FEDERAL COURT OF AUSTRALIA

Roncevich v Repatriation Commission [2001] FCA 1320

JURE JACK RONCEVICH v REPATRIATION COMMISSION

D 11 OF 2001

von DOUSSA J

14 SEPTEMBER 2001

DARWIN

THE COURT ORDERS THAT:

1.                  The decision of the Administrative Appeals Tribunal made on 16 March 2001 be set aside.

2.                  The matter be remitted to the Administrative Appeals Tribunal to be decided according to law.

3.                  The respondent pay the applicant’s costs of this appeal up to but not after 30 August 2001.

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

REASONS FOR JUDGMENT

1                                 This is an appeal on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) against a decision of the Administrative Appeals Tribunal (the Tribunal) given on 16 March 2001.  The decision affirmed a decision of the Veterans’ Review Board which in turn had confirmed the decision of a delegate of the Repatriation Commission to refuse a claim for acceptance of various conditions including lumbar spondylosis and internal derangement of the applicant’s left knee as being caused by eligible defence service.  The applicant alleged that these conditions resulted from an incident which occurred on 27 February 1986. 

2                     At the commencement of the hearing of the appeal, the respondent, by its counsel Ms E Ford, conceded that the Tribunal had erred on a question of law, and said that the respondent would consent to the matter being remitted to the Tribunal to be determined according to law. 

3                     The applicant by his counsel, Mr D de Marchi, said that whilst the applicant was happy to accept the concession that the Tribunal had erred on a question of law, the applicant did not consent to the appeal being disposed of in the manner proposed by the respondent.  On the contrary, the applicant submitted that once an error of law was conceded, on the undisputed facts accepted by the Tribunal in its reasons for decision, the only possible outcome could be a decision that the applicant met the eligibility requirements for a pension by way of compensation under s 70 of the Veterans’ Entitlements Act 1986 (Cth) (the Act) for incapacity from injuries sustained by him in the incident on 27 February 1986.  Accordingly, the applicant submitted that the order of the Court should set aside the decision of the Tribunal, substitute a decision that the applicant is eligible to receive a pension by way of compensation in respect of incapacity resulting from the incident on 27 February 1986, and that the matter be remitted to the Tribunal for assessment of compensation. 

4                     As the parties are not agreed on the appropriate outcome, it is necessary that the Court determine the appropriate order in light of the submissions received from the parties. 

5                     It is necessary to make reference to the facts surrounding the incident on 27 February 1986, and also to explain the basis for the concession made by the respondent that the Tribunal erred on a question of law.  However, as I am of the opinion that the order sought by the respondent is the order which should be made, it is not appropriate to give more than a broad outline of the basic facts.  It is not improbable that the parties will wish to call further evidence on matters of detail when the matter is heard again by the Tribunal.

6                     The applicant served in the Australian Army from 11 February 1974 until 13 February 1998.  On 27 February 1986 he was a sergeant with 3 Battalion, Royal Australian Regiment (3RAR), living on barracks in the Sergeants’ Mess.  He had his own room upstairs in the same building as the Mess, which was located on the ground floor level.  On that day he attended a function at the Sergeants’ Mess after stand down.  The Tribunal accepted that he believed that he was required to attend the function which would involve the consumption of alcohol.  The applicant attended the function, participated in the proceedings, and consumed alcohol.  By the time he left the Mess he was intoxicated.  He returned to his room upstairs, and as was his habit, proceeded to prepare his uniform for the next day. 

7                     On reaching his room he undressed whilst preparing his uniform for the following day.  He says that whilst doing so he found it necessary to clear his throat and for this purpose went to the window of his room to spit.  Apparently because of his intoxication, in the action of spitting, he overbalanced through the open window and fell to the ground below.  He says he suffered injuries which are now the basis for his claim for a disability pension.

8                     The Tribunal correctly identified that the eligibility criteria relevant to the claim are contained in s 70 of the Act, and identified the issue for decision as whether injuries sustained by the applicant in the fall were injuries that “arose out of, or [were] attributable to” the applicant’s defence service:  see s 70(5)(a) of the Act.  The Tribunal also noted that the applicant relied on an alternative basis to establish eligibility arising under s 70(5)(c) and s 70(7) of the Act.  However, in the course of its reasons the Tribunal made statements and considered expressions which are open to the interpretation that the Tribunal confined the requirement that the injuries be “attributable to” defence service, to injuries that arose in the course of his defence service.  For example, in par 38 of the reasons the Tribunal posed the relevant question as: 

“I must be satisfied that the applicant was not on duty at the time he fell from the window.”

And at par 40 and following the Tribunal referred to a number of recognised authorities on the meaning of the expression “in the course of employment” in workers’ compensation legislation.

9                     In the concluding paragraphs of the reasons for decision, the Tribunal returned to the language of s 70(5)(a), but not in terms that unambiguously indicate that the Tribunal was deciding the case according to the test posed by s 70(5)(a).

10                  The Tribunal expressed its conclusions as follows:

“52.       The difficulty in this case is whether I can be satisfied that the injuries sustained by the applicant can be said to be attributable to his defence service or arose out of that service (s 70(5)(a)). 

53.              Alternatively does sub-section 70(7) with paragraph 70(5)(c) apply on the facts of this case to deem the injuries to be defence caused.  That is essentially whether ‘but for’ his defence service the applicant would not have suffered the injuries so that the injuries are deemed to be defence caused.

54.              In essence the injuries were caused by the applicant falling out of a window in his room located in the Sergeant’s Mess.  He went to the window while stood down, while performing work of a domestic nature in the preparation of his uniform and in circumstances where he was probably affected by alcohol consequent upon attendance at the function in the Mess earlier that night. 

55.              While I accept that attendance at the Mess function can clearly be attributable to the applicant’s defence service I do not accept that his conduct at the function can be so attributable.  I accept that it was seen as the done thing to drink alcohol at such functions but I do not accept that the decision by the applicant to drink alcohol to the point of intoxication is anything other than a personal decision on his part.  To choose to drink alcohol at such a function is not a matter of military discipline but a matter of personal choice not attributable to the defence service. 

56.              I am not satisfied that the applicant’s injuries arose in the course of his defence service nor am I satisfied that the injuries were attributable or should be deemed to have resulted from the defence service.  When the applicant left the Mess function and went to his room he was on a frolic of his own with no relevant causative connection to his defence service.  That he fell out of the window has no relevant connection to his defence service.

57.              The claimed conditions were not attributable to or otherwise relevantly connected to the defence service.  The decision under review will be affirmed.”

11                  The respondent advised the Court that the concession of error of law was made on the basis that there appeared a likelihood that instead of applying s 70(5)(a) according to its terms, the Tribunal had applied a more restrictive test by considering whether the applicant’s injuries arose “in the course of” his defence service.

12                  Possibly the concession is a generous one, but in light of the ambiguity of the Tribunal’s reasons, justice requires that the decision of the Tribunal be set aside.

13                  The respondent contends that the matter in its entirety should be remitted to the Tribunal as the respondent does not concede that the applicant’s fall from his bedroom window “arose out of, or was attributable to” his defence service.  In support of its contention that the contrary is open on the facts, the respondent refers in particular to Holthouse v Repatriation Commission (1982) 1 Repatriation Pension Decisions 287 which drew a distinction between matters which are purely personal or private in nature and matters connected with defence service.  In that case a serving RAN officer had to move from his house to take up a transfer to a new post.  In preparing to lease his house he moved a large potted palm, injuring his back.  It was held that his injury did not arise out of, or was not attributable, to his service.  It was held that the removing of the palm was an affair of his personal life with which the defence force had no concern, and there was no causal connection between his injury and his service.

14                  The applicant on the other hand contends that his claim must inevitably be determined in his favour because of the standard of proof provisions contained in Part VIII of the Act.  The applicant submits that, relevantly, s 120(4) requires that the determination of the claim be decided by the Tribunal, exercising the powers of the Commission, “to its reasonable satisfaction”.  Section 120B(3) provides that:

“In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of al person was war-caused or defence-caused only if:

(a)               the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person;  and 

(b)               there is in force:

(i)                 a Statement of Principles determined under subsection 196B(3) or (12);

(ii)               …

           that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.”

15                  Part XIA, Division 1, of the Act (ss 196A – 196K) establishes the Repatriation Medical Authority.  Section 196B sets out the functions of that Authority.  If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to defence service rendered by members of the Forces, the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out the factors that must exist and which of those factors must be related to service rendered by a person before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service:  s 169B(3).  Section 169B(14) provides:

“A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:

…

            (b)        it arose out of, or was attributable to, that service;  or

…

(e)               in the case of a factor causing, or contributing to, an injury – it resulted from an accident that would not have occurred: 

(i)                 but for the rendering of that service by the person;  or

(ii)               but for changes in the person’s environment consequent upon his or her having rendered that service;  or

…”

16                  Paragraphs (14) (b) and (e) express the same causal requirements which must be fulfilled under the eligibility for pension provisions of ss 70(5)(a) and 70(7) of the Act.

17                  The Tribunal noted that the parties identified the relevant Statements of Principles as Instrument 166 of 1996 relating to lumbar spondylosis and Instrument 60 of 1997 relating to internal derangement of the knee.  Brief reference was made to the requirements of the Statements of Principles and the Tribunal concluded that it was “satisfied that the facts of the applicant’s medical conditions bring him within the terms of the respective Statements of Principles”.  As I understand the applicant’s submissions, this finding is said to imply a finding that the applicant’s medical conditions had the requisite causal relationship with his defence service.  However, the Tribunal immediately went on to express its conclusions that it was not satisfied that the injuries sustained by the applicant were attributable to his defence service.  It is clear on a reading of the reasons as a whole that the Tribunal, in saying that it was satisfied that the facts of the applicant’s medical condition brought him within the terms of the respective Statements of Principles, was not expressing a conclusion that the terms of the Statements of Principles were met insofar as they required that the injuries in question met the causal requirements of s 196B(14)(b) or (e).  The decision of the Tribunal indicates a lack of satisfaction in these respects.  The respondent’s concession that the Tribunal’s conclusion involved an error of law does not lead to the conclusion that injuries suffered by the applicant in his fall arose out of, or were attributable to his service, or otherwise met the eligibility requirements of s 70.  Whether those eligibility requirements are fulfilled is the very issue which remains to be determined according to law.

18                  The applicant’s submissions stressed the provisions of s 196B(14)(e) which in substance pose the same test which arises under s 70(7).  The applicant submits that the basic undisputed facts recited earlier in these reasons must inevitably lead to a conclusion that eligibility exists under s 70(7).  This submission gives to s 70(7) a meaning that is not borne out by authority, and moreover, invites this Court to make factual findings on critical issues of causation in favour of the applicant which were not made by the Tribunal.  An appeal to this Court under s 44 of the Administrative Appeals Tribunals Act 1975 (Cth)lies only on questions of law.  This Court has no jurisdiction to embark upon such a fact finding exercise.

19                  The provisions of s 70(7) are in material respects similar to s 107M(2) of the Repatriation Act 1920 (Cth) considered in Holthouse v Repatriation Commission where Davies J concluded, after a review of relevant authorities, that the provisions of s 107M(2) did not abrogate the ordinary principles of causality or dispense with the requirement that the defence service be a contributing cause to the incapacity or death (at 290 – 291). 

20                  As this Court is without jurisdiction to make findings of fact whether the injuries suffered by the applicant had a sufficient causal relationship with his service to meet the eligibility requirements of s 70, and the requirements of s 196B(14)(b) and (e) to relate the injuries to service, the whole matter must be remitted to the Tribunal to make the necessary findings of fact and to determine the applicant’s claim according to law.

21                  On the question of costs of the proceedings in this Court, the respondent advised the applicant in advance of the trial that it conceded that the decision of the Tribunal should be set aside on account of an error of law.  The hearing proceeded only because the applicant disputed the terms of the order proposed by the respondent.  In these circumstances I consider there should be no order as to costs after the respondent’s offer was made.

22                  The formal orders will be that the decision of the Tribunal made on 16 March 2001 be set aside;  that the matter be remitted to the Tribunal to be decided according to law; and that the respondent recover its costs of this appeal up to but not after 30 August 2001.

Counsel for the Applicant:                     Mr D de Marchi

Solicitor for the Applicant:                     Mr B Piper

Counsel for the Respondent:                 Ms E Ford

Solicitors for the Respondent:                Australian Government Solicitor

Date of Hearing:                                   11 September 2001

Date of Judgment:                                 14 September 2001