Jamieson, Trevor John v Repatriation Commission

[1984] FCA 169

Re: TREVOR JOHN JAMIESON
And: THE REPATRIATION COMMISSION
No. QLD G126 of 1983
Repatriation
2 FCR 311

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Fitzgerald J.(1)

CATCHWORDS

Repatriation - appeal from decision of Repatriation Review Tribunal - conduct of proceedings before the Tribunal - change in composition of those sitting as Tribunal to decide appellant's case - appellant a private in Royal Australian Infantry Corps - injured in motor collision - whether "travelling to ... his place of employment on ... service" - not travelling to "his place of employment" if he left it for private purposes.

Repatriation Act 1920, ss. 107M,107VG,107VH,107VN,107VQ,107VR, 107VZZH, and sub-s. 107VZZK(3)

Compensation (Commonwealth Government Employees) Act 1971, s.32

Repatriation - Repatriation Review Tribunal - Change in composition while review part heard - Whether permissible - Whether member of Army returning to base during leave is travelling to his place of employment - Repatriation Act 1920 (Cth), ss 107M, 107VG, 107VH, 107VN, 107VQ, 107VR, 107VZZH, and s. 107VZZK(3).

Words and Phrases - "Travelling to place of employment" - Repatriation Act 1920 (Cth), s. 107M(2).

HEADNOTE

Held: (1) A change in the persons constituting the Repatriation Review Tribunal while an application is part heard is not authorised by the Repatriation Act 1920 (Cth).

(2) A member of the services who resides at the place where he is employed will not be travelling to his place of employment within the meaning of that expression in s. 107M(2) of the Repatriation Act 1920 (Cth) if he left it for private purposes, is not returning from a period of temporary residence elsewhere and his immediate purpose for returning is that the place to which he is travelling is the place at which he resides.

HEARING

Brisbane, 1984, May 15; June 19. #DATE 19:6:1984

APPEAL.

Appeal under s. 107VZZH of the Repatriation Act 1920 (Cth).

J. A. Griffin, for the appellant.

J. Jerrard, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: P. McCawley.

Solicitors for the respondent: T. A. Sherman, Commonwealth Crown Solicitor.

G.F.V.

ORDER

1. The Appeal be dismissed. Appeal dismissed.

JUDGE1

This is an appeal under s.107VZZH of the Repatriation Act 1920, as amended, ("the Act"), from a decision of a Repatriation Review Tribunal delivered on 30 November 1983.

1. The appellant, Trevor John Jamieson, was injured in a motor vehicle collision which occurred on 7 June 1975. At the time, the appellant was a Private in the Royal Australian Infantry Corps stationed at Woodside, about 40 kilometres from Adelaide in South Australia. The appellant resided in the army camp at Woodside as he was required to do.

2. On Friday 6 June 1975, the appellant and a number of his fellow soldiers came off duty at about 4 p.m. They were then free to leave the camp and to come and go as they pleased until required to parade on the morning of Monday 9 June 1975. However, while at the camp, each of the soldiers were subject to all of the incidents of military service including the possibility of being required to perform duties. Further, at some time between ceasing duty on Friday afternoon and parade on Monday morning, each had to do whatever was necessary to ensure that his equipment was in satisfactory condition for parade.

3. After leaving the camp on Friday afternoon and travelling to Adelaide where he spent some time drinking and some time in police custody, the appellant returned to the camp on the morning of Saturday 7 June. Later that day, he again left the camp and travelled to Adelaide. After drinking in a hotel just north of the main city area during the course of Saturday afternoon and evening, the appellant and another soldier left the city in the other soldier's car with the appellant driving. A collision occurred at about 9 p.m. and the appellant was injured. It is a possible view of the facts that the appellant was driving back to the camp to remain there until parade on Monday morning, for which he had already prepared his gear, spending the time in whatever manner he chose, subject to any possible orders which might have been given to him. The Tribunal seems to have made findings less favourable to the appellant but did also discuss the matter on that hypothesis.

4. The appellant was quite seriously injured in the motor accident. He ceased to be a member of the Army on 28 October 1975. He claimed a pension under the Act but his claim was rejected by a Repatriation Board and by the Repatriation Commission which gave its decision on 22 August 1980. The appellant applied on 21 October 1980 to have the decision of the Repatriation Commission reviewed by a Repatriation Review Tribunal. The present appeal is brought from the decision of the Tribunal which affirmed the decision of the Repatriation Commission.

5. It is common ground that the appellant's claim is based upon s.107M of the Act which, so far as is presently material, provides:
   
   

"107M(1) Upon the incapacity or death of a member to whom this Division applies whose incapacity or death has arisen out of, or is attributable to, his defence service or his peacekeeping service, as the case may be, the Commonwealth is, subject to this Act, liable to pay to the member, to the dependants of the member or to both, as the case may be, pensions in accordance with Division I, as applied by Section 107H.

(2) For the purposes of sub-section (1) but without affecting the generality of that sub-section, the incapacity or death of a member shall be deemed to have arisen out of his defence service or his peacekeeping service, as the case may be, if the incapacity or death was the result of -

(a) an accident that happened to the member while he was travelling to or from his place of employment on defence service or peacekeeping service, as the case may be;

...

(4) The Commonwealth is not liable under this section if the incapacity or death of the member - ...

(a) was due to the serious default or wilful act of the member;

(b) arose from intentionally self-inflicted injuries; or

(c) arose from, or from an occurrence that happened during the commission of, a serious breach of discipline by the member."

By virtue of s.107VH, the Tribunal was required to find for the appellant unless satisfied, beyond reasonable doubt, that there were insufficient grounds for granting his claim.

1. The Tribunal and its proceedings are the subject of Part IIIA of the Act. Sections 107VN and 107VQ provide, so far as presently material:
   
   

"Constitution of Tribunal for exercise of powers

107VN.(1) Subject to this section, the Tribunal shall, for the purposes of a proceeding, be constituted by - ...

(a) the President or a Deputy President;

(b) a Services member; and

(c) one other member.

Members to constitute Tribunal

107VQ.(1) The President may give directions, from time to time, as to the persons who are to constitute the Tribunal for the purpose of a particular proceeding or particular proceedings. ...

(2) A direction under this section -

(a) may specify the particular proceeding or particular proceedings to which it relates; or

(b) may be expressed to relate to such proceedings as the President may allocate from time to time to the Tribunal as constituted by the direction.

1. On 12 October 1981, the President of the Tribunal directed pursuant to s.107VQ of the Act that the Tribunal should be constituted in Queensland during a period which included 18 January 1982 by a Deputy President, Mr Bannister, and members, Messrs. Rothschild and Flynn.

2. On 30 October 1981, s.107VR of the Act was amended and after that date read as follows:
   
   

107VR.(1) Where - ...

(a) one of the members constituting the Tribunal by virtue of a direction under section 107VQ ceases to be a member or ceases to be available for the purposes of a proceeding; and

(b) the applicant consents, the 2 remaining members shall be deemed to constitute the Tribunal by virtue of the direction given under 107VQ until the President otherwise directs.

(2) Where the member referred to in paragraph

(1)(a) is a Presidential member, the President shall direct which of the 2 remaining members shall preside at any hearing of the proceeding. ...

...

(4) Where a proceeding re-allocated under sub-section (1) had been commenced, but had not been completed, before the re-allocation took place, the Tribunal as constituted for the purpose of that proceeding by virtue of that re-allocation may, in the proceeding before it, have regard to any record of the proceeding before the Tribunal as previously constituted, including a record of any evidence taken in the proceeding before the Tribunal as previously constituted."

1. The hearing of the appellant's application commenced before the Tribunal on 18 January 1982. The Tribunal was constituted by Messrs. Bannister, Rothschild and Flynn in accordance with the President's direction of 12 October 1981. The appellant was present, assisted by his father. There was no other appearance. The Tribunal had access to a file including statements by the appellant, the other soldier who had been a passenger in the car driven by the appellant, and the driver of the other car, and accident reports. The appellant's father read from a prepared statement and numerous questions were asked, some by each member of the Tribunal. Finally, after discussion of what were considered to be difficulties in the legal questions involved, the hearing was adjourned at the suggestion of the Tribunal on the basis that the Tribunal would decide the appellant's application by applying the decision which was to be given by this Court in another matter in respect of which an appeal had recently been instituted from the Tribunal. (I was informed from the Bar table that the other matter was Holthouse v. Repatriation Commission in which judgment was given by Davies J. on 21 June 1982.) The transcript of what occurred in the present matter in the Tribunal on 18 January 1982 leaves unclear whether it was contemplated that there might be further evidence or submissions but the hearing was adjourned to a date to be fixed and the appellant was promised a copy of the decision in Holthouse's Case when it became available.

2. No further step had been taken in respect of the present matter in the Tribunal when, on 3 May 1983, the President of the Tribunal directed pursuant to s.107VQ of the Act that the Tribunal "... be constituted for the period 30 May 1983 to 1 July 1983 in the locations and by the persons specified on the attached schedule dated 3 May 1983 and numbered 83/5 to hear and determine the proceedings allocated from time to time." Reference to the Schedule indicates that the Tribunal was to be constituted in Queensland on 22 June 1983 by the same Deputy President, Mr Bannister, but by two different members, Messrs Nolan and Hirst.

3. No attempt was made to suggest that Messrs. Rothschild and Flynn were not available to continue the proceedings in the Tribunal at any appropriate time after the publication of the decision in Holthouse's Case.

4. Messrs. Bannister, Nolan and Hirst sat as the Tribunal in respect of the appellant's claim on 22 June 1983. The appellant was again present, assisted by his father. Again, there was no other appearance. The Tribunal members had access to the same material which had been before the differently constituted Tribunal on the prior occasion, together with the record of that occasion. Numerous questions were again asked and answers given, and statements were made by each of the appellant and his father. Reliance was placed upon the "general service knowledge of the members of the Tribunal, all of whom served in the Regular Defence Force in peace-time".

5. The decision was reserved on 22 June 1983 and published on 30 November 1983. There is no material to indicate whether Messrs Bannister, Nolan and Hirst still constituted the Tribunal in Queensland at that time, or what, if any, further directions had been given by the Tribunal President pursuant to s.107VQ. The document published states, inaccurately according to the transcript, that "on 22 June 1983 the Tribunal decided - to affirm the decision made by the Repatriation Commission on 28 August 1980". However, it is not in dispute that that was the decision of Messrs. Bannister, Nolan and Hirst, whenever it was made.

6. In any consideration of a proceeding of the Tribunal, it is necessary to pay heed to s.107VG which provides:
   
   

"Tribunal not bound by technicalities, &c.

107VG. The Tribunal, in conducting a proceeding, or the hearing of a proceeding, or in making a decision in a proceeding, on a review -

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) shall act according to substantial justice and the merits and all the circumstances of the case, and, without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to -

(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; or

(ii) an absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a member of the Forces was not reported to the appropriate authorities."

However, it is not suggested that s.107VG provides a charter to the Tribunal to act entirely as it wishes. Indeed, other provisions of the Act and other considerations aside, sub-s. 107VG(b) itself expressly indicates to the contrary.

1. The Tribunal's proceedings are administrative and investigative, not judicial and adversarial. Nonetheless, it is not easy to accept with equanimity the absence of the Repatriation Commission from the proceedings of the Tribunal with the decision-makers left to gather material and to act as interrogators and "devil's advocates" vis-a-vis the applicant. Further, common sense, not "technicalities" or "rules of evidence", creates the obstacle to selection between opposing written descriptions of factual occurrences.

2. If all that be put to one side, the procedures in the present case far exceed any possible degree of latitude in what may be permissible in the proceedings of the Tribunal.

3. No statutory provision was pointed to which could support the change in composition of those sitting as the Tribunal to decide the appellant's case, and I can find no such provision. Section 107VR does not assist the respondent: if anything, by its specific provisions with respect to other changes which are permissible, it tends to imply the incorrectness of what was done. An attempt was made to support the hearing on 22 June 1983 as a hearing de novo but the facts are against such a conclusion. Indeed, a passage in the reasons given for the decision to affirm the refusal of the appellant's claim clearly establishes both the fact that there was a single proceeding and indicates the probable undesirability of Mr Bannister sitting on the second occasion if it had been a fresh hearing since he may already have had a view of the appellant's credibility from the prior occasion, perhaps influenced by his colleagues at that time, and, in his discussions with those with whom he sat on the final occasion, his views may have contaminated their opinions. The passage is as follows:
   
   

"Much of the evidence given at the hearing on 18 January 1982 and 22 June 1983 concerns the Applicant's recollection of the accident and the circumstances which led up to it. It also refers to the Applicant's understanding of his requirements for duty and the activities in which he had engaged during hours of stand-down while he was at Woodside. Some of the evidence is contradictory and tends to put a different colour on the incident and the intentions harboured by the Applicant by taking into account the lapse of time since the accident and the circumstances in which it happened.

From a consideration of the whole of the evidence, the Tribunal is satisfied that this application for review ought not to succeed."

1. Counsel for the respective parties referred before me to a considerable number of authorities in relation to the question which I have been discussing. I do not propose to attempt either a precise formulation of the applicable principle or an analysis of the cases. None would sustain the decision of the Tribunal in this case.

2. I should add that, quite properly in my view since the appellant and his father were both without legal qualification, no attempt was made to suggest that the appellant had consented to the course which the Tribunal followed.

3. The respondent sought to sustain the decision on another ground. It argued that the appeal should not be allowed or the matter remitted to the Tribunal because the claim could not succeed on the proper construction of sub-s. 107M(2). The appellant's counsel joined in a request that I deal with this point. The hypothesis for this purpose is that the appellant was driving back to camp to remain there until Monday morning, spending the time in whatever manner he chose subject to any possible orders which might be given to him. The question is whether, in such circumstances, he was "travelling to ... his place of employment on ... service". There was reference in argument to the making of a further assumption in favour of the appellant, namely that he would, between returning to the camp and Monday morning, prepare his gear for parade. The Tribunal seems to have found (and more importantly the evidence indicates) that the appellant had already attended to his gear on the Saturday morning. However, that matter is immaterial to my conclusion.

4. Similar problems have frequently been encountered. Some of the cases turn on their special facts or upon the different constructions given in different contexts to literally similar phrases: see, for example, Carbis v. Bounceball Pty Ltd (1972) VR 211; Miller Hotels Pty Ltd v. Tunks (1973) WCR 154; Whiting v. Brambles Industries Ltd (1976) 11 ALR 365. On the other hand, although there is still room for debate as to their operation in particular cases, the meaning of some phrases has become well-established; for example the phrases "to his employment" and "from his employment", which appear in s.32 of the Compensation (Commonwealth Government Employees) Act 1971: see Commonwealth of Australia v. Duncan (1982) 44 ALR 249 and cases cited; Maunder v. Commonwealth of Australia (1983) 51 ALR 44.

1. There is not the slightest doubt but that if the phrase in sub-s. 107M(2) were not "to or from his place of employment" but "to or from his employment", the appellant must fail: see The Commonwealth v. Wright (1956) 96 CLR 536; Adcock v. The Commonwealth (1960) 103 CLR 194; The Commonwealth v. Hollis (1968) 118 CLR 305; and The Australian Coastal Shipping Commission v. Averell (1969) 122 CLR 348. The latter case determined what had earlier been unclear, that the reason why the appellant would fail would be not because the camp was not his place of employment merely because he was living there but because he was not "travelling to his employment" although travelling to the place where he was employed. Whether or not 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": Duncan, supra, at p.266; cf. Norwest Beef Industries Ltd v. Janides (Full Federal Court, unreported judgment delivered 8 July 1983).

2. The line of decisions of the High Court to which reference has been made demonstrated beyond argument that the present appellant's journey would not satisfy the purposive element involved in travel "to his employment" if that were the test. However, the appellant quite correctly points to the different phrase in sub-s. 107M(2) of the Act.

3. Unfortunately for the appellant, whatever might be said concerning the literal meaning of the phrase "travelling to or from his place of employment", and whatever arguments might be advanced in support of the appellant's position, if the matter were one of first impression, the phrase has, in the context of a legislative provision such as that now under consideration, received an established construction which has been authoritatively approved and which I have no doubt I must adopt.

4. In Davey v. Union Steamship Co of New Zealand Ltd (1953) SASR 35, Napier C.J. said at pp 38-39:
   
   

"It seems to me that 'travelling to or from his place of employment' refers to a seaman who is joining his ship or going home. It may, perhaps, apply when a sailor is going on or returning from leave, and whether the place in which he spends his leave is his permanent home or a temporary residence, but it does not cover a seaman going to a race meeting, or to a public house for a drink, or, as in the present case, for a stroll ashore to post a letter. On the facts in evidence, the appellant was not travelling to or from the ship. He was returning from a walk ashore."

1. The quoted passage from Davey's Case was cited with approval in Wright's Case by Kitto J. at pp. 557-558 and in Adcock's Case by Fullagar J. at p.204 and Windeyer J. at p.210. In Averell's Case, the Court, consisting of McTiernan, Kitto and Menzies JJ., referred to these earlier approvals and obviously endorsed them, subject perhaps, in the case of McTiernan J., to the rider which he appended to the joint judgment.

2. Without either suggesting that what was said by Napier C.J. affords a judicial substitute for the statutory language or attempting an exhaustive explanation of what is meant by the provision, his Honour's statement is clear authority for the proposition that an employee (or a member of the services) who resides at the place where he is employed will not be travelling to his place of employment if he left it for private purposes, is not returning from a period of even temporary residence elsewhere, and his immediate purpose for returning is that the place to which he is travelling is the place at which he resides. No more is needed to defeat the appellant's claim.

3. The respondent also challenged the Tribunal's finding that sub-s. 107M(4) has no application. Even giving full effect to the provisions in the Act with respect to the need to be satisfied beyond reasonable doubt before a claimant will fail, the received view of the operation of such a provision (see, e.g. Hall v. J. & A. Brown and Abermain Seaham Collieries Limited (1953) 88 CLR 509 and Girlock (Sales) Pty Ltd v. Hurrell (1982) 40 ALR 45) called for more than the cryptic statement by the Tribunal:
   
   

"Finally, the Tribunal has noted the provisions of sub-section (4) of Section 107M, relating to disentitlement to pension in circumstances involving serious default, wilful action, self-inflicted injuries or serious breach of discipline. We have decided that these provisions have no application in this case.

The events which preceded the accident are unclear. No police action was taken under motor traffic legislation, and no disciplinary action was taken by Army authorities under the Defence Act."

However, it is unnecessary to say more in view of the conclusion at which I have otherwise arrived that the appeal must be dismissed.

1. I am satisfied that the just order as to costs is that each party bear his or its own costs: see sub-s. 107VZZK(3) of the Act.

2. The order of the Court is that the appeal be dismissed and that there be no order as to costs.