Catlow v Accident Compensation Commission

[1989] HCATrans 95

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M75 of 1988

B e t w e e n -

GORDON CATLOW

Appellant

and

ACCIDENT COMPENSATION

COMMISSION

Respondent

BRENNAN ACJ
DEANE J
DAWSON J
GAUDRON J

McHUGH J

Catlow(2)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 2 MAY 1989, AT 10.17 AM

Copyright in the High Court of Australia

C2T 1/1/JM 1 2/5/89

MR M.E.J. BLACK, QC:  May it please the Court, I appear

with my learned friend, MR C. MAXWELL for

the appellant. (instructed by Maurice Blackburn & Co)

MR J.D. PHILLIPS, QC:  May it please the Court, I appear

with my learned friend, MR R.P. GORDON for

the respondent. (instructed by Solicitor,

Accident Compensation Corrnnission)

BRENNAN ACJ: Yes, Mr Black?

MR BLACK: If the Court pleases, I would hand to the Court

an outline of the appellant's submissions.

BRENNAN ACJ: Yes, Mr Black?

MR BLACK: If the Court pleases, this is an appeal from the

Full Court of the Supreme Court of Victoria

which decided adversely to the appellant,

who was a worker within the meaning of the

ACCIDENT COMPENSATION ACT, a question of law

that came before it from the Accident Compensation

Tribunal. The appeal involves the interpretation

of one of the central provisions of the still

relatively new Victorian Act and that provision

is section 95 which provides how what are

termed pre-accident average weekly earnings

are to be calculated for the purpose of

calculating weekly payments of compensation.

(Continued on page 3)

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Catlow( 2)

MR BLACK (continuing): It may be of assistance to the

Court if I-·spend perhaps no more than five

minutes outlining the general structure of the

Act. It is somewhat different to the Acts that

the Court has had occasion to consider in the
past, although in many essential elements it

introduces nothing new.

Legislation was introduced in 1985 and

I think the Court has reprint No 1 which is

a little later than the time relevant to this

appeal but the amendments are clearly identified

and the Court will find the first reprint the

convenient Act to use. The Act to a large extent

embodies familiar concepts, such as "worker",

"employer" and "injury", all of which are defined,

but it does involve quite considerable departures

from the old scheme of things, particularly in

relation to funding and administration. Now,

instead of the liability being imposed directly

upon the employer, who was required to insure,

in general terms the bulk of the liability is

assumed by the Accident Compensation Commission

itself.

The Act contains the classical definitions

of "worker", some traditional extensions to that

concept and also some new extensions borrowed

from pay-roll tax legislation which have caused

their own difficulties but not ones that will
trouble this Court. There are some very complicated

sections in it. The central compensation provision

is section 82 - it is on page 65 of the Court's

print - which provides that:

If there is caused to a worker

an injury arising out of or in the course

of any employment the worker shall be entitled

to compensation in accordance with this

Act.

(Continued on page 4)

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Catlow(2)

MR BLACK (continuing):  And, that section appears in

Part IV of the Act, which is the part

relevant to this appeal and it is headed,

"Payment of Compensation". Now, the nature

of compensation provided for under the Act

follows the fairly traditional pattern. In
the case of death there are provisions for

compensation of dependants and they are

in section 92. There are still, what used to

be termed and still are termed, "tabled

injuries"; they are in section 98 on page 82

of the print. Those are in addition to any

other compensation payable under the Act and

they include the familiar industrial disability

such as loss of the sight of eyes, limbs and

so forth, with some additions.

· But, the principal m:t..l-iod of compensation for incapacitated workers is weekly payments

during the period of incapacity and they operate

in two situations. First, in the case oi

partial incapacity: · 94 deals with that at
page 75 of the Court's print and, in particular,

sections 94(4) and (5). If I might take the

Court immediately to section 94(4) and (5) on

page 76 of the print for the reason that the

Court will immediately see used the critical

expression, or one of the critical expressions,

in this case. If I might go to section 94(5)?

It provides:

Subject to sub-section (6), a weekly

payment to a worker who is partially

incapacitated and is not employed

shall be -

(a) an amount equivalent to 80 per cent of the worker's pre-injury

average weekly earnings.

Now, that is the critical phrase that is defined

in section 95 to which I will come very shortly. (Continued on page 5)

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Catlow(2)

MR BLACK (continuing): Section 93(4) is, in fact, the section

more directly relevant in this case. That is the

provision for compensation for total incapacity. It

is on page 74, towards the bottom of the page and it

provides:

Subject to this section, a weekly payment to

a worker shall be an amount equivalent to -

(a) 80 per cent of the worker's pre-injury

average weekly earnings; or

(b) $400 -

whichever is the lesser.

I should add that there is an indexation provision in

the Act and the figure of $400 is now, I think, $481.

There is general indexation.

The Court will see that those two critical

sections all involve a reference to the worker's

pre-injury average weekly earnings and the method

of calculating those is provided for in section 95

on page 77 of the Court's print and it is that

section and, in particular, section 95(1) which is

centrally in issue in this appeal and I will come

back to that if I may in a moment.

One of the features of this Act is that, except

in very, or rather, limited circumstances and motor

car accident cases would appear to be the main ones,

a worker in Victoria who is entitled to compensation

under this Act may not, in proceedings in respect of

that injury, recover any damages for his pecuniary loss

so that the situation of a totally incapacitated worker

in respect of his pecuniary loss falls to be determined

in accordance with the rights to weekly compensation

provided for under the Act. I will come back to that

point when addressing the Court quite late in the

argument on questions of policy in so far as they

may be relevant to the interpretation of this

legislation.

To complete the picture, might I say that the

financial aspects of the new scheme are quite different.

As I indicated earlier, save to a limited extent in respect of the first small part of liability, the liability is to be assumed by the Accident Compensation

Commission established under the Act.

(Continued on page 6)

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Catlow(2)

MR BLACK (continuing): That appears from section 125, although

there are provisions in the Act in Part IV for

corporations to be approved as self-insurers in certain

cases. To paint the final strokes on the picture,

Part VIIof the Act imposes a levy on employers according to what is termed leviable remuneration. That is

payable to the Commission itself under section 200

and the funds are administered by the Commission.

Finally, Part III of the Act establishes the Accident Compensation Tribunal, which has various

divisions, a conciliation division and, at the

relevant time, a tribunal division. The tribunal

division has as its members persons qualified

to be judgea,and at the relevant time, the president

of the tribunal wasHis Honour Judge Hart of the

country court of Victoria.

The objects of the Act are specified in section 3

and that is on page 2 of the print and they are,

amongst other things:  ·

(a) to reduce the incidence of accidents and

diseases .....

(b) to make provision for the effective

rehabilitation of workers .....

(ba) to increase the provision of suitable

employment .....

and (c) to provide suitable and just compensation

to injured workers;

(d) is an important object, it is the speedy delivery

of claims, and all this in the overall context of

reducing the cost to the

Victorian community of accident compensation. I

should have said that the Act also turns attention

to questions of rehabilitation and establishes

bodies to further that end. That is in Part VI of

the Act under which the Victorian Accident Rehabilitation

Council is established.

BRENNAN AG.I: Mr Black, da:s the concept of leviable remuneration

require any consideration in this context?

MR BLACK:  No, it does not. Might I now take the Court to the

facts of this case. They may - it may be of assistance

to the Court if I hand to the Court a chart that we

have prepared. It is referenced directly to the

appeal book. I regret to say it is in handritine,

though, since it is my junior's handwriting, it is

legible, which could not have been said of the original.

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Catlow(2)

MR BLACK (continuing):  The reason it is in handwriting is

that word processors, we have found, have limited

capabilities and we did not have the trusty

Olivetti - I trust the Court will not mind if it

is in handwritten form.

What happened in this case - before I go to

the chart - was essentially this:	Mr Catlow was
employed as a supervisor by Safeway.	He was

employed under the terms of industrial agreements

which were varied so as to require him to work

more than the normal number of hours. The extra

number of hours which he was to be required to

work were not specified but it was contemplated

that they would be quite substantial as, indeed,
they were.

What happened in his case_- if I may now go to the chart and start in the middle on the left.

Might I say that the chart spans a relevant year

which began 12 months before his injury. His

relevant injury occurred in October 1985 and he

ceased work in compensable circumstances on

26 October 1985 and accordingly was entitled to

compensation in the form of weekly payments as

for a total incapacity.

The section 95 to which I will shortly come

requires one to go back 12 months to assess his pre-accident average weekly earnings. So going

back 12 months, to the left of the column, one

finds that 12 months before the accident he was

receiving pay of $357 for the 36 hours - that was

his ordinary rate of pay. At that time he was off

work for a compensable injury and he was off work

for 12 pay periods. That fact, I might indicate,

raises the minor point in the appeal which on the

special leave application I thirlk I said I would

take no more than five minutes about - it is a

point peculiar to Mr Catlow, of no relevance to

anyone else because the statute has since taken

care of it. (continued on page 8)

C2T7/l/DR	7	2/5/89
Catlow(2) ·

MR BLACK· (continuing):  In any event, he was off work for

12 pay periods. He then resumed work and between

the time he resumed work and the time he ceased work

he worked for 1963½ hours of which nearly

a third was overtime - 664.5 hours. And, I should

add, his pay increased somewhat during the year.

The question then arose as to how, in those circumstances, his pre-accident average weekly

earnings should be calculated. If I might now

take the Court to the section and then come back

to the chart and I trust then that the matters

in issue will become apparent.

If the Court would go to section 95, it

will find that:

In sections 93 and 94 -

which are, respectively, the total and partial

incapacity sections -

the "worker's pre-injury average weekly

earnings" means -

(a) the average weekly earnings during the

12 months preceding the relevant injury

if the worker has been continuously employed

by the same employer for that period; or

(b) the average weekly earnings for the

period less than 12 months preceding the relevant injury for which the worker has

been continuously employed by the same employer -

and here is the critical expression -

calculated at the worker's ordinary time rate

of pay for the worker's normal number of

hours per week.

Now, the essential issue in this case is whether

that means that involves a multiplication of

two concepts as the tribunal held or whether,

as the Full Court neld, it identifies a single
concept, the is to say, as if all the words

had dashes between them. The difference between

those two interpretations involves either taking

into account, to a significant extent, overtime

encompassed in the worker's normal number of

hours per week as the Accident Compensation Tribunal
held, or ignoring overtime altogether if, as

the Full Court held, one can identify on the

facts of a case something that falls within the

notion of single concept - worker's ordinary

time rate of pay for the worker's normal number

of hours per week.

C2T8/l/SDL	8	2/5/89
Catlow(2)

The argument in this case will focus upon various

provisions in section 95 itself which we say

indicate, we would respectfully say plainly,

that two separate concepts are not involved because

there are deeming provisions to which I will

have to take the Court. And so that we say, on the

facts of this case, the Accident Compensation

Tribunal was right. The effect of that finding

was that Mr Catlow would receive compensation

that took some account of his overtime - overtime

regularly worked - and thus received compensation

that more closely approximated his actual loss

than the construction placed upon the section

by the Full Court.

With that outline, might I now go back to

the table that I handed to the Court to indicate
in summary form the differences in approach and

the way in which those differences manifested

themselves in a result. If I might start at

the top of the page: the Accident Compensation

Tribunal took his three rates of pay for the

year and it calculated a simple average for his ordinary hours from those three rates. It then divided that rate - the average so derived at

$363-odd - by the 36 hours, which was his ordinary

working hours as opposed to "normal", to produce

the ordinary time rate of pay of $10.09 per hour.

(Continued on page 10)

C2T8/2/SDL	9	2/5/89
Catlow(2)

MR BLACK (continuing); Thus, working on the basis that

section 95(1), where it refers to:

calculated at the worker's ordinary time

rate of pay for the worker's normal number

of hours

involves the separate ascertainment of the ordinary

time rate of pay and the ascertainment of the

normal number of hours per week.

So step A was to ascertain the ordinary

time rate of pay which it did. Step 2 involves

working out what the workers normal number of

hours per week were and that involved, according the tribunal illustrated the meaning of that
to the tribunal, using "normal" as an ordinary

word which a hypothetical conversation between

two people about what their normal working hours

were and it is very succinct and I will take

the Court to it in a moment, but the triunal

said that "normal" meant what the person in the

street would regard as normal and it had a plain

meaning.

In this case it could be derived or could

be ascertained by averaging and it did that

averaging by taking the 1900-odd hours and dividing

it by the number of weeks in the year to provide

or to arrive at the normal number of hours of

work per week for this particular worker.

DAWSON J:	Why was it divided by 52?
MR BLACK:	Indeed. It should have been, we say, and this

is the subsidiary point, we say that it ought,

on any view, to have been divided by 41. It

is not precisely 40 because of the number of

pay periods in the year. The Court, if it allows

the appeal, will not be troubled by the arithmetic

but that is what we say. The way the Full Court

reasoned the matter that point did not arise

for decision because the ordinary time rate of

pay for the normal number of hours having been

ascertained it did not matter whether it was
ascertained in respect of two weeks or 40 or

52. And that is our minor point. It was not

the point, of course, on which we obtained special
leave because it is of no lasting - it is very
important to Mr Catlow but it is of no importance

to anyone much else.

So then the calculations are done. Going

to the bottom of the table, the tribunal took the view that one multiplied the average that

it had derived, at point A, that being the ordinary

C2T9 /1 /ND	10	MR BLACK,	2 I 5/ 8 9
Catlow(2)

time rate of pay, times the worker's normal

number of hours per week, and that came to

$381, of which the worker would receive 80 per

cent. The Full Court took the view that there

was, in truth, a rate that could be described

by the composite expression:

the worker's ordinary time rate of pay for

the worker's normal number of hours per

week -

that composite expression attached to the basic

36 hours so that on the Full Court's view the
worker was entitled to $363.43, adjusted, in
the Full Court's view, because a weighted average
rather than a simple average should have been

taken into account - we do not quarrel with that

and do not appeal on that point; so that the

actual figure would be slightly more than that.

The appellant's contention follows that

of the Accident Compensation Tribunal but asserts that the divisor to arrive at the worker's normal number of hours per week should be the divisor

based upon the actual time when the worker did

work - in this case, 41 weeks - and it produces
a significantly higher figure, more closely

approximating, though still less than the amount of money that the worker would regularly receive

over the course of a working year.

GAUDR0N J:	You accept $10.09 as correct?
MR BLACK:	..,,_Might I answer Your Honour by saying,
broadly.

McHUGH J: That is on the simple average?

MR BLACK:  That is on the simple average. I have not done,

and, indeed, would have to confess - I could

do it with assistance, but the actual figure

would probably be something like $10.50.

DEANE J: That means that everybody reads "ordinary time

rate" as referring to non-overtime or non-penalty?

MR BLACK: Yes, we concede that. There was an argument

before the Full Court that endeavoured to make

good the contention that overtime was completely
covered and "ordinary time rate of pay", by reading

the words together quite quickly,meant the overtime

rate of pay.

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Catlow(2)
MR ElACK	(continuing):	We do not advance that contention.

Lest it be said that that is an illogical concession, might we hasten to say, not so, in our submission, because this Act does not give, on any view,

full compensation and the most you can get is

80 ~er cent or $400. The evident policy reason

behind that is that a worker who is not actually

working does not have the concomitattexpenses of

going to work and so forth. So, consistently

with that view of the world, we would say a

worker who is not actually working in the store on

Sunday afternoon, as Mr Catlow did, or on his
rostered day off as Mr Catlow did, is not undergoing

the travel and the general deprivations of being

inside when everyone else is not inside. So that

although, even on our contention, it does not

approach full compensation, it more closely

approximates to it. The Full Court said that

that was illogical, but that is our answer to it.

That is how the matter arises.

legal issue is defined, we would say, in the
gro1.mds of appeal themselves, which are very short,

The precise

on page 71.

We say that the Full Court:

erred in law in construing the phrase

"calculated at the worker's ordinary time

rate of pay for the worker's normal number
of hours per week" ..... as denoting a single

concept, that of a rate of pay, rather than as contemplating the separate ascertainment

of "the worker's ordinary time rate of pay"

and -

his -

"normal number of hours per week" and the

calculation of average weekly earnings by

multiplying that number of hours by that

rate of pay;

We also say that the Full Court: 

erred in law in determing that in -

Mr Catlow' s -

case there was an ordinary time rate of pay

for his normal number of hours per week -

was in fact -

fixed under the terms of his employment;

If one takes a single concept, it is easier to

arrive at that conclusion.

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Catlow( 2)

DEANE J:  Does it really matter much whether it is a

single concept, or two concepts? Does it not

all come down to: "What does 'normal' mean?"

MR BLACK:	Your Honour, in the end it indeed may.
If "normal" means what we say the ordinary concept/one concept notion would produce
essentially the same result, and the "normal
number of hours" would be the number of hours
that was definitive, either way.
McHUGH J:	But what I do not follow is once you make the
concession that "ordinary time" means ordinary
time as opposed to overtime, how "normal number of hours" can be other than what is,
in effect, ordinary time?
MR BLACK:	Because, Your Honour, we say that the expression
is not "ordinary time rate of pay for his
ordinary hours", which one might find in an
industrial instn.unent.  The expression is, "ordinary
time rate of pay", a normal comprehensible
expression.

McHUGH J: But are there not other indications in this Act

which indicate that "normal number of hours

per week" in this legislation is used in that

sense, as what his ordinary time hours are,

for instance, if you look at the definition of

"full-time worker"?

MR BLACK:	Yes. There are indications, but there are more powerful indications the other way.
McHUGH J:	Do the Victorian awards have,what is a common
feature in New South Wales awards, and Federal
Awards, of requiring employees to work a reasonable amount of overtime?
MR BLACK:	Yes, they do.
McHUGH J: That is in practically every award in New South

Wales; is it the same in Victoria?

MR BLACK:	I would think so, Your Honour.
McHUGH J:	How would you ever work out what an employee's
normal number of hours per week were under those
awards?
MR BLACK:	There are three ways:  it could be fixed by the
terms of his employment, as indeed in a case
that came before this Court, KEZICH's case - I
withdraw that.

C2Tl0/2/JM	13	2/5/89
Catlow(2)

MR BLACK (continuing):  It could be fixed by the terms

of the employment, quite sensibly. You could

say, "Your ordinary hours shall be 38"in the

ordinary industrial award language,, but, say

it was a seaman or somebody working in an

unusual industry, '1Your normal hours will be

60, And that is your normal hours'and that is

no more, no less.

McHUGH J:  But, that is not the way awards speak

usually, is it? They say, your ordinary hours

are 36 hours a week and you may be required to

work up to 10 hours a week overtime.

MR BLACK:  Yes, and everything - - -

McHUGH J:  The extra 10 hours, you would not really

regard those as normal, would you? They are

abnormal for which you get paid overtime.

MR BLACK:  Your Honour, they may be abnormal, or they

may be normal. But, as a matter of ordinary

English, if you ask a person,What are your

normal hours of workZ' the answer will be, in

the case of Mr Catlow, 'Something over 40," simply as a matter of the use of language. This is not an industrial - although this refers

to industrial instruments, it is not an

industrial instrument, it is a compensatory

instrument and plain language is very much the

thing in Victoria; and this is an English

expression and 'normal", in our submission, has

a plain meaning.

Might I take the Court, particularly

Your Honour Mr McHugh, to the homely but, in

our submission - - -

McHUGH J: Conversatian.that. appears in the tribunal

decision judgment.

MR BLACK:  Yes, Your Honour. Because, in our submission,

it is not one of those strained doctor~and

student-type conversations, it is real, in our

submission. Page 9:

Another example of the way in which the

expression is used and understood by the
ordinary man is found in the following

conversation.

A - "I worked 12 hours yesterday and

also the day before". -

These are Victorians speaking -

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Catlow(2)

B - "No wonder you look tired - how
can you keep it up?"

A - "Ohl that's unusual - I normally

work only eight hours per day".

Now, ignoring the slight stilting of the

language, in our submission, that is how

people speak. And, the tribunal continues:

That does not mean that A always works

eight hours per day or that he does

not sometimes work more or less hours -

it is a statement as to what is

normal, usual or customary for him.

"Normal number of hours" is not

equivalent to "average number of

hours" - although over a particular

period it may be in a particular instance.

For example, the normal number of hours

during which a particular Judge sits to

hear cases may be six hours per day.

But if the Judge is ill for 12 weeks and

does not sit at all for that period of

12 weeks, the average number of hours

during which he sat over a 12 month

period might be only 4.5 hours per day.

That does not render inaccurate a

statement that he normally sits six

hours per day.

Now, we say· that in this statute, designed to

be the sole substantial measure of compensation

for people who are incapacitated in work,

"normal" means 0,11normal" despite, as we. would

concede, indications that may point the other way,

but, in our submission, they are over-borne in

this compensation context by the way in which

the Act works.

McHUGH J:  But, your argument comes to this~ you say, it is

Calculat·ed".: at the worker IS Ordinary time rate

for his ordinary plus his overtime hours.

MR BLACK:	Yes, for his normal hours.
McHUGH J:	You say his normal hours include his overtime

hours?

MR BLACK:	That is right, Your Honour.
McHUGH J:	Well, it seems strange that you get talking

about an ordinary time rate for ordinary hours

plus overtime hours.

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Catlow(2)

MR BLACK:	But, Your Honour, the logic of it, in our submission, is this, and we submit there is
logic to it - - -
DAWSON J:	Well, you say he normally works overtime.
MR BLACK:	He normally does, as a matter of fact.

And, that is just the English - - -

McHUGH J:  Well, I appreciate that but then you

go back that the first misconception is the

ordinary time. Does it not all indicate that

it is looking at a fixed term such as in the

definition in'~ull-time wor~' at page 4 of

the print:

means a worker who is employed for at

least the normal number of hours fixed

in any industrial award ..... or if there

is no applicable award the prescribed

number of hours.

(Continued on page 17)

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Catlow(Z)

MR BLACK:  Well, Your Honour, there is a lot more - I will

endeavour to answer Your Honour's point with the

whole of the argument but the immediate answer that

we would make to· it is twofold:  first, this is a plain

- it ouroorts to be a plain English statute. That

aim is not always achieved but if one finds a plain

word such as "normal number of hours per week", then

we say, particularly in the compensation context and,

also, in the statutory context when we look at 95(3)

and how it separately divides the concepts, "normal"

has its ordinary meaning. A meaning - - -

DAWSON J:  "Normal" in an award really means "minimum", does it

not?

MR BLACK: Yes, Your Honour, I suppose it does. Well, it

means -

GAUDRON J: It is not an expression that is often used in

awards, is it?

MR BLACK:  No, it is a rare expression in an award.

GAUDRON J: Yes.

McHUGH J:  Is it a Victorian expression? I have not heard it

north of the Murray.

MR BLACK:  It is used very occasionally in awards but we cannot

get a sensible pattern of awa~d usage. The normal

award usage, we would submit, is ordinary - have the

ordinary hours. Any hours in excess of ordinary hours

should be overtime hours and you get an ordinary rate

of pay and an overtime rate of pay which is - - -

GAUDRON J:	Overtime or penalty rates.
MR BLACK:	Exactly, Your Honour. Now, that is not the complete

language used here. They introduce the concept of

"normal" as opposed to "ordinary" hours and, in our

submission, that is done for a purpose and the pur~ose

is to be discerned from the objects of the Act and

the statutory scheme. But, Your Honours, we would have

wished to have produced a stack of Victorian awards

which said the ordinary hours shall be 38. The normal

hours in the industry shall be 50 and excess of ordinary

hours shall be paid at overtime rates but we cannot do

that. It is not the way - - -

GAUDRON J:  . Are there any awards that deal with regularly

rostered overtime?

MR BLACK:  Not that we have found, Your Honour. We have

BRENNAN ACJ:  There is an interesting phrase, I notice, in the Australian Safeway Warehouse Agreement, in the

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Catlow(2)

supplementary volume at page 18, which speaks about

"ordinary pay":

in relation to ..... normal average weekly number

of hours of work -

whatever that may mean.

MR BLACK: Again, we would say, Your Honour, "normal"- well, in

that context, it is presumably meaning the base core

rate because the agreement -

BRENNAN ACJ: I do not know. It goes on to say:

calculated at the ordinary time rate of pay.

MR BLACK:  Yes, which was defined by reference to 72 core hours

per fortnight, that is.

This agreement was not the whole - as the tribunal

found, this agreement was an important part, of course,

of the contract of employment but it was varied and - -; -

BRENNAN ACJ: In all events, you could not construe the statute

by reference to this agreement.

MR BLACK:  No, indeed not. And, indeed, in KEZICH's case where

a somewhat similar, but distinct~ issue al!'Ose in ~~is

Court as ·1:~ whether overtime was included in the West

Australian statute. Perhaps I should give the Court a

reference to KEZICH's case: it is (1974) 131 CLR 362,
a decision of Justices Menzies, Gibbs, Stephen and Mason

on the meaning of a West Australian statute. It was held

to include overtime in that case but, at page 364, towards
the top of the page, in the judgment of Mr Justice Gibbs,

reading from about point 3 of the page, His Honour said:

(Continued on page 19)

C2Tl2/2/SH	18	2/5/89
Catlow(2)
MR BLACK (continuing).

The award fixed the rates of pay which were to

be paid for these "ordinary working hours",

and provided an overtime payment, at an

increased rate, "for all work in excess

of the hours prescribed -

and then His Honour said:

In fact the appellant was engaged by the

respondent on the basis that he would normally

work sixty hours per week while employed

by the respondent at Mt Newman;	he was
to work ten hours six days a week.

So the use of the "normal" that we take from that

is just a comfortable and ordinary use of the

word. Then, towards the bottom of the page,

His Honour takes up the point made by Your Honour

the acting Chief Justice, at about point 7 of

the page:

It would not be legitimate to construe the
schedule by placing upon the words "ordinary
hours" the meaning which they may happen

to bear in an industrial award governing

employment of a particular kind. The meaning

of the Act cannot be determined by reference

to the provision of the Building Constructing

Employees and Builders' Labourers' Award,

1973 -

and His Honour then referred to multiple authors

of the various awards.	At the bottom of the
page, he said:

What has to be determined is the meaning
that those words have in the Act and since
the words "ordinary hours" are common English

words they should, in accordance with

established principles of statutory construction,

be understood in their natural meaning unless

the context otherwise requires.

The word "ordinary" means "regular,

normal, customary, usual". A man's "ordinary

hours" of work are the hours during which

it is usual for him to work.

His Honour makes that point and, while the Court

has the case, in the separate judgment of

Mr Justice Mason, at page 367, towards the top

of the page, His Honour notes that:

C2T13/1/SDL	19	2/5/89
Catlow(2)

The applicant was engaged by the respondent on the· basis that he would normally work sixty hours per week whilst employed by -

the particular employer.

DEANE J:  How did the Full Court read "normal"? As meaning

simply non overtime or this particular worker's

non overtime?	I mean, what if this worker had
only worked 20 hours a week?	What would he have

got on the Full Court's decision?

MR BLACK:  He might have got the $381.

DEANE J: That is what I was wondering.

MR BLACK:	Yes.
DEANE J:	Does that not mean that if what has been put

against you were accepted and one reads the last

words as "calculated at the worker's ordinary

time rate of pay for non overtime hours", would

you not say, "Well, all that means is you adjust

his average weekly earnings to exclude overtime

or penalty rates"? The last words are concerned

with rates.

MR BLACK:  Yes, that is right, Your Honour.

DEANE J: Which means, if that be correct, it does not

matter how you read ''normal" or so on, because

all that is involved is an adjustment to exclude

overtime and penalty rates.

MR BLACK:	As opposed to the hours.
DEANE J:	Yes.

MR BLACK:  I think, Your Honour, the direct answer to

Your Honour's question appears at page 60 of

the application book.	The Full Court's conclusion,
at about line 22 on page 60 - perhaps I should

read from the middle of the page:

In this case the terms of the worker's

employment required him to work a fixed

number of hours not exceeding 72 per fortnight -

an average of 36 per week. For those hours

he was entitled to be paid a stipulated

sum on a weekly basis. That sum payable

weekly was his ordinary time rate of pay

for his normal number of hours per week

as fixed for his work under the terms of

his employment. It was not, however, his

average weekly earnings during the relevant
period unless it was a rate in force at

the beginning and at the end of and throughout

C2T13/2/SDL	20	2/5/89
Catlow(2)

the period. To the extent that it varied

during the period it is necessary to calculate
an average in an appropriate way, and that

average will be the worker's pre-injury
average weekly earnings in terms of s.95(1).

And then the Full Court went on to use the weighted average.

Might I now turn to the more detailed argument

as indicated in the outline. The first point

that we make, and I go to paragraph 3 of the

outline, is that we say that on its face section 95(1)

encompasses two concepts and not one. We say

that the two concepts are familiar as separate

concepts but unfamiliar as a joint concept.

(Continued on page 22)

C2Tl3/3/SDL	2 1	2/5/89
Catlow(2)

MR BLACK (continuing): Therefore, we contend, that as a

matter of almost first impression arising out of

the use of the language, one sees two notions:

one of which is the notion of a normal number of

hours per week used in its ordinary English sense

and we have already, in the course of earlier
discussion with the Bench, made that point and I
do not wish to labour it, about the ordinary

English use of the word "normal".

But we do add this, what section 95(1) does

not say is this: it does not say "calculated at the worker's ordinary time rate of pay for the
worker's number of ordinary hours" which might have

been more understandable in an industrial context,

it introduces this notion of "normal" and, in our

submission, that is done advisedly. Also, we would

say that to refer to a person's "ordinary time rate

of pay" is to refer to something that needs no

addition to make it meaningful. An ordinary time

rate of pay is something independent of hours, it

is, quotes, "the ordinary time rate of pay".

One would not expect it to vary, as such, according to the number of hours worked.

(continued on page 23)

C2Tl4/l/DR	22	2/5/89
Catlow(2)

DEANE J:  Do these employees get loadings while they are

doing particular categories of work such as very

dirty work?

MR BLACK:	I do not think Mr Catlow did.
DEANE J:	Some employees do, of course.
MR BLACK:	Yes, particularly in the building industry

and other heavy industries, and height allowances

and matters of that nature. Yes, I am reminded by

my learned junior, Mr Catlow did, in fact, get

various allowances which were - this is on page 13. allowance and a service increment, and these were

taken into account.

The next point that we would make is that, if

one then goes to the deeming provisions, which we

say are very. important, of se.ction 9 5 ( 3) , it is

again apparent that two conc..epts~are used. If one

goes .for example to subsect:i..c,n°-4 ~.),-(b) , it provides:

if an ordinary time rate of pay is not
fixed for the worker's work under the
terms of the worker's employment, the ordinary

time rate of pay shall be deemed to be the

average weekly rate earned by the worker during

the relevant period

and then contrast that with (c)

if a normal number of work hours per week is not
fixed for the worker's work under the terms of

the worker's employment, the normal weekly

number of hours shall be deemed to be the average

weekly number of hours .....

That is the provision that the Accident Compensation

Tribunal used in this case.

The two concepts, in our submission, are dealt

with separately, indicating, in our submission, that	they are two concepts. If one single identification
of a compound rate were envisaged then the Act would
not have broken the matter up. It would have said
something like, "If there is no ordinary time rate of
pay for the worker's normal number of hours per week,
then a, b, c". But, it does not do that, it focuses upon the absence of some particular matter being fixed.
It says implicitly, of course, that if the matter is fixed, well then, it is the fixed amount
that one takes. And again the Tribunal proceeded
upon that basis.

McHUGH J:  But does that not indicate that the normal number

C2T15/ 1 /FK	23	2/5/89
Catlow(2)

of work hours per week is ordinarily the same as

the ordinary number of hours which you work.

MR BLACK:  In our submission, not, Your Honour, because

once one accepts that the normal number of hours

may, although is not corrrrnonly, but may be fixed,

it is something that is capable of being fixed, and

the word used is. "normal", not "ordinary".

McHUGH J: Yes, but once you depart from a fixed number of

hours, then you also depart from the concept of

ordinary time and you get into overtime.

MR BLACK:  Yes, but, Your Honour, in our submission there

is nothing illogical - the Full Court took this

point, it said, "There is no tension between

ordinary time and normal hours". And, further it

said that it really is illogical to look at ordinary

time for one purpose, and then multiply that by

normal hours. We woul~ say that is not illogical in the context of an Act that does not attempt to

give one complete compensation, but which you would

expect to provide compensation that closely approached,

or most closely approached, the reality of the loss.

BRENNAN AGJ:  Mr Black, I am interested in the definition of

"full-time worker" and in subsection (3)(d)

there is a reference to "prescribed number of hours'~

Is this a statutory prescription - - -

MR BLACK:  Yes, it is, Your Honour. It is in the regulations

and it is prescribed - the factual matter is it is

35; by way of argument, I say, it happens to be

prescribed at 35.

BRENNAN AGJ: Yes. That comes in in place of what?

(Continued on page 25)

C2Tl5/ 2/FK	24	2/5/89
Catlow(2)

MR BLACK:  In that instance, Your Honour, I am not sure.

Certainly, in other methods of calculation of
the ordinary time it comes in, for the purpose
of determining which particular type of employment

you are to have regard to in the case of multiple

employment - - -

BRENNAN AGJ: What I was wondering is, does it ever come in

in place of the normal number of hours, whatever

that many mean, in 95?

MR BLACK:  I think not, Your Honour. It can come in -

I may have been too hasty. There is a peculiar

provision in 95 and it may come in there. Might

I, indeed, take the Court to show the Court how

that works because it is the next step in the

argument. If one goes to 95(3)(d), the legislature

then tackles the problem of how you choose the

particular employment for the purposes of

calculating average weekly earnings if there

is more than one employer and it does that in

the following way - it starts off:

if the worker works for more than one

employer for at least the normal number

of hours per week fixed in any industrial

award -

by reference to that work -

if there is no applicable industrial award

but the worker works for more than one
employer for at least the prescribed number

of hours -

now, it comes in there by reference to that work,

and then it goes on -

if the worker works for more than one

employer for at least the normal number

of hours per week fixed in any industrial

award applicable to the worker, with reference

to the work which yields the higher ordinary

time rate of pay.

So that one is, in our submission, looking there

at a separate concept of an ordinary time rate

of pay that is yielded by work. And then, (iv)

proceeds in much the same manner except that

it also has "the prescribed number of hours"

as the determinant. (v) similarly, and then,

(vi). (vi) is the one that, in our submission,

adopts the .precise methodology for which we contend

and which the Full Court rejected because if

you cannot work out what sort of work is to be

chosen as the relevant work for the calculation

/ Nfr 25 2/5/89

Catlow(2)

and you get forced into (vi), it simply provides

this:

in any other case, by obtaining the worker's
average ordinary time rate of pay for all
work carried out by the worker for all the

employers and applying that rate to the

prescribed number of hours per week or to

the total of the worker's normal number

of hours per week whichever is the lesser.

Now that, in our submission, in cases to which

it applies, is the tribunal's method. And the

existence of that, together with the separate

identification of the various components of the

critical expression and the separate treatment

of them, in our submission, powerfully supports
the view taken by the tribunal and rejected by

the Full Court. Although one could imagine a

legislative scheme that, in fact, approaches

matters in different ways in different circumstances,

in our submission, it is more likely that a coherent

scheme would emerge which involved the same approach

to a matter whenever it arose.	And that is the
way we put it.

The Full Court recognized that even on its

view there would be nevertheless occasions where

one would have to engage in the dual concept

multiplication approach. the Full Court recognized,

and this is point 7 of our outline, that if you

could not immediately identify the composite ordinary

time rate of pay for the worker's normal number

of hours per week, then one would have to go
to the deeming provisions and apply them using

the two concepts to produce the result.

(Continued on page 27)

C2Tl6/2/ND	26	2/5/89
Catlow(2)

MR BLACK (continuing): In our submission, that also is

anomalous. One would expect to find in any

legislation a coherent approach to the problem

and yet, on the Full Court's view, and

inevitably on the Full Court's view, if you

do not, as it were, hit the bull's-eye nn the

first shot, and you do not suddenly see

the composite concept, then you nave to do

the sort of thing that we say should be done,

although, on the Full Court's view, "normal number of hours" does not attract overtime.

McHUGH J: But is that right? Is subsection (vi) not the

very reverse of what you are doing, in

subsection (3)(d)(vi)? What it says, does

it not, is that you work out what the average

ordinary time rate is, the hypothesis being

he or she is working for more than one employer?

MR BLACK:	Yes.
McHUGH J:	So you get a figure - let us assume it is
$100 a week - and then it says you look at
either "the prescribed number of hours per
week", which is 35 hours per week, or you
look to the "normal number of hours per week whichever is the lesser" figure. Let us
asslll!le it is the normal numbers which is the
lesser, it might be 20 hours a week. Then
you would multiply the 100 by 20.
MR BLACK:	And you do not get very much.
McHUGH J:	You do not get very much.
MR BLACK:	But you get the actuality.

McHUGH J: That is so, but if the normal number of hours in that situation is more than the prescribed

number of hours, then you take the 35 hours.

MR BLACK:  That is so, yes.

McHUGH J: Which is less.

MR BLACK: That is so. In that case you have reached the

statutory cap, if I may so call it. But the

Act has statutory caps in some instances.

McHUGH J: It is $400, or it used to be.

MR BLACK:  Yes, it is. It is indexed up to 481 now and

the benefits are indexed up by the same process.

But in some instances, Your Honour, although that

is right, that worker, if he or she is working

less than the prescribed number of hours receives

C2Tl7/l/JM	27	2/5/89
Catlow(2)

compensation according to the actuality and

according to our method,in our submission.

If he or she reaches the cap, well, that is it.

But there are other instances in the Act,

notably in the case, just turning over the page,
of students, section 95(6), where the student,

in certain circumstances, ultimately receives

compensation on the basis of what he or she

would have received on the completion of the

studies.

McHUGH J: Let us translate your appellant to subsection (d) (vi).

If he worked those number of hours for two employers,
his maximum number of hours would be the

prescribed number of hours, 35 hours, so he would

only be able to get compensation at the rate

for 35 hours, would he not?

MR BLACK:	Your Honour, yes, that is right, but if he
were a student - what I am saying, Your Honour, is
that it is very difficult to find a coherent
view of the Act that will produce close to true
compensation in every case. If one is a student,
one is better off; if one is a worker who is a normal full-time worker and about to be employed when injured, that worker receives
the actuality. That is under section 93(7),
Your Honour, at page 75. This is in the
total incapacity case:

A we~kly payment to a worker who -

(a) was not a full-time worker immediately

prior to the injury ..... was seeking full-time

employDEnoand (c) had been predominantly -

et cetera -

shall be calculated as if the worker had been

a full-time worker and as if the worker's

pre-injury average weekly earnings were the	average weekly earnings of the worker while
employed in full-time employment.

(Continued on page 29)

C2T17/2/JM	28	2/5/89
Catlow(2)

MR BLACK (continuing):  So, he is much better off than

Mr Catlow. The student is better off. Your Honour,

I make that point simply to say that there does not

appear to be any universally coherent view and,

Your Honour, it doubtless is because the matter is

so complicated that every practical case has not had

the attention of the legislature.

Now, allied to that, however, we say that the

anomalies argument supports our contention because

one of the anomalies that arises on the Full Court's

view on the identification of the single concept and

then stop view is this: that, if one had a worker

whose ordinary time rate of pay for his normal number
of hours, as so defined by the Full Court, was $400
for a 38-hour week, then that is the figure that you

take but a worker who is receiving $400 a week but

does it for ordinary hours of 38, fer which he gets $350

plus three hours overtime which brings it up to $400,

that worker, on the Full Court's view, would be

compensated at the rate of $350 a week.	They are both
getting the same take-home pay.	One worker is working

longer and, on one view, harder than the other but one·

gets less.

Now, there is no policy reason for - we must

be careful of not getting into impermissible policy

but, on the face of it, there is no permissible policy

reason why - - -

DAWSON J: Well, is not there? I mean, overtime is compensation

for working beyond the period which is the minimum

period or whatever you like to call it and, of course,

if you are not working, you are not needing to be

compensated as you are not doing overtime; you do not

need to be compensated in that way.

MR BLACK:  Your Honour, yes, but this: overtime, in our

submission, does two things - well, three. It

produces money at the end of the week on which people,

if they are regularly getting it, live; important

in the context of social compensation but, secondly,

overtime is actual reward for the goods being made
and the services being rendered and, on top of that,

there is the component of compensation for the extra

disabilities of staying back at work on a nice day.

DAWSON J: Well, why should you get the loading if you are not

actually doing the work?

MR BLACK: Well, on our argument, you do not. All you get is

the compensation based upon the hours that you had

normally worked, assessing those hours at an ordinary

time rate of pay. You do not get the extra bit, the

overtime rates, on our argument. You would assume,

C2T18/l/SH	29	2/5/89
Catlow(2)

however, tha·t the worker would have gone on working

at his normal number of hours except that the overtime

worker has to work longer than the other type of

worker.

DEANE J:	Mr Black, putting aside the case where there is a
variation in the award, is the effect of the Full except for the last two lines superfluous?
MR BLACK:	Yes, and usually it will make all of subsection (3)

superfluous because you will usually be able to find

the worker's ordinary time rate of pay for the worker's

normal number of hours per week, on their view.

DEANE J:	Because they have said, in effect, "It does not matter whether he was working or was off work injured and it does not matter how many hours a week he works, you
simply find" - - -

MR BLACK: That is so, and that is why - that is the rate for

the worker's work using there a concept not so much

peculiar to the worker's particular situation but a

concept relating to that type of work and, if that is

right, on the Full Court's view, the Act has spent a

lot of time unnecessarily.

(Continued on page 31)

C2T18/2/SH	30	2/5/89
Catlow(2)

MR BLACK (continuing):  On that view too, Your Honour, if I

might add with respect, it is difficult to see that

there would be indeed a calculation. On one view there is, but it is, inour sul:mission, more likely that some concept such as identification would have been

used rather than calculation.

DEANE J: There would be when there had been a variation in

the award.

MR BLACK:	Yes, there would have had to have been, Your Honour.
One is tempted to - well that is the answer to it,
although the word "calculation" in our submission,
in the overall context does indicate something of
the nature which we -

McHUGH J: Well there is another operation for it as well, is there not;i£he is put on different classes of work with different ordinary time rates of pay?

MR BLACK: 

Yes, that is so. Ouri-;b-asic submission about the

Full Court's approach to the matter is that it did not take into account the matters that we

urge as being matters of substance.  To that extent

it was in error. The Full Court saw no tension

between any of the words in the critical expression,

and on the analysis that we would submit is the

correct one, the composite expression really does

not sit nicely as a matter of English language. It

will be found, and no doubt my learned friend will

refer the Court to other statutes, not of a
worker's compensation nature, where that sort of
expression is used.

But as a matter of English language, in our

submission, the two concepts emerge and the single
concept is an uncomfortable one.

DEANE J: 

I still do not follow why you are so concerned

about composite.  I mean, if those last two lines

simply provide a means of calculating the applicable

hourly rate - - -

MR BLACK: 

Then that suits our argument - I follow what
Your Honour - our submission has, I suppose -

well, it has concentrated upon seeking to refute

a basis upon which'hormar'can be ignored for the

purposes we would seek to use it. But, Your Honour,

the more direct way is the way in which Your Honour

suggests, and we would sa½ yes, that is equally
applicable . Really they proceed upon the same
basis as to the meaning of the word.

C2Tl 9 / 1 /DR·	31	2/5/89
Catlow(2)

There is a - the Full Court paid, or placed,

considerable emphasis upon the use of the word "such"

in section 94(10), and I should address the Court

on that briefly. Section 94, the Court will recall,

is the section that provides for compensation for

partial incapacity and it is necessary to work the

calculations required by that section to define

what the worker's current weekly earnings are. And

that is because, under subsection(4~, page 76,

a worker who is partially incapacitated and is
employed -

receives a percentage -

difference between the worker's current weekly

earnings and the worker's pre-injury average

weekly earnings.

And for that reason subsection a~ on page 77 defines "current weekly earnings" as meaning:

the earnings of the worker during the week

in respect of which a weekly payment is made

calculated at the worker's ordinary time

rate of pay for the worker's normal number of

hours per week -

the familiar expression. This is the passage that

the Full Court placed some significance upon -

or, if there is no such ordinary time rate,
the actual earnings of the worker during

the week.

Now the Full Court said, well the use of the word

"such" there shows that there is a reference to

the composite. I know I am labouring the composite

point but that is one of the ways in whicl:1 they

reached that. Our submission is that that argument

- that conclusion - is incorrect, fundamentally for

two reasons. It ignores subsection(ll)which is a

statutory direction to use all that one, or part

of what one finds in section 95, for the purposes of determining the worker's ordinary time rate of

pay, for the worker's normal number of hours per

week, and so it brings in the multiplication

concept that inevitably comes with section 95(3).

In any event, in our submission, the word "such"

upon which the Full Court placed emphasis more

naturally refers, in the context, to the worker's

ordinary time rate of pay. That is part of the

expression to which "such" refers and it is logical

that it should because in the case of a single week

one could imagine circumstances where it was not

C2Tl9/2/DR	32	2/5/89
Catlow(2)

possible .to fix the worker 1 s ordinary time rate
of pay for that week by reference to the deeming

provisions of section 95 (3). (b). The reason for that

is that if an ordinary time rate of pay - I am

sorry, I might have to start again. The reason

for that is that a worker who has not been

employed for very long and for whom there is no

ordinary time rate of pay, a very rare beast, but

such a worker simply could not fit in within the

deeming provisions of section 95(3)(6) and,

therefore, one would have to get the situation,

posited by section 94(10), that the worker's

actual earnings would be taken into account.

Now, it is an extreme case, but the Act is,

in that sense, in our submission, designed to

accommodate an unusual or extreme case and it
does not support the conclusion that the Full

Court reached.

(Continued on page 34)

C2T19/3/DR	33	2/5/89
Catlow(2)

MR BLACK· (continuing): Further, to approach the matter that

way would be to regard section 94 as, in some
ways, more important than section 95 and, in

our submission, section 95 is the critical section.

Indeed, it is section 95 that is picked up by

section 94.

If the Court pleases, that is, although

I have obviously departed from the order of the

outline in the course of answering questions

from the Bench, really the substance of the way

we put the matter and the sheet anchor of our

argument ultimately is the word "normal". Now,

it can be used in an industrial context but here,

in our submission, it is used in the context

of the compensation statute and it has a plain

English meaning and if that plain English meaning
is applied to it then the policy result follows

to which argument I will develop for a minute

or two. The policy result follows that the compensation

that is actually received by the worker more

closely approximates the reality of that worker's

position.

Ignoring the special overtime elements to

which Your Honour Mr Justice Dawson referred,

about the special penalty part of it, if you

like, but nevertheless taking into account the

fact - the practical fact of human life - that

if a person such as Mr Catlow is regularly bringing

home $400 a week because he works overtime and

he cannot work any more that $400 per week, in

terms of compensation and the sole source of

MR BLACK (continuing):  If you borrow the language from

somewhere else it may mean something quite different

if one is using it in the statute to provide, possibly,
for the sustenance of an injured person for the rest
of his days as opposed, on the one hand, providing a

nice holiday with perhaps a bit extra in one's

pocket at the end of a hard years work.	The two
purposes are quite different.

Your Honour, that is what we say about it in

substance, but we would, if we may, make one note and

that is that the view in New South Wales was never, it

seems, entirely universal because in GILBERT's case at

page 313 at the bottom of the page there is a reference

to an earlier decision of Mr Justice Cantor and

Mr Justice Webb in FLOODY's case, (1946) AR 783,

in which it appears that "normally" was regarded as

the equivalent of "standard" but on the basis that in

that particular case the hours normally worked were

the standard hours, and that qualification appears in

FLOODY's case. It is later disagreed with in GILBERT's

case, but all we. say is that the view was never entirely

universal; but our main answer rests upon the

INTERPRETATION OF LEGISLATION ACTS, and not the mere

difference in Acts, not the mere fact that the subject

matter is different, but the fact that the substance

and purpose of the subject-matter is so different,

in our submission.

There is one further point that we would desire

to make in reply. It really is almost a point on the

facts.	My learned friend refers to the particular
circumstances of Mr Catlow's employment.	We would draw

attention to the fact that Mr Catlow's obligation to

work more than ordinary hours was quite specific.

This appears at pages 10 and 11 of the application

book reading from about point 6 of the page where

the president makes these findings:

The variations and additions referred to above

included agreement by the worker that as a

(i) he would work such number of hours in any
working week as Safeway required, being

additional -

supervisor or foreman -

but then - that equates with perhaps the permissible

overtime provision of an award - but then -

(ii) he would habitually commence his daily

work earlier than the starting time of the

general warehouse staff, and at such a time

as the preparatory work required of him

necessitated on each day.

Over the page at the top of page 11:

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(iii) he would work such number of rostered davs

off and Saturdays as Safeway might require ... -..

(iv) he would finish his daily work at such

later hour than that of the general warehouse

staff as Safeway or the circumstances

required .....

(v) he would be remunerated for hours of

work in excess.

So that this was a case where although the normal number

of hours was not fixed it was, according to what we

would say is the ordinary meaning of the term, although

it was not fixed it was to be and was expect to be,

and indeed Mr Catlow was bound that it be greater than

the ordinary hours of 36.

DEANE J:	Mr Black, what do you say to Mr Phillip's argument
that subsection (3)(d)(vi), by limiting compensation
to the maximum of 35 hours shows a policy that one was
not to get compensation for above standard hours?
MR BLACK:	We say, I think, three things,

Your Honour. First we still gain support from the

section for our methodology.

DEANE J:	Yes, I follow that.
MR BLACK:	Secondly, we say that that does indeed seem to

create a cap, but the Act has both caps and things

that have no caps, and no consistent policy can

therefore be drawn from the Acts such as would affect

the meaning to be given to the words, and we would say the plain meaning, and Your Honour we would remind the Court particularly of section 95(6) where the student

who is injured as a student receives compensation on

the basis simply of what he would have earned upon

completing the course of studies, or $400, whichever

is the lesser, and a student who might - take a

student who was training to be, say, a geologist who

would be out in the field for hours and hours and

getting all sorts of rates, he will get his

compensation assessed according to the actuality

without a cap, other than the $400 cap; and then

there was the case referred to in section 93(7) of

the worker who is a permanent full-time worker but

is between jobs, is seeking work at the time the

relevant injury occurs.

(Continued on page 118)

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MR BLACK (continuing): That person is compensated according

to a broad notion of - I go to the section - simply
the average weekly earnings during the 18 months

preceding the injury. That is average weekly

earnings in a perfectly general, normal sense.

So that worker will do well. The worker who comes

into the section 95(3)(d)(vi) category will not do

well, the student will do well, and all one can

say is the section 95(3)(d)(vi) worker is a very

rare species. He is a last-resort worker. The

other are more common and they are not dealt with

as severely. I do not think I can take it any

further than that, Your Honour.

I think I said, in answer to one of

Mr Justice McHugh's questions, one does not find

in this Act some beautifully computer-defined

set of rules that mesh to produce a consistent

result but we say that the cons~ruction for which

we contend has a greater measure of consistency

than other construction and it has the two great

virtues of using language according to its ordinary

meaning, uninfluenced by its source, and perhaps

the greatest virtue of all of giving weight to
the statutory command that the purpose or object

of the Act shall be the ultimate guide to its

construction subject always, of course, to the

words used.

For those reasons, we submit that notwithstanding

the arguments of my learned friend, the appeal

should be allowed. May it please the Court.

BRENNAN ACJ:  Thank you, Mr Black.

MR PHILLIP: If the Court pleases, I arise simply to correct

something lest something I did say misled the

Court. May I just explain?

BRENNAN ACJ:  Yes, Mr Phillips.

(Continued on page 119)

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MR PHILLIPS:	I cited and read from the ·	..

decision in GOODYEAR TYRE V ROBINSON, which

Your Honour Justice McHugh referred to.

What we read, we believe, was not affected by

the subsequent course of decision but, I
should mention, that the LAKE GEORGE MINES V

BURTON case, which was next on our list, criticized the application of the law in

BRAIN's case not, I believe, affecting what

we read, but reversing, I think, its

application because Your Honours then decided

that BRAIN, after all, had been a piece-work

rate and not a time-rate worker. Now, I

would not like to mislead the Court by

referring to ROBINSON without mentioning the

subsequent decision of BURTON. If the

Court pleases?

BRENNAN ACJ:  Thank you, Mr Phillips. The Court

will consider its decision in this matter.

AT 4.01 PM THE MATTER WAS ADJOURNED SINE DIE

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