Roncevich v Repatriation Commission

Roncevich v Repatriation Commission - [2005] HCA 40 - HCA 2005 case summary — Zoe

[58]

The appellant contended that he was entitled to the benefit of s 70(7) of the Act which we have set out above. The argument was that the provision deems an injury to be defence-caused where it is due to an accident that would not have occurred but for the defence service rendered by the appellant: indeed, that it extends the application of s 70(5) even in circumstances in which the injury may not have arisen due to defence service, but is sufficiently proximate to that service to be deemed to be service related. The second and quite distinct limb of s 70(7), unique to the Act, brings into play as a separate consideration, environmental changes that may have occurred in consequence of a member having rendered defence service. The inebriation of the appellant, having regard to the circumstances of his attendance in the Sergeants' Mess, the appellant submitted, falls within s 70(7), even if the injury were to be held to have been suffered other than in the course of the appellant's defence service.
It is correct, as the respondent submits, that this argument was not advanced in, or founded upon any ground of appeal to the Federal Court. The appellant should not therefore be permitted to raise it in this Court, although, subject to s 57A of the Act[22], the width of the grounds stated in the appellant's application for review, and the Tribunal's powers under s 29 of the Administrative Appeals Tribunal Act, the appellant may be able to advance it on the rehearing of his application.
Another argument of the appellant should however be accepted. It was, that in asking itself whether the appellant's intoxication was caused by, or arose out of a task that the appellant had to do as a soldier, it asked itself the wrong question, and not the question that the Act requires it to answer. The question that it should have asked is the one posed by s 70(5), whether the injury arose out of, or was attributable to, any defence service of the appellant?
The evidence in this case is capable of providing an affirmative answer to the correct question. As Dixon J said in the passage from Henderson cited by Heerey J in the Full Court, whether an event arises in the course of an activity, or as here, out of "an activity", depends upon such matters as the nature of the person's employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties. The connexion must however be a causal and not merely temporal one[23].
There is little doubt in this case that there was a requirement, albeit not one to be found in formal military orders, and an expectation, of attendance at the Sergeants' Mess and the consumption in some quantity, even perhaps to the point of intoxication short of physical incapacity, of alcoholic drinks. So too, the need for the appellant's return to his quarters and the preparation of his uniform for the next day, are capable of being seen to have arisen out of, or of having been attributable to, his defence service. The remaining question is whether, climbing on to the box to expectorate through the open window, and then falling because he was inebriated, similarly either arose out of, or was attributable to his defence service.
The point made by Heerey J argues in favour of a broad construction of s 70(5). Section 70(9) states that the Commonwealth is not liable under that section to a member in respect of death, injury or disease if any of these resulted from or arose out of a member's serious default, wilful act, or a serious breach of discipline. It is not suggested that the appellant's conduct even remotely approached the magnitude of a serious default, wilful act or serious breach of discipline, yet the respondent has concluded that the appellant's drinking and his subsequent fall constituted such a departure from defence service as to disqualify him from obtaining compensation. The presence and language of s 70(9) argues strongly in favour of a construction of s 70(5) capable of embracing within its terms the appellant's conduct on the evening of his fall.
These further observations may be made about the Tribunal's reasons which included a statement that "[t]he situation was in fact no different to what they might have done, had they decided to go to a hotel away from the Base."[24] That what in fact happened occurred on the Base and interrupted the performance of a military duty, the preparation of the appellant's uniform, were relevant matters. It was also of relevance that the inebriation of the appellant occurred on the Base. That is not to say however that a defence-caused injury inevitably could not have resulted if the events had occurred at an hotel rather than at the Base. Nor is it irrelevant that at the time when the appellant hurt his knee it is almost certain that he would have been subject to military discipline[25].
The use disjunctively in s 70(5) of the expressions "arose out of" and "attributable" manifest a legislative intention to give "defence-caused" a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a causal connexion is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate[26].
In failing to pose and answer the correct question the Tribunal erred in law. That error constituted an appealable error of law within the meaning of s 44 of the Administrative Appeals Tribunal Act. The Federal Court in determining an appeal pursuant to that section may make such order as it thinks appropriate (s 44(4)), as may of course this Court on appeal from the Full Court. It is not appropriate however that this Court, or indeed the Federal Court decide the ultimate question of the appellant's entitlement, that is, whether the injury to his knee was defence-caused, a conclusion which is available on the whole of the evidence.
The order we would make is that the appeal be allowed, the order of the Full Court be set aside and in place thereof the appeal to that Court be allowed, the order of Mansfield J be set aside and in place of that order the appeal to the Federal Court be allowed, the decision of the Tribunal be set aside and the case be remitted to the Tribunal to be determined according to law; the respondent should pay the appellant's costs in the Federal Court, both at first instance and in the Full Court, and the appellant's costs of the appeal to this Court.
KIRBY J. This appeal comes from a divided decision of the Full Court of the Federal Court of Australia[27]. It concerns a complaint that the Administrative Appeals Tribunal ("the Tribunal") erred "on a question of law"[28] in rejecting a claim to pension benefits under the Veterans' Entitlement Act 1986 (Cth) ("the Act") brought by a former member of the Australian Army[29].
I agree in the conclusion reached by McHugh, Gummow, Callinan and Heydon JJ in their reasons ("the joint reasons"). The appeal must be allowed. However, several points raised in argument merit consideration because we are correcting the majority in the Federal Court and, effectively, the Tribunal. As the issues raised may recur, I will address them. They do not alter the outcome. But they explain how I arrive at my conclusion.

[59]

A soldier falls from a window: Most of the evidence relevant to the disposition of the appeal is referred to in the joint reasons[30]. There was no material dispute about it. The contest in the case concerns the legal classification of the facts and whether they give rise to an entitlement under the provisions of the Act upon which Mr Jure Roncevich ("the appellant") relied.
Amongst amendments to the appellant's notice of appeal, agreed to by the Repatriation Commission ("the respondent"), was one allowing the appellant to base his contention of error on the part of the Federal Court by reference to the evidence given before the Tribunal, as well as to the facts found by it. In order to understand the Tribunal's conclusion, and that of the majority in the Federal Court, it is therefore helpful to notice some evidence additional to that recorded in the joint reasons.
The appellant received injury to his left knee at about 9 pm on 27 February 1986 when he fell from a window in his room on the second floor of the Army barracks at Holsworthy, near Sydney. The incident occurred when he stood on a trunk near the window to expectorate but over-balanced, falling to the ground below. Earlier, he had consumed six to eight cans of full strength beer and was intoxicated as a consequence. He had returned to his room in order to change clothes and iron his uniform for use on the following day. It was accepted that his fall and consequent injury were causally related to his intoxication, both in occasioning his loss of balance and in causing him to attempt the manoeuvre in the first place.
Army mess intoxication: The appellant's consumption of beer occurred at an Army Mess function which the appellant had attended, with other non-commissioned officers, to welcome a visit to the regiment by the Regimental Sergeant Major of the Army ("RSM Army"). According to the appellant, attending the Mess function was treated as "compulsory", even if it was not legally obligatory. He explained:

[74]

A number of points of common ground can be mentioned at this stage. They provide further background to the resolution of the appeal.
Interpreting beneficial provisions: The provisions of the Act are obviously beneficial, designed to afford important pension rights for members of the Australian Defence Forces. The provision of pensions to injured service members, and in the case of their death to their dependants, was first provided by the War Pensions Act 1914 (Cth) ("War Pensions Act"), enacted at the outbreak of the First World War. Section 3 of that Act provided that a pension was payable upon the death or incapacity of certain members of the forces which "... resulted from ... employment in connexion with warlike operations". The War Pensions Act was replaced at the conclusion of the War by the Repatriation Act 1920 (Cth) ("Repatriation Act"). That Act, frequently amended, eventually conferred benefits on defined members of the Forces where the member's "incapacity or death has resulted from any occurrence that happened during the period from the date of his enlistment to the date of the termination of his service ... or ... whose incapacity or death has arisen out of or is attributable to his war service"[47].
For some decades before the enactment of these provisions, workers' compensation and seamen's compensation legislation in Australia had adopted different criteria of connection to activities of service, being the conjunctive requirement that the applicant demonstrate the happening of an injury "arising out of and in the course of the employment"[48]. It would have been possible for the Federal Parliament to have adopted the same formula for repatriation entitlements. However, it did not.
Moreover, the beneficial operation of the Repatriation Act was assured by two statutory provisions, one relatively common and the other quite unusual. The common provision was an instruction to the decision-maker, determining claims to repatriation benefits, to do so "according to substantial justice and the merits of the case"[49] without being bound by technicalities or legal forms or rules of evidence[50]. The unusual provision was one introducing a burden of proof of disentitlement beyond reasonable doubt, in certain cases, in favour of the applicant. This provision for an exceptional standard and burden of proof remains in the present Act[51], although it is now applicable to more limited circumstances. Normally, the respondent, in making any determination or decision in respect of a matter arising under the Act, is required (as it was in the present case) to "decide the matter to its reasonable satisfaction"[52].
The point of this legislative history is that, in every case, care has to be taken to observe the precise language of the Act. It contains its own peculiarities and special features. Problems in the application of the Act cannot be avoided by the invocation of generalities about beneficial construction[53].
Causal not merely temporal connection: Whatever the provisions for entitlements in workers' compensation or like statutes, or other laws providing repatriation benefits, it follows from the first point that it is essential, certainly so far as the principal claim based on ss 70(1)(b) and 70(5)(a) of the Act is concerned, to focus on the causative relationship postulated between the posited "defence-caused injury" and "any defence service". The need for such a causative relationship is indicated by the phrase "arose out of, or was attributable to". As the primary judge correctly noted, that expression was explained by this Court in Repatriation Commission v Law[54]. This Court accepted that the natural meaning of the words pointed to a "causal connexion rather than a temporal one". To this extent, the words were, by 1981 when they were considered in Law, viewed as significantly narrower than the formulae then common in workers' compensation legislation affording an alternative basis for entitlement, namely causal or temporal connection to the posited service[55].
The difference so established is clearly a deliberate one. The apparent disadvantages involved in the applicable phrase are offset by special provisions enlarging entitlement in certain cases[56] and the unique provisions governing the burden and onus of proof just mentioned. The duty of the decision-maker is to attend to the precise language of the Act. In respect of the principal claim of the appellant, this is the language of causal connection. That said, the causal connection postulated (as the primary judge noted) is not confined to "the sole or dominant or prominent cause of the injury; it is sufficient if it is a contributory cause or connection"[57].
Other statutory entitlements: It emerged during argument of this appeal that the appellant enjoyed, and had pursued, concurrent entitlements, in respect of his service injuries under the Safety, Rehabilitation and Compensation Act 1988 (Cth). By that Act, in respect of the notional employment of service members, such as the appellant, an alternative basis of claim exists in respect of injuries arising "in the course of" such service. This Court has not examined the entitlements, if any, of the appellant under the latter Act with its wider formulation or how they relate to the present claim made under the Act. The only entitlements in issue in this appeal are those to a veteran's pension under the Act in respect of the appellant's knee injury. Any other entitlements must be disregarded[58].

[82]

The appellant's complaint: The appellant complained that, in rejecting his claim under the Act, the Tribunal had given inadequate reasons for doing so. In particular, the appellant complained of errors of commission and omission on the part of the Tribunal in giving its reasons. As to commission, the appellant argued that the Tribunal had expressed his case too narrowly in describing the "links" between the Army and the appellant's intoxication[59]. According to the appellant, the Tribunal's statement neglected to refer, or to give apparent weight, to the matters of military culture, courtesies to a visiting senior officer, habits of expected conduct and Sergeant Lee's statement that "[a]ll living in members were required to make up the numbers" when the RSM Army arrived for a visit.
So far as omissions were concerned, these were said to include the failure of the Tribunal to refer, and respond, to the evidence of both the appellant and Sergeant Lee concerning the expectations imposed on members such as the appellant to attend, as he did, the function in the Mess. The fact that the occasion was not a "top dinner night" and that it was not "compulsory" to attend (in the sense of inviting disciplinary proceedings for a failure to do so) was less relevant, so the appellant argued, than the practical and service pressures imposed which were ignored by the Tribunal and uncorrected by the Federal Court.
The statutory obligations: This is not a case where the scope of the duty of the administrative body to state reasons for its decision has been left to the common law. Here, Parliament has provided for a system of "appeals" from the Tribunal to the Federal Court.
Self-evidently, sufficient reasons on the part of the Tribunal would be required to make the system of appeals effective and to fulfil its assumptions. Moreover, the Parliament has spelt out a general obligation for the Tribunal to give reasons "either orally or in writing for its decision"[60]. Where, as in the present case, the Tribunal gave its reasons in writing "those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based"[61]. The Tribunal is obliged to cause a copy of its decision to be served on each party to the proceedings[62]. It is such a "decision" that enlivens the right in a party to a proceeding before the Tribunal to appeal to the Federal Court on a question of law[63]. Although such an "appeal" engages the jurisdiction of the Federal Court, as a matter of law that Court is exercising its original and not its appellate jurisdiction under the Federal Court of Australia Act 1976 (Cth), ss 19 and 20[64].
The scope of the obligation on the part of an administrative decision-maker, acting in accordance with provisions such as those governing the Tribunal in this case, to set out "findings on material questions of fact", was considered by this Court in Minister for Immigration and Multicultural Affairs v Yusuf[65]. In that case, a majority concluded that provisions, not materially different from those governing the Tribunal in the present case, required the decision-maker only to set out findings on those questions of fact which the decision-maker considered material to the decision[66]. Although I took a broader view concerning the ambit of the statutory obligation in that case[67], in the present appeal it is appropriate for me to proceed upon the basis of the correctness of the approach adopted by the majority.
Conclusion: reasons adequate: Upon this basis, it may be accepted (as the primary judge concluded in the Federal Court[68]) that the reasons of the Tribunal were brief. However, that is not necessarily a flaw in the context of such a busy administrative tribunal. Courts conducting this form of review have been repeatedly enjoined by this Court to avoid overly pernickety examination of the reasons[69]. The focus of attention is on the substance of the decision and whether it has addressed the "real issue" presented by the contest between the parties. The primary judge defined this as[70]:

[85]

The respondent's argument: The Federal Court's jurisdiction in the present case derived from s 44 of the Administrative Appeals Tribunal Act 1976 (Cth). It was limited to an "appeal", being one "on a question of law". This is a technical phrase. The respondent asserted that it brought with it restrictions on the ability of the Federal Court to disturb a conclusion "on a question of fact", even if such a conclusion were one which the Federal Court would not itself have reached, so long as the conclusion was sustained by evidence. This limitation is an important one because the respondent argued that it went to the heart of the reasoning of the majority judges in the Federal Court. As fact-finders, they might, or might not, have reached the same conclusion. But because there was evidence to sustain the conclusion, notably the evidence of Sergeant Lee, it was one which the Federal Court had no jurisdiction to disturb within its limited powers in an "appeal".
Perverse fact finding?: Statutory provisions limiting appeals to those involving an error or question of law are relatively common. Accordingly, the scope of these expressions has attracted much judicial attention. In the New South Wales Court of Appeal, at least after Poricanin v Australian Consolidated Industries Limited[72], it was repeatedly held that even perverse or unreasonable findings of fact do not constitute errors of law. Consequently, such findings could not raise a question of law. So much was held by majority in that Court in Azzopardi v Tasman UEB Industries Limited[73]. I dissented there from the view so expressed. I did so by reference to considerations of legal authority and principle. In particular, to combat the notion that errors of fact-finding could never rise to an error of law, I drew attention to the opinion of the Court, delivered by Jordan CJ, in Brakell v Metropolitan Ice & Cold Storage Works (W Angliss & Co Aust Pty Ltd)[74] to the effect that "in extreme cases only one [factual] inference may be possible as a matter of law"[75]. The notion that a decision-maker, including a judge, could reach perverse conclusions on the facts and the evidence, and yet be immune from judicial correction, is one that I have never accepted[76].
Nonetheless, Poricanin, affirmed in Azzopardi, has continued to enjoy judicial support[77]. Applying that authority, if all that was involved in the present case was a question whether the Tribunal had reached a "perverse" finding of fact, on the basis of the evidence submitted to it concerning the relationship of the appellant's fall and injury to his defence service, the appeal would be doomed to fail. If "perverse" findings of fact are protected from disturbance by courts limited to a jurisdiction confined to correcting errors on questions of law, a conclusion which is far from "perverse" is even more obviously protected from disturbance.
After all, Sergeant Lee's evidence would sustain a conclusion of fact that alcohol consumption at Mess functions, although permitted, was not obligatory. Still less was it part of defence service, as such, "to drink alcohol to the point of intoxication". Ordinary commonsense would affirm that alcohol intoxication reduces the capacity of a member of the Forces, or anyone else, to perform duties if called upon at short notice to do so. Alcohol-aided conviviality might contribute to social harmony at Mess functions. But it is more than arguable, and far from perverse, to conclude that intoxication passes beyond any implied function related directly or indirectly to a member's defence service as such.
Should the "perverse findings" test be applied to the conclusions reached by the Tribunal? If it should, it would certainly strengthen the immunity of such conclusions from correction in the Federal Court in a proceeding such as the present. It would strengthen the respondent's case. On the other hand, the Azzopardi approach does not appear to have been uniformly applied by the Federal Court in deciding cases such as the present.[78] It has been doubted in some state[79] and territory decisions[80]. It is hard to reconcile with developments of administrative law involving decision-makers of lesser skill than judicial officers. In a suitable case, this Court should overrule the majority holding in Azzopardi. Perverse fact-finding, like perverse decision-making generally, is not immune from judicial correction in an appeal limited to correction of an error on a question of law. But the present is not a case in which it is necessary to establish that point.
In its argument, the respondent did not seek to support the approach expressed in Azzopardi. Instead, by reference to the reasons of the Full Court of the Federal Court in Maunder v The Commonwealth[81], in turn applying the reasons of Jordan CJ in Davidson v Mould[82], the respondent emphasised the need for an approach to such questions that would comply with the language and purpose of the Act affording "appeals" on a question of law. In Davidson, Jordan CJ had said[83]:

[87]

Maunder was itself a case bearing some factual similarities to the present. A member of the Australian Army had attended a party in the Sergeants' Mess where he was Adjutant Quartermaster. The party began at 5.30 pm and continued until 3 am the following morning. An accident occurred on the member's journey home at 4.54 am. In the result, the member sustained injuries resulting in his death. A claim was made by his widow under the Compensation (Commonwealth Government Employees) Act 1971 (Cth). It raised legal issues different from the present case. However, as here, the claim was determined by the Tribunal adversely to the claimant and made subject to an "appeal" to the Federal Court.
The Tribunal in Maunder had determined that it was an incident of the member's duty to be present at the Mess party until 10.30 pm but not thereafter. Rejecting the appeal to it, the Federal Court unanimously concluded that it was open to the Tribunal, on the evidence, to reject the claim on the assessment of the reasonableness of the member's attempt, after the prolonged Mess party, to drive himself home. This, it was concluded, was a question of fact immune from correction in an appeal limited to one on a "question of law". Thus, it was "open to the Tribunal on the evidence before it". The decision was therefore affirmed. There was no error of law.
The respondent urged a similar approach on the part of this Court to the question whether the present appellant's injury was "defence-caused" within the meaning of the Act. It argued that it was open to the Tribunal to conclude, as a matter of fact, that the injury did not arise out of, nor was it attributable to, any defence service. As with Captain Maunder's case, the Tribunal was competent to conclude that a point was reached where convivial participation in a Mess party, even if initially connected to defence service and causes, turned into a purely personal pursuit of activities having no causal relationship with defence service.
Conclusion: a strong argument: Subject to what follows, it will be obvious that I consider the respondent's submission to be a powerful one, consistent with legal authority and principle. Save for the legal misdescription to which reference will shortly be made, it would, in my view, have been fatal to an appeal limited to a "question of law".

[90]

Later in the same text the authors observed, as a general principle of causation, that "the free, deliberate and informed act or omission of a human being, intended to exploit the situation created by defendant [sic], negatives causal connection"[86]. In such a case, the voluntary act of the subject might be "an antecedent condition not amounting to a cause"[87]. It might not, at least for legal purposes, be viewed as a cause in itself.
Like so many other "general principles" in the matter of causation, this one admits of exceptions. One is that voluntary action will not be regarded as an intervening cause when it was the defendant's conduct that gave rise to the risk that injury would ensue from such voluntary conduct.[88] Thus, in Reeves v Commissioner of Police of the Metropolis[89] the House of Lords held that the fact that a prisoner committed suicide while in police custody did not preclude an action brought against the police on behalf of the prisoner's estate on the basis that the prisoner was only capable of committing suicide because the police had failed in their duty to exercise reasonable care to prevent prisoners like him from performing acts of self-harm.[90]
Nevertheless, judicial authority, cited by the respondent, gives a measure of support for this kind of analysis. Like the present case, such authority concerned a claim to the grant of a pension for a serviceman. In Wedderspoon v Minister of Pensions[91], cited by the primary judge, the facts involved a Surgeon Lieutenant in the Voluntary Reserve of the Royal Navy. During war service he suffered from sleeplessness and took a drug to overcome this difficulty. However, the drug had fatal consequences and he died on board his ship. His widow brought a claim for a service pension. It was disallowed on the basis that the death was due to misadventure unconnected with war service. The relevant tribunal stated a case for the opinion of the English High Court. Denning J affirmed the disallowance of the pension. His Lordship said[92]:

[92]

Given the attention of the Act presently applicable to similar questions of causation and its use, in the primary definition, of the same phase of connection ("attributable to"), the respondent urged that a like approach was open to the Tribunal and the Federal Court and should be affirmed by this Court. The circumstances in which the appellant had become intoxicated were part of the factual substratum of the case. But they did not provide a "defence-cause". Nor could the fall, consequent upon intoxication, be "attributable to" any defence activities or service as such.
Whilst there are points of distinction between Wedderspoon and the present case, most notably the statutory foundation for the pension claim in Australia, and whilst Denning J's rejection of entitlements for such conduct as "smoking too much" hardly accords with later Australian repatriation cases[93], a point of importance remains. As with all issues of causation in law, it is necessary to identify the limits of the propounded obligations. Such limits are usually drawn in a commonsense way by reference to any considerations of policy reflected in the language and purposes of the governing law.[94] The prior existence of facts and circumstances does not, as such, make those facts and circumstances causally relevant, in a legal sense, for an event that follows in time. In every case, it is necessary to postulate an outer boundary of liability. According to the respondent, this is what the Tribunal did in finding that the appellant's intoxication in the Mess was not "defence-caused" and did not arise out of, nor was it attributable to, any defence service.
Intoxication: recent authority: Some possible support for this line of reasoning may also be found in the approach of the majority of this Court in Cole v South Tweed Heads Rugby League Football Club Limited[95]. That was a case in which a club patron, supplied by or in the club over many hours with free alcohol, was seriously injured on her way home in an intoxicated state. Although in that case, with McHugh J, I dissented, and although the legal issue (being concerned with negligence law) was different, some of the reasoning of the majority in Cole contains expressions about the voluntary choice made by people who become intoxicated. It is thus reflective of the arguments of causation pressed on this Court by the present respondent.
Self-evidently, no different principle of general application could apply to the resolution of issues arising out of intervening intoxication because the appellant was a woman with a problem of alcohol tolerance and the appellant was an intoxicated soldier, otherwise commendable in his service as such. In Cole, Gleeson CJ described the appellant's extended drinking as "voluntary behaviour"[96]. There are similar references to voluntariness of alcohol consumption in the reasons of Callinan J[97]. His Honour remarked, in words seemingly applicable to the present appellant[98]:

[99]

It was common ground that the reference in this passage to the "course of his defence service" was immaterial, no temporal expression in these terms appearing in the Act[103]. For the present, I will assume, as the respondent argued, that this error was immaterial. That still left the criterion, applied by the Tribunal of what the appellant "had to do as a soldier".
The respondent submitted that this reading of the Tribunal's reasons involved fine tooth-combing the language of the reasons. It suggested that the expression was no more than a reference to any task of the appellant "as a soldier", in effect omitting the words "had to do". I would gladly embrace that reading of the Tribunal's reasons but for the Tribunal's repeated emphasis, in describing the evidence of Sergeant Lee, as to what it was compulsory for the appellant to do at the Mess function.
Clearly enough, the Tribunal was considering the scope of defence service by reference to notions of compulsion, requirement and obligation. It was after reference to such notions that the Tribunal rejected the claim as not defence-caused nor arising out of the appellant's defence service nor service related within the meaning of the Act. The question is whether this approach involved a material legal error that contaminated the fact-finding otherwise immune from correction in the Federal Court in an appeal limited to one on a "question of law". Did it show that the Tribunal misdirected itself in law, calling for correction on this account by the Federal Court?
The authority of Henderson: In the joint reasons, approval is given to the reasoning in the Full Court of Heerey J, in dissent, citing in turn a passage from the reasons of Dixon J in Henderson v Commissioner of Railways (WA)[104].
With respect, that passage appears in an explanation by Dixon J of the content of the phrase "in the course of the employment" which phrase is contained in many workers' compensation statutes. As has been pointed out, when the War Pensions Act and the Repatriation Act were enacted, that phrase was omitted. Instead of expressing the foundation of entitlement in such temporal terms, causal criteria were adopted in both instances. A causal criterion has persisted in the Act to the present time in respect of the primary entitlement to pension benefits upon which the appellant relied. The "injury" must be "defence-caused". It must be one that "arose out of, or was attributable to" defence service. Therefore, as such, Henderson does not provide authority that applies to the applicable statutory language. And, as has been pointed out, that language is deliberate, different and must be given effect according to its terms.
Yet does the approach in Henderson nonetheless apply, beyond the category which Dixon J elaborated in that case, so as to define the ambit of "defence service"? True it is, Dixon J was specifically concerned with accidents arising "shortly before the beginning of actual work or shortly after its cessation", and thus addressing himself to issues of temporal connection. But in defining the scope of defence service, considerations arise similar to those presented in defining the scope of "the course of employment". Just as the latter includes not only work that is "required" to be done but also that is "expected or authorised" to be done, notions of "defence service" and "defence-caused" should be similarly extended. To adopt a narrow reading of "defence service" in the modern age would be unduly constricting. True, defence service is disciplined. It is subject to many laws and regulations. But there is also scope, and need, for individual initiatives that go beyond the performance of what is "compulsory", "obligatory" or "required".
By confining attention to considerations of what it was "compulsory" for the appellant to do as part of his "defence service" and limiting notions of "defence service" and "defence-caused", the Tribunal unduly narrowed the appellant's activities as a member of the Forces out of which entitlements under the Act might arise.
This was not an immaterial restriction. Indeed, it went to the heart of the issues to which the evidence before the Tribunal was addressed. Those issues concerned whether, whatever the legal or disciplinary obligations, attendance by the appellant in the Mess function was expected of him, with the consequence that he would become involved in drinking with colleagues and might become intoxicated because of the social, cultural and environmental norms to which he was subjected at such an event.
Conclusion: error of law: It follows that the Tribunal misdirected itself on a question of law material to its decision. This error ought to have been detected and corrected by the Federal Court. In the Full Court, far from correcting the error, the majority repeated as the "critical finding" of the Tribunal that the appellant "was not required to attend the relevant function on the day in question"[105]. It acknowledged that the Tribunal's view about whether the injury was "defence caused was based on that finding"[106]. In stating that such a finding was open to the Tribunal, the majority in the Full Court failed to perceive that narrowing the ambit of the appellant's "defence service" and what was thus "defence-caused" potentially prejudiced the appellant in the factual establishment of his claim.
Instead of considering, as a question of fact, what was reasonably expected or authorised to be done by the appellant to carry out his duties of defence service, the Tribunal diverted its attention to notions of requirement, obligation and compulsion. Because, arguably, this deprived the appellant of the chance to secure a favourable determination on the facts concerning the cause of his fall and injury, it deprived him of the application of the Act to his case according to its terms. On the face of things, this requires a factual redetermination by the Tribunal free of this legal misdirection and free of the consequential confinement of the "only links" between the Army and the intoxication which the Tribunal nominated.

[100]

The appellant's suggested futility: Having reached this point, a question arises whether this Court should terminate this over-long saga of litigation stretching back nearly 20 years. The appellant suggested that this was one of the "rare cases" where it would be appropriate for this Court to substitute a finding on the facts in favour of the appellant so as to bring the litigation to a close. The Full Court of the Federal Court has held that, in limited circumstances, it has the power in an "appeal" on a question of law to enter upon a substantive determination of the matter[107]. Any powers that the Federal Court enjoys in this respect would belong to this Court in the exercise of its own appellate jurisdiction[108].
For a number of reasons, assuming (without deciding) that such a power exists, this would not be a case for exercising it. First, since these proceedings commenced, express power has been afforded to the Federal Court, in appeals of this character, to make findings of fact in specified circumstances[109]. Where the Parliament has provided such a power, but with restrictions that are material, that affords a substantial reason why a like power should not be assumed in other circumstances by this Court.
Secondly, the appellant's proposition invited this Court to make a finding of fact which, due to an error on a question of law, has never been decided by the body entrusted by the Parliament with fact-finding, namely the Tribunal. The proper and limited function of "appeals" from the Tribunal should be observed. The advantages of the Tribunal in fact-finding should be respected. Behind observance of the statutory provisions in this respect lies an important constitutional principle, limiting the disturbance of administrative decisions by courts created under Ch III of the Constitution, such as this Court[110].
Thirdly, as the discussion of the issues of fact-finding and causation demonstrate, it is far from certain, even within a larger concept of "defence-caused" and "defence service" that the appellant would succeed on the facts. He still has to confront the respondent's arguments designed to limit the ambit of what is "defence-caused" and what arises out of, or is attributable to, any "defence service" by reference to excluding conduct that can be classified as "personal", "domestic" or "voluntary" in the circumstances. Obviously, the appellant's case does not fall within the somewhat extreme evidentiary circumstances described in Maunder[111]. Nevertheless, in the current judicial environment of expressed faith in the voluntarism of alcoholic intoxication, the respondent undoubtedly has a strong factual argument to exclude liability, at least under s 70(5)(a) of the Act.
The respondent's suggested futility: But can it be said that returning this case to the Tribunal for a third time would be futile because the Tribunal would inevitably reach a result adverse to the appellant even without any misdirection of law? I think not. It is not impossible that, absent restrictions derived from notions of obligation, requirement and compulsion, a factual conclusion could be reached that the appellant's consumption of alcohol on this occasion was defence related or defence-caused and thus that his consequent fall "arose out of or was attributable to" defence service in its more ample factual understanding.
Conclusion: not futile: I do not therefore regard it as futile to return this matter to the Tribunal. This was the course that was favoured by the dissenting judge in the Full Court[112]. It is the course that the proper application of the law requires.

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