FEDERAL COURT OF AUSTRALIA

Hananeia v Secretary, Attorney-General’s Department [2016] FCAFC 36

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed

2.    The parties file submissions on costs within seven (7) days and the Court to decide costs on the papers, unless the parties otherwise agree the question of costs and file a minute of consent orders.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GILMOUR J:

1    The applicant suffered harm to his mental health by reason of his contracting major depressive illness and post-traumatic stress disorder (PTSD) causally related to his witnessing the aftermath of two bomb explosions inside and immediately outside the Sari Club, Kuta, in Bali, Indonesia, on 12 October 2002.

2    The applicant appeals, pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), from the decision of the Administrative Appeals Tribunal (AAT) in affirming a decision of the Social Security Appeals Tribunal (SSAT) to refuse his claim for an Australian Victim of Terrorism Overseas Payment (AVTOP) under Pt 2.24AA of the Social Security Act 1991 (Cth) (the Act) in respect of the harm he had suffered.

3    In 2013, the bombings at the Sari Club were declared by the Prime Minister as a declared overseas terrorist act. The central issues in the appeal are whether, for the purposes of s 1061PAA(2) of the Act, the applicant was in the place where the terrorist act occurred and was harmed as a direct result of that terrorist act.

The statutory framework

4    As the Revised Explanatory Memorandum to the Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Bill 2011 (Cth) made clear its provisions relevantly were to establish a framework for the provision of financial assistance for Australians who are injured overseas as a result of terrorist acts. It is quite confined in its reach. It does not cover non-Australians, for example, members of local police, fire, ambulance or rescue services.

5    Section 1061PAA of the Act provides:

Qualification for AVTOP

(1)     A person is qualified for an Australian Victim of Terrorism Overseas Payment if:

(a)     the person is a primary victim or a secondary victim of a declared overseas terrorist act; and

(b)     the person and the person’s close family members were not involved in the commission of the terrorist act; and

(c)     the person:

(i)    is an Australian resident on the day the terrorist act occurred; or

(ii)     is covered by a determination under subsection (6).

Note: For declared overseas terrorist act see section 35B.

Meaning of primary victim

(2)     A person is a primary victim of a declared overseas terrorist act if the person: (a)     was in the place where the terrorist act occurred; and

    (b)     was harmed (within the meaning of the Criminal Code) as a direct result of the terrorist act.

Meaning of secondary victim

    (3)     A person is a secondary victim of a declared overseas terrorist act if the person is a close family member of a person who:

    (a)     was in the place where the terrorist act occurred; and

    (b)     died, before the end of 2 years starting on the day the terrorist act occurred, as a direct result of the terrorist act.

Meaning of close family members

(4)     The following are a person’s close family members:

(a)     the person’s partner;

(b)     the person’s child;

(c)     the person’s parent;

(d)     the person’s sibling;

(e)     the person’s legal guardian.

Meaning of involved

(5)     A person was involved in the commission of a declared overseas terrorist act if the person:

    (a)     aided, abetted, counselled or procured the terrorist act; or

    (b)     induced the terrorist act, whether through threats or promises or otherwise; or

    (c)    was in any way (directly or indirectly) knowingly concerned in, or a party to, the terrorist act; or

    (d)     conspired with others to effect the terrorist act.

Ministerial determination

(6)     The Minister may, by legislative instrument, determine a specified class of persons for the purposes of subparagraph (1)(c)(ii).

6    The phrase “declared overseas terrorist act” is defined in s 23(1) of the Act to mean:

a terrorist act in respect of which there is a declaration under subsection 35B(1).

7    Section 23(1) also relevantly provides:    

terrorist act has the same meaning as in subsection 100.1(1) of the Criminal Code.

8    Section 35B of the Act relevantly provides:

(1)    The Prime Minister may, by legislative instrument, declare that a terrorist act that occurs outside Australia is a declared overseas terrorist act.

9    Section 1061PAF(1) and (2) provides:

AVTOP Principles

(1)    The Minister must, by legislative instrument, determine the principles (the AVTOP Principles) to be applied for the purposes of determining the amount of an AVTOP payable to a person in relation to a declared overseas terrorist act.

(2)    Without limiting subsection (1), the AVTOP Principles may provide that the following factors are to be taken into account when determining the amount of the payment:

(a)    for a primary victim:

(i)    the nature of the injury or disease suffered as a direct result of the terrorist act; and

(ii)    the duration of the injury or disease; and

(iii)    the impact of the injury or disease on the person’s bodily and mental functions; and

(iv)    the impact of the injury or disease on the person’s life; and

(v)    the likelihood of the person suffering future loss, injury or disease as a direct result of the terrorist act; and

(vi)    the circumstances in which the injury or disease was incurred; and

(vii)    whether the person was directed by an official of Australia or a foreign country not to go to the place where the terrorist act occurred;

(b)    for a secondary victim in relation to a close family member who has died:

(i)    whether the person was dependant on the close family member; and

(ii)     the nature of the relationship between the person and the close family member; and

(iii)     the circumstances in which the close family member died; and

(iv)    whether the close family member was directed by an official of Australia or a foreign country not to go to the place where the terrorist act occurred; and

(v)    whether there are other persons who have made a claim for an AVTOP as a secondary victim in relation to the close family member; and

(vi)    if there are such other secondary victims and the person and each of the other secondary victims agree on the amount of the AVTOP that each should be paid--that agreement; and

(vii)    if there are such other secondary victims and the person and each of the other secondary victims have not agreed on the amount of the AVTOP that each should be paid--whether the person has also made a claim as a secondary victim of the terrorist act in relation to another close family member;

(c)    for a primary victim or a secondary victim:

(i)    whether there was travel advice on an Australian government website advising against travelling to the foreign country, region or place where the terrorist act occurred; and

(ii)    whether the person has been paid or is likely to be paid an amount by the Commonwealth, a State, a Territory, a foreign country or any other person or entity in relation to the terrorist act.

10    Section 100.1(1) of the Criminal Code (being the Schedule to the Criminal Code Act 1995 (Cth)), defines “terrorist act”:

terrorist act means an action or threat of action where:

(a)     the action falls within subsection (2) and does not fall within subsection (3); and

(b)     the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

(c)     the action is done or the threat is made with the intention of:

(i)     coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or

(ii)     intimidating the public or a section of the public.

11    Section 100.1 of the Criminal Code also provides:

(2)     Action falls within this subsection if it:

(a)     causes serious harm that is physical harm to a person; or

(b)     causes serious damage to property; or

(c)    causes a person’s death; or

(d)     endangers a person’s life, other than the life of the person taking the action; or

(e)     creates a serious risk to the health or safety of the public or a section of the public; or

(f)     seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:

(i)     an information system; or

(ii)     a telecommunications system; or

(iii)     a financial system; or

(iv)     a system used for the delivery of essential government services; or

(v)     a system used for, or by, an essential public utility; or

(vi)     a system used for, or by, a transport system.

(3)     Action falls within this subsection if it:

(a)     is advocacy, protest, dissent or industrial action; and

(b)     is not intended:

(i)     to cause serious harm that is physical harm to a person; or

(ii)     to cause a person’s death; or

(iii)     to endanger the life of a person, other than the person taking the action; or

(iv)     to create a serious risk to the health or safety of the public or a section of the public.

(4)     In this Division:

    (a)     a reference to any person or property is a reference to any person or property wherever situated, within or outside Australia; and

    (b)    a reference to the public includes a reference to the public of a country other than Australia.

12    Section 4(1) of the Criminal Code Act 1995 (Cth) provides as follows:

(1)    Expressions used in the Code (or in a particular provision of the Code) that are defined in the Dictionary at the end of the Code have the meanings given to them in the Dictionary.

13    The Dictionary at the end of the Criminal Code includes the following relevant definitions:

harm means physical harm or harm to a person’s mental health, whether temporary or permanent. However, it does not include being subjected to any force or impact that is within the limits of what is acceptable as incidental to social interaction or to life in the community.

harm to a person’s mental health includes significant psychological harm, but does not include mere ordinary emotional reactions such as those of only distress, grief, fear or anger.

The Prime Minister’s declaration

14    The Prime Minister made the Social Security (Declared Overseas Terrorist Act) Declaration 2013, under s 35B(1) of the Act, on 20 September 2013 (the Terrorist Act Declaration). Clause 2 of the Terrorist Act Declaration provided that it commenced on 21 October 2013. Clause 3 of the Terrorist Act Declaration contained definitions. These included that “terrorist act” had the same meaning as in subs 100.1 of the Criminal Code.

15    Clause 4 of the Terrorist Act Declaration declared seven named terrorist acts to be declared overseas terrorist acts for the purposes of s 35B(1) of the Act. For present purposes only the second numbered terrorist act is relevant. This was described as:

(2)    The bombings at Paddy’s Bar on Jelan Legian, Kuta, at the Sari Club, Kuta, and in the vicinity of the US Consulate, Renon, Denpasar, in Bali, Indonesia on 12 October 2002.

16    It is only the Sari Club bombings on 12 October 2002 that are relevant to this application.

The AAT decision

17    The AAT concluded that the applicant was not a “primary victim”, as defined in s 1061PAA(2) of the Act, and therefore did not qualify for an AVTOP. A person is a primary victim of a declared overseas terrorist act if the person was in the place where the terrorist act occurred and was harmed as a direct result of the terrorist act: s 1061PAA(2) of the Act. The two requirements are conjunctional.

18    The AAT concluded that the applicant was not in the place where the terrorist act occurred, or its close proximity: AAT reasons at [40]-[41]. It further concluded that the harm he suffered was not as a direct result of the terrorist act: AAT Reasons at [44].

19    As to the finding of fact concerning “place”, it held that s 35B(1) of the Act necessarily authorises the Prime Minister to specify not only the “action or threat of action” which is declared to be a “declared overseas terrorist act” but also “the place or location where the relevant “terrorist act” occurred and the date on which it occurred: at [38]. Thus, it found that the declaration relevantly declared “the act”, which was the bombings; the “place”, being the Sari Club, Kuta; and the “date”, being 12 October 2002.

20    It followed, the AAT concluded, that, as the applicant was at the Adi Dharma Hotel, which was 600 metres in a straight line and 1.9 kilometres by the most direct route from the Sari Club, when the bombings occurred, he was not, for the purposes of s 1061PAA(2) of the Act, “at the Sari Club, Kuta”, which was the “place where the terrorist act occurred”: at [39]-[41].

21    As to the applicant’s harm not being “as a direct result of the terrorist act” the AAT observed that it was unnecessary to consider this question but nonetheless went on to conclude that the harm was not a direct result of the terrorist act. This was so, it reasoned, first, because he was not in the place where the terrorist act occurred and second, that he had voluntarily and unnecessarily attended the place, the Sari Club, after the terrorist act had occurred. It was his own actions in doing so which, in effect, intervened, so as to deprive the harm he suffered as being the direct result of the terrorist act: at [44].

The appeal

22    The appeal concerns whether the AAT misconstrued ss 23(1) and 1061PAA of the Act and thereby asked itself the wrong question causing it to fail to exercise, or properly exercise, its jurisdiction.

The question of law

23    There are two grounds, namely:

(a)    did the AAT misconstrue the Act by finding that the declaration by the Prime Minister determined the place where the terrorist act occurred (ground 1)?

(b)    did the AAT misconstrue the Act by finding that a declared terrorist act that was described as bombings did not include the immediate aftermath of the bombing (ground 2)?

24    I will deal with both grounds in a composite manner.

25    The AAT’s conclusion at [38], that s 35B of the Act necessarily authorises the Prime Minister to specify not only the act or threat of action but also the place or location of where the terrorist act occurred and the date on which it occurred is an error of law. The conclusion misstates the effect of the provision that empowers the Prime Minister, by legislative instrument, “to declare that a terrorist act that occurs outside Australia is a declared overseas terrorist act”. The AAT used the verb “to specify”, in context, meaning, it seems “to declare” within the power conferred by s 35B. The declaration is directed to the “terrorist act”. The terrorist act, in this case, involved the explosions of two bombs.

26    The term “terrorist act” has the meaning in s 100.1(1) of the Criminal Code. It means an action or threat of action of the kind there described. The definition is not concerned with the time or place of the action. It is concerned only with the action itself. Section 35B does refer to the location of the terrorist act but only in a broad and generic way: a terrorist act “that occurs outside Australia”. Accordingly, and in order to identify a particular action for the purposes of a declaration, it will ordinarily be the case that a description of time and location will be employed. However, the subject of the declaration is the terrorist act itself. Section 35B does not empower the Prime Minister to declare “the place where the terrorist act occurred” for the purposes of s 1061PAA(2)(a).

27    Upon this premise the Tribunal directed itself to the question whether the applicant was “in the place where” the relevant “declared overseas terrorist act” occurred, namely “at the Sari Club, Kuta”: at [39]-[40]. As he was at the Adi Dharma Hotel at the time of the explosions it concluded that he was not at the place where the terrorist act occurred.

28    This was to misdirect itself as to the statutory question posed by s 1061PAA(2)(a). Whether or not the applicant was in the place where the terrorist act occurred is a question of fact.

29    The applicable definition of a “terrorist act”, as stated in the Criminal Code, has a number of elements. One element is whether it causes serious harm or endangers life or creates a serious risk to public health or safety. These matters require an evaluation of the consequences of the action.

30    Terrorist acts may occur over a long period, for example, where persons are held hostage for many hours, even days, and as a direct result of it suffer harm whether physical or psychological. The harm may not occur immediately but may nonetheless be established to have been as a direct result of being held hostage. The terrorist act in this case lasted for a very short period of time although the impact of the explosions was devastating to people and property across a wide area.

31    The terrorist act was the explosion of the bombs and their impact. It “occurred”, meaning it “took place” or “happened” (Macquarie Dictionary Sixth Edition) as a matter of fact, over a very wide area, which reached well beyond the physical confines of the Sari Club. It is undisputed that one of the consequences was that the explosions caused windows of the Adi Dharma Hotel to shatter and that the applicant, who was in this hotel at the time, heard the explosions, saw the “mushroom” cloud they created, felt the shock waves from them as well as sensing their smell.

32    I find, for the purposes of s 1061PAA(2)(a), that the applicant “was in the place where the terrorist act occurred” when he was at the Adi Dharma Hotel. The AAT was in error in concluding that, for the purposes of this provision, the place of the bombings was declared by the Prime Minister to be at the Sari Club, Kuta. As a result it failed to properly exercise its jurisdiction to consider whether the applicant, in fact, was in the place where the terrorist act occurred.

33    The Act does not expressly state that a person must be in the place where the terrorist act occurred at the time when it occurred in order to qualify for an AVTOP. The applicant contends that this is implied in the provision. The respondent accepted that this was so. However, the applicant further contended, this extended to the immediate aftermath of the bombing.

34    It is unnecessary, in the absence of full argument, to reach a concluded view as to whether the legislature should be taken to have intended to confine the provisions under s 1061PAA(2)(a) in a temporal sense, namely, requiring that the applicant for an AVTOP was, at the time of the terrorist act, in the place where it occurred. This construction would require s 1061PAA(2)(a) to be read as though it required the person to be in the place where and when the terrorist act occurred.

35    It is sufficient, for present purposes, that I have found that the applicant was in the place where the terrorist act occurred at the time it occurred. It is arguable, for example that an Australian who enters the place where the terrorist act occurred, after it occurred, was nonetheless, in the place where the terrorist act occurred for the purposes of the provision. Such, arguably, might be the case involving a person who hears of the terrorist act and goes to the place it occurred, after it occurred, in order to render aid and assistance to a friend or family member.

36    However, I reject the applicant’s additional contention. Assuming that there is a temporal requirement it would be an unwarranted gloss to qualify this by using an expression such as “aftermath”, immediate or otherwise.

Direct causation

37    The applicant urged the Court to reach its own conclusion as to causation, as it may under s 44(7) of the AAT Act, in the event that it is persuaded that the AAT was in error in finding that the applicant was not in the place where the terrorist act occurred. The respondent accepted, correctly, that it was open to the Court to do this.

38    The applicant, before the AAT, had contended that he was in the place where the terrorist act occurred and that he was harmed as a direct result of that act. He adduced evidence as to both issues. Accordingly this Court is in as good a position to consider that evidence, upon the question of causation, as was the AAT.

39    The Court, in such circumstances, where it is able to accede to an applicant’s invitation, ought to resolve such an issue. I am satisfied that this should be given effect. Both parties made fulsome submissions as to the applicable legal principles informing the proper construction of the “expression is harmed … as a direct result of the terrorist act” as well as to those facts which should be found and to which the legal principles should be applied.

The AAT error

40    I will, before doing so, explain the erroneous approach adopted by the AAT upon this question.

41    The AAT dealt with this issue in conclusion at [44] as follows:

That conclusion makes it unnecessary for the Tribunal to consider whether para (b) of s 1061PAA(2) of [the Act] is satisfied in the applicant’s case. Suffice it to say that the Tribunal accepts the respondent’s submission to the effect that para (b) of s 1061PAA(2) is also not satisfied because the applicant was not “in the place where” the relevant terrorist act occurred at the time when it occurred and the harm to his mental health which he subsequently suffered was suffered by him as a result of his voluntarily and unnecessarily attending the site of that terrorist act after it had occurred, not “as a direct result of” that terrorist act itself.

42    Contrary to the applicant’s submission, this was a finding made by the AAT.

43    The conclusion that the harm suffered by the applicant was not as a direct result of the terrorist act was, in part, dependent upon the AAT’s erroneous conclusion that he was not in the place where the terrorist act occurred. That finding in itself concerning s 1061PAA(2)(a) was fatal to the applicant’s application.

44    Nonetheless, the AAT considered the additional limb under s 1061PAA(2)(b) and found that the harm he suffered was not as a direct result of the terrorist act because he was not in the place where that act occurred and because the harm he subsequently suffered was as a result of his voluntarily and unnecessarily attending the site (place) of the terrorist act after it occurred. Accordingly, this finding too is infected by the same legal error attaching to the first finding.

Relevant authorities

45    There are cases in which the expression “direct result of” or expressions to similar effect, have been considered. They arise in the context of different legislation but nonetheless provide some assistance to this case. The Victorian Court of Appeal in Kaplan v Lee-Archer (2007) 15 VR 405 considered under s 85B of the Sentencing Act 1991 (Vic) (Victorian Sentencing Act) the meaning of a person who has suffered injury “as a direct result of” an offence.

46    Justice Buchanan at [28], with whom Vincent and Nettle JJA concurred, was of the view that the word “direct” was inserted to “emphasise that the crime is to play a significant role in bringing about the compensable injury”.

47    The judgment of Nettle JA (as his Honour then was) also informs the question here. His Honour referred to the following passage from the judgment of Mason and Wilson JJ in Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666 at 670-1 upon the question of the meaning of “by or as a result of” in s 3(1) of the Criminal Injuries Compensation Act 1972 (Vic).

The opening words of s 3(1) provide for two different kinds of situation. The first is where the person concerned was injured or killed “by the criminal act” and the second is where the injury or the death is “as a result of the criminal act”. Thus a person who has been assaulted and suffers physical injury is properly described as having been “injured by the criminal act of another person”. That expression may well be capable of a wider meaning but it is not necessary for present purposes to pursue that question. The second kind of situation, where the person concerned was injured or killed as a result of the criminal act, would cover the case of a person who was assaulted and suffered physical injury but it also covers a wider field as the form of the sub-section and the words themselves indicate. Thus, they would cover a person who was a witness to a criminal act such as an assault upon a third person and suffered shock to an extent which produced a heart attack. The two expressions “by” and “as a result of” are not mutually exclusive, and involve a substantial degree of overlap. Indeed the use of the two expressions may have been no more than caution on the part of the draftsman to ensure that what might perhaps have been thought to be “indirect” results were brought within the terms of the section.

(Emphasis added.)

48    Justice Nettle at [56] was of the opinion that “as a direct result of the offence” in s 85B of the Victorian Sentencing Act was used in the same sense as the expression used in Fagan, concluding that it is an injury “that is judged as a matter of fact, according to common sense and experience, to have been caused by the offence”.

49    His Honour’s touchstone of “common sense and experience” draws from cases on common law negligence upon what is required to establish causation such as March v E & M.H. Stramare Pty Limited (1991) 171 CLR 506 at 515 and 522-3 and Medlin v The State Government Insurance Commission (1995) 182 CLR 1 at 6-7. His Honour added three qualifications to this approach none of which have relevance here.

50    The Court of Appeal in a similar case, R v Foster [2008] QCA 90, considered the meaning of “as a direct result of the offence” in s 21B(1)(d) of the Crimes Act 1914 (Cth) which provided for reparation to be made to a person who suffers loss as a direct result of the offence. Justice McMurdo (Mackenzie AJA and Chesterman J agreeing) held that to satisfy the requirement there had to be “a sufficiently direct connection” or a “close or significant connection” between the offence and the loss: [71] and [74].

51    This formulation, her Honour said at [74] was consistent with the interpretation of the analogous phrase in Kaplan.

This Court’s findings

52    The question whether the applicant’s harm was the direct result of the bombing at the Sari Club is a question of fact. Plainly, harm may be caused to an Australian as a result of a terrorist act but not as a “direct result” of that act. Whether or not the harm caused is as a “direct result” of the terrorist act calls for an evaluation of the circumstances which led to the harm being suffered. The respondent, before the AAT and this Court, conceded that there was a “causal relationship between [the applicant’s] arriving at the site of the Sari Club shortly after the bombing at the Sari Club and witnessing the aftermath thereof and his subsequently suffering that harm”. However, he puts in issue that the harm was suffered as a “direct result” of the terrorist act.

53    I will now set out relevant findings of fact of the AAT which are not in dispute as well as my own finding on the issue of direct causation by reference to the evidence and to my primary finding that the applicant was in the place where the terrorist act occurred when it occurred.

54    As previously mentioned, at the time when the bombings at the Sari Club occurred on 12 October 2002, the applicant was at the Adi Dharma Hotel which is 600 metres in a straight line from the Sari Club although the shortest distance by road between the two places is approximately 1.9 kilometres.

55    The applicant heard two explosions at approximately 11.00 pm on 12 October 2002 and then hurried to the bomb site at the Sari Club filming what he saw en route with a video camera and arriving about 10-15 minutes later.

56    The applicant returned to the Adi Dharma Hotel, picked up another camera, with night vision, and returned to the Sari Club where he continued to film. He remained there filming for a number of hours returning to his hotel at about 1.00 am or 2.00 am or 3.00 am depending which version of his statements to different Tribunals is accurate, if any. He returned to the Sari Club again, at dawn on 13 October 2002 and in the morning of 14 October 2002 filming for a few hours on each occasion before leaving Bali that day.

57    I find that his overarching purpose in going, on four separate occasions, to the Sari Club, across three days, after the explosions, was to film the carnage and devastation as well as the work of the rescue services.

58    That he attended the Sari Club on four separate occasions over a number of days was not exposed by the applicant in his written evidence. Rather it was elicited in cross-examination. His written evidence failed to mention the last three occasions.

59    The applicant’s written evidence before the AAT was as follows. He was at the Adi Dharma Hotel in the company of some other hotel guests, two of whom had left to go to the Sari Club a few minutes before the explosions. He had not met them before or since.

60    When the bombs exploded it was the loudest sound he had ever heard and he could not imagine a louder or more terrifying sound. He felt the shockwave from the blast go straight through him. There was a powerful gust of wind from the blast and the shockwave was semi-visible. Windows nearby shook violently. There was a large smoke plume, a bright orange glow in the sky and a horrible chemical smell that he could taste in his mouth and throat.

61    At that moment he was shocked, confused and fearful.

62    The girls in the group left the hotel running towards the blast very upset and concerned about their two friends who had left not long before the bombs had gone off.

63    Not long after the blast he put his video camera on. “Initially” he went out with the girls to look for their friend but that he kept filming because he knew something terrible had occurred.

64    He kept the camera going for nearly the rest of the night.

65    He had been given the camera to record his holiday in Bali.

66    He went towards the Sari Club. In the first 5 minutes of travel he saw that there were damaged buildings. He concluded that a bomb had gone off. People were running in the opposite direction. There were injured people everywhere. They had looks of shock and terror on their faces. There were pieces of human bodies scattered around along the journey. There was fire and rubble everywhere and power lines down. After about 10 to 15 minutes he arrived at the Sari Club. He saw the devastation, damage, physical injury and death. Somewhere along his journey to the Sari Club he lost contact with the two girls.

67    He did not know how to render medical assistance but gave some people verbal assurance that they would be alright.

68    Upon any objective view, his evidence was generally unreliable. I have carefully considered the evidence given by the applicant under cross-examination before the AAT. His testimony was conflicting as between his written evidence there and evidence given to the SSAT. The conflicts were not insignificant and concerned factual issues, including, why he attended the Sari Club after the explosions, how many times he attended there, whether he actually helped any victims, and the gender of the persons he was with at his hotel before the explosions occurred.

69    His explanations for these internal conflicts in his evidence, he stated, were due to his emotional state and other people’s misinterpretation of what he said. It is difficult to accept the latter reason as it was the evidence he gave in cross-examination in the AAT, not some other person’s interpretation of it.

70    The conflicts cannot be reconciled. His testimony in respect to important matters as well as separate written statements made by him and tendered in the AAT and the SSAT respectively was at best unreliable.

71    Although I have found that the applicant was in the place where the terrorist act occurred I find that the harm caused to him was not as a direct result of the terrorist act.

72    I find that he suffered no harm whilst at the Adi Dharma Hotel as a direct result of the bombs exploding. Indeed he has never made such a claim.

73    I find that his overarching purpose in travelling nearly two kilometres on foot on four occasions to get to the Sari Club was to take film footage of the devastation and carnage as well as the efforts of the rescue services. There was no need for him to do this. It was his personal decision. He deliberately placed himself in a position where he might potentially be harmed either physically or psychologically. Unsurprisingly, other people on the night of the bombings, as he stated, were fleeing in the opposite direction. His desire to film extended over a very lengthy period during which he returned to his hotel to get another camera with night vision. He filmed after that for approximately two hours. He returned again about dawn to film yet again and then again the following day.

74    He did not assist the two girls to find their friend. His pursuit of filming the devastation and carnage resulted in his losing contact with them. If he had not decided to attend at the Sari Club repeatedly to film then he would not have been harmed. His decisions to do so, individually and in combination, broke the chain of direct causation between the terrorist act and the harm he suffered. It could not be said, as a matter of common sense or experience that the harm he suffered was as a direct result of the terrorist act. There was not a close connection between the terrorist act and the harm suffered.

Conclusion

75    I would dismiss the appeal with costs.

Associate:

Dated:    11 March 2016

REASONS FOR JUDGMENT

BARKER J:

76    I have had the advantage of reading in draft the separate reasons for judgment of Gilmour J and Bromberg J on this appeal, pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), from a decision of the Administrative Appeals Tribunal (AAT) affirming a decision of the Social Security Appeals Tribunal refusing the applicant’s claim for an Australian Victim of Terrorism Overseas Payment (AVTOP), under the Social Security Act 1991 (Cth) (the Act), in respect of post-traumatic stress disorder (PTSD) and other psychological harm suffered by him following the bomb explosions at the Sari Club, Kuta in Bali, Indonesia, on 12 October 2002.

77    Gilmour J has set out the statutory framework under which a person is qualified for an AVTOP, the Prime Minister’s Social Security (Declared Overseas Terrorist Act) Declaration 2013 declaring the bombings at the Sari Club to be a “declared overseas terrorist act” for the purposes of s 35B(1) of the Act, and the terms of the AAT decision now under appeal. His Honour has also provided factual background to the circumstances in which the applicant came to suffer harm. I do not need to repeat these matters.

78    In essence, the appeal involves two issues:

(1)    whether the AAT misconstrued the Act in finding that the applicant was not “in the place where the terrorist act occurred”; and, if so,

(2)    whether the AAT also erred in finding (if, indeed, it did make such a finding) that the applicant did not suffer harm as a direct result of the terrorist act.

79    In the event that the AAT is held to have erred in both of these respects, a third issue arises as to whether this Court should decide the factual question of whether the applicant did suffer harm as a direct result of the terrorist act, or refer that question back to the AAT for determination.

Was the applicant “in the place where the terrorist act occurred”?”

80    Generally, for the reasons given by Gilmour J at [25]-[36] of his Honour’s reasons for judgment, I agree that the AAT erred in its determination of the question of whether the applicant was in the place where the terrorist act occurred.

81    As Gilmour J points out, at [25]-[33], ultimately the question is one of fact, and is not to be determined by construction of the Declaration. The Declaration identifies the terrorist act in question, including by reference to its time and location, but is not determinative of “the place where the terrorist act occurred” for the purposes of para (a) of s 1061PAA(2) of the Act. That expression must be construed according to its own terms, in the context of the Act and its objectives, and any relevant extraneous materials, and not simply by reference to the terms of the Declaration.

82    This conclusion is supported by the terms of the Revised Explanatory Memorandum to the Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Bill 2011 (Cth) that inserted Pt 2.24AA and related sections into the Act, which sought to explain what the expression in proposed para (a) meant:

Paragraph (2)(a) provides that the person must be in the place where the terrorist act occurred. The intention of paragraph (2)(a) is to disqualify persons who have watched or heard of the event through any form of public media from making a claim. Although they may be distressed by observing or hearing of the event, this is not enough to qualify for benefits.

The person must be physically ‘in a place’ where the overseas terrorist act occurs. This could be in the hotel foyer, an adjacent carpark or across the road. However there must be close proximity to the overseas terrorist act.

83    Thus it may be seen that the expression has, and is intended to have, its own operation independent of the Declaration, and that the parliamentary intent was for the benefit available under the Act to be available not only to those physically “in a place” where a terrorist act occurs, but also those in “close proximity” to that act. Just what “close proximity” means is itself open to debate and construction but no doubt involves questions of fact and degree. Despite the examples provided in the Revised Explanatory Memorandum, the ambit of that expression must depend on the facts and circumstances of each terrorist act declared under the Act.

84    In circumstances where the direct effects of the terrorist act may have been experienced in a radius well beyond the narrow compass of what the AAT in this case considered to be in “close proximity” to the Sari Club, the “place” may not be immediately adjacent or contiguous to the bomb site. It may well include a place further afield where a person directly experiences the bombings. In this instance, the applicant did not have some vague awareness, for example from media reports, of something untoward having occurred at some distant place, but directly experienced the bombings at the Adi Dharma Hotel where he was staying: he heard, felt and even, in a sense, “saw” the Sari Club explosions; he smelt the acrid fumes that immediately followed them; he heard windows shattering; and windows at the Adi Dharma hotel were blown out by the explosions.

85    By narrowly defining “the place” primarily by reference to the terms of the Declaration, the AAT failed to approach the construction of the statutory expression in this way. In so doing, it erred as alleged in grounds 1 and 3 of the notice of appeal filed 10 June 2015.

86    In these circumstances, I do not need to dwell on the alternative argument made on behalf of the applicant in ground 2, that the AAT erred in finding, in effect, that a terrorist act was a singular event that occurred at a point in time and did not include its “aftermath”. I should say, however, I find it difficult to comprehend that a “declared overseas terrorist act” under s 35B of the Act includes such an uncertain concept as the act’s “aftermath”, or that the act “continues” in some way after it has occurred. What happens after the act cannot be considered the act. It will always be a question of fact when the act ended.

87    The questions of substance to be asked and answered in a case such as the present are those identified by s 1061PAA(2)(a) and (b), namely, whether a person was in the place where the terrorist act occurred and, if they were, whether that person was harmed as a direct result of the terrorist act.

was the applicant harmed as a direct result of a terrorist act?

88    I agree with Gilmour J, at [41] and [42] of his Honour’s reasons for judgment, that the AAT did in fact make a finding that the applicant was not harmed as a direct result of the terrorist act, notwithstanding the AAT considering that that it was “unnecessary” to determine whether para (b) of s 1061PAA(2) was satisfied in the applicant’s case due to the AAT’s earlier conclusion the applicant was not in the place where the terrorist act occurred.

89    I also agree with Gilmour J, at [44] of his Honour’s reasons, that this further finding is also infected with error because, on its face, it relies on, or is bound up in, the AAT’s prior erroneous finding as to “place”.

90    In these circumstances, the question is whether this Court should decide the question of fact raised by para (b) or refer it back to the AAT for determination. The Court’s power to adopt either course is provided by s 44(5) and (7) of the AAT Act.

91    At least two issues arise in answering this question: firstly, the ambit of the “direct result” test, which was not considered in any detail by the AAT; and secondly, whether the Court is able, on the facts found or evidence led in the AAT, to make the factual determination required by reference to the correct test.

92    In this case, sending the fact finding exercise back to the AAT after this Court has construed the phrase “as a direct result of”, will only result in extra delay and expense in finalising the matter and a possible further appeal from the AAT on questions of law following such fact finding. In these circumstances, it may generally be agreed that little is to be gained by the exercise and this Court would be best advised to finalise the matter. Senior counsel for the applicant has encouraged the Court to take this course of action. He submitted that the Court should decide whether the applicant is entitled to an AVTOP and, if he is, refer the matter to the Secretary of the Attorney-General’s Department for assessment of the payment quantum. Senior counsel for the Secretary suggested that, if the Court felt able to make its own decision on the basis of what had been found by the AAT, the Secretary would not seek that the Court refer the question back to the AAT.

93    Notwithstanding the conclusion reached by Bromberg J that the matter should be sent back to the AAT for factual consideration, I consider this Court, on this occasion, should determine both issues raised by s 1061PAA(2)(b) as identified above at [91]. The Court is able to decide the question, the applicant, in particular, has evinced a desire for the Court to do so on the facts found in the AAT, and no party suggests that additional evidence is required for the factual question finally to be determined.

94    As to the first issue, I generally agree with the substance of what Gilmour J and Bromberg J have separately stated on the construction question. In particular, I agree with what Bromberg J has said between [116] and [129] of his Honour’s reasons for judgment. I do not find it helpful, however, to construe the statutory phrase by reference to general law foreseeability tests, as Bromberg J has suggested and [130] and following. In my view, the relevant test is informed by the statute, not the general or common law.

95    I consider the correct test, having regard to the authorities referred to by Bromberg J, to be whether the harm suffered by the applicant was, as a matter of common sense and experience, a direct result of the bombings; or, put another way, whether the harm suffered can be said to have a “close and significant connection” with the bombings.

96    I consider that this test allows a person who was in the place where the terrorist act occurred but did not suffer any physical harm at the very time of the terrorist act (in this case, the time of the explosions at the Sari Club) and who did not suffer any subsequent psychological harm solely as a result of his or her experience of the act, nonetheless to be considered to have suffered harm as a direct result of the terrorist act if they, depending on the factual circumstances of the case, respond to the terrorist act in certain ways and then suffer harm. For example, if a person down the road from the Sari Club directly experienced the explosions but was not in very close proximity to them and did not suffer any immediate physical harm, but ran out of their immediate abode out of concern, fear, desire to assist, or simply to investigate what had happened, and tripped over debris from the bombings and suffered physical injury, there would, in my opinion, be a sufficiently close and significant connection between the terrorist act and the physical harm suffered to justify the conclusion that the harm suffered was a direct result of the terrorist act. Common sense and experience would lead to the same conclusion.

97    Similarly, if such a person, for a similar range of reasons, rushed directly to the Sari Club and witnessed the utter devastation that had occurred there following the terrorist act, and later suffered psychological harm as a result of doing so, again I consider such facts might justify the conclusion that the psychological harm suffered was a direct result of the terrorist act.

98    For my part, the question in this case is whether it can be said that there is a sufficiently close and significant connection between the bombings and the circumstances in which the applicant first visited the Sari Club following the explosions; and whether the harm he later suffered is shown to be materially attributable to that first visit.

99    I should say immediately that, in my view, if the harm suffered by the applicant in fact only resulted from his second and/or subsequent visits to the Sari Club, as described in the judgment of Gilmour J, there can be no finding that any harm thereby suffered was as a direct result of the declared terrorist act. Following his first visit, the applicant, for his own reasons, decided to return to the Sari Club with an infrared camera and video the trauma on a number of occasions. His decisions to do so were new acts that lacked a sufficiently close and significant connection with the initial explosions to enable any harm suffered from those visits to be characterised as harm suffered as a direct result of the explosions. Common sense and experience dictates the same finding.

100    Consequently, the primary question to be decided is whether, on the facts of this case, it is open to find that any harm suffered as a result of the applicant’s first visit to the Sari Club was suffered as a direct result of the explosions at the Sari Club. In my opinion, it cannot be because, properly assessed, the first visit also lacks a sufficiently close and significant connection with the explosions to justify a finding that any harm from the visit was suffered as a direct result of the explosions. The simple facts are that the applicant, following his experience of the explosions while at his hotel, left his hotel, which was 1.9km from the Sari Club, on foot with a video camera in hand to investigate what he had hard, felt and experienced. That he took his camera with him suggests that he had the express intent (perhaps amongst others) of recording what he might see along the way. He eventually came upon the source of the explosions at the Sari Club after some 10 or 15 minutes. In my view, the circumstances of the applicant’s first visit to the Sari Club are to be contrasted with the hypothetical first visit of a person, provided above, who goes directly to the site soon after the explosions and later suffers psychological harm. Here, after experiencing the explosions while at his hotel, the applicant spent some 10 or 15 minutes in the streets or passageways, before eventually coming to the Sari Club. The time interval between his setting out to investigate what had occurred and his arrival at the Sari Club leads me to conclude that the applicant was not in a class of persons whose attendance at the site had a sufficiently close and significant connection with the explosions to enable any later psychological harm resulting from the visit to be characterised as harm suffered as a direct result of the explosions. Common sense and experience also dictates that conclusion.

101    I should also add, so far as fact finding is concerned, that the medical evidence before the Court, as adduced before the AAT, does not helpfully address the question of whether the PTSD and other psychological harm suffered by the applicant was caused or materially contributed to by the first visit to the Sari Club. This remains the case, in my view, despite the Secretary’s concession at para 16.5 of its closing written submissions before the AAT that “[t]he respondent accepts that the phrase ‘direct result’ does not require the Bali bombings to be the only cause of the harm suffered by the applicant …”.

102    The reasons for the decision of the AAT, at [20] and following, deal with the medical/psychological evidence. The letter of the clinical psychologist, Ms Yom-Tov, dated 28 January 2009 stated:

His presenting problem was symptomatic of a Post Traumatic Stress Disorder following his close physical proximity to the Bali bombings. He saw the site shortly after the bombings and videotaped the scene, which bothered him a lot as he felt the police might request the film. Moreover he had spent a considerable amount of time at the venue which was subsequently bombed. There were pending memorials for the victims and Richard was anxious concerning his participation therein. He coped with the new exposures concerning the bombings and the symptoms of the PTSD decreased significantly.

103    The applicant’s general practitioner, Dr Vincent, completed a Department of Health Services Health Professional or Allied Health Professional Report in connection with the appellant’s AVTOP claim. In relation to requests for information concerning “Diagnosis/injury as a direct result of the terrorist act specified in page 1 of this report”, Dr Vincent made the following entry:

Major Depressive Illness/Post Traumatic Stress Disorder

104    In relation to the topic “Clinical history of the injury or condition”, Dr Vincent entered “Was in Bali when bombings occurred and was witness to the site very soon after”.

105    This evidence, on its own, does not directly address the question whether it was the first, second or later visits to the Sari Club, or all visits combined, that caused or contributed to the harm identified. The medical opinions do not betray any or any clear understanding that the applicant’s first visit to the Sari Club was in fact only for a short period before returning to his hotel to collect his infrared video camera and then returning to the bombing site on the second vision, followed later by two more visits. The medical evidence fails to address the question of whether this first visit materially contributed to the harm suffered by the applicant. One can only assume the medical people were not asked to address that specific question.

106    In the result, I consider the question posed by para (b) of s 1061PAA(2) should be answered by the Court and should be answered in the negative. Primarily, it has not been demonstrated by the evidence led in the AAT that the psychological harm suffered by the applicant was suffered as a direct result of the declared overseas terrorist act given the lapse in time between the applicant leaving his hotel, where he was at the time of the bombings at the Sari Club, and his arrival at the Sari Club.

conclusion and orders

107    In these circumstances, I would order that the appeal be dismissed but would hear from the parties on the question of costs.

Associate:

Dated:    11 March 2016

REASONS FOR JUDGMENT

BROMBERG J:

108    Section 1061PAA(1) of the Social Security Act 1991 (Cth) (the Act) sets out the eligibility or qualification criteria for an “Australian Victim of Terrorism Overseas Payment” (AVTOP). Relevantly to the issues raised by this appeal, to be qualified a person must be a “primary victim … of a declared overseas terrorist act …”. Section 1061PAA(2) defines “primary victim”. There are two conjunctive limbs to the definition. The first is that the person was in the place where the terrorist act occurred (first limb).

109    The Administrative Appeals Tribunal (AAT) concluded that Mr Hananeia was not a “primary victim” and therefore did not qualify for an AVTOP. The AAT did that including because it concluded, by reference to the first limb, that Mr Hananeia was not in the place where the terrorist attack occurred. I respectfully agree with Gilmour J, for the reasons given by his Honour, that the AAT misconstrued the Act and erred in concluding that Mr Hananeia did not satisfy the first limb of the definition of “primary victim”. I also agree that this Court should find that, for the purposes of s 1061PAA(2)(a), Mr Hananeia “was in the place where the terrorist act occurred” when he was at the Adi Dharma Hotel.

110    The remaining issue is whether the AAT erred in failing to conclude that Mr Hananeia satisfied the second limb of the definition of “primary victim”, namely, that he was harmed “as a direct result” of the terrorist act. That issue was raised by ground 4 of Mr Hananeia’s grounds of appeal.

111    Dealing with the second limb of the definition of “primary victim”, at [44] of its reasons, the AAT said:

That conclusion makes it unnecessary for the Tribunal to consider whether para (b) of s 1061PAA(2) of the SS Act is satisfied in the applicant’s case. Suffice it to say that the Tribunal accepts the respondent’s submission to the effect that para (b) of s 1061PAA(2) is also not satisfied because the applicant was not “in the place where” the relevant terrorist act occurred at the time when it occurred and the harm to his mental health which he subsequently suffered was suffered by him as a result of his voluntarily and unnecessarily attending the site of that terrorist act after it had occurred, not “as a direct result of” that terrorist act itself.

112    When [44] is read with the conclusions expressed by the AAT at [45]–[48], a legitimate question arises as to whether the AAT made a finding as to the second limb. But presuming (against Mr Hananeia’s contention) that it did, it is clear, as Gilmour J has stated, that the AAT has imported into its conclusion the same legal error that the AAT made in relation to its consideration of the first limb. Any finding made as to the second limb therefore cannot stand.

113    There is therefore a question raised as to whether the matter should be remitted to the AAT to redetermine or whether, pursuant to s 44(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), it is convenient that this Court make a finding as to whether or not Mr Hananeia was harmed as a direct result of the terrorist act.

114    Section 44(7) of the AAT Act provides:

(7)    If a party to a proceeding before the Tribunal appeals to the Federal Court of Australia under subsection (1), the Court may make findings of fact if:

(a)    the findings of fact are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as the result of an error of law); and

(b)    it appears to the Court that it is convenient for the Court to make the findings of fact, having regard to:

(i)    the extent (if any) to which it is necessary for facts to be found; and

(ii)    the means by which those facts might be established; and

(iii)    the expeditious and efficient resolution of the whole of the matter to which the proceeding before the Tribunal relates; and

(iv)    the relative expense to the parties of the Court, rather than the Tribunal, making the findings of fact; and

(v)    the relative delay to the parties of the Court, rather than the Tribunal, making the findings of fact; and

(vi)    whether any of the parties considers that it is appropriate for the Court, rather than the Tribunal, to make the findings of fact; and

(vii)    such other matters (if any) as the Court considers relevant.

115    Whether it is convenient for this Court to determine the question raised by the second limb, to my mind, depends upon the nature of the enquiry that the question calls for. That in turn is dependent upon what is meant by the requirement of the second limb of the definition, that the person “was harmed … as a direct result of the terrorist act”.

116    In the context of its use in a provision like the second limb, the expression “as a direct result of” usually describes the nature of the requisite nexus or connection between the harm suffered by a person and a wrongful act. The words “as a … result of” make it clear that a causal relationship must be established: Martin v Comcare [2015] FCAFC 169 at [107] (Murphy J, with whom Siopis J agreed). The provision in question requires that the harm be “a” direct result of and not “the” direct result of the terrorist act. The plain and ordinary meaning of the words “as a result of” imply the need for a relation of cause and effect but not a relation of sole cause and effect: WBM v Chief Commissioner of Police [2012] VSCA 159 at [183] (Bell AJA) and at [33] (Warren CJ with whom Hansen JA agreed). The word “direct” is likely to be concerned with “the quality of the connection between [the] cause and the injury”: Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89 at [93] (Gummow J), in which the word “directly” qualified the phrase “caused by … [a] motor vehicle”.

117    The word “direct” in relation to causation probably first gained prominence in the phrase “direct consequences” used by the English Court of Appeal In re Polemis and Furness, Withy & Co, Ltd [1921] 3 KB 560 in the context of the law of negligence. That approach to the measure of damages in negligence has since been discarded (Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) [1961] AC 388) but not before extensive judicial consideration of the word “direct”. Despite the conclusion reached by Hart HLA and Honoré T, Causation in the Law (2nd ed., Clarendon Press, 1985) at 179 that the word “direct” provides no real assistance in solving causal problems, as Ashley, Redlich and Priest JJA said in Best v the Queen [2015] VSCA 151 at [74], although “direct” has sometimes attracted criticism in the context of causation at common law, its inclusion (in a statutory phrase) obliges the court to give the term “due meaning”.

118    Each of the parties sought to give due meaning to “direct result” by reference to judgments in which the meaning of that expression has been previously considered. Mr Hananeia contended that the requirement that the harm be a “direct result” of the terrorist act requires a common sense approach. His submission was that the terrorist act need not be the only cause, although it needed to be “prominent in the events that caused the harm”. Mr Hananeia relied in particular on Kaplan v Lee-Archer (2007) 15 VR 405.

119    Section 85B of the Sentencing Act 1991 (Vic) (Sentencing Act) permitted a person who “has suffered any injury as a direct result of the offence” to seek compensation for “pain and suffering experienced by the victim as a direct result of the offence”. In Kaplan, an employee claimed that he suffered psychological injuries as a result of being instructed by his manager to steal from a retail nursery at which they both worked. The Court was called upon to consider whether the alleged injuries were a “direct result” of the thefts. The Court rejected the contention that the injuries were not a direct result of the offences committed by the manager. Buchanan JA (with whom Vincent JA agreed) held that the requirement that the result be “direct” does not mean “that there can be no step between the cause and the consequence, or that the consequence must be solely due to the cause” (at [24]). His Honour rejected that “direct” is a synonym for “immediate” or “proximate” or “obvious” (at [25]) and continued:

In a scheme of compensation which was designed to be a cheap and expeditious remedy tacked on to a criminal trial, in my view the introduction of the adjective “direct” is intended to exclude those results which are but tenuously related to crimes in that their contribution is a minor factor in the production of the injury. Examples of injuries which, in my view, are not the direct result of crimes are where the crime is merely part of the background, one of a large number of circumstances, and by no means prominent, which produces the injury, or where there is another, supervening cause which overshadows the commission of the crime.

120    Buchanan JA concluded at [28] that the word “direct” was “inserted to emphasise that the crime is to play a significant role in bringing about the compensable injury”.

121    Nettle JA agreed with Buchanan JA but made additional observations. His Honour referred to Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 where Mason and Wilson JJ interpreted the expression “by or as a result of a criminal act” in s 3(1) of the Criminal Injuries Compensation Act 1972 (Vic). Nettle JA considered that in Fagan, Mason and Wilson JJ “treated the question of whether injury arose by or as a result of an offence as one of whether the injury was caused by the offence, and their Honours characterised as direct results of the offence events which, although not immediate or proximate to the offence, were judged as a commonsense question of fact to have been caused by the offence” (at [53]). Nettle JA considered that the reasoning in Fagan informed the expression “as a direct result” in s 85B of the Sentencing Act and concluded at [56] that the expression “as a direct result of the offence” contemplates “an injury that is judged as a matter of fact, according to common sense and experience, to have been caused by the offence”.

122    A number of single judges of the Victorian Supreme Court have applied Kaplan in construing s 85B of the Sentencing Act. In RK v Mirik (2009) 21 VR 623 at [151], Bell J relied on Kaplan to observe that “consistently with the beneficial purpose of the provisions, no narrow conception of what is a direct result is adopted”. In Liang v Chalmers [2010] VSC 241, Osborn J at [13] applied Kaplan to conclude that “[t]he word ‘direct’ emphasises that the crime is to play a significant role in bringing about the compensable injury. The question of causation must be judged as a matter of fact according to common sense and experience”. Those same observations were made by Lasry J in Tanner v Smart [2010] VSC 463 at [26]. See further Adams v Xypolitos [2015] VSC 747 at [12] (T Forrest J).

123    Kaplan has also been followed in relation to the construction of provisions of the Sentencing Act dealing with sentencing rather than reparation. Section 3 of that Act defines “victim” as a person who has suffered injury, loss or damage as a “direct result of the offence”. Section 5(2)(db) requires that in sentencing an offender the Court must have regard to any injury, loss or damage resulting “directly” from the offence. In Best, Ashley, Redlich and Priest JJA considered the words “direct result” and “resulting directly” in ss 3 and 5(2)(db) respectively. At [75] their Honours said:

[75]    The current state of authority discussed below is such that the word “direct” or “directly” in the Sentencing Act cannot be construed to mean coming in time immediately after the wrongful act. While the word “direct” undoubtedly qualifies the word “result”, it does not imply that there can be no step between the cause and the consequence.

124    After referring to Fagan and Kaplan, at [78]–[79], their Honours concluded:

[78]    The terms “resulting directly” or “direct result” postulate something more than a mere causal relationship between the offence on which the offender has been charged and convicted and the injury. What is required is more than a sine qua non. The full range of possible causes of injury to the victim are cut down to those which can be characterised as being a direct result of the offence and not something wider. The words “result” or “resulting” emphasises effect—the sequential as distinct from the causal nature of the required link.

[79]    Prosser offers a second meaning of “direct” to that discussed in [74] above as that which follows “in sequence from the effect of the defendant’s act upon conditions existing and forces already in operation at the time, without the intervention of any external forces which come into active operation later”. The injuries will not be a direct result of the defendant’s acts if where another person’s acts intervene, those latter acts may be regarded as the immediate cause of the injuries.

See further SD v the Queen (2013) 39 VR 487 at [16] (Ashley, Redlich and Priest JJA) and Berichon v the Queen (2013) 40 VR 490 where, in the absence of any consideration of Kaplan, Robson AJA construed the use of “direct” in ss 3 and 5 of the Sentencing Act to mean “sufficiently proximate” (at [127]).

125    Kaplan was also considered by the Queensland Court of Appeal in R v Foster [2009] 1 Qd R 53. Section 21B of the Crimes Act 1914 (Cth) relevantly provided for a court to order that an offender make reparation to any person in respect of any loss suffered by the person “as a direct result of” the offence. McMurdo P (with whom Mackenzie AJA and Chesterman J agreed) concluded at [74] that the words of s 21B “suggest a legislative intention that where, as a matter of fact, there is a close or significant connection between the loss suffered and the offence which caused it, a reparation order may be made …”. That construction was said to be consistent with the interpretation in Kaplan of the analogous phrase.

126    I should also mention Victims Compensation Fund Corporation v Ainsworth (2001) 51 NSWLR 466, which was decided prior to Kaplan but which also dealt with the expression “a direct result” found in a provision dealing with compensation for victims of crime. The statutory criterion required that the compensable injury was “received by the victim as a direct result of the act of violence”. As to that criterion Mason P (with whom Priestley and Giles JJA agreed) said at [27]:

Whether or not a primary victim has received a compensable injury “as a direct result” of a particular act of violence may involve a difficult issue of causation. The issue may be one upon which different tribunals of fact legitimately reach opposite conclusions. It is not necessarily a simple matter of common sense, notwithstanding frequently encountered judicial injunctions for robust fact-finding on such a basis. Policy issues and value judgments may be involved: March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; Chappel v Hart (1998) 195 CLR 232 at 238. The particular statutory language must be kept in mind (here the requirement is proof of “a direct result”). A determination that the necessary causal link is present or absent will usually involve a question of fact, although the reasoning process may reveal an error of law in that the tribunal of fact misdirected itself as to the correct approach to the issue.

127    Finally, my survey of the cases needs to take into account Container Handlers and the following observation of McHugh J at [21], upon which the Secretary relied:

In my view, for the reasons set out above and more particularly because of the relationship of s 3(7) to s 6(1)(b) and the Schedule, the first of these two views is the correct one. The expression “directly caused by … [a] vehicle” looks to the vehicle as the harm-causing instrument and requires a direct and immediate connection between the vehicle as the harm-causing instrument and the death or bodily injury.

128    Relying on that observation, the Secretary contended that “direct result” requires an immediate connection. It may well be that McHugh J used “immediate” synonymously with “direct”. “Immediate” suggests that there can be no step between the cause and the consequence, a proposition rejected in relation to the meaning of “direct result” in the authorities earlier canvassed. Why McHugh J introduced “immediate connection” is not explained in the passage relied upon. However, as McColl JA (with whom Ipp and Tobias JJA agreed) said in Lasermax Engineering Pty Limited v QBE Insurance (Australia) Limited [2005] NSWCA 66 at [72], it is likely that the construction of the expression “directly caused … by … [a] motor vehicle” was significantly influenced (as is apparent from the reasons of McHugh J at [63]) by the legislative history and purpose of the Motor Vehicle (Third Party Insurance) Act 1943 (WA).

129    For those reasons, I do not regard the passage relied upon by the Secretary as of much assistance. To my mind, the views expressed in Kaplan, and in particular those of Buchanan JA, are of greatest assistance. The remedial context in which Buchanan JA concluded that the word “direct” emphasised that “the crime is to play a significant role in bringing about the compensable injury” is similar to that under consideration here, although there are some differences, as I will highlight shortly. I also regard as helpful the observation, arising from the reasons of Nettle JA (but originally made in March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 and Medlin v State Government Insurance Commission (1995) 182 CLR 1), that the question of causation must be judged as a common sense question of fact.

130    Causation principles developed by the common law address the attribution of responsibility to a wrongdoer. Ordinarily, there is a distinction drawn between factual causation and legal causation. The purpose of the former is to determine whether the wrongdoing was a necessary condition of the harm (the “but for” test): March at 515 (Mason CJ). The purpose of the latter is to determine, in the specific case, whether the wrongdoer should be held responsible: March at 515 (Mason CJ). So, where the wrongdoing satisfies the “but for” test of factual causation, on the basis of principles determined largely by reference to policy considerations, courts will then proceed to determine whether the wrongdoer should be held responsible: March at 515 (Mason CJ); see also Jaensch v Coffey (1984) 155 CLR 549 at 554–555 (Gibbs CJ). It is in that context, and in determining legal causation, that issues of foreseeability of damage and the relevance and consequence of an intervening cause are resolved.

131    The causal analysis is often said to depend upon the cause of action or rule of responsibility upon which the right to damages or compensation depends. As Gummow, Hayne and Heydon JJ said in Allianz Australia Insurance Limited v GSF Australia Pty Limited (2005) 221 CLR 568 at [99] “the case law … illustrates and emphasises that notions of ‘cause’ as involved in a particular statutory regime are to be understood by reference to the statutory subject, scope and purpose”. The same point was made by Nettle JA in Kaplan at [58] and by Gaudron J in Chappel v Hart (1998) 195 CLR 232 at 238 where her Honour said:

Questions of causation are not answered in a legal vacuum. Rather, they are answered in the legal framework in which they arise.

132    Likewise, in Stephens v Giovenco [2011] NSWCA 53 at [15]–[17], Allsop P (with whom Tobias JA agreed on this issue) recognised that questions involving the ascription of legal responsibility will be dependent upon the rule of responsibility involved. At [16], Allsop P emphasised “that the causal analysis must be undertaken by reference to the rule of responsibility involved”. Amongst other authorities for that proposition, Allsop P referred to Lord Hoffmann’s speech in Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 at 29 and to the following observations made by Gummow and Hayne JJ in Travel Compensation Fund v Tambree (2005) 224 CLR 627 at [45]:

It is now clear that there are cases in which the answer to a question of causation will differ according to the purpose for which the question is asked. As was recently emphasised in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd, it is doubtful whether there is any “common sense” notion of causation which can provide a useful, still less universal, legal norm. There are, therefore, cases in which the answer to a question of causation will require examination of the purpose of a particular cause of action, or the nature and scope of the defendant’s obligation in the particular circumstances.

133    For those reasons, it is critical that the meaning and consequence to be given to the causal connection between harm and the terrorist act constituted by the expression “a direct result of” in s 1061PAA(2)(b), be determined by reference to the text, but also the scope and purpose of the scheme for compensation (AVTOP Scheme) established by Part 2.24AA of the Act.

134    The expression “as a direct result of” forms part of a provision which sets the eligibility criteria for a payment of compensation to a victim of a terrorist act. The provision is found in Part 2.24AA of the Act which was inserted by the Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Act 2012 (Cth). The long title of that Act identified it as:

An Act to provide support for Australian victims of terrorist acts occurring overseas, and for related purposes.

135    The Explanatory Memorandum to the Bill for that Act (Explanatory Memorandum) commenced with a “general outline” which said:

The Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Bill will establish a framework for the provision of financial assistance for Australians who are injured overseas as a result of terrorist acts and for close family members of Australians who are killed overseas as a result of terrorist acts.

The scheme acknowledges the special and tragic nature of terrorism by establishing a comprehensive financial assistance framework for the provision of assistance by amending the Social Security Act 1991, the Social Security (Administration) Act 1999, and the Income Tax Assessment Act 1997.

In particular, the Bill will:

•    enable Australians who are victims of a declared overseas terrorist incident to claim financial support of up to $75,000;

•    enable the Prime Minister to declare that a relevant overseas terrorist incident is one to which the Scheme applies;

•    establish eligibility criteria so that payments can be made to either long-term Australian residents who are victims of a relevant overseas terrorist act, or in the event of the death of a victim, close family members;

•    ensure that payments will not adversely affect a person’s entitlement to compensation or damages under another Commonwealth law;

•    ensure that victims are not required to repay or deduct Medicare or other benefits from any payment received under the Scheme;

•    enable the Secretary to extend the period for assessing claims and making payments; and

•    enable the enactment of legislative instruments to provide further guidance on the amount of assistance that each victim, or close family member, should receive.

136    The qualification criteria for an AVTOP is set out in s 1061PAA which is in the following terms:

Qualification for Australian Victim of Terrorism Overseas Payment

Qualification for AVTOP

(1)    A person is qualified for an Australian Victim of Terrorism Overseas Payment if:

(a)    the person is a primary victim or a secondary victim of a declared overseas terrorist act; and

(b)    the person and the person’s close family members were not involved in the commission of the terrorist act; and

(c)    the person:

(i)    is an Australian resident on the day the terrorist act occurred; or

(ii)    is covered by a determination under subsection (6).

Note:    For declared overseas terrorist act see section 35B.

Meaning of primary victim

(2)    A person is a primary victim of a declared overseas terrorist act if the person:

(a)    was in the place where the terrorist act occurred; and

(b)    was harmed (within the meaning of the Criminal Code ) as a direct result of the terrorist act.

Meaning of secondary victim

(3)    A person is a secondary victim of a declared overseas terrorist act if the person is a close family member of a person who:

(a)    was in the place where the terrorist act occurred; and

(b)    died, before the end of 2 years starting on the day the terrorist act occurred, as a direct result of the terrorist act.

Meaning of close family members

(4)    The following are a person’s close family members:

(a)    the person’s partner;

(b)    the person’s child;

(c)    the person’s parent;

(d)    the person’s sibling;

(e)    the person’s legal guardian.

Meaning of involved

(5)    A person was involved in the commission of a declared overseas terrorist act if the person:

(a)    aided, abetted, counselled or procured the terrorist act; or

(b)    induced the terrorist act, whether through threats or promises or otherwise; or

(c)    was in any way (directly or indirectly) knowingly concerned in, or a party to, the terrorist act; or

(d)    conspired with others to effect the terrorist act.

Ministerial determination

(6)    The Minister may, by legislative instrument, determine a specified class of persons for the purposes of subparagraph (1)(c)(ii).

137    Of significant importance in understanding the nature of the scheme is the recognition that it allows for the amount of compensation to be paid to an eligible person to be adjusted, including by reference to the particular circumstances in which the harm was suffered. Section 1061PAD provides (in respect of a primary victim) that the Secretary is to determine the amount of the AVTOP payable and must do so in accordance with the AVTOP Principles made under s 1061PAF. That provision provides for the Minister to set the principles or policy to be applied in awarding compensation. Two aspects are of particular significance. First, the AVTOP Principles may specify circumstances in which no payment is made despite a person meeting the qualification requirements (s 1061PAF(3)). Second, the AVTOP Principles may provide for the conduct of the claimant, amongst other circumstances, to be taken into account in determining the level of any payment to be made (s 1061PAF(2)(a)(vi)-(vii)).

138    Section 1061PAF provides:

AVTOP Principles

(1)    The Minister must, by legislative instrument, determine the principles (the AVTOP Principles) to be applied for the purposes of determining the amount of an AVTOP payable to a person in relation to a declared overseas terrorist act.

(2)    Without limiting subsection (1), the AVTOP Principles may provide that the following factors are to be taken into account when determining the amount of the payment:

(a)    for a primary victim:

(i)    the nature of the injury or disease suffered as a direct result of the terrorist act; and

(ii)    the duration of the injury or disease; and

(iii)    the impact of the injury or disease on the person’s bodily and mental functions; and

(iv)    the impact of the injury or disease on the person’s life; and

(v)    the likelihood of the person suffering future loss, injury or disease as a direct result of the terrorist act; and

(vi)    the circumstances in which the injury or disease was incurred; and

(vii)    whether the person was directed by an official of Australia or a foreign country not to go to the place where the terrorist act occurred;

(b)    for a secondary victim in relation to a close family member who has died:

(i)    whether the person was dependant on the close family member; and

(ii)    the nature of the relationship between the person and the close family member; and

(iii)    the circumstances in which the close family member died; and

(iv)    whether the close family member was directed by an official of Australia or a foreign country not to go to the place where the terrorist act occurred; and

(v)    whether there are other persons who have made a claim for an AVTOP as a secondary victim in relation to the close family member; and

(vi)    if there are such other secondary victims and the person and each of the other secondary victims agree on the amount of the AVTOP that each should be paid--that agreement; and

(vii)    if there are such other secondary victims and the person and each of the other secondary victims have not agreed on the amount of the AVTOP that each should be paid--whether the person has also made a claim as a secondary victim of the terrorist act in relation to another close family member;

(c)    for a primary victim or a secondary victim:

(i)    whether there was travel advice on an Australian government website advising against travelling to the foreign country, region or place where the terrorist act occurred; and

(ii)    whether the person has been paid or is likely to be paid an amount by the Commonwealth, a State, a Territory, a foreign country or any other person or entity in relation to the terrorist act.

(3)    The AVTOP Principles may specify circumstances in which the amount of an AVTOP is nil.

139    Unlike for the law of negligence, the line constituting the boundary of compensation under the AVTOP scheme is not marked out by reference to limits beyond which a wrongdoer should not be held responsible for his or her wrongdoing. The AVTOP scheme is remedial: it offers a gratuity provided out of public funds to deserving victims unlikely to have recourse to other relief. Its compensatory limits are drawn for different reasons and very differently to those drawn by the law of negligence, for breach of contract, or for breach of statutory duty. For example, the scheme includes harm inflicted upon a “secondary victim” (s 1061PAA(1)(a)), but excludes a person involved in the commission of the terrorist act or a close family member of that person (s 1061PAA(1)(b)). It is limited to Australian residents and those classes of persons covered by a Ministerial determination (s 1061PAA(1)(c)). The maximum compensation payable is capped and s 1061PAF facilitates the adoption of measures which allow for a form of apportionment of responsibility for the harm suffered by an eligible claimant.

140    Like the scheme considered in Kaplan, the AVTOP scheme has a remedial character. Unlike the scheme in Kaplan, the AVTOP scheme includes a “place” requirement in the first limb. That was a point of distinction emphasised by the Secretary but to my mind it says little as to the meaning of “direct result”. The intent behind the “place” requirement in the first limb was expressed in the Explanatory Memorandum as follows:

Paragraph (2)(a) provides that the person must be in the place where the terrorist act occurred. The intention of paragraph (2)(a) is to disqualify persons who have watched or heard of the event through any form of public media from making a claim. Although they may be distressed by observing or hearing of the event, this is not enough to qualify for benefits.

The person must be physically ‘in a place’ where the overseas terrorist act occurs. This could be in the hotel foyer, an adjacent car park or across the road. However there must be close proximity to the overseas terrorist act.

141    It seems clear that the legislature intended that only persons who had first-hand experience of the terrorist act at the place at which it occurred should recover. In so far as it was intended that the pool of potential beneficiaries should be restricted to persons who had experienced the terrorist act first-hand, that intent is achieved by the first limb. It does not follow therefrom that a narrow or restrictive meaning was intended for the term “direct result”.

142    Unlike the scheme in Kaplan, the AVTOP scheme includes, via the making of the AVTOP Principles, a capacity for a form of apportionment to be made. I note, in that respect, that AVTOP Principles have been made (Social Security (Australian Victim of Terrorism Overseas Payment) Principle 2013 (Cth)) and that pursuant to those principles a reduction of an AVTOP must be made where the Secretary decides that the primary victim “failed to take reasonable steps to avoid harm or acted recklessly when the terrorist act occurred” (cll 14(1)(a) and 15). The capacity to “apportion” in the sense of diminishing an AVTOP because of conduct of the claimant contributing to his or her harm, as Deane J said of apportionment legislation in March at 524, “gives the latitude necessary to enable the relief to be fairly adjusted to fit the circumstances”. Importantly, his Honour went on to say that in the context of the existence of a capacity to apportion, “the courts will be unlikely to deny causation in any case where the fault of a defendant contributed to an accident”.

143    In that connection, I note that cl 15 of the Principles contemplates a mandatory reduction in the amount of an AVTOP of 10 per cent for failure to take reasonable steps to avoid harm or for acting recklessly. I am mindful that delegated instruments generally cannot be used in the interpretation of an Act (see Pearce DC and Geddes RS, Statutory Interpretation in Australia (8th ed., LexisNexis Butterworths, 2014) at [3.41]), and I do not use the Principles for that purpose. It is nevertheless interesting, and consistent with my views concerning the “rule of responsibility” established for the AVTOP scheme, that the Principles contemplate that unreasonable or reckless acts by a claimant, which in the context of other causation tests might constitute a subsequent intervening act denying any right to recovery, results mandatorily only in a 10 per cent reduction in an AVTOP.

144    To my mind, bearing in mind the scope and purpose of the AVTOP scheme including the scheme’s capacity to adjust compensation to fit the particular circumstances in which harm was occasioned, the purpose of the second limb is to limit compensable harm to harm for which the terrorist act bears some responsibility. The responsibility needs to be material or, adopting the words of Buchanan JA in Kaplan, “the [terrorist act] is to play a significant role in bringing about the compensable [harm]”. That question should be judged according to common sense and experience.

145    I would add, by reference to what Buchanan JA said in the extract quoted at [119] above, that harm suffered by a person would not be a direct result of the terrorist act where the terrorist act is merely part of the background or, in other words, is too tenuous or remote as a basis for ascribing responsibility. Where other causes for the harm exist, whether or not the terrorist act played a significant role in bringing about the harm is to be assessed by weighing the contribution to the harm by the terrorist act against the other contributing causes. The requisite nexus will not be satisfied if, in the context of all contributing causes, the terrorist act is not able to be regarded as a significant contributing cause.

146    A conclusion that it was intended that the terrorist act need only be significant (in the above sense) in bringing about the harm is supported somewhat by the Explanatory Memorandum. In relation to what became s 1061PAA(2)(b) of the Act (what I have called the second limb) the Explanatory Memorandum said this (emphasis added):

Paragraph (2)(b) provides a second requirement that the person must be harmed (this can be physical or psychological harm). The intention is to ensure that only those who sustain some form of injury receive payment. Financial assistance should be available for people who suffer harm. People whose injuries are not permanent or serious should be eligible. However, they may receive a lower quantum than a person whose injuries are permanent or more serious.

147    There is no express reference there to the word “direct”, but the passage I have highlighted is consistent with the proposition that no narrow conception of what is a direct result was intended. There is, however, an observation in the Explanatory Memorandum about the intended meaning of the expression “direct result” used in relation to what became s 1061PAA(3).

148    In relation to that provision, the Explanatory Memorandum said this (emphasis added):

Paragraph (3)(b) provides that to be a secondary victim, the deceased must die before the end of two years starting on the day the terrorist act occurred. The intention is to also provide a benefit for secondary victims even where the victim does not die immediately at the time of the overseas terrorist act, provided the cause of death is a direct result of the overseas terrorist act.

The question of whether this is a ‘direct result’ is a question of fact. This should be determined by medical evidence. If the injuries sustained during the terrorist attack are a significant contributing cause of death this would suffice.

149    With that understanding of the meaning of “as a direct result of”, the assessment that should have been made, but on the AAT’s approach was not, was one that weighed up each of the causes of Mr Hananeia’s major depressive illness and post-traumatic stress disorder. It was uncontentious that Mr Hananeia suffered from that harm, but the facts suggest that, beyond the terrorist act, other factual causes of the harm or part of it suffered by Mr Hananeia were:

(1)    his decision at about 11.00 pm on 12 October 2002 to travel from the Adi Dharma Hotel to the Sari Club, where the bombs had exploded, and stay for a period of time (first decision);

(2)    his decision to return to the Sari Club later that night (second decision);

(3)    his decision to return to the Sari Club at dawn the following day (third decision); and

(4)    his decision to return to the Sari Club again on 14 October 2002 (fourth decision).

150    An appropriate assessment needed to be made as to what part of the harm suffered by Mr Hananeia was as a result of his travelling to, and his first attendance at, the Sari Club. In relation to any harm suffered as a result of that event, the terrorist act needed to be weighed with the first decision. The weighing up process needed to take into account the extent to which the first decision was itself a consequence of the terrorist act. It would, in my view, be relevant in that respect to take into account that a foreseeable consequence of a terrorist act constituted by an explosion in or adjacent to a public place is that immediately after the explosion bystanders may travel to and attend at the site of the explosion. That may be the result of shock, panic, or a reflex reaction. It may be driven by a humanitarian motivation to rescue or assist. It may simply be driven by curiosity. In my view, Parliament would have been aware of the foreseeability of that range of possible reactions. If foreseeable, I consider that there is nothing in the policy or purpose of the AVTOP scheme that would deny ascribing to the terrorist act some responsibility for a bystander’s attendance: c.f. the observations of Brennan J at 569–570 of Jaensch in relation to the foreseeability of the attendance of various classes of persons at the scene of a car accident, and the observations of Deane J at 605–606.

151    The same kind of assessment should then have been made weighing up the contribution to harm made by the terrorist act as against the combination of the first and second decisions (in respect of harm suffered as a consequence of the second attendance), and then as against the combination of the first, second and third decisions (in connection with the third attendance), and so on, if it was the case that each or any of the second, third or fourth attendances materially contributed to the harm suffered by Mr Hananeia.

152    The relevance and consequence of a voluntary act in the causation analysis also depends upon the purpose, nature, and scope of the AVTOP regime. As Allsop P recognised at [15]–[17] of Stephens, questions of degree as to the voluntary act (of the claimant) will be dependent upon the rule of responsibility involved. To my mind, and given the considerations to which I have previously referred, a choice made under pressure created by the terrorist act should not ordinarily be regarded as voluntary: Haber v Walker [1963] VR 339 at 358–359 (Smith J); Stephens at [12]–[17] (Allsop P with whom Tobias JA agreed on this issue).

153    It is only where, based on the weighing-up process described above, the terrorist act could not be regarded as having made a significant contribution to any harm suffered by Mr Hananeia in connection with a particular attendance, that a conclusion should be reached that Mr Hananeia failed to satisfy the second limb in relation to that harm.

154    Although, as Gilmour J has noted, the applicant urged the Court to make its own findings as to the “direct result” question in the event that the Court found error in the AAT’s approach, I would decline to do so. The nature of the requisite exercise which I have just described is not an exercise which is possible, let alone convenient, for this Court to carry out. The circumstances in which the discretion provided to this Court by s 44(7) of the AAT Act is to be exercised are limited and I consider it more appropriate for a new Tribunal to determine the outstanding questions: May v Military Rehabilitation and Compensation Commission (2015) 322 ALR 330 at [233] (Allsop CJ, Kenny, Besanko, Robinson and Mortimer JJ); Martin at [129] (Murphy J with whom Siopis J agreed), and at [53]–[54] (Flick J).

155    I would allow the appeal and set aside the decision of the AAT, and make an order remitting the case, other than the question of the satisfaction of the first limb which this Court has determined, to be heard and decided again according to law and without limitation as to the presentation of further evidence: O’Loughlin v Linfox Australia Pty Ltd [2015] FCA 1000 at [68]–[69] (Bromberg J).

Associate:

Dated:    11 March 2016