Walker v Wilson

[1989] HCATrans 259

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P27 of 1989

B e t w e e n -

MICHAEL EDWARD WALKER

Applicant

and

DOUGLAS REGINALD WILSON

Respondent

Application for special

leave to appeal

DEANE J
TOOHEY J

McHUGH J

Walker

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 25 OCTOBER 1989, AT 11. 56 AM:

Copyright in the High Court of Australia

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

the applicant. (instructed by Gibson & Gibson)

MR M.J. MURRAY, ~C:  May it please Your Honours, I appear

forte respondent with my learned friend,

MR G.P. RIMMER. (instructed by the Crown

Solicitor for Western Australia)

DEANE J:	Mr O'Sullivan?
MR O'SULLIVAN:	Your Honours, may I hand to you a list of

authorities and photocopies in connection therewith.

I have no written outline of submissions,

Your Honour.

Your Honours, this is a case in which a man

usually resident with his parents in Perth travelled

by road from Perth to Wickham in the north-west

of Western Australia, about 1,000 miles or so north

of Perth, for purposes of his employment. He was

sacked by his employer in Wickham one Sunday

lunch-time and he did not immediately embark on a

return journey to Perth but left it until the next

day to return to Perth, the reason being that he

needed time to get together money to put petrol in
his car and also because he needed to repair his car.

He left for Perth on the return journey on the

Monday and on the journey down was involved in an

accident when his car rolled over and he was

severely injured. Against that background he brought

a claim for worker's compensation which was rejected

essentially on two bases, Your Honours.

The first was, that because he had left it until

the day after the termination of his employment

before embarking on the journey to return to Perth

he was no longer to be regarded as a worker at the

time of the accident and, therefore, entitled to

compensation, and the second was, that in any event,

the journey which he took back to Perth had been

substantially interupted.	The claim, having been
dismissed by the Workers' Compensation Board -

DEANE J:	Is that really accurate, though? Is it not implicit in some, if not all of the judgments, that
if forced to deal with it, it had not been
established that for relevant purposes your client
was ordinarily resident at his parent's home in a
context where he had returned to the district in
which he had ridden in the previous season and was
living there at his employer's home which was not
the primary place where he worked and where he was
riding horses for other owners?
MR O'SULLIVAN:	I do not think so, with respect, Your Honour.

The comments of Mr Justice Brinsden, who delivered

the reasons for the decision of the majority in the

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Full Court, indicated that he took a view and was prepared to take a view that the residence of the

applicant was in Perth. At page -

TOOHEY J:  Page 21, I think, Mr O'Sullivan.

MR O'SULLIVAN:  Yes, Your Honour. I was going to refer to

page 16 as well. At page 16, His Honour certainly

says, having referred to the fact that the

applicant had worked during 1984 year up at Wickham,

he then:

returned -

at the end of the season -

to Perth to the residence of his parents

where normally he lived when in Perth.

There is then a reference at the foot of page 23 and

over to page 24 to the journe~ His Honour says

that he takes an examination of the facts in the

paragraph starting line 23 and says:

The journey, therefore, viewed as having commenced from the respondent's house was

therefore not a journey between the

appellant's place of employment and his place

of residence if the latter is taken as being

in Perth.

And then, going on, on page 24, he says that the

journey would have to be regarded as a journey between

a temporary place of residence and his place of

residence in Perth. There was really no doubt on the

evidence that that is where the applicant was

resident before he went up to Perth and where he was

returning afterwards, Your Honour.

DEANE J:	Yes, I do not read any finding by His Honour that
the residence was Perth and I did not read the orders
accepting that, but, perhaps I have read it wrongly.
MR O'SULLIVAN:	Your Honour, it simply was not an issue, in

fact, either at the hearing, as I understand it, or

on appeal that he was a resident in Perth when he

was not up at Wickham and it is against that background

that I think Mr Justice Brinsden's reasons must be

read.

DEANE J:	I see.
MR O'SULLIVAN:	There was not, in my submission, any room for

doubt that he was resident in Perth.

DEANE J:	Well, if that is so, so be it.
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MR O'SULLIVAN:	Your Honours, there are essentially two

important points raised in the matter and sought

to be raised on appeal. They are, firstly,

when a person ceases to be a worker and, therefore,

entitled to workers compensation, if he suffers an

injury on a journey home, if that injury is taken

after termination of employment and not immediately

taken. The Full Court, Mr Justice Brinsden, took

the view that immediacy is an essential requirement

in the taking of a journey home by a worker whose

employment is terminated and at page 21, the

statement of that proposition before the application

of the test involved in that proposition, appears

at line 20 in a passage starting there, having

examined the authorities and the law, His Honour

then said:

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 section 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.

TOOHEY J:	Mr O'Sullivan, you began, I thought, by saying that
there were two questions involved and you formulated the first, as I recall, as to whether the applicant
was a worker.
MR O'SULLIVAN:	Yes.
TOOHEY J:	But, was that really in issue? I mean, he was

a worker, as I understood the reasons, but the question

is whether .. his services, having been terminated, the return journey was taken sufficiently immediately to

enable him to come within those particular provisions

of the Act.

MR O'SULLIVAN:  Those two thoughts, Your Honour, are both

involved in the same problem. The way Mr Justice Brinsden

approached the problem was to refer to a threshold

point - this is at page 18 of the application book in

the paragraph starting at the bottom of that page -

he referred to:

A threshold point taken by the respondent -

which was -

that the appellant could not be included

within the definition of "worker" for the

purposes of the Act, there being no contract

of employment subsisting at the time of the accident.

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His Honour then discussed that question in some

detail and at page 21 he said that:

A "worker" -

he refers to the definition of "worker" in the Act

as being -

a person who has entered into or works

under a contract of service or

apprenticeship with an employer.

He then says, having regard to certain authorities,

that he believes that the cases to which he

refers above - this is line 16 and 17:

I believe the three cases to which I have

referred above indicate that a similar

approach should be adopted in the

construction of section 19.

That is a reference to an approach that the definition of "worker" should be modified by

section 19 so as to cover a worker who was no

longer in employment or whose employment had been

terminated.

TOOHEY J:  But, was it ever the respondent's argument that

there had not been a contract of employment between
the applicant and the respondent so that the

provisions of the Act just did not operate at all?

MR O'SULLIVAN:  Not on appeal, Your Honour. There was an

issue raised before the board as to whether the man

was a worker because he was a jockey and engaged in

sporting activities and there is a provision in the

Act excluding injuries incurred in the course of

participating in sporting activities. The board

rejected the respondent's submission in that regard

and then on appeal there is no issue as to that.

TOOHEY J:  So, when the Full Court addresses itself to the

question of whether or not the applicant was a

worker, it is simply looking at the question
whether he was a worker by reason of a return

journey which he was undertaking although his contract

of employment had, in fact, been terminated?

MR O'SULLIVAN:	Yes, that is correct.
TOOHEY J:	Thank you.
MR O'SULLIVAN:	I mentioned, Your Honours, the first point

which, in my submission, is an important point

raised and sought to be raised on appeal: the

question of whether a worker whose employment

had been terminated must journey home immediately or

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not so as to bring himself within the provisions of the Act and be entitled to compensation if he

is injured on the return journey. May I just

mention the second point and then come back to the

legislation and the way in which the points arise.

DEANE J:  If I can just take you back for a moment. I

notice at page 12 of the board's finding, they

clearly did not accept his place of residence, for

relevant purposes, was in Perth.

MR O'SULLIVAN:	This is the board's reasons, Your Honour?
DEANE J:	Yes.
McHUGH J:	It seems to me, because the board thought that the relevant provision was 19(l)(a)(i), between his places of residence and place of employment,
rather than subparagraph (iii) which I would have
thought was the relevant - - -
MR O'SULLIVAN:	Yes, that was the view which the board took,

that is correct, Your Honour, with respect. When

we got, though, to the Full Court, as I have said,

there was nothing in the reasons, in my submission,

of Mr Justice Brinsden to indicate that he took a

view definitely that the applicant's residence

was not in Perth.

DEANE J:	Well, he says, "If it be accepted as being in Perth".
MR O'SULLIVAN:	Yes, and as I have said, on the facts, given

that he was in Perth in the period before he went

up to Wickham and was returning to Perth and was

resident with his parents and given the references to him being normally resident with his parents in Perth, in my submission, there was no room for

doubt that that is where he was normally resident.

McHUGH J:  But, am I right in thinking that you throw the

weight of your argument on subparagraph (iii); that

is between any place where he was residing

temporarily, that paragraph?

MR O'SULLIVAN:  Your Honour, we certainly seek to argue that

but we argue equally strongly that (a)(i) applies

and I will develop that shortly, if I may. In fact,

I can just say this: In relation to the second

point,which I say is raised in relation to this
appeal, it specifically refers to a submission based

upon section 19(a)(i). The point which we raise in

that connection is this. It has been decided by this

Court in WHITING V BRAMBLES, which is one of the

authorities to which I refer, that a journey may be

between two points and it is really, with respect,

connnon sense, may be between two points notwithstanding

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that it does not start from one point and end up

at the other point as long as it is on a route,

perhaps the most direct route, between those two

points.

Against that background, the facts of this

case being that the applicant was sacked on Sunday,

did not go to his place of employment, assuming his

place of employment was not where he was sacked, on

the Monday but simply returned to Perth along a

road, which it is notorious, is really the only

road, indeed the only road, to Perth from Wickham

and the accident happening some 300 kilometres south

of Wickham, it is obvious that the accident happened

on a journey between the place of employment of

the applicant and the place of residence of the

applicant in Perth. The majority, with respect, did

not deal with that submission at all; did not deal
with the proposition to which WHITING V BRAMBLES
stands as authority; did not consider, in other

words, whether the applicant was, notwithstanding that

he had not left from his place of employment on the

Monday, nevertheless on a journey between that

place and his place of residence. And, that is a

19(l)(a)(i) argument, Your Honour.

Your Honours, may I refer you briefly to the

legislation, photocopies of which have been handed

up. I should say that the legislation, photocopies of

which have been handed up, is the legislation as

it stood at the time of the accident; it has been

amended in some respects substantially but not

materially effecting these questions. Section 18

of the Act is the main provision conferring upon a

worker entitlement to compensation:

If a disability of a worker occurs, the

employer shall, subject to this Act, be

liable to pay compensation.

"Disability" is defined, inter alia, to mean: a personal injury by accident arising out

of or in the course of the employment -

in section 5 of the Act.

DEANE J:	I think, Mr O'Sullivan, you can assume that we have
looked at the legislation in the context of the
judgments which means ·-··unless there is something
in particular you want to point to.

MR O'SULLIVAN:  Thank you, Your Honour. The only point I

wanted to make then, in that regard, is that the

definition of "worker" refers essentially to a person:

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who has entered into or works under

a contract of service.

Section 19 uses the expression "workerr'. Clearly on its face, that does not refer then to a

person whose contract of service has been terminated

but there is long-standing authority for the
proposition that, in those circumstances, given

that section 5 is prefaced by the words:

Unless the contrary intention appears -

elsewhere in the Act, section 19 operates so as

to extend and modify the definition of "worker"

given in section 5 so as to cover a worker who is

journeying home after his employment has been

terminated.

DEANE J:	One problem that I think you need to address some comments to is, these matters always involve a
considerable element of fact and factual decision.
Both the board and the Full Court have drawn
attention to the unsatisfactory nature of the
evidence in this case which goes very much to the
question whether even if the issues you want to litigate are properly to be seen as questions of
law that would otherwise attract a grant of leave,
is this case an appropriate vehicle where one is
largely left to speculate about a lot of the facts?
MR O'SULLIVAN:	Your Honour, the Full Court determined by a

majority, firstly that the applicant was not a

worker; secondly, that the journey was not, in

terms of the legislation, one which was reasonable
for the applicant to take, that is a journey back

down to Perth; thirdly, that the journey was not

between the place of employment of the applicant

and the place of residence of the applicant; and,

fourthly, that any way it had been substantially

interrupted. They, on analysis, are the four

grounds upon which the applicant's claim was denied.

In connection with the findings that the applicant was not a worker and that the journey which the applicant took was not reasonable, the majority of the Full Court, in my submission, applied a test to

the facts which was unduly restricted. What

Mr Justice Brinsden said, in effect, was that the

journey which a person must take at the termination

of his employment, if he is to be covered for any

injury sustained on that journey, is a journey

immediately taken and the passage at page 21 of the

application book shows that, to which I have

already referred. Having stated that he proposed:

to examine the facts to see whether the

journey ..... can truly be said to be a journey

~diately tmdertaken upon the tennination of ..... ernploYffi=Ut

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His Honour then went on, in the middle of page 22

next to line 11, to say:

There was no immediacy about the

undertaking of this journey even though

the reasons for which the appellant

delayed his departure from Wickham may well

have been entirely reasonable from his

point of view.

TOOHEY J:  Mr O'Sullivan, where does theterm "immediately"

come from; does it come from the Act or is it

a construction placed on this judgment?

MR O'SULLIVAN:  No, it does not, Your Honour, and that, with

respect, is my next point. _It is not referred to

in the Act at all. What Mr Justice Brinsden did

was to look at this question of whether the

definition of "worker" should be regarded as

having been modified by section 19.	He referred
then - - -

McHUGH J:	I thought it came from GRAY V KIRCHUBEL.
MR O'SULLIVAN:	Well, I think it really comes from

CARBIS V BOUNCEBALL, Your Honour, but if I can

take Your Honours through those three cases, that

will really encapsulate the whole point of them.

Mr Justice Brinsden, at page 19, referred to the

first of the cases, COMMONWEALTH AIRCRAFT

CORPORATION V HUNT. That was a case in which a

very short judgment was delivered by the worker was paid off from one job to go to

another; ·he was on his way home and basically there

had not been any substantial interruption or

deviation and he was injured. The argument was put

that he was no longer a worker and, therefore, not

entitled to compensation. Sir Frederick Jordan said,

and Mr Justice Brinsden summarized it at line 12

on page 19:

said that he could not see that it made

any difference whether the worker had

knocked off for the day or for good as in

either case, the employer's liability

continued until he had reached his place of

abode, subject of course, to the

conditions of the sub-section. Noting

that the word "worker" as defined,

contemplated the continuance of the

existence of a contract of service,

His Honour pointed out that definition

applied unless the context or subject

matter otherwise indicated or required and

that was so in relation to section 7(1)(b).

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There is no reference, norwasthere any reference

in the case, to inunediacy although, as in fact

occurred,the worker was clearly on a journey

taken irrnnediately upon the termination of his

employment.

Then, Your Honours, Mr Justice Brisden referred

to GRAY V KIRCHUBEL. That was a case of delayed

departure from the place of employment; the worker

was working in a camp. The facts of the matter are

that he, in fact, resigned his employment on

30 November and it was agreed between him and the

employer that it should be deemed to have been

terminated two days previously, on 28 November. In

any event, he did not leave straight away because

he was at a work camp and irrnnediate transport was

available out of the work camp but not on to his

residence. So, he left a day later and on that

day was injured. So, he resigns on one day,

leaves the following day and is deemed to have
terminated his employment from two days prior to

the actual agreement of the resignation.

Mr Justice Brinsden referred to the judgment of

Sir Frederick Jordan in HUNT's case and to the
reference in GRAY V KIRCHUBEL to the ratio of

that judgment in the quote next to line 10 on page 20 of

His Honour's judgment:

"The section imposes a statutory extension

for the purpose of compensation on the

relationship of the worker and employer,

and that applies during the journey

between the employment and residence,

no less because it happens to be the last

journey than if the worker were returning

at some later date. The journey only

became necessary because of the worker's

employment."

There is no reference in GRAY V KIRCHUBEL to

inunediacy but His Honour then went on to say at

line 19 on page 20: 

In dealing with the facts of the case before the Board the Chairman noted that

though the journey was made on the day

following the agreement to terminate the

employment, the delay in leaving was
caused by the exigencies of transport and

the need to wait for a train which did not

mean that the journey had lost its

character as a journey from place of

employment to residence.

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MR O'SULLIVAN (continuing): That is a reference, clearly

in His Honour's mind, bearing in mind what

His Honour ultimately concluded to the absence of

delay but GRAY V KIRCHUBEL says nothing to suggest,
in my submission, that there is an absolute
requirement of no delay at all.

Then, we come to CARBIS V BOUNCEBALL and this

is the case in which we see a reference in the
judgments in that case or, in one judgment, to

immediacy. His Honour deals with the case at line

25 on page 20, and notes that Mr Justice Smith:

When referring to the equivalent Victorian

sections. 9(2)(b)(i) said that the section

"is applicable to the case of a person whose

employment has been terminated, if that person is

injured while travelling from the place

of his former employment to his place of

residence immediately -

underlined -

upon the termination of his contract of

employment" and cited the other two cases - HUNT's case and GRAY V KIRCHUBEL.

It is clear that Mr Justice Smith is, with respect,

quite correct when he says that the equivalent

Victorian section to this section is applicable

to the case of a person whose employment has been
terminated, if that person is injured when travelling

from the place of his former employment to his place

of residen:e immediately but we do not see that
statement or any of the other comments in CARBIS as
saying that immediacy in the taking of the journey isa

prerequisite to being regarded as a worker.

Nevertheless, what His Honour Mr Justice Brinsden

said at the foot of page 20 and over on to 21 was this:

The facts of COMMONWEALTH AIRCRAFT

CORPORATION PTY LTD V HUNT clearly show

that the journey home was immediately

upon the termination of the contract of

employment. In GRAY V KIRCHUBEL the

journey undertaken when the injury occurred

was immediate in the sense of immediately

following the claimant's departure from his

place of employment, where, by agreement with the employer, he had been allowed to remain

overnight.

So, His Honour took the view that HUNT's case,

GRAY V KIRCHUBEL and CARBIS all should be seen as

spelling out a requirement of immediacy. His Honour

then said at page 21, having regard to those cases,

and paraphrasing, and to the two cases mentioned

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Walker

in the middle of the page, DUPEROUZEL's case and

SIMPSON's case, that the definition of "worker"

in section 5 of the West Australian Act should be regarded as being modified by section 19 and then said that he proposed to look at the facts to see

whether the journey in this case could truly be

said to have been immediately undertaken after the termination of the worker's employment. He, then,

on page 22, in the middle of the page, found:

There was no immediacy about the undertaking

of this journey even though the reasons for

which the appellant delayed his departure

from Wickham may well have been entirely

reasonable from his point of view.

He then said at the bottom of page 22, line 23 -

DEANE J:  You can take it that we have read the judgment,

Mr O'Sullivan.

MR O'SULLIVAN: Yes, thank you. Well, it is clear then that

the majority, in my submission, applied a test which
involved as an essential prerequisite for being
regarded as a worker and entitled to compensation
in circumstances such as this that you take an

immediate journey from the place of - - -

McHUGH J: That cannot be right, can it, because if the journey

was reasonably necessary or if it was a journey

that was reasonable in the circumstances, assuming
that the J.::oard was satisfied that he is home and applying

the theory that underlies HUNT's case, that must

be sufficient, must it not? Is that not th~{X)int:),UJ rrake?

MR O'SULLIVAN: It is with respect, Your Honour, yes, that

it is a broad and flexible test as to; ''fbt1 is the

journey to be characterized?". Is it a journey taken

by a worker between the places contemplated in the

section? It is not a journey which must be taken

necessarily immediately upon terminaticnof

employment. Their Honours applied to the facts

and ultimately, of course, it is a question of fact

but Their Honours brought to the question of fact

an unduly restrictive test and therein lies, in

my submission, the error of principle, the first

error.

His Honour Mr Justice Brinsden, having said

the journey was not immediate, therefore he was

not a worker, went on at page 23, to say, "For the

same reasons, I regard the journey as not being

one which can be regarded as being reasonable in

the circumstances for him to take in the terms

of section 19(1)", the paragraph in the middle

of page 23. The last sentence of that paragraph:

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In my view, the reasons by which I conclude

that the extended definition of "worker" in

s. 19 cannot cover the facts of this case
equally apply to the issue now under

consideration.

As I read that, what His Honour is saying there

is, "Because the journey is not immediate, I also

think it is not a reasonable journey for him to

have taken in the context of section 19."

So, I mentioned, Your Honours, that they

were two of the four grounds upon which the applicant's

claim was dismissed, that he was not a worker and
that the journey was not reasonable and those
conclusions were arrived at by the majority, in
my submission, as a result of an error of principle
in applying an unduly restrictive test.

His Honour Mr Justice Brisden, at the foot of page 23, then went on to say, in effect, "Well,

anyway" - in the last sentence on page 23:

The journey, therefore, viewed as having

commenced from the respondent's house was

therefore not a journey between the appellant's

place of employment and his place of residence

if the latter is taken as being in Perth.

So, at that point, His Honour is considering the question of whether this might be a journey covered

by section 19(1)(a)(i) of the Act and he says the

journey was not a journey between the appellant's

place of employment and his place of residence.

Now, the accident happened, Your Honours, 300 kilometres

south of Wickham. It is notorious that there is only

one road, essentially, from Wickham down to Perth.

The applicant's place of employment, even if it

was not where the applicant was living with the

employer, even if it was the stables or the race

track, was in or near Wickham and it is clear that	the applicant was between that place of employment
and on a journey down to Perth. In WHITING V BRAMBLES,
this Court pointed out the importance to be attached
to the use of the word "between" in this section or in the equivalent of this section in another State.
That was a case in which a worker set off for work -

DEANE J:  I do not really think you need trouble us with the

details of it.

MR O'SULLIVAN: Well, the majority did not consider the question

of whether or not this might be a journey between those two points, Your Honour, but simply assumed that it could not be such a journey if it had not

commenced from the place of employment.

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DEANE J:  But page 24 raises the matter I directed your

attention before, earlier, and that is, the first

part raises the fact that the board plainly did

not consider that the parents' home in Perth was

the place of residence for the purposes of 19(l)(a).

The second matter is that His Honour held that on

the evidence it was impossible to say that the journey

was undertaken in accordance with the terms and conditions

of his employment. Well, now, they are both essentially

factual matters and the evidence is, as I direct

your attention to it, said to be unsatisfactory

by the board and in this judgment.

MR O'SULLIVAN:  Yes, Your Honour. As to the first point,

I can only really repeat what I have said.

DEANE J:  Yes.

MR O'SULLIVAN: - - - itI·ruld he unnecessary or futile to take

it further other than just to observe that it was

quite plain - while the evidence was in numerous

respects unsatisfactory - that this applicant was

resident in Perth and did go up for purposes of

this employment and was coming back to Perth, his

employment having been terminated.

DEANE J: Well, he went up on a basis that he could ride

horses for the employer and for other people.

MR O'SULLIVAN:	Yes, that is so, Your Honour.
DEANE J:	Yes.
MR O'SULLIVAN:	But he was, nevertheless, primarily employed

by this employer and was returning to somewhere

where he was resident at the end of that employment.

DEANE J: Well, that was the result, because he did not get

many other rides but one does not really know what

the expectations were or what the undertaking of -

indeed, one does not even know what the remuneration

was going to be.

MR O'SULLIVAN:  Yes, that is so but, with respect, that does

not impact upon the observation that the man's place

of residence when normally not working for this

employer, was Perth.

DEANE J: Yes. Well, what do you say about His Honour's

comment in the middle of page 24, in relation to

the "journey undertaken in accordance with the terms

and conditions of his employment"?

MR O'SULLIVAN:  His Honour has taken there a view of the

meaning of the words in the statute "in accordance

with the terms and conditions of his employment",

that in some sense it refers to a contractual

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requirement or a contractual contemplation that
such a journey be taken. In my submission - - -

DEANE J:  In other words, it seems to be that His Honour's

view was in a case such as this one applies to the
temporary residence and the place of work and to

get three applying, the journey between previous

residence or permanent residence and temporary
residence has to be undertaken in accordance with

the terms and conditions of the employment.

MR O'SULLIVAN:  In a contractual sense, yes, Your Honour,

that is the view that he has taken.

DEANE J:	Yes.
MR O'SULLIVAN:	In my submission, that is a very narrow and an unduly restrictive view.

McHUGH J: Is it not your answer to it this: that it has

long been held that a worker is acting in accordance

with the terms and conditions of his employment

when he is doing something which is reasonably

required, authorized or expected to do and, in this

particular case, it was at least reasonably expected

that upon the end of the season the work would go

back to Perth?

DEANE J:	Or the end of the employment.
McHUGH J:	End of the employment?

DEANE J: Well, that is affecting the matter though, depending

on the other rides.

McHUGH J:  Yes.

MR O'SULLIVAN: It is, with respect. That is how we would

put it to Your Honour but the proposition which

Mr Justice Brinsden seems to be putting forward

purposes of employment, is required to go to the	there is that a worker can be working - for the
gold-fields or to Broken Hill or anywhere else and
simply because there is not an actual contractual
requirement that he journey home, and one would
seldom find such a requirement in a contract of
employment, then it cannot be said that the journey
home is taken in accordance with the terms and
conditions of his employment.

DEANE J: Well, I think we are seized of the way you put

the application, Mr O'Sullivan.

MR O'SULLIVAN:	Thank you, Your Honour.
DEANE J:	Yes, Mr Murray.

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MR MURRAY:	May it please Your Honours, I have provided to the Court and I hope Your Honours have available
to you the outline of the respondent's submissions. We took the opportunity to deliver that.

DEANE J: If you will just give us a moment, Mr Murray.

MR MURRAY: If it please Your Honour.

DEANE J:	Yes, Mr Murray.
MR MURRAY:	May I take Your Honours immediately back to the

section of the Act and perhaps deal with it in two

parts. Firstly, in our respectful submission, the
provision is clear in its terms but if one puts

to one side for the moment the proposition that

the "any other journey" to i;vhich section 19(1) (a)

refers has to be one established "to the satisfaction

of the Board" as being "reasonable in the circumstances

for the worker to take" and makes the observation

with respect to that, that the way in which the

board and, in our respectful submission, Their Honours

in the Full Court approached that sort of issue was

that one needed to, firstly, resolve what was the

sequela, I suppose, of the terms of employment as

between the applicant and the respondent in relation

to, if you like, the expectation that this particular

journey would be undertaken upon the termination

of the employment.

So, in a very real respect, the oard's

incapacity to make findings of fact in that area

as they expressed it was a difficulty which concluded

against the worker that question of reasonableness

in the circumstances because, in the end, the

Full Court in the majority and the hoard, really,

concluded that there was an incapacity to draw out

of the terms and the conditions of employment any

reference to the undertaking of this as a relevant

journey and as we would see - - -

TOOHEY J: That is a bit hard to follow, Mr Murray, is it not?

If somebody leaves Perth to go to Wickham to work, the
normal understanding would be, I would imagine, that

at the end of the job the person would come back to

Perth if the evidence would indicate that that is

the place where the person ordinarily resides.

You would not expect that to be spelt out chapter

and verse necessarily.

MR MURRAY:  Indeed, that is right, Your Honour, you would

not expect that to be spelt out in chapter and verse

but the board seems clearly to have taken the view

and the Full Court saw no reason to dissent from

it except His Honour Mr Justice Rowland took a rather

different view of the factual material, that this

was an engagement in Wickham. To get to that

engagement, the applicant had to travel from

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a place in Perth,indeed, but it was an engagement in Wickham and it was terminated there and it was

open, then, to the applicant to do what he wished

by way of either staying in that district, taking

other rides if they were available, working for

somebody else if that was open to him, returning

to his parents' home in Perth where he would reside

when in Perth as was the conclusion, not that it
was necessarily his ordinary place of residence
but that he would reside there when in Perth or,
indeed, go anywhere else and so it was simply dealt
with factually in that indeterminate area of fact
which the board was unable to resolve in favour

of this applicant.

McHUGH J: But, you have the finding or, it seems a finding,

on page 3 at line 15, that:

The respondent sought to engage the applicant's services as a jockey for the 1985 season at

Wickham.

So, whatever else may be unclear about the contract,

it seems to have been a contract that the applicant

would work for the respondent for the 1985 season

at Wickham.

MR MURRAY:  Yes, Your Honour. I am not sure where Your Honour

is taking me in relation to that.

McHUGH J: Well, at the end of that season, surely, it would

be reasonably expected under that contract that the

applicant would then return to Perth.

MR MURRAY: Well, nothing appears in the material which

indicates that such - - -

McHUGH J: Well, it does not have to but

MR MURRAY:	No, I am sorry, Your Honour, the - - -
McHUGH J: As Mr Justice Toohey put to you, that is the sort

of thing that would be understood against the background

of this. I gather that there is some identified

season; it is not as though they race from the -

it looks like they do not race from 1 August to

1 August the following year; there is some set

season, I gather. There is other talk about

pre-season training.

MR MURRAY:	Yes, it is developed more on page 4, I suppose, but is it not there simply clear that so far as the
board was able to take that and, having regard to
their very clear expressed reservations as to the
reliability of the evidence beyond the points at
which they were evertakm, they have simply accepted
that it was an engagement which was in terms to
be undertaken at or upon his arrival in Wickham
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and that was the commencement of it. It was to be

to work for him and help train the horses and

undertake rides for the respondent. It was not

to preclude the taking of rides and work otherwise

for others in the area and that was a commitment

for that particular season. What was then to happen

after that seems to have been a matter of no

connection or, at least, upon the findings of either

the board which the majority of the Full Court saw

no capacity to be able to expand upon; there was no

matter beyond that which one would draw a conclusion

about connected with the employment as it was to be
engaged in.

McHUGH J: But, in so far as there are problems from the

applicant's point of view, they seem to arise from

the fact that the board never directed its mind

to subparagraph (iii) at all.

MR MURRAY:  Well, if it please the Court, that perhaps raises

a different area because then one would be concerned

to understand whether the particular journey was

undertaken in accordance with the terms and conditions

of the employment in the area which, as we have said,

would, in that context, tend to answer the question

of reasonableness in the circumstances for the

journey to be undertaken.

McHUGH J:	Yes.
MR MURRAY:	And, Your Honour is right that the matter was dealt

with upon the basis of the findings of fact by the board in the Full Court and properly so dealt with in our submission upon the basis that the board

found an incapacity to make other findings which

would have been necessary, in our respectful submission,

to sustain a conclusion that the journey was undertaken

in accordance with the terms and conditions of

employment. That was a determinative point of decision

in the Full Court.

TOOHEY J:  But how is it relevant to us or, to say that this

job was to be embarked on in Wickham? I mean, in

a sense that is self-evidence but the point is that

the person who is engaged was engaged from outside

Wickham and, therefore, at least had to make the

journey to Wickham, whatever happened thereafter.

Is this not the sort of situation that section 19 is designed to meet?

MR MURRAY: If it please the Court, no, unless one is able

to conclude that it was an obligation undertaken

within the terms of employment which encompassed

and included the journey back to Perth.	One would
have to - - -

TOOHEY J:  What does that mean? An obligation upon whom?

That the employer was to provide fuel for the journey

back?

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MR MURRAY:	No, not necessarily, Your Honour, but in some way it can be seen that the journey was undertaken
in accordance with the terms and conditions of
the employment.
TOOHEY J:	Yes, but it is not something that gives rise to

rights and obligations which is the sort of thing

one would look for in a contract of employment.

I mean, it is - I must say, I have difficulty with the

notion of "in accordance with the conditions of

employment".

MR MURRAY: Quite, Your Honour, but it must, in our respectful

submission, have meaning.

TOOHEY J: It may mean no more than ":in contemplation".

MR MURRAY: Well, in our respectful submission, it would

need to be more than simply that; it would be
necessary to show that the journey was one which
was part of the terms and conditions of the employment

in some way, if I can put it as neutrally as that.

It has to be undertaken "in accordance with".

TOOHEY J: It would be obvious enough in a case where a bus

fare is provided or an air fare or fuel or something of that sort but the section presumably contemplates

a wider range of situations than that.

MR MURRAY:  Well, it may do, Your Honour, but indeed it is

relevant to note, is it not, that the type of journey

with which paragraph (iii) is concerned is one:

Between any camp or place, where the worker

is required by the terms of his employment,

or is expected by his employer, to reside -

McHUGH J:  Or where it is "convenient that he shall temporarily

reside for any purpose of his employment".

MR MURRAY:  Yes. So, it is all linked up with the obligations

of the work in accordance with the employment which

he has undertaken and his capacities of work,

Your Honour. It is upon that basis, one would

reasonably conclude, that the legislation seeks
to then impose the responsibility of compensation
and this board and the majority of the Full Court

simply felt unable to conclude that the journey

back to Perth was in any way linked to the employment

in a way which would be relevant under paragraph (iii).

TOOHEY J: Once you start focusing unduly on the word

"immediately", one can see how it is possible to lose

sight, perhaps, of what the real issue was before the

board. I mean, immediately, one can see it is a useful

sort of yardstick, perhaps, because it points up the

connection between the termination of employment and

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a return to the place of residence but it seems to me to be going a long way to formulate that as the

necessary prerequisite of succeeding under that

provision.

MR MURRAY: 

Well, if it please Your Honour, there might have

been a danger of that character but it does not
emerge from the reasoning of the majority expressed

at page 24 of the papers where, quite separately,

His Honour Mr Justice Brinsden deals with an incapacity

to spell out the findings 01- fact made

by the board , the relevant material which would

enable one to conclude that this was a journey under
that paragraph of a type contemplated by the section.

DEANE J: Mr Murray, if I might interrupt you to say that

the Court will not go beyond this matter before

two o'clock.

MR MURRAY: So, Your Honour, the other aspect of that,

in our respectful submission, is that in dealing

with this area at all, it may well be that the

Full Court pursued a view of the provision which

is particularly favourable to the applicant to enable

him to get the consideration of the thing off the

ground at all because there would be, in our

respectful submission, a very real argument which

would say that it was never addressed, as Your Honours

have noted, before the board or before the Full Court

that the question of temporary residence there is one

which is designed to express a concept of temporary

residence within the employment itself where a worker

is required to move about during the course of his

employment and matters of that sort and one is

looking within the context of employment to a

distinction between a place of residence and a

place where he is required or where he is to reside

temporarily or is convenient for a purpose of the

employer that there shall be a temporary residence.

It is an expansion out of that concept. This was

a matter which was never addressed by the ½oard

but not necessary to be addressed by the ½oard and

it was a matter not addressed by the Full Court

but, again, might be a matter of particular difficulty

so far as the applicant was concerned.

DEANE J: But was ~e any dispute in this case as to whether

the applicant was an employee or a worker?

MR MURRAY:  If it please the Court, the respondent's position was,

as I have understood it, which was taken before

the board, that whether it is put as a global
proposition or whether it is put in the context of

this particular journey, that there could no longer

be a link which would enable you to say that it was

a journey undertaken by him in his character as a

worker, as defined.

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DEANE J:	My query was, was there any dispute about whether
he ever had been a worker?
MR MURRAY:	No, not as I have understood it, Your Honour.
DEANE J:	Because it has a lot in conrrnon with the ordinary
retainer of a jockey who rides for one stable
but also rides for others.
MR MURRAY:	Well, the matter that was particularly raised

is that to which my learned friend referred, the

provisions of the Act.

DEANE J:	But, Mr Murray, that was not in dispute - do not
trouble;  I just wanted to be sure it could be put
to one side.
MR MURRAY:	Yes, Your Honour.
TOOHEY J:	Well, the reasons of the board, at least I think

they are the reasons, on page 1, suggest that it

may have been raised because, with reference

to a five stage defence, the first of which is:

That the applicant was engaged in a

sporting activity and therefore was not

a worker.

MR MURRAY:  It was a reference to earlier provisions of the

Act.

DEANE J:	But, anyway, we can take it that that issue had
gone by the time it came to the Full Court.
MR MURRAY:	Before the Full Court, yes, indeed, Your Honour,

as I have understood that is the position. In

our respectful submission, the factual difficulties which were

dealt with by the Full Court within the context of
the section were firstly these: t'hat there was, as
a matter of fact, in our submission, an incapacity

to regard the journey wherever the worker conrrnenced

place of residence and place of employment and it	it as being a journey in any real sense between the
was only by artificial considerations about that,
as Your Honours have seen, His Honour Mr Justice Brinsden felt compelled when he was considering that aspect of the matter to take the view that it would be
appropriate to regard the place of residence of the respondent's home as being equivalent to the
place of employment which it clearly was not. And
so, you are in this situation, that on the Saturday,
as I have understood it, the applicant was engaged
to ride for the respondent in a particular race
meeting, did so, returned from there to his then
place of residence which was the respondent's home. On the following day, at about lunch-time on the

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Sunday, he was dismissed from there and at that

point one could not regard him as being in

any meaningful sense on a journey between the

place of employment or any place of employment and

anywhere else, so he commenced from that place of

residence a journey by leaving it immediately he

had been dismissed; he went from there to a

friend's house - I think the person's name is

McDermott, if memory serves me rightly - stayed

there overnight and was delayed in town the

following day for some period of time while he

arranged for the return to him of some $300, if

memory serves me correctly, that he had loaned to

a friend on that previous day before he could

undertake his journey. Now, in our respectful

submission, on no view of the evidence was it

possible to simply take the journey down to Perth, if that was regarded as the place of residence, as a journey between that place and the

place of employment. And, WHITING's case, to which

my learned friend refers, in our respectful

submission, does not help at all in respect of that.

It just deals with the limited proposition that

given all of those things being satisfactorily

resolved in the applicant's favour, it would not

matter that, as we saw in WHITING's case, the

journey from home had not concluded ultimately at

the place of work and was now being returned to

home from just outside the place of work. It would

be drawing, in our respectful submission, a very long
bow, indeed, to say that the Full Court has got

anything wrong with respect to its approach to that

provision.

Now, as we have submitted it, in relation to

paragraph 3, the real difficulty was one of an

incapacity to make relevant findings of fact which

would have demonstrated any relevant connection

between the journey as undertaken and the employment

of self and that was the central and crucial feature
of the Full Court's decision and, as I say, in

our respectful submission, it is apparent when one

looks at His Honour Mr Justice Rowland's reasons,

that his dissent is based upon an express capacity

to make findings of primary fact which neither the

board nor the majority was prepared to make. In our

respectful submission, that would not be a basis

upon which this Court would enter into the further

consideration of the matter and the other aspect, of

course, which then had to be confronted was one

that the Full Court did look at and that was the
question of substantial interruption under

subsection S(c) including:_

prima facie ..... any interruption of the

journey for a period of more than one hour.

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And, considering it ~s a journey which was

undertaken, or had to be regarded as being one
undertaken, from the respondent's home as a place

of temporary residence to a place of residence in Perth when not so temporarily residing, the factual material before the board has simply led

the Full Court to conclude that the board's view

was correct in considering that the interruption

for the purposes of refinancing and repairing of

his motor vehicle and that sort of matter, was

not wrongly dealt with as a substantial interruption

within the meaning of the Act being for a purpose

unconnected with the employment. And, again,

His Honour Mr Justice Rowland's views about that

in dissent, can be seen to be based upon an

express capacity to make findings of fact which

relate to what His Honour viewed as being an

apparent failure to completely pay the applicant

on the part of the respondent and that was

simply a mateer which neither the board nor the

majority were prepared to enter into.

So, all of those matters, in our respectful

submission, make this case a matter which would be

an entirely unsuitable vehicle for special leave

or for any detailed examination of this provision

and there is nothing in the way in which the matter

has been dealt with, in our submission, to show

that the applicant, in particular, has suffered any

injustice in the result having regard to the

matters we have mentioned. If it please the Court.

DEANE J:	Thank you, Mr Murray.	The Court will adjourn
until 2.00 pm.

AT 1.05 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.00 PM:
DEANE J:	Mr OSullivan, you may have special leave to appeal.
MR O'SULLIVAN:	Thank you, Your Honour.

AT 2.01 PM THE MATTER WAS ADJOURNED SINE DIE

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