AustLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Administrative Appeals Tribunal of Australia
You are here:  AustLII >> Databases >> Administrative Appeals Tribunal of Australia >> 2010 >> [2010] AATA 239

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Help]

Oliffe and Military Rehabilitation and Compensation Commission [2010] AATA 239 (1 April 2010)

Last Updated: 6 April 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 239

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/0218

VETERANS' APPEALS DIVISION
)

Re
JARRAD JAMES OLIFFE

Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal
Deputy President S D Hotop

Date 1 April 2010

Place Perth

Decision
The Tribunal affirms the decision under review.

..........[sgd S D Hotop]........

Deputy President

CATCHWORDS

COMPENSATION – Commonwealth employees – applicant served in Royal Australian Navy (“RAN”) – applicant injured in December 2000 travelling between RAN accommodation in Darwin and parents’ house in Perth while on leave – applicant claimed compensation for injury – applicant’s claim disallowed – applicant not travelling between place where normally resided and place where resided temporarily for purposes of employment – applicant’s injury not to be treated as having arisen out of or in course of employment – decision under review affirmed

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

Comcare Australia (Defence) v O’Dea (1998) 87 FCR 451

Hafza v Director-General of Social Security [1985] FCA 164; (1985) 60 ALR 674


REASONS FOR DECISION


1 April 2010
Deputy President S D Hotop

INTRODUCTION

  1. On 13 December 2000 Jarrad James Oliffe (“the applicant”) was injured in a motor vehicle accident. The accident occurred in the course of a journey from Darwin (where the applicant was serving in the Royal Australian Navy (“RAN”)) to his parents’ residence in Woodvale (a suburb of Perth) while he was on annual leave.
  2. In February 2008 the applicant claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) in respect of specified injuries which he claimed he had sustained in the motor vehicle accident on 13 December 2000.
  3. On 29 August 2008 a delegate of the Military Rehabilitation and Compensation Commission (“the respondent”) made a determination disallowing the applicant’s claim on the basis that an injury sustained in the course of the relevant journey in which the applicant was engaged was not compensable under the SRC Act.
  4. That determination was affirmed in a “reviewable decision” made by another delegate of the respondent on 21 November 2008.
  5. On 16 January 2009 the applicant applied to the Tribunal for review of the reviewable decision of 21 November 2008.

THE ISSUE AND THE TRIBUNAL’S DETERMINATION

  1. The issue for the Tribunal’s determination is whether the abovementioned journey, in the course of which the applicant was injured on 13 December 2000, falls within the “journey provisions” in s 6(1)(b) of the SRC Act (as in force at that time) such that an injury sustained by him in the course of that journey is compensable under that Act.
  2. For the reasons which follow, the Tribunal has determined that the relevant journey does not fall within the “journey provisions” in s 6(1)(b) of the SRC Act and, accordingly, compensation is not payable to the applicant, pursuant to that Act, in respect of any injury sustained by him on 13 December 2000 in the course of that journey.

THE RELEVANT PROVISIONS OF THE SRC ACT

  1. Pursuant to s 14(1) of the SRC Act, compensation is payable in respect of an “injury suffered by an employee” if the injury results in death, incapacity for work, or impairment. The word “injury” was defined in s 4(1) of that Act (as in force at all material times) to mean (inter alia):
“ an injury ... suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment”.

The word “employee” is defined in s 5(1) of that Act to mean, inter alios, “a person who is employed by the Commonwealth”. Section 5(2) provides:

“ Without limiting the generality of subsection (1):
...
(b) a member of the Defence Force; or
...
shall, for the purposes of this Act, be taken to be employed by the Commonwealth, and the person’s employment shall, for those purposes, be taken to be constituted ... by the person’s performance of duties as such a member of the Defence Force ...”

  1. Section 6(1) of the SRC Act (as in force at all material times) relevantly provided:
“ 6 Injury arising out of or in the course of employment
(1) 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:
(a) ...; or
(b) while the employee:
(i) ...;
(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;
...”

THE EVIDENCE

  1. The evidence before the Tribunal comprised:

The applicant’s evidence

  1. The following statement of the applicant, which accompanied his application for review, appears in the T Documents:
“ Prior to enlisting into the Navy on 16 January 1995 I lived with my parents at their home in Woodvale, a suburb of Perth Western Australia.
My family had been living in Woodvale in the same house since 1988.
The day I flew out my family went with me to the induction where I was signed into the Royal Australian Navy at a ceremony and then transferred to the airport where we said our goodbyes.
I left Perth with just a suitcase, as this was all I was permitted to take and flew to Melbourne Vic. When I arrived in Melbourne I was greeted by a Navy Member who then drove a group of other recruits to HMAS Cerberus, the base in Crib Point where I would be doing all my training.
During my training I kept in contact with my family via telephone calls and letters as leave to go back home was not permitted. In March ’95 my parents and sister flew to Melbourne to attend my graduation ceremony from recruit school. While in Melbourne my parents paid for the family to stay in a self contained apartment so we could all be together.
After graduating from recruit school I remained at HMAS Cerberus living in the temporary single person’s accommodation till July ’95 in order to complete further training. During this time I was still unable to return home to visit my family and kept in touch via telephone and letters.
In July ’95 I was posted to HMAS Canberra, a ship based in Sydney. All I could take with me was one suitcase, so I sent a case back home to my parents’ house to be put in my room with all my other possessions.
In Jan ’96 HMAS Canberra relocated port to Garden Island in Western Australia. Whenever I was not working or on duty, I returned home to the house at Woodvale. I continued to have my room there that had all of my possessions including work uniforms.
In March 1998 I received a posting to HMAS Coonawarra in Darwin Northern Territory. I was only entitled to live in single person’s accommodation, which was a small room with a shared common area and ablutions. I left the majority of my possessions at home in Woodvale for when I returned during leave.
Part of the rules of living on the base in Darwin was that I could not have any overnight visitors and all guests had to be approved by the Commanding Officer of the base. All guests had to leave by 10pm. I could not have my family stay with me while in the single person’s accommodation. Every leave/holidays I had I would travel back home. Driving or flying back to Perth. The cost of travel back home on leave was paid for by the Department of Defence.
In June 1999 I was posted to HMAS Dubbo, a patrol boat in Darwin. I still retained my entitlement to single men’s accommodation at HMAS Coonawarra but I was required relocate (sic) to a different room several times. Throughout this period I continued to have my room at the family home in Woodvale where I had the majority of my personal property. I also continued to regard the family house at Woodvale as my home.
At the time of the accident I was travelling from Darwin to go back home for holidays like I had done many times before.
Due to the instability of posting, locations of where I worked and the lack of choice of accommodation as a single person I never considered Darwin my permanent home. Most of the things that mattered to me were in Woodvale, family, friends, and my family home with my room and all my possessions I had to leave behind.
In my application, I had assumed that the place I spent most of my time sleeping was my permanent place of residence. It is for that reason I referred to my family home as a ‘temporary residence’, since I was only going to be there for a relatively short period before having to return to work in Darwin. However, at all times up to the time of the accident I regarded the house in Woodvale as my home and the place with which I retained an ongoing and continuous connection and association by reason of the fact that my room with most of my important possessions was there, my family all lived there, and most of my friends and close ties lived in and about Woodvale.” (T1, pp 10–11)

[The Tribunal notes that the “application” referred to in the last paragraph of the above statement is a reference to the applicant’s claim for compensation.]

  1. The applicant tendered in evidence (Exhibit A1) the following statement:
“ ...
I am the Applicant herein.
My parents are Garry and Charmian Oliffe.
I refer to my statement made in support of my application dated 16 January 2009 made herein and affirm the contents to be correct. The following statement is supplementary to that statement.
After finishing year 12 at Woodvale Senior High School in Perth, I joined the Navy. I had lived permanently with my parents at our home throughout my schooling years.
At our house at ..., Woodvale, I had my own bedroom with built in furniture.
I enlisted in the RAN on 16 January 1995 and held the rank of Able Seaman until I was promoted to the rank of Leading Seaman in January 2003. On 7 July 2008 I was discharged from the permanent RAN and thereafter joined the Navy as a reservist with the RANR.
After school I joined the Navy and went to HMAS Cerberus in Victoria for recruit training. When I went to Cerberus for 6 months I retained my room at home. All of my books, stereo and a lot of other personal things, including a lot of my clothes, were left at home for me to come back to.
My parents came over to Cerberus in Victoria for my graduation.
From Cerberus I joined the ship’s company of HMAS Canberra. I sent back home a lot of my clothes because I was only allowed my uniforms and 2 duffle bags on the ship. I continued to have my room at home where I kept most of my personal items.
Whenever I got leave, I would return home.
In March 1997 I was hospitalised at the naval hospital at HMAS Penguin. I was flown home to the family home in Woodvale to convalesce until I was ready to return to duty. Later that year I moved back to WA on compassionate leave (sic) when my mum was ill. Although I had a cabin at HMAS Stirling for convenience (because it was over an hour’s drive to and from Stirling each day from our house) my mother (or my father) would pick me up on Friday afternoons to come home and I would stay at home until Sunday night when they would take me back to Stirling.
During the time I was at Stirling, I left my car at the family home rather than leave it at Stirling.
From Stirling I was then posted to Patrol Boats in Darwin in March 1998. Whenever the patrol boat was in port, I was not allowed to live on board (unless I was allocated to duty as part of the on call fire crew) and had to utilise the single men’s shore accommodation at HMAS Coonawarra which is where I stayed whilst working during periods when the patrol boat was not at sea.
Whilst in Darwin I would return home, usually by car, for holidays. Throughout that time I continued to have my room at home with my personal gear in it. I considered throughout this period that the house in Woodvale was my permanent home, where I would return to be with family and with my good friends and girlfriend who all lived in Perth.
During this period I was also building a model ship in my room at home. It was a replica of the Endeavour. It was a continuing project which I would work away at whenever I returned home. Dad would often give me a hand or offer advice when I was back working on it.
At this time my parents had also set up a home link call service with Telstra which allowed me to ring home for free whenever I wanted to. I would have rung home at least twice a week.
Prior to the motor vehicle accident, in about November 2000, I had received approval for a posting to WA to be with my family for compassionate grounds, as my mother was again unwell at the time, and I wanted to be with her at home. As at the date of the accident I knew that I was only residing temporarily at HMAS Coonawarra waiting for my posting to a patrol boat based in WA to go through, which occurred in about March 2001.
Attached are copies of my request for posting dated 16 September 2000 and LCDR Watson’s memo supporting my request dated 10 November 2000.
The accident on 13 December 2000 occurred 30kms north of the Minilya Roadhouse on the North West Coastal Highway, approximately 120 kms north of Carnarvon. To the best of my recollection I was following the normal route that I always took when driving back home from Darwin.
The normal route I took started in Darwin at HMAS Coonawarra. Via Stuart Hwy and then Victoria Highway I would drive to Timber Creek NT. I would spend the night at Timber Creek to rest. From Timber Creek I continued south west to Fitzroy Crossing WA on the Great Northern Hwy. I usually stayed an extra day in Fitzroy Crossing to rest before continuing on my journey. From Fitzroy Crossing I continued south along the Great Northern Hwy to South Hedland. I usually stayed at my sister’s house in South Hedland for a couple of days. From South Hedland I would travel along the North West Coastal Hwy stopping at Carnarvon overnight and then Geraldton overnight. I would then continue along the North West Coast Hwy arriving home in Perth.
The trip usually took between five to seven days, and during each leg of the journey I would stop for rests from driving at regular intervals.”
  1. The applicant’s request for a posting to Western Australia, dated 16 September 2000, referred to in his abovementioned statement, stated as follows:
“ 1. I request a posting in the Perth locality due to my mother being recently diagnosed with a form of Crohns disease, deep depression and stress related illnesses. The stress has made her unable to work and she frequently suffers from tumours and headaches.
  1. My mother has asked me for family support to help in her recovery. Currently my sister is living in South Hedland, 1800km north of Perth, caring for her husband who has emphysema so she is unable to provide this support.
  2. While posted in Darwin I have received many telephone calls regarding my mother’s health. On one occasion I was told had she not got to hospital when she did she would have been dead within 48 hours. I feel if I am unable to provide the support my mother desires the next telephone call I get will be one telling me she is dead.
  3. I have recently spoken to her regarding the possibility of me being posted to the Perth locality. I explained to her I would like to stay at sea and she agreed. She said it wasn’t the time away that mattered but the stability of being close by if needed; the fact the majority of time alongside would be in Perth.
  4. I would preferably like to stay at sea on Patrol Boats. I enjoy Patrol Boat life and believe the eight-week at sea, eight-week alongside routine would provide the stability and support my mother desires.
  5. If a posting to Patrol Boats is not possible than (sic) I am willing to accept any sea billet in the Perth locality. I do not wish to post ashore unless no sea billets are available.”

The Minute of LCDR Watson, dated 10 November 2000, also referred to in the applicant’s statement, stated as follows:

“ 1. ABBM Jarrad James Oliffe ... has requested a compassionate posting to the Perth locality to enable him to be in close proximity to his ailing mother. Oliffe’s mother has recently been diagnosed as having a form Crohns (sic) disease, a genetic illness that affects the digestive system of the patient. In addition, she suffers from depression and stress related illnesses.
  1. Oliffe (sic) parents reside together, however his father is working full time and suffering from work related stress himself, rendering him unable to continuously provide support and strength for his wife. Oliffe believes that he will be able to provide more support to both his parents if posted to a unit at Fleet Base West. All other immediate family members are far removed from the Perth region and unable to assist as they are coping with their own personal health predicaments.
  2. Oliffe is currently posted in HMAS DUBBO, a billet that he thoroughly enjoys. Nevertheless, the deteriorating condition of his mother causes him concern and a posting to Western Australia will facilitate for him to provide care and assistance to his mother.
  3. To assist in this request, ..., the sailor who was original (sic) posted to DUBBO to relieve ..., would be a suitable replacement for Oliffe on completion of the PJT/SE course in April 2001. Request DSCM post ... to DUBBO 30 April 01 to relieve Oliffe.
  4. Whilst it may seem contradictory to his original motives, Oliffe has requested that remain (sic) at sea, preferably in a Fremantle Class Patrol Boat. Oliffe and his mother have discussed at length his aspiration to remain in a sea-going billet. She has expressed her understanding of his desire to pursue his naval career and appreciates that Oliffe is endeavouring to accommodate both his own and her requirements with this request. Oliffe’s willingness to remain at sea should hold him in good stead to be granted a compassionate posting to a unit at Fleet Base West.
  5. A sailor who is motivated towards his advancement in the Royal Australian Navy and yet still endeavouring to fulfil his duty as a son, Oliffe’s request for a compassionate posting is supported.”
  6. In his examination-in-chief the applicant confirmed that the contents of his abovementioned statements are true and correct, and he also gave evidence to the following effect:
  7. In cross-examination the applicant gave evidence to the following effect:

Statement of Garry James Oliffe

  1. The applicant tendered in evidence a statement of Garry James Oliffe (Exhibit A2). Mr Oliffe was not required by the respondent for cross-examination and he did not give oral evidence. Mr Oliffe’s statement is as follows:
“ ...
2. I am retired and live with my wife, Charmain (sic) at ..., Erskine, WA.
3. We are the parents of Jarrad James Oliffe, the Applicant in these proceedings.
  1. After finishing year 12 at Woodvale Senior High School in Perth, Jarrad joined the Navy.
  2. Jarrad had lived permanently with us at our home throughout his schooling years.
  3. At our house at ..., Woodvale, Jarrad had his own bedroom with built in furniture.
  4. After school Jarrad joined the Navy and went to HMAS Cerberus in Victoria for his recruit training. When he went to Cerberus for 6 months he retained his room at home. All of his books, stereo and a lot of other personal things, including a lot of his clothes, remained in his room for whenever he was able to get home.
  5. From my point of view nothing changed in terms of where Jarrad’s home was albeit he was physically out of the state doing his Naval training at the time.
  6. Whilst Jarrad was at Cerberus we visited him there for his graduation.
  7. From Cerberus he joined the ship’s company of HMAS Canberra. Things remained the same as they were whilst he was at Cerberus in terms of his room at home and his keeping his personal items there.
  8. Jarrad during this time invariably returned home whenever he got leave.
  9. He moved to WA for 6 months in 1997 on compassionate leave when my wife was ill. Although he had a cabin at HMAS Stirling (because (sic) it was over an hour’s drive to and from Stirling each day from our house) my wife or I would pick him up on Friday afternoons to come home and he would stay at home until Sunday when we would take him back to Stirling.
  10. During the time he was at Stirling, he left his car at our house rather than have it with him at Stirling.
  11. From Stirling he was posted to HMAS Coonawarra in Darwin to work on patrol boats in March 1998.
  12. Whilst he was in Darwin he would return home, usually by car, for his holidays. He continued to maintain his room at home with his gear in it.
  13. During this period Jarrad was building a model ship in the garage at our home, it was a replica of the Endeavour. He would pick up where he left off whenever he returned. It was a fairly laborious labour of love which was a continuous thing that he came back to whenever he returned home on leave. I would often help him out with (sic) when he was back and working on the model.
  14. At the time Jarrad had his accident on the way home from Darwin, it was our understanding and expectation that our house was Jarrad’s home and he would return there whenever he had leave to be with us and his friends.
  15. At this time we had set up a home link call service with Telstra which allowed Jarrad to ring home for free whenever he wanted it. He rang home frequently to talk with us. In my estimate he would ring home twice a week at least. He even rang us when he was at sea on the patrol boat.
  16. We are a very close family. We felt that Jarrad was a part of our household throughout the time he was serving in Darwin albeit he was away for work reasons for extended periods of time. He always returned home when he was on leave and would resume home life as a member of the household. We planned our lives around his leave to ensure that we were always here when he came home. He had his own set of house keys and could come and go from home as and when he chose.
  17. I recall when Jarrad moved out of home in 2001, he took with him all his gear and clothes. He basically emptied thehis (sic) room and took most of the stuff he had stored in the shed with him. It was then that I regarded Jarrad as leaving home to set up his own place. Prior to that, as far as I was concerned he was a part of the household albeit he spent a lot of time away with his work in the Navy.”

Statement of Charmian Helen Oliffe

  1. The applicant tendered in evidence a statement of Charmian Helen Oliffe (Exhibit A3). Mrs Oliffe was not required by the respondent for cross-examination and she did not give oral evidence. Mrs Oliffe’s statement is as follows:
“ ...
2. I am retired and live with my husband, Garry, at ..., Erskine, WA.
3. We are the parents of Jarrad James Oliffe, the Applicant in these proceedings.
  1. I have read my husband’s statement herein and confirm that the (sic) correctness of paragraphs 4 to 20 therein. The observations he makes about Jarrad’s connection and relationship with us and our home at Woodvale are accurate.
  2. In addition I recall when Jarrad was on HMAS Canberra whilst it was home ported to WA, picking him up every Friday and then returning him on Sunday evenings.
  3. When Jarrad was posted to HMAS Stirling after Canberra, he had a cabin at Stirling for convenience of work because it was a long drive from our house to Stirling and they started work early, but always returned home on the weekends.
  4. I was sick with a mental breakdown and associated illnesses between 1997 and 2001. During that time Jarrad was given compassionate leave to spend time with me at home.”

ANALYSIS

  1. Although in his Statement of Facts, Issues and Contentions filed on 29 April 2009 the applicant sought to rely on subpara (ii), or alternatively subpara (iii), of s 6(1)(b) of the SRC Act, at the hearing he sought to rely solely on subpara (iii). The applicant abandoned his reliance on subpara (ii) because he acknowledged that HMAS Coonawarra (where he was living in the single men’s quarters), from where the relevant journey commenced, was not his “place of work”, within the meaning of subpara (ii). Instead, the applicant submitted that HMAS Coonawarra was “a place where he ... reside(d) temporarily, as a matter of necessity or convenience, for the purposes of his ... employment”, within the meaning of subpara (iii), and that his parents’ residence at Woodvale (“the Woodvale house”) (the destination of the relevant journey) was “the place where he ... normally reside(d)”, within the meaning of that subparagraph.
  2. Clearly, the Woodvale house was not “a place where [the applicant] reside(d) temporarily ... for the purposes of his ... employment”, within the meaning of s 6(1)(b)(iii) of the SRC Act. The critical issue, therefore, is whether the Woodvale house is “the place where he ... normally reside(d)”, within the meaning of that subparagraph.
  3. In Hafza v Director-General of Social Security [1985] FCA 164; (1985) 60 ALR 674 Wilcox J said (at 680-681):
“ There is a plethora of decisions, arising in various contexts but predominantly matrimonial causes and revenue cases, relating to the legal concept of residence. As a general concept residence includes two elements: physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily forever. The concept was explained in a taxation case, Koitaki Para Rubber Estates Ltd v FC of T [1941] HCA 13; (1941) 64 CLR 241 at 249, by Williams J: ‘The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other abode.’
Physical presence and intention will coincide for most of the time. But few people are always at home. Once a person has established a home in a particular place, even involuntarily (see Inland Revenue Commissioners v Lysaght [1928] AC 234 at 248 and Keil v Keil [1947] VLR 383) a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place (Levene v Inland Revenue Commissioners [1928] UKHL 1; [1928] AC 217 at 225 and Judd v Judd (1957) 75 WN NSW) 147 at 149) together with an intention to return to that place and an attitude that that place remains ‘home’ (see Norman v Norman (1969) 16 FLR 231 and 236). It is important to observe, firstly, that a person may simultaneously be a resident in more than one place – see the facts of Lysaght and the reference by Williams J to ‘a home or homes’ – and, secondly, that the application of the general concept of residence to any particular case must depend upon the wording, and underlying purposes, of the particular statute in relation to which the question arises. But, where the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as ‘home’, a change of intention may be decisive of the question whether residence in a particular place has been maintained.”

In Comcare Australia (Defence) v O’Dea ( 1998) 87 FCR 451 the Full Court of the Federal Court of Australia said (at 455):

“ 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.”
  1. There is no dispute that the place where the applicant “normally resided” from 1988 to the date of his enlistment in the RAN, namely, 16 January 1995, was the Woodvale house. Nor, having regard to the evidence, can there reasonably be any dispute that, throughout the period from March 1998 to April 2001 when the applicant was posted in Darwin, he ate and slept and had his “settled or usual abode” at HMAS Coonawarra and, in that sense, was resident there during that period: see Hafza; O’Dea (above). The critical matter for the Tribunal’s determination, however, is whether, as at 13 December 2000, the Woodvale house was the place where the applicant “normally resided”, within the meaning of s 6(1)(b)(iii) of the SRC Act.
  2. According to the evidence of the applicant, and the abovementioned statements of his parents:

The respondent did not dispute that evidence and the Tribunal accepts it.

  1. Furthermore, according to the applicant’s own evidence, at all times up to the date on which he sustained the relevant injuries, namely, 13 December 2000, he continued to regard the Woodvale house as his “home” and “the place with which [he] retained an ongoing and continuous connection and association by reason of the fact that [his] room with most of [his] important possessions was there, [his] family all lived there, and most of [his] friends and close ties lived in and about Woodvale”.
  2. On the basis of the applicant’s evidence, the Tribunal is satisfied that, from the time of his enlistment in the RAN in January 1995 to the completion of his posting at HMAS Dubbo in Darwin in April 2001 (including the date on which he sustained the relevant injuries, namely, 13 December 2000), the applicant, although he was living in RAN accommodation for most of that period, nevertheless “retained a continuity of association with” the Woodvale house (Hafza, at 680). The critical issue for the purpose of determining whether the applicant was continuing to “reside” at the Woodvale house as at 13 December 2000 is, however, whether as at that date he had the intention of returning to the Woodvale house and residing there as his home in the future (Hafza; O’Dea, above);
  3. The Tribunal notes the applicant’s evidence that, throughout the period of his RAN service up to and including his posting in Darwin (during which he sustained the relevant injuries on 13 December 2000), he continued to regard the Woodvale house as his “home”. The Tribunal regards that evidence as credible and, indeed, reasonable given that the Woodvale house was the family home in which he lived with his parents from 1988 to January 1995 (when he enlisted in the RAN at the age of 17 years), and also given that, throughout the period from 1995 to April 2001, he was living in RAN accommodation in various locations where he had been posted and had not yet “established his own conventional home” (O’Dea, at 456).
  4. The question remains, however, whether the applicant, as at 13 December 2000, had the intention of returning to the Woodvale house and residing there as his home in the future. It is unclear from the applicant’s own evidence whether or not he had that intention as at 13 December 2000. There is, however, contemporaneous documentary evidence before the Tribunal which, in the Tribunal’s opinion, points to the applicant’s actual intention at that time regarding his proposed accommodation arrangements. In this connection the Tribunal notes the terms of the applicant’s request, dated 16 September 2000, for a compassionate posting in the Perth locality by reason of his mother’s ill health (see paragraph 13 above). It is clear from the terms of that request (which was made by the applicant approximately three months before the date on which he sustained the relevant injuries) that the applicant, in the event that that request was granted, was not contemplating returning to live at the Woodvale house but, instead, wished to be posted to a sea-going billet and not to be posted ashore. The Tribunal also notes the applicant’s own evidence that, when he was eventually posted to HMAS Canberra at HMAS Stirling in Rockingham near Perth in April 2001, he shortly thereafter, having received approval to “live out”, “set up” by himself in a rented house in Warnbro, about 20–25 kilometres from the base, and he subsequently moved to Port Kennedy in late 2003/early 2004 and then to Secret Harbour (where he presently continues to reside) in 2005 prior to his discharge from the RAN in 2008.
  5. Having regard to the evidence referred to in paragraph 26, the Tribunal is satisfied that, as at 13 December 2000, the applicant did not have the intention of returning to the Woodvale house and residing there as his home in the future. Accordingly, notwithstanding the applicant’s evidence that, as at 13 December 2000, he “retained an ongoing and continuous connection and association” with the Woodvale house and regarded it as his “home”, the Tribunal finds that, as at 13 December 2000, he did not have the intention of returning to reside at the Woodvale house as his home in the future.
  6. On the basis of that finding the Tribunal concludes that:
  7. The Tribunal notes that the applicant claimed in his statement (Exhibit A1 – set out in paragraph 12 above) that “in about November 2000, [he] had received approval for a posting to WA” and that, as at 13 December 2000, he “knew that [he] was only residing temporarily at HMAS Coonawarra waiting for [his] posting to a patrol boat based in WA to go through ...”. The Tribunal, however, is not satisfied that, prior to 13 December 2000, the applicant had in fact received approval for a posting to Western Australia. Although there is official documentary evidence that the applicant’s request (which was made to the Executive Officer of HMAS Dubbo) for a compassionate posting to the Perth locality was supported by his Commanding Officer on 10 November 2000 (see the Minute of LCDR Watson set out in paragraph 13 above), there is no such evidence before the Tribunal regarding the date on which the applicant’s request was officially approved. There is, however, official documentary evidence before the Tribunal that the date of the applicant’s posting to HMAS Canberra was 16 April 2001 (T38, p 89). The Tribunal observes that, even if the applicant’s claim that, as at 13 December 2000, he was “residing temporarily” at HMAS Coonawarra was correct, it would not necessarily follow that he was then “normally residing” – or even “residing” – at the Woodvale house.
  8. Having regard to the whole of the evidence before it, the Tribunal is satisfied, and finds, that, as at 13 December 2000, the place where the applicant “normally reside(d)”, within the meaning of s 6(1)(b)(iii) of the SRC Act, was not the Woodvale house but was, instead, the single men’s quarters at HMAS Coonawarra in Darwin.

CONCLUSION

  1. It follows from the Tribunal’s finding that, as at 13 December 2000, the Woodvale house was not “the place where” the applicant “normally reside(d)”, within the meaning of s 6(1)(b)(iii) of the SRC Act, that that subparagraph is not satisfied in the circumstances of the applicant’s case. The applicant did not contend that any other subparagraph in s 6(1)(b) of the SRC Act is applicable in his case. The Tribunal concludes, therefore, that any injury sustained by the applicant on 13 December 2000 in the course of travelling between HMAS Coonawarra and the Woodvale house is not, pursuant to s 6(1)(b) of the SRC Act, to be “treated as having arisen out of, or in the course of, his ... employment”.

DECISION

  1. For the above reasons the Tribunal affirms the decision under review.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

Signed: ...............[sgd D Brodie]........................

Associate

Date of Hearing 9 March 2010

Date of Decision 1 April 2010

Counsel for the Applicant Mr R Nash

Counsel for the Respondent Ms L Walker

Solicitor for the Respondent Australian Government Solicitor

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/cth/AATA/2010/239.html