Singh, Ex parte re MIMA

[2000] HCATrans 583

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S27 of 2000

B e t w e e n -

NATALIE JANE VETTER

Appellant

and

LAKE MACQUARIE CITY COUNCIL

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 4 OCTOBER 2000, AT 10.18 AM

Copyright in the High Court of Australia

MR R.C. KENZIE, QC:   May it please the Court, I appear with my learned friend, MR I.D.M. ROBERTS, for the appellant. (instructed by Hunt & Hunt)

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR A.G. BELL, for the respondent. (instructed by Palmieri Lawyers)

GLEESON CJ:   Yes, Mr Kenzie.

MR KENZIE:   Thank you, your Honour.  If it please the Court, this matter is an appeal brought from the New South Wales Court of Appeal pursuant to special leave granted by the Court, and there have been written submissions filed in which the parties have identified the issues presented by the appeal.  In our case in relation to our submissions they are recorded in paragraph 1, point ‑ ‑ ‑

GLEESON CJ:   Which is the statutory provision that limited the right of appeal to the Court of Appeal?

MR KENZIE:   It is section 32 of the Compensation Court Act 1984, which is on our list of authorities, your Honour, and the legislation.

GLEESON CJ:   Thank you.

MR KENZIE: Section 32 has four subsections but, at the time relevant for this proceeding, subsections (1) to (3) were in force. Relevantly, subsection (1):

If a party to any proceedings before the Court constituted by a Judge is aggrieved by an award of the Judge in point of law or on a question as to the admission or rejection of evidence, that party may appeal to the Court of Appeal.

And then, relevant to another aspect of the matter before the Court, subsection (2):

The Court of Appeal may, on the hearing of any appeal under this section, remit the matter to the Compensation Court for determination by the Compensation Court in accordance with any decision of the Court of Appeal and may make such other order in relation to the appeal as the Court of Appeal sees fit.

GLEESON CJ:   I am looking at a:

Reprint No 6 

As in force at 24 July 1997 ‑

Is that the right version of section 32?

MR KENZIE:   Yes.  Prior to the amendments made in 1997, your Honour, yes.

GLEESON CJ:   This reprint:

Includes all amendments up to Act 1997 No 47.

MR KENZIE:   That is the one that adds subsection (4) which is irrelevant for the purposes of this appeal, as I understand it.

GLEESON CJ:   Right.  I just want to be sure that we have got the right section, that is all.

MR KENZIE:   Yes.  I do not think there is any dispute between the parties but if your Honour ‑ ‑ ‑

GUMMOW J:   That does not matter.

GLEESON CJ:   People poke fun at us if we write a judgment in which we quote the wrong statutory provision.

GUMMOW J:   And it is no answer that it was by collusion of the parties.

MR KENZIE:   No, your Honour.

GUMMOW J:   Now, section 32 was amended in 1991, I see, and 1989. There seems to have been a substituted section in 1995.

MR KENZIE:   Yes. What happened in 1995 – I do not have the text before me, your Honour, but until 1995 there was an all grounds appeal and it was replaced so as to limit the appeal in the manner indicated in section 32(1).

GUMMOW J:   Yes, and so it is the 1995 text that is the material one?

MR KENZIE:   The text from 1995.  It was ‑ ‑ ‑

GUMMOW J:   And you say that is in Reprint No 6?

MR KENZIE:   Yes, your Honour.

GUMMOW J:   Although it has been amended since, that would be irrelevant.

MR KENZIE:   It has been amended since. That would be irrelevant, yes, in our respectful submission. The case, as the Court knows, was a journey case arising under section 10 of the Workers Compensation Act 1987 and at issue is the jurisdiction of the Court of Appeal to overturn ‑ ‑ ‑

GUMMOW J:   Our colleagues all do not think every day about the Workers Compensation Act 1987. What is the relevant sections in that?

MR KENZIE:   I am coming to that, your Honour. The relevant section is section 10. We have set out the relevant provisions in our written submission from the bottom of page 3 through to page 4. Of particular relevance is subsection (1) and subsection (1A), which is relevant to the second point, the notice of contention of our learned friend. Subsection (2) which is relevant, although the particular ‑ ‑ ‑

KIRBY J:   Can I just interrupt to ask:  Justice Priestley, who had a minority view on the first issue took the view that the appeal should nonetheless be allowed and that the matter be reconsidered under (1A) again by the Compensation Court.  You do not dispute that?

MR KENZIE:   No.  Indeed, we say that that is the appropriate step.

KIRBY J:   That is the proper course?

MR KENZIE:   We concede that the errors of law discovered by the Court of Appeal were errors of law.  No issue has been taken in relation to that on the appeal.  The Court of Appeal said that those errors having been made, the matter should be remitted to the trier of fact for the purposes of the question of fault being determined.  We say that was correct.  It was certainly open to the Court of Appeal to do it.  They did it.

KIRBY J:   The respondent here says that the Court of Appeal should have formed its own view on the facts and this Court should now do so itself.

MR KENZIE:   Apparently, your Honour, and that appears to be an expression of preference.  It does not appear to be based upon any error that has been identified in relation to what the Court of Appeal did but perhaps I could come to that.  It is a point that we say can be swiftly dealt with.

GUMMOW J:   What would be the footing of the Court of Appeal’s jurisdiction on this theory?

MR KENZIE:   On my friend’s theory?

GUMMOW J:   Well, on anyone’s theory.  You say no error of law, no point of law, do you not?

GLEESON CJ:   On the first issue?

MR KENZIE:   Yes, we do.

GUMMOW J:   On the first issue.

MR KENZIE:   That is on the first issue.

GUMMOW J:   But on the second issue?

MR KENZIE:   On the second issue there was an error of law discovered and the Court of Appeal said that the trial judge had ‑ ‑ ‑

GUMMOW J:   But an error against you?

MR KENZIE:   It was an error that was made in our favour.

GUMMOW J:   Yes.

MR KENZIE:   And we failed in relation to that issue on the Court of Appeal.  No appeal is pressed in relation to that.  The Court of Appeal said that the matter has to go back to the Compensation Court.  We have no difficulty with that.  We say that is entirely appropriate.

KIRBY J:   Basically, you support Justice Priestley’s approach and his reasons and his order.

MR KENZIE:   Absolutely.

GUMMOW J:   But they do not fully disclose what I want to know, which is – so you would agree that if Mr Jackson appealed on this other point, there would have been a competent appeal, do you?

MR KENZIE:   If he had appealed on the second point, yes, there would have been a competent appeal.

GUMMOW J:   Yes, but was there process on that point?

KIRBY J:   Before the Court of Appeal.

GUMMOW J:   Before the Court of Appeal?

MR KENZIE:   Yes, it was one of the issues that was ‑ ‑ ‑

GUMMOW J:   No, was there process?

MR KENZIE:   Yes, your Honour.

GUMMOW J:   Is it in the ground of appeal.  In a notice of appeal.  Was there any initiating process in the Court of Appeal?

MR KENZIE:   Yes, your Honour.

GUMMOW J:   Thank you.

MR KENZIE:   If I could just say something briefly about the provisions now that we have gone to them.

KIRBY J:   But the result of your answer to Justice Gummow is that the Court of Appeal had undoubted jurisdiction because, on your own argument, it had jurisdiction on the fourth point.

MR KENZIE:   It did.

KIRBY J:   That is to say, the fault point.

MR KENZIE:   It did. It had jurisdiction to correct the decision of the Compensation Court in relation to his decision that there was no evidence at fault. It was a no evidence point. It did so and no complaint is made by our side of the ledger as to that, your Honour. Section 10(2) is of significance because it tells you that the journey that is contemplated by the statute is one that is necessarily capable of interruption or deviation.

KIRBY J:   Are they alternatives or you could have both?

MR KENZIE:   You could have both.  You could have a trip from work which involved en route a lengthy delay without a deviation followed by a return home by a direct or indirect route.  If the route was indirect, you would then have a deviation.

GLEESON CJ:   Is your preferred submission that your client was, at the relevant time, on a daily or other periodic journey within subsection (3)(a) or is your preferred submission that there was a deviation but it did not materially increase the risk?

MR KENZIE:   No, your Honour, it is the former.  The second issue was one of the issues that has been disposed of in the Court of Appeal and again is not the subject of appeal.  In the Court of Appeal, as part of the process, the court considered four separate issues, and perhaps in order to answer your Honour’s question, they are the issues identified by Justice Handley at page 320.

KIRBY J:   And that alternately was found in your favour.

MR KENZIE:   It was.

KIRBY J:   Well, why does one come to the primary question?  That is to say, whether there was an interruption, because has not the Parliament said, well, even if there is an interruption or deviation, it does not matter if it did not increase the risk.

MR KENZIE:   It becomes relevant because it is on the basis of perceived interruption or deviation that Justice Handley, and the majority of the Court of Appeal, came to the step of saying that they were entitled to interfere with ‑ ‑ ‑

KIRBY J:   If they said that it was not an interruption or deviation, it just was not a journey.

MR KENZIE:   It was not a journey and the purpose of going to subsection (2) is to say, well, the statutory concept of “journey” is one that necessarily embraces or includes journeys which are interrupted and the subject of interruption or deviation.  So the answer to your Honour’s question is that the Court of Appeal dealt with four questions:

(1)  Whether there were two journeys or one?

(2) If there was only one journey, was it a daily or other periodic journey within s10(3)(a)?

(3)  If there was one journey, did the substantial deviation and interruption involved.....materially increase the risk –

disqualifying the appellant; and:

(4)  Was the injury caused partly or wholly by the fault of the worker?

The first issue of whether there were two journeys or one was found against us by the majority of the Court of Appeal.

GLEESON CJ:   What is the difference between two journeys and a journey that involves an interruption or a deviation?

MR KENZIE:   Your Honour, it is a matter of impression, perception and degree, according to the authorities, depending upon a host of factual circumstances, including the intention of the person doing the travelling.

GLEESON CJ:   But your client’s intention was to go home.

MR KENZIE:   Was to go home.

GLEESON CJ:   And she stopped and had dinner with her grandmother in the course of getting there.

MR KENZIE:   Yes.

GLEESON CJ:   It sounds a bit like a deviation that was found not to have materially increased the risk.

MR KENZIE:   Yes.

GLEESON CJ:   What is the problem?

KIRBY J:   The problem, as I understand the reasoning of the majority, is that you have to first find that it is a journey to interrupt it and if, in fact, you can characterise it by reason of the length of the interruption or the extent of the deviation, it is no longer that journey.  That was the reasoning.

MR KENZIE:   Yes.

KIRBY J:   You would accept, I suppose, that just assume she had been going to her grandmother and then she went to the pictures and then she went to a disco and then she went with her boyfriend, that that would no longer be a journey home?

MR KENZIE:   Perhaps got home on Sunday rather than Friday?  That would no longer ‑ ‑ ‑

GLEESON CJ:   That would depend on how quickly you did various things.

MR KENZIE:   Yes.  One reaches a stage where you have crossed over and it would not be a journey.  The court has said that this is the category we are in.  The question that is raised is:  is this then the sort of case that entitles one to depart from the prima facie position that there is no entitlement to interfere with a finding of fact?

GLEESON CJ: On that matter, Mr Kenzie – and I do not understand this to be an issue between you and Mr Jackson but I would like to clarify something in my own mind ‑ section 32 of the Compensation Court Act says that:

If a party…..is aggrieved by an award of the Judge in point of law…..that party may appeal to the Court of Appeal.

What is it that produces the result that once you get to the Court of Appeal, you are limited to arguing about the point of law which is the source of your grievance?

CALLINAN J:   Particularly when subsection (2) says:

The Court of Appeal may…..make such other order…..as the Court of Appeal sees fit.

KIRBY J:   It has just been assumed, has it not?

MR KENZIE:   Your Honour, we would submit that the appropriate interpretation is that section 32(1) and (2) read together do not entitle the Court of Appeal on the basis of a discovery of an error of law in relation to one particular aspect of a judgment to then proceed to hear and determine de novo every other aspect of the matter considered by the court.

GLEESON CJ:   You may be right about that, and I am not challenging it, but I just noticed that everybody is assuming it and I wondered if you could give a reference perhaps to some authority which says that that is so.

MR KENZIE:   Yes.

GLEESON CJ:   I have come across structures in relation to appeals where, once you get a point of law, you have got your foot in the door.

MR KENZIE:   I see what your Honour is putting, and indeed it was made perhaps implicit in a matter that Justice Gummow put to me.

GUMMOW J:   The old 190 of the Tax Act.

MR KENZIE:   Yes, once you are in the door, then the rules change.

GUMMOW J:   Yes, that is right.

MR KENZIE:   But it has certainly not been approached that way, but I must say that – perhaps it is a matter we can address, your Honour.

KIRBY J:   Presumably you would take into account the history of this legislation, or you might be able to, which began as limited to a point of law ‑ and I do not know how that was expressed in the old days – and then as a result of various suggestions expanded to facts and law and then went back to point of law.

MR KENZIE:   Yes, the 1995 amendments which then Parliament intervened and consciously restricted the ‑ ‑ ‑

KIRBY J:   Do you have the provisions before 1995?

MR KENZIE:   I must confess that we ‑ ‑ ‑

KIRBY J:   They might give some clue as to what was the original ‑ ‑ ‑

MR KENZIE:   Perhaps it is a matter we can address during the course of the morning, your Honour, and ‑ ‑ ‑

GUMMOW J:   Now, section 44 of the AAT Act, you will recall, says you may appeal on the point of law which now gives rise to endless trouble where there is a tax case which gets there on the point of law but the facts cannot be looked at at all.

MR KENZIE:   Yes.

GUMMOW J:   But that is because the way 44 is now cast, which is quite different to what it used to be.

MR KENZIE:   Yes, there is, of course, no active provision giving the Court of Appeal power to conduct a re-hearing.  The power that the court has to make any such order in relation to the appeal as the Court of Appeal sees fit follows upon the reference in subsection (2) to:

The Court of Appeal may, on the hearing of any appeal under this section –

which is obviously constrained by subsection (1).  So there is no general provision giving the Court of Appeal a general power of review.

GUMMOW J:   There are sections in the Supreme Court Act, are there not, which we have looked at?  Section 75, is it?

MR KENZIE:   Yes, your Honour.

KIRBY J: Section 75A, is it not?

MR KENZIE:   Yes, section 75A.

KIRBY J:   I do not know if that is limited to actions in the Supreme Court.

MR KENZIE:   It is a matter we would need to address, your Honour.  I must say it has not surfaced at any stage and it has not been suggested against us by our friend until now that because there was ‑ ‑ ‑

GLEESON CJ:   No.  I just noticed that everybody is assuming that and I am interested to know why.

MR KENZIE:   Including us, your Honour.

KIRBY J:   It may restore to the Court of Appeal the unloved jurisdiction on matters of fact.  So long as you have a point of law, it gets you in the door.

MR KENZIE:   Well, your Honour, perhaps we can come back to that question which obviously has some potential importance.

HAYNE J:   Just while your attention is diverted a moment, Mr Kenzie, the print of the Act as at July 1992, contains in section 10 subsections (1C) and (1D), which are not reproduced in your version of the Act. Do I need to be fussed by that fact? It is simply that (1C) concerns material increase in risk. Again, perhaps, if some attention can be given to it during the morning rather than delay you further.

MR KENZIE:   Your Honour, I can say that we did not reprint that because it was not relevant to the issue as was perceived but it may have some relevance to the question that has been ‑ ‑ ‑

GUMMOW J:   The injury was in 1993, was it not?

MR KENZIE:   Yes, there was not an issue as to material increase for a reason connected with the worker’s employment which was the reason that the section never surfaced in the proceeding. 

Could I say something about the facts and the materials in the appeal volumes, your Honour?  In paragraph 4 our outline we provided a narrative statement of facts which can be usefully addressed, we would respectfully submit, in connection with the maps that appear on pages 186 and 187 of volume 1 of the appeal book.

So, just to really complete the picture that we point to in paragraph 4 of the outline, the appellant left the place of employment at 4.30 pm on the day, and that is the place identified as council offices in figure 1 on page 187 of volume 1 of the materials.  The appellant then drove south to Belmont to her grandparent’s home, which is also listed on page 187, which is near the intersection of the Pacific Highway at Belmont, and she arrived there half an hour after leaving work and had dinner until 7.00 pm.  The appellant then drove to the Pacific Highway, a little bit further south-east, and then turned north to drive to Nelsons Plains where she lived with her parents.

Now, Nelsons Plains is not listed on 187 but if one goes back a page to 186 one can see, towards the top of the page at about point 2 on the page, in the middle of the page, Nelsons Plains is listed and underlined and one can get a point of reference to the other places ‑ ‑ ‑

KIRBY J:   Now I am bad at reading maps at the best of times so could you tell me where the employer’s place is on 186?

MR KENZIE:   Yes, your Honour.  On 186 the employer’s place of ‑ ‑ ‑

KIRBY J:   Which sector?

MR KENZIE:   Sector 29.  It is identified there as Spears Point.

KIRBY J:   Yes.  Where is the grandmother’s place?

MR KENZIE:   The grandmother’s house would be at map 36, just west of Belmont, and then the proposed journey from there was to go along the Pacific Highway and ultimately wind up at Nelsons Plains, which is the site that I have indicated ‑ ‑ ‑

GLEESON CJ:   In sector number what?  What number?

MR KENZIE:   Well, it is not in a sector, your Honour.  It is at line 10 in the middle of the page.

KIRBY J:   So instead of cutting through Hillsborough straight to the Pacific Highway, she goes in a sort of southerly direction and then up, rejoins where she would have been.

MR KENZIE:   Yes.

KIRBY J:   So the deviation is how much in kilometreage and how much in time?

CALLINAN J:   About 19, was it not?

MR KENZIE:   Yes, the appellant’s usual route was north and a distance of 38.9 kilometres, taking 45 minutes or so and that, if you turn the page again to 187 you can see the reference to “usual route” on 187.  That went straight from the council offices up north and then off the map to Nelsons Plains and then the route on this occasion was south east to the grandparent’s home till 7 pm, then north along the highway and the accident site is listed on 187 at Belmont North but possibly ‑ ‑ ‑

KIRBY J:   In the big map of Australia it is not a very big deviation.

MR KENZIE:   No.

GLEESON CJ:   What are the numbers that compare with the numbers “39 kilometres” and “45 minutes”?

MR KENZIE:   The round trip involved a distance of 58.6 kilometres, which was an additional distance of 19.7 kilometres with a corresponding increase in the time of travel, or proposed or projected increase in the time of travel.

GLEESON CJ:   What is the number that compares with 45, 45 minutes to go straight home?  How many minutes if you call in at the grandmother’s place?

MR KENZIE:   I do not think there was any evidence of the time.  It would depend upon a variety of matters and, of course, on the day in question it was incomplete.

KIRBY J:   She stayed two hours with her grandmother.  Is that correct?

MR KENZIE:   She did.  She arrived there at 5 o’clock, stayed till seven and was then driving north ‑ ‑ ‑

KIRBY J:   It was suggested in the evidence that they were drinking while she had dinner with the grandmother.

MR KENZIE:   No, there was evidence that she was not.

KIRBY J:   Was not?

MR KENZIE:   Was not.

GLEESON CJ:   Not the usual sort of place you would stop off for a drink, I suppose.

KIRBY J:   It depends on the grandmother.

HAYNE J:   “Just a small sherry, dear.”

MR KENZIE:   The other aspect of the matter is that Justice Handley correctly described the position in relation to the case at page 331 line 5 of the judgment.  This is in relation to the state of play before the court which the Court of Appeal had to deal with.  I leave aside the first sentence dealing with “onus”:

Little is known of the accident.  The respondent suffered head injuries and has no recollection of the event, and no eye witness was called to give evidence.  All that is known is that the respondent’s car crashed into the back of a stationary truck parked some 5 metres off the Pacific Highway on the respondent’s correct side of the road.  There were no marks on the roadway which could assist in working out what happened and there was no evidence of the speed of the respondent’s vehicle, or that the conduct of any other vehicle played a part in the accident.

That, I think, would give the Court some picture of what was before the trial judge and before the Court of Appeal.  Now, if it please the Court, in these circumstances, the trial judge at page 294 to 295 of volume 2 of the materials dealt with the respondent’s submission that there were two journeys, firstly, at 294 headed “Two Journeys or One?”  The first referred to the judgment of Justice Mahoney in Minchinton v Homfray where his Honour referred to the way in which journey was referred to in the dictionary because there is no definition of journey and it was taken to be used in its ordinary meaning.  Also said, as recorded just before line 35:

It is, in the end, a matter of categorisation or impression.

GLEESON CJ:   Suppose that instead of visiting her grandmother she had gone to this place in Belmont because there was a good restaurant there and she was the sort of person who used to eat out at night; how would you set about determining whether the visit to the restaurant was a deviation on the way home or whether there were two journeys involved?

MR KENZIE:   According to the authorities, and I will come to them, your Honour, you would look at all of the evidence, including evidence as to what was the worker’s usual practice of getting home.  So that if, for example, the worker always went home the other way but on this particular night chose to drive down south and sit at a restaurant for a couple of hours and then the accident occurred, then you may well be in the sort of situation where you have ended the journey or had another journey, but if, in fact, as was the fact in this case, the worker’s practice was every Friday after work to go home to her home in Nelsons Plains via her grandmother’s house and she stopped off there and had something to eat for a couple of hours then you are in, arguably, very different territory, but, the point of all this is to say that it is a matter of impression and minds might differ on that question.

GLEESON CJ:   But it has got to be impression about something.  You have got to look at the evidence but you have got to know why you are looking at it.

MR KENZIE:   That is so, and ‑ ‑ ‑

KIRBY J:   I suppose you start with the proposition that this is a journey within the Compensation Act which is a protective Act which is designed to provide a measure of protection for workers on their ordinary journeys home.

MR KENZIE:   You would start with the proposition that it was a journey between a place of employment and a place of abode and if it was a journey that was undertaken, in this case pursuant to her normal practice of getting between the place of employment and the place of abode, then when one engaged upon the task that your Honour is asking me about one would do so against that background.

GLEESON CJ:   Would it be a terrible over-simplification to ask what was her destination?

MR KENZIE:   It might be.

CALLINAN J:  It might depend upon when you ask her, might it not be, Mr Kenzie?

MR KENZIE:   It might be, your Honour, because there is authority to show that the fact that your ultimate destination might be home, might not be sufficient in itself.  For example, if you intended to go home from work, but you intended to go to a cricket match first and then go to the disco and the like, questions might arise in that set of circumstances; might arise.  But the fact that one is heading towards a destination has got to be, on any view, relevant to the inquiry at hand.  But the point about what the trial judge was talking about was that you are dealing with a notion that by definition has matters of degree associated with it and is to be approached accordingly, and I need to say some more about this as we go to the authorities, your Honour.

The trial judge in any event at page 294 firstly looked at Justice Mahoney, who said it is a matter of “categorisation or impression”; secondly, he looked at the regularity of the applicant’s visits to her grandmother undertaken while she was on her way home from work, suggesting a single and continuing journey, and referred to a passage from The Old Spaghetti Factory Case, to which I will come, which supported that approach.

HAYNE J:   Why do you say “regularity” is of significance?

MR KENZIE:   Because it assists in dispelling the view that there was a trip which was foreign to the practice of travel between work and home.  It dispels that notion.  It puts you in the area of saying, “Look, the way in which this worker used to go from home to work is on Monday to Thursday they would drive north, on Friday they would drive south and visit their grandmother’s home, and it was a matter of regularity, but it was the way in which you got to where you were going on that day.”

HAYNE J:   It would seem to me the frequency rather than regularity is of more significance in that analysis.  That regularity, that she regularly visited her grandmother on her grandmother’s birthday may be entirely regular, but frequency is what seems to me to loom rather larger than what, at the moment, seems to be more a question owing much to the ritual incantation of phrase rather than depth of analysis.

MR KENZIE:   Well, your Honour, in this case the evidence was that the particular journey was a journey which occurred every fortnight on the same day, so that on every second Friday the worker went home this way.

GLEESON CJ:   But if one night a week – not everybody, whether from school or work or anyone else goes straight home.  If you could show that one night a week a worker went to the gym on the way home - or perhaps that begs the question - or went to the gym after work and before going home.  You say your position is improved if you can demonstrate that happens regularly?

MR KENZIE:   Yes.

GLEESON CJ:   What if the worker is injured on the first visit to the gym?

MR KENZIE:   I do not want to evade the question, but it is yet another factor that is thrown into the factual melange that is before the trial judge in which he has to say, “Am I entitled to say that this is a journey?”.

HAYNE J:   That is a great deal of assistance for a trial judge, I am sure, Mr Kenzie.

MR KENZIE:   Your Honour, there is authority for the proposition in The Old Spaghetti Factory Case that the regularity, or perhaps the frequency, of a deviation is relevant and of assistance, and logically one can see that that could be so.

KIRBY J:   Is that because of the word “periodicity”?  Is it addressed to that issue?

MR KENZIE:   Not just that issue.

KIRBY J:   You say it is addressed to the character of it as a journey home from work?

MR KENZIE:   Yes, your Honour.

GLEESON CJ:   Obviously Parliament does not intend that you get compensation for an injury you suffer at the gym.  If you strain your back lifting weights at the gym, you are not going to get compensation for it, I presume?

MR KENZIE:   You are not on the journey; you are in ‑ ‑ ‑

GLEESON CJ:   That is the point.  If you are not on the journey, then your entitlement to compensation if you are injured driving before or after the gym depends upon it being an interruption or a deviation.

MR KENZIE:   Yes, no compensation in the period of interruption, if one likes, but the notion that the journey is not ‑ ‑ ‑

KIRBY J:   Is that so?  What if she had slipped over the footpath on the way to the grandmother’s home inside the grandmother’s fence?  She would not be on her way home, but I would have thought she is covered by compensation.  What if she had fallen over on the grandmother’s Persian carpet or over the cat?

MR KENZIE:   I am corrected in terms of what I have put.  The statute intends to protect during the period embraced by the journey unaffected by the interruption and regardless of whether you are in motion at the time of the injury, subject to the proviso.

GLEESON CJ:   So, if you strain your back lifting weights at the gym, the thing that would stop you getting compensation is that weight‑lifting material increases the risk of injury.

MR KENZIE:   That may well be so.

KIRBY J:   Whereas, if you slip over the Persian rug in the grandmother’s home, that would ordinarily increase the risk.

MR KENZIE:   One could discount that unless one took a very extreme view.  In this case it was said the mere fact that there had been a substantial deviation which meant that more miles had to be covered in the motor vehicle necessarily had the result that the risk was increased because of the greater time on the road, and the Court of Appeal rejected that approach.

KIRBY J:   And you are looking at the risk of injury generally, not the risk of the particular injury which in fact occurred.  That is Scobie’s Case, is it not?

MR KENZIE:   Yes, that is right.  In any event, that was put against us and dealt with.  I was dealing with what the trial judge did, and at page 294 he refers again to Minchinton, to Justice Mahoney’s decision, where he says:

Further, the facts in Minchinton were finely balanced on the issue of one journey or two –

I have not opened Minchinton, but that was a case of a cricket match in the country and Justice Mahoney, who was then dealing with a situation in which there was a complete right of review, said that the issue was finely balanced.

KIRBY J:   Six hours at a cricket match?

MR KENZIE:   Yes.  Minchinton is 10 NSWCCR 778. Justice Mahoney at page 785 referred to the Shorter Oxford English Dictionary definition of “journey” and said that:

Having regard to the statutory reference to “interruption or duration”, the relevant meaning for present purposes is, I think:  “a spell of going or travelling, viewed as a distinct whole”.

GLEESON CJ:   The home was in Victoria and the place of work was at Broken Hill, was it not?

MR KENZIE:   Again ‑ ‑ ‑

GLEESON CJ:   We are not necessarily taking a highly urbanised approach towards location of work and home.

MR KENZIE:   No, but, your Honours, although one is still getting into this matter, these considerations are relevant when one comes to look at what Justice Handley did in this case. What his Honour said, and his Honour was dealing with this on the basis that he then was not constrained by the present form of section 32, his Honour said that it was, in the end, a matter of categorisation or impression and expressed in the same paragraph, about four or five lines above, the view that the matter was finely balanced ‑ ‑ ‑

KIRBY J:   Minchinton was a case when the Court of Appeal had the jurisdiction to review the facts generally.

MR KENZIE:   That is right, but it was not limited then in the way that section 32 is today.

GLEESON CJ:   I notice the second paragraph on page 785, the first sentence – is that still the situation?

MR KENZIE:   Yes, the matter has not become more defined since that time.  There have, of course, been other decisions which have been referred to.  Matters have not improved in that regard, your Honour.  Having referred to Minchinton, the trial judge at page 295, line 20, said, not surprisingly:

The question is one of fact and degree.  The fact that the applicant was discharging a pleasant family duty on such a regular basis after which she was returning home to her parents suggests that, on balance, she was on a single journey from her place of work to her home.

I conclude, therefore, that on the day she was injured, the applicant was on an “…other periodic journey” as those words are used in s.10…..and, subject to questions of material increase…..her journey was one which comes within the section.

Of course, it was that finding that was attended to or dealt with by the Court of Appeal in the majority in a way that ‑ ‑ ‑

KIRBY J:   It seems from what his Honour said there that he is looking at the regularity issue as relevant to the periodicity question.

MR KENZIE:   Well, that may be so, your Honour.

KIRBY J:   But he acknowledges that there is a separate issue which is whether or not the journey can be characterised as one home or whether when she set out a person would characterise that as a journey to her grandmother.

MR KENZIE:   Yes, and a perfectly appropriate approach, in our respectful submission.  In any event, it is that exercise that was affected by what happened in the Court of Appeal.  Before taking the next obvious step of taking the Court to what the Court of Appeal did, it is, we think, of perhaps more utility if I come to some of the authorities dealing with the relevant principles and if I could take the Court briefly, firstly, to the case of Pitt v George Ford Pty Ltd (1980) WCR 130.

KIRBY J:   Before we plunge into all the cases and all these authorities, what is your submission, so that we can be reading the case with a view to understanding what your submissions of legal principle are.

MR KENZIE:   This case supports the contention that the term “daily or other periodic journeys” is plain and that it is not within the scope of the Court of Appeal’s power to cast around for factual variations in circumstances where different emphasis might be placed on different matters on the basis that there was some discovered error of law.  If I can perhaps clarify that by reference to what was said, firstly, by Justice Hutley.  It was, obviously, a diversions case where the worker was going to his daughter’s home where he intended to stay for some hours and then go with his wife to the place of residence.  Justice Hutley said:

His Honour, faced with these two possible journeys, decided that he was on a journey from his place of abode to his daughter’s home and the injury therefore was not one for which he was entitled to receive compensation…..I am unable to discern any question of law appearing in the course of his Honour’s reasoning.  He simply had to make up his mind which of two possible journeys on the facts was the one on which the worker was.  He did not have to bring to this task, even though he did quote from a judgment of the High Court, any requirement for legal analysis.  The question was a simple one:  which of two journeys was the worker on?

No torturing of this issue can manufacture a question of law out of it.  In my opinion this is an attempt to get this Court to review a question of fact –

Then Justice Samuels in a couple of passages which are of importance to what happened in this case said this at the bottom of page 131:

In the present case the worker’s intention was quite clearly expressed and the facts were so uncomplicated that no question of any competing intention arose.  That being the case it was for his Honour to decide whether, bearing in mind what the worker intended to do and the length of time during which he estimated he would be engaged upon it, the finding ought to be that there was one journey with a substantial interruption or two journeys.  In the latter case the consequence would be that the journey upon which the worker was engaged when he met with his injury was not a journey whose terminus was his abode but one whose terminus was his daughter’s house and one outside the reach of the Act.  In my view the solution of that issue raised only a question of fact.

KIRBY J:   This would have been at a time when the Court of Appeal was limited to review on matters of law.

MR KENZIE:   Again, yes.  It has gone up and down.  At the end of that paragraph:

I am unable to perceive that any question of law is involved or that it is necessary in determining these questions to construe any statutory provision other than to take account of the ordinary understanding of what is involved in the notion of a journey between two places.

Then, in a passage that is important, in our respectful submission, and to which I will return, his Honour said:

The term “daily or other periodic journey” is plain enough and the question of whether a set of facts satisfies that collocation of words must be (and was in the instant case, which is the primary consideration) a question of fact.  If it were otherwise, and if we reverse Langsworth J, it would follow, I suppose, that as a matter of law a man who goes to his daughter’s house on his way  home, there to have a meal and spent two and three-quarter hours, pick up his wife and return home with her, is engaged upon a statutory journey.  One might then ask what would have happened if he had been engaged for two hours and fifty-two minutes or three hours and five minutes?  What would the law say about those combinations of facts?  If one considers the matter a little I think it must emerge that the case involved only questions of fact and thus falls within an area in which this Court has no power to intervene.

KIRBY J:   We had better get clear what their warrant under the statute was at that time, what it became in 19 – whenever they amended it – and what it now is so that we can understand what they were up to.  I remember Azzopardi v Tasman UEB Industries where Justice Glass, supported, I think, by Justice Samuels, said that even perverse findings of fact cannot be reviewed by the Court of Appeal.

MR KENZIE:   No.

KIRBY J:   So, that was the old law but I would like to know what was the statutory warrant.

MR KENZIE:   We are having that looked at.  We think it is the same as the present statutory provision, your Honour, but we are just double checking that.  Now, it is our submission in this case there the - was a case within the category discussed by Sir Frederick Jordan in the case of Australian Gas Light Co v Valuer General (1940) 40 SR(NSW) 126.

KIRBY J:   Do I understand your principal submission is that the Court of Appeal is conducting an appeal and therefore it must show error, whatever its particular statutory provision?

MR KENZIE:   Yes.

KIRBY J:   We will find the statutory authorisation in a moment but that is the starting point.  Secondly, that they had no warrant to interfere because there was no error or there was no power on the statutory, but, thirdly, even if there was power to intervene that the trial judge was right to find that it was characterisable and was properly characterised as the journey, the journey from work to home.

MR KENZIE:   Yes.  There is no doubt that, although it was pointed out in Pitt v George the question of whether something is a journey is regarded, ordinarily, is a question of fact that a finding on the one journey or two journey question might be vitiated by legal error. For example, if there was no evidence to support the trial judge’s finding or if the trial judge misdirected himself or herself as to the test that had to be satisfied then the simple fact that there was a search for a journey would not prevent a Court of Appeal limited by a provision such as section 32 from intervening.

The position, we would respectfully submit, is set out in the judgment of Sir Frederick Jordan in The Australian Gas Light Co’s Case 40 SR(NSW) 126. His Honour’s complete analysis of the position starts at page 137. I refer the Court to that but of particular relevance is what his Honour had to say at page 138 where he says:

(3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences…..

(4) Such a finding can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences –

authority given, and then –

Thus, if the facts inferred by the tribunal ‑ ‑ ‑

KIRBY J:   But you have skipped over “or (c) if it has misdirected itself in law”.

MR KENZIE:   I am sorry.  Yes, of course.  I mentioned that before.

KIRBY J:   Is what I take the respondent to be saying here that the judge misdirected himself in law by applying a wrong view of what a “journey” is under the Act.

MR KENZIE:   Your Honour, I will have to come to that because when one comes to what the Court of Appeal did, that does not appear to be what was going on.  I know I have not come to it yet but the Court of Appeal judgment is not able to be so characterised, in my respectful submission, but yes, (c), misdirection.  Then his Honour goes on:

If, however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, a decision either way by a tribunal of fact cannot be disturbed by a superior Court which can determine only questions of law ‑ ‑ ‑

GLEESON CJ:   And that ties in with paragraph 2 on the bottom of page 137.

MR KENZIE:   Yes.  In our respectful submission, the case here was one falling within the description of cases discussed by Sir Frederick Jordan in the middle of page 138.  Thirdly, the Court of Appeal, and I will ‑ ‑ ‑

GUMMOW J:   Do not we have to look at Sir Anthony Mason’s judgment in Williams v Bill Williams and in his judgment in Hope v Bathurst City Council?

MR KENZIE:   Well, I was coming to that, your Honour.

GUMMOW J:   The latter certainly specifically addresses the Valuer‑General Case.

MR KENZIE:   Yes.  But, your Honour ‑ ‑ ‑

GUMMOW J:   Well, it is up to you.  All I am saying is that if Sir Anthony Mason said something about it I am, prima facie, impressed.  If you are not, that is ‑ ‑ ‑

MR KENZIE:   Could I come to that when I have dealt with what the Court of Appeal actually did.  If the Court of Appeal had picked up “journey” and said, “A journey is X and this isn’t a journey because it doesn’t fit within the statutory description of journey”, then one would be in that line of country.  But I have not come to a decision yet.  That does not appear to be what has happened.

KIRBY J:   But my understanding of where you are in your argument is that you are putting to us the principles of appellate restraint in cases of appeals limited to points of law.

MR KENZIE:   Yes.

KIRBY J:   And what Sir Frederick Jordan said was, I think, improved in this Court in Hope’s Case and I think was elaborated a little in the Agfa‑Gevaert Case. so that it is sort of not standing there on its own.

MR KENZIE:   No.

KIRBY J:   It has been dealt with in this Court since then.

MR KENZIE:   No, the Court in Agfa-Gevaert has dealt with authorities which deal with the distinction between the use in a statute of words which have a technical meaning and words which have a non-technical or ordinary meaning.

KIRBY J:   I thought there was a wider discussion of the way in which you approach statutory language, but if you do not want to refer to it I will just have to read it myself later.

MR KENZIE:   I want to go to Edwards v Bairstow, which is the case that the Court of Appeal did pick up, your Honour.  That is in (1956) AC ‑ ‑ ‑

KIRBY J:   You mean the English Court of Appeal.  Why are you referring us to foreign courts when we have our own good authority on this?

CALLINAN J:   It was the House of Lords, was it not?

MR KENZIE:   It was the House of Lords and, your Honour, I am going to it because ‑ ‑ ‑

GUMMOW J:   Well it is applied in Hope; Edwards v Bairstow it applied in Hope in this Court.

MR KENZIE:   Yes.  The reason I am going to it, your Honour, is because it was picked up by Justice Handley and I want to explain to the Court when I read Justice Handley’s decision the context in which his Honour did what he did, and reading Edwards v Bairstow is instructive before we read Justice Handley’s decision, and that is the reason I am going to it now. It is in (1956) AC 14 and the case concerned a decision taken that there had not been something in the nature of an adventure in the nature of trade so as to justify an assessment to income tax and it was found that the facts that were proven led inevitably to one particular position under the legislation. Justice Handley referred in particular to the speech of Lord Radcliffe and his Honour referred to page 36 to which I will come, but his Honour did not refer to page 33 and on that page Lord Radcliffe, dealing with the question at about point 3 or point 4:

it is a question of law what meaning is to be given to the words of the Income Tax Act “trade, manufacture, adventure or concern in the nature of trade” –

et cetera, said at about point 6:

But the field so marked out is a wide one and there are many combinations of circumstances in which it could not be said to be wrong to arrive at a conclusion one way or the other.  If the facts of any particular case are fairly capable of being so described, it seems to me that it necessarily follows that the determination of the Commissioners, Special or General, to the effect that a trade does or does not exist is not “erroneous in point of law; and, if a determination cannot be shown to be erroneous in point of law, the statute does not admit of its being upset by the Court of Appeal.

And then, at the bottom of the page:

All these cases in which the facts warrant a determination either way can be described as questions of degree and therefore as questions of fact.  In this –

his Lordship says he is only repeating authority.  He said, at line 3 or 4:

But, of course, in proper circumstances a case can be described as one of fact, or as purely one of fact (if the testimonial adds anything), without going through the procedure of explaining that is so because it is one of degree and, the facts fairly admitting of the determination come to, there is no error which justifies the court’s intervention.

Now, on the other hand, he comes to page 36 – and I have not come to it yet, but this is the aspect that is picked up by Justice Handley in the Court of Appeal – at about line 6 or 7, which commences between “primary facts”:

When the case comes before the court it is its duty to examine the determination having regard to its knowledge of the relevant law.  If the case contains anything ex facie which is bad law and which bears upon the determination, it is, obviously, erroneous in point of law.  But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal.  In those circumstances too, the court must intervene.  It has no option but to assume that there has been some misconception of the law and that this has been responsible for the determination.  So there, too, there has been error in point of law.

KIRBY J:   This is like a Wednesbury unreasonableness test.

MR KENZIE:   Yes, your Honour, but the point about it is ‑ ‑ ‑

KIRBY J:   You can turn a point of fact into a point of law if it is so unreasonable that no judicial officer could possibly have come to it.

MR KENZIE:   It smacks of that sort of approach, but in any event it is said to be a justifiable approach because the court has no option but to assume that there has been some misconception of the law.  But, of course, his Lordship there – and I just leave this with your Honours before coming to the Court of Appeal judgment – is not talking about the sort of case that he was talking about back on page 33, which is a case where you are dealing with a statute which gives you room for a wide field of view as to whether something is caught or not.

It is not a statute that talks about a dog or a tree perhaps or an act.  It is a statute that deals with something which itself leaves room for impression and is not therefore the sort of case which entitles you to assume because someone has a different view that there has been an error of law.  The reason I have taken your Honours to that is because the Court of Appeal picked up page 36, but this was a page 33 case, in our respectful submission.

KIRBY J:   I do not think when one gets to write one’s judgment in this case one says, “This is a Bairstow Case page 33 or page 36.”

MR KENZIE:   No.  Your Honour, I am using the shorthand, but this ‑ ‑ ‑

KIRBY J:   We just have to get the principle clear in our head.

MR KENZIE:   It is the sort of case that Lord Radcliffe was discussing on page 33 in which the field marked out was a wide one and that there were many combinations of circumstances in which it could not be said to arrive at a conclusion one way or the other, namely the sort of area discussed by Sir Frederick Jordan in the case to which I have previously gone.

KIRBY J:   People like me who went to law school in the fifties and sixties were so fascinated with the House of Lords that they have not lost the fascination but, generally speaking, it has waned a bit.  We tend to look at our own authorities.

MR KENZIE:   I can assure your Honour that if Justice Handley in the Court of Appeal had not really gone to this as the basis for what they were doing, I would not be picking it up, but it is significant because they did.

GLEESON CJ:   Suppose a newly appointed Compensation Court judge said to you, “I’d like some guidance as to how I go about deciding whether or not there are two journeys or one journey interrupted.  Suppose a worker, instead of going straight home, once a fortnight adopts a practice of calling in on her grandmother to have an evening meal.  Suppose I come across a case like that in my judicial career.  Can you assist me by telling me how I will go about deciding whether that is a case of two journeys or one interrupted journey?”.  How would you answer the question?  Would you say it is a question of fact and…..impression which would draw the response, “Thank you so much”?

MR KENZIE:   No.  You would say that if one was satisfied that the intention of the worker was to proceed from work to home and had been following that course for some period of time, then in those circumstances that would be strongly indicative of there being a journey home.

HAYNE J:   Can I put that back to you in a rather different form?  It seems to me the submission may flirt with, it may embrace this formulation, and I want to know which.  When you look at the section, the relevant operative provision is:

daily or other periodic journeys between the worker’s place of abode and place of employment.

As I understand your argument, you begin by saying, one, journey is between place of abode and place of employment employ, so far as presently relevant, ordinary expressions. 

MR KENZIE:   Yes.

HAYNE J:   Step two, that statutory expression requires the identification of an intended origin and intended destination of a spell of going or travelling viewed as a distinct whole.  I import, therefore, into the formulation the dictionary definition that was referred to in one of the authorities.  Step three, as I understand it, may be that because there can be deviation or interruption - see other provisions of the statute - there may be cases where there are distinguishable elements of a single journey.

Step four, as I understand it, is that the question in the case last described, that is the case where there are distinguishable elements of a single journey, or distinguishable elements of travelling – I avoid the expression “single journey” - the question becomes one of assigning relative importance to each element in determining whether there is a single spell of going or travelling viewed as a distinct whole.  Is that the process that you say should have been followed?

MR KENZIE:   Yes, your Honour, and the factual considerations that could vary would be considerations going to, perhaps, the stated intention of the worker, the period of interruption ‑ ‑ ‑

HAYNE J:   Those might be matters of evidence that bear upon the question but the inquiry, as I understand, where you have come to so far in your submission is, according to your contention, an inquiry for, or inquiry about, the characterisation of an intended piece of travelling, or possibly pieces of travelling, as a single spell of going or travelling viewed as a distinct whole between identified origin and destination.

MR KENZIE:   Yes, your Honour.

HAYNE J:   How you set about proving that, what facts may be proved against you in the course of proving that, are subsidiary.

MR KENZIE:   Yes.

HAYNE J:   Are forensically vital.

MR KENZIE:   Yes, and, of course, there is nothing in the Act or the reference to “journey” which tells you that there is precluded a situation in which there has been travel in a direction that is totally away from home as part of the journey, neither is there anything in the section that tells you that you are statutorily precluded, as a mater of law, because that period of travel might be more than minimal.

KIRBY J:   On the contrary, in so far as the statute gives a clue by positing that deviations and interruptions will occur but will still be permissible within a “journey”, the statute or the Parliament has given the indication that of themselves it is understood that workers on their way home do not always go directly but will still be covered.

MR KENZIE:   They may proceed in a way that is totally away from home for 101 reasons.  They may be deviated by traffic; they may be deviated for other reasons; they may have an interruption; it may be substantial; but the fact that those considerations occurred you are told by the Act do not legally operate to disqualify you from coming within the concept of a journey and it would be wrong to proceed on the basis that some question of law can be recognised because you are unable to identify a course of travel away from home for part of a journey.

KIRBY J:   Justice Handley seems to have thought that the test was what would a lay person have said was the quality and character of this journey, but the lay person would have to be informed that in making that characterisation that you have to take into account that interruptions and deviations are permitted and he does not seem to have approached it that way.

MR KENZIE:   Factored that in.

KIRBY J:   He seems to have said a lay person would have said she was on a journey to her grandmother’s not ‑ ‑ ‑

MR KENZIE:   His Honour has then proceeded, and I know I have not come to it, to saying that once you have got that view the next thing I say is that no reasonable person could come to another view.

GLEESON CJ:   Is any light thrown on this by the proposition that you put earlier which was that assuming this was a case of only one, albeit interrupted, journey then she would have be entitled to compensation for an injury that she suffered at the grandmother’s place?

MR KENZIE:   Yes.

GLEESON CJ:   The fact that if you go somewhere else before you go home and that is treated as an interruption only and not a separate journey means that you are entitled to be compensated if you suffer any kind of injury at that other place.

MR KENZIE:   Subject to the statutory qualification of the increased risk and the like, yes.

GLEESON CJ:   Yes.  That does tend to emphasise the importance of the connection between your work and the journey, albeit interrupted, that you were upon at the time, does it not?

MR KENZIE:   We would submit no.

GLEESON CJ:   I am looking – you see, there are other – we happen to be concentrating on subsection (3)(a) but there are a series of other paragraphs also.  A journey to an educational institution, for example, is covered.  What would your submission be in the present case if instead of going to visit her grandmother she had gone to a picture theatre and watched a movie for a couple of hours?

MR KENZIE:   And, your Honour, do I add that this was something that she did every Friday night on her way home?

GLEESON CJ:   If you like.

KIRBY J:   Unless it was a horror movie, it would not increase the risks of an injury.

MR KENZIE:   No.  I would submit that it would have been open, well and truly open, to the trial judge in that set of circumstances to say that that was still a journey.

GLEESON CJ:   And so if she tripped and fell down the dark stairs at the movie theatre she would get workers’ compensation?

MR KENZIE:   Well, although one can posit examples – I mean, there is Justice Mahoney’s cricket match in the case that I read this morning.  The legislation is intended to be read beneficially and if it gives rise to coverage in circumstances that might seem, at first instance, bizarre because of the spread of the legislation - - -

GLEESON CJ:   So if you get hit on the head with a cricket ball at the cricket match you would get workers’ compensation?

MR KENZIE:   If you are in the journey ‑ ‑ ‑

KIRBY J:   So long as you have not taken six hours.

MR KENZIE:   And as long as what you are doing has not materially increased the risk.

GLEESON CJ:   Yes.

MR KENZIE:   I mean, what would happen if you ‑ ‑ ‑

CALLINAN J:   It depends on the other side’s fast attack, I suppose.

MR KENZIE:   Well, exactly.  If you were fielding at first slip and got hit by a cricket ball, then questions might arise but subject to that you would be covered.

GLEESON CJ:   Well, I wonder then if it was possible that that scheme, that aspect of the legislative scheme, might have been thought by Justice Handley to tend to suggest that there has to be such a connection between your work and your home and the intermediate port of call, that it is proper to treat the intermediate port of call as merely involving an interruption or deviation?

MR KENZIE:   Your Honour, in our respectful submission, there is nothing in the legislation that would suggest or require such a general limitation on the protection and, secondly, there is absolutely nothing in the judgment of the Court of Appeal to suggest that that lay behind what the court ultimately did, which was to simply say they think there are two journeys.

GLEESON CJ:   There is a lot of learning about deviation in the area of shipping law.  Is there anything in that that has a bearing on this?  Interruption and deviation of journeys is a very common problem there.

MR KENZIE:   Yes.  I do not know the answer to your Honour’s ‑ ‑ ‑

KIRBY J:   Perhaps a relevant consideration in answer to the Chief Justice is that there are journeys which are employment journeys if you are doing something actually for the employer but this was a deliberate additional statutory entitlement which does not posit any connection with employment except terminus and that, therefore, one would not read down that provision in order to, as it were, re‑establish an employment quality.  It is an added benefit.

GLEESON CJ:   Yes, you have seven days to do that.

MR KENZIE:   Thank you, your Honour.

GLEESON CJ:   Mr Kenzie.  Mr Jackson, do you want to say anything on the notice of contention?

MR JACKSON:   Yes, your Honour.  May I deal with two matters.  So far as the question of costs is concerned, none of the persons we have with us today was personally involved in the preparation of the record and may we, if we were to put something in, put something in in writing in seven days on that question?

GLEESON CJ:   Yes. 

MR JACKSON:   The second thing concerns our learned friend’s submission in the course of the reply, by what the scope of any further hearing would be, a further hearing in relation to the question of fault.  Could I just say two things in relation to that?  The first is that it did not clearly appear from the decision in the Court of Appeal what the scope of it was to be but what one does see in Justice Priestley at page 338, at the bottom of the page, is that his Honour in the last few lines says:

It will be necessary, in my opinion, for there to be a new trial so that the evidence may be considered by reference to the appropriate legal test.

His Honour did not seem to be referring to new evidence but to the evidence ‑ ‑ ‑

KIRBY J:   A “new trial” connotes new evidence.  It is not the matter should be returned so that the Compensation Court can consider the evidence in the light of the judgment of this Court is the way in which it could have been expressed.

MR JACKSON:   Could I just say, however, that I just would not wish to be seen to be assenting to the proposition that there is in effect open slather on the issue.  What your Honours will have seen of course is that our learned friend’s case is now building up into one in which there was a dangerous corner or something of that kind.  However, one of the issues by which both parties are bound is that there had been no material increase in risk because of going in the different direction.  That is a matter that there has not been an issue before this Court.

KIRBY J: As you raise this, I think we had better get it clear because we now have to make the order which the Court of Appeal ought to have made. Section 32(2) says that:

The Court of Appeal may…..remit the matter to the Compensation Court for determination by the Compensation Court in accordance with any decision of the Court of Appeal and may make such other order in relation to the appeal as the Court of Appeal sees fit.

What is your submission as to the order which, in the event that you fail on the first and third points, this Court ought to make?

MR JACKSON: Your Honour, the Court ought to order that the question of fault in terms of section 10(1A) be remitted to the Compensation Court for determination by it in accordance with the decision of this Court.

KIRBY J:   That leaves it open as to whether it is on the record or on a new trial.

MR JACKSON:   That no doubt will be a matter of argument before the ‑ ‑ ‑

KIRBY J:   Is it not better that we clear that up?

MR JACKSON:   Generally speaking the answer would be yes.  I suspect, however, that there is an issue which is going to be productive of some difficulty because of the possibility of estoppel in relation to the question whether there was an increase in risk.  That is why I suspect it was better to determine it simply in the manner in which I see it rather than to try to go ‑ ‑ ‑

HAYNE J:   But how can that be; how can there be estoppel?  Because the decision below would have been undone, would it not, the primary decision?

MR JACKSON:   Yes, your Honour.

HAYNE J:   Therefore, how can estoppel run?

MR JACKSON:   Your Honour, as between the parties, there is a decision in the Court of Appeal at page 328, in effect, in the reasons, on the assumption that the decision of the Court of Appeal was incorrect on the question whether there was one journey.  In those circumstances, there had been no increase in risk and if the Court takes the view - and that that second part has not been challenged in the appeal to this Court, if the Court takes the view that the decision of the Court of Appeal was in error on the first of those matters, then, prima facie, we would submit, the estoppel between the parties, by whatever form of judgment it gets into a formal existence, the estoppel on that factual issue will exist.

GLEESON CJ:   Could you just remind us about one matter of fact, Mr Jackson, by reference to your coloured plan.  Did this accident occur on Segment 1 or Segment 3?

MR JACKSON:   Segment 1.

GLEESON CJ:   Thank you.

CALLINAN J:   Mr Jackson, taking up your “dangerous corner” point, the lurking suspicion you have about that:  could they still not call evidence, assuming that it does not have to be decided on the record, that it was a dangerous corner, but no more dangerous because it was at night during rain than it would have been during daytime with rain?  I mean, what I am really saying to you is, I do not know whether it is really satisfactory for them to be confined to the record, because the trial judge did not ask himself the right question.

MR JACKSON:   Yes.  Your Honour, why I was seeking to stand up at this point was ‑ ‑ ‑

CALLINAN J:   Yes, I understand why.

MR JACKSON:   - - -simply to say that we do not assent to the proposition that it would be necessarily clean slate, as it were ‑ ‑ ‑

KIRBY J:   I know you do not assent to it, but if you look it as a matter of principle, do we not normally – everybody is entitled in Australia to have a trial according to law, normally, anyway, and if, in fact, the trial has gone off, has not been in accordance with law, normally you go back to square one and you have a trial again.  On the record is usually confined to judicial review type cases, but the appellate process, I think, normally sends it back for retrial, does it not?

MR JACKSON:   Well, sometimes, your Honour, sometimes.

KIRBY J:   And you put the costs of the retrial down to the fact that that is just a cost in ensuring that matters proceed according to law and on a second hearing parties get a second chance.  They will call different evidence and people may be dead.

CALLINAN J:   There is that celebrated case where a new trial was ordered upon the basis of fresh evidence.  It is a Queensland case.  You will probably remember it, Mr Jackson.  The new trial was conducted and nobody called the fresh evidence.

MR JACKSON:   Yes.  Your Honour, I also recall a case about a hospital in…..that seemed to go on for many years but ‑ ‑ ‑

CALLINAN J:   The trouble about estoppel, Mr Jackson, the question of estoppel, it seems to me to raise a matter that really has not been, and one would not have expected it to have been, fully argued having regard to the grounds of appeal and the like.  Your position simply is you want to keep your powder dry on that, is it not?

MR JACKSON:   Your Honour, the only reason for saying anything, your Honour, is that I simply do not want to be assenting to the proposition that all fresh evidence will necessarily be admissible subject to just exception.

KIRBY J:   The powder might be thrown out the window if there is an order for a new trial, which is what normally is ordered.

MR JACKSON:   Well, it may be, your Honour.  Our case may be stronger; who knows?

GLEESON CJ:   Thank you, Mr Jackson.  In this matter we will reserve our decision.

AT 3.58 PM THE MATTER WAS ADJOURNED