not concluding that the injury would not have happened but for the applicant having rendered defence service.
Administrative Appeals Tribunal Act 1975 (Cth), s 43(2B)
Veterans’ Entitlements Act 1986 (Cth), ss 70, 120, 120B, 196B, 119Roncevich v Repatriation Commission [2001] FCA 1320 – referred to
Holthouse v Repatriation Commission (1982) 1 RPD 287 - discussed
Repatriation Commission v Law (1980) 147 CLR 635 - discussed
Wedderspoon v Minister of Pensions [1947] 1 KB 562 – referred to
Goward v The Commonwealth (1957) 97 CLR 355 - discussed
Repatriation Commission v Gorton (2001) 110 FCR 321 - discussed
Grundman v Repatriation Commission [2001] FCA 892 - followed
Commonwealth v Smith (1989) 18 ALD 224 - discussedJURE JACK RONCEVICH v REPATRIATION COMMISSION
D 12 of 2002
MANSFIELD J
2 DECEMBER 2002
DARWIN
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
D.12 OF 2002
BETWEEN:
JURE JACK RONCEVICH
APPLICANTAND:
REPATRIATION COMMISSION
RESPONDENTJUDGE:
MANSFIELD J
DATE OF ORDER:
2 DECEMBER 2002
WHERE MADE:
DARWIN
THE COURT ORDERS THAT:
1. The application is dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
D.12 OF 2002
BETWEEN:
JURE JACK RONCEVICH
APPLICANTAND:
REPATRIATION COMMISSION
RESPONDENT
JUDGE:
MANSFIELD J
DATE:
2 DECEMBER 2002
PLACE:
DARWIN
REASONS FOR JUDGMENT
INTRODUCTION
This is an application by way of appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal’s decision was given on 14 May 2002. It affirmed a decision of a delegate of the respondent, affirmed by a decision of the Veterans’ Review Board, rejecting a claim made by the applicant for benefits under the Veterans’ Entitlements Act 1986 (Cth) (the Act) in respect of injury described as internal derangement of his left knee (the left knee injury). In substance, the decision which was affirmed by the Tribunal was that the internal derangement of the applicant’s left knee was not defence-caused.
The applicant was born on 7 October 1956. He served in the Australian Army from 11 February 1974 until 13 February 1998, when he was discharged voluntarily with the rank of Warrant Officer Class 1. At the material time he was a member of 3 Battalion, Royal Australian Regiment, living on barracks at Holdsworthy Barracks. He had been posted to Holdsworthy Barracks on 4 December 1985, and moved to those barracks in January 1986. He held the rank of Sergeant. His residential quarters were on the first floor of a two storey building. The ground floor included the Sergeants’ Mess.
The incident which led to the left knee injury is straightforward and not contested. On the night of 27 February 1986, the applicant was ironing…
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- Roncevich v Repatriation Commission [2002] FCA 1458
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- [2002] FCA 1458
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CaseChat Overview and Summary
The legal issues before the court included whether the Tribunal erred in law by not finding that Mr Roncevich’s attendance at the social function and his consumption of alcohol were sufficiently connected to his defence service. Mr Roncevich argued that he was required to attend the function by his superior officer, which made the injury attributable to his service. The Tribunal, however, concluded that the applicant’s attendance at the function and his alcohol consumption were matters of his own volition and not related to his service.
The court found that the Tribunal’s decision was within its scope. The Tribunal was entitled to conclude that Mr Roncevich’s attendance at the function and his consumption of alcohol were independent of his service duties. The evidence showed that the function was a voluntary social gathering where alcohol consumption was permitted, but not mandated. The Tribunal correctly assessed that the injury did not arise out of or in the course of Mr Roncevich’s defence service. Therefore, the court upheld the Tribunal’s decision that the injury was not defence-caused.
The final order was that the application by Mr Roncevich was dismissed. The court found no merit in his contention that the Tribunal erred in its assessment of the connection between his service and the incident leading to his injury.
Orders
Orders of the court
1. The application is dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: MANSFIELD J
The Tribunal’s decision is quite brief. It found that the applicant was not required to live on Holdsworthy Barracks, but chose to do so. It concluded that the applicant attended the Sergeant’s Mess on the evening of 27 February 1986 to socialise with fellow NCOs. It described the situation as being “no different to what they might have done, had they decided to go to a hotel away from the Base”. It concluded:“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.”Hence it concluded the left knee injury was not “defence-caused” under s 70 of the Act because it did not arise out of his defence service and was not attributable to his defence service, nor was it due to an accident that would not have occurred but for the applicant having rendered defence service. CONSIDERATION The applicant first contends that the Tribunal erred in law in determining that the applicant’s attendance at the social function in the Sergeant’s Mess on 27 February 1986, and his consumption of alcohol at the function, was not sufficiently connected with his defence service as to bring the left knee injury within s 70(5)(a), namely that it arose out of or was attributable to his defence service. The applicant’s evidence in his statement was that he was required by his superior officer, the Regimental Sergeant Major Colin Lee (RSM Lee), to attend the social function on that evening, particularly because it was a special function to entertain a senior RSM. RSM Lee provided a written statement that on occasions when a special dignitary visited the mess, it was “expected” that persons such as the applicant who lived on the base would attend “simply because they did not have to drive home”, and in some cases attendance was compulsory. Later in his statement RSM Lee said that consumption of alcohol at such functions was permitted because the attendees were not on duty. The error of law asserted is the alleged failure on the part of the Tribunal to find on the evidence that the applicant was obliged to attend the particular function, so that the left knee injury arose out of his defence service because his fall was caused by, or that a cause of his fall was, his consumption of alcohol at the function. The Tribunal made a different finding, namely that the applicant’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 applicant, as was the extent of his alcohol consumption. In my view, those findings were clearly open to the Tribunal. When the fall was reported to a medical officer, it was recorded that the left knee injury occurred in “domestic” rather than “work-related” circumstances. In his evidence to the Tribunal, the applicant said the social function was not a special one, but it is traditional to make a visitor to the base welcome. RSM Lee told the Tribunal the function was an informal gathering, so those attending could leave if they wished and could choose whether to drink alcohol and if so to what extent. He repeated that those attending the function were not on duty, so that they were permitted to drink alcohol in the mess, and those who did drink alcohol should not then return to work, even though any serving member of the army could technically be called on to duty at any time. His evidence to the Tribunal as previously constituted was in a few respects a little different. However, in my judgment, the Tribunal’s conclusions that the applicant was not performing defence service by attending the function was a finding available to it on the evidence. The applicant at one point suggested that he was on duty twenty-four hours a day, seven days a week, but he later resiled from that position to indicate that he had fixed hours of duty (varied from time to time) and, like other members of the army, was also liable to be called on to duty on short notice. Indeed, it is only consistent with the evidence of both the applicant and RSM Lee that, because the applicant consumed alcohol at the function, the applicant was not on duty at the time.