Case: Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115
Outcome: applied
The use of the disjunctive expressions in s 9(1)(b) "arose out of" and "attributable to" manifested a legislative intention to give "defence caused" a broad meaning: see Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115 at 126 [27] where this construction was given to an analogous provision, s 70(5)(a). McHugh, Gummow, Callinan and Heydon JJ held that that meaning was not necessarily circumscribed by considerations such as whether the relevant act of the veteran was one that he was obliged to do as a member in the armed forces. They held that the test of attributibility was capable of being satisfied by a causal link alone or a causal connection without any qualifications. Their Honours held that, by failing to pose and answer to the correct question, the tribunal had committed an error of law which was appellable under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth): Roncevich 222 CLR at 126 [27]-[28]. 5 Their Honours had earlier accepted that whether an event arose in the course of an activity or "out of" an activity, depended upon such matters as the nature of the person's employment, the circumstances in which it was undertaken, and what, in consequence, the person was required or expected to do to carry out his or her actual duties. The connection must be causal, not merely temporal: Roncevich 222 CLR at 125 [23] 6 A veteran's claim for a pension in respect of his or her incapacity from a disease has to be assessed by the Commission (and then the tribunal) on the basis provided in s 120(1). If that incapacity related to operational service rendered by the veteran, the Commission had to determine that the disease was a war-caused disease "... unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination". Next, in applying s 120(1) in respect of the veteran's incapacity from disease related to service rendered by him or her, the Commission must be satisfied beyond reasonable doubt that there is no sufficient ground for determining that it was a war-caused disease. It may only reach this conclusion if the Commission, "... after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the ... disease ... with the circumstances of the particular service rendered by the person" (s 120(3)). 7 In addition, s 120A(3) provides that, for the purpose of s 120(3), an hypothesis connecting a disease contracted by a person "... with the circumstances of any particular service rendered by the person" is reasonable only if there is in force: "(a) a Statement of Principles determined under subsection 196B(2) ... that upholds the hypothesis." There is no onus of proof on the veteran or anyone else, including the Commission, which applies to the determination of a claim (s 120(6)). 22 A finding of satisfaction beyond reasonable doubt requires the exclusion of any reasonable hypothesis consistent with the contrary. The question for the tribunal was whether, having regard to the hypothesis of Dr Volker, his obesity could be said beyond reasonable doubt not to have arisen out of or been attributable to Mr Gilkinson's operational service: Roncevich 222 CLR at 125-126 [23]-[28]; see too Byrne v Repatriation Commission (2007) 242 ALR 620 at 633 [58] per Buchanan J, with whom Gyles J at 621 [3] and Edmonds J at 623 [11] agreed. 30 I am of opinion that the amended notice of appeal did state questions of law. As was the case in Roncevich 222 CLR at 126 [28], the questions of law were whether the tribunal posed for itself and answered the two relevant questions. The tribunal's statement in the last sentence of [22] of its reasons, that nothing occurred during the operational service that in any way caused or contributed to Mr Gilkinson's obesity, over and above the existing fact that he was eating to excess and not exercising sufficiently, was a mere conclusion or assertion: cf: Byrne 242 ALR at 632 [53] per Buchanan J, Edmonds J agreeing at [10]. It did not advance a reason for negating beyond reasonable doubt Dr Volker's hypothesis that shift work could have caused or contributed to Mr Gilkinson's eating or not exercising. Instead, the tribunal simply stated a conclusion which indirectly may have rejected the hypothesis. But, it had to make a finding of fact as to whether that hypothesis had been disproved beyond reasonable doubt. Since Dr Volker put forward the hypothesis that shift work contributed to the eating disorder, the tribunal had to make findings which negated any causal effect of shift work on the obesity of Mr Gilkinson first observed in 1971 after he had completed 92 days of operational service for his country.