Commonwealth of Australia v Duncan, D.S

[1982] FCA 224

Re: COMMONWEALTH OF AUSTRALIA
And: DAVID STORRAR DUNCAN
No. A.C.T. G8 of 1982
Appeal

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION
Franki, Kelly and Fitzgerald JJ.

CATCHWORDS

Appeal from decision under Compensation (Commonwealth Government Employees) Act 1971 of Administrative Appeals Tribunal - Respondent injured on journey from place of employment by the Commonwealth - Whether injured on "journey . . . from his employment by the Commonwealth" - meaning of "reason unconnected with the employment of the employee by the Commonwealth" considered - Question of law - Undesirability of too close scrutiny of reasons of an administrative tribunal in endeavour to find error of law.

Compensation (Commonwealth Government Employees) Act 1971 Ss. 27, 32, 33, 34.

Administration Appeals Tribunal Act, 1975 - S. 44(1)

HEARING

CANBERRA

#DATE 15:10:1982

ORDER

THE COURT ORDERS THAT

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal be set aside.

3. The matter be remitted to the Tribunal for re-determination, each party being at liberty to present such further evidence as it or he may be advised.

4. By agreement the Commonwealth pay the respondent's costs of this appeal to be taxed.

JUDGE1

This is an appeal by the Commonwealth of Australia from a decision of the Administrative Appeals Tribunal, under s.44 of the Administrative Appeals Tribunal Act 1975 which provides for an appeal to this court on a question of law.

The respondent in these proceedings, David Storrer (or Storrar) Duncan, sought compensation under the Compensation (Commonwealth Government Employees) Act 1971 ("the Act"). Mr. Duncan had been unsuccessful before the delegate of the Commissioner for Employees' Compensation and the matter had been referred for reconsideration by a Compensation Tribunal and was transferred to the Administrative Appeals Tribunal by virtue of s.151 of the Commonwealth Functions (Statutes Review) Act 1981.

The Tribunal made the following findings of fact at pp.248-250:

"(i) the applicant was a steward in the Royal Australian Air Force ('RAAF') working at Fairbairn Base;

(ii) the applicant lived at Curtin, a Canberra suburb, approximately twenty-five minutes by motor car from Fairbairn RAAF Base;

(iii) the applicant's duties at Fairbairn were NCO in charge of the Officers' Mess Bar;

(iv) the applicant started his duties at the Officers' Mess at 9.15 a.m. on the morning of 23 July 1979 and:

(a) had lunch between 12.30pm and 1.00 p.m.,

(b) had a break in duties at the Officers' Mess between 2.00pm and 4.30pm during which time he went to Queanbeyan on business and then went to the Queanbeyan Golf Club where he played pool and had a couple of middie size shandies (50/50) returning to the Officers' Mess at Fairbairn at approximately 4.00pm.,

(c) had three middies of beer during work between 4.45pm and approximately 8.pm.

(d) had his last meal at approximately 6.30pm consisting of curry and rice,

(e) finished duties at the Officers' Mess between 7.30 p.m. and 8.15 p.m., changed out of mess kit into his blues; then or at some later time he proceeded to the Airmen's Club at Fairbairn and drank 5 middies and one schooner between the hours of 8.00/9.00 p.m. to 10.20 p.m.,

(f) the applicant left the Airmen's Club, drove in his car to the main gate of the Base where he went through a security check and then left Fairbairn for home at approximately 10.25 p.m. by motor vehicle. As he approached the intersection to Canberra Airport he was dazzled by lights, swerved to the left side into gravel, skidded out of control, rolled and crashed."

It also found at p.251:

"... that the applicant drove when he was under the influence of liquor to an extent to which it was unsafe for him to drive. It is not in dispute that the route the applicant used was a direct route between the RAAF Base Fairbairn and his home".

The Tribunal said at p.254:

"It is argued for the respondent that the journey commenced when the applicant ceased duties at the Officers' Mess and that the visit to the club amounted to such an interruption thus bringing the exclusion into play. This argument turns on whether the applicant's employment is to be taken to be the RAAF Base at Fairbairn or at the Officers' Mess on that Base."

It later said at pp.255-256:

"That general approach applies to the applicant's employment with the RAAF notwithstanding that he lived off the Base. Facilities were provided for changing uniforms and, at the Airmen's Club for recreation. On paying 'R & O' he could sleep on the Base. Entry and exit to the Base were subject to control by RAAF Security Police. On this evidence I think the best view is that the applicant's place of employment was the RAAF Base at Fairbairn as a whole and not the Officers' Mess and I find this as a fact.

I do not have to make a finding on whether the attendance at the Airmen's Club purely socially when there was no particularly organised function was in the course of the applicant's employment. However, taking the view as I have done that the employment was at the RAAF Base it follows that the journey did not commence until the applicant left the RAAF Base. I am therefore of the view that on these facts, as in Miller's case, (1973) W.C.R. 154 there was no journey commenced in the time which could be interrupted before the applicant left the Base."

The Tribunal made the following orders:

"The matter will be remitted to the Commissioner for reconsideration with the directions that:-

(1) the applicant was injured on a journey from his employment to which sub-s 32(1) applies;

(2) although the injury was attributable to serious and wilful misconduct it has resulted in serious and permanent disablement of the employee;

(3) he is therefore entitled to compensation."

Section 32(1) of the Act provides:

"Subject to this section, this Act applies in relation to a journey by an employee to his employment by the Commonwealth (irrespective of the place at which the journey commenced) or in relation to a journey by an employee from his employment by the Commonwealth (irrespective of the place at which the journey is intended to end) as if the journey constituted part of his employment by the Commonwealth."

Section 32(3) makes it clear that s.33 does not limit by implication the generality of s.32((1).

The critical issue is whether at the time of the accident the respondent was on a journey "from his employment by the Commonwealth". It was common ground that if he was, he was entitled to compensation as provided by s.27 of the Act.

The Tribunal found that the respondent was injured in a journey from his employment. It is true to say that this finding was based very largely on a finding that the respondent's place of employment was the RAAF Base at Fairbairn as a whole and not the Officer's Mess. The critical question is whether or not the approach of the Tribunal was wrong and introduced an error of law by directing attention to a journey from the place of employment rather than from the employment of the respondent.

In my opinion this argument has not been made out. Three cases in the High Court are particularly relevant. The first is The Commonwealth v. Wright (1956) 96 C.L.R. 536, the second is Adcock v. The Commonwealth (1960) 103 C.L.R. 194 an the third The Australian Coastal Shipping Commission v. Averell (1969) 122 C.L.R. 348. The first two cases concern members of the Forces who were both living and working at the same place. The third case, which I consider to be the critical one in considering the issue before us, concerns a seaman required to work and live on the ship but free to leave it to travel to his home during certain periods. In the first two cases s.9A of the Commonwealth Employees' Compensation Act 1930 was under consideration and in the third case s.5AA(1) of the Seaman's Compensation Act 1911-1964. So far as is relevant s.9A provided at the time: "(1) Where personal injury by accident is caused to an employee while he is travelling to or from - (a) his employment by the Commonwealth (including any school in relation to which sub-section (2) of the last preceding section applies)... the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the accident were an accident arising out of or in the course of his employment.

(2) In this section, 'travelling' means travelling by the shortest convenient route for the journey and does not include travelling during or after any substantial interruption of the journey or any substantial deviation from the route made for a reason unconnected with the employee's employment, attendance at the school or obtaining the certificate, treatment or compensation, as the case may be: provided that the Commissioner may, on behalf of the Commonwealth, accept liability, if he considers that in the circumstances of any particular case the nature, extent, degree and content of the risk of accident was not materially changed or increased by reason only of any such interruption or deviation."

Section 5AA(1) of the Seamen's Compensation Act 1911-1964, so far as is relevant, provided in 1969:

"Where personal injury by accident is caused to a seaman - (a) while he is travelling to or from his employment; ... his employer shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the accident were an accident arising out of or in the course of his employment".

It may be relevant to notice that s.9A of the Commonwealth Employees' Compensation Act in 1944 used the words: "... personal injury by accident is caused to an employee while he is travelling to or from work...". By s.4 of Act No.61 of 1948 this section was amended so that the critical words became "by accident ... caused to an employee while he is travelling to or from - (a) his place of employment by the Commonwealth ...". By s.4 of Act No.27 of 1951 the words "place of" were omitted so that the critical words were "travelling to or from his employment" which are the same words as those used in s.32(1) of the Act now under consideration which replaced the Commonwealth Employees' Compensation Act 1930.

The Seamen's Compensation Act 1911 was amended by s.5 of Act No.7 of 1949 so that s.5AA(1) read: "Where personal injury by accident is caused to a seaman whilst he is travelling to or from (a) his place of employment ... the employer shall ... be liable to pay compensation in accordance with this Act as if the accident was an accident arising out of or in the course of his employment".

In 1953 this section was replaced by s.4 of Act No. 10 of 1953 in a way which provided, so far as is relevant, for compensation "where personal injury by accident is caused to a seaman while he is travelling to or from his employment...". It will be seen therefore that the relevant section of the Act under consideration in Averell's case had a similar history to the Act now under consideration by this Court. In Averell's case a seaman who worked on the ship and necessarily had to remain on board for the performance of his duties nevertheless had a home in his home port. On the occasion in question he had returned to his home during a period when he was free to do so and he suffered injury on the journey from his home to the ship. The three members of the High Court who heard the appeal, McTiernan, Kitto and Menzies JJ., delivered a joint judgment in which they said at p.351:

"In a series of cases, The Commonwealth v. Wright (1956) 96 C.L.R. 536; Adcock v. The Commonwealth (1960) 103 C.L.R. 194 and The Commonwealth v. Hollis (1968) 118 C.L.R. 305, the Court has considered the meaning and application of s.9A of the Commonwealth Employees' Compensation Act and has established, not without dissent, that a worker can only be said to be travelling to or from his employment if there is 'a real connexion between the journey and the employment in the sense that the immediate purpose of the employee in making the journey must be either to enter upon the duties which his employment imposes upon him or to absent himself temporarily from those duties', to use the language of Fullagar J. in The Commonwealth v. Wright (1956) 96 C.L.R. at p.552. What has been found to be implicit in the section is the necessity for a journey from a place of abode, permanent or temporary, to a place where the duties of employment are to be performed. See The Commonwealth v. Wright at p.553, and per Kitto J. at p.557; Adcock v. The Commonwealth per Fullagar J. (1960) 103 C.L.R. at p.204, per Kitto J. at p.205 and per Windeyer J. at pp.210, 213 and 214.

In this case the fact that the applicant was returning from his home to the ship provides the terminus a quo and the terminus ad quem for the seaman's journey, so that it was rightly held that, in the circumstances stated, he was travelling to his employment, notwithstanding that he was required to and did live on board his ship."

After referring to Davey v. Union Steamship Co. of New Zealand Ltd. (1953) S.A.S.R. 35 the Court said at p.351:

"The decision is clearly distinguishable for here we have the fact that the seaman was returning from his home to his employment at the time when he was injured.

Acceptance of the appellant's argument would leave hardly any scope for the application of s. 5AA(1) for all seamen upon sea-going ships are required to, and do, 'live in'. This consideration is one which, we think supports our conclusion."

I distinguish Wright's case and Adcock's case from Averell's case in that in Averell's case the journey under consideration was a journey from the seaman's home to his place of work and this was treated to be the relevant question even when the section referred to "travelling to or from his employment". The Court did not refer to the time at which Averell was required to commence work.

In the passage I have set out the Court referred to passages from the judgment of Fullagar J. and Kitto J. in Wright's case and the judgment of those two judges in Adcock's case. An examination of the passages referred to shows that these two judges paid great regard to the place of employment. In Wright's case Fullagar J. at p. 553 said:

"The notion of travelling from employment is perhaps a little more difficult, for the reason that it is more natural to characterise a journey by reference to its point of destination than by reference to its point of departure. But a man cannot, in my opinion, properly be said to be travelling from his employment unless the occasion of his journey is the cessation for the time being of the duties of his employment and his primary purpose is to leave those duties behind him."

Kitto J. at p.557 said:

"Accordingly I should understand s.9A(1)(a) to be referring only to personal injury by accident which is caused to an employee while travelling (in the defined sense) between a place at which he is to perform, or has been performing, duties of his employment by the Commonwealth and a place which is his place of abode, either permanent or temporary."

This passage was quoted with approval by Fullagar J. at p. 204 in Adcock's case.

The passages in Adcock's case to which the Court referred in Averell's case include that of Fullagar J. at p.204 to which I have just referred.

The reasons of Kitto J. in Adcock's case, referred to Averell's case, include the following at p.205:

"For example, I think on reflection that a part-time soldier going from his civil employment to a military parade would be travelling to his employment by the Commonwealth in the sense of the Act. But that, I think, would be because his living away from his place of military employment divides his life into opposed compartments geographically separated, so that moving from the one to the other satisfies the notion of a 'travelling' to or from his employment by the Commonwealth."

In my opinion it is necessary to pay adequate regard to the fact that in Wright's case and Adcock's case the serviceman was living and working in the same place, whereas, in Averell's case the journey was from the seaman's home to the ship.

In those circumstances the view of the Court in Averell's case was that one had regard to the place of abode and the place where duties of employment were to be performed.

In my opinion the Tribunal has made a clear finding of fact that the respondent was injured on a journey from his employment to which s.32(1) of the Act applied. Although this finding was reached by a path which placed reliance on the place of employment I am not satisfied that the Tribunal made an error of law. The respondent was travelling to his home and in my opinion the Tribunal was justified in finding, if it so wished, that the journey from his employment had not commenced until the respondent left the base. It is appropriate to add that I am not saying that I would have reached the same conclusion.

In my opinion, this Court should not look over-critically at the words used in decisions by members of administrative tribunals, many of whom are not lawyers. An appeal to this Court is limited to a question of law and I am not satisfied that the Tribunal misdirected itself in any way which constituted an error of law. Consequently I would dismiss the appeal and order that the appellant pay the respondent's costs.

JUDGE2

In the late evening of 23 July 1979 the respondent, then a Corporal in the Royal Australian Air Force (R.A.A.F.) posted to the R.A.A.F. base, Fairbairn, Canberra, and employed in the mustering of steward as a non-commissioned officer in charge of the Officers' Mess bar at that base, was seriously injured when travelling by a direct route from the base to his home situated some miles away.

He had finished his duties for the day between 7.30 p.m. and 8.15 p.m., changed and then proceeded to the Airmen's Club on the base where he remained drinking until 10.20 p.m. He left the Club and then, at approximately 10.25 p.m., the base. At the time of the accident he was under the influence of intoxicating liquor to an extent at which it was unsafe for him to drive. His condition at that time substantially increased the extent of the risk that he might be injured while driving.

The applicant Commonwealth of Australia appeals to this Court from a decision of the Administrative Appeals Tribunal which set aside the rejection by the Commissioner for Employees' Compensation of the respondent's claim for compensation under the Compensation (Commonwealth Government Employees) Act 1971 (the "Act").

The Tribunal's detailed findings of fact, the direction given by the Tribunal to the Commissioner when it remitted the matter to him and the relevant sections of the Act are set out in the judgment of Fitzgerald, J. which I have had the advantage of reading. I will not set them out again at length.

The appeal to this Court is on a question of law only. Administrative Appeals Tribunal Act, 1975 - s. 44 (1). The Court is concerned, therefore, only with the question of law raised in the appeal and has no authority to make any findings of fact. The question of law is limited to the legal effect of the facts found by the Tribunal. It does not relate to any other findings of fact which, if made, may have been supported by the evidence. Bill Williams Pty. Ltd. v. Williams, (1972) 126 C.L.R. 146 at p. 154, per Walsh, J.

The Tribunal after a consideration of circumstances found as a fact that the respondent's place of employment was the R.A.A.F. base, Fairbairn as a whole and not the Officers' Mess. (Of course the Officers' Mess was the place where he normally performed his duties).

The Tribunal then concluded that the respondent commenced the journey from his employment when he left the base. It couched that conclusion in the following words:-

". . . taking the view as I have done that the employment was at the RAAF Base it follows that the journey did not commence until the applicant left the RAAF Base. I am therefore of the view that on these facts, as in Miller's case, there was no journey commenced in the time which could be interrupted before the applicant left the Base.

. . .

Accordingly the applicant is entitled to compensation in respect of an injury which took place on a journey from his employment by virtue of sub-s. 32(1)."

The language used is not, in my opinion, capable of any other construction but that the Tribunal equated a journey from the applicant's place of employment to a journey from his employment by the Commonwealth.

The question of the place of the respondent's employment was one of fact and I think the Tribunal was entitled to make the finding it did in that regard. There is no necessary error in a finding that a workman is still at his place of employment notwithstanding the fact that the place where he usually performs his duties is a great distance from the exit point of the extensive premises where his employer conducts its operations.

To establish the starting point from which the journey to which s.32(1) refers, it is clearly necessary to ascertain an actual place. The sub-section is not concerned with the destination of the journey from employment or the starting point of the journey to employment. It is silent on the starting point of the journey from employment and the destination of the journey to employment.

If the respondent had left the base within an hour of ceasing work there would have been no question but that the journey so commenced would have been from his employment by the Commonwealth for it would be deemed to be such a journey by virtue of the provisions of s.33(1). S.32(2) provides that s.33(1) may not be construed to limit by implication the generality of s.32(1). I do not presently see any way in which s.33(1) may be construed to extend by implication the generality of s.32(1) and am forced, therefore, to attempt to construe s.32(1) with the aid of relevant authorities.

The principal authorities are The Commonwealth v. Wright, (1956) 96 C.L.R. 536 and Adcock v. The Commonwealth, (1960) 103 C.L.R. 194. In those cases the High Court scrutinized s.9A of the now-repealed Commonwealth Employees' Compensation Act, 1930. The part of that section relevant to the present problem was as follows:- "(1.) Where personal injury by accident is caused to an employee while he is travelling to or from -

(a) his employment by the Commonwealth

... the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the accident were an accident arising out of or in the course of his employment."

When first enacted in 1944 the section provided that the Commonwealth was liable to pay compensation when personal injury by accident was caused to an employee while he was travelling to or from work. S.4 of Act No.61 of 1948 amended s.9A so that the Commonwealth became liable to pay compensation to an employee when personal injury by accident was caused him while travelling to or from his place of employment by the Commonwealth.

By s.4 of Act No.27 of 1951 the words "place of" were omitted from paragraph (a) of sub-s.(1) so that in part it took the form quoted above.

The legislative history of s.9A of the repealed Act makes it plain that there was to be some differentiation between "place of employment by the Commonwealth" and "employment by the Commonwealth". Commenting on the difference at p.553 of the report of Wright's Case, Fullagar, J. said, "Even when s.9A stood in that form, I am inclined to think that the purpose of the journey to or from the specified place would not have been an irrelevant consideration, and that a case where a journey to or from that place had no relation to the duties to be performed at that place might have been held to fall outside the section. It is not necessary, however, to determine that question. The section now speaks simply of travelling to or from an employment and not to or from a place of employment, . . . The object of these amendments of 1951 was most probably to widen the field in one direction and to narrow it in another. At any rate, we now have an abstruct terminus ad quem and an abstract terminus a quo, and it is only by reference to the purpose or occasion of the journey in relation to duties of employment that any satisfactory meaning can, to my mind, be given to the language used. A man cannot, in my opinion, be properly said to be travelling to his employment unless the purpose of his travelling is to assume the duties of his employment. The notion of travelling from employment is perhaps a little more difficult, for the reason that it is more natural to characterise a journey by reference to its point of destination than by reference to its point of departure. But a man cannot, in my opinion, properly be said to be travelling from his employment unless the occasion of his journey is the cessation for the time being of the duties of his employment and his primary purpose is to leave those duties behind him."

He went on to say,

"In the ordinary case of a civilian employee, while it would be too much to say that no difficulty can arise, no serious difficulty is likely to arise. For in such cases the circumstances will be present which were doubtless primarily in the contemplation of the draftsman of s.9A. Such an employee will normally, to put it shortly, live in one place and work in another place. The daily journey from his home or place of abode to the place where the duties of his employment are performed may be regarded as an incident of that employment, and it is to an accident happening on such a daily journey that I have no doubt that s.9A is primarily directed. . . . But the conception, which seems implicit in s.9A(2), of a regular journey from a place of abode to a place where the duties of an employment are to be performed is not, generally speaking, appropriate to the case of a member of the defence force."

The precise ratio of Wright's Case is not easily determined. However, I think it is set out succinctly in the judgment of Webb, J. At p.551, he said,

"To support a claim for compensation the accident to a civilian employee must have arisen out of or in the course of his employment, or when travelling to or from his employment, that is to say, to or from a state of activity called 'employment', as distinct from the place where that activity takes place. And so I think it is a proper inference from the Act that to support a claim for compensation the accident to a soldier must have arisen out of or in the course of his service, which would include travelling on that service to or from a military camp, and when going on leave from the camp or returning to the camp on the expiration of leave; but not otherwise for personal reasons."

The debate, which occupied a considerable part of Wright's Case, as to whether the destination from the employment or the point of departure to the employment was or was not the abode of the employee is no longer of any concern, having regard to the terms of s.32(1) of the Act.

Adcock's Case was concerned with a journey from an Air Force base by a member of the R.A.A.F. He, however, lived on that base. Having been stood down from his duties at 4.50 p.m., he then worked on a friend's car in a private capacity, had his evening meal and at about 6.30 p.m. drove from the base at Amberley intending to go to Brisbane to see a film there. He was injured on the way and sought compensation in respect of the injury. His appeal to the High Court from a decision of the Magistrate's Court in Queensland dismissing his appeal from the determination of the Delegate of the Commissioner for Employees' Compensation failed.

In The Commonwealth v. Hollis, (1968) 118 C.L.R. 305, a case taken on its facts as being on all fours with Adcock's Case, Windeyer, J. said at p.308,

"The word 'travelling' in the section postulates a moving from place to place; and the phrase 'to or from his employment' predicates of such movement that it has a beginning ('from') or an intended end ('to'). The beginning and end of the man's travelling is then described by reference rather to purpose than to place - the purpose being either to take up or resume the work he is employed to do, or for the time being to leave it behind him. The section seems to me to deal with persons who are on their way to or from their work or duties."

S.9A of the Commonwealth Employees' Compensation Act 1930 had, for all purposes relevant to this matter, its exact counterpart in s.5AA of the Seamen's Compensation Act 1911 (Cth.). S.5AA was considered in Australian Coastal Shipping Commission v. Averell, (1969) 122 C.L.R. 348. In that case the injured respondent was on 2 May 1966 a seaman serving on a ship which was then in his home port and on which he had been at work until 5 p.m. He was required to live on board during the currency of his articles subject to periods of absence outside working hours when in port. He was not required to work between 5 p.m. and 8 p.m. on that day and could have remained on board although free to leave the ship between 6 p.m. and 8 p.m. He left the ship and went to his home. He was returning in a motor vehicle which he was driving, intending to be on board by 8 p.m. to start work, when he sustained injury by accident.

At p. 351, the Court said,

"In a series of cases, The Commonwealth v. Wright ((1956) 96 C.L.R. 536); Adcock v. The Commonwealth ((1960) 103 C.L.R. 194) and The Commonwealth v. Hollis ((1968) 118 C.L.R. 305), the Court has considered the meaning and application of s. 9A of the Commonwealth Employees' Compensation Act and has established, not without dissent, that a worker can only be said to be travelling to or from his employment if there is 'a real connexion between the journey and the employment in the sense that the immediate purpose of the employee in making the journey must be either to enter upon the duties which his employment imposes upon him or to absent himself temporarily from those duties', to use the language of Fullagar J. in The Commonwealth v. Wright ((1956) 96 C.L.R. at p. 552). What has been found to be implicit in the section is the necessity for a journey from a place of abode, permanent or temporary, to a place where the duties of employment are to be performed."

The Court seems to have confirmed in that passage that the phrase "from his employment" is to be interpreted as meaning not from the place of employment but from the duties of employment.

It follows, in my opinion, that what has to be determined is whether the respondent was journeying from a state of activity called employment, using that word in its appropriately ample sense, and not whether he was journeying from his place of employment.

It seems clear that the legislature in passing the Act was concerned to enlarge somewhat the rights which had been available to Commonwealth Government employees under the Commonwealth Employees' Compensation Act. For example, those parts of s. 32 (1) appearing in parenthesis may well have been enacted to ensure that some of the difficulties which may have arisen as a result of the restrictive view taken by Kitto, J. in Wright's Case concerning the destination of an employee "travelling from his employment" were overcome. But a perusal of s. 9A of the earlier Act and of s. 32 of the Act discloses, in my opinion, no such change as would warrant a departure in this case from the reasoning adopted by the High Court in Wright's and Adcock's Cases.

If one leaves aside the question of whether attendance at the Airmen's Club was either in the course of the respondent's employment or connected with that employment, it is difficult to see that the respondent's situation was any different from that of the ordinary civilian employee. However, in deciding whether his journey to his home on the night in question was a journey from his employment by the Commonwealth, it is necessary to take into account all the circumstances of his sojourn at the Airmen's Club.

The Tribunal simply did not address itself to the question which s. 32 of the Act read in the light of Wright's and Adcock's Cases poses. That question is not, in my opinion, necessarily the same as that considered by the High Court in Danvers v. Commissioner for Railways (N.S.W.), (1970) 122 C.L.R. 529, for there the Court was considering not the phrase "from his employment" under consideration in this case but the phrase "in the course of employment"; but I think guidance to the approach to be taken in resolving it may be obtained from the words of Barwick, C.J., with whom Kitto and Windeyer, JJ agreed, in Danver's Case. Dealing first, at p.536, with the construction of the phrase "in the course of employment", he said,

"It has become apparent in Australia that what is in the course of an employment cannot be limited to what the employee is by the terms of his engagement express or implied contractually bound to do. ... The course of an employment, to use the language of Dixon J. in Henderson v. Commissioner of Railways (W.A.), ((1937) 58 C.L.R. 281, at pp.293, 294), includes the doing of 'whatever is incidental to the performance of the work' and will include what he 'is reasonably required, expected or authorized to do in order to carry out his actual duties'. Thus it may include being at a place at which the workman's presence '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'."

He then went on,

"In applying such a statement to the facts and circumstances of a particular case, its elements, in my opinion, should be applied liberally and practically."

In my opinion, the Tribunal decided only that the respondent was injured during the course of a journey from his place of employment. It did not direct its attention to the real question posed, namely, whether the journey during which the respondent was injured was a journey from his employment by the Commonwealth. Consistently with the reasoning in Bill Williams Pty. Ltd. v. Williams (supra) to which I have earlier referred, that question is for the Tribunal, not for this Court.

It may be that the journey which commenced at the exit point of the R.A.A.F. base was a journey from the employment of the respondent by the Commonwealth. Equally, it may not. I do not suggest that a journey from a place of employment by the Commonwealth may not properly be equated to a journey from employment by the Commonwealth. In most cases, one would expect that the two journeys would coincide.
But when the Tribunal said,

"I do not have to make a finding on whether the attendance at the Airmen's Club purely socially when there was no particularly organised function was in the course of the applicant's (respondent's) employment",

it thereby put out of consideration a matter essential to its consideration of whether the journey of the respondent was a journey from his employment by the Commonwealth.

If upon reconsideration of the matter the Tribunal were to come to the conclusion that it had been in error in holding that the journey in question commenced when the respondent quitted the base, it would have to consider the first two questions posed by Fitzgerald, J. for I respectfully agree with his view of the meaning of the phrase "an interruption made for a reason unconnected with the employment of the employee by the Commonwealth" appearing in sub-s.32(3) of the Act.

The Court should not, in my opinion, scrutinize too closely decisions of members of administrative tribunals which it is called upon to reconsider in an endeavour to find errors of law. Where, however, there has been, as I think in this case, a clear error of law in the approach taken by such a tribunal, the view just expressed may not be allowed to override the right of a party to a matter before it to have its case determined according to law.

Since is is the Tribunal's task to make the relevant findings, there does not seem to be any alternative but a re-determination.

I agree that the questions for the Tribunal are likely to be those set out by Fitzgerald, J. in his reasons for judgment and that each party have an opportunity to present such further evidence as it or he may be advised.

I would accordingly allow the appeal, remit the matter to the Tribunal for re-determination and order by consent that the respondent pay the appellant's costs.

JUDGE3

The Commonwealth of Australia has appealed from a decision of the Administrative Appeals Tribunal in favour of Mr David Storrar Duncan ("the employee"). The Tribunal overruled a determination by a delegate of the Commissioner for Employees' Compensation under the Compensation (Commonwealth Government Employees) Act 1971 ("the Act") that the employee was not entitled to compensation. The Tribunal remitted the matter to the Commissioner with directions that:

(a) the employee was injured on a journey from his employment to which sub-s. 32(1) of the Act applied;

(b) although the injury was attributable to serious and wilful misconduct it resulted in serious and permanent disablement of the employee;

(c) the employee was therefore entitled to compensation.

Sub-sections 27(1) and (3) and 32(1), (2) and (3) of the Act respectively provide:

"27. (1) If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act.

. . .

(3) If an injury to an employee is not intentionally self-inflicted but is attributable to his serious and wilful misconduct, the Commonwealth is not liable under sub-section (1) of this section to pay compensation in respect of that injury unless the injury results in the death or serious and permanent disablement of the employee.

32. (1) Subject to this section, this Act applies in relation to a journey by an employee to his employment by the Commonwealth (irrespective of the place at which the journey commenced) or in relation to a journey by an employee from his employment by the Commonwealth (irrespective of the place at which the journey is intended to end) as if the journey constituted part of his employment by the Commonwealth.

(2) The next two succeeding sections shall not be construed as limiting by implication the generality of the last preceding sub-section.

(3) Sub-section (1) -

(a) does not apply, and shall not be deemed to apply, in relation to a journey or a part of a journey by a route that is not reasonably direct having regard to the means of transport used unless -

(i) the journey or that part of the journey was made by that route for a reason connected with the employment of the employee by the Commonwealth; or

(ii) in the circumstances of the particular case, the nature of the risk of sustaining an injury, contracting a disease, suffering an aggravation, acceleration or recurrence of a disease or suffering loss of, or damage to, an artificial limb or other artificial substitute, or a medical, surgical or other similar aid or appliance, used by the employee, as the case may be, was not substantially changed, and the extent of that risk was not substantially increased, by reason that the journey or that part of the journey was made by that route; and

(b) does not apply, and shall not be deemed to apply, in relation to a part of a journey made after a substantial interruption of the journey, being an interruption made for a reason unconnected with the employment of the employee by the Commonwealth, unless, in the circumstances of the particular case, the nature of the risk referred to in sub-paragraph (ii) of the last preceding paragraph was not substantially changed, and the extent of that risk was not substantially increased, by reason of that interruption."

In paragraph 7 of the reasons for its decision, the Tribunal said:

"7. With one exception the facts of this matter are not in issue. I find them as follows:

(i) the applicant was a steward in the Royal Australian Air Force ("RAAF") working at Fairbairn Base;

(ii) the applicant lived at Curtin, a Canberra suburb, approximately twenty-five minutes by motor car from Fairbairn RAAF Base;

(iii) the applicant's duties at Fairbairn were NCO in charge of the Officers' Mess Bar;

(iv) the applicant started his duties at the Officers' Mess at 9.15 a.m. on the morning of 23 July 1979 and:

(a) had lunch between 12.30p.m. 1.00 p.m.,

(b) had a break in duties at the Officers' Mess between 2.00 p.m. and 4.30p.m. during which time he went to Queanbeyan on business and then went to the Queanbeyan Golf Club where he played pool and had a couple of middie size shandies (50/50) returning to the Officers' Mess at Fairbairn at approximately 4.00 p.m.,

(c) had three middies of beer during work between 4.45 p.m. and approximately 8 p.m.,

(d) had his last meal at approximately 6.30 p.m. consisting of curry and rice,

(e) finished duties at the Officers' Mess between 7.30 p.m. and 8.15 p.m., changed out of mess kit into his blues; then or at some later time he proceeded to the Airmen's Club at Fairbairn and drank 5 middies and one schooner between the hours of 8.00/9.00 p.m. to 10.20 p.m.,

(f) the applicant left the Airmen's Club, drove in his car to the main gate of the Base where he went through a security check and then left Fairbairn for home at approximately 10.25 p.m. by motor vehicle. As he approached the intersection to Canberra Airport he was dazzled by lights, swerved to the left side into gravel, skidded out of control, rolled and crashed."

(The applicant there referred to was, of course, the employee.) It was common ground that the Airmen's Club was located on, or would involve only a minor deviation from, the route from the Officers' Mess to the main gate of the Base, and that the employee travelled from the Officers' Mess to the Airmen's Club in his car. The Tribunal also found that the route which the employee was following, when injured, was a direct route between the RAAF Base, Fairbairn, and his home, that his blood alcohol level at the time of the accident was 0.103, and that he was under the influence of alcohol to an extent at which it was unsafe for him to drive. The increased blood alcohol content was found to amount to a substantial increase in the risk involved in the employee's driving of a motor vehicle. After finding, in paragraph 18 of its reasons, "that the applicant's place of employment was the RAAF Base at Fairbairn as a whole and not the Officers' Mess", the Tribunal continued in paragraph 19 of its reasons:

"I do not have to make a finding on whether the attendance at the Airmen's Club purely socially when there was no particularly organised function was in the course of the applicant's employment."

(I have added the underlining in each quotation.) The Tribunal's finding that the whole Base was the place at which the employee was employed led to further conclusion that the employee's journey had not commenced until he left the Base, and that the journey from that place was a journey from the employee's employment. It was found that the journey was not interrupted.

At one point or another in each party's submissions, the Base was not regarded as a single entity but treated as divided into its component buildings and other facilities, and it was argued that the employee's employment did not extend beyond the performance of his duties as the N.C.O. in charge of the Officers' Mess. From this, each argued to a different end that the employee's place of employment was not the Base but the Officer's Mess, that when he departed from there in his motor vehicle he commenced his journey from his employment, and that the journey included his passage to the Airmen's Club. Each party claimed to be entitled to succeed by virtue of sub-ss. 32(2) and (3) of the Act. Both parties' arguments involved further factual questions on which no findings were made by the Tribunal. Sub-s. 32(3) provides express limitations on the operation of sub-s. 32(1). It lays down specific tests to be satisfied in particular situations in which sub-s. 32(1) might be expected to fall for frequent consideration, viz., deviations from and interruptions of a journey to or from employment. No limitation additional to that expressly provided for is to be implied: sub-s. 32(2).

The employee's argument sought to take advantage of para. 32(3)(a) but, in my opinion, without success. Although there was no finding by the Tribunal, there is little, if any, basis for a suggestion that the employee's journey, including on the hypothesis now under consideration the leg from the Officers' Mess to the Airmen's Club, was other than "reasonably direct having regard to the means of transport used". Further, para 32(3)(a) may be concerned, primarily at least, with injuries occurring during a part of a journey which resulted from a deviation from a reasonably direct route. But in any event it could not avail the employee to establish both that his journey commenced at the Officers' Mess and that that journey was "not reasonably direct". Sub-section 32(3) only ever operates to limit, never to extend, the scope of sub-s. 32(1): so, even if the employee succeeded in bringing himself within sub-paragraph (i) or (ii) of para 32(3)(a), that would only operate to exempt him from the exclusion from sub-s. 32(1) which would otherwise result from his journey having been other than "reasonably direct". In the result, the application of sub-s. 32(1) would not be excluded by the operation of para 32(3)(a), but nor would it necessarily apply; its application might still be excluded otherwise, e.g. by the operation of para 32(3)(b), or because the circumstances of the journey do not fit the criteria expressed in sub-s. 32(1) itself.

For the Commonwealth it was submitted that the employee's sojourn at the Airmen's Club was "a substantial interruption of the journey, being an interruption made for a reason unconnected with the employment of the employee by the Commonwealth", and that accordingly, by virtue of para 32(3)(b), the journey was not within sub-s. 32(1) because the Tribunal found that the relevant risk was substantially increased by reason of that interruption.

In Napoli v. Arthur H. Stephens (N.S.W.) Pty Ltd (1970) 1 N.S.W.R. 125, the New South Wales Court of Appeal expressed the opinion in relation to a section of the Workers' Compensation Act, 1926 as amended (N.S.W.) that the question whether a step was taken for a reason connected with an employee's employment is different from, and wider than, the question whether the step was taken in the course of his employment. An appeal was dismissed by the High Court on another ground: (1969) 45 A.L.J.R. 452 (note). It is plain that s.32 is not concerned with whether an injury occurred in the course of employment. Section 27 deals with such a situation. The assumption of both sub-ss. 32(1) and 32(3) in a case such as the present is that the employee, when injured, is not in the course of his employment but that his employment has run its course and that he is on a journey from his employment.

The Tribunal found as a fact that the whole Base was the place at which the employee was employed. That finding was open to it, and cannot now be called into question. It also found as a fact, in paragraph 19 of its reasons, that it followed from its finding that the employee's place of employment was the whole Base that the journey on which he was injured did not commence until he left the Base. Accordingly, no question arose whether any interruption to the journey was or was not connected to the employee's employment. No doubt, it is generally correct that every journey must have an identifiable place as a commencing point and there seems much to be said for the Tribunal's view as to the point of commencement of the material journey in this case. The contrary proposition that the commencing point of the employee's journey was the Airmen's Club, not the Base, possesses features which lack appeal. The compartmentalization for such purpose of a Base or other site or building in the occupation of a single employer strikes me as generally likely to be unduly rigid and artificial. Such an approach would, if correct, have been relevant in cases such as The Commonwealth v. Wright (1956) 96 C.L.R. 536 and Adcock v. The Commonwealth (1960) 103 C.L.R. 194. Further, it seems to me that it might give rise to unintended consequences in the application of sub-s. 32(3). Nonetheless, I am troubled by the language in which the Tribunal expressed its reasons for concluding that the whole Base was the commencing point of the employee's relevant journey. What was said suggests that there was no basis for that conclusion other than the earlier finding that the whole Base was the place at which the employee was employed. Having regard to the conclusion at which I have arrived that there must be a rehearing on another issue and my reasons for that decision, I do not think that it would be fair to the employee to hold that there was no error of law by the Tribunal in arriving at its factual finding that the journey on which he was injured did not commence until he left the Base. If, as it seems, the Tribunal considered that the journey must have commenced only when the employee left the Base because that was the place of his employment, it erred. In my opinion, it would be appropriate to send the question of the commencement of the journey back to the Tribunal for a re-determination.

As I have intimated, I am of opinion that the appeal must be allowed. The Tribunal's finding that the whole Base was the place at which the employee was employed cannot in the present case of itself support the conclusion that the journey from the Base in the course of which the employee was injured was a journey from his employment. The only matter in respect of which the Tribunal expressly declined to make a finding was whether the employee's attendance at the Airmen's Club was in the course of his employment. However, it also did not find what, if any, relationship there was between that attendance and his employment. I consider that it is now established by a series of decisions of the High Court, commencing with The Commonwealth v. Wright, supra, that the question whether an employee, including a member of the services, was travelling from his employment depends not only on the place from which he was travelling but on the purpose for which he was there, and that the question whether an employee was travelling to his employment depends not only on the place to which he was travelling but on the purpose for which he was going there. In a number of the cases an employee lived at the place at which he was employed which therefore had a dual role: see The Commonwealth v. Wright and Adcock v. The Commonwealth, supra. I do not think that it can be determined whether an employee was or was not, at the time at which he was injured, on a "journey ... from his employment by the Commonwealth" within the meaning of sub-s. 32(1) of the Act by reference merely to the place from which he was travelling; investigation is also necessary into his activities whilst he was there as to their relationship, if any, with his employment. For present purposes, the place at which a man is employed will not, in all circumstances, necessarily be his place of employment in the sense that it can be said that, if he is travelling from that place, he is travelling from his employment. I can find nothing in the decisions of the High Court including the judgment in The Australian Coastal Shipping Commission v. Averell (1969) 122 C.L.R. 438 when what was said is read with the facts there under consideration, which justifies a contrary conclusion. My view of sub-s. 32(1) seems to me to be supported by sub-ss. (2) and (3) of s.32 and by ss. 33 and 34 which, by the special provisions they make with respect to deviations, interruptions, points of commencement and termination, and times of journeys by employees, serve to emphasize the basic statutory policy of extending protection to employees not only whilst at work but whilst travelling provided that there is a sufficient relationship with their employment; in some circumstances, the need for enquiry with respect to an employee's purpose or activities is avoided where the relationship with his employment is sufficiently close otherwise, e.g. in point of time.

I am accordingly satisfied that, accepting the Tribunal's view that the whole Base was the place at which the employee was employed and, indeed, even if it was correct in its determination that his journey did not commence until he left the Base, the Tribunal's ultimate factual conclusion in relation to sub-s. 32(1) of the Act, viz., that, when injured, the employee was on a journey from his employment, was founded upon a misapprehension, and that the Tribunal failed to take into account the employee's activities at the Airmen's Club and what, if any, relationship they had with his employment. The Tribunal as I read its reasons, could not be said merely to have omitted mentioning such matters. It seems to me to have made a positive determination that they did not fall for consideration. That was a demonstrable error of law.

The employee sought to counter this difficulty by relating his drinking after work in the Airmen's Club to his employment. Indeed, he submitted that the interlude at the Airmen's Club occurred "in the course of his employment", so that, when he left the Base, he was departing not merely from his place of employment as a place, but from his place of employment as the place at which, until his departure, he had been engaged in employment activities. Counsel for the Commonwealth submitted that the employee's drinking at the Airmen's Club was not in the course of his employment or, alternatively, that this Court could not hold that it was in view of the Tribunal's refusal to make a finding one way or another. It is, of course, necessary to be conscious of the limits of this Court's power on an appeal from the Tribunal. The Court cannot form its own view where more than one conclusion of fact is reasonably open.

The test of what constitutes "course of employment" in the subject context has been variously expressed. For example, in Bill Williams Pty Ltd v. Williams (1972) 126 C.L.R. 146, Stephen J. said at pp. 158-159:

"Injury in the course of employment means an injury sustained while the worker is engaged in the work which he is employed to do or in something incidental to that work: Kavanagh v. The Commonwealth (1960) 103 C.L.R. 547 per Fullagar J. at p.559. It is a concept devoid of any casual link between the work which the worker is employed to do and the injury sustained, "there is nothing more in the concept than time measured by activity of a particular character": Kavanagh v. The Commonwealth (1960) 103 C.L.R. 547, per Menzies J. at p.570. It is a temporal concept but the relevant time span during which the course of employment runs is determined by the activities of the worker; so long as he is engaged in his work or something incidental to it the time span endures; as soon as he ceases to be so engaged the time span ends and with it the course of employment.

That which is incidental to a worker's work depends upon "the sufficiency of the connexion between the employment and the thing done by the employee" which is "a matter of degree, in which time, place and circumstance, as well as practice, must be considered together with the conditions of the employment": Whittingham v. Commissioner of Railways (W.A.) (1931) 46 C.L.R. 22 per Dixon J. at p.29. It is a consideration of these factors that determines whether or not a worker has sustained his injury while engaged in something incidental to his work and the task is aided by asking whether he "was doing something which he was reasonably required, expected or authorized to do in order to carry out his duties": Humphrey Earl Ltd v. Speechley (1951) 84 C.L.R. 126 per Dixon J. at p.133: whether the accident has happened "while the workman is doing something in the exercise of his functions although it is no more than an adjunct to or an incident of his service": Pearson v. Fremantle Harbour Trust (1929) 42 C.L.R. 320 at p.330."

The submission for the employee that his drinking at the Airmen's Club occurred in the "course of employment" was founded upon the proposition that the course of employment comprehends not only "the performance of duties and the pursuit of the ends laid down for the employee", but also that which, although "incidental, ancillary or consequential to work" is "yet sufficiently within the sphere of ... employment ..." (Commonwealth of Australia v. Oliver (1961) 107 C.L.R. 353, per Dixon J. at p. 356). Attention was drawn to evidence which showed that the Club is a facility provided, managed and controlled by the Commonwealth, that alcohol is sold there, that membership is an automatic consequence of possession of an appropriate rank in the Royal Australian Air Force, and that members are encouraged to use the Club to foster team spirit. The Commonwealth did not dispute these facts, save that last-mentioned and then only with respect to the interpretation of an answer in which the employee said that he and his fellows were encouraged to use the "Mess" at Fairbairn. In the context, I have no doubt that he was referring to the Airmen's Club. Great emphasis was placed by the employee upon the encouragement given him and his fellow members to resort to the Airmen's Club and reference was made to the modern "more complex, more sophisticated and practically wider" employment relationship in which social activities "as a means of fostering good employer-employee relations as well as good relations between the employees themselves" can be a recognizable incident: see Wolmar v. Travelodge Australia Ltd (1975) 26 F.L.R. 249 per Connor J. at p.255. No doubt these are proper matters to be brought to account in appropriate cases.

A superficially similar case to the present is Miller Hotels Pty Ltd v. Tunks (1973) W.C.R. 154, in which the New South Wales Court of Appeal had before it an appeal from the New South Wales Workers' Compensation Commission by way of stated case. The Commission had made an award in favour of an employee in respect of injuries which she had sustained on her way between the hotel where she worked and the place where she lived. The employee was a casual barmaid. On the day in question she ceased her duties at 10.30 p.m. and thereafter partook of some food and alcohol and engaged in conversation with fellow workers at the hotel until shortly prior to 2 a.m., a period of approximately 3 1/2 hours. She then left the interior of the hotel, got into her vehicle, and proceeded to drive in the direction of her home when she was involved in an accident and injured. One of the questions raised on the appeal was whether she was at the relevant time on a journey from her "Place of employment", a term defined in the relevant legislation. The submission made was that what had been her place of employment had, by reason of the lapse of time and her activities, lost that character. Reynolds JA, with whom Hutley and Bowen JJA agreed, after saying that the definition of "Place of employment" clearly referred to a geographical area, continued (at p.155):

"It seems to me that the learned member made a finding of fact that she was on such a journey, and this Court cannot interfere with the finding unless it be unsupported by evidence, or, to put it another way, if his Honour was bound in law to find to the contrary. There was, in my opinion, evidence that she had left her place of employment on a journey to her place of abode; ... No doubt there can be cases, as was conceded by counsel for the respondent, where, having regard to the lapse of time and the conduct and activities of a worker after the cessation of duties and before the commencement of an alleged journey, it would not be open to a tribunal of fact to hold that the journey was one to which s.7 applied. This, however, is not such a case, and lies in an area where it was a matter of degree, and therefore of fact, for the Judge..."

That decision is of little present assistance. It is clearly distinguishable. The legislation there was concerned with the journey from an employee's "place of employment" in the then statutory sense, not from an employee's "employment". Further, it depended on its own facts. The Court recognized that cases might arise in which, "having regard to the lapse of time and the conduct and activities of a worker after the cessation of duties and before the commencement of an alleged journey", it would not be open to a tribunal of fact to hold that the journey was one within the legislation.

It does not seem to me to serve any purpose in the present case to seek to define the circumstances in which an employee might resort to a club, canteen or other facility provided by the employer for a drink after work and remain in the course of his employment. Certainly, I am not persuaded that the mere fact that an employee had finished his duties for the day and departed from the immediate section of the premises in which he performed such duties to go to another part of the building or site to join his workmates for a drink and enjoy their companionship would necessarily mean that he was no longer in the course of employment. Nonetheless, there seems to me evidence to support a conclusion in this case that, as a matter of law, prior to the time at which he departed from the Airmen's Club, the employee's employment on the day of the accident had run its course and that his continued drinking interlude at the Airmen's Club thereafter did not occur in the course of his employment. His excessive consumption of alcohol, taken in conjunction with the other circumstances, including his travel by car from the place of his duties to the Club and the time which he spent there, tend to establish that the connection between his presence on the Base and his employment had been severed, that he was on the Base for the purpose of his private pursuits, and that prior to his departure from the Airmen's Club he had so far deviated from what was "reasonably incident to the execution of his duties" that he was proceeding "on a purpose of his own not fairly resulting from the nature or incidents of the employment": Humphrey Earl Limited v. Speechley (1951) 84 C.L.R. 126, per Dixon J. at p.134. However, I have concluded that to make a decision as to whether what was done was done in the course of employment would involve trespassing beyond the legal evaluation of facts found onto the making of findings of fact. Neither the various expressions of what constitutes "course of employment", nor the assistance to be obtained as to the scope and operation of that concept from the decided cases, can be an exclusive substitute for the question whether an injury arose in the "course of employment" when that is in issue. The scope of what is within the course of employment depends upon "the sufficiency of the connection between the employment and the thing done by the employee", which "cannot but remain a matter of degree, in which time, place and circumstance, as well as practice, must be considered together with the conditions of the employment", to requote Dixon J. in Whittingham v. Commissioner of Railways (W.A. (1931) 46 C.L.R. 22 at p.29, cited by Stephen J. in Bill Williams v. Williams (supra) at p.159.

I do not think it open to doubt that, if a journey on which an employee was injured commenced at his workplace and, until his departure, he had been engaged there in the course of his employment, the journey would be a journey from his employment within the meaning of sub-s. 32(1) of the Act. It remains for me an open question whether the converse is true. As I have earlier stated, s.32 is not concerned with whether an injury occurred in the course of employment. Section 27 deals with such a situation. The assumption of both sub-ss. 32(1) and 32(3) is that the employee, when injured, is not in the course of his employment but that his employment has run its course and that he is on a journey to or from his employment. It may well be that, in some circumstances, although a period had elapsed after the conclusion of the course of employment and before the commencement of a journey, the journey would still properly be considered as a journey from his employment. Whilst many, if not all, of the same considerations will be relevant in both cases, the question of whether a journey is from employment within the meaning of sub-s. 32(1) of the Act may not always be automatically answered by determining when and where, prior to the journey, the employee had ceased to be engaged in the course of his employment. It is unnecessary to consider that further in this case. On any view, the Tribunal failed to take into account considerations relevant to whether the relevant journey fell within sub-s. 32(1).

Most if not all of the same considerations will also be relevant to the question of what, if any, connection existed between the employee's employment and his period at the Airmen's Club. However that will only arise for decision if the Tribunal, on reconsideration, concludes that although the whole Base was the employee's place of employment, the journey on which he was injured commenced when he left the Officers' Mess.

The appeal should be allowed, the decision of the Tribunal set aside, and the matter remitted to the Tribunal for re-determination. In my view it is appropriate that each party have an opportunity to present further evidence if desired having regard to the questions for the Tribunal's decision which seem to me likely to be the following:

(i) whether the journey on which the employee was injured commenced prior or subsequent to the period which he spent in the Airmen's Club?

(ii) if the journey commenced prior to the period which he spent in the Airmen's Club, was the reason for the interruption of the journey which then occurred

(a) substantial
(b) unconnected with his employment by the Commonwealth?

(iii) if the journey commenced subsequent to the period which he spent in the Airmen's Club, was the journey from his employment?

By agreement, the Commonwealth is to pay the costs of this appeal.