Roncevich v Repatriation Commission [2005] HCATrans 208 (21 April 2005)

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Roncevich v Repatriation Commission [2005] HCATrans 208 (21 April 2005)

Last Updated: 21 April 2005

[2005] HCATrans 208

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D7 of 2004

B e t w e e n -

JURE JACK RONCEVICH

Appellant

and

REPATRIATION COMMISSION

Respondent

McHUGH J
GUMMOW J
KIRBY J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 21 APRIL 2005, AT 10.03 AM

Copyright in the High Court of Australia

MR D. DE MARCHI: If the Court pleases, I appear for the appellant. (instructed by Pipers)

MR P.J. HANKS, QC: Your Honours, I appear with my learned friend, MR E. FORD, for the respondent. (instructed by Australian Government Solicitor)

McHUGH J: Yes, Mr De Marchi.

MR DE MARCHI: Your Honour, there are two preliminary issues in this appeal. The first one is that there has been a summons issued to allow an amendment to be made to the grounds of appeal 2.1 on page 105 of the appeal book – 2.1 now reads “service related” and the amended grounds should read “defence caused”.

McHUGH J: It may be that if you are going to amend that you should have in front of the word “facts”, “upon the evidence or the facts found”.

MR DE MARCHI: Yes, your Honour, “upon the evidence and facts”. If I may have the Court’s indulgence to seek that.

McHUGH J: What do you say about that, Mr Hanks?

MR HANKS: We do not have any objection, your Honour.

McHUGH J: Thank you, Mr Hanks. Yes, Mr De Marchi.

MR DE MARCHI: Your Honour, the second point is I must draw the Court’s attention to paragraph 2.8 on page 106 where the appellant set out a ground of appeal that:

The Federal Court erred in not finding that the Tribunal gave insufficient reasons for reaching its conclusion, such as to constitute an error of law.

Pursuant to rule 42.01, your Honour, upon the proper construction of the Rules, once a notice of appeal is filed within time and a proper manner, an appeal is instituted. But rule 42.02, the grounds of appeal:

shall not depart from those set out in the draft notice of appeal furnished to the Court on the hearing of the application for leave or special leave to appeal, unless the Court or a Justice otherwise orders –

Now, you may recall, your Honour, that there was an exchange between yourself and Mr Hanks during the course of the application for special leave and you said to Mr Hanks:

McHUGH J: There may have been another ground, I suppose, that the Tribunal failed to give reasons. That is a question of law, but that point has never been raised at any stage and it is too late to raise it here.

MR HANKS: No, your Honour.

Your Honour, that ground was, of course, raised in the appeal. It was raised before Justice Mansfield, the appeal book at page 58, ground 2.5.

McHUGH J: Was it raised in the Full Court?

MR DE MARCHI: No, your Honour, it was not raised as a ground of appeal to the Full Court. The court - - -

KIRBY J: Did Justice Mansfield deal with the point?

MR DE MARCHI: He did, yes, your Honour. He did squarely. He dealt with the point at 73, 31.

McHUGH J: What is the point of the application?

MR DE MARCHI: The point, your Honour, is that we wish to squarely have it raised that that point is alive and able to be argued before this Court by leave of the Court, your Honour, because of the ostensible breach of rule 42.

McHUGH J: Yes.

MR DE MARCHI: The respondent has obliquely indicated that if it is raised, they presented an argument to it. We would say that it would be equitable, and in the interests of justice, to allow that ground of appeal and that there is no prejudice to the respondent, who has been able to - - -

McHUGH J: It is a question of law.

MR DE MARCHI: Yes.

McHUGH J: Yes. Have you anything to say about it, Mr Hanks?

KIRBY J: It is not like you to be oblique, Mr Hanks.

MR HANKS: Your Honours, there is no prejudice to us in having the matter raised.

McHUGH J: Yes, thank you, Mr Hanks. Well, you have leave to amend your ground of appeal, 2.1 and there is no problem about relying on 2.8. Yes, Mr De Marchi.

MR DE MARCHI: Thank you, your Honour. Your Honour, the essential point in this appeal is that the AAT and the Federal Court took too restrictive and narrow a view of what constitutes “defence service”. In particular, the AAT did not apply the principles of law attached to the phrases:

arose out of, or was attributable to, any defence service –

The Tribunal had to consider whether compensation was payable to the appellant pursuant to section 70 for incapacity caused by defence service, section 70(1)(b).

That incapacity could be related to the legislation in two ways, through section 70(5)(a) if the injury “arose out of, or was attributable to, any defence service”. Now, “injury” is defined as any “physical or mental injury” and section 5C, a “member of the Defence Force” is “a person appointed for continuous full-time service”.

KIRBY J: Is that the provision that it is said you did not litigate? It requires the opinion of the Commissioner, does it not?

MR DE MARCHI: It does, your Honour. It was certainly put to the - - -

KIRBY J: Is that a precondition that you litigated in order to secure that opinion, or not?

MR DE MARCHI: We would say not, your Honour, because an application to the Commission generally does not carry a burden of proof, section 120(6). Once the application is lodged the Commission has an obligation to investigate the claim pursuant to section 19 of the Veterans’ Entitlements Act and certainly the claim was made for that particular condition to be accepted as defence cause. That is one aspect, your Honour, of whether it was defence cause injury or not, whether it arose out of, or was attributable, to defence service.

KIRBY J: “Taken to be” implies that this is a fiction. It is not, but it will be taken to be, so one would think that logically you decide whether it comes within the primary protection and if it does not then you get this extension by force of subsection (5).

MR DE MARCHI: Subsection (5)(c). That is correct, your Honour. That is a deeming provision that extends, we say, the application of the Act to circumstances where an accident would not have occurred but for having rendered defence service or for circumstances in the changes of environment following the defence service. That part of the section was never, at any stage, contemplated by the Administrative Appeals Tribunal and we say it was an error of law.

KIRBY J: Which is the subsection, I am sorry.

MR DE MARCHI: It is 70(5)(c), your Honour, which deems an injury “to be defence-caused” - - -

KIRBY J: The opening words of that are:

For the purposes of this Act, the death of a member of the Forces . . . shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused –

So you jump to the second part.

MR DE MARCHI: Yes.

KIRBY J: And then it is (c).

MR DE MARCHI: And then it brings by subsection (7):

Where, in the opinion of the Commission, the incapacity of a member of the Forces . . . was due to an accident that would not have occurred . . . but for his or her having rendered defence service . . . or but for changes in the member’s environment consequent upon his or her having rendered such service –

It brings a “but for” test into the causation argument, we say, your Honour, ameliorating the causal requirement, whatever that may be, because it has not, we say, properly been explored of what is meant by “arose out of, or was attributable to, any defence service”.

KIRBY J: Is the cure for this alleged error of law, and overlooking the provision of the Act, that the matter has to go back to the primary decision-maker, to the AAT, to apply its mind to this provision?

MR DE MARCHI: We would say, your Honour, that probably on the material that is presented before the Court, there are all of the elements of this “but for” requirement.

KIRBY J: But that would mean, if you do not get up on the primary entitlement and you are, as it were, forced back to this deeming or fictional requirement - - -

MR DE MARCHI: Yes, yes, that would need to go back, your Honour.

KIRBY J: - - - that the primary decision-maker has never made the relevant facts.

MR DE MARCHI: That is correct.

KIRBY J: And you would be inviting this Court, as the final court in the land, to be doing a jury job of finding the facts, although they have never
been found by anyone else.

MR DE MARCHI: No your Honour, I am quickly regressing from that situation. I am saying that it would need to be referred back to the Tribunal.

GUMMOW J: That is what Justice Heerey proposed at page 95, paragraph 38, and he was in your favour.

MR DE MARCHI: Yes, your Honour.

CALLINAN J: I just wonder whether, if you are right on the legal argument, any other factual conclusion except one in your favour is open, to the extent that there is, or appears to be, uncontradicted evidence of the basic facts. What I am suggesting is that I would not too readily myself, pending upon how the argument falls out, accept the proposition that we cannot finally decide the matter.

MR DE MARCHI: Yes, your Honour. We certainly say that extended operation of section 70 was never examined by the Administrative Appeals Tribunal.

KIRBY J: I think what Justice Callinan says is correct. If you can get up on your first ground, that is to say, the primary basis provided by the Act, then there has been fact finding, and if there has been an error of law in that, then perhaps, if the error of law is that there was only one conclusion on the facts, and any other conclusion is legally erroneous, we would give effect to that conclusion and you win. End of story.

MR DE MARCHI: Yes.

KIRBY J: But if you are forced back to the deeming provision, given that it was not raised earlier, there has never been fact finding on the “but for” analysis, then it is a little difficult, it seems to me, in the proper relationship of judicial review of a court to the primary decision-maker, for the court to start making the facts at the highest level of the courts in the country.

MR DE MARCHI: Yes.

KIRBY J: It just does not seem, subject to argument, to be right in principle.

GUMMOW J: It is bound up with the limitation of section 44 of the AAT Act, is it not?

MR DE MARCHI: Yes, your Honour, the question, of course - - -

GUMMOW J: The only federal jurisdiction is that conferred by section 44, and that is limited to question of law, is it not?

MR DE MARCHI: It is, your Honour. The issue, of course, is whether that finding of the Tribunal, whether or not it incorporates the extended operation of section 70(5)(c), was nevertheless a question of law, because the Tribunal did not simply make a finding of fact open to it. It made a decision of law: Hayes v Federal Commissioner of Taxation. It had to determine, upon all of the facts found by the Tribunal, whether it met the legislative provision of arising out of or attributable to defence service. And that was clearly a question of law that confers jurisdiction on the Federal Court in the matter.

KIRBY J: I am getting a bit lost here. You have started your appeal with a ground which, obviously, you think, in retrospect, is probably the best provision in the Act, but unfortunately it is not one that you litigated below. So is not the logical thing first to look to whether you can get up on the matter that you litigated below and if you do, well, we do not have to worry too much about this added fictional ground. If you do not, then we have to go back to the fictional ground and consider how we deal with that, given that you did not litigate it. Then, if you fail on both of them, we go to reasons, whether they are inadequate reasons.

MR DE MARCHI: Your Honour, when you say it was not litigated, we would respectfully take issue with that.

MR DE MARCHI: I am just going on what the respondent says. I always believe implicitly everything that Mr Hanks says to me.

MR DE MARCHI: We say that that ground was in fact raised with the Tribunal and it was certainly raised with the Federal Court at first instance and it was raised with the Full Court as well, your Honour. If I could take you, first of all, to the grounds of appeal on page 57, you will see at point 2.2 that - - -

KIRBY J: And these are the grounds of appeal from Justice Mansfield at first instance?

MR DE MARCHI: No, these are the grounds of appeal to Justice Mansfield from the decision of the Administrative Appeals Tribunal, your Honour. So it was raised at the Tribunal by Mr Piper and there was an extended application pursuant to section 70(5)(c) and the application of subsection (7).

KIRBY J: This seems to be another basis, as with reasons, where there was great enthusiasm at that level of the appeal, but it sort of petered out as it got higher up in the hierarchy.

McHUGH J: Well, now, Mr De Marchi, you have been going around in circles. Would it not be better if you went for the jugular and pointed out what the error is in the approach of either the Tribunal or the Full Court of the Federal Court, so that the argument can come to grips with what is the central point in the case?

MR DE MARCHI: Yes, your Honour. Your Honour, we say that the essential error is the restrictive and narrow application of the terms:

arose out of, or was attributable to, any defence service –

adopted by the Administrative Appeals Tribunal and - - -

GUMMOW J: Those being phrases in which section?

MR DE MARCHI: Section 70(5)(a), your Honour.

GUMMOW J: Yes.

McHUGH J: Well, now, could you identify the particular part of the reasons of the Tribunal that you say involves this narrow application, leaving aside for the moment whether the application of a statutory phrase itself is a question of fact or a question of law? Anyway, you take us to the passage that - - -

MR DE MARCHI: At page 54 of the appeal book, your Honour, at paragraph 10, line 18, you will see that the Tribunal says:

The only links between the Army and the intoxication of Mr Roncevich were that the intoxication occurred on an Army Base and that Mr Roncevich and his fellow drinkers were soldiers. The intoxication was not caused by, nor did it arise out of any task that Mr Roncevich had to do as a soldier –

The Tribunal is focusing there on specific tasks that Mr Roncevich had to perform. It failed to take into account, we say, your Honour, that the words “arose out of, or was attributable to” defence service incorporated not only specific tasks and duties but also circumstances where the Army had required him to be in the sergeants’ mess to meet Warrant Officer Thompson, the head of the RSM of the Army at that time and was required by the RSM Lee - - -

McHUGH J: When you say “required”, that intrigues me because of the way the Tribunal approached the matter. If you look at page 53, line 24(iv), it says:

The occasion was not a “top dinner night”. It was not compulsory to attend.

It is not a finding but it is a recitation of Mr Lee’s evidence, but that last sentence “It was not compulsory to attend” seems to be contrary to paragraph 9 of Mr Lee’s evidence and seems to have been accepted by the cross-examiner. If you look at page 50, line 31, Mr Lee, in his statement said:

All living in members were required to make up the numbers.

So it was compulsory, and at page 45, in his cross-examination, at line 11, the respondent’s counsel put to him that passage in paragraph 9 and says:

Do you recall that?---Yes.

And you said in your evidence . . .

It wasn’t a top dinner night, because it was just something at short notice.

Do you recall that?---Yes.

And that is correct, is it, sir?---That’s correct.

So it seems to have been common ground that your client was required to make up the numbers, so he was required to be there.

MR DE MARCHI: “Compulsory”, I think, was used in the sense of perhaps that you would not be in breach of military discipline but you were expected to be there.

KIRBY J: But there is an anterior question here. Why is the criterion required? If it is a common thing, if it is a usual thing, if it is a frequent thing, if it is done from time to time, why do you accept that the criterion is required.

McHUGH J: I was not putting to you that it was expected has always been part of the formulation, at least since the 1950s, but if you are required it puts your case - - -

KIRBY J: It is strong. But if they find it was not required, that is to say had to, that is the passage on page 54 at line 21, they appear to be applying the required test, had to, whereas I do not, for the moment, subject to hearing the respondent, accept that requirement, obligation, legal or otherwise, is the test.

MR DE MARCHI: That is correct, your Honour. That is our argument, with respect.

KIRBY J: It is a very old-fashioned view about employment.

MR DE MARCHI: Yes, and it is supported, we say, by the case of - - -

McHUGH J: The old test was reasonably required, authorised or expected to do. That was the Humphrey Earl test. In Hatzimanolis we played around with that a little bit and some people say we extended it, but we certainly reformulated it.

MR DE MARCHI: Yes. Your Honours, in Henderson v Commissioner of Railways Justice Dixon, examining exactly the same wording of the legislation and dealing purely with the first part, “arising out of”, not “in the course of employment”, said:

the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorized to do -

That is page 89 of the appeal book.

KIRBY J: Give the full citation on the record, please.

MR DE MARCHI: It is Henderson v Commissioner for Railways (WA) [1937] HCA 67; (1937) 58 CLR 281. That citation was at 294, your Honour. More poignantly, at 293 his Honour said:

An accident may arise both out of and in the course of an employment, notwithstanding that it occurs during an interval in the hours of the actual performance of work or “duty”, and although under the terms of the contract of employment the workman is not positively obliged to be upon the employer’s premises during the interval. For these factors are not necessarily inconsistent with the existence of a sufficiently proximate causal connection . . . expressed by the words “arising out of”; and they do not exclude the possibility that the presence of the workman at the place of the accident is so consequential upon or incidental or ancillary to the employment that in being there he is doing something in virtue, or in pursuance, of his employment.

GUMMOW J: What do you say about the respondent’s response to that in their written submissions at paragraph 17? They say reliance upon Henderson is beside the point, since the legislation is differently constructed. That seems to be the heart of the difference between you.

MR DE MARCHI: Except that his Honour when making that statement was not looking at the conjunction “in the course of the employment”. He was simply looking at “arising out of employment”. We say that the term of course “arising out of or in the course of employment” has often been adopted by the courts or looked at together and run together rather than - - -

McHUGH J: They had to be. For a long period of time in workers compensation law there was a dual condition. “Arising out of” poses a causal connection; “in the course of” a temporal connection. As Kavanagh v Commonwealth shows, it is sufficient that the injury happens while you are at work.

MR DE MARCHI: Yes, your Honour. That is the distinction between the words here, but we say that “arose out of” or “attributable to defence service” should be read as arising out of the requirements imposed on the appellant by his defence service or attributable in some way to the requirements of the appellant’s defence service or circumstances associated with defence service. There should be a natural extension.

McHUGH J: “Incidence” is an expression used I think in Pearson v Fremantle Harbour Trust - which is in the late 20s, I think - arising out of an incident of the employment as well.

MR DE MARCHI: Yes, your Honour. We say that the extension would ameliorate – would equate defence service with injuries occurring in the course of employment for other employees.

KIRBY J: I think, subject to hearing argument, that the use of those words “had to do as a solider” does appear to be applying an overly narrow test. That is at page 54, line 22:

any task that . . . had to do as a solider –

is only part of the formulation. That is the reasonably required part but it is omitting the authorised or expected. As Justice Callinan pointed out in the special leave hearing, whatever may have been the legal obligation of the soldier it was a very common thing and expected of him that he would turn up at a mess function with a senior officer visiting and eat and drink there. It is a bit like the Bar. The Bar used to go to dinners. The military did, too. There are very great similarities between the military and the legal profession. Crown services. Highly disciplined. Heavy eaters and drinkers.

MR DE MARCHI: The RSM, your Honour, gave the importance, of course, of those sessions in terms of morale within the battalion and, of course, in terms of being able to relieve the soldiers of the stress that they were involved in in very arduous parachute training which the battalion was required to engage in.

KIRBY J: Tread very carefully there because it cannot be a good thing for the cause of the military that soldiers get intoxicated.

MR DE MARCHI: Of course, your Honour.

KIRBY J: But, anyway, press on. Do you embrace what I have just said to you that if the test is required then that is only part of the legal formula and it omits a matter that is very relevant in this case, namely, authorised or expected.

MR DE MARCHI: We do, your Honour. We say that the examination was overly restrictive on the part of the Tribunal. It was not what he had to do as a soldier, not what it had to do arising of any task, but whether the injury “arose out of” his defence service and his defence service meant “continuous full-time service” as a member of the Defence Force – section 68(1) of the Act.

KIRBY J: One would think that the normal answer to that that judicial review provides is that the judge, on review, says, “You have applied too narrow a test. It must go back to the tribunal of fact to decide whether, even though they found on the first case, that it was not required to find whether it was authorised or expected”.

MR DE MARCHI: Yes, your Honour.

KIRBY J: I am just troubled by the notion that we, as a Court of law, can substitute fact finding. I think Justice Gummow has pointed this out that it is bound up in the constitutional separation of the courts performing their function, vis-à-vis a tribunal which is in the Executive Government performing its function.

MR DE MARCHI: Yes, your Honour.

GUMMOW J: And we have to look at section 44(4) and (5) of the AAT Act. The question is what the Federal Court should have done, not what the Tribunal should have done. It is what the Federal Court should have done. What the Federal Court could or should have done is found in section 44(4) and (5). Now, 44(4) is pretty broad. There is authority on these provisions – quite a lot of it – to which we have not been referred.

MR DE MARCHI: I am not sure, your Honour, but we have provided the Court with that - - -

GUMMOW J: It is in our Bench bible.

MR DE MARCHI: Yes:

may make such order as it thinks appropriate by reason of its decision.

GUMMOW J: And then subsection (5) says “Without limiting . . . the generality of subsection (4)”. There is a lot of authority on these sections, not surprisingly.

KIRBY J: One argument, if it is appropriate within section 44(4), is the horrendous history of this litigation. It has gone backwards and forwards and up and down and all over the place. If one could properly and lawfully bring it to a happy quietus, that would be what one should do, but it has to be done in a principled way, consistent with the constitutional notions that inform judicial review in this country.

MR DE MARCHI: Yes, your Honour, and equally important, we would say, for a principle of law to be given to tribunals which have to determine these matters on a regular basis and clearly - - -

KIRBY J: Yes, but it unfortunately would not necessarily be the end of the matter, because it might go back to the Tribunal and they say, “Well, it is not authorised or expected that you get drunk. That is your own personal decision”. It does not necessarily mean that you win.

MR DE MARCHI: Yes.

GUMMOW J: I think you have to be able to say that on remission the Tribunal could reach no other decision but this decision, and, if that is right, I think you can apply 44(4). In other words, it is like mandamus to consider when there can only be one outcome of the consideration. That is the sort of area you are in, I think. I do not know whether this case falls in or outside it, but that is what we have to think about.

KIRBY J: With your help.

GUMMOW J: With help.

MR DE MARCHI: Yes, your Honour, I know that - - -

GUMMOW J: We are getting a bit tired of rowing our own boats.

MR DE MARCHI: Your Honour, I understand that there have been cases where the Federal Court has in fact adopted that course of action in circumstances - - -

KIRBY J: Are there cases like this where the Federal Court has, as it were, said, “There was only really one fact finding available and, in those circumstances, to bring this litigation to a close, we think it is appropriate to dispose of the judicial review by making those facts found and making the orders on that basis”? Are there cases that deal with that?

MR DE MARCHI: I believe that there are cases similar, your Honour.

KIRBY J: Justice Gummow sat in the Federal Court, I did not, and therefore I do not know those cases. If there are those cases, you had better bring them - - -

GUMMOW J: I am forgetting them.

MR DE MARCHI: Your Honour, I cannot cite you with the immediate - - -

KIRBY J: Because principle tends to suggest that you send it back and that they make the fact finding.

MR DE MARCHI: Yes, that has been the normal course in my experience, your Honour, that the court has invariably sent the matter back, but there are the exceptional cases where the court has said all of the fact finding in this matter has been done and there is nothing more, really, to be done in the circumstances. We would say that the principle that we are encouraging the Court to adopt is that given that defence service “arising out of, or was attributable to” should include those ancillary matters related to defence service, and this was one of those matters, there was nothing else, really, to be done in this case.

KIRBY J: Yes, but if, for example, you had a member of the AAT who was, shall we say, a person of rather strict views, and they sat as tribunal of fact and they said, “Well, I think it is incidental to go to a dinner, and I certainly think it is incidental and expected when a commanding officer or senior military person turns up, but I do not think it is incidental to drink too much. That is your private decision, that is not your activity as a member of the Australian Defence Service, and if, out of that, you fall out of a window, well, it is your own personal responsibility”. What is your answer to that? Why is not that an available view, whether you would take it or not?

MR DE MARCHI: We would say, your Honour, that once you have created the circumstances and provided the mess and the alcohol and the requirement of the member to attend, you then set in train a causal connection with his injury that you cannot then say, “Well, it was up to him to not drink or it was up to him to drink in moderation”. We would say that the causal relationship of March v Stramare would then operate, the Army having created the hazard of making the alcohol available and encouraging participation in drinking, then it could not say, “Well, if you injure yourself as a result of that, you are on your own”.

CALLINAN J: Mr De Marchi, there seems to have been an amendment to the AAT Act No 38 of 2005 - - -

McHUGH J: As from 1 April.

CALLINAN J: Yes, and it adds subsections to section 44.

McHUGH J: Subsection (7) says, “In an appeal to the Federal Court the court may make findings of fact”.

GUMMOW J: This is designed to overcome this problem we have been talking about, but it requires a proclamation, I think, to come into force. I do not know whether there is a proclamation yet, and we also do not know whether it is pending proceedings.

CALLINAN J: Which we need to know.

KIRBY J: Where is the error of the Federal Court in the cases below that did not apply this provision, because it was not in force at the relevant time?

MR DE MARCHI: No. The Federal Court would not have been aware of it.

KIRBY J: It may be a matter, if it is in force now, and if it applies to transitional cases – that will just have to be checked as a matter of law – but it is relevant to our disposition, because we are authorised by the Judiciary Act to make such order as ought to have been made by the court below. And yet the court below has this power now to make findings of fact, subject to the application of that provision, or maybe that is what we should be urged to do.

MR DE MARCHI: Your Honour, if there is that power, we would urge the Court to take that course of action to bring this litigation to an end.

KIRBY J: Well, we are wandering all over the place. Where are we?

MR DE MARCHI: Your Honour, we - - -

KIRBY J: Canberra, I think, but - - -

MR DE MARCHI: With respect, we are back to the principle of whether a member is rendering defence service and can be injured as part of his defence service in the circumstances where part of his duties require him to attend the mess and socialise with other NCOs and discuss matters of concern to the unit. In other words, whether - - -

KIRBY J: Do you say that is the only conclusion that is available on the facts? The only one that is lawfully available? Or can you have a decision that says, “Well, that has been put to me and I have given it thought, but, frankly, I do not think that it is authorised or expected if you get drunk. That is your own business. It does not arise out of your defence service, it arises out of your propensity to drink too much alcohol”.

MR DE MARCHI: It would be, your Honour, open to the Tribunal if it had applied a principle to its decision, having found the facts that the Tribunal believed existed at the time of the injury, and it applied the principle in law that dealt with the question of arising out of or attributable to defence service, but there has been no principle applied to this case.

If your Honour looks at page 54, you will see that there is absolutely no reference to any part of the legislation. There is no reference to any decision in terms of what constitutes defence service or what constitutes ancillary matters arising out of employment or defence service.

KIRBY J: But what is wrong with drawing a line and saying, attending the dinner, yes, eating too much, maybe falling over at the dinner accidentally, yes, but drinking too much is really your own private decision, it is not a defence decision? It is a little bit like the issues that were raised in Cole’s Case, the case of the woman who became intoxicated at a club.

MR DE MARCHI: We say, if it is not part of the defence service, fine, but if it is expected that you will be in the mess and will be drinking with a visitor as part of the defence service, then there is an extension that applies to you continuing to drink.

KIRBY J: Do you say that is the only interpretation available on the facts?

MR DE MARCHI: We say, your Honour, that the Tribunal has not really addressed the question of law. It has simply made fact finding, without understanding that what it had to do was to find the facts and then apply those facts to the legislative provision. That was a question of law that the Tribunal failed to understand, and therefore became bogged down with tasks associated with the duties of a soldier. It was that error that confused the Tribunal and was not rectified by his Honour at first instance and the Full Court.

CALLINAN J: Your problem might be that to be expected to be there to drink is one thing, but to go there and become drunk is an entirely different thing, because your client very much placed weight upon the fact that he was drunk. That was his evidence.

MR DE MARCHI: Yes, his evidence was that he was inebriated and that was one of the reasons. Although he said that he only had six or seven drinks - - -

McHUGH J: Cans, six to eight cans, did he not?

MR DE MARCHI: Six to eight cans.

CALLINAN J: It would not have mattered whether he had had two. There is a difference between drinking and becoming drunk. Perhaps he could get to drunk after six or eight, even though he had been in the Army since 1972, I think.

MR DE MARCHI: Your Honour, he was 17 when he joined. He knew nothing else. Whatever the RSM said to him was gospel and he regarded any indication that he had to be there as a command.

CALLINAN J: The finding is very specific, at page 54, is it not, about line 20:

The intoxication was not caused by, nor did it arise out of any task that Mr Roncevich had to do as a soldier –

Now, even if that is the wrong test, “any task that Mr Roncevich had to do as a soldier”, it may not matter for the respondent’s case, because that is a very comprehensive finding with respect to intoxication, as opposed to being there to drink and being expected to drink.

MR DE MARCHI: I think the implication of the finding is that the Tribunal regarded drinking as something that was not compulsory. It was the evidence of the RSM - that the Tribunal thought the RSM said on page 54, line 4:

not compulsory to drink alcohol.

That was what was obviously implied by the Tribunal in that final finding of fact but clearly it was ancillary to his duties that he would be in the mess and it was customary that they would drink in the mess while discussing mess and unit-related matters so that it was part and attributable to his defence service the fact that he had certainly commenced to drink and justified and expected by the Army that he would be in the mess and that he would drink. So the Tribunal appears to take some of the evidence of the RSM out of context and then from it draw conclusions really that it was not service related but the last paragraph, your Honour:

It was not service-related nor was it defence-caused -

It was really repeating the words of the section in order to conclude its finding.

McHUGH J: Yes, but you have to identify an error of law. Now, can you put your case any higher than this, that the Tribunal misdirected itself as a matter of law in the first sentence in paragraph 10 on page 54 when it said:

The only links between the Army and the intoxication of Mr Roncevich were that the intoxication occurred on an Army Base and that Mr Roncevich and his fellow drinkers were soldiers.

Now, I would have thought that it was open to you say that there was another link, namely that it was an incident of his employment that he should go to the mess and drink with the visiting RSM and if that were so then the question was, did his fall arise out of the visit to the mess and that is a question of fact and as a matter of fact you would have to establish for the satisfaction of the Tribunal that as a result of going to the mess he got intoxicated and as a result of his intoxication he fell out of the window - and I am leaving aside subsection (7) - and his fall was therefore causally connected to that incident.

But can you put your case any higher than by failing to see that there was another link, namely it was an incident of employment that he should go to the mess, that the Tribunal has misdirected itself because it has not fastened on to what was, on your case, the essential premise for your argument about causal connection. Your whole case on causal connection to his defence service relies on the fall being causally connected to the incident of employment that he go to the mess to drink with the visiting RSM. Is that not so?

MR DE MARCHI: That is so, yes. Your Honour, can I take the Court to the appellant’s submission, page 6 and could I adopt the matters that were put in writing to the Court in terms of the finding of fact and we say that it was a question of law that the Tribunal was determining at that particular time and the only links between the Army and intoxication of Mr Roncevich, the Tribunal said, was that the intoxication occurred on an army base and that Mr Roncevich and his fellow drinkers were soldiers.

That only link, we say, is a fairly important link that the Tribunal failed to seize upon as a legal connection between that link and the circumstances of the appellant’s service.

GUMMOW J: Yes, that is what Justice McHugh has been putting to you.

MR DE MARCHI: Your Honour, with the addition that it was – that is an additional link, not the only link. It is an additional link. They were intoxicated on base because of the requirements to be in the mess at that particular time.

CALLINAN J: It is all in Justice Heerey, is it not, at paragraph 26, 27 and 28 about 89 and 90, I would have thought. With all due respect, it could not have been put better from your point of view than it is put there.

MR DE MARCHI: Yes, your Honour.

CALLINAN J: Particularly given the absence by the respondent of any reliance upon a serious default or serious breach of discipline or wilful act.

MR DE MARCHI: That is so, your Honour, yes. But there was no indication that there was a breach of discipline and the RSM said that under those circumstances, alcohol was permitted, it could be drunk. There was only one criterion that the soldiers not get back to do specific duties afterwards.

McHUGH J: What you have said so far covers your grounds 2.1 through to 2.5, I think. Now, what do you say about 2.6 to 2.8?

MR DE MARCHI: In relation, your Honour, to the Tribunal failing to give adequate and sufficient reasons of its decision, we say that the terminology of section 43(2B) of the Administrative Appeals Tribunal Act is different to the case cited by the respondent of Yusuf v Minister for Immigration and Multicultural Affairs. The statute there required that the Tribunal in making a decision on a review of a protection visa was to prepare a written statement setting out the findings of any material questions of fact. Here, the statute is - - -

KIRBY J: Is that not the template that exists in a lot of federal legislation? Does that exist in the AAT Act?

MR DE MARCHI: It does, your Honour, but it goes further, we say. If:

the Tribunal gives in writing the reasons for its decision, 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.

KIRBY J: What section is that?

MR DE MARCHI: Section 43(2B). Your Honour, there is nothing in the decision of the Tribunal that one can say has applied those requirements. It has set out in the briefest of form its conclusion, but there is no reference to the evidence or other material on which those findings were based, and indeed, the Court cannot ascertain from reading that particular section whether the Tribunal was alive to the requirements of meeting the wording of section 70(5)(a), or section 70(5)(c) and section 70(7).

McHUGH J: Yes, but the Tribunal set out the evidence and it made a judgment that the only links between the Army and the intoxication were the two respects that it identified. Now, it may be right or wrong about that, but that is its reasons. If it did not go far enough, then it may raise a question of law that it has failed to direct itself to some question that it should have, as a matter of law, directed itself, but what is wrong with it? It is very brief, but it says what its reasons are, right or wrong.

MR DE MARCHI: We say it does not refer to the evidence or other material which does - - -

McHUGH J: Yes, but when you are expressing a negative, there is not much you can do. The Tribunal identified the only two positives and it says what they are after setting out what it saw as the evidence in the case.

MR DE MARCHI: Your Honour, looking at that decision, you could not tell whether the Tribunal has in fact applied any principle of law at all to that decision.

KIRBY J: I am not sure about that. I think it has applied the required principle of law, which is only part of the correct principle of law. “Had to”, a task “had to” perform.

MR DE MARCHI: Yes.

CALLINAN J: We discussed this recently, failure and constructive failure to give reasons. You look to me to be a long way away from Pettitt v Dunkley territory here. We have discussed that case recently in other cases. I cannot recall the name of the case or cases in which we did, but I think two or three times, in the last four or five years, which we ought to be referred to because I cannot remember what - - -

McHUGH J: We referred to it in Yusuf.

KIRBY J: That is mentioned in the respondent’s submissions.

MR DE MARCHI: It is. We say that there is a distinction in that particular case.

GUMMOW J: But you are saying the premise of this argument is that a failure to comply with 43(2B) constitutes a question of law for 44(1).

MR DE MARCHI: Yes, constitutes an error of law, your Honour.

GUMMOW J: No, a question of law.

MR DE MARCHI: And also it - - -

GUMMOW J: That is a new proposition, actually, in this realm of discourse. It may simply be that if there is a failure to comply with section 43(2B), which is put in later, that there is disclosed an error of law because there has been a failure to deal with the legal issues that were before the Tribunal.

McHUGH J: And that was what we said in Yusuf.

GUMMOW J: Yes, exactly.

MR DE MARCHI: Your Honours, it deprives the appellant from an understanding of which part of the legislative provisions he failed on. That is clearly not set out. At common law, a person engaged in action ought to be aware of the reason why it was not successful in a particular appeal. The findings of the Tribunal do not set that out, do not give an indication of - - -

McHUGH J: But they are just as good as the reasons the Commissioner gives. When I was at the Bar, I brought the Commissioner up here in Everett v Commissioner of Taxation, seeking a mandamus against the Commissioner to give better reasons than he did, and this Court said they were sufficient.

KIRBY J: Maybe they were wrong. We have come a long way since those horrible days. Justice McHugh in his closing months has a chance to fix it up.

MR DE MARCHI: Your Honour, I will not enter into that argument. That is the position of the appellant in relation to that particular ground of appeal.

McHUGH J: That completes your submissions, does it not?

MR DE MARCHI: Your Honour, there is the ground 2.6 and the written reasons there, which incorporates the decision of Hatzimanolis on page10, 5.40.

McHUGH J: Well, that really covers much the same ground as is at page 6 of your submissions, does it not?

MR DE MARCHI: It does in a way, your Honour, yes. We also point out the case of Repatriation Commission v Law where the court was dealing with exactly the same terminology in section 101 of the Repatriation Act 1920 as to what was meant by “arising out of”. The court was not quite elucidating as to whether in fact “arising out of” required a clear causal connection, what the proximate cause really had to be. I turn to the original submissions to the Court that a clear indication of the phrase “arose out of, or was attributable to, any defence service” is something of considerable importance for cases coming before the Administrative Appeals Tribunal involving injuries resulting from defence service.

GUMMOW J: I thought there was legislation after Law. Law is not the last word - - -

McHUGH J: There certainly was.

MR DE MARCHI: It is the same wording, your Honour, exactly the same wording. On page 150, your Honour.

GUMMOW J: Yes, Repatriation Commission v O’Brien [1985] HCA 10; (1985) 155 CLR 422.

KIRBY J: That was a big decision in its day.

GUMMOW J: What do you seek to get out of Law?

MR DE MARCHI: What we say, your Honour, after examining Kavanagh, which the respondent raises in its submissions, requiring a causal connection, the court said:

The precise nature of the relationship denoted by the phrase depends upon the subject matter being dealt with, the context in which the expression is used and the circumstances of the particular case.

In s 101(1)(b) the words “arising out of” require a consequential relationship of the incapacity or death with the service out of which it is said to arise.

That is at point 8 of the page.

KIRBY J: The word used there is “consequential”.

MR DE MARCHI: “Consequential”, yes.

KIRBY J: It is not quite the same notion as causation.

MR DE MARCHI: Further on, your Honour, the court said:

is “caused by” or “results from” . . . phrases which may connote a proximate causal relationship.

The Act does not use those phrases. And:

The expression “arisen out of” is satisfied if some less proximate causal relationship is established. Of course, a suggested relationship which is fanciful is not sufficient; and a suggested relationship may be so tenuous as to preclude its consideration as answering the description “arising out of”.

KIRBY J: What are you reading now? Is this O’Brien?

McHUGH J: No, this is Law.

KIRBY J: Law, is it?

MR DE MARCHI: Yes, Repatriation Commission v Law, the Full Federal Court, Chief Justice Bowen and Justices Brennan and Lockhart.

KIRBY J: Yes, I have that. What is the page you are reading?

MR DE MARCHI: Page 150, your Honour.

GUMMOW J: It came on appeal here. Why are we looking at the Federal Court?

MR DE MARCHI: Your Honour, on appeal those particular words were not – there was no further determination on it.

McHUGH J: Are they your submissions, Mr De Marchi?

MR DE MARCHI: Your Honour, if I could perhaps briefly also, on the question of whether the Tribunal was dealing with this as a question of fact or whether it was dealing with a question of law, refer the Court to Hope v City of Bathurst. That is contained in the written submission, your Honour and the case of March v Stramare, your Honour, we say that there are relevant passages - - -

GUMMOW J: Are there cases construing section 44? That is what matters. The distinction between questions of fact and law does not exist floating around in the sky. It exists in particular statutes.

McHUGH J: And March v Stramare is dealing with common law causation.

GUMMOW J: Now, there is a whole gaggle of cases dealing with question of law under section 44. That is where we should first look.

MR DE MARCHI: Yes, your Honour.

GUMMOW J: They may help you. I think they probably do.

MR DE MARCHI: Yes, your Honour, unfortunately, we have not focused on those cases. Your Honour, returning perhaps, if I may, to conclude in relation to the “arose out of, or was attributable to, any defence service”, if I could - - -

GUMMOW J: It is important for section 44 because it is the jurisdictional link. That is the hook that gets federal jurisdiction. Anyhow.

McHUGH J: The cases start with Cheney on section 44. Since Cheney – that was the first of the cases, I think, and then there is a whole stack of them.

MR DE MARCHI: Yes, your Honour, I do not have those cases with me.

GUMMOW J: Well, maybe Mr Hanks will tell us if there is anything adverse to you in those cases on section 44.

KIRBY J: He will have them at his fingertips. Can I ask you two questions just before you sit down? First, have you done any analysis of the history of this formulation in the veterans legislation, or is it analysed in Law or O’Brien or any of the other cases, as to why a formula different from that which was traced back to the end of the 19^th century of “arising out of” and later “arising out of or in the course of” – why did they use a different formula? One would assume with veterans that there was a purpose to have an easier formula, a formula which was more beneficial, but there must be a second reading speech or there must be material on the history of the statute. Do you know any of that? Is it referred to in any of the cases that you have seen or not?

MR DE MARCHI: No, your Honour.

KIRBY J: Well, I think you are going to just have to do some work on section 44 and the question Justice Gummow asked and that question and send a note in later.

McHUGH J: The history is dealt with to some extent in the cases in this Court in O’Brien’s Case and in the early case, whatever that was, and Law before that, was it not?

MR DE MARCHI: Yes.

McHUGH J: It is fairly obvious that the RSL has been a very powerful lobby and has got entitlements into this Act that go beyond what is found in other statutes. The veteran gets, in effect, the benefit of the doubt and the onus is on – or was, anyway, historically – on the Commission to negate the case made once there is any sort of an arguable case.

CALLINAN J: Beyond reasonable doubt, I think, in one - - -

GUMMOW J: That is what those cases are all about.

MR DE MARCHI: The reverse criminal standard of proof, your Honour, but since - - -

McHUGH J: It has been watered down. You now have statements of principles and you have to comply with those.

MR DE MARCHI: Not only that, your Honour, but what has happened with this piece of legislation is that over the years those sections that conferred those rights have also been read down by the Federal Court. For example, section 119 as to whether the Tribunal should act according to principles of fairness and justice, that has not, obviously, been - - -

KIRBY J: It is a very common provision in compensation statutes.

MR DE MARCHI: It is a common provision, your Honour, but it used to be part of section 47 which had some teeth in it and, of course, it is still referred to as giving some of its beneficial entitlement. The reality, of course, is that what the respondent is arguing is that you have here a causal connection or required arising out of, attributable to defence service, whereas in the employment cases you have arising out of in the course of the employment, which - - -

McHUGH J: That is not really the respondent’s argument, is it? The respondent’s argument simply says it is a question of fact and that was all that was decided by the Tribunal and it was decided adversely to you, and that is the beginning and end of the case. There is no question of law in the case. That is what the respondent says.

MR DE MARCHI: I will see if I can have my instructor looking at some of those cases whilst my friend is - - -

McHUGH J: I would not be concerned at this stage. What you might do is within the next 14 days prepare a note, serve a copy on the other side of your note if you find anything, and submit it to the Court.

KIRBY J: And relevant to that last matter that Justice McHugh raised is the third point, and that is a matter that is presented by the decision of the Court of Appeal in New South Wales in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 in which Justice McHugh and I - - -

McHUGH J: No, I did not, I was not in Azzopardi.

KIRBY J: No, it was Justice Glass, Justice Samuels and I sat. That is a case in which Justice Glass took the view, and Justice Samuels agreed with him, that in relation to appeals to the Court of Appeal from the Compensation Commission on points of law that perverse fact finding did not constitute a point of law. I dissented in the case. Now, it may be distinguishable on the basis Justice Gummow has raised, that is to say that the test in this circumstance and this Tribunal is not a common law test but is the specific test presented by section 43(2B) of the AAT Act, and that may be a foundation for distinguishing Azzopardi. But Azzopardi has often been applied since it was decided, and it does to my mind, present something of a problem for you, that even if one were of the view that that paragraph 10 in the Tribunal’s decision was a perverse finding of fact in all of the circumstances, it is nonetheless one which was open to the Tribunal and therefore, one which you cannot set aside on an appeal limited to a point of law. Now, that is a principle which, for the reasons I expressed in Azzopardi, I cannot agree with, but that itself is a large legal question.

MR DE MARCHI: I am sure my friend will take up that point, your Honour.

KIRBY J: It would be a matter on which, unless Azzopardi can be distinguished, then it does seem to present an obstacle to this Court’s reviewing the fact finding by the AAT, even if one thought that it was perverse in the circumstances.

MR DE MARCHI: Although your Honour, we say that this is not a fact-finding exercise on the part of the Tribunal. It was an application of a question of law on facts fully found.

McHUGH J: Yes, well thank you Mr De Marchi. Yes, Mr Hanks.

MR HANKS: I do not think I can put my argument as shortly as your Honour did. I might require a little elaboration. Your Honours are well seized of what we thought were the two fundamental building blocks for the consideration of this appeal, the first being that it comes to the Court via section 44 of the AAT Act and that therefore there must be a question of law. That is, as Justice Gummow said, essentially a prescription of the Federal Court’s jurisdiction that there be a question of law. The Court, we would submit, cannot go beyond that.

The second building block is that the statutory setting here in the Veterans’ Entitlements Act, if we focus on section 70(5)(a), is that the question for the Tribunal was whether the appellant’s injury arose out of or was attributable to his defence service. We are not concerned with the wider potential connection that might be available if we were using, for example, the Safety, Rehabilitation and Compensation Act (Cth), where the alternative would be available, namely “in the course of”.

We have referred the Court in our written submissions to observations made, for example, in Kavanagh and there are many other such observations in the context of workers compensation legislation commenting on the movement from the cumulative to the alternative requirement and stressing that “arising out of” at least denotes a causal relationship, whereas “in the course of” refers to a temporal relationship. Much of the, we would say, elaboration on the scope of employment has taken place in the context of exploring the boundaries of the concept “in the course of employment”.

McHUGH J: It is helpful nevertheless, is it not, Mr Hanks, to look at those cases to find what employment is.

MR HANKS: Yes, it is.

McHUGH J: There has to be a causal connection between the employment and its incidents. That is its only relevance in this context.

MR HANKS: Yes, I suppose so, your Honour. With some adjustment one can apply that to the present situation. We are not here talking of employment but of defence service. As your Honours would readily appreciate, the relationship between, let us say, the appellant and the Commonwealth is not a relationship of employment. It is deemed employment for certain purposes but it is not a relationship of employment.

KIRBY J: You do not have to get into that.

MR HANKS: No, I trust not.

KIRBY J: There are very some old cases about policemen not being employees too – Enever’s Case – but we do not have to enter that. We have a statute. Are you aware of authority which explains why, in something where one would think the Parliament was wanting to be beneficial, they cut out one of the provisions that expands entitlements? Why would one cut back what veterans get as against what ordinary workers get?

MR HANKS: I think this has to be looked at in a totality, your Honour. When one considers the history of the old Repatriation Act which was first enacted in 1920 and was then replaced by this Act in 1986, one sees essentially different standards of proof being formulated at different periods, but in my understanding the standard of proof applied in relation to claims by members of the Defence Force was always more generous than the standard of proof applied in workers compensation. That was the way that - - -

KIRBY J: Did that apply in this case? Is there a reverse onus of proof and a criminal standard in this case?

MR HANKS: No, there is not.

KIRBY J: When did that slip out of the Act?

MR HANKS: It slipped out, I think, your Honour, shortly before this Act was introduced. I think it slipped out in 1985 as a consequence of O’Brien’s Case. Your Honours will recall that in O’Brien’s Case the fundamental proposition was that if one had a disease of unknown aetiology, then the Commissioner had no alternative but to find that it was war caused, because the Commissioner was unable to prove beyond reasonable doubt that it was not war caused, there being no known cause of the disease. Immediately after that, the Act was amended partly to pick up Justice Brennan’s dissent in O’Brien to introduce the modifying concept of reasonable hypothesis, which was then, as Justice McHugh will recall, considered in Bushell’s Case, but also to create two classes of claimants: those who could say that they had rendered operational service – put simply, service in a zone of hostility, very simply – and those who had rendered defence service, only defence service.

In relation to the second category, if they had, for example, served during the Second World War only in Australia, not in the zone around Darwin during the time of Japanese bombing, they could not use the “beyond reasonable doubt” reverse standard of proof. They had to essentially – the onus was not on them, of course. The questions of onus of proof have no operation here, it is all to do with the standard of proof. A person who served inside Australia depended upon the Commission being reasonably satisfied that that person’s disease or injury or death was war caused, and that formulation now finds its place in relation to members of the Defence Force.

KIRBY J: All of them?

MR HANKS: All of them, unless they are allotted for service in a particular zone where there is a risk to their safety because of hostilities. I am putting it very crudely, your Honour, but that is essentially the distinction. If they are - - -

KIRBY J: Can you tell me the sections or get me the sections that refer to the onus and how that is to be applied in this case?

MR HANKS: Yes. The standard of proof is found in section 120. The “beyond reasonable doubt” standard is in subsection (1). It is modified by subsection (3), which introduced the reasonable hypothesis. In all other cases, subsection (4) says that the Commission shall determine matters:

to its reasonable satisfaction.

And this is a reasonable satisfaction case that we have here.

KIRBY J: Do you know the provision of the veterans’ legislation that excludes the operation of the ordinary compensation safety Act? Or is that just – it relies on the fact that he is not an employee or a worker?

MR HANKS: No, no. They operate in parallel, your Honour, and this particular appellant has made a claim under the SRC Act for his knee condition and it has been accepted, by reason not of this incident, but by reason of another incident which occurred some 6 years later, I think.

KIRBY J: There is a higher pension entitlement under the Veterans’ Act, is it? Is that is why he is pursuing that entitlement?

MR HANKS: I cannot explain why he is, your Honour. There are provisions that, as I understand it, reduce the payment that you will receive under one Act if you get a payment under the other Act, sort of anti-double dipping provisions. But it is the fact, at least at the time that Mr Roncevich suffered this injury in 1986, that he was covered by the then 1971 Commonwealth Compensation Act and, after its introduction in 1988, he was also covered by the Safety, Rehabilitation and Compensation Act because there is a special deeming provision in both Acts that deem service or the performance of duties as a member of the Defence Force to be employment. So he has double coverage.

KIRBY J: Yes.

MR HANKS: Or did have. I think that is how they are rationalised to some extent in recent times.

KIRBY J: Anyway, whilst noting that, we can put that to one side and simply concentrate on the Veterans Act.

MR HANKS: That is so. Now, if I might come back to the section 44 point and to take up something that Justice Kirby said about Azzopardi, we had in mind to refer your Honours to a different passage and it does not go as far your Honour suggested Azzopardi might go.

GUMMOW J: Well, we never applied Azzopardi in the Federal Court when I was there.

MR HANKS: We were not going to embrace it, your Honour. I wanted to refer your Honours, simply because this was a convenient way of doing it, to the judgment in Maunder v Commonwealth 76 FLR and I only do that at this moment to take your Honours to page 346 of the judgment of the Full Court because on page 346 their Honours referred to something that Sir Frederick Jordan had said in Davidson v Mould in 1943. If your Honours were to follow me very briefly, page 346 at about point 4 on the page and that is the proposition which is set out in the quotation from Sir Frederick Jordan’s judgment in that case. That is the proposition that we would embrace.

GUMMOW J: And I think that is the way it was done.

MR HANKS: Yes, that is how we understand it. If, on the material before the Tribunal there was only one decision open and the Tribunal failed to reach that decision, it fell into an error, an error of law. Now, whether that is the same thing as the perverse decision - - -

KIRBY J: Well, it cannot be because that is saying you can reach a decision which is perverse and even if it is the only one that is available, if it is perverse, it does not matter. It is still not a point of law which is probably - I was instinctively reacting in the same way as the Federal Court was doing and Sir Frederick Jordan did, to such an extreme notion.

MR HANKS: We are familiar with a variation, your Honour, to the effect that lack of logic is not an error of law. Lack of logic in fact finding is not an error of law, but the proposition that your Honour put to my learned friend is not one that we would support. This is the proposition that we would support and, in particular, we would draw some comfort from Sir Frederick’s observation at the end of that passage that:

Between these two extremes, the question is one of degree -

and this essentially reinforces Justice McHugh’s quick diagnosis of our argument, that is, it is one of degree depending on the view taken of the relative importance and significance of the facts proved in evidence and a decision either way by the Commission, here the Tribunal, is one of fact and cannot be disturbed by this Court.

KIRBY J: Now, are there not two questions though? The first question is did they, in reaching their conclusion of fact, apply the wrong test, the task he had to do and if you find that they applied too narrow a test then you do not really go to their fact finding which comes at the end of test application.

MR HANKS: One of the difficulties with an answer to that question, your Honour, is that the language as it appears in the Tribunal’s reasons does not carry that emphasis that your Honour gave to it.

KIRBY J: Well, you will have to convince me of that because it does seem to take far too narrow a view of what defence caused or defence related can include. It is not only tasks he had to do as a soldier, that is required. It is also authorised or expected.

MR HANKS: Might I observe that your Honour has done it again. Your Honour has placed the emphasis on those words “had to do” and done that in a way which carries with it a necessary implication that it was a matter of obligation. It might simply be a neutral term, your Honour; a task that he had to do as a soldier. What was it that he had to do as a soldier? What did he do as a soldier? As we understand what the Tribunal was saying, that would define the limits of his defence service.

McHUGH J: You throw the weight of your argument on the phrase “as a soldier” as opposed to what the incidents of the service are.

MR HANKS: Yes.

KIRBY J: Yes, but that does not solve the problem for me, Mr Hanks. I mean, soldier is his category, and therefore the question is: what did he have to do as a soldier; what was he authorised to do as a soldier; what was he expected to do as a soldier? It is not just “had to”.

MR HANKS: Your Honour, our proposition is that the words “had to do” are not used in the sense of what was he required or obliged to do.

KIRBY J: That is how the ordinary English language would – it is something you have to do.

MR HANKS: We would submit, your Honour, that this particular aspect of the English language is not free of ambiguity, it is capable of carrying multiple meanings, and therefore - - -

KIRBY J: I remind myself that one should not be going with a fine toothcomb through words of a Tribunal. It is a busy Tribunal and these things have to be decided quickly, but it just does seem to be applying a rather restrictive test on the critical question that they had to answer.

MR HANKS: Might I ask of myself: what do I have to do as counsel? It is not what I am obliged to do or required to do, but what is it that I do customarily in the course of the practice of my career? That would be an analogy. I might perhaps ask that of anyone on the Bench: what do you have to do as a Judge? Members of the Court might say - - -

KIRBY J: We have to reach a decision and give some reasons and that is it, but we do a little bit more than that.

MR HANKS: Precisely.

KIRBY J: We sit here, we listen tediously to argument day after day and we are always polite - - -

McHUGH J: He is speaking for himself.

KIRBY J: On the listening I am certainly speaking for myself.

MR HANKS: And occasionally your Honour joins in as well, and that is very stimulating.

KIRBY J: You would not want us to be silent; there would be no fun in it.

MR HANKS: No, your Honour. Essentially in the present case, as I think the Court has observed already, the critical question for the Tribunal so far as this injury and the defence service were concerned was whether the intoxication was something that could be said to have arisen out of the defence service or something to which - - -

McHUGH J: I am not sure that is correct. The real question is in effect whether the injury or the fall arose out of. The Commission seemed to have stopped at the intoxication. It would appear that it took it as a given that if the intoxication arose out of the service, then that was the end of the - - -

MR HANKS: It might not be; I accept that, your Honour. I accept that there might be another step that one would have to take.

McHUGH J: Yes, of course there certainly is another step.

MR HANKS: The facts of this case bring that into sharp focus.

McHUGH J: Yes, exactly.

MR HANKS: What is not clear is whether the decision by Mr Roncevich to stand on the trunk and elevate his position above the window and spit out of the window – lean forward, that is – was itself caused or contributed to by the intoxication, or whether it was some other voluntary act.

McHUGH J: That is why it appeared to me that the strongest point in favour of the appellant was in the first sentence of paragraph 10, as to whether or not the Tribunal has too narrowly circumscribed the incidents of employment by saying, “The only links”, whereas I would have thought it was strongly arguable that it was an incident of his service that he go to the mess and drink with this visiting RSM.

MR HANKS: But not an incident of his service that he drink to the point of intoxication.

McHUGH J: That is another question, yes.

MR HANKS: Well, it is a critical question.

McHUGH J: Yes, but not if the Commission has narrowly circumscribed the service, the concept of defence service, because he has to show a causal connection with some incident of the service, and if the Tribunal forecloses that by cutting off an incident, a relevant incident, then arguably it has made a mistake of law.

MR HANKS: I think I need to respond – two responses to what your Honour has put to us. The first is that what the Tribunal has done here is focus on what one might describe as link No 1 or link No 2 in the chain, namely, the intoxication, and to see whether that intoxication is one that can be described as defence caused. It has not - - -

GUMMOW J: There is no notion of contributory negligence, is there, Mr Hanks?

MR HANKS: No, there is not, other than the statutory concepts that have been referred to, I think, by Justice Heerey.

GUMMOW J: Yes.

MR HANKS: But they were not raised and they are not relevant. There is a notion of that which the person does in the private or personal sphere standing outside something that can be attributed to defence service. There certainly is that notion, and your Honour would recall, perhaps, what was said, I think, by the High Court in Goward v The Commonwealth about the circumstances simply providing the setting in which a different operative cause operates.

McHUGH J: Yes, in the language of the philosophers, it is a background condition as opposed to a cause.

MR HANKS: Yes. And there is a similar observation made by Mr Justice Denning, as he then was, in 1947 in a case that is referred to by Justice Mansfield in the appeal book.

KIRBY J: Lord Justice Denning or Justice Denning would not have liked anybody getting intoxicated.

MR HANKS: Well, it was not intoxication - - -

KIRBY J: On such matters, he was pretty uncreative. He confined his creativity to all other cases.

MR HANKS: Yes.

KIRBY J: What is the name of the case?

MR HANKS: The case is – your Honours, I am sorry. I will give your Honours a copy. That might be the most successful way of doing it.

KIRBY J: He did not like unmarried mothers, either.

MR HANKS: The name of the case is Wedderspoon v Minister of Pensions. I thought I would hand up some copies of that. It is a very short case, two and a half pages.

HEYDON J: [1947] 1 KB 562 at 563 to 564.

MR HANKS: Thank you, your Honour.

GUMMOW J: These are cases decided under the prerogative, are they not?

MR HANKS: Yes, but the question is whether this person’s death is attributable to his service in the Navy.

GUMMOW J: The English returned men never managed to get themselves an Act, did they?

MR HANKS: I think that is right, your Honour. It is all done on warrant.

GUMMOW J: Yes.

KIRBY J: It looks like a suicide case, he would not like that either.

MR HANKS: Well, on the facts it was not suicide. This man was in the habit of taking this particular drug to help him sleep. He had a late night in the mess, he went to the sickbay. He was in fact the medical officer on the ship. He asked the sickbay attendant to give him the phial of the drug. He poured some into a glass without measuring it, drank it, went to bed and was found dead the next morning and in those circumstances - - -

GUMMOW J: Well, the attitude is this person is craving the bounty of the Crown. That is the mentality, is it not?

McHUGH J: I notice that Lord Justice Denning said that:

The consequences of such an action are no more attributable to war service than the consequences of drinking too much or smoking too much or playing a game of squash.

Well, that might be a bit hard – that last statement might be hard to reconcile with The Commonwealth v Oliver.

MR HANKS: Of course, but we are not in that territory, your Honour. We are not in the course of employment and it is just a question of whether there is a sufficient encouragement - - -

GUMMOW J: Do we know the terms of the Royal Warrant?

MR HANKS: Look, we do not know anything other than - at this stage, your Honour – I am not able to assist you with anything other than what appears here.

KIRBY J: We know it would not have been drinking because this was the Royal Navy. They do not drink on board, do they?

MR HANKS: The short point is just this proposition which is, we think, well established, that where the - - -

GUMMOW J: We do not know what words he was trying to construe.

CALLINAN J: And also, alcohol is a different – you might regret it – but there is a different tradition in relation to alcohol and you can see it even in this case. Drinks were heavily subsidised in the mess. If that is not an encouragement for people to drink, I do not know what is.

MR HANKS: To come back to this point, your Honour, that - - -

CALLINAN J: I just think that makes the English cases – the warrant as Justice Gummow has put to you – no assistance at all.

MR HANKS: Might I respond to that implicit criticism, your Honour. That is a distinction which is well recognised in the Australian cases - Goward v The Commonwealth is one example. The distinction between an action which can be described as the result of a personal choice which takes place in a setting, even where the setting makes that choice possible. Nevertheless, the fact of a personal choice is sufficient to break the causal relationship that would be required by our legislation.

CALLINAN J: Well, I understand what you are saying - - -

McHUGH J: That statement of Hart and Honore is always trotted out by defendants. It needs a lot of qualification as far as I am concerned.

CALLINAN J: They used to give soldiers cigarettes, used to hand them out for nothing.

GUMMOW J: That has been a potent factor in a number of the lung cancer cases in this area.

MR HANKS: Of course, but we are not dealing with those cases. We are dealing with a man - - -

CALLINAN J: It happened to my father, Mr Hanks. He died of lung cancer. He had been a heavy smoker in the air force during the war - given to him, cigarettes.

MR HANKS: My father-in-law the same, your Honour. We all have these anecdotes, your Honour, and they are - - -

CALLINAN J: It is not anecdotal. It is in all the cases.

MR HANKS: Of course, but we are not dealing with that type of case here. Here we are dealing with a man who went to the mess – let us assume that there was pressure on him to do that, let us assume that it was a condition of his service that he attended the mess, despite the finding, we think, the implicit finding made by the Tribunal – but it was not a condition of his service that he drink to the point of intoxication and we think it is significant that the Tribunal did highlight these aspects of the evidence of the Regimental Sergeant Major. I wanted briefly to take your Honours to the evidence itself that Mr Lee gave. The evidence is highlighted by the Tribunal on pages 53 and 54 of the appeal book and the relevant evidence is found essentially on pages 45 to 46 of the appeal book.

It starts at about line 21, where there is a reference to this being “an informal gathering, a few drinks with a high ranking official”. The critical questions and answers that are put to Mr Lee, we would say, commence at the bottom of that page, where he conceded or agreed that people could leave earlier than the official ending of the function. Then he agreed that alcohol was served at the function, a lot of people would have drunk the alcohol:

If the person was a non-drinker, sir, they would not have been forced to drink alcohol on this occasion, would they?---No.

Then he agreed, “As it always is”, that the amount of alcohol that was consumed by members was a matter for them. Then, if I might take your Honours down to line 27, the question was put:

All right. I guess it goes without saying that no members are ever required to drink alcohol to the point of intoxication at any of these functions?---Only if he wants to.

And it is in that context that it is entirely proper to say that there is no causal connection between defence service and intoxication, because it is a matter of personal choice.

KIRBY J: I understand that entirely, but what of the other argument, that you take a young man at the age of 19, and you put him into barracks, it becomes his life, it is his entire existence. Part of the existence is going to these functions, alcohol is freely available and you cannot be too surprised if occasionally he has too much. That is part of the environment that you create, and if that means he is a bit unstable when he gets on a trunk to spit out of the window, well, it all is part of the culture and environment that you create.

MR HANKS: It was never put to the Tribunal that this incident that occurred on this night was a consequence of years of habituation or addiction to alcohol.

KIRBY J: No, I am not putting it that way. It is not like the cigarette cases. This is part of a whole life experience. You are not in an ordinary job. You do not go home on the tram. You live in the barracks – you do not have to, but he did – and this becomes part of the whole totality of your existence. That includes occasional drinking, including – it may be very occasional – drinking a bit too much.

MR HANKS: We could put it this way, your Honour, that the Army provided a facility, the mess, in which alcohol was cheaper than off the base, and that there was a certain perhaps attitude amongst members of the mess that they drank, but it still remained the fact that drinking to the point of intoxication, as the regimental sergeant major said, was his own choice. If he chose to drink to intoxication, that is what happened. There was - - -

McHUGH J: Yes, but that does not negate the causal connection.

MR HANKS: No, it does not negate it, your Honour, but the Tribunal has found that there is no causal connection. We do not say that it would be impossible for a finder of fact to conclude that there was a causal connection. We do not say that.

McHUGH J: If the worker is doing something that is authorised or expected to do and they are drinking and as a result of it he has too much, after all, he said that he was – he did not use the expression “drunk”, did he, although the Tribunal did - - -

MR HANKS: No, he did not use that expression - - -

CALLINAN J: He said he was inebriated on page 20.

McHUGH J: Yes.

MR HANKS: Yes, he used a number of different expressions but I can take your Honour to the passage where he said, “I fell drunk”.

CALLINAN J: He also said he used to swim through his days in those times.

MR HANKS: He did, yes, but the relevant passage in his evidence is on page 14, at line 37.

McHUGH J: Yes. The case has never been conducted on this basis but the evidence was that he was ironing his greens and it was a job that took some time and it may be that that was a sufficient cause.

MR HANKS: The evidence was he turned the iron on, your Honour. The evidence was, I believe, as follows, that he went up to his room. This was the last thing that he did before retiring every day, as a matter of routine, prepare his uniform for the next day.

McHUGH J: Mr Lee said it took some time to do in those days.

MR HANKS: No, but he said this, your Honour, that he had got no further than turning the iron on when he felt the need to spit so that - - -

KIRBY J: Where is the reference to his being drunk?

MR HANKS: I put it away, I am sorry, your Honour.

HEYDON J: Page 14, line 37.

MR HANKS: Yes, thank you. Page 14, line 37, thank you, your Honour. It is two lines from the bottom of that paragraph. Now, if I might just return to the Tribunal’s reasons. When the Tribunal summarised the effect of Mr Lee’s evidence, particularly at the top of page 54 in the appeal book, it must be understood to have accepted his evidence to that effect and for that reason concluded that there was no causal link between Mr Roncevich’s defence service, including, if it was part of that service, his attendance at the mess, and the intoxication. That is the explanation, we say, for the finding that is found at the beginning of paragraph 10 on page 54.

KIRBY J: It sounds like a novus actus type argument.

MR HANKS: On my part, your Honour?

KIRBY J: I am sorry?

MR HANKS: Does my argument sound like a - - -

KIRBY J: Yes. You say that he breaks the chain of causation by his own act of will, of going beyond that which is a modest – I mean, if you were a very modest drinker like me you would not go beyond one glass and maybe two at the worst, but not everybody is like that in this world.

MR HANKS: It is not a novus actus argument. If we were running the argument that we foreshadowed with Justice McHugh, standing on the tin trunk, raising himself above the safe point on the window, that would be a novus actus argument but we are not running a novus actus argument here. We are simply saying the cause of his intoxication was his own choice, it was not his defence service.

McHUGH J: But it is connected to his employment. As a matter of fact, I must say I regard the finding of fact as hopelessly wrong. It is practically perverse to say it was not caused by his war service, but that is not the question we have to decide. Of course it was. I mean, he was expected to go there and he is drinking. Now, the bar is open for four hours, the drink is cheap, they are entertaining the visiting RSM, but - - -

MR HANKS: Your Honour is giving way to the temptation to make findings of fact.

McHUGH J: No, I am not. I certainly will not be making that finding of fact because it is not open to me to make it, but I am just saying that it seems to me that it is wrong as a matter of fact, but that is not the point. The point seems to me, really – from the appellant’s point of view – is whether or not you can say that the Tribunal disqualified itself from determining the true question of fact by circumscribing too narrowly the incidents of his service which, on the view I was putting to you, is that he should go to the mess and drink with the visiting RSM and if the Tribunal said, “Well, that was part of his service, but, nevertheless, his injury is not connected with that” or, “I find it is not caused by it” – end of case, even if it is a perverse finding of fact. It is this anterior question that concerns me, anyway.

MR HANKS: Yes. The anterior question, even if we – we will give you the answer to that question, the favourable answer. Let us assume that it was an incident of his service to go to the mess and to drink alcohol but it is not an incident of his service that he do so to the point of intoxication. That is a matter, as the evidence was – that is a matter for his personal choice. He chose to do that.

CALLINAN J: It was frowned upon if you drank light beer. Page 16, line 15:

Full strength?---Oh yeah, it’s frowned upon – you’re a wuss if you drank that light stuff.

KIRBY J: What is a wuss?

MR HANKS: I think in Victoria it is a wooz.

KIRBY J: What is it?

McHUGH J: It is you when you drink only one glass of beer.

KIRBY J: I would not fall out of the window.

McHUGH J: This whole case is about men being men, is it not? I mean, he talked about “I’m competing with guys 17, 18 and 19. I’ve got to lead from the front. My pride’s in it. It’s not a question of pain. I’m prepared to suffer the pain. I’ve got to do this, I’ve got to do that. I’m jumping out of planes”.

CALLINAN J: Forty-nine jumps he did as a paratrooper.

MR HANKS: He did, your Honour, after this injury.

CALLINAN J: This is real Clint Eastwood, John Wayne stuff.

MR HANKS: Very romantic, but that was after the injury – forty-nine jumps. All of those are interesting observations, your Honours, but our point is, we think, quite a simple one.

McHUGH J: Yes, it is.

MR HANKS: Consistent with the evidence and consistent with the way in which the Tribunal dealt with that evidence, it concluded the intoxication was not causally connected to his defence service, whatever else one could say about the attendance at the mess, the evidence being that it was a matter of personal choice, and that is sufficient.

McHUGH J: But even Hart and Honoré do not suggest that personal choice alone is sufficient. Their theory is that the free, deliberate and informed act of a person which exploits the situation or the occasion created by the defendant severs the causal connection between the defendant’s act.

GUMMOW J: I do not think either author went out enough, basically.

MR HANKS: That is the second time this week I have heard that comment.

GUMMOW J: The light of the law has experience as well as logic.

MR HANKS: Yes.

KIRBY J: And common sense is the criterion.

MR HANKS: Of course, and here - - -

McHUGH J: Even applying their theory, what about the case of a person who is in a dilemma created by the defendant? You jump off the coach or you stay on it. That is a deliberate and informed act, but it does not break the causal connection, surely.

MR HANKS: Can I resist the temptation to engage in debate on that question with your Honour and come to our case. We think that it is not a complicated case. The man fell out of a window. He says his intoxication was the cause of that. There is a potential debate about whether something he did independent of his intoxication was responsible, but that was not considered by the Tribunal, because it did not need to go that far. It looked at the question of the intoxication. It said the intoxication was not defence-caused, effectively. It did not arise out of, or was not attributable to, his defence service.

McHUGH J: It cut the game off at the pass and did not move onto the - - -

MR HANKS: That is right, yes. As Justice Mansfield said, although the Tribunal did not expressly go on to look at the alternative ways in which the connection might be raised through section 5(c), the findings of fact that it made on that aspect of the case closed the gate on that alternative as well. The only change in environment that was put forward as being responsible for the intoxication and the fall was the milieu in the sergeants’ mess.

KIRBY J: But what do you say about the suggestion that that paragraph incorporates a “but for” test, which is a much easier test to satisfy in causation questions, that if it is - you do not need the causa causans. It is the causa sine qua non, in the old language.

MR HANKS: Sure.

KIRBY J: Even though I try to avoid Latin.

MR HANKS: This is section 70(7).

KIRBY J: I am merely repeating what was put to us by the appellant.

MR HANKS: Yes, where it said that the accident – cutting through some of the language - the:

accident that would not have occurred . . . but for changes in the member’s environment consequent upon his or her having rendered –

defence service.

KIRBY J: Yes. Well, just in terms of the sequence of events, the accident would not have occurred but for his going to the mess and then drinking and that, as I understand it, is how it is put.

MR HANKS: That is not how it was put to the Tribunal or to - - -

KIRBY J: But it is a question of law. It is an application of the provision of the Act.

MR HANKS: What is the change in the environment but for which the accident would not have occurred.

KIRBY J: He goes to a mess, he is expected to be there, there is conviviality, it is part of his service and he drinks.

MR HANKS: Yes.

KIRBY J: And maybe drinks a bit too much on this evening.

MR HANKS: And one still comes up against the objection that the intoxication is a result of his personal choice.

KIRBY J: Well, that may be an answer to the suggestion that it is not defence related, but if you apply a test that it is but for his having rendered defence service in the mess, but for. Now, the question is, is that sufficient to attract the entitlement?

MR HANKS: It would not be sufficient if - - -

KIRBY J: You just repeat your old argument.

MR HANKS: You do.

KIRBY J: You say well - - -

MR HANKS: The same argument applies in this context - - -

KIRBY J: It is not but for, it is but for his individual personal decision to go beyond safe drinking.

MR HANKS: We repeat that argument, and we refer to what was said by Justice Mansfield on this point. Commencing appeal book 70 his Honour dealt with the argument in paragraphs 24 through to 26 on the following page. We understand that his Honour had accurately summarised the argument that was put on this point, and his Honour has dealt with it in a way that we would respectfully adopt. In fact, we say that the alternative way of looking at it, Justice Kirby, does not add anything to the primary way in which the connection with defence service has advanced, in the circumstances of this case, given the evidence before the Tribunal and given the findings made by the Tribunal. Now, I apprehend that I - - -

GUMMOW J: Coming back to what Justice Kirby was putting to you about the inculcation of a method of life. If you go to page 13, line 17:

I had joined the military at 17, had seen no outside life . . . there was no life but the military.

Then you come down a few lines to line 30, alcohol was laid on, a cheap price, et cetera.

MR HANKS: Yes, and in - - -

McHUGH J: Accommodation provided.

GUMMOW J: When you talk about personal choice and read as to Hart and Honoré, one just laughs, frankly.

MR HANKS: Your Honour, there still remains the fact that the commodity is made available, may be made available at a cheap price, but the man is a willing actor. He has free will. He makes his own choice as to how much he will drink.

GUMMOW J: We are back in the philosophy tutorial room. We are not in the Holsworthy barracks.

KIRBY J: Free will gets diminished by the consumption, you see.

MR HANKS: Even this is a matter of common sense, Justice Gummow.

CALLINAN J: But the whole tenor of the evidence is that the pressures to drink would have been almost irresistible.

KIRBY J: You had to have a great will at University, too, to resist a lot of drink. Only a few of us did.

MR HANKS: Some are stronger than others, your Honour.

CALLINAN J: It is an unfortunate culture in many aspects of Australian life. I mean, you would have to be an anchorite monk not to know that it is associated with a great deal of sport in this country, unfortunately. It really is oppressive. And some forms of Australian life, regrettably, are irresistible.

MR HANKS: Your Honour may be broadening the debate here to include much of Australian culture, and not focusing, as Justice Gummow did, on the culture in the Army.

CALLINAN J: I will focus. I promise you I will focus.

MR HANKS: It is to our advantage, in a sense. If, indeed, it is part of the Australian culture to drink more than one should, then there is no peculiarity here about the circumstances of the mess. But we have made our point, I think.

GUMMOW J: Yes, several times.

MR HANKS: I cannot resist coming back to respond to the provocation, your Honour.

GUMMOW J: That is right.

KIRBY J: Can I ask you in relation to that added provision, assume that one took a view that the Tribunal had applied too narrow a test and that therefore it had erred in law and that the Federal Court had failed to correct that, the question then arises to what this Court can and should do. The orthodox view of judicial review was that you then reveal the error and send it back to the fact finder.

MR HANKS: Yes.

KIRBY J: Now, can one avoid that in this horrendous saga by use of the new provision?

MR HANKS: There are too many unresolved questions of fact to do that. That would be our first proposition.

McHUGH J: One problem about the subsection (7) point is that ultimately it depends on the opinion of the Commissioner, and therefore there is a question of opinion involved.

MR HANKS: And in this case that is the opinion of the Tribunal, standing in its shoes.

McHUGH J: So it is not purely objective.

MR HANKS: We understand that the new subsection (7) in section 44 had not been proclaimed as of yesterday, but whether it has been proclaimed this morning while I am on my feet, I do not know.

KIRBY J: Well, it says in the transitional provision that it only applies in relation to an appeal instituted after the commencement of this item.

MR HANKS: Then we can forget about investigating it any further.

McHUGH J: Yes, thank you Mr Hanks. I am sorry, I thought you had finished.

MR HANKS: Your Honour has seen what we have said in our written submissions about the reasons for decision conforming to what the Act required. Thank you, your Honours.

McHUGH J: Thank you. Yes, Mr De Marchi.

MR DE MARCHI: Your Honour, if I could pick up a number of the points that my friend has raised. Perhaps the most important one is the Wedderspoon citation and the adoption of that case by the judge at first instance on page 68 of the appeal book. You will see there that allowing that interpretation of what are “personal and domestic activities” on the part of the appellant would, of course, bring these types of cases back to English law rather than Australian law. In relation to the issue of Goward v The Commonwealth, I note your Honour, that McTiernan in that case said that - - -

McHUGH J: Justice McTiernan.

MR DE MARCHI: Justice McTiernan, your Honour, I beg your pardon:

There is no evidence that any duty of the employment brought the deceased to the place where the train ran him down. If there were such evidence, it would be an inescapable conclusion that the occasion was within the protection of the Act.

At page 366:

If there were evidence on which to find that the deceased was run down by a train when he was crossing the rails in the course of such a journey, I think that it could be powerfully argued that his employment materially contributed to the fatal accident by which he met his death.

There was absolutely no evidence at all in Goward as to how it occurred that Mr Goward met his demise on that railway track. We do have here the evidence of what had occurred and the connection of that evidence with the circumstances of the appellant’s defence service.

Your Honour, to conclude, we say that the Tribunal did in fact in that paragraph 10 foreclose the circumstances of investigation as to whether the incident arose out of or could be attributable to defence service, and most certainly foreclosed the section 70(5)(c) argument. That was never considered by the Tribunal. We say that the matter is clearly an error of law and should be remitted to the Tribunal for determination according to law, unless, of course - - -

KIRBY J: Now what consequence does that have for costs? Are you entitled to costs right through?

MR DE MARCHI: We say that we are, your Honour, yes, to costs of the appeal.

KIRBY J: You say, having raised a point of law, if it is such, that the failure of the Federal Court to correct it at all levels entitles you to costs at all levels.

MR DE MARCHI: Yes, your Honour.

McHUGH J: Yes. Thank you, Mr De Marchi.

MR DE MARCHI: If the Court pleases.

McHUGH J: The Court will reserve its decision in this matter. Justice Kirby has raised an issue about Azzopardi. Perhaps I should extend the time for those submissions to 21 days. You will serve a copy on the other side and, of course, Mr Hanks, you - - -

KIRBY J: Of course, Mr Hanks did not, in the end, embrace Azzopardi and therefore it looms less of an iceberg in my mind that otherwise it might have.

McHUGH J: Yes, the Court will reserve.

AT 12.11 PM THE MATTER WAS ADJOURNED