See also Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and the authorities there referred to namely Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 and Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36.
Difficulties arise in observing these precepts when on an appeal on a question of law the applicant contends that the Tribunal was in error in the construction of words or phrases contained in a statute and in applying those words or phrases as so construed to the facts found. A classical discussion of the problem is discussed in Hope v The Council of the City of Bathurst (1980) 144 CLR 1. Mason J considers the problem in a long passage from 7 to 10. The following extract is taken from page 7:-
"Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law. One example is the judgment of Fullagar J. in Hayes v. Federal Commissioner of Taxation, where his Honour quoted the comment of Lord Parker of Waddington in Farmer v. Cotton's Trustees, which was adopted by Latham C.J. in Commissioner of Taxation v. Miller, that where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only. Fullagar J. then said:
"...... this seems to me to be the only reasonable view. The distinction between the two classes of question is, I think, greatly simplified, if we bear in mind the distinction, so clearly drawn by Wigmore, between the factum probandum (the ultimate fact in issue) and the facta probantia (the facts adduced to prove or disprove that ultimate fact). The 'facts' referred to by Lord Parker ...... are the facta probantia. Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law." "
(footnotes excluded)
Counsel for Comcare attacked the findings of the Tribunal expressed in paragraphs 29, 47 and 58 of the reasons of the Tribunal and set out earlier in these reasons. As part of this attack, counsel took the Court to the material before the Tribunal in an attempt to show that the conclusions of the Tribunal were not fully supported by that material. Insofar as this attack involved matters of fact, that attack could not involve a question of law. This was not a case where it was contended that no tribunal could have come to the conclusions reached but rather the submissions were based on a mixture of the proper construction of the relevant phrases contained in s 6 of the Comcare Act and the material before the Tribunal. This contention involved the meaning to be given to the phrase "place of residence" in the defined sense of "the place where the employer normally resides" or "a place other than the place where the employee normally resides", and "place of work". There was no suggestion that any of these words or expressions had a special or technical meaning. In other words the Comcare Act uses those expressions in the sense that they have in ordinary speech. The meaning to be given to those words, therefore, involves a question of fact, not a question of law; c/f Hope per Mason J at 7-8 and the cases cited in that passage.
However, the real issues, or questions of law, were whether the facts found by the Tribunal came within the ordinary meaning of those expressions. This is a question of law; c/f Hope per Mason J at 8 and the cases cited.
Counsel for Comcare referred to a number of authorities where courts have considered the meaning to be given to expressions such as "place of residence" and "place of work". This was of interest but not of great assistance. In the area of workers compensation legislation, in the past there has been a difference in terminology. In the Commonwealth employees compensation legislation, relevantly, the expressions used have been "in relation to a journey by an employee to his employment by the Commonwealth (irrespective of the place at which the journey commenced)"; see s 32(1) of the Compensation (Australian Government Employees) Act 1971-1973. There have been many authorities of courts, including the High Court, in which the expression "journey by an employee to his employment by the Commonwealth" and the corresponding expression "journey by an employee from his employment by the Commonwealth". Those authorities are of interest but there is an important distinction between the legislation there relevant and the provisions of the Comcare Act. In the former no identified places were specified at which the journey was to commence or to end. Under s 6 of the Comcare Act, places are identified by which the journey is to be defined. These cases, however, are of assistance in another respect as appears later in these reasons.
The Tribunal gave detailed consideration to the question of the place where Mr O'Dea normally resided and the place where he resided temporarily as a matter of necessity or convenience, for the purposes of his employment. He had been at the RAEME barracks for two working weeks only but had gone back to Traralgon for each of the two weekends of that period. There was no suggestion that he had applied for permission to "live-out" of the barracks. The Tribunal referred to what Wilcox J said in relation to the "legal concept of residence" in Hafza v Director-General of Social Security (1985) 60 ALR 674 at 680-681 to support the view that Mr O'Dea, having established his "home" or residence with his parents at Traralgon and had the intention of treating it as his "home" or residence, in the sense of intending to return there, the fact that for previous periods he lived elsewhere did not prevent this "home" or residence being the place where he normally resided. The Tribunal was satisfied on the material before it that this home was his place of residence before he joined the army, that he came back to that place, a defined area, whenever he had leave or at weekends, and where a room was kept by his family as his room at the "home". The Tribunal referred to and considered all material whether supporting the claim made by Mr O'Dea or detracting from that claim. Having considered all these matters the Tribunal made the finding set out in paragraph 29 of its reasons. This finding involves a question of fact. There was ample material to support that finding. As was said by Gummow J in Gauthiez v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 512 at 519 the meaning ordinarily given to the phrases "resides", "usually resides" and "ordinarily resides" is such as to make the result in a given case depend largely upon matters of fact and degree.
Counsel for Comcare sought to challenge that finding by reference to the material before the Tribunal. In my opinion this Court cannot enter into that exercise on an appeal on a question of law. Counsel referred to authorities on the meaning of "residence" but essentially this comes down to a consideration of the relevant facts including the intention of the person concerned. These were considered by the Tribunal. No error of law has been disclosed on this issue.
The Tribunal then considered the expression "place of work". The issue here was whether the place of work should be limited to the RAEME workshops within the security fence of the Training Centre so as to exclude the barracks within the area of the Training Centre. This distinction can have important consequences where, as in the present case, an employee who is living in accommodation provided by the service as part of the requirements of being in the service. While living in that accommodation the employee is subject to service discipline. This is a problem that has been considered from time to time under the general provisions of compensation legislation. Under the Comcare Act the general provision is that the Commonwealth is liable to pay compensation to an employee in accordance with the Act "in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment"; s 14. In s 4 one of the meanings given to the word "injury" is "an injury suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment". These expressions, by judicial decisions, have been given a very wide meaning. Section 6 of the Comcare Act extends, by deeming provisions, the application of these expressions. Many of the other sub-paragraphs of s 6(1)(b), likewise, extend the meaning of those expressions.
A reference to s 6(1A) of the Comcare Act suggests that the use of the word "place" in the expression "place of residence" suggests the place of residence has identifiable boundaries, measured as it were, by metes and bounds. This merely supports the old folk lore that if an employee thought that an injury, being an unexpected step in a disease, was about to occur, to make sure the unexpected event occurred after leaving the front gate of the home on the way to work. In any event the use of the word "place" in either of the expressions "place of work" or "place of residence" connotes a defined area, normally the whole area of the work place or residence or, to put the matter in another way, the area over which the owner or legal occupier of the area has control.
Commencing at paragraph 30 of its reasons, the Tribunal accepted a plea from counsel for Comcare to give guidance to delegates making decisions "as to the meaning to be given to the phrase "place of work" in respect of a soldier living in barracks. As a result the Tribunal gave an extensive consideration to that issue. The Court is not permitted to the same latitude. Nevertheless, there is much to support the opinions expressed by the Tribunal.
In the present case, it is noted that the expression "place of work" is defined in s 4 of the Comcare Act in an inclusive form and includes any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment. The meaning to the expression "place of work" in s 6 of the Comcare Act is such as to make the result in a given case depend largely upon matters of fact and degree; c/f Gummow J as referred to above. In the context of travelling between a place of residence and the place of work, in general understanding of the expressions, what is connoted are the boundaries of the place of residence and the place of work. This position can be illustrated by examples.
An employee is a member of the Australian Army undertaking training at the RAEME Trading Centre at Bandiana. The employee's place of residence is Wodonga. It is necessary to travel to the training centre. Under s 6(1A) of the Comcare Act the journey starts at the boundary of the land where the place of residence is situated. It does not start when the employee leaves the room of the boarding house constituting his residence. Normally it would be expected the journey would end at the boundary of the land comprising the Training Centre. If the employee suffered an injury as defined in s 4 of the Comcare Act after entering that area but before the employee arrived at the appropriate workshop, no question of journey would arise. The question would be, did the employee suffer an injury arising out of or in the course of the employee's employment.
Similarly, if the employee lived in the barracks at the Training Centre. If, while walking from the barracks to the workshops, the employee suffered an injury, normally it would not be expected to claim that the employee suffered the injury while travelling between the employee's place of residence and place of work. The issue would be whether the injury arose out of or in the course of the employee's employment.
These examples illustrate the artificiality of attempting to distinguish places of work within the place of work of an employee. This is of particular importance in cases involving service personnel, see for example The Commonwealth v Wright (1956) 96 CLR 536 per Fullagar J at 553-554, Kitto J at 558-9 and the dissenting judgments of Dixon CJ and McTiernan J who held that a soldier's place of employment included the barracks where he lived and was under military discipline.
Counsel for Comcare sought to rely upon the changes in legislation between the earlier legislation which used the expressions "employment" and in other contexts "place of employment" with the usual expression "place of work".
In support of the narrow meaning to be given to the expression "place of work" counsel relied upon opinions expressed by a majority of the justices in Australian Iron and Steel Pty Ltd v Luna (1969) 123 CLR 305. That was not a case involving workers compensation legislation. There the workman sued his employer for damages on three counts one of which alleged a breach of statutory duty to provide and maintain safe means of access to the place at which the workman was to work. The expression considered was the obligation of the employer to provide "safe means of access to every place at which any person has at any time to work". The trial judge directed the jury to find for the employer. The Court of Appeal allowed an appeal. The High Court, Barwick CJ, Windeyer and Owen JJ, by majority, allowed an appeal from the Court of Appeal, Kitto and Menzies JJ dissented. This authority is not of assistance in this case. In the context of workers compensation the dissenting opinions of Kitto and Menzies JJ are more persuasive. The opinions of the majority were based on the peculiarities of the section and the nature of jury actions as they existed in NSW before the Judicature Act legislation had been introduced.
In my opinion, the Tribunal made no error of law in reaching its conclusion as set out in paragraphs 47 and 48 of its reasons. In normal understanding the place of work is the place at which an employee attends for work as an employee. It is not to be limited to the office or particular workshop where the employee performs duties.
After the hearing of this appeal, the solicitors for Comcare drew my attention to Barlow v Heli Muster Pty Ltd Supreme Court of the Northern Territory, Martin CJ, 21 October 1996, unreported. That case involved a claim for workers compensation under the Work Health Act 1994 (NT). The Court had to consider whether the injury to the worker from which he died occurred while the worker was travelling by the shortest convenient route between his place of residence and his workplace. "Workplace" was defined to mean a place whether or not in a building or structure, where workers work. The Magistrate who determined the claim held that the worker was not travelling from his place of residence and was not travelling to his "employment". The use of the word "employment" was in error but was treated by the Court as meaning workplace. The appeal was limited to questions of law.
The Chief Justice discussed the difficulties and limitations inherent in appeals on a question of law. He expressed the view that essentially it was a question of fact for the Magistrate to determine the "place of residence" of the worker. There was evidence to support that finding, accordingly no question of law was involved in that issue.
Of more importance the Chief Justice considered the application of the word "workplace" as defined in the legislation. He referred to earlier legislation which contained the expression "employment". His Honour referred to a number of authorities of the High Court based on the earlier Commonwealth legislation including The Australian Coastal Shipping Commission v Averell (1969) 122 CLR 348 at 351, The Commonwealth v Wright (above) and Adcock v The Commonwealth (1959-60) 103 CLR 194 and concluded:-
"In summary, there was no error in law on the part of her Worship in arriving at the view that the deceased was not travelling from his residence at the time he met his death. She did so err in relation to the question of treating the test for the destination of his travel as being his employment rather than his workplace. In the result that makes no difference. Upon the evidence he was not travelling to a place where workers work, he was travelling to a place where workers lived when they were not working."