Walker v Wilson

[1990] HCATrans 250

-!.J, AUSTRAL!A,1,:-

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P33 of 1989

B e t w e e n -

MICHAEL EDWARD WALKER

Appellant

and

DOUGLAS REGINALD WILSON

Respondent

BRENNAN J
DEANE J
DAWSON J
TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 23 OCTOBER 1990, AT 11.44 AM

Copyright in the High Court of Australia

Walker(2) 1 23/10/90

MR M.D.F. O'SULLIVAN:  May it please the Court, I appear for

the appellant in this matter. (instructed by

Messrs Gibson & Gibson)

MR J.R. McKECHNIE, QC:  May it please the Court, I appear

with my learned friend, MR B. FIANNACA, for the

respondent. (instructed by the State Crown

Solicitor)

BRENNAN J:	Mr O'Sullivan.
MR O'SULLIVAN:	May I hand to the Court an outline of my

submissions and we have copies of the authorities

and the relevant statutes.

BRENNAN J: Thank you.

TOOHEY J:  Mr O'Sullivan, does it make any difference for

our purposes whether we work from the print that

you handed us up or what appears to the a print of

the Act as at 6 February 1987?

MR O'SULLIVAN:  Your Honour, the Act was amending and has

been substantially amended since the date of the

accident which was in 1985. The print which I have handed up is not a print of the whole of the Act as

it stood at the date of the accident and at the

date of the hearing but of what we perceive to be

the relevant sections of the Act. I think it would

be better to work from that document.

BRENNAN J: Yes, Mr O'Sullivan.

MR O'SULLIVAN:	If Your Honour pleases. Your Honours, this is an appeal from a decision of the Full Court of
this State which determined by a majority that a
workers compensation claim brought by the appellant
should be dismissed.  The claim arose out of
injuries which the appellant sustained as a result
of a road accident in which he was involved shortly
after the termination of his employment.

BRENNAN J:  You may take it that we have read the judgments,

Mr O'Sullivan.

MR O'SULLIVAN:  Thank you, Your Honour. The facts of the

matter are succinctly set out in the judgments.	In
the light of that can I take Your Honours straight
to the legislative framework against which the
claim was determined.	As I have said we have set

out the relevant sections in the photocopy which

has been handed up. Section 18 of the Western

Australian Workers' Compensation and Assistance Act, is to be found at page 21 of the photocopy,

and provides that:

Walker(2) 2 23/10/90

If a disability of a worker occurs, the

employer shall, subject to this Act, be liable

to pay compensation in accordance with

Schedule 1.

"Disability" is defined in section 5 of the Act, at

page 5, to mean among other things and firstly:

A personal injury by accident arising out of or in the course of employment, or whilst the

worker is acting under the employer's

instructions.

"Worker" is also defined in section 5, at page 13,

irrelevantly to be:

any person who has entered into or works under

a contract of service or apprenticeship with

an employer -

about half-way down the first paragraph dealing

with the definition of "worker". The definitions

section and therefore the definitions particularly

of "worker" and of "disability" open with the

following expression, in section 5(1) on page 4:

In this Act, unless the contrary intention

appears -

and then the definitions are set out. The journey

provisions of the Act are to be found in section 19

on page 21. Section 19(l)(a) provides:

Without limiting the generality of

section 18 -

which is, in effect, the course of employment

section -

but subject to subsections (2), (3), and (4),

a worker is deemed to.have suffered personal

injury by accident arising out of or in the

course of his employment where -

(a) the worker suffers a personal injury

without any substantial default or wilful act,

on his part, while he is travelling on any

regular, daily, or periodic journey, or on any
other journey which the worker establishes to

the satisfaction of the Board was reasonable

in the circumstances for the worker to take.

McHUGH J:  Now, by reason of sections 136 and 137 of the

Act, do you substitute "in the appellate's

structure in the Full Court" for the word "Board"

in section 19? Is it then a question for the

satisfaction of the Full Court or what?

Walker(2) 3 23/10/90

MR O'SULLIVAN:	Yes, that is correct.
McHUGH J:	Is there any authority for that in this State?

MR O'SULLIVAN: There is no authority that I can refer

Your Honour to right now but perhaps later I may be

able to do so.

TOOHEY J:	Once there has been an appeal from the Board to the Full Court, do the provisions of the Supreme
Court Act and Supreme Court Rules then pick up the
valid process?
MR O'SULLIVAN:	Yes, I think that is so.

McHUGH J: Section 137 seems to suggest that.

MR O'SULLIVAN:  Yes, I think that is so, Your Honour.

Section 19(l)(a) then specifies the places between which the journey to which the opening part of

19(l)(a) must take place before the section can

operate. Relevantly, section 19(l)(a)(i) and (iii)

are the subsections to which this case relates;

(i) deals with a journey:

between his place of residence and place of

employment -

and (iii) deals with a journey:

between any camp or place, where the worker is

required by the terms of his employment, or is

expected by his employer, to reside

temporarily or where it is reasonably

necessary or convenient that he shall

temporarily reside for any purpose of his

employment, and the worker's place of

residence when not so temporarily residing, if

the journey is undertaken in accordance with
the terms and conditions of his employment.

TOOHEY J:  Mr O'Sullivan, before you get to the Roman

numbered paragraphs, do you place any reliance upon

the words "regular", "daily" or "periodic" or do

you pitch your case entirely in terms of a journey

which a worker establishes to the satisfaction of

the Board was reasonable in the circumstance?

MR O'SULLIVAN:  The appellant puts his case in the latter

category, Your Honour. We rely entirely on the

proposition that this was a journey which was

reasonable in the circumstances for the worker to

take. The thrust of the appellant's case is

further mainly directed at (iii) rather than (i)

although we would put the submission that this was

a journey in (i) as well.

Walker(2) 4 23/10/90

BRENNAN J:  Does that mean that you construe (i) and (iii)

as being cumulative and not alternative?

MR O'SULLIVAN:  No, Your Honour. We construe them as being

alternative. I would simply say that in putting

our case we would put it strongly in terms of

(iii). We make an alternative submission that this

could be regarded as a journey which comes

within (i).

BRENNAN J:  Am I right in thinking that if the case falls

primarily on your argument within (iii) the chief

issue for determination is whether the journey was

undertaken in accordance with the terms and

conditions of employment?

MR O'SULLIVAN: That is certainly an issue which is thrown

up in the case and a major issue, Your Honour.

There are other issues which arise but that is

perhaps the main issue. Other issues concern

whether there was a substantial interruption to the

journey covered by the words at the end of

section 19(l)(b):

unless the injury is incurred during, or

after, any substantial interruption -

BRENNAN J: That is a problem for Mr McKechnie rather than

for you.

MR O'SULLIVAN: Well, yes it is, but perhaps I should say

this at this point, Your Honours, that the

photocopy which I have handed up shows that

section 19 has three subsections: (2), (3) and

(4), and there is an onus of proof provision in

subsection (2):

the burden of proving in any claim made

pursuant to this section -

BRENNAN J: Yes, I see it.

MR O'SULLIVAN:  Now, those subsections were removed, in fact

have been removed by Act No. 85 of 1986. In other

words, they were there when the accident occurred
which was in 1985; they were not there when the

matter came on for hearing which was in 1988. The

question which might arise is whether or not .this
provision was a procedural provision or a
substantive provision and whether or not it
operated to shift the burden of proof at the date

of the trial notwithstanding that it was operative

as at the date of the accident.

We put our case on the basis that - I do not

think it was in fact discussed at any great length

before the Board or the Full Court and I do not

Walker(2) 23/10/90

think the Board or the Full Court made any

determination as to whether the burden of proof

fell on the appellant or the respondent. We put

our case, in any event, on this basis that,

accepting that the burden of proof falls on the

appellant, there are demonstrable errors which

justify the setting aside of the decision that has

been made.

TOOHEY J: But, presumably, then the substantial

interruption provision was pleaded by the employer

so as to bring the employer within subsection (3).

MR O'SULLIVAN:  Yes, Your Honour, that is right.

TOOHEY J: Could I just ask you, Mr O'Sullivan - you said

that by the time the matter reached the Board,

subsection (3) and (4) had been repealed. Had they

been replaced by any comparable provisions or are

they simply deleted from the Act?

MR O'SULLIVAN:  They are simply deleted altogether from the

Act, Your Honour, and the words in the second line

of section 19(1):

but subject to subsections (2), (3), and (4) -

have been deleted as well. Your Honours, may I

just refer you to a one more provision of the Act:

Section 19(S)(c). It defines, or assists, in the determination of what is a "substantial

interruption". It says:

"substantial interruption" prima facie

includes any interruption of the journey for a

period of more than one hour.

So, Your Honours, that is the legislative

framework against which the case was determined.

May I come to the Board's reasons, briefly, before proceeding with my submissi.ons? The Board's

reasons are to be found at page 102 and following.

On that first page and on the second page, the

Board set out five issues which arose in the case and it determined those issues, in essence three of

them against the appellant and two in favour of the

appellant.

The first issue was whether or not the appellant was engaged in a sporting activity and

therefore was not a "worker" by reason of

section 11 of the Act which excludes people

participating in sporting activities. The Board

resolved that question in favour of the appellant.

The second issue was whether the appellant,

having been sacked prior to the accident, could be

Walker(2) 6 23/10/90

called	a "worker" in light of the fact that there
was no	employment contract in existence at that
time.	The Board said about that, at page 110, next
to the	line 15:

We believe that the mere fact that the

contract of service had been terminated prior

to the journey embarked upon did not thereby

disentitle this applicant, or any injured

person, from claiming compensation under the

Act.

Then we come to the three issues which the

Board determined against the appellant. The Board

determined that the journey was not a journey

between his place of employment and his place of

residence so it was not covered by

section 19(l)(a)(i). We, with respect, complain

about that and, further, would make the point that

the Board did not give any consideration to the

question of whether or not it might be a journey

between the places mentioned in 19(l)(a)(iii) in

any event.	The Board did not address its mind to
that.

TOOHEY J: Well, if it did not, why did it introduce the

concept of reasonableness in the question 4? ·

MR O'SULLIVAN: Because the opening words of

section 19(l)(a) before one gets to the Roman
paragraphs, Your Honour, involves proof that the
worker establishes to the satisfaction of the Board

that the journey was reasonable in the

circumstances for the worker to take.

TOOHEY J: Yes, I see - as qualifying everything that

follows?

MR O'SULLIVAN: Yes. So, the third issue the Board set out

was determined against the appellant. The fourth

issue, whether the journey was reasonable in the

circumstances for the worker to take, was

determined against the appellant.	The Board said
about that, under the heading The Nature of the

Journey, which starts on page 110 and goes on to page 111 and the top of page 112, the Board said -

at the foot of 111:

we are of the view on the facts of this

present case the journey in question has not

satisfied us that it was one which was

sufficiently connected with the employment and

was reasonable for the applicant to take in

all the circumstances.

Then the final issue that the Board determined

against the appellant was the issue of whether

Walker(2) 23/10/90

there had been a substantial interruption to the journey in any event. The Board dealt with that

matter at pages 113 and 114 and said that there had

been a substantial interruption and, further, that

it was an interruption for reasons totally

unconnected with the appellant's employment.

In the Full Court, Your Honours, the

majority's reasons were delivered by

Mr Justice Brinsden. His reasons commence at

page 121 of the book. He proceeded to consider,

firstly, whether the appellant was a worker within

the meaning of that word in section 19 of the Act.

His Honour said that, in essence, notwithstanding

the termination of the appellant's employment, he

could be a worker. There is an extended concept of
"worker".

Mr Justice Brinsden acknowledged, as the Board had acknowledged, the idea that section 19 could

operate in such a way as to cover persons whose

employment had just been terminated and to regard

those persons as workers notwithstanding the

definition in the Act. But Mr Justice Brinsden,

nevertheless went on to say that on the facts of
this case the journey which the appellant undertook

during which he was injured was not a journey

immediately undertaken upon the termination of his

employment and for that reason he was not to be

regarded as a worker within the extended definition

in section 19.

The essence of His Honour's reasoning can be

found at page 127. At line 8 he refers to the
definition of "worker" in the Act - to which I have

already taken Your Honours - and observes, at

line 11, that:

the definitions, including that of "worker" in

s. 5, are said to apply unless the contrary

intention appears.

He then says, next to line 16: 

I believe the three cases to which I have

referred above -

and they are the cases to which I will come:

Commonwealth Aircraft Corporation Pty Ltd v Hunt,

Carbis v Bounceball and Gray v Kirchubel. He says:

I believe the three cases to which I have

referred above indicate that a similar

approach should be adopted in the construction

of s. 19. Then he says, commencing line 20:

Walker(2) 8 23/10/90

I propose to examine the facts to see whether

the journey which the appellant undertook,

during which he was injured, can truly be said

to be a journey immediately undertaken upon
the termination of his contract of employment

so as to bring him within the provisions of

s. 19 and the extended meaning of "worker"

which has to be given to that word in order to

cover a former worker whose contract of

employment has been terminated.

DAWSON J:	How far is Wickham from Perth?
MR O'SULLIVAN:	I am sorry, Your Honour, I should have said

that. It is in the order of 1000 kilometres. It

is up near Exmouth.

TOOHEY J:	Is it a correct analysis of the Act to say that section 19 operates to extend the meaning of
"worker"? I do not quite understand what is meant
by that sentence. It certainly gives a protection to a worker in the circumstances referred to in
section 19, but how does it extend the notion of
"worker"?
MR O'SULLIVAN:	The definition of "worker", and in

particular that part of the definition to which I

have taken Your Honours, at page 13 of the booklet,

contemplates the continued existence, I think, of a

contract of employment. It speaks in the present

perfect.

TOOHEY J:  I am sorry, which section?

MR O'SULLIVAN: Section 5 at page 13 of the booklet,

Your Honour, which contains the definition of
"worker". That definition reads in part and

relevantly - about six lines down: -

"worker" ..... but save as aforesaid, means

any person who has entered into or works under

a contract of service or apprenticeship with

an employer.

The argument was put in Commonwealth Aircraft

Corporation v Hunt, which was a case which involved

an injury to a person who was journeying home after

his contract of employment had been terminated,

that because he was no longer under a contract of

employment he was no longer to be regarded as a

worker and therefore the journey provision in the

relevant legislation did not apply to him; it only

applied to workers. That is a similar argument

which could be put here.

TOOHEY J: Yes, it might be said, though, that a person who

has entered into a contract of service is a worker

Walker(2) 9 23/10/90

and if the circumstances in which he is injured

fall within section 19 he is entitled to

compensation without necessarily giving the word

"worker", as it were, an extended meaning by reason

of section 19. It may not matter in the end.

MR O'SULLIVAN: Yes, perhaps "extended meaning" is a

shorthand way of saying something a bit more

complicated.

DAWSON J: It is really an extended meaning of "disability",

is it not?

MR O'SULLIVAN: Well, yes, that is correct, Your Honour,

given that section 19 really extends the concept of

the course of employment.

McHUGH J: That is the correct analysis, that it extends the

concept of the course of employment.

MR O'SULLIVAN: Well, coming back to Mr Justice Brinsden's

reasons, at page 127, it can be seen in the passage

that I read out, at line 20 and just above that,

His Honour accepted the idea that a man can be a

worker notwithstanding that his employment had been

terminated but then applied a test about which,

with respect, we complained. It was a test which

involved determining whether or not the journey had
been immediately undertaken or had been undertaken

immediately after termination of employment:

I propose to examine the facts to see whether

the journey which the appellant undertook

during which he was injured can truly be said

to be a journey immediately undertaken upon

the termination of his contract of employment

so as to bring - - -

BRENNAN J: That would be irrelevant unless it falls within

subparagraph (3), would it not?

MR O'SULLIVAN:  I think what His Honour was saying there,

Your Honour, is that a man whose employment has

been terminated can nevertheless be regarded as a

worker. In other words, he is proceeding along the

lines of giving consideration to whether there is

an extended definition of "worker" which is an
analysis which we would respectfully say is wrong.

But, even accepting that analysis, he said that section 19 does extend to the definition of

"worker" but only to the extent that journeys are

immediately undertaken after the termination of

employment.

TOOHEY J: That expression "immediately" appears in a number

of judgments including judgments of this Court, I

think, in cases like Averil v Wright and so on. I

Walker(2) 10 23/10/90

am not sure what. part, if any, it has to play in

the interpretation of section 19?

MR O'SULLIVAN: Yes, well, we would respectfully submit that

it has no particular magic about it. It may well

be a convenient rule of thumb and it certainly is a
pointer in some cases to whether or not a man

should be regarded as a worker - the immediacy with

which the journey is undertaken - but to elevate

that to a test such as His Honour has articulated,

at page 127, is, in our submission, an error.

I probably do not need to dwell on the point but it can be seen quite readily that the sort of

test that His Honour has articulated is likely to

result, with respect, in quite capricious

consequences.

DAWSON J: It must be inconsistent with the section. If an

interruption which the section envisages takes

place immediately on the termination of the

employment before the claimant sets out, you cannot

be asking terms of immediacy, you must ask in terms

of whether the interruption was substantial.

MR O'SULLIVAN: Yes, I would respectfully agree.

TOOHEY J: It may be more fundamental than that,

Mr O'Sullivan, because in answering the question, "Was the journey between his place of residence and place of employment?" - the circumstances in which the journey was taken and the extent to which the worker departed from his place of residence and was

on his way directly to his place of employment

might help you to determine whether the journey

falls between (i) even before you get to the

substantial interruption provision.

MR O'SULLIVAN: Yes, Your Honour, yes. There are, perhaps,

a number of elements to the problem which overlap.

There is the question thrown up by the words

"reasonable in the circumstances" in the opening

part of section 19(l)(a). There is the question of

"worker" given the definition of "worker". There

is the question of substantial interruption and

there are some questions, particularly in relation

to 19(1)(a)(iii), whether the journey is taken in

accordance with the terms and conditions of

employment.

Now, each of those problems, in a sense, are not discrete problems, they overlap to some extent.

One can say that a journey is reasonable, perhaps,

substantially - - -

BRENNAN J:  Mr O'Sullivan, would you not be best served by

taking us through the elements on which you have

Walker(2) 11 23/10/90

thus far failed, and giving us your argument as to

why you should succeed on this.

MR O'SULLIVAN: Yes, thank you, Your Honour. Your Honours,

the first proposition that the appellant must make

good is that he is a worker and the analysis which

both the Board and the Full Court accepted - and we

respectfully submit correctly accepted - is that

really which seems to have its origins in

Commonwealth Aircraft Corporation v Hunt, and the

judgment of Sir Frederick Jordan in that case.

That case is number 4 on my list of authorities and

I briefly take Your Honours to it. As I said, that was a case in which a worker was injured on a

journey home after his employment had been

terminated, and in a very short judgment

Sir Frederick Jordan said this at page 242, about eight lines down:

I cannot see that it makes any difference

whether the worker has knocked off for the day

or for good; in either case, the employer's

liability continues until he has reached his

place of abode, subject, of course, to the conditions of the sub-section. Stress has

been laid for the appellant on the fact that the word "worker" is used ins. 7(l)(b), and

that this word has a definition ins. 6 which

is said to contemplate the continuance of the

existence of a contract of service. It is, I

think, a sufficient answer to this contention,

that the definition is applicable only unless

the context or subject matter otherwise

indicates or requires.

Now, we respectfully submit that is an

authority which has been accepted and acted upon

for a great deal of time. It was followed in

Carbis v Bounceball and Gray v Kirchubel, both of

which are mentioned on my list of authorities and

which are referred to in the judgments, and we

respectfully submit that both the Full Court and

which those cases stand. the Board correctly accepted the proposition for

BRENNAN J:  In those cases, was there a provision in the Act

similar to that of (iii)?

MR O'SULLIVAN:	No, there was not, Your Honour.
BRENNAN J:	So it is a proposition which is relevant to a

case which falls within (i)?

MR O'SULLIVAN: Strictly yes, that is correct. But the

reasoning, of course, does not really touch upon

whether one is dealing with a journey of the type

dealt with in (i) or (iii). The reasoning goes to

Walker(2) 12 23/10/90

the question of the definition of worker and

whether any contrary intention is manifest in the

Act.

BRENNAN J:  The point is, it says nothing about the

qualification in (iii) about "if the journey is

undertaken" et cetera.

MR O'SULLIVAN: That is correct, yes. Now, I have perhaps

already dealt with this and do not need to dwell long on it, but our complaint with respect about

the majority's approach in the Full Court to the
question of whether the appellant was a worker, was

not that they adopted the reasoning in

Commonwealth Aircraft Corporation v Hunt, but that

they then proceeded to apply this test of immediacy

in the taking of the journey after the termination

of employment as some measure to be used in

determining whether or not the man continued to be

a worker or not.

As I said, at page 127 of the appeal book, His Honour Mr Justice Brinsden articulates that

test. He says:

I propose ..... to see whether the
journey ..... can truly be said to be a journey

immediately undertaken upon the termination of

his contract.

We say, with respect, it is difficult to see

why immediacy should play any vital role at all in

determining this question. The statute just does

not talk in terms of whether or not the journey, -

whether it be a (i) journey or a (iii) journey

should be taken immediately, and it would, I

think - there is simply no reason to import a

criteria of immediacy in the way in which the

majority have imported such a criterion.

In the appellant's submission the Board and

the Full Court should have·approached this

question, the question of whether the appellant was

to be regarded as a worker notwithstanding the
termination of his employment, in this way: it

should have recognized that the appellant was not

in any sense on a frolic of his own at this stage,

he was sacked at, or just after lunch, on the

Sunday at a place a thousand kilometres away from where he had lived prior to coming up for purposes

of this employment, and the question was not

whether or not he had immediately departed to

return to the place from whence he had come, but

whether or not, in all the circumstances, the

journey could still be said to be connected with

his employment and reasonable, notwithstanding that

it might not have been taken immediately after

Walker(2) 13 23/10/90

termination. We say there is no need to apply a

test less broad and flexible than that.

TOOHEY J: But in putting the matter that way, you seem to

be using section 19 as an ingredient of the notion

of "worker". This is something I just have some

difficulty with.

MR O'SULLIVAN:  Yes, I do, Your Honour, and I respectfully

accept the observations that you have made. That

is perhaps not a correct analysis of "worker". I

am nevertheless, though, accepting what

Mr Justice Brinsden has said about it and, even

applying his analysis, saying that there is no

warrant for introducing a test of immediacy - - -

TOOHEY J:  No, but put "immediacy" to one side, why cannot

the question be posed in this sort of way: if a

person has entered into a contract of service, that
person is a worker and the employer's liability to

him continues - perhaps it is not going to work

out, but the employer's liability extends not only

to an injury arising out of or in the course of

employment as generally understood, but extends to

injury by accident in the circumstances mentioned

in section 19.

MR O'SULLIVAN: That is an approach which I have not found

in any of the authorities. I cannot see anything

wrong with it, with respect. It simply has not

been the way the section has been approached in

this State, or in other States. It has been

approached - - -

TOOHEY J: It is just that section 19 is not prefaced with

the words, "In the circumstances that follow, a
person shall be deemed to be a worker", it is in

terms of:

"a worker is deemed to have suffered personal

injury -

in the circumstances that follow.

MR O'SULLIVAN: Yes.

DAWSON J: Well, it is extending the course of employment,

is it not?

MR O'SULLIVAN: Yes.

TOOHEY J: That is really the, message that comes through in

Commonwealth v Hunt, is it not?

MR O'SULLIVAN: Well, the words Sir Frederick Jordan uses

suggest a focus on the definition of "worker".

Walker(2) 14 23/10/90

TOOHEY J: Well, I am not sure about that, Mr O'Sullivan.

If you look at page 242, about half-way down,

Sir Frederick Jordan says:

I cannot see that it makes any difference

whether the worker has knocked off for the day

or for good; in either case, the employer's

liability continues until he has reached his
place of abode, subject, of course, to the

conditions of the sub-section.

DAWSON J: That is, the course of his employment extends to

that extent.

MR O'SULLIVAN: Yes.

TOOHEY J: It is not that "worker" is given an extended

meaning, but that the circumstances in which a

liability to pay compensation arises is extended by

the operation of section 19.

MR O'SULLIVAN: Yes. Well, I do not want to be seen to be

arguing against the proposition because, in my

submission, it is simply an additional reason for

saying that the reasoning of the majority and of

the Board, on this point is - - -

TOOHEY J: Well, you still have to meet all the hurdles that

are implicit in the court's judgment.

MR O'SULLIVAN: Yes, that is right. Certainly the Board and

the Full Court adopted an analysis which did focus

on the definition of "worker" and I can see how

that is done, but I certainly do not want to

suggest that that is the correct analysis.

BRENNAN J: Well, you have embraced that proposition.

MR O'SULLIVAN: Yes, thank you, Your Honour. Your Honours,

the question then arises, in terms of the second of

my propositions, whether the appellant who was

staying with the respondent; his employer, in

Wickham, at his employer's house - whether the

described in terms of section 19(l)(a)(iii), a:	appellant was staying at a place which could be	place, where the worker is required by the
terms of his employment is expected by his employer, to reside temporarily or whether it
is reasonably necessary or convenient that he shall temporarily reside for any purpose of his employment.
And the Board said, at page 113, line 6, in

that regard:

Walker(2) 15 23/10/90

His place of employment was the stables and/or race track at which he performed his work and

his residence whilst in that employ was the

residence of the respondent.

In my submission that is binding, in effect,

of the residence by the appellant of the type

described in section 19(l)(a)(iii).

BRENNAN J: Well, in terms it is intended to be a finding

with respect to section 19(l)(a)(i), is it not?

MR O'SULLIVAN:  Yes, because the Board did not approach,

Your Honour, the question of (l)(a)(iii) at all.

The Full Court applied its mind to it, but the

court did not.	I pause to note that there is a
notice of cross contention in this matter.	It is

said in the notice which appears at page 149 in the

second ground, that:

the Full Court erred in that it should have

held that section 19(1) could not apply to the

relevant journey, in addition to the reasons

given by the Full Court, for the reason that

there was no place of temporary residence

within the meaning of section 19(l)(a)(iii)

relevant to the journey.

We say that the finding of the Board which I have

taken Your Honours to is, in effect, such a

finding, and really that is the end of the matter,

but perhaps it is a matter which I should deal with

in reply if there are other submissions in that

regard.

The third proposition which the appellants put

forward is that his, again in terms of some of the

language in section 19(l)(a)(iii), place of

residence when not so temporarily residing was his

parent's home in Perth. As I have said, that is

not a question the Board addressed its mind to

because it did not deal with 19(1)(a)(iii), but

there was evidence as to where he was residing when

not living with the respondent in Wickham and, in

my submission, that is a finding which should now

be made, namely that he was residing with his
parents in Perth when he was not residing in

Wickham.

Can I take Your Honours to the evidence in

that regard and to some of the findings? Firstly,

by way of background, at page 104 the Board

observed in a paragraph entitled "The Facts" that,

next to the line 9:

During that season

Walker(2) 16 23/10/90

that is the year before the accident, the 1984

season -

he met the respondent at Wickham and when the

season was completed the applicant returned to

Perth and took up residence with his parents

once more.

So we have a finding there, such as it is, of residence in Perth with his parents the year

before. And then, against that background the

uncontradicted evidence in the case was that the

appellant had been living with his parents before

coming to Wickham to work for this season; for the

1985 season. The season goes, Your Honours, from

May until September of each year, that was the

evidence. At page 24, line 19, the appellant was
asked:

First of all, was there any discussion at any stage with Wilson -

he is the respondent -

as to how long you would have remained at

Wickham?

Answer:

Until the racing season finished.

Which I think was in September?---September,

yes.

After that racing season had finished would

you have travelled back to Perth?---Yes.

Why was that?---There was no racing up there

and I had to come back to Perth and ride

there.

I think you were living with your parents?---

Living with my parents, yes.

And at page 30, lines 1 and 2: 

When you left Perth to go up to Wickham -

in 1985 -

where did you leave from?---My parents' house.

And he was not cross-examined really to suggest

that he had not been living with his parents prior
to proceeding up to Wickham. Further, it was his

intention at the end of the season to return to his

parents, as the passage which I took Your Honours

Walker(2) 17 23/10/90

to at page 24 shows, and he was cross-examined

about that briefly at page 29. He was asked really

only just one question, next to the line 9:

Isn't it the case, Mr Walker, that you didn't

have any plans for what you would do after

that season was finished?---When the season

finished I was coming back to Perth.

You were definite about that?---Yes.

But that is really the extent of the evidence on

this question.

BRENNAN J:  The problem is, you do not have any finding in

your favour of the fact here, do you?

MR O'SULLIVAN:  I do not, Your Honour, but the question is

in terms of 19(l)(a)(iii), was the appellant's

place of residence when not so temporarily residing

up in Wickham his parents' home in Perth? And the

evidence is, "I was living with my parents before I

came up.", and he is not cross-examined, there is

no challenge to that at all, and, "I was intending

to return to Perth at the end of the season".

BRENNAN J:  What is involved is two findings. One is that

there was a temporary place of residence in

Wickham, which I take it you would contend for as

being the residence of the respondent?

MR O'SULLIVAN:  I do, Your Honour, and I further contend

that the Board has so found at the page to which I

took Your Honours.

BRENNAN J:  And the other is that the parents' place in

Perth is the permanent place of residence?

MR O'SULLIVAN: Well, his place of residence when not so

temporarily residing in terms of the statute,

Your Honour.

BRENNAN J: Well now, was any request made for findings of

either of those facts, either before the Board or

before the Full Court?

MR O'SULLIVAN: Before the Board I do not think it was

because the case proceeded before the Board on the

basis that this was a section 19(l)(a)(i) journey,

not (l)(a)(iii). Before the Full Court it was

submitted that section 19(1)(a)(iii) applied as

well as (i), and in that context it was submitted

that, indeed the two places, the home in Wickham

and the home in Perth, were places within the words

to be found in (iii). And Mr Justice Brinsden,

perhaps made a finding relevant to this at

Walker(2) 18 23/10/90

page 130. It is more of an assumption than a

finding I must concede. He says at line 2:

If the journey is to be considered as falling

under s.19, it would have to be considered as

a journey between the appellant's temporary

place of residence at the respondent's house

at Wickham and his place of residence in

Perth.

But then His Honour goes on to look at the

question of whether the journey had been undertaken
in accordance with the terms and conditions of his

employment and determined that issue against the

appellant. But we are left, I think, on the

evidence as to where the appellant's residence was

when not so temporarily residing was - we are left
with this, that he said he left from his parent's

place where he was residing. He was not

cross-examined at all about that, and he was only

challenged very lightly about his intention to

return to Perth. It was put to him that he did not

intend to return to Perth.

But the facts are that he, when he was sacked,

certainly formed the intention of returning to

Perth, and that is relevant, we would say in this

context: even if it could be said that the

appellant - we do not concede this, but even if it

could be said that the appellant left Perth not

necessarily intending to return to, in other words

to go further on up north, so that he had no

residence in Perth, he formed an intention to

return to Perth later, in any event, namely when he

was sacked.

Having formed that intention against the

background that he had previously been resident

with his parents in Perth, and he was intending to

return to his parents in Perth, we say that that

was a residence within the description contained in

section 19(l)(a)(iii), a place where he was

residing when not temporarily residing elsewhere.

TOOHEY J: But was the parents' home referred to simply as a

point of departure or as somewhere where he had
been living for a time at least before he set off

for Wickham?

MR O'SULLIVAN:	It is referred to as the place where he had been living, Your Honour. At page 24, specifically
line 27:

I think you were living with your parents?---

Living with my parents, yes.

Walker(2) 19 23/10/90

TOOHEY J: Well, what is the problem with the holding that

his place of residence when not so temporarily
residing was his parents' home in Perth?

MR O'SULLIVAN: There is no problem, in my respectful

submission -

TOOHEY J: Well, what problem did the Full Court see?

McHUGH J:	They never reached it, did they?
MR O'SULLIVAN:	The Full Court did not really, other than to

say in the passage I have read out in the judgment of Mr Justice Brinsden at page 130, line 2, if the

journey as to be considered as falling within

section 19, it would have to be considered as a

journey between the appellant's temporary place of

residence and his place of residence in Perth. The

Full Court really did not address that question or

make a finding.

BRENNAN J: Well then, you have got to address next the

qualification.

MR O'SULLIVAN: Yes, thank you. The fourth proposition is

that the journey was between the places

contemplated in section 19(l)(a)(iii), and perhaps

it does not necessary for me to take Your Honours

to any great authority, but we make the obvious

point that where a journey is from and to and
between, could be determined basically and

primarily by reference to what the person taking

the journey intended to do.

Again the Board did not really address this

question at all and Mr Justice Brinsden at

page 130, I think, could only be said to have made

an assumption in that regard, but nevertheless, in

my submission, clearly the evidence was that the

appellant embarked upon a journey to his parent's

home in Perth and was on a journey between a

temporary residence and his parent's home in Perth

when the accident occurred.

BRENNAN J:  Was that journey undertaken in accordance with

the terms and conditions of his employment?

MR O'SULLIVAN: Well, that is the next proposition with

which I deal, Your Honours. I set out, before I

get to that, in proposition 4, the relevant

evidence relating to the intention of the appellant

when he undertook the journey or when he left the

respondent's house. Perhaps I do not need to take

Your Honours to that evidence in detail, but it is clear that he was intending to go to Perth when he

left the respondent's house. The respondent's

house was only some one or two hundred metres away

Walker(2) 20 23/10/90

from the place where the appellant stayed the night

before proceeding on a journey down to Perth and he

only stayed the night; he did not unpack his car;

it was clearly his intention to continue a journey,

which he had commenced when he left his

ex-employer's house, on down to Perth.

TOOHEY J: .But that is a different question, it seems to me,

Mr O'Sullivan. You still have to meet the primary

requirement that the journey was undertaken in

accordance with the terms and conditions of his

employment.

MR O'SULLIVAN: Yes.

TOOHEY J: It is not suggested, as I understand it, that

this was an arrangement by which the appellant was

to be paid travelling allowance or any petrol money or anything that was to get him to Wickham and back

again.

MR O'SULLIVAN: Yes, that is true.

TOOHEY J: In those circumstances, what is meant by the

expression "in accordance with"?

MR O'SULLIVAN:  Your Honours, in my submission, it means

simply no more than contemplated by the parties to

the contract of employment and if that is

unsatisfactory I approach the matter this way.

There are really only about three things the term

could mean:  it could mean required by the

contract; it could mean not forbidden by the

contract or it could mean, in some loose sense,

contemplated by the parties to the contract in a

connective causal sense.

BRENNAN J: Could it not mean either a matter of right or of

obligation under the contract?

MR O'SULLIVAN: Well, Your Honour, if Your Honour is

distinguishing between that and required by the

contract, I accept that as a separate meaning.	I
was really - - -

BRENNAN J: Well, in other words the employer who employs

somebody to go to a remote part of the State may be

bound, at the termination of the employment, to

pay, under the terms of the employment, a fare for

that person to go back again where he came from.

Then that would be a matter of right. It may be a

matter of obligation if the employee is bound to go

back to some place.

MR O'SULLIVAN: Yes, Your Honour. Your Honour, we would say

a journey of that type, governed by conditions of

employment, if that would be the course of

Walker(2) 21 23/10/90

employment, and that would render 19(l)(a)(iii)

superfluous.

TOOHEY J: It may have just a fairly colloquial meaning in

the sense it is in accord with, it is not
discordant with, the terms and conditions of the
employment. It is not out of kilter with anything

that the parties have arranged.

DAWSON J: And, indeed, you would deduce that that has

double strength because if the contract says

nothing about it, what you really mean is - what

the employer means is, "Well, you have got to get

yourself here and get yourself back". In that

sense it is quite - - -

MR O'SULLIVAN:  Yes, I would respectfully suggest that that

is the meaning and the only practical meaning to

attach to these words. One can see a case for

saying that if the section does not cover to argue

against it too wide and to ..... the definition - the

section does not cover a situation where a worker

is just an itinerant worker who is working in Port

Hedland and when he finishes he is going to go back

to New Zealand and the employer does not know that

and there is no background against which the

contract of employment can be said to have

envisaged a return to New Zealand at the end, but

that does not - - -

McHUGH J: Perhaps it means no more than it picks up in the

opening words of (iii); (iii) talks about "between

any camp or place where the worker is required by

the terms of his employment to reside temporarily

or is expected by his employer to reside

temporarily" and I think it means no more than if

it is a journey from his ordinary place of

residence and his temporary place of residence and

it is either required or expected, he would do it -

MR O'SULLIVAN:  Yes. Well, Your Honour, again that is a

meaning, an approach to the meaning of the words

which is - it certainly departs from any concept of

obligation on the part of the employee to take the

journey or the employer to pay for the journey in

the sense of the legal right or duty and we say

that certainly that cannot be the meaning to be

attached to the words "in accordance with".

DAWSON J:  You could even talk in terms of obligation, can

you not? If the employer employs a Perth resident

and he is required to reside temporarily in

Wickham, it is in accordance with the terms of

employment, that is to carry out the terms of
employment, that he travels from Perth to Wickham

and the corollary is that after the journey is

Walker(2) 22 23/10/90

over, in accordance with those terms, make his own

way back.

MR O'SULLIVAN:  Yes. I am sorry, Your Honour, I did not put

that very well. We certainly say the words "in

accordance with the terms and conditions of his

employment" are wide enough to cover the situation

of a right and an obligation, but we say they are

much wider than that and they should not be read

restrictively.

DAWSON J: Yes.

McHUGH J: Well, the defendant or the respondent said at

page 60, line 37:

I would have asked what was his intentions, was he interested in corning up north for the

season or was he with anyone else.

MR O'SULLIVAN:	Yes.
McHUGH J:	So it was contemplated that he would come up for the season and no doubt he would go home for the
season.

MR O'SULLIVAN: That is right, Your Honour.

McHUGH J: And when the respondent told him to leave he told

him at page 68, about line 26:

I told Michael that he'd best consider going

back home.

Now how firm the assumption was

MR O'SULLIVAN: That there was a journey involved.

McHUGH J: When Wilson was finished with him, he would be

going back to Perth.	He would not be just hanging
around Wickham.

MR O'SULLIVAN:

there is a further bit of evidence which is And Your Honours, .at the foot of page 61

relevant to this. It bears on the journey up and is evidence from the respondent of payment by the respondent for the appellant's fuel on the journey

up.

The last question and answer:

Q.	What happened?
A.	Well, we sat down and I asked him how he was going and he said he had a pretty

rough trip up. I said, "Are you right for

money?" His car was out of fuel so I

said, "Best thing we can do is go and fuel

Walker(2) 23 23/10/90

that up," and we sort of just looked after him from there.

Well that is consistent when he speaks of an

arrangement; the journey being taken in accordance

with an arrangement which did give rise to

a ..... legal right of duty, nevertheless some moral

relationship.

Your Honours, I have dealt with, I think, proposition 6, the proposition that the journey was

undertaken in accordance with the terms and

conditions of his employment. Can I go back to

proposition 5, which I do not think I have perhaps

entirely covered; that is the proposition that the

journey was reasonable in the circumstances, for

the worker to take it in the meaning of

section 19(l)(a). Both the Board and the

Full Court held that there was no sufficient connection with the employment. That was the

language they used and reasonable for the appellant

to take in all the circumstances.

TOOHEY J: Could you take us to that passage of the

Full Court's judgment which speaks of the journey's connection or absence of connection with the

employment?

MR O'SULLIVAN:  Yes, Your Honour. I think it is at

page 129.

TOOHEY J:  I do not understand what is meant by saying that

the journey was not sufficiently connected with the

employment. If the employment is over and if it be

assumed that the appellant was returning to his

residence, what is required by the words "connected

with the employment"?	I am not asking you to
support the proposition.	I am seeking some meaning
to attach to it.

MR O'SULLIVAN: Well again, the only sensible meaning which

can be attached to it, I think, is a meaning which

suggests simply a relationship between the taking

of the journey and the employment. One cannot take

it any further than that and yet the Full Court and

the Board have certainly ignored such a wide

concept and applied what must have been a very

restrictive view of what was meant by the word

"reasonable" and connected in that sense.

McHUGH J: But that is not what they were dealing with, were

they? They were dealing with the "unless" clause.

The Board was dealing with the question of a

substantial interruption. At page 114 they said:

It cannot be said that the interruption of at

least 24 hours in this case was anything other

Walker(2) 24 23/10/90

than a substantial interruption. The reasons for which the applicant delayed his departure

from Wickham may well have been entirely

reasonable from his point of view but were

totally unconnected with his employment and

were of a very substantial nature.

Which - the words in the "unless" clause in

section 19(1) are that "unless the injury is

incurred during or after any substantial

interruption made for any reason unconnected with

his employment".

MR O'SULLIVAN: Yes, well that is right, Your Honour. This

again points up the extent to which different

expressions or words in this legislation involve

perhaps some consideration of matters which

overlap. At page 112 the Board is certainly

talking in terms of connection there in the context

of determining whether or not the journey was reasonable. At the foot of page 111 it said:

We are of the view on the facts of this present case the journey in question has not

satisfied us that it was one which was

sufficiently connected with the employment and

was reasonable for the applicant to take in

all the circumstances.

It is perhaps enough to say that whatever

"reasonable" means in this context, it does not

mean more than "loosely connected with" having a

bearing upon the employment.

BRENNAN J: That might be a convenient time, Mr O'Sullivan.

The Court will adjourn until 2 o'clock.

AT 1 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 1.59 PM: 

BRENNAN J: Yes, Mr O'Sullivan.

MR O'SULLIVAN:  Thank you, Your Honour. May I just make a

few more points, Your Honours. Firstly, as I said

earlier, the appellant also puts his case upon the

basis that the relevant journey was a journey

falling within section 19(l)(a)(i) and in that

Walker(2) 25 23/10/90

regard I have already taken Your Honours to the
evidence concerning the appellant's place of

residence in Perth with his parents but I make the

further submission that the respondent's house in

Wickham could be regarded as the appellant's place

of employment. The expression "place of

employment" is not defined in the Act. The working

definition was used in Carbis v Bounceball which is

number 5 on my list of authorities.

BRENNAN J: Perhaps if you could give us the reference to it

for the purposes of the transcript as well.

MR O'SULLIVAN: Yes. Carbis v Bounceball Pty Limited

(1972) VR 211. That was again a case involving a

journey taken by a worker who had ceased to be

employed. The relevant expression which required

interpretation in that case was:

"present at his place of employment" -

and the construction the court placed upon that

expression was one which amounted to saying that it

meant:

present at such place in connection with an

employment as distinct from for private

purposes. That is to be found at page 218 of the report, the

third-last paragraph of the judgments of

Messrs Justices Adam and Mcinerney.

Yours Honours, in this case the evidence

clearly was that the appellant was to journey to

Wickham and stay with the respondent while he worked

for the respondent. The Board said that the place of employment was the stables of a race track some

miles away from the respondent's home at Wickham

but, although the matter was not fully canvassed in

the evidence, I would suggest that it really is

quite idle and unreal to deny the proposition that

whilst staying with the respondent at his home in

Wickham he was, in effect, subject to the

respondent's directions and orders in connection

with his employment and in that sense he can and

should be regarded as having been at his place of

employment while he was at his respondent's home. Of course, if that submission is accepted,

then we have a journey here between the places

mentioned in section 19(l)(a)(i) and that

subsection does not require any consideration of

whether or not the journey was taken in accordance

with the terms and conditions of the appellant's

employment.

Walker(2) 26 23/10/90

DEANE J:  Do you not have to, somehow on your argument, give

an almost double meaning to "place of residence"?

I mean, assume for the purposes of illustration,

that what one would think could well have happened

here, had happened and your client had got a flat

in Wickham where he was going to reside while he

was employed as a jockey by the respondent and so

on, and assume that an accident occurred between

his flat and the stables. Now, unless you give

"place of residence", as it were, a double meaning,

on your argument that which is the most obvious

case would not be within section 19(a)(i) because

his place of residence is in Perth and the stables

are his place of employment and you will have a

similar problem on section 19(l)(a)(iii), if he is
in fact required to go out somewhere to a camp in

the bush for a couple of days and he is injured between his flat in Wickham and the camp in the

bush. I am not necessarily putting something

against your argument but what need to be careful

about is, that we do not approach these provisions

in the light of an unusual case and overlook the

way they are ordinarily applied.

MR O'SULLIVAN: Yes, I see, with respect, the force of that.

There does not seem to me to be any reason to

necessarily regard the expressions used in the

various subsections as mutually exclusive, but it

is possible in the given case to have two

residences.	One can be resident both in Wickham
and Perth.

DEANE J:  And then in (iii), I suppose, on that approach you

would say (iii) does bring in the notion of

temporary residence, but it is still very difficult to get (iii) working if he has lived in the flat in Wickham and injured in the sort of accident that

(iii) seems to be primarily concerned with; that is

sort of where you are away for a brief period for

the purposes of your job.

MR O'SULLIVAN: Yes, that is right, with respect, it is

hard. Perhaps all I can say is that it is no

answer to this appellant's case that there may be a

case in which, just because a person is staying

only for a few days in a particular place and is

journeying to his place of employment and he is

injured and is not covered, that that is no answer

to what the appellant says in this particular case.

BRENNAN J: For my part at the moment I am having difficulty

in seeing why (i) and (iii) are not mutually

exclusive particularly when (iii) has a

qualification to it which the legislature has

thought appropriate in dealing with places of

temporary residence as against places of ordinary

residence.

Walker(2) 27 23/10/90

MR O'SULLIVAN: Well, perhaps I should not dwell on it too

long, Your Honour, but the starting point in

relation to (i) is to put a meaning on the

expression "place of employment" and if one accepts

that it can mean the place where one is present in

connection with one's employment that is wide

enough to cover this situation where the appellant

is living with his employer and is subject to his

employer's directions and orders.

BRENNAN J:  What do you say was the termini of the relevant

journey here?

MR O'SULLIVAN: In terms of subsection (l)(a)(i) the journey

was between the respondent's house which was the

appellant's place of employment and the appellant's

parents' home in Perth and on that analysis the

journey commenced immediately the appellant left

the respondent's house, notwithstanding that all he

did at that time was to go a couple of hundred

metres to McDermott's house where he stayed

overnight, but when he left the respondent's house

he had the intention of journeying further.

BRENNAN J: Well, on that argument, it is immaterial that he

happened to have a place of residence at the

respondent's house. You just look at it and say,

"Well, that was a place of employment".

MR O'SULLIVAN:  Yes, Your Honour. We would say that the

concepts are not mutually exclusive; one can work

at home.

BRENNEN J: Well, let us take the case put to you by

Justice Deane of the person who takes temporary

accommodation in Wickham and goes to work in the

stables. Let us assume that the place that he

stayed at overnight was the place that he occupied

as a temporary residence in Wickham. He is sacked;

goes back there for the night; the next day he sets

out for Perth. How then does the section operate?

MR O'SULLIVAN: It is a question, firstly, of determining

where his residence is and whether he has two

residences, albeit one temporary and one permanent.

"Residence" is not necessarily a rigid term.

BRENNAN J: Well, let it be assumed that there is a

temporary residence in Wickham, other than the

stables, and a permanent residence in Perth.

MR O'SULLIVAN:  And if the accident occurred between those

two places, Your Honour, or between those places of

work?

BRENNAN J: Yes, between work. Well, the facts were as we

see them in this case. He goes back to his

Walker(2) 28 23/.10/90

temporary residence for the night and then goes off

to Perth.

MR O'SULLIVAN: That is a journey clearly, in my submission,

between two points contemplated by (iii). It is a

journey between a place where it is expected that

he temporarily reside or reasonably convenient that

he temporarily reside in his residence when not so

temporarily residing.

BRENNAN J: Yes.

DEANE J:  It may be that you do not start by saying, "What

is his residence? What is his temporary residence"

in the abstract, but that you start with the

particular journey and define what is the relevant

residence for the purpose of that journey, if there

is one.

MR O'SULLIVAN: Yes, Your Honour. There are cases where,

even temporary overnight residence taken up by an

employee who, for example, has decided not to go

home for the night, but to stay somewhere else, has

been regarded by the court as the residence
relevantly for the purposes of the journey
provision. Perhaps that points up what Your Honour
is saying. It is a question of identifying the

journey first and then characterizing the termini

afterwards. Perhaps I cannot take my submissions

in relation to section 19(l)(a)(i) any further.

In regard to the question of substantial interruption, I think the point which I wish to

make for the most part have been made, but perhaps

I could just add this. Both the Board and the

majority in the Full Court seem to have approached

the matter on the basis of accepting that a journey

started from the respondent's house in Wickham, an

interruption of 24 hours or it might be in access

of 24 hours, must on any view be regarded as

substantial and no doubt that conclusion is

encouraged by the statutory provision which

provides that a delay of anything in excess of one

hour is to be regarded as prima facie

substantially. But it is not just a question of

time. It is the question of the circumstances
surrounding the delay or the interruption and in

this case we have a situation where an appellant

was one thousand kilometres from home and is sacked

on a Sunday lunchtime and has no money to put

petrol in his car and commence a journey home.

In those circumstances, relevantly, in my

submission, it is not correct to call the delay

substantial. It is not, as if, it was a matter of

just travelling across the metropolitan area from

one place to another.

Walker(2) 29 23/10/90

McHUGH J:  But by definition it is a substantial

interruption, is it not?

MR O'SULLIVAN: Well it is prima facie to be regarded as

substantial, Your Honour.

McHUGH J:  The real question, if he was injured on a journey

between the two relevant places of your argument,

but itwas after a substantial interruption and that

is the end of your case unless you can show that

that substantial interruption was not unconnected

with his employment.

MR O'SULLIVAN: Well I certainly make that point first and

foremost, but I just take issue, with respect, with
even the description of "substantial" in this

context. I come back to this: the legislation

should be construed practically and liberally in

favour of the appellant. Cases on my list of

authorities, such as Danvers and Wilson, land 2,

and Goward number 10, had expressions in the

judgments along those lines and if one takes that

thought on board and then thinks about a journey of

one thousand kilometres by road to be undertaken by

someone who has had no notice of the termination of

his employment, rhetorically, why should it simply

be regarded as a substantial interruption just

because the appellant has taken 24 hours to prepare

for such a journey?

DEANE J: In section 19(l)(a)(iii) you regard "place" as

Wickham, I suppose, do you, as a geographical

place?

MR O'SULLIVAN: Yes, Your Honour, more specifically the

respondent's house where the appellant was required

to stay.

DEANE J:  Why would you do that? Why would you not simply

say Wickham, because if you said that you could

then argue, could you not, that one is not so much

concerned with an interruption, as with making

reasonable preparation for a journey of the

relevant kind?

MR O'SULLIVAN:  I would like to say that, Your Honour, but I

think that such cases as I have come across in

connection with this problem talk in terms of the

metes and bounds of the residence, in which

it -

McHUGH J: It is a question where you are required by the

terms of your employment to reside temporarily.

MR O'SULLIVAN: Yes.

Walker(2) 30 23/10/90

McHUGH J: Supposing the employer says, I want you to stay

in Perth. He may change your residence on numerous

occasions, but you would say that you are required

by the terms of your employment to reside

temporarily in Perth, would you not? You would

not say at any particular time that you were

required by the terms of your employment to stay in

a particular suburb, or a particular house.

MR O'SULLIVAN:  I think one gets into difficulties there,

Your Honour, when one comes across the cases where

the accident occurred just inside the front door
and just outside. There are a lot of those sort of

cases where a worker is going home for the night

and he slips on his own drive way. Is he on the

journey or is he inside? Is it a journey between his residence and his employment or is he inside?

McHUGH J:	Well, it may be in those cases where you are required to live in a particular place that you are
in the course of your employment the whole time and
that you are not worried about the journey
provision. Take the commercial traveller; he is in the course of his employment the whole time he
is away, the same with a Qantas air steward, at
least the New South Wales Court of Appeal stated
that.
MR O'SULLIVAN:	Well yes, and what is involved in that is

the idea that he has no fixed place of employment.

He is at his employment the whole time.

DAWSON J:	It is a question of fact, is it not?
MR O'SULLIVAN:	. Yes.
DAWSON J:	It might be reasonably convenient to live just

in Wickham, that is enough, or it might be in this

particular case at the particular spot.	The
employer ..... contact reasonably convenient.	It may

be reasonably convenient that he lives in Wickham,

that is all, full stop, in which case Wickham would

be the place of his temporary residence.

MR O'SULLIVAN:  Yes, that is right. Perhaps I cannot take

the matter any further, Your Honour. Your Honours,

one final point; Mr Justice McHugh, I think,

asked before lunch about the power of the Full

Court to make findings and authority in that
connection to make findings in place of the Board.

There is a rule - our Order 64 covers appeals from,

among other bodies, the Workers Compensation Board,

and Order 64 rule 3 - - -

McHUGH J:  This is the Supreme Court rules, is it?

Walker(2) 31 23/10/90

MR O'SULLIVAN:  Of the Supreme Court rules, yes

Your Honour, and confers upon the Full Court in

such an appeal that the usual powers which it has

in an ordinary appeal pursuant to Order 63

rule 10 - so it is Order 64 rule 3 of our rules and

Order 63 rule 10.

BRENNAN J:  What does Order 63 rule 10 say about findings

of fact?

MR O'SULLIVAN:  It says:

The Full Court should have power to draw

inferences of fact and to give any judgment,

and make any order which ought to have been

made, and to make such further or other order

as the court may require.

BRENNAN J:	Thank you.
TOOHEY J:	But the question of reasonableness did not arise

for the consideration of the Full Court.

MR O'SULLIVAN:  Well, Mr Justice Brinsden certainly dealt

with that, Your Honour, to a limited extent.

TOOHEY J:	Can you take us to that?
MR O'SULLIVAN:	Yes.
TOOHEY J:	Do you mean the passage on page 129?
MR O'SULLIVAN:	Yes, I do.
TOOHEY J:	Yes, ·but that is tied up with this notion of

connection with the employment.

MR O'SULLIVAN: Yes, it is. Both the Full Court and the

Board seem to approach that problem the same way,

as if there was no difference - and perhaps there

is not - but as if there was no difference between

asking what is a reasonable journey and what is

connected with employment in that regard.

TOOHEY J:  In fact, it is a matter for, I suppose, some

inquiry as to what circumstances are likely to give

rise to a finding that a journey was not reasonable

if it met the requirements either of (i), (ii),

(iii) .

MR O'SULLIVAN: It is an extreme view, but perhaps a journey

which is expressly forbidden by the contract.

TOOHEY J:  You mean, "You're not to go back to your place

tonight. You're to stay here at work"?

MR O'SULLIVAN:  Yes, or be on the premises for some reason.

Walker(2) 32 23/10/90

McHUGH J:  Well, what about supposing during the course of

the day. He just goes home to pick up his suit, or

something that he forgot?

MR O'SULLIVAN:  Yes, Your Honour. That could be such a

situation again.

TOOHEY J:  Mr O'Sullivan, if this Court was swayed in that

the Full Court fell into error in some way or

other, what do you suggest then should be done

about it? It would be difficult for this Court,

would it not, to at least embark upon the question

of reasonableness.

MR O'SULLIVAN:  It would be a matter of some difficulty,

Your Honours, but in the end, in my submission, the evidence is there and I have taken Your Honours to the - - -

TOOHEY J:  Are you inviting us to send the matter back if

we were in favour of upholding the appeal, or to

dispose of it in its entirety?

MR O'SULLIVAN:  In my submission, it would be appropriate

for this Court to deal with the matter by entering

judgment for the appellant. It would then have to

nevertheless go back to the Board for the question

of the quantum of compensation, but only as to that

particular question.

TOOHEY J:  Yes. I was not thinking of the quantum of

compensation, but rather of findings that might

have to be made to establish the liability of the

matter on a wrong footing, but the consequences

respondent. I mean, it may be one thing for this

that flow from that are another matter.

MR O'SULLIVAN:  Yes. I suppose in the end - - -

DAWSON J:  Is not reasonableness an inference?

MR O'SULLIVAN:  Yes, it is, Your Honour.

DAWSON J:  Well, why can we not draw inference, if we can

do anything the Court below could do?

MR O'SULLIVAN:  Yes. In my submission, that is correct.

It depends, I suppose, in the end, upon

Your Honours' views of the submissions I have made

regarding the strength of the evidence where there
are inferences to be drawn and conclusions to be
made, but painting with a broad brush for a moment,

we say that it was perfectly reasonable in these

circumstances to embark upon this journey on the

day when he did embark, given the length of the journey and given all the other considerations.

Walker(2) 33 23/10/90

In my respectful submission, that is not a

complicated exercise in sifting through facts to

determine whether or not it was a reasonable

journey.

BRENNAN J:  Does that exhaust your argument Mr O'Sullivan?

MR O'SULLIVAN:  It does, if Your Honour pleases.

BRENNAN J:  Thank you. Mr McKechnie?

MR McKECHNIE:  If Your Honours please, might I hand to

Your Honours an outline of our submissions. While

those are being handed up, could I mention just one

matter which arose this morning, and that relates

to sections 2, 3 and 4, the repeal sections. The

matter was lit.:~ated both before the ard and

before the Ful Court on the basis tha the

sections had been repealed and no reference was

made to them and I would invite Your Honours to

determine this appeal on the same basis, that is

that sections 2, 3, and 4 have no application.

BRENNAN J:	And section llA?
MR McKECHNIE:	Well, section llA was decided adverse to

the respondent by the Board and I do not seek to raise that again. We are bound by that finding but, of course, we have filed pursuant to Order 70

rule 6 respondent's contentions which raise

directly the questions which Your Honour

Justice Toohey was putting forward.

If I could just spend a moment on them

because, in short, our argument will really focus

upon section 19 almost entirely. The facts in this

case - it is not perhaps a very happy vehicle because of the inability of the Board to make findings beyond those which it made in view of its

view as to the reliability of the evidence of the

appellant and the respondent and, in particular,

within the judgment and its inability to draw its inability to draw inferences beyond those inferences in relation to the return journey.

That is perhaps foreshadowing where I will get

to in relation to section 19, but I start with our

contention that the contract of employment having

terminated, the appellant was no longer working

within section 19. In our respectful submission,

one cannot determine the meaning of "worker" within

section 19 by any particular set of facts. It must

be determined by the section itself and the person

either is or is not a worker independent, as it

were, of the factual background of a particular

case.

Walker(2) 34 23/10/90

The starting point, which is the section my

friend has referred to, section 5, defines the term
of "worker". It is true that section 5 commences

"unless the contrary intention appears".

Your Honour Justice Toohey this morning in your

considerion of Commonwealth Aircraft Corporation v

Hunt, 46 NSWR 241, drew counsel's attention to

page 242, as I think in support of a suggestion
that the judgment did not go on to decide the
question of "worker" but, in fact, His Honour

the Chief Justice went on:

Stress has been laid for the appellant on the

fact that word "worker" is used ins. 7(l)(b),

and that this word has a definition ins. 6

which is said to contemplate the continuance

of the existence of a contract of service. It

is, I think, a sufficient answer to this

contention, that the definition is applicable
only unless the context or subject matter

otherwise indicates or requires.

TOOHEY J:  But it is hard to see section 19, Mr McKechnie,

as an extension of the definition of "worker",

which is the way the Full Court seems to have

approached the matter.

MR McKECHNIE:  Yes. That, of course, is our contention as

we raise that the Full Court was in error in

extending the definition of "worker". In our

respectful submission, the term "worker" in

section 19 is as defined within section 5. I will

deal in a second with what that might mean but we

are content to say that it is not extended by

anything or, in particular, by any factual

situation given the immediacy of the journey or

something of that nature.

TOOHEY J:  No, but it is one thing to say that the

definition of "worker" is not extended. It is

another thing to ask whether the liability of the

employer is extended to a situation where a worker

has had his services terminated but is returning to

his place of residence.

MR McKECNHIE:  Indeed. I do not dissent from that view,

Your Honour. We approach it, as we have set out in

our submissions, particularly in items 3 and 4,

that you cannot extend the liability of the

employer through the definition of "worker". The

question really, as we would see it - therefore
questions of immediacy do not arise - the question

really then is what was the terms of the agreement?

In this case there were no express terms as to

travel back. The question is whether one would
imply into a contract of employment a term that the

worker travel back from wherever he is to his

Walker(2) 35 23/10/90

residence in order to be a worker relevantly within

section 19.

TOOHEY J:  Why do you put it that way? Why do you have to

find the term of the contract that the worker was

to return to his residence?

MR McKECHNIE:  Well, in our respectful submission - and it

takes directly to something Your Honour said - in

our respectful submission he is not a worker once

his contract has been terminated. If the contract is silent as to the return, then he is no longer a worker from the moment of termination. If the

contract contains a term expressed or implied that

gets him back to his residence, then he is still a

worker within the meaning of section 19.

DAWSON J:  What if the contract says it will be for the

employee to find his own way back and to his place

of work?

MR MCKECHNIE:	At his own cost, and the like?
DAWSON J:	At his own expense, yes.
MR McKECHNIE:	Without entirely thinking that through I

would be inclined to the view that in that case the

contract has come to an end and the liability of

the employer has come to an end at that point.	One
will often - - -

DAWSON J: That begs the question, because section 19 is a

section which does not extend the definition of

"worker" but does deem some situations to entitle a

person who is a worker or was a worker to

compensation.

MR McKECHNIE: Well, it is the "was a worker" that is - - -

DAWSON J:  What it extends is the definition of

"disability", is it not?

MR McKECHNIE:  There is no question that it extends the

circumstances in which an employer is liable.

DAWSON J:  Yes, by extending the definition of

"disability". "Disability" is defined as:

personal injury by accident arising out of or

in the course of the employment.

What section	19 does is to extend the course of
employment.	So all that it needs is a
pre-existing	course of employment, and you had that
here.

Walker(2) 36 23/10/90

MR McKECHNIE:  Well, with respect, Your Honour, it extends

it for a worker. It does beg the question, and in

our respectful submission the answer to this

question is whether or not the person was a worker.

TOOHEY J:	But a worker when?
MR MCKECHNIE:	At the time of the accident.
TOOHEY J:	Why should you not start the definition of

"worker" as being a person who has entered into a

contract of service - and that is the undoubted

situation here - that person has an accident. If

ordinarily, at the time of that accident, the

employment had been terminated, one way of

approaching it would be simply to say, "There has

been no personal injury by accident arising out of or in the course of employment", but if you have a

section such as section 19 that, as it were, deems

the course of employment to cover a range of

journeys, then is not the inquiry simply, this

person having been a worker by reason of having

entered into a contract of service, was he at the

time of his accident engaged in a journey which

falls within section 19? If he was, the injury is

compensable; if he was not, then it is not

compensable.

MR McKECHNIE:  Well, my argument gets no better or, I

submit, no worse by repetition of it. In our
respectful submission, you cannot use the terms

where it says within the definition of "worker":

Any person who has entered into or works under

a contract of service -

certainly extends, as it were, forward to cover a

journey to an employment before the actual

employment has started.

DAWSON J:  You do not get to that - was this man a man who

had entered into a contract of employment?

MR MCKECHNIE:	Yes.
DAWSON J:	The answer is, "Yes". Apart from section 19,

did he suffer an accident in the course of his

employment, the answer is, "No". You then look at

section 19 and it deems something to be in the

course of his employment. If it applies, then the

answer is, "Yes".

MR MCKECHNIE: 

Well, without in any way resiling from our

contentions, Your Honour, I think I put it
sufficiently to move on to the grounds of appeal

and this focuses directly attention on section 19

and the definitions.  Now, I trouble Your Honours

Walker(2) 37 23/10/90

for a time with the sections; (i), of course,

speaks:

between his place of residence and place of

employment -

and (iii) also uses the words "place of residence".

In our respectful submission, this case is not

a case about a temporary residence at all. The

Board's finding was that the "place of residence" within (i), because that was all the Board was asked to find, was the employer's house and the "place of employment" was the stables some kilometres away.

In our respectful submission, "place of

residence" within (i) has the same meaning as the
"place of residence" within (iii), not a different
meaning. Within this case to hypothesize the sort
of temporary residence that would apply in this

case is, as the examples gave, from time to time

when the appellant was required to travel to

another town, say Port Hedland, ride horses, and

had he required to stay overnight in the course of

that, that was the temporary residence within this

course of the contract of employment.

The place of residence within this contract of

employment was the respondent's house. In our

respectful submission, it is not a case of a

temporary residence being the respondent's house

and the permanent, as it is called, place of

residence being the address in Perth. One achieves

that by the findings of the Board and by, with

respect to him, the obvious difficulties in my

friend's proposition that the place of employment

and the place of residence are somehow

interchangeable.

BRENNAN J:  I am not sure that I follow this, Mr McKechnie. Are you saying that the place of residence in (i)

is necessarily the place of temporary residence in

(iii)?

MR McKECHNIE:  No, Your Honour, is the place of residence

when he is not so temporarily residing in the last

three sentences.

BRENNAN J:  Well, on that footing, any journey between a

place of temporary residence and the place of

employment is not covered.

MR McKECHNIE:  I see Your Honour's point and that cannot be

right.

Walker(2) 38 23/10/90

BRENNAN J:	Why is it that paragraph (i) does not relate to the place of residence at the time when the journey
between that place and the place of employment is
taking place, and that is in the ordinary course of
work, and then so far as (iii) is concerned, it is
when somebody is required to go somewhere for a
time to do the work and is going back home again?
DAWSON J:	It is interesting in that regard that (iii) does

not talk of "temporary place of residence".	It is
a more complex expression.

MR McKECHNIE:  Yes, it talks of "a camp or place".

DAWSON J: Where he is expected to reside temporarily or

where it is:

reasonably necessary and convenient that he

shall temporarily reside -

and that may embrace something other than a

particular house or flat.	It may be wider than
that different concept.

MR McKECHNIE:  In this case, to come back to this place,

the only possible temporary residence which is ever put forward is the respondent's house. Now, in our

respectful submission, pursuant to the findings of

the Board, that was the place where he was expected
to reside. Journeys between there and the stables,

in our respectful submission, are covered
under (i). There was no temporary residence, in

our respectful submission, under (iii) within this

contract. There was no finding that he was

expected to reside temporarily at any other place.

DAWSON J:  I thought what Mr Justice Deane perhaps was

putting a while back was that the place where he

was expected to reside temporarily was Wickham.

MR MCKECHNIE:  Yes, well, with respect, we do not accept

that one resides at a town but at a dwelling.

DAWSON J:	Why could that not be the place where you are expected to reside? The employer might not care
where you lived there as long as you lived in
Wickham.
MR McKECHNIE:	Well, for the reasons that my friend

expressed, because of the necessity for some purposes of deciding the actual start or the

term .....

DAWSON J: But that is going back to paragraph (i). It does

speak of the place of residence.

Walker(2) 39 23/10/90

MR McKECHNIE:  But Your Honour, paragraph (iii) cannot, in

my respectful submission, be overcome. There has

to be a point at which one starts off to the answer

the place of residence being Wickham, at what point

of Wickham?

DAWSON J:  When one starts the journey from Wickham to

Perth.

MR McKECHNIE:  Well, with respect, Your Honour, one starts

it from a house, a dwelling, something of that

nature and it is plainly that camp or place that

the Act is referring to.

DEANE J:  What if the contract said, "You are required to

reside in Wickham, but I do not care whereabouts in

Wickham"? You would say it could not be caught

by (iii) because it did not require him to reside

in a particular house?

MR McKECHNIE:  The particular house, when identified, might

be the place where he is temporarily residing.

DEANE J:  But he would not have been required to reside in the house. He would have been required to reside

in the place. He chose the house.

MR McKECHNIE:  I am not sure that I understand Your Honour

quite. In our respectful submission, the extension

of section 19 is not referring to a place as wide

as a township. It is referring to a place of

residence or something akin to a place of

residence. If he was required to reside in

Wickham, .wherever it was that he actually made his

bed was the place within section 19 and I would
have no difficulty of a journey between that place

and the other termini within that section.

BRENNAN J:  What if the contract is that a jockey who hails

from Wickham is employed by a stable in Perth for a

season on terms that he should be employed at the

usual rates and his travelling allowances from and

to Perth should be as follows, and that he should

reside within 5 miles of the race track; and at

the end of his time, without any breach or

severance, he goes back to Wickham and is injured

on the journey back; why would not (iii) apply,

irrespective of whereabouts within the 5 mile

radius he left from?

MR McKECHNIE:  Well, Your Honour is, first of all, with

respect, putting to me a different fact situation.

In that sense we would still argue that his

contract required him to reside in Perth for the

purpose of the contract. Now, it might be that the

way Your Honour puts it, the travelling allowances

and the like that the contract in fact extended

Walker(2) 40 23/10/90

beyond Perth and so therefore it might yield a

different answer from the present case, but if the
contract requires him to work in Perth and he

resides in the place, in our respectful submission,

that is not a temporary place within (iii). It is

the place of residence within (i).

A temporary place is the place that he leaves

when he leaves that place to reside temporarily

within (iii), when he leaves the place of residence

which is the place of residence within the contract

of employment, and in our respectful submission the

section was never intended and does not extend to

this factual situation that there was a temporary

residence in Wickham and a permanent residence in

Perth. The contract was in Wickham.

BRENNAN J:  That really goes to the qualification at the

end of section 19(1)(a)(iii), does it not:

if the journey is undertaken -

et cetera.

MR McKECHNIE:  Well, it does in part, yes, and I suppose in

a sense it is easier to see when a journey may not

be undertaken in terms of the conditions than when

it is. It usually would be, one would have

thought, as a matter of evidence and may, in

particular cases - the example that Justice McHugh

gave may be one where it is not - but generally one

would have thought that it was taken in accord with

the contract of employment or the terms and

conditions of his .....

To come back, in dealing with section 19 to

our respectful submission, this was a case that

fell within (i), if at all, not within (iii),

Wickham not being a place that is temporary and there being, more importantly in the particular circumstances of this case no evidence, and the

Board not being prepared to hold that there was a

temporary residence.

McHUGH J:  How big is Wickham? I notice that the

respondent said it was "no bigger than this block",

whatever that meant. It only had one shop.

MR McKECHNIE:  It is not a giant town, Your Honour. I am

not sure what the population is, but if you blinked

you would miss it. The major town, and it is a

little bit farther down the coast is Karratha;

Wickham is a satellite town for a mining port and,

in broad terms, people employed at the port are

there. The respondent as Your Honour saw, was

always in fact a mining employee who trained horses

part time. It is not a big town.

Walker(2) 41 23/10/90

To get back to section 19 and looking at the

evidence in this case we would repeat, with

respect, the submission that the Board was unable

to find facts. To the extent that His Honour, the

dissenting judge, in the court below did, we would

say he was in error and his inferences were not

open.

The only facts relevant to the question of

section 19 were the facts that he resided at the
respondent's house and the place of employment was
at the stables. And, indeed, the lack of an

express finding that the conditions included a

return to Perth, in our respectful submission,

count against the appellant. One tests, as it

were, in a sense the propositions by saying, "Well,

if it had been the appellant that had terminated

the contract and had decided not to go back to

Perth but to carry on in the round, the season is

still open in the north if he had gone to another

place." and, in our respectful submission, such a

journey would not be covered by this arrangement

and a finding of that was equally open. We do not

ask the court to make the finding we simply accept
that the Board and the court were unprepared to

make any finding concerning the return journey at

all.

DEANE J: But is it not clear that whatever one says about

contracts and terms and conditions that the

arrangement was that he being in Perth would go to

Wickham for a four months racing season and then go

back to.Perth?

MR McKECHNIE:  Our understanding of the Board's reasoning

which we support is that they found the first two

parts of Your Honour's proposition but not the

third.

DEANE J: Let us say they have found that he being in Perth,

the respondent being in Wickham, the arrangement

was he would come up to Wickham and ride there for

four months. Why would you not say it is in

accordance with the terms and conditions of that

contract that at the end of it, he will go back to

Perth where he came from?

MR McKECHNIE:  On the findings, in our respectful

submission, one can not even get from that.

Certainly, the respondent's business was in

Wickham. The appellant had to be in Wickham to

run; to that extent, yes, he had to go to Wickham.

DEANE J: And there was a contract and obviously if he got

up there and the respondent said, "I have changed

Walker(2) 42 23/10/90

my mind", he would have a right of action of some

sort.

MR McKECHNIE:  I am not sure, with respect, that the

findings of the Board would go that far even, they

may do in relation to going up, but to going back

because of the unreliability of the witnesses the Board were not prepared to make the finding about

going back.

BRENNAN J:	The real problem that you have to face is this, is it not, that if it is a question of right or
obligation and the Board has not been prepared to make a finding and neither has the court, but if it
is a question of consistency with, or I will put it
another way, contemplation of the term "Perth" and not inconsistent with the contractual arrangements
amounting to an undertaking in accordance with terms and conditions of his employment then the answer might be different?
MR McKECHNIE:	I accept -

BRENNAN J: Well, now, he would have to meet the argument

that it does not mean contemplation plus not

inconsistent.

MR McKECHNIE:  I accept the question is in the contemplation

of who; I accept that there is evidence that it

was in the contemplation of the respondent, I

suppose relevantly an important person, in his

evidence which was not accepted that he said the

best thing he can do is to go back to Perth.	But
that evidence, of course, was specifically not

accepted and we have no way of knowing whether that

particular portion would have been accepted because

he was also putting the date of termination a week

before the Board held it to be and that

conversation occurring was in that period.

TOOHEY J: But upon your argument if the appellant's

services had been terminated on a Sunday at the

respondent's home, let us assume that the

appellant's place of residence was Perth, there

would be no way that a journey back to Perth could

fall within ( i) .

MR MCKECHNIE:  Yes.

TOOHEY J: The journey would have to physically, as it were,

begin from, in this case, the racecourse.

MR McKECHNIE: In our submission, Your Honour, the journey

within (i) was a journey between the respondent's
residence and the stables, the journey back to

Perth is not covered.

Walker(2) 43 23/10/90

TOOHEY J: Yes, I appreciate you say that. I was trying to

get away from that situation, perhaps a simple

situation of a worker whose services are

terminated, but not terminated at the place of

employment where the employer and employee might

run into each other in the street and the employer

says, "You are finished" .

MR MCKECHNIE:	Yes.
TOOHEY J:	The employee then sets about returning to his residence either in the same town or in another
town. That could not fall within paragraph (i).
MR McKECHNIE:	And that is our submission, Your Honour,

bluntly, we say.

TOOHEY J:  It seems odd and it may be dictated by the

section or it may be that place of employment has

to be given some wider operation than merely the

physical premises in which the person works. And

you can understand that for other purposes such as,

"Did an accident occur in the course of

employment?", it may be necessary to focus on the

premises themselves but maybe that is not the test

when you are looking at journeys.

MR McKECHNIE: Nevertheless the cases in relation to place

of employment, Whiting being an example, do tend to

focus on the physical place to determine the nature

of the journey and whether people arrive; what it

is between, there has to be a place that it is

between.

TOOHEY J: Yes, but maybe they turn on their facts and

perhaps principles have been drawn from some of

those cases which are essentially fact cases.

MR McKECHNIE:  I accept that might be right, Your Honour,

but these journey provisio~s, in our respectful

submission, have to be geographical; they have to

be a journey between places which in the end in the

facts are defined as residences, on the one hand, and places of employment, on the other - physical

places. In our respectful submission, that it is

the notion of a journey.

TOOHEY J: Yes, I can see that.

MR MCKECHNIE: If Your Honours please, the final submissions

that we would address relate to the question of the

substantial interruption and those are 13 and 14 of

our contentions. The burden was on the appellant,

in our respectful submission, by virtue of

subsection (S)(c) where there was an interruption

for a period of more than one hour; prima facie

that was substantial. I appreciate, I will come to

Walker(2) 44 23/10/90

the fact that it has to be unconnected with the

employment. But the burden was clearly on the

appellant to overcome the fact that he failed

before the Board and he failed before the Full

Court. In our respectful submission, it was open

to each, the Board and the court, to take the view
that he had not discharged the onus of overcoming

the substantial nature of the interruption for

reasons unconnected with his employment.

As Your Honours will recollect from the

evidence he was dismissed on Sunday at about

lunchtime; he went to his friend McDermott's place

overnight. One would accept, as did His Honour

Justice Brinsden of the Full Court, that a rest period, as it were, may be connected with the

employment, journeying down and a break to stop by

the side of the road for four or five hours or for

a meal would not, within the definition, be

substantial and if the break occurs before the

journey really starts I would accept the same

proposition. Thereafter there is a delay of 8 to

10 hours for reasons which, in our submission, are

unconnected with the employment and that is to do

with his getting the debt and fixing, I think,

spotlights to his car. There was no suggestion

that the spotlights were necessary or a requirement

for the journey, as I understand it; he wanted

spotlights fitted.

Now, the Board held and all we would say is it

was open for the Board to conclude as it was open

to the Full Court to conclude, that those reasons

were unconnected with his employment. They were

substantial and that combination disqualifies him

from the benefit of section 19.

DEANE J: But if you regard the place as Wickham, does not

the question then become whether the delay was
reasonable _preparation for the journey and if the

place is Wickham you have not got an interruption,

you have got the preparation for these?

Mr McKECHNIE: Well, "reasonable preparation" I take to mean

another way of saying the delay is not substantial
or not unconnected with the terms and conditions of

the employment.

TOOHEY J: But you do not look to the question of connection

until you have a substantial interruption and that

is the error that, it seems to me, the Full Court

may have fallen into. If an interruption is not

substantial then that is the end of it. You do not

need to inquire whether it was connected or unconnected with the employment and what is

substantial, I suppose, is a question of fact

depending upon the nature of the journey to be

Walker(2) 45 23/10/90

taken and the reasons why there was an interruption

in that journey.

MR McKECHNIE:  I appreciate that. If I can deal with

Your Honour's point before returning to Your Honour

Justice Deane's point. His Honour, at page 131,

His Honour Justice Brinsden, did in fact find that

the interruption was made for reasons unconnected

with the employment, did in fact make that finding

and the Board, also, made that finding at page 114.

And to return to Your Honour's point, what

Your Honour says might flow if one accepts that

Wickham is the place. Your Honour will appreciate

we very much do not accept that and, indeed, in our

respectful submissions, based on the need to

identify the geographical place as a place of

residence or the like, the termini of the journey

it cannot, in any sense, in our respectful

submission, be as wide as a township. And in any

event, in this case, the evidence does not support

such a view of the facts. If Your Honours please,

those would be our submissions.

BRENNAN J: Thank you, Mr McKechnie. Mr O'Sullivan.

MR O'SULLIVAN:  I have no submissions in reply,

Your Honours.

BRENNAN J:  The Court will consider its decision in this

matter.

AT 3.02 PM THE MATTER WAS ADJOURNED SINE DIE

Walker(2) 46 23/10/90