Commission for the Safety, Rehabilitation & Compensation of Commonwealth Employees v Neil, D.C

[1993] FCA 176

Re: COMMISSIONER FOR THE SAFETY, REHABILITATION AND COMPENSATION OF
COMMONWEALTH EMPLOYEES
And: DONALD CAMPBELL NEIL
No. ACTG43 of 1992
FED No. 176
Number of pages - 22
Administrative Law
(1993) 114 ALR 461
(1993) 17 AAR 247
(1993) 41 FCR 517

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J(1)

CATCHWORDS

Administrative Law - Appeal from Administrative Appeals Tribunal - Workers' compensation - Commonwealth employee suffering compensible injury and retiring from his employment during the currency of Compensation (Commonwealth Government Employees) Act 1971 (Cth) - Employee receiving pension under a superannuation scheme - Act of 1971 repealed by Commonwealth Employees Rehabilitation and Compensation Act 1988 (Cth) before amounts by way of weekly payments of compensation made to employee - Whether employee a person who immediately before the commencement of the Act of 1988 "was receiving weekly payments of compensation under the 1971 Act" - Whether statutory provision to be given its literal meaning - Whether literal meaning would result in an operation of the provision which Parliament did not intend - Whether appropriate to rely on Minister's second reading speech to ascertain legislative intention - Whether more than one construction open.

Administrative Appeals Tribunal Act 1975 (Cth), s.44(1)

Compensation (Commonwealth Government Employees) Act 1971 (Cth), ss.27, 29, 46

Commonwealth Employees Rehabilitation and Compensation Act 1988 (Cth), ss.19, 20, 123, 123A, 124, 131

Acts Interpretation Act 1901 (Cth), s.15AA

Cooper Brookes (Wollongong) Pty Ltd v. Federal Commissioner of Taxation (1981) 147 CLR 297

HEARING

CANBERRA, 8 December 1992

#DATE 31:3:1993

Counsel for the applicant : Mr D.J. McGill

Solicitor for the applicant : Australian Government

Solicitor

Counsel for the respondent : Mr C.M. Erskine

Solicitors for the respondent : Ken Johnston Bedford and Co.

ORDER

The Court orders that:

1. The application be dismissed.

2. The applicant pay the respondent's costs of the application.

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

JUDGE1

NEAVES J This application by way of appeal pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal given on 9 July 1992 raises a point of statutory construction. The relevant statutory provision is the definition of "former employee" in s.123 of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) ("the 1988 Act"). If the respondent falls within that definition, the amounts of weekly compensation payable to him under the 1988 Act in respect of a period commencing on 1 December 1988 will be less than those otherwise payable to him.

1. The essential facts, which were not in dispute before the Tribunal, may be shortly stated. The respondent, Donald Campbell Neil, enlisted in the Royal Australian Air Force on 10 November 1964 and was discharged on 9 November 1986 at the termination of his period of enlistment. On 29 November 1987 he lodged a claim for compensation under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) ("the 1971 Act") in respect of back injuries suffered on 25 February 1975 and in October 1980. As a consequence of each of those incidents he was admitted to hospital for a short period. Following his discharge from the Royal Australian Air Force the respondent was employed by Chubb Australia Limited. That employment continued until 27 October 1989 when it was terminated because of his back condition.

2. A determination had not been made in respect of the claim for compensation prior to 1 December 1988 when the 1988 Act, which repealed the 1971 Act, came into operation. On 22 February 1989, a determination was made under the 1988 Act that the respondent "contracted a disease, namely L4-5 and L5-S1 discogenic disease of the lumbar spine and his employment by the Department of Defence was a contributing factor to the contraction of that disease and the Department of Defence would have been liable to pay compensation under the Compensation (Commonwealth Government Employees) Act 1971 in respect of that condition (section 29)". It was further determined that 24 February 1978, being the date on which the respondent first obtained medical treatment in relation to the condition, was deemed to be the date of injury and that, having regard to the transitional provisions of the 1988 Act, the Department of Defence was liable to pay compensation in relation to that injury.

3. The 1971 Act had provided (s.27) that if personal injury arising out of or in the course of the employment of an employee by the Commonwealth was caused to the employee, the Commonwealth was, subject to the Act, liable to pay compensation in respect of that injury in accordance with the Act. Section 29 of that Act applied where an employee contracted a disease or suffered an aggravation, acceleration or recurrence of a disease and any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence. If total or partial incapacity for work resulted, the contraction of the disease or the aggravation, acceleration or recurrence was to be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth. Provision was also made concerning the date which was to be the deemed date of the injury. Section 45 prescribed the amount of compensation payable in respect of an injury resulting in the employee being totally incapacitated for work and s.46 prescribed the amount payable in the case of partial incapacity.

4. On 7 March 1989 the respondent underwent spinal fusion surgery. On 16 October 1989, a determination was made that, pursuant to s.19(2) of the 1988 Act, the respondent was entitled to weekly payments of compensation in respect of the period 6 March 1989 to 14 July 1989 during which period he was unable to work by reason of the operation.

5. On 2 March 1990, a determination was made that the respondent was entitled to weekly payments of compensation in respect of the period 15 October 1987 to 22 November 1989 and from 23 November 1989 to a date to be determined by the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees ("the Commission") or its delegate. The weekly payments in respect of the period 15 October 1987 to 30 November 1988 were expressed to be referable to s.46 of the 1971 Act. The remaining weekly payments were expressed to be referable to s.131 of the 1988 Act. Although not expressed to do so, the determination made on 2 March 1990 effected a revocation or replacement of the determination made on 16 October 1989.

6. At the respondent's request, the determination was reviewed in so far as it determined that his entitlement to weekly payments of compensation in respect of the period commencing on 1 December 1988 was to be found in s.131 rather than s.19(2) of the 1988 Act. The determination having been affirmed on 3 June 1991 by the respondent took the matter to the Administrative Appeals Tribunal ("the Tribunal") which set aside the decision under review. The Tribunal substituted a decision that the respondent "is an 'employee' as defined in s.5(9) of the 1988 Act and is entitled to be compensated on the basis of his partial incapacity which has continued since 1 December 1988". It is in respect of that decision of the Tribunal that the present application is brought.

7. At the material time, the 1988 Act provided (s.14) that, subject to Part II of that Act, the Commission was liable to pay compensation in accordance with the Act in respect of an injury (an expression defined in s.4(1) to include a disease) suffered by an employee if the injury resulted in incapacity for work. Section 19 provided for the amount of compensation to be paid by way of weekly payments to an employee (other than an employee to whom s.20 applied) who was incapacitated for work as a result of an injury. Section 20 prescribed the amount of compensation to be paid for injuries resulting in incapacity for work where the employee was in receipt of a pension under a superannuation scheme. The amount payable was an amount calculated under a prescribed formula. The effect of the provision was to reduce the weekly amount of compensation that would otherwise have been payable to the employee for a week under s.19 by an amount representing the sum of "the superannuation amount" (an expression defined in s.4(1)) and the amount of superannuation contributions that the employee would have been required to pay in that week if the employee were still contributing to the superannuation scheme. Section 20, however, applied only to an employee who, being incapacitated for work as a result of an injury, retired voluntarily, or was compulsorily retired from his or her employment at any time after the commencement of the section (viz. 1 December 1988) and, as a result of the retirement, received a pension under a superannuation scheme (s.20(1)). Section 20, therefore, had no application to the respondent. It should be added that the section had no counterpart in the 1971 Act.

8. Part X of the 1988 Act contained transitional provisions consequent upon the repeal of the 1971 Act. Section 124(1) provided that, subject to Part X, the Act applied in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day (1 December 1988). Section 123A, which was inserted by the Industrial Relations Legislation Amendment Act 1991 (Cth) and which was to be taken to have commenced on 1 December 1988 (see s.2(2) of that Act), provided:
   

"A reference in this Part to an injury suffered before the commencing day is a reference to an injury within the meaning of whichever of the 1912 Act, the 1930 Act or the 1971 Act was in force when the injury was suffered, as that Act was then in force."

1. A person was not entitled to compensation under the 1988 Act in respect of an injury, loss or damage suffered after the commencement of the 1971 Act and before 1 December 1988 if compensation was not payable in respect of that injury under the 1971 Act as in force when the injury, loss or damage was suffered (s.124(2)). Section 124(1A), a provision inserted at the same time as s.123A and also to be taken to have commenced on 1 December 1988, provided:
   

"Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act."

1. Division 3 of Part X had the heading "Special transitional provisions relating to certain former employees". That Division, which comprised ss.131-137 inclusive, made separate provision as to the amount of weekly compensation payable under the 1988 Act to -
   

. former employees under 65 who were in receipt of superannuation benefits (s.131);

. former employees under 65 who were not in receipt of superannuation benefits (s.132);

. former employees 65 and over who were in receipt of superannuation benefits (s.135); and

. former employees 65 and over who were not in receipt of superannuation benefits (s.136).

Provision was also made for the minimum benefit payable to a former employee (s.133), for the reduction of compensation payable to a former employee to whom s.131 or s.132 applied on the former employee reaching 65 (s.134) and for the redemption of the liability to make further weekly payments of compensation to a former employee (s.137).

1. Prior to 13 September 1990, subs.(1) of that section was in the following terms:
   

"(1) This section applies in relation to a former employee who, on the commencing day, is under 65 and in receipt of a pension under a superannuation scheme."

On and from 13 September 1990 there was an additional requirement that the former employee be not capable of engaging in any work (see Commonwealth Employees' Rehabilitation and Compensation Amendment Act 1990 (Cth), s.4). That additional requirement is not relevant to the issue that arises for determination in the present proceeding. It may be noted, however, that the Act last cited made a similar amendment to s.132 and inserted a new s.132A. That section applied to a former employee who was, on the commencing day, under 65 and in receipt of a pension under a superannuation scheme and who was capable of earning an amount per week in suitable employment.

1. Before turning to a consideration of the terms of s.131(1) and, in particular, the meaning of the expression "former employee" in that subsection, the text of the remaining subsections of s.131 should be set out. Those subsections provided:
   

"(2) Subject to this Division, if the former employee's total benefit immediately before the commencing day was equal to or more than 95% of his or her normal weekly earnings as at that day, the amount of compensation payable per week to the former employee under this Act is the amount that, when added to the former employee's superannuation amount, results in a combined benefit equal to 95% of those normal weekly earnings.

(3) Subject to this Division, if the former employee's total benefit immediately before the commencing day was equal to or more than 70%, but less than 95%, of his or her normal weekly earnings as at that day, the amount of compensation payable per week to the former employee under this Act is an amount equal to the employee's 1971 amount.

(4) Subject to this Division, if the former employee's total benefit immediately before the commencing day was less than 70% of his or her normal weekly earnings as at that day, the amount of compensation payable per week to the former employee under this Act is the amount that, when added to the former employee's superannuation amount, results in a combined benefit equal to 70% of his or her normal weekly earnings for the time being. "(5) Whenever the superannuation amount of a former employee referred to in subsection (2) or (3) is increased, the amount of compensation payable under that subsection shall be reduced, or further reduced, as the case requires, by:

(a) an amount equal to the amount of the increase; or

(b) an amount that will result in a combined benefit equal to 70% of the former employee's normal weekly earnings as at the date of the increase;

whichever is less.

(6) Subsection (5) does not require a reduction or further reduction in the amount of compensation payable to a former employee under subsection (2) or (3) where the reduction or further reduction would result in a combined benefit of less than 70% of the employee's normal weekly earnings as at the date of the increase in the superannuation amount."

1. The expression "superannuation scheme" was defined in s.4(1) to mean any superannuation scheme under which the Commonwealth or a Commonwealth authority made contributions on behalf of employees and to include a superannuation or provident scheme established or maintained by the Commonwealth or a Commonwealth authority. The expression "superannuation amount" was also defined in that subsection as follows:
   

"'superannuation amount', in relation to a pension received by an employee in respect of a week, or a lump sum benefit received by an employee, being a pension or benefit under a superannuation scheme, means an amount equal to:

(a) if the scheme identifies a part of the pension or lump sum as attributable to the contributions made under the scheme by the Commonwealth or Commonwealth authority - the amount of that part; or

(b) in any other case - the amount assessed by the relevant authority to be the part of the pension or lump sum that is so attributable or, if such an assessment cannot be made, the amount of the pension received by the employee in respect of that week or the amount of the lump sum, as the case requires."

1. Other expressions in s.131 were defined in s.123 which provided:
   

"In this Part:

'combined benefit', in relation to a former employee, means an amount equal to the sum of:

(a) the amount of compensation payable to the former employee under this Act; and

(b) the employee's superannuation amount;

'commencing day' means the day on which this Part commences; 'former employee' means a person who, immediately before the commencing day, was receiving weekly payments of compensation under the 1971 Act in respect of an injury resulting in an incapacity and had ceased to be an employee within the meaning of that Act before that day;

'total benefit', in relation to a former employee, means an amount equal to the sum of:

(a) the amount of compensation payable per week to the former employee under the 1971 Act; and

(b) the employee's superannuation amount;

'1971 amount', in relation to a former employee, means the amount of compensation that was, immediately before the commencing day, payable per week to the former employee under the 1971 Act."

It may be noted that, although Division 3 of Part X was amended by the Commonwealth Employees Rehabilitation and Compensation Amendment Act 1990 (Cth), no amendment has been made to the definition of "former employee" in s.123.

1. It is common ground that, on 1 December 1988, the respondent was under 65 years of age and in receipt of a pension under a superannuation scheme within the meaning of that expression in s.131(1). It is also clear that the respondent had satisfied the requirement set out in the definition of "former employee" in s.123 that he had ceased to be an employee within the meaning of the 1971 Act before 1 December 1988. The question for determination by the Tribunal was whether he was a person who, immediately before 1 December 1988, "was receiving weekly payments of compensation under the 1971 Act".

2. The Tribunal declined to accede to the submission put to it on behalf of the Commission that the words "person who, immediately before the commencing day, was receiving weekly payments of compensation under the 1971 Act in respect of an injury resulting in incapacity" were apt to include not only a person who was physically in receipt of such weekly payments at the relevant time, but also a person who was entitled to receive such weekly payments by reason of events that had occurred before the commencing day notwithstanding that, before that day, no amounts of weekly compensation had been received and no determination of entitlement to such payments had been made. The Tribunal regarded the submission advanced on behalf of the Commission as requiring that the definition of "former employee" be read as if the words "or entitled to receive" were inserted after the words "was receiving". The Tribunal, concluded that, on the proper construction of the definition, the respondent was not within its terms with the consequence that s.131 of the 1988 Act was not applicable to him. The determination under review was, therefore, set aside.

3. On the hearing of the present application, counsel for the Commission conceded that, if the definition of "former employee" in s.123 of the 1988 Act was to be read literally, the respondent was not within that definition as he was not physically in receipt of weekly payments of compensation under the 1971 Act immediately before 1 December 1988. However, he submitted that the definition should not be read literally but that the words "was receiving" in the definition were to be construed as meaning "was entitled to receive". This departure from the natural and grammatical meaning of the words "was receiving" was said to be justified not because the words would, if given their natural and grammatical meaning, be ambiguous or uncertain but because a literal reading of the words would give s.131 of the 1988 Act an operation which, it was submitted, the Parliament obviously did not intend. He referred to Cooper Brookes (Wollongong) Pty Ltd v. Federal Commissioner of Taxation (1981) 147 CLR 297, Catlow v. Accident Compensation Commission (1989) 167 CLR 543 at p 552 and Mills v. Meeking (1990) 169 CLR 214 at p 233.

1. It was submitted that the consequence of reading the definition literally was to give s.131 an operation that was arbitrary and capricious. The example was taken of two employees each of whom on the same day, being a day prior to 1 December 1988, suffered an injury in the course of his employment with resultant incapacity for work, each of whom was on 1 December 1988 under 65 and in receipt of a pension under a superannuation scheme and each of whom ceased to be an employee prior to that date. It was said that those employees would be treated differently for compensation purposes under the 1988 Act depending on whether the employee had received a weekly payment of compensation before that date. The employee who had received such a payment, it was submitted, would receive less by way of weekly payments of compensation under the 1988 Act after 1 December 1988 than the employee who had not received such a payment. There was, it was submitted, no rational basis for such an operation of the provision. By contrast, it was said, the provision could be given a rational and reasonable operation if it was construed as applying to an employee who satisfied the other requirements of s.131(1) and the definition of "former employee" in s.123 and who was, immediately prior to 1 December 1988, entitled to receive weekly payments of compensation under the 1971 Act by reason of events that had occurred prior to that date.

2. Counsel for the Commission also sought to rely on the use of the word "payable" rather than "paid" in the definition in s.123 of the expression "1971 amount". It was submitted that, if the definition of "former employee" were read literally, the two definitions were not consistent. Consistency could be achieved, it was said, by reading the definition of "former employee" in the way contended for by the Commission.

3. In support of a submission that the draftsman had clearly made a mistake in limiting the definition of "former employee" to employees who, immediately prior to 1 December 1988, were receiving weekly payments of compensation under the 1971 Act, counsel referred to the second reading speech of the Minister for Social Security in relation to the Bill which became the 1988 Act. The Minister said:
   

"The Commonwealth Employees' Rehabilitation and Compensation Bill 1988 seeks to repeal the Compensation (Commonwealth Government Employees) Act 1971 and to introduce a new scheme of compensation and rehabilitation for persons who are injured in the course of their employment by the Commonwealth. Between 1976 and 1986, the Commonwealth's expenditure on workers' compensation increased by over 700 per cent, from $25.04m to $203.29m per annum. Clearly, this situation could not be allowed to continue. Accordingly, the Government decided that the compensation Act should be reviewed with the aim of establishing a more equitable and cost-effective compensation system, with particular emphasis on the rehabilitation of injured employees. The result is a Bill which, when it comes into operation, will provide for many important changes in the compensation system and the circumstances in which compensation will be payable. The Bill will minimise the human and financial cost of work-caused injury and disease while at the same time providing adequate compensation and support for long term incapacitated employees.

....

This Bill will also seek to reduce the unreasonable costs associated with work-related injuries by introducing measures to prevent double dipping by employees using sick leave payments or superannuation entitlements while on compensation. For example, many employees who have been retired on invalidity grounds under the current legislation enjoy benefits under both compensation and superannuation schemes at a rate considerably in excess of their previous income. Special transitional provisions relating to the combined superannuation and compensation benefits payable to employees who have been invalided out of employment are contained in the Bill."

It was submitted that the legislation should be given an interpretation to promote its purpose as expressed by the Minister, namely "to prevent double dipping by employees using .... superannuation entitlements while on compensation". Reference was made to s.15AA of the Acts Interpretation Act 1901 (Cth) which provides:

"In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object."

1. Counsel for the Commission advanced an alternative submission to the effect that the test whether the respondent was receiving weekly payments of compensation immediately prior to 1 December 1988 could be satisfied retrospectively in the sense that it was not necessary to test the matter as at 1 December 1988. According to this alternative submission, if a payment of compensation was made to a person after 1 December 1988 in respect of a period immediately prior to that date or in respect of a period which included such a period, it was appropriate to treat the person as falling within the definition of "former employee". According to the submission, that approach would not do "quite as much violence to the actual words used" in the definition and would bring within the definition only persons who, it was said, were to be regarded as having received weekly payments of compensation under the 1971 Act albeit that those payments were not made prior to 1 December 1988. It was suggested that this approach would avoid the possibility, inherent in the primary submission, of including in the definition a person who was entitled to weekly payments of compensation under the 1971 Act but who did not, in fact, receive such payments.

2. In Cooper Brookes (Wollongong) Pty Ltd v. Federal Commissioner of Taxation (supra), the High Court, by majority, gave to a provision of the Income Tax Assessment Act (1936) (Cth) a meaning other than its literal meaning. The Court held it was permissible to do so because, having identified, from a consideration of the nature of the provision and its context and an examination of the legislative history, what was the intention of the legislature, the Court was satisfied that the expression of that intention had miscarried by reason of a mistake on the part of the draftsman and that the intention would not be carried into effect unless there were a departure from the literal meaning. In the course of his judgment, Gibbs CJ said (pp 304-5):
   

"It is an elementary and fundamental principle that the object of the court, in interpreting a statute, 'is to see what is the intention expressed by the words used': River Wear Commissioners v. Adamson (1877) 2 App Cas 743 at p 763. It is only by considering the meaning of the words used by the legislature that the court can ascertain its intention. And it is not unduly pedantic to begin with the assumption that words mean what they say: cf. Cody v. J.H. Nelson Pty Ltd (1947) 74 CLR 629, at p 648. Of course, no part of a statute can be considered in isolation from its context - the whole must be considered. If, when the section in question is read as part of the whole instrument, its meaning is clear and unambiguous, generally speaking 'nothing remains but to give effect to the unqualified words': Metropolitan Gas Co. v. Federated Gas Employees' Industrial Union (1925) 35 CLR 449, at p 455. There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case: see per Lord Reid in Connaught Fur Trimmings Ltd v. Cramas Properties Ltd (1965) 1 WLR 892, at p 899; (1965) 2 All ER 382, at p 386. Examples of that sort of case may be found in Maxwell on the Interpretation of Statutes, 12th ed., (1969), at p 228 et seq., and Craies on Statute Law, 7th ed., (1971), at p 520 et seq. However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature. The danger that lies in departing from the ordinary meaning of unambiguous provisions is that 'it may degrade into mere judicial criticism of the propriety of the acts of the Legislature', as Lord Moulton said in Vacher and Sons Ltd v. London Society of Compositors (1913) AC 107, at p 130; it may lead judges to put their own ideas of justice or social policy in place of the words of the statute. On the other hand, if two constructions are open, the court will obviously prefer that which will avoid what it considers to be inconvenience or injustice. Since language, read in its context, very often proves to be ambiguous, this last mentioned rule is one that not infrequently falls to be applied."

Stephen J said (p 310):

"Statute law, the direct product of the legislature, is perhaps the least appropriate field of all in which to indulge in judicial law-making. The corner of that field occupied by closely drafted statutes of high complexity should be particularly uninviting to the judicial law-maker. It provides the very antithesis of those occasional legislative measures which lay down only general principles and invite the courts to supply the details. It can never be enough to justify judicial intervention that what has been enacted may seem to a court to lead to an irrational result. As Lord Reid said in Cramas Properties Ltd v. Connaught Fur Trimmings Ltd (1965) 1 WLR 892, at p 898; (1965) 2 All ER 382, at p 385: 'Of course we must go by the words of the Act and if they are only capable of one meaning then we must take that meaning however irrational the result.' Moreover, in the present circumstances, while the bare outcome of the taxpayer's view of s.80C(3) is certainly unexpected and out of harmony with the legislative pattern which seems otherwise to emerge from these sections, it may not qualify for the epithet of irrational."

Mason and Wilson JJ said (pp 320-1):

"Generally speaking, mere inconvenience of result in itself is not a ground for departing from the natural and ordinary sense of the language read in its context. But there are cases in which inconvenience of result or improbability of result assists the court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning because the alternative interpretation more closely conforms to the legislative intent discernible from other provisions in the statute.

....

In some cases in the past these rules of construction have been applied too rigidly. The fundamental object of statutory construction is every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction.

The rules, as D.C. Pearce says in Statutory Interpretation, p 14, are no more than rules of common sense, designed to achieve this object. They are not rules of law. If the judge applies the literal rule it is because it gives emphasis to the factor which in the particular case he thinks is decisive. When he considers that the statute admits of no reasonable alternative construction it is because (a) the language is intractable or (b) although the language is not intractable, the operation of the statute, read literally, is not such as to indicate that it could not have been intended by the legislature.

On the other hand, when the judge labels the operation of the statute as 'absurd', 'extraordinary', 'capricious', 'irrational' or 'obscure' he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.

Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended."

1. In enacting the 1988 Act, the legislature relevantly dealt in specific terms with two classes of persons. The first of those classes was the subject of s.20 of the Act. That section applied to a person who was in receipt of a pension under a superannuation scheme consequent upon retirement at any time after the commencement of that section (viz. 1 December 1988) and who would, but for the provisions of that section, have received weekly payments of compensation pursuant to s.19 of the Act. The second class, a class that was divided into two sub-classes by the 1990 amendment, was the subject of s.131. That section applied to a person who was, immediately before 1 December 1988, receiving both a pension under a superannuation scheme and weekly payments of compensation under the 1971 Act and who satisfied the other prescribed criteria. It is clear that, by legislating for the two classes of persons so identified, the legislature did not make provision for all those who might, in the absence of specific provision directed to their situation, receive both a pension under a superannuation scheme and weekly payments of compensation.

2. There is nothing in the provisions contained in s.20 or s.131, or in the context in which those sections appear, to indicate that the legislative intention was to deal exhaustively with all such persons and to deal with them in the same manner as s.131 deals with those falling within its purview. Counsel for the applicant sought to establish that such was the intention of the legislature by the impermissible means of relying upon the description, in the Minister's second reading speech in relation to the Bill that became the 1988 Act, of the Bill as one introducing measures "to prevent double dipping by employees using sick leave payments or superannuation entitlements while on compensation".

3. It may be observed that the draftsman of the legislation appears to have been acutely aware of the difference between the concept of a person being in receipt of weekly payments of compensation and the concept of a person to whom amounts were payable by way of weekly payments. Where the latter concept provided the relevant criterion, the draftsman used the word "payable" (see, for example, the definition of "1971 amount" in s.123). The use of the verb "was receiving" in the definition of "former employee" seems to have been deliberately chosen.

4. The argument advanced on behalf of the applicant sought the Court's acceptance of the proposition that the Parliament intended that a person in the situation of the respondent be treated in the same manner as a person clearly falling within the language, literally understood, of s.131. It may, however, with equal justification, be supposed that the Parliament's intention was to treat differently the class of employees who had, in fact, received weekly payments of compensation while the 1971 Act remained in force and the class of employees who received such weekly payments not under that Act but only under the 1988 Act and to treat persons in the situation of the respondent, that is to say persons who received weekly payments of compensation for the first time under the 1988 Act (albeit by reference to the provisions of the 1971 Act), as falling within the second of the two classes mentioned. On the latter view, it would be s.20, not s.131, that would be seen to be deficient. It is not for the Court to resolve that question but the availability of those alternatives indicates that it is a mere matter of speculation as to what was the true legislative intention.

5. In my opinion, no sufficient reason has been advanced to justify reading the definition of "former employee" in s.123 otherwise than in accordance with its natural and grammatical meaning. In particular, it would not be appropriate, in my view, to conclude that the definition contained a gap and, in effect, to fill that gap by inserting the words "or was entitled to receive" before the reference to weekly payments of compensation under the 1971 Act. Further, even if it were correct to conclude that the Parliament intended to legislate for persons in the situation of the respondent, it does not necessarily follow that the Parliament would have applied to such persons the provisions of s.131 of the Act.

6. The circumstance that the weekly payments of compensation in respect of the period prior to 1 December 1988 were made to the respondent under the 1988 Act, albeit by reference to the provisions of the 1971 Act (see s.124(1) and (1A) of the 1988 Act), provides, in my opinion, a sufficient answer to the alternative submission advanced on behalf of the applicant. It cannot truly be said of the respondent that he received weekly payments of compensation "under the 1971 Act".

7. For these reasons, the application is dismissed. The applicant must pay the respondent's costs of the application.