Case: Maunder v Commonwealth of Australia (1983) 51 ALR 44
Outcome: considered
The Tribunal member referred to two authorities: Maunder v Commonwealth of Australia (1983) 51 ALR 44; Re James and Commonwealth of Australia [1983] AAT, N81/272 (Unreported, R K Todd, 6 July 1983) and then turned to consider whether the means of transport adopted by the respondent (ie driving his own motor vehicle) satisfied the three requirements in s 34(4)(b)(i),(ii) and (iii). He held that the means of transport adopted by the respondent did satisfy the requirements and he said that the following were 'some' of the relevant circumstances: '1. The applicant used his own personal vehicle as the means of transport in accordance with what was obviously a long established practice and entitlement of Army personnel. The Army accepted that a soldier in the applicant's position was entitled to use his private vehicle to travel to his new posting and the Army was prepared to grant time and money to the applicant to facilitate that. 2. If the applicant were to return to Holsworthy by air travel it would have been necessary for him to return to Perth from Kalgoorlie in order to do so. 3. I accept the applicant's evidence that it was necessary and desirable to allow some leeway in travelling time so as to cater for the possibility of mechanical trouble and I also accept the evidence of the applicant and Mr March that it was normal for personnel arriving at a new base to arrive early. I note in passing that the current Army practice of calculating travel time on the basis of driving about 600 kilometres per day would imply a reasonable travelling time for the applicant of approximately 5 days. In my opinion it would have been unreasonable for a person in the applicant's position to have attempted to time his arrival at Holsworthy after such a long journey to the period between 8.00 pm on 23 September and 7.30 am on 24 September especially as he was expected to be fit for duty at 7.30 am.' 24 The Tribunal member then turned to consider if the means of transport adopted by the respondent was the last means of transport which satisfied s 34(4)(b)(i), (ii) and (iii). He decided that it was, although as to public transport he said no more than that 'although public transport may have been an option for the [respondent], it was not an option that, in my opinion, satisfied the three provisos ...'. 25 For these reasons, the Tribunal member concluded that the journey was deemed to be a journey to the respondent's employment by the Commonwealth for the purposes of s 32(1) of the 1971 Act and therefore part of his employment by the Commonwealth for the purposes of s 27(1) of that Act. 41 I was referred to the decision of the Full Court of this Court in Maunder v Commonwealth of Australia (supra). That case concerned a claim by Captain Maunder's widow for compensation in relation to the death of Captain Maunder from injuries he sustained in an accident in his own motor vehicle some time after he had left a regimental depot. The Administrative Appeals Tribunal rejected the claim on the ground that the means of transport used by Captain Maunder, having regard to his inebriated state, was not one he could reasonably have been expected to use within s 33(3)(b)(iii). It is true that the Court did not say transport by private motor vehicle could never be the 'first' means of transport (the case involved a journey from work) within s 33(3)(b), but the Tribunal had decided the case on a different ground and the only issue before the Full Court was whether the Tribunal had erred in law in doing so. The applicant sought to draw some support for its second submission from the following observation made by the Court (at 51): 'In speaking of the first available means of transport, s 33(3)(b) read in its context is clearly referring to the means of transport first available to the employee after the employee ceased work. The legislative intention seems to be that, if the employee delays in leaving his place of employment and commencing his journey until after the prescribed period, he must, to obtain the benefit of s 33, show that a means of transport was not available to him during the prescribed period.' 42 The applicant submitted that this observation, appropriately adapted, applied equally to those provisions dealing with journeys to employment and that an employee like the respondent who could choose to leave in his own motor vehicle at a time such that he would arrive within the prescribed period did not fall within the provisions of s 34(4)(b) of the Act. There is a good deal of force in this submission. However, I have reached the conclusion that if I were to accept the submission I would be reading words into the section which are not there. There is nothing in the section which requires the employee to show that there is no means of transport which would see him arrive within the prescribed period, or which provides that transport by private motor vehicle cannot be the last means of transport within the subsection because the employee can choose when to commence his journey and therefore, to a point in the case of a long journey, when he will arrive. 43 Once these conclusions are reached, a conclusion that it was open to the Tribunal member to find that in the particular circumstances of this case the journey by the respondent in his own motor vehicle satisfied the requirements of s 34(4)(b) is inevitable. The Army not only allowed him to drive his own motor vehicle to the Army base at Holsworthy but granted him leave to do so and contributed to the costs of doing so. In the particular circumstances of this case, transport in this way was not only a means of transport he could reasonably have been expected to use, but was the means of transport he could reasonably have been expected to use. I reject the applicant's challenge to the Tribunal member's conclusion that the case fell within the terms of s 34(4). 44 I reject the applicant's submissions and, accordingly, the appeal must be dismissed. I will hear the parties as to the costs of the appeal. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 13 March 2007 Counsel for the Applicant: Mr J Lenczner Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr R J L McCormack Date of Hearing: 16 June 2006 Date of Judgment: 13 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/301.html