Comcare Australia (Defence) v O'Dea - [1997] FCA 1409

FEDERAL COURT OF AUSTRALIA

COMPENSATION - employee of the Commonwealth - injury occurring while travelling between “place of residence” and “place of work” - construction of “place of residence” - whether Army barracks was normal place of residence or temporary place of residence - construction of “place of work”.

Safety, Rehabilitation and Compensation Act 1988, ss 4, 6

COMCARE AUSTRALIA (DEFENCE) V DANIEL TROY O’DEA
VG 10 of 1997

NORTHROP J
MELBOURNE
12 DECEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 10 of 1997

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MRS JOAN DWYER (SENIOR MEMBER)
AND DR P FRICKER (MEMBER)

BETWEEN:

COMCARE AUSTRALIA (DEFENCE)
APPLICANT

AND:

DANIEL TROY O’DEA
RESPONDENT

COURT:

NORTHROP J

DATE OF ORDER:

12 DECEMBER 1997

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

The appeal be dismissed with costs.
The decision of the Tribunal made on 16 December 1996 be affirmed.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 10 of 1997

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MRS JOAN DWYER (SENIOR MEMBER)
AND DR P FRICKER (MEMBER)

BETWEEN:

COMCARE AUSTRALIA (DEFENCE)
APPLICANT

AND:

DANIEL TROY O’DEA
RESPONDENT

COURT:

NORTHROP J

DATE:

12 DECEMBER 1997

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

On Sunday 29 January 1995 the respondent (“Mr O’Dea”) was driving his car from Traralgon in Victoria to the Army barracks at Bandiana in Victoria. Near Yea the car was involved in an accident. Mr O’Dea received serious injuries. At the time of the accident Mr O’Dea was a member of the Australian Army returning to the barracks at the RAEME Training Centre at Bandiana. He claimed compensation for his injuries pursuant to the Safety, Rehabilitation and Compensation Act 1988 (“the Comcare Act”). His claim was disallowed by a determination made on 28 June 1995 on the ground that at the time of the accident he was on leave, that he was returning from his parents home in Traralgon to his normal place of residence, the barracks, not to his “employment”, to commence duties on Monday 30 January 1995 and thus he did not come within the provisions of s 6 of the Comcare Act. By a reviewable decision made on 6 November 1995, that determination was affirmed. Mr O’Dea sought a review by the Administrative Appeals Tribunal (“the Tribunal”) of the reviewable decision. On 16 December 1996, the Tribunal made orders setting aside the decision under review and varied the determination made on 28 June 1995:-

“........ to provide that the injuries sustained by Mr O’Dea arose out of, or in the course of, his employment and accordingly Mr O’Dea is to be paid compensation under s 14(1) of the (Act).”

Pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) the applicant (“Comcare”) appealed to this Court on a question of law from the decision of the Tribunal. The question…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1997] FCA 1409
Decision Date: 12 DECEMBER 1997

CaseChat Overview and Summary

Comcare Australia (Defence) brought an appeal to the Federal Court against the decision of the Administrative Appeals Tribunal, which found that Mr Daniel Troy O’Dea was entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 for injuries sustained in a car accident while travelling from his parents' home in Traralgon to his place of employment, the RAEME Training Centre at Bandiana. The key issues before the court were whether the Administrative Appeals Tribunal had correctly interpreted and applied the provisions of s 6 of the Act in finding that Mr O’Dea was injured while travelling between his place of residence and place of work, and if the Tribunal had erred in determining that Mr O’Dea was residing temporarily at the RAEME Training Centre for the purposes of his employment. The court found that the Tribunal had not erred in its interpretation of the terms “place of residence” and “place of work” and affirmed the Tribunal’s decision. The court held that the RAEME Training Centre, including the barracks, constituted Mr O’Dea’s place of work and that he was residing temporarily at the barracks for the purposes of his employment. As such, the appeal was dismissed with costs, and the Tribunal’s decision was affirmed.

Orders