GENERAL DISTRIBUTION NOT REQUIRED IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No. VG 289 of 1985 GENERAL DIVISION ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT THOMPSON, MS. RODOPOULOS AND DR. SUTHERLAND, MEMBERS BETWEEN: GRAEME EDGAR BRERETON Applicant AND: COMMONWEALTH OF AUSTRALIA Respondent COURT: NORTHROP, KEELY AND RYAN JJ. DATE: 23 JULY, 1987 PLACE: MELBOURNE REASONS FOR JUDGMENT The Court: This is an appeal from a decision of the Administrative Appeals Tribunal (the Tribunal), given on 11 December 1985, affirming a decision of a delegate of the Commissioner for Employees' Compensation, made on 27 July 1982, under the Compensation (Commonwealth Government TT ee. cpr etree eee ge 2. a Employees) Act 1971 (the Act). The delegate had decided that the Commonwealth was not liable to pay compensation to the applicant who was, at the material time, a member of the Defence Force, serving aS a private in the Army. The Tribunal decided that the Commonwealth was "not liable to pay compensation to [the applicant] because the personal injury he suffered did not arise out of or in the course of his employment by the Commonwealth and cannot be deemed to have done so" and affirmed the delegate's determination. The appeal to this court from the decision of the Tribunal is on questions of law only. The findings of fact made by the Tribunal included the following:- "J... from early in 1980 until about 17 February 1981 the applicant was stationed at the Army's 2 Military Hospital, Ingleburn. On about 17 February 1981 he was posted from that unit to the Army's 2 Military District Personnel Depot at Watsons Bay to await his discharge from the Army. While at that depot he resided in barracks and was required to undertake such duties as might be assigned to him until he was discharged. February 20, 1981 was ae Friday; the applicant was on duty on that day until about 4.00 p.m. After that he rode his motor cycle from Watsons Bay, which is a part of metropolitan Sydney situated to the east of the city centre, to 2 Military Hospital, Ingleburn. Ingleburn is situated between Liverpool and Campbelltown. The hospital there is located between Campbelltown Road and the South Western Freeway, which is part of the Hume Highway. The applicant arrived at the hospital early in the evening and spent the evening with his friends there; until 10.00 p.m. he was a Se eas cree ren nsece e 3. in the Other Ranks' club. In the early hours of 21 February he left the hospital riding his motor cycle and proceeded south along Campbelltown Road." While the applicant was so travelling in Campbelltown Road at about 3.00 a.m. on Saturday, 21 February 1981, he was involved in a traffic accident (the accident) in which he suffered serious head injuries, which resulted in some amnesia. The applicant's claim was put to the Tribunal on alternative bases. First, it was contended "that he was a member of a special task force and that his duties as a member of it were such that he was engaged in his employment for the purpose of section 27 at all times, day and night, 24 hours a day, 7 days a week." There was conflicting evidence as to whether such a "special task force" ever existed and, if so, as to whether the applicant remained a member of it after 17 February 1981 when he was posted to Watsons Bay. The Tribunal considered that, because of evidence as to the applicant's belief, "he must be regarded as having been still under the orders of his superior officers to comply with [certain] instructions." The Tribunal made a finding of fact that:- "The task force or group had no function, except in an emergency. It did not even undergo training as a group. The applicant was continuing to undertake his normal wy re ee ecne ree ee meet ace 4. duties. He was rostered for. duty in the normal manner and, when he was not rostered for duty, he was free to leave his unit to go about his own business until the time when he was again rostered for duty. The only difference between his situation and that of any other member of the Defence Force was that he believed that he had to keep his field equipment packed ready for use and, whenever he left his unit otherwise than in the course of his rostered duty, he was required to inform someone at the unit of his whereabouts during his absence from the unit." The Tribunal found that "the applicant's compliance with the instructions given by Major Curran did not result in his remaining in the course of his employment for 24 hours a day, seven days a week". It was submitted on behalf of the applicant that in so deciding the Tribunal erred in law by reason of its application of the principles enunciated by the High Court in The Commonwealth v Wright (1956) 96 CLR 536. In our opinion no such error of law occurred and the Tribunal did not err in law in finding that the applicant was not in the course of his employment when the accident occurred. The alternative way in which the applicant's case to the Tribunal was presented was: "on the basis that when the accident occurred, he was travelling to his employment, as he was required to commence work as telephone operator at Watsons Bay at 8.00 a.m. on the morning of 21 February 1981, and also that he was travelling to his place of employment and his period of liberty, which started at about 4.00 p.m. on 20 February, would have ended at 8.00 a.m. on 21 February when he started that work. een nian wae eee rT Ns i : -t. . oe Rye mee - rate OE, vo 5. So that by virtue either of section 32 or section 34(2)(a) it was, or 1s to be deemed to have been, a journey to his employment and so is to be treated as though it constituted part of his employment by the Commonwealth." As to the matters raised by those submissions, the Tribunal made the following findings:-— (a) the applicant's journey from his place of employment terminated at the hospital at Ingleburn; (b) at the time when the accident happened, the applicant had departed from Ingleburn and was travelling to Campbeiltown for something to eat; {c) when he travelled from the hospital at Ingleburn towards Campbelltown he was engaged in a separate journey; (d) the applicant intended to return to Watsons Bay that night, after he had had something to eat in Campbelltown, and to travel directly from Campbelltown without returning to the hospital at Ingleburn; (e) the applicant had not been rostered to attend for duty at Watsons Bay on Saturday 21 February 1981. On those findings, in our opinion, the Tribunal did not err in law in deciding that, at the time when the vere cwenat np e oe ee mae ore or torre 6. accident occurred, the applicant was not on a journey to his employment. Nor did the Tribunal err in deciding that, at the time of the accident, the applicant was not on a journey from his employment. Moreover the Tribunal's finding in (e) above that the applicant was not rostered to attend for duty on 21 February 1981 precluded a conclusion that his journey was deemed, pursuant to s. 34(2)(a), to have been a journey to his employment. Secondly the journey on which the applicant was engaged between Ingleburn and Campbelltown could not have been deemed, pursuant to s. 34(2)(b), to have been a journey from his employment because the exclusion contained in s. 35(2) operated by reason of the Tribunal's finding in (c) above that it was a separate, and, therefore, a second, journey in the prescribed period between 4.00 p.m. on 20 February and 9.00 a.m. on 21 February. The remaining ground of the appeal was that the Tribunal misdirected itself as to the weight of the evidence led on behalf of the respondent in respect of the duty roster for the morning of 21 February 1981 but in our opinion there is no substance in that ground. No such challenge was made to any of the other findings of fact. As the applicant has failed to demonstrate any error of law by the Tribunal, the appeal must be dismissed and the applicant ordered to pay the costs of the respondent. I certify that this and the preceding five pages are a true copy of the Reasons for Judgment herein of the Court. Associate: s2>-page.4 Date: 27 Hut, "po7 mow el Dates of Hearing Counsel for the Applicant Solicitors for the Applicant Counsel for the Respondent Solicitors for the Respondent a 15 & 16 June, 1987 Mr. B. Monotti Messrs. Martin, co. Mr. J. Lenczgner Australian Solicitor Ciardullo & Government sco oe yoo