Roncevich v Repatriation Commission

Decision of the Tribunal 16 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 17 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. 18 The standard of proof is "reasonable satisfaction": s 120(4). 19 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". 20 The relevant SoP was No 60 of 1997 which provides by cl 3 that internal derangement of the knee can be related to relevant service if one of the factors in cl 5 can be related to such service. One of the factors in cl 5 is direct trauma to the knee within six months before clinical onset of the condition. It was common ground that this factor existed in the present case.

Judgment of the Primary Judge 21 His Honour said (at [16]-[17]) that it was open to the Tribunal to find that the appellant'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 and that his attendance at the function was a matter for the appellant, as was the extent of his alcohol consumption. 22 His Honour (at [20]) held the Tribunal was correct to reject the claim that the appellant attended the social function "through some service-related 'moral obligation' so that his defence service was a cause of the left knee injury". His Honour considered that the Tribunal's conclusion reflected the sort of approach adopted by the majority of the High Court in Goward v The Commonwealth (1957) 97 CLR 355. His Honour said: "In Goward, unlike the applicant's position in this matter, the deceased worker was effectively required to live at a work camp and the accident causing this death occurred when he was struck by a train whilst crossing a railway line near the camp. Their Honours said at 364: 'The question is one of cause, but it is not enough to point to antecedent situations in the absence of which there could not have been an accident of the description involved. It is correct no doubt that if the camp had not been near a railway and if the deceased had not been living in the camp the accident would not have happened. But these are no more than antecedent conditions which are preliminary to, but hardly operative causes of, the accident.'"

Army tasks, obligations and requirements 23 It is not to the point that the appellant might have lived off Base, and/or attended a social function of the type in question off Base. What is relevant is what he in fact did. 24 The Tribunal said that the appellant's intoxication did not "arise out of any task that (he) had to do as a soldier". However, things a person does in the course of serving as a soldier are not limited to the obeying of lawful commands, directions and orders under disciplinary sanction pursuant to ss 27, 28 or 29 of the Defence Force Discipline Act (1982) (Cth). In Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281, where the High Court was concerned with a workers' compensation statute which spoke of injury "arising out of or in the course of employment", Dixon J said (at 294, citations omitted): "To be in the course of employment, the acts of the workman must be part of his service to the employer. But the difficulty lies in the application of this conception. For the service consists in more than the actual performance of the work which the workman is employed to do. It includes the doing of whatever is incidental to the performance of the work. General expressions of this kind have not proved very helpful… Where the accident arises shortly before the beginning of actual work or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorized to do in order to carry out his actual duties." (emphasis added) 25 The late husband of the appellant in Henderson was struck by a train near a railway workers' camp where he was in charge of a gang of five or six men. He was returning to the camp for lunch. As Dixon J noted (at 292) the deceased, without any breach of duty, might have found board and lodging in the nearby township. The Local Court dismissed the claim on that basis, and also because he was not obliged to have lunch at the camp and lunch time did not form part of his hours of duty. The Full Court dismissed the appeal because the deceased breached a regulation by not using an overhead bridge. Dixon J said (at 293): "An accident may arise both out of and in the course of an employment, notwithstanding that it occurs during an interval in the hours of the actual performance of work or 'duty', and although under the terms of the contract of employment the workman is not positively obliged to be upon the employer's premises during the interval. For these factors are not necessarily inconsistent with the existence of a sufficiently proximate causal connection… expressed by the words 'arising out of'; and they do not exclude the possibility that the presence of the workman at the place of the accident is so consequential upon or incidental or ancillary to the employment that in being there he is doing something in virtue, or in pursuance, of his employment." His Honour also said (at 295-296) that the breach of regulation did not affect the conclusion that the accident arose in the course of the deceased's employment, and the facts clearly did not support the employer's reliance on a statutory defence of serious and wilful misconduct. 26 The evidence of the present appellant and RSM Lee, the truthfulness of which was not disputed and which was implicitly accepted by the Tribunal, show that attendances by a SNCO at the Sergeants' Mess, and especially at a function to welcome visiting dignitaries, were an integral, and valuable, part of Army life. Sergeants and other SNCOs need to be in regular informal contact about the operation of the unit and the well-being of those serving in it. The longstanding tradition is that a Mess, whether Sergeants' or Officers', is perhaps the best place where this can be done effectively. Moreover the camaraderie of the Mess encourages the maintenance and development of trust, loyalty and regimental pride which are essential for an effective military organisation. 27 When the Mess entertains a distinguished visitor the unit is, so to speak, on show. If 3 Battalion RAR were to provide an embarrassingly small turnout of Warrant Officers and Sergeants for the Senior RSM in the Australian Army because the appellant preferred to read a book in his own quarters, it may be doubted whether his conduct would have been accepted by his colleagues and RSM Lee as purely a matter of free choice for him. 28 Unsurprisingly, alcohol was consumed in the Sergeants' Mess and, no doubt, some times to excess. This way of life is likely to continue until the Army mandates teetotal Messes. True it is the appellant's consumption of alcohol was a matter of choice. But it has never been suggested that his injury resulted from his "serious default or wilful act" or "serious breach of discipline" within the meaning of s 70(9)(a); cf Henderson at 296. Unless there are grounds for the application of s 70(9)(a) (or s 9(3), the equivalent in a case of war-caused injury), the Act is not concerned with issues of contributory negligence, or moral aspects of a claimant's conduct. 29 Claimants have not infrequently been held entitled to benefits under the Act where a contributing service-related cause has been smoking (eg Repatriation Commission v Tuite (1993) 39 FCR 540, Hansell v Repatriation Commission (1992) 38 FCR 202) or alcohol consumption (eg Lowerson v Repatriation Commission (1994) 50 FCR 252). Hansell and Lowerson involved claims for war-caused conditions as a result of operational service and thus the application of the reasonable hypothesis/reverse onus of proof beyond reasonable doubt methodology mandated by s 120 (1) and (3). The present case is governed by s 120(4) which requires reasonable satisfaction by the decision-maker. However the ultimate causal relationship required is the same, whichever mode and standard of proof applies. An injury is "war-caused" if it "arose out of, or was attributable to", any eligible war service: s 9(1)(b). In the present case, the appellant's injury was "defence-caused" if it "arose out of, or was attributable to" any defence service: s 70(5)(a). 30 Tuite (which apparently was not cited to his Honour) is instructive. The Full Court upheld a decision of Foster J that an appeal by the Commission against a decision of the Tribunal was out of time. However all members of the Full Court agreed with Foster J that the respondent's smoking habit, which caused emphysema and gastric ulcer, was attributable to his war service. In refusing an extension of time Foster J took into account his view that the appeal from the Tribunal raised no arguable point of law. In the Full Court Burchett and Einfeld JJ said (at 544-545): "There was no dispute before the Tribunal that the respondent suffered from conditions of emphysema and chronic gastric ulcer, to which his smoking habit had contributed. The issue debated was whether the smoking habit itself was attributable to the respondent's war service within the meaning of s 9(1)(b) of the Veterans' Entitlements Act, so as to make the conditions in question its consequences, attributable to that war service. The concept of attributability, in the required sense, is explained in Repatriation Commission v Law (1980) 47 FLR 57 at 68. The joint judgment of the Full Court there states: 'The cause need not be the sole or dominant cause: it is sufficient to show 'attributability' if the cause if one of a number of causes provided it is a contributing cause.' As the respondent did not serve overseas, the Tribunal decided the matter 'to its reasonable satisfaction' pursuant to s 120(4) of the Veterans' Entitlement Act. It considered that such a decision was required to be made on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327 at 335. To have taken this approach was certainly not adverse to the Repatriation Commission. The Tribunal found that the respondent, at the age of 24, had not smoked before going into camp in the army, but by the end of his period in camp was smoking about 20 cigarettes a day. The Tribunal noted that it was not sufficient simply to find a temporal connection; what was required was 'something within the applicant's military service which has caused him to start smoking'. It accepted his evidence that he had not smoked before, 'and that it was the circumstances whilst he was in camp that caused him to start to smoke'. The Tribunal added: 'Some of those circumstances were that cigarettes were cheap, other people were smoking, and a certain degree of apprehension as regards his future in the military.' The Tribunal pointed out that the respondent 'was in a milieu totally different to that which he had experienced before his call-up'. (It appears that he was actually a volunteer.) We are unable to find anything suggestive of error in this reasoning. It was for the Tribunal to decide whether it accepted the evidence of the respondent. Nothing seems to have been put before it to contradict that evidence, nor was the respondent seriously challenged in cross-examination. Apart from the matters specifically mentioned in the Tribunal's reasons, there were indeed other things adduced in evidence which tended to the same conclusion. The boredom of life in camp clearly emerges from the respondent's account. It is true that not everything which occurs while a man is in camp is attributable to his war service. But here the circumstances and incidents of camp life were plainly capable of having a causal influence upon the respondent's decision to take up smoking, and upon his continuance in the habit until the inevitable onset of nicotinic addiction. It was open to the Tribunal to find the circumstances persuasive. If, in the case of a particular person, one of the inevitable concomitants of war service is camp life, it must be open to the Tribunal to conclude that a consequence (in the sense explained in Repatriation Commission v Law (supra)) of camp life is a consequence of war service. In this case, the Tribunal has done so." Davies J said (at 541-542): "The issue before the Tribunal was whether Mr Tuite's smoking habit, which it was agreed had contributed to the development of his emphysema and gastric ulcer, arose out of or was attributable to his eligible war service. Mr Tuite gave evidence that he enlisted when 24 years of age, that he had not previously smoked and that he commenced smoking within 14 days of entering camp. Mr Tuite gave this evidence, inter alia: 'Why did you start smoking? … Well, everyone was smoking and we were getting - we could afford to buy the cigarettes, off a chap come around in a truck every day and, I mean, we was all ready to go to war and we wanted to go, I wanted to go, we was marching around all the time and that's why I enlisted, to go. But it was - well, we was doing nothing, in other words, just walking around, parading around, marching and lectures. … Were you offered cigarettes in the army or did you just go out and decide you were going to start smoking and buy a packet? … They offered you cigarettes.' The Tribunal accepted Mr Tuite's evidence on these points and accepted that Mr Tuite was influenced to commence smoking by the circumstances of camp life and by other servicemen with whom he was encamped. The Tribunal accepted Mr Tuite's evidence that he smoked 20 cigarettes a day at the time of his discharge and inferred that his then addiction to tobacco was a contributory cause of his continuing to smoke after discharge. The Tribunal rejected the submission of Mr M Castle, the representative for the Repatriation Commission, that Mr Tuite was: 'Not the usual impressionable youth who, as a result of peer pressure, commences smoking on service. Here we have a mature, experienced [man] - experienced in the ways of the world - and who whilst on service had a bit of spending money, an opportunity to smoke cigarettes, bought and commenced smoking.' The Tribunal's approach was correct in law. The question was whether Mr Tuite's emphysema and chronic gastric ulcer 'arose out of, or was attributable to' Mr Tuite's eligible war service: see s 9(1)(b) of the Veterans' Entitlements Act 1986 (Cth). It was not put to this Full Court, or to Foster J, that s 9(2) of the Veterans' Entitlements Act limits this provision. The words of s 9(1)(b) require that there be a causal connection between the eligible war service and disease or injury. That is, the eligible war service must contribute in a causal way to the injury or disease: see Repatriation Commission v Law (1980) 47 FLR 57 at 67-68. Eligible war service encompasses not only active service but all the incidents of service, such as life in camp. Under s 9(1)(b), but not under ss 9(1)(d) and 9(2), if an injury or disease is claimed to have arisen out of or be attributable to a serviceman's period of camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred. Denning J has said that the service 'must be a cause as distinct from being part of the circumstances in or on which the cause operates'. See Marshall v Minister of Pensions [1948] KB 106 at 110; W v Minister of Pensions [1946] 2 All ER 501 at 502; Minister of Pensions v Chennell [1947] KB 250 at 256. An illustration of the point may be found in Goward v Commonwealth (1957) 97 CLR 355 where Dixon CJ, Williams, Webb and Kito JJ held that the location of a camp near a railway line was merely the setting in which an accident had occurred and not a contributing cause. Their Honours said (at 364): 'It is correct no doubt that if the camp had not been near a railway line and if the deceased had not been living in the camp the accident would not have happened. But these are no more than antecedent conditions which are preliminary to, but hardly operative causes of, the accident.'" 31 Davies J noted (at 542) that causation is primarily an issue of fact and cited the judgment of Mason CJ in March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 515: "The common law tradition is that what was the cause of a particular occurrence is a question of fact which 'must be determined by applying common sense to the facts of each particular case' …[citations omitted]. As Dixon CJ, Fullagar and Kitto JJ remarked in Fitzgerald v Penn (1954) 91 CLR 268 at 277 'it is ultimately a matter of common sense' and [at 178] '(i)n truth the conception in question [ie causation] is not susceptible of reduction to a satisfactory formula.'" 32 Then, in an observation apt to be applied to the present argument that the appellant could have engaged in Army socialising off Base, Davies J said (at 542): "If the circumstances of eligible war service provide an operative cause contributing to the serviceman's injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life. The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease." 33 The expression "operative cause" comes from the passage in Goward at 364 cited by the primary judge in the present case and referred to above. In the present case the circumstances of Army life and the function of the Sergeants' Mess operated in the way described in the evidence as a contributing cause to the appellant's consumption of alcohol, and hence to his accident and injury. Indeed the present case is stronger than Tuite. The relevant circumstances - participation in the life of the Sergeants' Mess, including drinking therein - were not, like the boredom Mr Tuite encountered, unwanted but inevitable concomitants of serving in a camp. They were positive incidents of military life, adopted for very practical reasons, which created benefits for the appellant's employer the Commonwealth by helping to maintain a cohesive fighting unit. 34 Before the Tribunal there was no significant dispute as to the primary facts. It has not been suggested that there was any unexplained gap in the evidence, as was the case in Goward. The decisive point in that case was that there was no evidence at all as to what the deceased was doing on the railway line or as to where he was going at the time of his death: 97 CLR at 363-364. In the present case the Tribunal did not make a finding as to whether the appellant's consumption of alcohol at the Mess in fact was a contributing cause to his fall and consequent injury (see Repatriation Commission v Law (1981) 147 CLR 635). This was not due to any lack of evidence but because the Tribunal, incorrectly in my view, took the view that his attendance at the Mess and consumption of alcohol therein did not "arise out of any task that (the appellant) had to do as a soldier". 35 Whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law: Hope v Bathurst City Council (1980) 144 CLR 1 at 7 per Mason J, with whom all other members of the High Court agreed. Mason J (at 8) adopted the analysis of Kitto J in NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 511-512 which requires the following approach: (i) Is the relevant statutory expression used in any other sense than that which it has in ordinary speech (a question of law)? (ii) If no, what is the common understanding of the words (a question of fact)? (iii) Are different conclusions reasonably open as to whether the operations in question fall within the ordinary understanding of the words as so determined (a question of law)? (iv) If yes, what is the correct conclusion (a question of fact)? 36 In the present case, the expression "arose out of, or was attributable to, any defence service", although made up of ordinary words, is one that conveys a compound legal concept. It is not like the ordinary word "business" which was at issue in Hope or the word "insulting" (Brutus v Cozens [1973] AC 854). For upwards of a century in common law jurisdictions courts have construed the meaning of such expressions in workers' compensation legislation. Accordingly the correct application of the expression to the facts found in the present case raised a question of law for the purposes of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), subject to the need to make a further finding on the causation issue, as explained above (at [34]). 37 The Tribunal erred in law in the application of this statutory criterion. It effectively ignored what the appellant was, as a matter of practicality, required or expected to do as part of his service in the Army. The primary judge did not correct that error. It might also be said that if injury can only arise out of or be attributable to defence service if it occurs when the claimant is doing something which he or she is ordered to do, it is strange that the Act contemplates injury being compensable even when it arises out of disobedience of an order, as long as there has not been a serious default or wilful act or a serious breach of discipline. 38 The appeal should be allowed, the order of the primary judge set aside, and in lieu thereof there should be an order that the application of the appellant be remitted to the Tribunal. The Commission should pay the appellant's costs of the appeal and in the court below. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

WHITLAM AND MARSHALL JJ 39 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 40 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. 41 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 42 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."

43 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 44 The primary judge considered the legislative context. He referred to s 70 (5) of the Act and to s 120B(3) which he said at [9]: "… directed the respondent, and on review the Tribunal, to be reasonably satisfied that the left knee injury was defence-caused only if:

'(a) the material before the Commission raises a connection between the injury, … and some particular service rendered by the person; and

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

that upholds the contention that the injury … is, on the balance of probabilities, connected with that service.'"

45 His Honour noted at [10] that the respondent accepted that there was a relevant Statement of Principles ("SoP") which upheld the contention that the injury can be related to defence service. 46 The issue before the primary judge was whether the AAT erred in law in deciding that the knee injury had no connection with Mr Roncevich's defence service in the circumstances. 47 The primary judge held that the AAT's finding of fact that Mr Roncevich's attendance at the function and his excessive drinking at the function were not related in any way to Mr Roncevich's defence service was open to it. His Honour considered that "those findings were clearly open to the Tribunal". 48 The primary judge said that the AAT did not err in law in making its critical finding. Its task was to consider whether the injury arose out of defence service and that required it to consider whether "there [was] a causal connection between the defence service and the incapacity from the left knee injury". 49 The primary judge rejected a contention of counsel for Mr Roncevich that the AAT erred in law by failing to answer whether defence service was a cause of the injury. He noted that the AAT rejected the claims of Mr Roncevich that he:

• attended the function because of a service-related "moral obligation", and
• was on 24 hour call. 50 The primary judge rejected the criticism that the AAT did not deal with the relevant SoP. He pointed out that it was unnecessary for it to do so. His Honour also rejected the contention that the mere existence of a relevant SoP required the injury to be accepted as defence-caused. 51 His Honour did not accept a contention that the AAT should have considered the injury to be defence caused because it would not have happened but for Mr Roncevich having rendered defence service. The primary judge noted at [25], in that regard, that the AAT: "… did not accept the applicant's claims that he was obliged to attend the function, and to consume alcohol, as part of his defence service."

52 The primary judge also rejected a submission based on s 196B(14) of the Act. At [27] and [28] his Honour said that: "Finally, in relation to this ground of appeal, the applicant sought to invoke in aid s 196B(14) of the Act, and to contend the Tribunal had failed in law to find in favour of the applicant by reason of s 196B(14) of the Act. Section 196B sets out the functions of the Repatriation Medical Authority (the Authority). Section 196B(2) prescribes the circumstances in which the Authority must determine a Statement of Principles setting out, inter alia, the factors that must as a minimum exist, and which of those factors must be related to service, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of a particular kind with the circumstances of that service. There are complementary provisions in subs 196B(3) - (11). Section 196B(14) defines when a factor causing, or contributing to, an injury, disease or death is "related to service" as that expression is used in subs 196B(2), (3) and (11). I do not consider it alters, or is intended to alter, the primary provisions by virtue of which an entitlement to a pension for incapacity under the Act is specified. That entitlement, for present purposes, is determined under s 70(1) and s 70(5) of the Act, applying the relevant onus of proof as expressed in s 120(4) and as then applied in accordance with s 120B and the relevant Statement of Principles. Thus, not surprisingly, s 196B(14)(b) and s 196B(14)(e) as applicable to the Authority in performing its functions under s 196B mirror in practical terms s 70(5)(a) and ss 70 (5)(c) and (7). Moreover, the relevant SoP leaves open the factual question whether the factor found to exist and upon which, on the balance of probabilities, the left knee injury can be service related is in fact service related. Clause 5 of the relevant SoP is referred to in [10] above. Clause 4 of the relevant SoP provides that at least one of the factors set out in cl 5 (in this instance, direct trauma to the left knee) "must be related to any relevant service rendered by the" applicant. It leaves that question of fact to be determined. Section 196B(14) then explains what is meant by that expression. It is expressed in terms which then require consideration, in this instance, of s 70(5)(a) and s 70 (5)(c) and (7). That is what the Tribunal did. In my judgment, its approach was not an erroneous one." 53 The primary judge rejected the submission that the AAT had not given a "sufficiently beneficial construction" to s 70(5) of the Act, in the circumstances of the case. 54 His Honour rejected the submission by counsel for Mr Roncevich that the AAT's reasons were inadequate and did not set out the relevant evidence and other materials on which it was based. At [33] to [34] the primary judge said: "In this matter, the respondent acknowledged before the Tribunal that the left knee condition of the applicant arose out of the fall from the window. There was no issue that the applicant satisfied one of the factors that must exist before it could be said that, on the balance of probabilities, his left knee injury is connected with his defence service, so that on sound medical-scientific evidence the Authority is of the view that it is more probable than not that the left knee injury could be related to the applicant's defence service. The real issue was whether the relevant factor, namely the fall, was in fact related to the applicant's defence service. That issue was identified and addressed by the Tribunal. In my judgment, the Tribunal's reasons adequately set out the reasons for its decision, including its findings on material questions of fact and a reference to the evidence on which those findings were based, including the parts of the evidence of RSM Lee which it accepted. It referred to certain evidence of the respondent. It made its findings on the basis of that evidence. It identified the issues it was required to address. It set out its conclusion. It explained why it reached that conclusion. It was not necessary also to refer to the relevant SoP because there was no dispute that, in accordance with the relevant SoP the fact that a fall could result in the left knee injury and could be service related was not an issue. The issue it addressed was not resolved by the relevant SoP, namely whether in fact the fall on 27 February 1986 was defence-caused."

55 A ground of review to the effect that s 70(5)(d) of the Act was not addressed, was dealt with by his Honour at [35] to [39] as follows: "The final ground of appeal was that the Tribunal failed to address, and apply, s70(5)(d) of the Act. In my judgment, that ground of review must fail. The provision contemplates a claim that the left knee injury was aggravated by defence service after it was first suffered on 27 February 1986, so as to contribute to the current incapacity as a result of the left knee injury. Such a claim was not made to the Tribunal, either initially or in the decision presently under review. The transcript of the hearing before the Tribunal on 24 April 2002 indicates that the applicant's claim in respect of the left knee injury was confined to whether the fall incident on 27 February 1986 brought the applicant within either s 70 (5)(a) or s 70 (5)(c) and (7). At one point, counsel appearing before the Tribunal may have raised with the Tribunal that the left knee injury had been aggravated by subsequent defence service activities so as to enliven s 70(5)(d), but upon questioning by the Tribunal the claim of aggravation was confined to a back condition which the applicant alleged also to have resulted from the fall on 27 February 1986 (and which was the subject of a consent determination before the Tribunal on 24 April 2002 and incorporated into its decision on 14 May 2002). Counsel for the applicant said that aggravation was relevant to the back injury but not the knee injury and as the back was no longer an issue the applicant was relying on trauma to make out his claim. Subsequently, the submissions to the Tribunal addressed ss 70(5)(a) and ss 70 (5)(c) and (7). The outline of submissions of the respondent of 24 April 2002 to the Tribunal also recognises those as the provisions to be addressed. Both parties, through counsel, acknowledged that if I concluded that the applicant had made no claim to the Tribunal that he is suffering incapacity from aggravation of the left knee injury by reason of his defence service after 27 February 1986, there was no reason why he could not now submit such a claim. I note, in addition, that the only material to which counsel for the applicant directed my attention as possibly supporting an "aggravation" claim under s 70 (5)(d) was a medical report of Dr D Millons dated 14 June 2000. I do not think it supports any such claim in respect of the left knee injury. Dr Millons refers to the medical history and the results of his examination before expressing his opinion generally. Much of his opinion concerns the applicant's back condition. He considers the left knee injury occurred in the fall on 27 February 1986, and has gradually deteriorated. He said he could find: "no cause to question the decision that has already been made in regard to the knee wherein it was apparently felt that it was not due to active service in the Army." Some of the applicant's submissions also referred to "the environment" or "the change in the environment". My consideration of the submissions confirms what was put by counsel for the respondent that such expressions were a shorthand means of expressing the claim that, because the applicant was required to attend the social function on 27 February 1986 or was in fact living on the base, somehow he was in fact on defence service at the time of the fall or would not have suffered the fall but for being on defence service by attending the social function. The references do not indicate that a claim under s 70 (5)(d) was pursued in respect of the left knee injury."

The appeal 56 On appeal counsel for Mr Roncevich repeated in substance the submissions rejected by the primary judge. It would serve no useful purpose to restate those contentions. It is sufficient to say that we agree with his Honour's reasons for rejecting them. 57 The reasons of the AAT were brief. We have reproduced its key conclusion at [43] above. It is true, as Heerey J observes, that neither in that passage nor in the next paragraph of its reasons did the AAT refer to the expression 'attributable to' used in s 70(5)(a) of the Act. Such an omission was not relied on as a ground of appeal below or before us. That is hardly surprising. The intoxication and the fall took place during Mr Roncevich's defence service. In that context, any notion of attribution would not suggest a less proximate causal relationship, between defence service and the injury, than would be conveyed by the expression 'arise out of', which expression was fastened upon by the AAT. 58 The critical finding of the AAT was that Mr Roncevich was not required to attend the relevant function on the day in question. Its view about whether the injury was defence caused was based on that finding. We agree with the primary judge that that finding was open to the AAT. Moreover, the statement by the AAT that the intoxication did not 'arise out of any task that Mr Roncevich had to do as a soldier' does not, in our view, suggest that the AAT took the view that the only relevant service was that performed by a member at risk of disciplinary action for insubordination. 59 The appeal should be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Whitlam and Marshall.

Associate: Dated: Counsel for the Appellant: Mr D De Marchi

Solicitor for the Respondent: Australian Government Solicitor