R v Kearney; Ex parte Jurlama

The grounds of appeal are set out in the Amended Notice of Appeal filed in Court on the hearing before me and read as follows: "1. The Tribunal erred in law in determining that the Respondents' principal home was isolated within the meaning of the AUSTUDY Regulations, in that it misconstrued the meaning of the words "It is likely that the student would be unable to travel to the school for 20 or more term days in the year because of special weather conditions" in Item 5 of Regulation 78(1). Particulars: (a) The Tribunal construed the word "likely" as meaning "more than a remote possibility"; (b) The Tribunal construed the words "special weather conditions" as including average or usual rainfall for an area; (c) The Tribunal construed the words "special weather conditions" as being applying to average weather conditions which cause a road to become impassable." Background The relevant background is set out in the AAT decision as follows: The case for the applicants was that they would be unable to travel to school for 20 or more school term days in the year because of special weather conditions. It was not disputed that the road to the students' home is a gravel road, laid over black soil and that following 12.5 millimetres of rain, the road becomes impassable for normal vehicles. The road could be traversed by a 4-wheel drive vehicle but in those circumstances the road would rapidly deteriorate and, in effect, be destroyed. There was evidence in the form of a letter from a neighbour, which indicates that in periods of wet weather the access road rapidly becomes impassable to a 4-wheel drive vehicle. There was further evidence that it was impracticable for the children to traverse the distance on foot or by horse.

The question for the Tribunal was whether it was likely that the applicants would be unable to travel to school for 20 or more school term days in the year because of special weather conditions. Rainfall records for the years 1983 to 1994 inclusive and also for 1996 were before the Tribunal. Records for the calendar year 1995 were incomplete and therefore excluded. On the applicant's unchallenged evidence the road became impassable after 12.5 millimetres of rain, but it dried out after about four to five hours following 12.5 millimetres of rain. More time was required for drying out if the rain was constant. The Tribunal calculated for the years it had complete records, the number of days upon which rainfall in excess of 12.5 millimetres was recorded making an appropriate allowance of time for each 12.5 millimetres rainfall for the road to dry out. The month of January was not included as it would have been a non-school term period during any year. However, no distinction was made between week days or weekends or variable school holidays for the rest of the year in that an averaging exercise was required. Also taken into account were periods of continuous rain once rainfall in excess of 12.5 millimetres had been recorded. On the Tribunal's calculation the number of days in each year in which the road was impassable due to rain were: 1983 - 45 1990 - 16 1984 - 22 1991 - 20 1985 - 10 1992 - 16 1986 - 15 1993 - 21 1987 - 22 1994 - 8 1988 - 25 1995 - 18 1989 - 21 The conclusion reached by the AAT in its reasons for decision was stated as follows: "24. Whether one takes an average over the 13 years for which total figures are available or has regard to a pattern, keeping in mind that the Applicants' parents' property has been declared drought effected by the New South Wales Rural Assistance Authority from 1 April 1995 (in a letter dated 1996 to a former Minister having portfolio responsibility for the Respondent the Applicants' mother claimed that the property had experienced four years of drought), we find that we are affirmatively satisfied that it was more than a remote possibility in any one year that the Applicants would have been unable to travel to school for 20 or more school days in the year because of special weather conditions, namely that the access road from the parents' dwelling house to the main road became impassable due to rain." (Emphasis added) Mrs Robyn Barrett and her husband appeared before me in person on the appeal and submitted that I should uphold the reasons for decision of the AAT. The Issue The question presented for decision by the Court, which was earlier before the AAT, is whether or not it is likely that the applicants would be unable to travel to school for 20 or more school term days of the year because of special weather conditions as provided in Item 5 of Sub Regulation 78(1). It is convenient to consider the Secretary's submissions as to errors of law under the headings set out below. "Likely" The Secretary submits that the AAT erred in law by interpreting the expression "likely" to mean "more than a remote possibility". It is not disputed that the Regulations are designed to provide benefits to students and that where a term is ambiguous, such regulations should be given a broad and beneficial interpretation in favour of the beneficiary: see R v Kearney; Ex parte Jurlama (1984) 158 CLR 426 at 433. The preamble to the Student and Youth Assistance Act 1973 (Cth) ("the Act") describes the legislation as an: "Act to provide certain benefits to students and young people and for other purposes." More specifically the Auditor General's Report for 1991-1992, produced by the then Department of Employment Education and Training in respect of the Assisted Isolated Children project, generally describes the purpose of the scheme as follows: "2.1.5 The Assistance for Isolated Children (AIC) scheme is a component of the Education Income Support Sub-Program. Its objective is to overcome financial barriers to participation in education by students who are either geographically isolated or are disabled." It is apparent from par 24 of the AAT decision that the members addressed the question whether there was "more than a remote possibility" that the applicants would have been unable to travel to school for twenty or more school days. The dispute is whether that formulation of the "likely" test is correct in law. The secretary contends that the test as so framed sets a threshold which is too low and refers to the observations of Lockhart J in Radio 2UE Sydney Pty Limited v Stereo FM Pty Limited (1982) 44 ALR 557 at 564, that: "The word 'likelihood' is susceptible of various meanings. It may mean 'probable' in the sense of more likely than not or more than a fifty per cent chance. It may mean a real or not remote possibility. There are other possible meanings." The Secretary contends for the former sense. In Tillmanns Butchery Pty Ltd v Australasian Meat Industries Employees Union (1979) 42 FLR 331 at 346, Deane J observed that in an appropriate context, the expression "likely" can refer to: "... a real or not remote chance or possibility regardless of whether it is less or more than fifty per cent." This formulation was approved by Gibbs CJ in Sheen v Fields Pty Ltd (1984) 51 ALR 345 at 348, which was cited by the AAT in the present case as authority for the approach which it adopted. In a subsequent decision, the Full Court considered whether legislative provisions provided an appropriate context for a broad and beneficial interpretation of the word "likely". That decision was Jungarrayi v Olney (1992) 34 FCR 496 where the Court held that, in the context of s 52B the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), the word "likely" referred to " a real ... not remote possibility regardless of whether it is less or more than fifty per cent." The term "likely" under consideration in that case appeared in the context of a requirement that it was "likely" that the Commissioner will find that the applicants are the traditional owners of the land." Their Honours set aside a finding of the Commissioner that the requirement suggested that the parliamentary intention was that a claim could only proceed in the "most obvious of cases." It was considered that such a threshold was too high. In adopting a broader interpretation in Jungarrayi, the Court considered that such an approach would be appropriate, given the beneficial nature of the legislation, and it would better promote the purpose or object underlying the Act. The Court referred to s 15AA of the Acts Interpretation Act 1901 (Cth), which prefers an interpretation that promotes the object or purpose underlying the legislation. In the present case the Court should favour a broad interpretation if the language used is reasonably capable of being given a broader meaning. In my view, the expression "likely" is capable of the wider meaning and should be so construed, given the beneficial purpose of the legislation. It is also important to bear in mind that the predictive assessment called for in the present circumstances is whether it is "likely" that a student would be unable to travel to school because of special weather conditions. The realm of weather prediction is, of course, notoriously difficult, even with the most advanced technology. The prediction whether access will be prevented for more than 20 days in a 12 month period presents a formidable challenge. The nature and subject matter of the decision provides, in my view, support for a conclusion that the exercise is to be carried out by reference to a more liberal criterion than "probability" or a "more than fifty per cent chance." The contingencies inherent in a forecast of weather conditions make it inapposite to speak in terms of probability or balance of probabilities. The area is rather one where, in forecasting the number of weather affected days over a year, it is more fitting to speak in terms of a possibility that is more than remote, as the AAT has done in this case. In support of a contrary view, Counsel for the Secretary referred me to Minister for Health and Family Services v Bullivant's National Health Products Pty Ltd (1997) 26 AAR 132. In that case the question was whether the get-up of certain therapeutic goods in the shape of animals or robots was likely to result in the goods being mistaken by children for confectionery or toys. The AAT concluded in that case that there were a few appropriate meanings of "likely", including, "probable"; "as seeming as it would happen" or, as being "a substantial or real and not remote chance". This flexible approach leaves the meaning of the term somewhat open to a range of different interpretations. On appeal, Merkel J observed that no authority was cited, nor did the Minister offer a clear alternative view or substitute definition for "likely" to that adopted by the AAT and his Honour did not find any error in the approach taken by the AAT. The Bullivant decision does not assist the Secretary in the present matter. The approach taken there was to apply several alternative tests, including "whether there was a substantial or real and not remote chance", which is akin, in substance, to the test adopted by the AAT in the present case, namely whether there was "more than a remote possibility". For the above reasons I am not persuaded that the AAT decision discloses any error of law in its interpretation of the expression "likely" in the context of the present regulations. "Special" The second basis of appeal is that the AAT misinterpreted the phrase "special weather conditions". The submission by the applicant was that the approach taken by the AAT gave no regard or meaning to the word "special". It is evident from the reasons for decision that the AAT had regard to the question whether there were "special weather conditions" because it initially expressed the question as being whether it was likely that the applicants would be unable to travel because of "special weather conditions". In the statement of its conclusion it made a specific finding that because of "special weather conditions" the road would not be passable. Accordingly, I am not satisfied that the AAT reasons disclose an error of law in not having regard to the language of the regulations. The word "special" must be read in context. In normal parlance it signifies that the event or circumstances in question are out of the ordinary or normal course. The AAT observed in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3 (which was approved by the Full Court in Beadle v Director of Social Security) (1985) 60 ALR 225): "An expression such as 'special circumstances' is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special". The Secretary submits in the present case that there was nothing "special" about the weather conditions. It is said that the table set out earlier indicates that the normal weather pattern over the years was such that the road would be impassable over a period of school term days ranging between 8 to 45 days but frequently over 20 days or more. There was nothing, it is said, to indicate that in the relevant years there was likely to be any "special" or "unusual" weather pattern which would cause the road to be impassable and prevent travel to school. In the course of argument it was suggested that the word "special" referred to events which could happen but which were relatively rare and were clearly out of the ordinary, such as cyclones, typhoons, hurricanes, blizzards or floods. On the approach advanced for the Secretary, a student living in the Australian tropics would not qualify for the allowance even if it could be shown that it would not be possible to travel to the nearest school over a period of many months. In the case of such a student, on the approach suggested, it could properly be said that the wet season was a "normal" and not "special" weather condition because it occurred every year and was quite predictable and that, therefore, no allowance would be payable. Such a result, namely denying a student a travel allowance in circumstances where access to school was not possible for several months, is clearly contrary to the intent of the legislation and illustrates the difficulty with this submission. Counsel for the Secretary referred me to two decisions of the House of Lords in support of a distinction between the concept of "normal" conditions and "extraordinary" weather conditions." These were Alphacell Ltd V Woodward [1972] AC 824 and Environment Agency v Empress Cargo (Abertillery) Ltd [1998] 2 WLR 350. Both these cases were prosecutions for environmental pollution and the context was entirely different. They are of no assistance in resolving the present question. They were essentially concerned with the question whether knowledge was a necessary ingredient of an environmental offence. In my view the reasons of the AAT do not disclose any error of law. In the context, it seems to me that the reference to "special" weather conditions in sub-item (5) means weather conditions on some days of the year which are special in the sense that the rainfall might be expected to be such that a student is unable to travel to school over 20 or more school term days. This is because the rainfall might be more than 12.5 millimetres, in which case the evidence suggests that this would make the road impassable. The exercise in question is not one of comparing the weather conditions in one year with those in another and determining whether the coming years might be "special". Rather, the question is whether there might be days in the year in question on which the weather may be likely to be so unusual as compared with other days in that year, as to lead to an inability to travel. In other words, the provision contemplates that on some days due to special conditions the road will be impassable but on other "normal" days, which may cover most of the year, the access will be passable. On this approach, both meaning and content is given to the word "special". The word is not rendered otiose. In my view, the weather conditions on days when the road is impassable due to rainfall are properly described as "special". Accordingly, I am not satisfied that any error is disclosed in the reasons in relation to the meaning of the expression "special weather conditions".

"Causation" The third submission for the Secretary is that the phrase "because of special weather conditions" requires a causal connection between the inability to travel and the special weather conditions. This proposition can be accepted. It is then submitted that the AAT erred in law by not considering the correct test, which is said to be the "effective cause" test, based on common sense and experience. The difficulty with this contention is that it is clearly without foundation because the AAT in its reasons for decision said: "To say, as did the Social Security Appeals Tribunal, that the problem was the access road and not the weather, is to ignore causation, whether adopting the effective cause test favoured by Mason CJ...or the "but for" test favoured by McHugh J...." The Secretary refers to the High Court decision in E & MH Stramare Pty Limited (1991) 171 CLR 506; Bennett v Minister of Community Welfare (1992) 176 CLR 408, and Medlin v State Government Insurance Commission (1995) 182 CLR 1. It is evident from the above extract of the AAT decision that the AAT considered that the weather conditions caused the problem on either test. An additional submission is made that it was the nature of the "road" rather than the "weather" which caused the access difficulty. It is suggested that roads should be built so as not to become muddy when it rains so that if a road becomes impassable, the problem results from the inadequacy of the road and not from special weather conditions. In my view, the provision calls for a consideration of the access which is in fact available and not of potentially better access which might be in the form of a sealed or elevated access road. The road which currently exists on the property, in relation to which the provision must be applied, is a gravel road laid over black soil. The fact is that this road becomes impassable for normal vehicles following 12.5 millimetres of rain. It is true that the road might be traversed by a four wheel drive vehicle but the finding of fact made by the AAT was that in those circumstances the road would rapidly deteriorate and, in effect, be destroyed. Given this finding and the factual context as to the number of days on which the road was impassable, it follows, in my view, that the inability to travel to school is "caused", as a matter of common sense and experience, by the rainfall. Conclusion No error of law has been demonstrated in the reasons of the AAT or in the approach adopted. Accordingly, I dismiss the appeal from the decision of the AAT with costs. I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Litigant appeared in person