Military Rehabilitation and Compensation Commission v Wall

[2005] HCATrans 960

[2005] HCATrans 960

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S365 of 2005

B e t w e e n -

MILITARY REHABILITATION AND COMPENSATION COMMISSION

Applicant

and

BARRY WALL

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 NOVEMBER 2005, AT 10.03 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with my learned friend, MS E. FORD, for the applicant.  (instructed by Sparke Helmore)

MR M.G. VINCENT:   May it please the Court, I appear for the respondent.  (instructed by Bale Boshev)

GLEESON CJ:   Yes, Mr Solicitor.

MR BENNETT:   Your Honours, this case involves a different question to that which came before this Court in Roncevich because the legislation here, the workplace safety legislation, unlike the legislation in Roncevich, specifically refers to the condition arising out of the duties of employment.  Roncevich of course involved a totally different language.

GLEESON CJ:   I was not in Roncevich.  What was the difference?

MR BENNETT:   Roncevich was a case about drinking, this is about smoking, but it is the same sort of thing as the excise cases demonstrate.  Roncevich involved a person who was introduced in the course of military service to various matters on the base which caused him to start drinking, and that caused effects in later life.  This case involves someone who, during his national service, took up smoking and that caused effects in later life.  I only say that because Roncevich is a recent case involving this sort of issue.

GLEESON CJ:   What is the point of departure between the majority in the Full Court of the Federal Court and the minority?

MR BENNETT:   Your Honour, the majority took the view that when the decision-maker talked about military service the decision-maker was talking about the duties of military service, and the majority sort took of a Wu Shan Liang approach of saying the decision-maker may have used the wrong phrase, but so what?

GLEESON CJ:   So what would be the question for us, a question of construction of the decision-maker’s reasons?

MR BENNETT:   Your Honour, we say it goes a little further than that, that is certainly part of it, but we say it is quite apparent when one looks at the decision that the decision-maker did not ask the most important question and simply asked the wrong question and, as a result, did not consider a number of matters which needed to be considered, namely the extent to which the duties of national service were what led the respondent to start smoking.

GLEESON CJ:   Justice Hely at first instance took the view that the decision‑maker did consider the right question, is that so?

MR BENNETT:   Yes.

GLEESON CJ:   The majority in the Full Court of the Federal Court said they did, and Justice Gyles in dissent said, “Even making the appropriate allowances and not being too pernickety, I think that the decision‑maker failed to consider the right question”.

MR BENNETT:   Yes.

GLEESON CJ:   Well, that is an interesting difference in points of view, but what would we be deciding if we granted special leave?  Everybody agrees on what the question was that the decision‑maker should have considered.

MR BENNETT:   Your Honours would be deciding within the vast number of smoking cases that arise from time to time that the correct approach for the Tribunal is to look at the duties.

GLEESON CJ:   But there is furious agreement on that, is there not?  The only dispute is whether or not the reasons of the decision‑maker in this case show that that was not done.

MR BENNETT:   Your Honour, yes, except that it is demonstrable that the decision‑maker just never asked the – it must be.  It is apparent on the decision that the decision‑maker just did not ask the question.  The decision‑maker just referred to military service and regarded being on the base and being in a convivial atmosphere that led one to smoke and so on, was sufficient, as opposed to whether the duties required matters which led to smoking.  The question was just never asked.  That is made clear by the dissenting judgment of Justice Gyles.  It would not be a long appeal, your Honour.  It is a very short issue.

There are many of these cases, and it is, we would submit, important that decision‑makers in the courts have guidance on exactly how it should be applied.  There is one further complication which we have raised in some supplementary submissions.  I should formally seek leave to file the submissions in reply, the supplementary ‑ ‑ ‑

GLEESON CJ:   Is that opposed, Mr Vincent?

MR VINCENT:   No, your Honour.

GLEESON CJ:   Yes, you have that leave.

MR BENNETT:   Your Honour, neither party in any of the proceedings below referred to some provisions which were in the Act at an intermediate stage which in effect define “employment” in such a way as to include the residence at a place by compulsion during one’s employment.  That, had it been applicable, would have determined the result in this case.  There is an argument which we say is not correct, that by virtue of various transitional provisions over different times that is relevant in relation to one of the two matters relied on by the respondent.

GLEESON CJ:   How many levels of decision making has this case already been through?

MR BENNETT:   The decision‑maker, Justice Hely, and the Full Federal Court, your Honour.  Three.

GLEESON CJ:   We are not going to decide at the fourth level of decision making whether Mr Wall got some compensation he was not entitled to, are we?

MR BENNETT:   Your Honour, the ‑ ‑ ‑

GLEESON CJ:   If we were to take this on there would have to be some disputed question of principle that we would be resolving.

MR BENNETT:   Your Honour, I am not sure of the extent to which the respondent completely accepts that contrary to Roncevich the test here is duties.  If so, it is hard to see how the respondent can point to anything in the decision which indicates that that was considered at all.  In other words, it is not a Wu Shan Liang situation.  It is a case where the whole wrong question was asked, and the real issue was never investigated.  In a situation where that has been affirmed by a Full Court on appeal by majority, there is a danger that that will become a guideline in the future.  Your Honour, there are many of these cases; most of them involve going back in history, for obvious reasons, and looking at transitional provisions.  In our respectful submission, it is appropriate that there be a case in which these matters are examined carefully and properly.

The ultimate decision might well have to be returning it to the decision‑maker to answer the question that was never asked.  The Court might find it could answer the question on the material and say, “Clearly it didn’t arise out of any duties”, but that is a detail I suppose which would be considered if leave were granted on the appeal.

Your Honours, in our respectful submission, the issue is sufficiently important.  Your Honours granted leave in Roncevich which involved a very similar question in relation to alcohol under the veterans legislation rather than the safety and workplace legislation.  In our respectful submission, it is important and leave should be granted.  May it please the Court.

GLEESON CJ:   Thank you, Mr Solicitor.  We do not need to hear you, Mr Vincent.

We are of the view that this case does not raise an issue suitable to a grant of special leave to appeal and the application is dismissed with costs.

AT 10.12 AM THE MATTER WAS CONCLUDED