FEDERAL COURT OF AUSTRALIA

COMPENSATION – Employee of Commonwealth – Injury compensable if suffered while travelling between place where “normally resides” and place where “temporarily resides” as a matter of necessity or convenience for purposes of employment – Unmarried twenty year old stationed at Army barracks for twelve months – Returns to parents’ home at weekends – Injured on return journey to barracks ‑ Whether barracks normal place of residence or temporary place of residence – Whether parents’ home normal place of residence.

Safety, Rehabilitation and Compensation Act 1988 s 6(1)(b)(iii)

Hafza v Director‑General of Social Security (1985) 60 ALR 674 applied

Reg v Barnet London Borough Council; Ex parte Shah [1983] 2 AC 309 considered

COMCARE AUSTRALIA (DEFENCE) v DANIEL TROY O’DEA

VG 742 of 1997

WILCOX, SUNDBERG AND NORTH JJ

23 SEPTEMBER 1998

MELBOURNE

THE COURT ORDERS THAT:

1.             The appeal be dismissed.

2.             The appellant pay the respondent’s taxed costs of the appeal.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE COURT:

This appeal was argued on 2 September 1998.  At the conclusion of argument we ordered that the appeal be dismissed with costs and said that we would give reasons later.  These are our reasons.

BACKGROUND

On 29 January 1995, while driving from Traralgon to the RAEME Training Centre at Bandiana (“RAEME”), the respondent was involved in an accident near Yea in which he sustained serious injuries.  All these places are in Victoria.  Traralgon is in Gippsland, Bandiana is near Wodonga, and Yea is roughly half way between them.  At the time of the accident the respondent was a member of the Australian Army.  His claim for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) was disallowed on the ground that at the time of the accident he was on leave, that he was returning from his parents’ home at Traralgon to his normal place of residence, namely the barracks at RAEME, and not to his “employment”, which was to commence the following day, and thus did not come within s 6 of the Act.  That determination was affirmed by a delegate of the appellant.  The Administrative Appeals Tribunal set aside the delegate’s determination and varied the original determination so as to provide that the respondent’s injuries arose out of, or in the course of, his employment.  Pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 the appellant appealed to this Court claiming that the Tribunal had misconstrued and misapplied s 6(1)(b)(ii) and (iii) of the Act.  Northrop J ordered that the appeal be dismissed.  The present appeal is against that order.

THE LEGISLATION

Section 6(1) of the Act is in part as follows:

Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:

…

(b)               while the employee:

…

(ii)               was travelling between his or her place of residence and place of work, other than during an ordinary recess in that employment;

(iii)             was travelling between the place where he or she normally resides and another place, being a place where he or she resides temporarily, as a matter of necessity or convenience, for the purposes of his or her employment …

…

So far as relevant to the present case the expression “place of residence” is defined as

(a)               the place where the employee normally resides;

(b)               a place, other than the place referred to in paragraph (a), where the employee resides temporarily, as a matter of necessity or convenience, for the purpose of his or her employment ….

…

The expression “place of work” is defined so as to include

any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment.

THE TRIBUNAL’S DECISION

The Tribunal found the following facts, amongst others.  The respondent joined the Army on 27 January 1993 as an apprentice electrical fitter.  Before his enlistment he had always lived with his parents at Traralgon.  That was the address on his enlistment papers.  For the first two years of his apprenticeship he was based at Latchford Barracks near Albury (“Latchford”).  The respondent’s parents came to his passing out parade at Latchford at the end of 1994, and he returned with them to Traralgon.  After his Christmas leave he was posted to RAEME for a further twelve months apprenticeship training.  Trainees were initially required to live in at the barracks, but could apply for permission to live out.  The respondent was living in as at 29 January 1995.  While residing at RAEME the respondent was free to come and go as he pleased outside training hours, which were from 8:00 am to 4:30 pm Monday to Friday.  He did not require permission to leave RAEME over the weekend.

After considering the evidence in some detail the Tribunal concluded that at the time of his enlistment the respondent resided at Lot 7 Glenloth Court, Traralgon, that by the date of the accident he had not formed the intention to cease to treat his parents’ place as his place of residence, and that was where he then normally resided, though he was residing at RAEME while undertaking twelve months training.  Later in its reasons the Tribunal concluded that the respondent was injured while travelling between his place of residence (being the place where he normally resided) and his place of work for the purposes of s 6(1)(b)(ii); that he had both a place where he normally resided (the family home) and a place where he resided temporarily (RAEME); that RAEME was a place where he resided temporarily as a matter of necessity or convenience for the purposes of his employment; and that he was injured while travelling between the family home and RAEME, and thus the injury fell within s 6(1)(b)(iii).  The Tribunal considered the meaning of the phrase “place of work”, and concluded that the whole area covered by RAEME, including the barracks, constituted the respondent’s “place of work”.

THE PRIMARY JUDGE’S DECISION

The questions of law canvassed before the primary judge included whether the Tribunal had misconstrued the phrase “normally resides” in the definition of “place of residence”, whether the facts found could support the conclusion that at the date of the accident the respondent was normally residing at the family home, whether the Tribunal had misconstrued the word “temporarily” in s 6(1)(b)(iii), and whether the facts found could support the conclusion that at the time of the collision the respondent was residing temporarily at the barracks.  The criticial part of his Honour’s reasoning on s 6(1)(b)(ii) is contained in the following passage:

The Tribunal gave detailed consideration to the question of the place where Mr O’Dea normally resided and the place where he resided temporarily as a matter of necessity or convenience, for the purposes of his employment.  He had been at the RAEME barracks for two working weeks only but had gone back to Traralgon for each of the two weekends of that period.  There was no suggestion that he had applied for permission to “live‑out” of the barracks.  The Tribunal referred to what Wilcox J said in relation to the “legal concept of residence” in Hafza v Director‑General of Social Security (1985) 60 ALR 674 at 680‑681 to support the view that Mr O’Dea, having established his “home” or residence with his parents at Traralgon and had the intention of treating it as his “home” or residence, in the sense of intending to return there, the fact that for previous periods he lived elsewhere did not prevent this “home” or residence being the place where he normally resided.  The Tribunal was satisfied on the material before it that this home was his place of residence before he joined the army, that he came back to that place, a defined area, whenever he had leave or at weekends, and where a room was kept by his family as his room at the “home”.  The Tribunal referred to and considered all material whether supporting the claim made by Mr O’Dea or detracting from that claim.  Having considered all these matters the Tribunal made the finding set out in paragraph 29 of its reasons.  This finding involves a question of fact.  There was ample material to support that finding.  As was said by Gummow J in Gauthiez v Minister of Immigration and Ethnic Affairs (1994) 53 FCR 512 at 519 the meaning ordinarily given to the phrases “resides”, “usually resides” and “ordinarily resides” is such as to make the result in a given case depend largely upon matters of fact and degree.

The primary judge accepted the conclusion and reasons of the Tribunal as to s 6(1)(b)(iii).  We have already recorded the Tribunal’s conclusion on this sub‑paragraph.  The central part of its reasons is as follows (pars 55 to 57):

Mr O’Dea’s residence in the RAEME barracks was to fulfil a passing need, that of being a trainee at the RAEME Training Centre.  It might in the normal course of events have lasted for less than 12 months, had he not applied for permission to “live‑out”, but it would not have lasted longer than 12 months.  Mr O’Dea was not at any stage going to be residing at the RAEME Training Centre indefinitely.

…

As Wilcox J said in Hafza v Director‑General of Social Security (1985) 60 ALR 674 the concept of “temporary” absence, or we would add “temporary” residence, implies that the absence or residence will be relatively short and that its duration will be either defined in advance or related to the fulfilment of a specific passing purpose.

We accept [counsel for the respondent’s] analysis that, as at January 1995, Mr O’Dea was a 20 year old apprentice fitter who had not yet made a home for himself or chosen his own residence.  He was still training, albeit employed by the Army.  For the purpose of twelve months of his training it was necessary or convenient that he live in Army accommodation at the RAEME barracks.  We find that his residence in single men’s quarters at the RAEME Training Centre was similar to residence in a boarding school or in a university college or to a medical student living in a hospital for part of his or her course.  Mr O’Dea’s residence in the RAEME barracks was temporary and only for the duration of his training.

THE RESPONDENT’S “PLACE OF RESIDENCE”

In reliance on Hafza v Director‑General of Social Security (1985) 60 ALR 674 the Tribunal said that the “test” whether the respondent’s parents’ home remained his place of residence, or one of his places of residence, was whether he retained a continuity of association with it, together with an intention to return there and an attitude that the place remained “home”.  The primary judge appears to have accepted this description of the “legal concept of residence”.  The appellant submitted that the Tribunal had applied a technical legal test found in matrimonial cases derived from the concept of domicile, and that “residence” in s 6 has its ordinary meaning of “a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration”.  That was Lord Scarman’s description of “ordinarily resided” in the provision under consideration in Reg v Barnet London Borough Council; Ex parte Shah [1983] 2 AC 309 at 337.

In our view the description of “residence” given in Hafza and applied by the Tribunal does not import the “intention” involved in the concept of domicile.  One element of domicile is the animus manendi – the intention of remaining in a place permanently or indefinitely.  That type of intention is not involved in the Hafza formulation.  Nor do we accept the submission, which in the argument was put more strongly at some times than at others, that intention has no part to play in determining whether a person is resident in a particular place.  Indeed it seems to us that in determining a person’s residence, the intention of that person may be vital.  If one restricts one’s inquiry to the objective facts – whether the person has retained a continuity of association with a place – one will make an incomplete review of relevant matters.  Take a Melbourne businessman who goes to Sydney to establish a branch of his company, a task that is expected to last three months.  He leaves his family in Melbourne and rents an apartment in Sydney and takes there some creature comforts to make life more bearable in a strange place – some books, a selection of compact discs and so on.  The task does last three months, and the businessman eats and sleeps in Sydney, and for three months that is his settled and usual abode.  He telephones his wife and children every day or so.  No one would suggest that the businessman had ceased to normally reside in Melbourne.  That is because at all times he intends to return to his family in Melbourne at the conclusion of the task.  So we reject the contention that an inquiry as to a person’s intention is irrelevant to the ascertainment of his or her residence.

Although the words used by Lord Scarman in Shah are not the same as those of Wilcox J in Hafza, his Lordship’s formulation has built into it the notions of intention and attitude – the voluntary adoption of a place for settled purposes.  The Tribunal made no error of law in adopting the Hafza test.

WHERE THE RESPONDENT “NORMALLY RESIDES”

The appellant contended that even if Traralgon was the respondent’s residence in the sense described by the Tribunal, it was not where he “normally” resided.  It was said that a person normally resides in a place where he or she regularly or customarily lives.  The submission was that certain of the Tribunal’s findings were inconsistent with its conclusion that at the date of the accident the respondent’s normal residence was at Traralgon.  These findings were that he loved the Army and had enlisted for a nine year term, that he had taken his easily movable possessions to RAEME, that he was initially posted to Latchford for two years, that he was living at the barracks at RAEME and could go as he pleased only after work or at weekends, that he was required to live on the base unless he obtained permission to live elsewhere, and that he would not have been given permission to live at Traralgon.  We do not regard these findings as inconsistent with the conclusion that the respondent’s normal residence was at Traralgon.  True it is that he had enlisted for nine years.  But the maximum stay at RAEME was only twelve months.  The barrister in our example took his easily movable possessions with him to Sydney without losing his normal place of residence in Melbourne.  The fact that the respondent spent only two years at Latchford, and was to have spent only twelve months at RAEME, simply reflects the fact of service life that a member may live for short periods in a variety of places.  In the case of a young unmarried serviceman, such as the respondent, who goes “home” during leave and at weekends, postings such as those at Latchford and RAEME are not inconsistent with having a normal residence at the place which is treated as “home”.  His time at RAEME was in fact less than two weeks.  Whenever he had leave he left Latchford for Traralgon, and at weekends he left RAEME for Traralgon.  Obviously the Army would not have consented to him living at Traralgon, which is about six hours drive away.  But that is not inconsistent with a conclusion that he normally resided at Traralgon.  For these reasons we do not accept the appellant’s inconsistency argument.  Furthermore, the appellant’s catalogue of findings is incomplete.  Other factors upon which the Tribunal was entitled to rely were that the respondent was an unmarried twenty year old who had not established his own conventional home, that prior to his enlistment he had lived with his parents, that after he joined up his parents kept his room available for his use when he came home, that while at Latchford he came home whenever he had leave, that after the passing out ceremony at Latchford at the end of 1994 he went back to Traralgon with his parents and spent the Christmas vacation there until he went to RAEME, that on the two weekends before the accident he came home, and that he was based at RAEME for twelve months only.  Taking all those circumstances into account the Tribunal was quite entitled to find that Traralgon was where the respondent normally resided.  As the primary judge said, the Tribunal’s conclusion that the respondent had not formed the intention to cease to treat his parent’s place as his place of residence, and that that was where he normally resided, was a finding of fact.  And as his Honour also said, where a person “resides”, “ordinarily resides” or “usually resides” in a particular case depends largely on matters of fact and degree.  The appellant has demonstrated no error of law on the Tribunal’s part in its determination of the respondent’s “place of residence” for the purposes in s 6(1)(b)(ii) or “the place … where he … normally resides” for the purposes of sub‑par (iii).

WHERE THE RESPONDENT “RESIDES TEMPORARILY”

Having determined that the respondent was travelling from his place of residence within s 6(1)(b)(ii) when the accident occurred, the Tribunal considered whether he was also travelling to his place of work.  It concluded that he was, and this conclusion was affirmed by the primary judge.  The Tribunal found that but for the accident the respondent would have arrived at RAEME at between 6:00 pm and 6:30 pm on 29 January.  It appeared to be common ground that he would have gone straight to the barracks (ie the sleeping quarters), and would not have gone to the “work” parts of the base until the next day.  This founded the argument that at the time of the accident he was travelling to his other place of residence and not to his place of work.  We do not need to consider this issue, which is not without difficulty, because we have come to the clear view that the Tribunal fell into no reviewable error in its conclusion, upheld by the primary judge, that the case fell within s 6(1)(b)(iii).  What the Tribunal said about the words “place of residence” in par (ii) is applicable to the words “normally resides” in par (iii).  The only other question is whether the barracks at RAEME was a place where the respondent resided “temporarily as a matter of necessity or convenience”, for the purposes of his employment.  There is no doubt that the respondent had been residing at the barracks from 16 January 1995 “as a matter of necessity or convenience”.  The issue is whether that was where he resided “temporarily”.  In Hafza Wilcox J considered the meaning of the word “temporary” in the context of the phrase “temporarily absent from Australia”.  At 682‑683 his Honour said:

The Shorter Oxford Dictionary defines “temporary” as ‘lasting for a limited time; existing or valid for a time (only); transient; made to supply a passing need’.  The Macquarie Dictionary definition is to similar effect, with the addition of ‘not permanent’.

…

I think that the adjective ‘temporary’ was used to denote an absence that was, both in intention and in fact, limited to the fulfilment of a passing purpose.  The purpose might be of a business or professional nature; it might be for a holiday or for compassionate or family reasons.  But, whatever the purpose, it seems to me to be implied in the concept of “temporary” absence that the absence will be relatively short and that its duration will be either defined in advance or be related to the fulfilment of a specific, passing purpose.

The Tribunal quoted this passage, and said that the respondent’s residence at RAEME was to fulfil a passing need, that of being a trainee there.  The maximum duration of his stay was twelve months.  If he had elected to “live‑out” it would have been shorter.  His residence there was to last for a limited time; it was not permanent.  We think the Tribunal’s analogies of a student living at a boarding school or in a university college are apposite.

The Tribunal’s conclusion that the respondent resided temporarily, as a matter of necessity or convenience, at the barracks was a finding of fact.  There was evidence to sustain it.  The primary judge correctly declined to interfere with the finding.

CONCLUSION

It was for these reasons that we dismissed the appeal with costs.

Associate:

Dated:              23 September 1998