Roncevich v Repatriation Commission

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."