Commonwealth & Commission for the Safety, Rehabilitation & Compensation of Commonwealth Employees v Esber, F

Re: COMMONWEALTH OF AUSTRALIA and THE COMMISSION FOR THE SAFETY REHABILITATION
AND COMPENSATION OF COMMONWEALTH EMPLOYEES
And: FARAGE ESBER
No. G40 of 1991
FED No. 291
Workers' Compensation
101 ALR 35
29 FCR 324/13 AAR 550

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Davies(1), Lee(2) and Hill(3) JJ.

CATCHWORDS

Workers' Compensation - redemption of entitlement to weekly payments of compensation - application for review of determination under Compensation (Commonwealth Government Employees) Act 1971 pending at date of commencement of Commonwealth Employees' Rehabilitation and Compensation Act 1988 - transitional provisions - whether the 1988 Act or the 1971 Act applies.

Acts Interpretation Act 1901, s.8

Administrative Appeals Tribunal Act 1975, ss.43, 44; sub-s.29(7)

Commonwealth Employees' Compensation Act 1930, s.20

Commonwealth Employees' Rehabilitation and Compensation Act 1988, ss. 3-139; sub-ss.23(3), 124(2), (3), (4), (6), (7), (8), (9), (11), (12), 125(2), 127(1), (2), (3), 129(2)

Compensation (Commonwealth Government Employees) Act 1971, ss.4, 27, 45, 46, 49, 104, 105, 106, 107; sub-ss.49(3), (4), 104(1), 107(1), (2), (3), (4), (5), (6), (8), (10)

Re Australian National Railways Commission and Kulu and Comcare (1989) 18 ALD 47

Behan v. Australian Telecommunications Corporation (1990) 99 ALR 79

Bradshaw v. Warlow (1886) 32 Ch D 403

The Colonial Sugar Refining Company, Limited v. Irving (1905) AC 369

Continental Liqueurs Pty. Ltd. v. G.F. Heublein and Bro. Incorporated (1960) 130 CLR 422

Re Costello and Secretary Department of Transport (1979) 2 ALD 934

Cox v. Snowy Mountains Hydro-Electric Authority (1990) 22 FCR 356

Re Crombie and Commonwealth of Australia (1986) 9 ALD 251

Director-General of Social Services v. Chaney (1980) 31 ALR 571

Director of Public Works v. Ho Po Sang (1961) AC 901

Free Lanka Insurance Co. Ltd. v. A.E. Ranasinghe (1964) AC 541

Re Ganchov and Comcare (1990) 19 ALD 541

Jebb v. Repatriation Commission (1988) 80 ALR 329

J.R. Exports Pty. Ltd. v. Australian Trade Commission (1987) 14 FCR 161

Re Levana Pty. Ltd. and Minister for the Capital Territory (1982) 4 ALN N124

Maxwell v. Murphy (1957) 96 CLR 261

Parisienne Basket Shoes Pty. Ltd. v. Whyte (1938) 59 CLR 369

Robertson v. City of Nunawading (1973) VR 819

Re Sandbach (1951) Ch 791

Re Sein and Comcare and National Library of Australia (1989) 18 ALD 611

Spalding Co-operative Society Ltd v. Atherton (1944) BWCC 134

Re Tait and Australian Postal Commission (1988) 16 ALD 162

R v. Tonkin, Ex parte Federated Ship Painters' Union (1954) ALR 777

Williams v. Town of Claremont (1976) WAR 125

Re Willis and Australian Telecommuncations Commission (1989) 19 ALD 665

Worrall v. Commercial Banking Co. of Sydney Ltd. (1917) 24 CLR 28

HEARING

BRISBANE

#DATE 30:5:1991

Counsel and Solicitors Mr G. Gibson QC and Miss M. Wilson
Applicant: instructed by the Australian Government

Solicitors

Counsel and Solicitors Mr J. Logan instructed by Taylors
for Respondent:

ORDER

The appeal be allowed.

Orders 1 and 2 made by the Administrative Appeals Tribunal on 20 February 1991 be set aside and in lieu thereof it be ordered that the application to the Tribunal be dismissed.

The applicants pay the costs of the appeal.

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

JUDGE1

The general facts of the case have been set out in the reasons for judgment of my brother Lee J. and I need not repeat them.

Leave has been sought to amend the notice of appeal to raise the issue as to whether the Administrative Appeals Tribunal ("the Tribunal") was wrong in applying the provisions of the Compensation (Commonwealth Government Employees) Act (1971) (Cth) ("the 1971 Act") rather than the provisions of the Commonwealth Employees Rehabilitation and Compensation Act (1988) (Cth) ("the 1988 Act"). As this is a fundamental question of law going to the validity of the Tribunal's decision, leave to amend should be granted. The fact that the Tribunal first ruled on the matter in an interlocutory decision given on 1 June 1990 and that the present applicants were content for some time thereafter to accept the view expressed does not preclude the grant of leave. The issue is a purely legal issue and fundamental to the Tribunal's decision. The proper time to raise it is in this appeal. No appeal lay from the interlocutory decision. See Director-General of Social Services v. Chaney (1980) 31 ALR 571. In the circumstances, leave to amend should be granted but on the terms that the applicants pay the costs of the appeal and that the order for costs made by the Tribunal on 8 February 1991 not be disturbed.
The present is not a case such as that considered in Re Willis and Australian Telecommunications Commission (No. 2) (1990) 19 ALD 677 in which the Tribunal held, at p 687, that the effect of s.124(2) of the 1988 Act was to apply to a claim for compensation the legislation in force at the time when the entitlement to compensation arose. I make no comment upon that decision for it involves the circumstance that the claim for compensation for injury had been made prior to the coming into operation of the 1988 Act and in the context that, if the Administrative Appeals Tribunal considered that the application should be allowed, its decision would relate back to the date when the claim was made.
It is clear that a decision of an Administrative Appeals Tribunal may have a retrospective effect. Section 43(6) of the Administrative Appeals Tribunal Act (1975) (Cth) indeed provides inter alia:-

"(6) A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect."

Notwithstanding this provision, decisions of an Administrative Appeals Tribunal are not ordinarily retrospective in effect, or in concept, but speak as at the date of the tribunal's decision and are based on the material which is before it and the facts as they exist as at the date of the tribunal's decision. As I said in Jebb v. Repatriation Commission (1988) 80 ALR 329 at 333:-

"the general approach of the tribunal has been to regard the administrative decision making process as a continuum and to look upon the tribunal's function as a part of that continuum".

It follows that, in the ordinary course, a decision of the Administrative Appeals Tribunal will either expressly or by necessary implication speak as from the date of the decision. For this reason, a decision of the Administrative Appeals Tribunal ordinarily applies the law as at the date of the tribunal's decision.

In some cases, however, it is necessary for the Administrative Appeals Tribunal to look at the state of the law and the state of the facts as at a prior time. For example, an entitlement to compensation under the 1971 Act or under the 1988 Act must be considered having regard to the state of the facts and the law as they existed when the claim for compensation was lodged. Such is also the case with respect to claims for pensions and benefits under the Veterans' Entitlements Act 1988 (Cth). I speak, of course, only in general terms and without reference to specific statutory provisions which may affect a particular claim. In all these cases, subject to the expression of a legislative intent to the contrary, the Administrative Appeals Tribunal applies the law existing as at the date of the claim.
The Administrative Appeals Tribunal's function in these respects was fully considered in an early decision of the tribunal, Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 at 939-45. At 943-4, the learned tribunal said, inter alia:-

"It is clear, firstly, that in the exercise of our review function under s43 of the Administrative Appeals Tribunal Act 1975 we stand in the shoes of the decision-maker and that the exercise of our review jurisdiction is the occasion of a fresh exercise of administrative power. In the ordinary course of events, therefore, the Tribunal is entitled to have regard to the facts or matters as they stand at the date of its decision (see Drake v. Minister for Immigration and Ethnic Affairs

(1979) 2 ALD 60, Greenham and Minister for the Capital Territory (1979) 2 ALD 137, and Re The Hospitals Contributions Fund of Australia and Minister for Health (No. 3) (1979) 2 ALD 401. Where the relevant law at all material times is the same, no problem arises as to the law to be applied. But where, as in the present matter, the law has been changed between the date of the administrator's decision and the decision of this Tribunal, it seems to us that the question as to the law to be applied by the Tribunal must be resolved by having regard:

(i) to the nature of the decision under review; and

(ii) to the provisions of the legislation by which the change in the law is effected (cf Quilter v Mapleson (1882) 9 QBD 672). The nature of the decision under review may require the Tribunal to consider the facts and circumstances before it in the light of the law at some anterior date in order to form an opinion as to the accrued rights or liabilities of the applicant (see, for example, s 132 of the Customs Act 1901 as to the liability for customs duty). A subsequent change in the law will not affect the matter unless it is expressed to apply retrospectively (cf Quilter v Mapleson, supra). Examples of two decisions given by the Tribunal where the relevant legislation was amended with retrospective effect between the date of the decision under review and the date of the Tribunal's decision, are Re Smith and Defence Force Retirement and Death Benefits Authority (1978) 1 ALD 374 and Re Shelton and Defence Force Retirement and Death Benefits Authority (1979) 2 ALD 574. In both cases the law as retrospectively amended was applied.

But where the nature of the decision under review does not involve a consideration of the accrued rights or liabilities but rather involves an investigation whether the applicant has a present entitlement to the grant of a right or privilege, we have concluded that, unless the amending law otherwise provides we should apply the law as amended as at the date of our decision."

This exposition of the Tribunal's function and of the effect of repealing or amending legislation has since been accepted as correctly stating the function of the Administrative Appeals Tribunal and of the general effect of repealing or amending legislation. The exposition correctly applied s.8 of the Acts Interpretation Act 1901 (Cth) and cases such as Director of Public Works v. Ho Po Sang (1961) AC 901 and Robertson v. City of Nunawading (1973) VR 819.
A decision as to the redemption of a liability to make weekly payments does not relate back to the date of the claim. A decision that the liability be redeemed is forward looking and redeems the future liability. Thus, s.49(4) of the 1971 Act provided:-

"The amount of the lump sum is the amount determined to be the value, as at the date of the determination by the Commissioner that the liability is to be redeemed, of the right of the employee to receive further payments of compensation under section 46 and, in the determination of the value of that right, regard shall be had to the nature of the injury to the employee, the age and occupation of the employee and any other relevant matters."

Section 30 of the 1988 Act is in different form but its effect is similar. It provides inter alia that:-

"the Commission shall make a determination that its liability to make further payments to the employee under that section be redeemed by the payment to the employee of a lump sum."

The calculation as to the redemption is to be made having regard to "the date of the determination" and "the day on which the employee reaches 65".

In practice, redemption decisions made by an Administrative Appeals Tribunal have spoken as from the date of the decision. See e.g., Re Crombie and Commonwealth of Australia (1986) 9 ALD 251 and Re Tait and Australian Postal Commission (1988) 16 ALD 162. In each of these cases, the Administrative Appeals Tribunal redeemed the liability of the Commonwealth to make further payments and, by necessary implication, the decision had effect on and from its date.
This practice is not inconsistent with the transitional provisions of the 1988 Act for s.129(2) of the 1988 Act merely provides:-

"Where the Commonwealth is a party to any proceedings relating to any matter arising under the 1912 Act, the 1930 Act or the 1971 Act (including proceedings under Part V of the 1971 Act), being proceedings instituted but not completed before the commencing day, those proceedings may be continued on or after that day and, where the proceedings are so continued, the relevant authority and the Commonwealth shall be parties to those proceedings."

The Tribunal made a decision redeeming the liability of the Commonwealth to make further payments to Mr Esber as from the date of the Tribunal's decision. The Tribunal decided, inter alia:-

"1. That the decision under review be set aside.

2. That pursuant to the provisions of s.49 of the Compensation (Commonwealth Government Employees) Act 1971 the liability of the Commonwealth to make further payments to the applicant under sec. 46 of the said Act be redeemed by the payment to him of the lump sum of $199,742."

The Commonwealth had submitted to the Tribunal that the redemption, if decided upon, should be calculated by taking the weekly compensation payments as at 30 November 1988, the last day of the operation of the 1971 Act, that is $127.45, and by multiplying that sum by the factor of 1331.613, calculated having regard to Mr Esber's age and his expectation of life based on life tables and taking into account a discount rate of 3%. From the resultant figure of $169,714, the Commonwealth submitted that the weekly payments made to Mr Esber thereafter should be deducted. The Tribunal specifically rejected this approach and said:-

"60. Again for similar reasons this Tribunal rejects the submission that it `will in these circumstances have to look at the position as at 30 November 1988 rather than as at today'. The determination pursuant to the provisions of sec.49(5) by this Tribunal (bearing in mind the provisions of sec.43 of the Administrative Appeals Tribunal Act as referred to above) that the Commonwealth's liability is to be redeemed, logically and necessarily is made at today's date not at some earlier date and certainly not on a date having any regard to the provisions of, or the commencement date of the 1988 Act, or of the date of repeal of the 1971 Act."

The Tribunal held that there should be "no deduction from this sum (the redemption sum) in respect of weekly payments of compensation paid to the applicant in the past or up until this lump sum is paid to him." This passage referred back to the Tribunal's finding which I have already set out, that "the determination ... that the Commonwealth's liability is to be redeemed, logically and necessarily is made at today's date not at some earlier date ...". The Tribunal did, in fact, use the multiplier of 1331.613 which appears to have been relevant only to the date of 30 November 1988, but we are not further concerned with that.

The Tribunal was correct in treating the matter as one in which its decision spoke as from the date of the decision. In the first place, Mr Esber had no accrued right or entitlement to a redemption sum calculated by reference to the date of his application for redemption or the date of the determination which was under review. Under s.49(5) of the 1971 Act, a decision-maker had to be satisfied as to the matters specified in paragraphs (a), (b) and (c) before he could determine that the liability should be redeemed. Prior to the decision of the Administrative Appeals Tribunal, given on 8 February 1991, no decision-maker had been so satisfied. The Tribunal's inquiry was not an inquiry as to whether a right existed but an inquiry as to whether a right, the right of redemption, should be granted. See Director of Public Works v. Ho Po Sang at 926. Even had it been relevant for the Tribunal in its decision to look backwards to the date of the application for redemption, or the date of the decision under review, there was no future entitlement to compensation under the 1971 Act which remained to be redeemed. Mr Esber had received weekly payments of compensation during the currency of the 1971 Act. There was no liability remaining under that Act which could be redeemed by a decision made under s.47 of the Act.
The Tribunal in its reasons for decision valued the liability of the Commonwealth to make future payments under the 1988 Act. The Tribunal did not specifically refer to the 1988 Act but it is clear that its calculations took into account the value of the weekly payments under that Act. The Tribunal said:-

"65. The question then to determine is the extent of the base weekly rate of loss of capacity. It is known that a private's wage at this time is about $490 on a weekly basis and that the applicant is earning and has shown a capacity to earn about $250 a week as a taxi driver. It is thus submitted on the applicant's behalf that his weekly loss and therefore the extent of his work incapacity for present purposes should be assessed at the differences between these two figures i.e. $240.

The Tribunal considers this an over-simplistic way of calculating the extent of the loss. However it is a method which gives some guidance to the rate to be determined. The Tribunal is to take into account all the matters referred to in sec.49(4) of the Act. Having done so it considers that the appropriate base weekly rate of loss should be assessed at $150."

This line of reasoning took account of the provisions as to weekly payments in the 1988 Act which were in some respects more generous than those under the 1971 Act. Having arrived at the $150, the Tribunal then used the multiplier of 1331.613 to arrive at the lump sum of $199,742, which it held to be the redemption sum.

However, the Tribunal was wrong in applying the redemption provisions of the 1971 Act, set out in s.49 of the 1971 Act, to the redemption of the Commonwealth's liability to make weekly payments to Mr Esber under s.19 of the 1988 Act. If the Tribunal considered itself to be speaking as from the date of its decision and to be redeeming the liability of the Commonwealth to make payments to Mr Esber under the 1988 Act, as it did, it was bound to apply the provisions of s.30 of the 1988 Act, the section which governed the redemption of weekly payments for which the 1988 Act provided. There is no principle of law and no provision of the 1988 Act or of the Acts Interpretation Act which would entitle the Tribunal to apply the provisions of s.49 of the 1971 Act to the redemption of the liability to pay weekly payments under the 1988 Act. The approach of the Tribunal was therefore misconceived.

I would allow the appeal and would set aside orders 1 and 2 of the Tribunal's decision and, in lieu thereof, would order that the application to the Tribunal be dismissed. The applicant should pay the costs of the appeal.

JUDGE2

This is an appeal under s.44 of the Administrative Appeals Tribunal Act 1975 from a decision of the Administrative Appeals Tribunal ("the Tribunal") on a question of law. Before exposing that question of law, it is necessary to set out some of the material facts.

The applicants in the appeal are the Commonwealth of Australia ("the Commonwealth") and the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees ("the Commission").
The respondent ("Esber") was an enlisted member of the defence forces and an employee of the Commonwealth between 6 January 1981 and 22 November 1982. On 30 April 1982 Esber suffered a personal injury arising in the course of his employment. The injury became the cause of Esber's discharge from the defence forces in November 1982 on the ground of medical unfitness for duty.
On 11 March 1983 a determination was made under the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act") that the Commonwealth was liable to pay compensation to Esber in respect of that injury. Between November 1982 and November 1984 Esber was paid compensation for a total incapacity for work. At all material times after 1 May 1986 Esber was paid compensation for a partial incapacity for work, such payments being in excess of a sum of $50 per week.
On 25 February 1987 and pursuant to s.49 of the 1971 Act Esber requested the Commissioner for Employees' Compensation to determine that the liability of the Commonwealth to make further payments to Esber under s.46 of the 1971 Act be redeemed by the payment of a lump sum.
On 29 October 1987 a delegate of the Commissioner for Employees' Compensation determined that the liability of the Commonwealth to make payments under s.46 should not be redeemed.
On 15 September 1988 pursuant to Pt.V of the 1971 Act Esber applied to the Tribunal for review of the delegate's determination and under sub-s.29(7) of the Administrative Appeals Tribunal Act 1975 applied for an extension of time in which to make the application for review. On 28 June 1989 the Tribunal extended that time as requested. It was not contested that the effect of the Tribunal's order was to confirm that the proceeding to review the decision had been instituted on 15 September 1988. (See Bradshaw v. Warlow (1886) 32 ChD 403 per Cotter L.J. at p 406; Parisienne Basket Shoes Pty. Ltd. v. Whyte (1938) 59 CLR 369 per Dixon J. at pp 389 and 391; Re Levana Pty. Ltd. and Minister for the Capital Territory (1982) 4 ALN N124 per Davies J. at N126-N127; Re Australian National Railways Commission and Kulu and Comcare (1989) 18 ALD 47, at pp 50-51.) On 1 December 1988 ss.3-139 of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 ("the 1988 Act") commenced. Section 139 of the 1988 Act repealed the 1971 Act.
Esber's application for review came on for hearing before the Tribunal on 21 May 1990 at which time the Tribunal was invited to receive submissions and make a ruling upon a preliminary issue, namely whether the application to review the determination of Esber's request for redemption of the Commonwealth's liability to pay compensation was governed by the provisions of the 1971 Act or the 1988 Act.
On 1 June 1990 the Tribunal ruled that the decision of the delegate was to be reviewed in accordance with the law as it had applied under the 1971 Act.
The further hearing of the application for review continued on 3 and 4 December 1990. On 20 February 1991 the Tribunal decided that the decision under review should be set aside and that pursuant to s.49 of the 1971 Act the liability of the Commonwealth to make further payments to Esber under s.46 of that Act be redeemed by the payment to Esber of a sum of $199,742.
The Commonwealth and the Commission appealed to this Court on a question of law relating to the calculation of the appropriate amount of the lump sum to be paid by way of redemption.
At the hearing of the appeal the Commonwealth and the Commission sought leave to amend the notice of appeal by adding questions of law which related to the Tribunal's earlier ruling that the review application was to be determined in accordance with the provisions of the 1971 Act and not the provisions of the 1988 Act. The Commonwealth and the Commission agreed that if leave were granted, they would pay Esber's costs of the appeal, and informed the Court that they sought no order varying the order of the Tribunal that they pay Esber's costs of the application for review.
The Court reserved its decision on the application for leave, but permitted the appeal to be argued on those questions which became the only issues of the appeal. The appeal as argued involved a question of construction of the 1988 Act, in particular the transitional provisions contained in Div.2 of Pt.X of that Act (ss.124-131).
Those transitional provisions of the 1988 Act have been the source of uncertainty as to how the Act is to be applied to events which occurred before the date of commencement. (See Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665 at p 670; Re Sein and Comcare and National Library of Australia (1989) 18 ALD 611; Re Ganchov and Comcare (1990) 19 ALD 541.)
I now turn to consider the 1988 Act and the changes it made by repeal of the 1971 Act.
Under s.14 of the 1988 Act, liability to pay compensation in accordance with the Act is imposed upon the Commission in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment. Section 19 of the 1988 Act sets out the manner of calculation of weekly payments of compensation to be paid to an employee suffering incapacity for work as a result of injury. Under s.27 of the 1971 Act, the Commonwealth was liable to pay compensation in accordance with that Act in respect of a personal injury arising out of, or in the course of, the employment of an employee. The amount of weekly payments of compensation were calculated according to whether the employee was totally (s.45) or partially (s.46) incapacitated for work. The 1988 Act removed the concepts of total and partial incapacity. Under s.101 of the 1988 Act, the Minister may declare a Commonwealth authority to be an "administering authority" and where such a declaration is made any liability of the Commission to pay compensation or make any other payment under the Act is vested in the "administering authority" on the day of the declaration. By s.102 of the 1988 Act an administering authority has the function of making determinations accurately and quickly in relation to claims and requests made under the Act. In s.103 an administering authority is empowered to do all that is necessary for, or in connection with, the performance of its functions under the 1988 Act.
The transitional provisions of the 1988 Act make it clear that the provisions of that Act are intended to apply in relation to an injury, loss or damage suffered by an employee before or after the "commencing day" of the Act, 1 December 1988. A similar transitional provision was contained in sub-s.104(1) of the 1971 Act when that Act repealed the Commonwealth Employees' Compensation Act 1930. In the manner of s.104 of the 1971 Act, s.124 of the 1988 Act qualifies a person's entitlement to compensation in respect of an injury, loss or damage suffered before 1 December 1988 by providing no entitlement to compensation under the 1988 Act if compensation was not payable in respect of that injury, loss or damage under, inter alia, the 1971 Act as in force when the injury, loss or damage was suffered (sub-s.124(2)). (See Cox v. Snowy Mountains Hydro-Electric Authority (1990) 22 FCR 356.)
Sub-section 124(6) of the 1988 Act states that a person is not entitled to compensation under s.19 of the Act in respect of an incapacity where the compensation relates to a period occurring before 1 December 1988 if the person received weekly payments of compensation in respect of that period under the named preceding compensation Act or Acts or was not entitled to receive weekly payments of compensation in respect of that period under those Acts. Sub-s.124(7) provides that the rate of compensation a person is entitled to receive under s.19 of the Act in respect of an incapacity where the compensation relates to a period occurring before 1 December 1988 is to be the same rate of compensation that would have been payable under the named preceding Act or Acts if the 1988 Act had not been enacted. (See also sub-ss.124(3), (4) and sub-ss.124(8), (9).) Other provisions altered pre-existing rights (see s.131) or expressly maintained them. (See sub-s.124(11), (12) and s.128.)
Section 128 of the 1988 Act states that any liability of the Commonwealth to pay compensation under, inter alia, the 1971 Act shall, to the extent that it has not been discharged before 1 December 1988, be taken to be incurred by the relevant authority on 1 December 1988 under the corresponding provision of the 1988 Act.
It is apparent that the transitional provisions of the 1988 Act intend that liabilities to pay compensation existing at the date of commencement are to be re-vested under the 1988 Act as liabilities of the relevant authorities under that Act.
Under s.125 of the 1988 Act, any payment made before 1 December 1988 in respect of a liability of the Commonwealth under the 1971 Act for an injury suffered by an employee is, after 1 December 1988, deemed to have been made by the relevant authority in respect of the corresponding liability of that authority to make such a payment under the 1988 Act for that injury. In particular in sub-s.125(2), any payment which had effect as a redemption of a liability of the Commonwealth has effect as a redemption under s.30 of the 1988 Act of the corresponding liability of the authority under the 1988 Act.
Under s.126 of the 1988 Act, notice of injury or of a claim for compensation made before 1 December 1988 is taken to be a notice or claim given and made under the 1988 Act.
Transitional provisions similar to those in ss.125 and 126 of the 1988 Act were contained in ss.105 and 106 of the 1971 Act.
In sub-s.127(1) of the 1988 Act any settlement of the liability of the Commonwealth to pay compensation under the Commonwealth Workmen's Compensation Act 1912 in respect of an injury shall, after 1 December 1988, be taken to be a determination made by the relevant authority under the 1988 Act in respect of the corresponding liability of the relevant authority to pay compensation. The reconsideration and review provisions in respect of determinations provided by Pt.VI of the 1988 Act are not applicable to such a settlement.
Sub-section 127(2) states that any determination made, or action taken, by the Commissioner for Employees' Compensation under the 1971 Act having effect immediately before 1 December 1988, being a determination or action in respect of the liability of the Commonwealth to pay compensation or make any other payment shall be taken to be a determination made by the relevant authority under the 1988 Act in respect of the corresponding liability of that relevant authority to pay compensation or make a similar payment under the 1988 Act. Apparently the provisions of Pt.VI of the 1988 Act are available in respect of such determinations.
The provisions of s.127 are similar to those which had been enacted in sub-ss.107(1)-(4) of the 1971 Act although sub-s.107(2) of the 1971 Act stated that any determination or action taken was "deemed" to be a determination under the 1971 Act whereas sub-s.127(2) has replaced "deemed" with the words "taken to be". The altered choice of words does not suggest that a more restrictive construction is to be applied. (See Williams v. Town of Claremont (1976) WAR 125.)
Sub-section 127(3) states that:

"Where a determination or action referred to in subsection (2) is, or has been, varied by a court or a tribunal, subsection (2) has effect in relation to that determination or action as so varied".

The apparent purpose of sub-s.127(3) is to make provision for the consequences of proceedings instituted but not completed before 1 December 1988 being proceedings saved by sub-s.129(2).

Under sub-s.107(3) of the 1971 Act where a determination or action referred to in sub-s.107(2) "has been or is varied by a court on an appeal" sub-s.107(2) "has effect in relation to that determination or action as so varied". As is explained later, the reference to "a court on an appeal" was to a court hearing an appeal from a judgment or order of a County Court made upon an appeal made to the County Court pursuant to s.20 of the Commonwealth Employees' Compensation Act 1930. Sub-section 107(10) of the 1971 Act stated that if such an appeal from a County Court had not been instituted before the commencement date of the 1971 Act, the rights of appeal were to be those provided by Div.5 of Pt.V of the 1971 Act as if the judgment or order of the County Court were the judgment or order of a prescribed court under Pt.V of the 1971 Act and it followed that any decision made on such an appeal was a decision made according to and under the 1971 Act. It was a corollary to those provisions that an appeal from a County Court, instituted before the commencement day, continued unaffected by the 1971 Act and sub-s.107(3) applied to the outcome of that appeal. (See Maxwell v. Murphy (1957) 96 CLR 261.)
Sub-section 127(3) of the 1988 Act provides for a variation of a determination effected by a court or a tribunal to be an event to which sub-s.127(2) applies. The extension of the sub-section to include a tribunal indicates that the 1988 Act contemplates that administrative and judicial proceedings may be on foot under the 1971 Act before 1 December 1988 and that the sub-section is intended to apply to the outcome of each such proceeding.
Sub-section 127(3) acknowledges that such proceedings instituted under the preceding law may be continued by the operation of sub-s.129(2) and provides for consequences to attach to the results of those proceedings rather than adopting such proceedings and incorporating them as proceedings under the 1988 Act. If the 1988 Act had provided that those proceedings were to become proceedings under the 1988 Act, no further statement as to the effect of the Act thereon would be required. To put it another way, unless sub-s.127(3) was inserted to acknowledge that saved proceedings may continue under the preceding law and that the outcome of those proceedings would require further provision in the 1988 Act, the words were superfluous.
The saving provisions in the 1988 Act are contained in s.129 of the Act which reads as follows:

"129. (1) Where a person was, immediately before the commencing day, entitled to apply to the Administrative Appeals Tribunal for review of a determination under the 1971 Act but had not made such an application before that day, Part VI of this Act applies as if:

(a) the person were a claimant under this Act; and

(b) the reference in subsection 62(3) to 30 days after the day on which the determination first came to the notice of the claimant were a reference to 30 days after the commencing day.

(2) Where the Commonwealth is a party to any proceedings relating to any matter arising under the 1912 Act, the 1930 Act or the 1971 Act (including proceedings under Part V of the 1971 Act), being proceedings instituted but not completed before the commencing day, those proceedings may be continued on and after that day and, where the proceedings are so continued, the relevant authority and the Commonwealth shall be parties to those proceedings."

Part V of the 1971 Act enabled a party to a determination to make application to the Tribunal for a review of the determination or to apply to a prescribed court for judicial review. Both forms of application are described as "proceedings" in Pt.V of the 1971 Act and have been expressly included in sub-s.129(2).
The saving provisions in sub-s.129(2) do no more than say that such proceedings may be continued and to that extent at least have like effect to s.8 of the Acts Interpretation Act 1901. On what basis the proceedings are to continue is left unsaid. All that is required by sub-s.129(2) is that the party upon which liability to pay compensation is vested by the 1988 Act, namely a relevant authority which, therefore, has an interest in the outcome of the continued proceedings, is added as a party to the proceedings. The natural inference from the words of the sub-section is that the proceedings continue according to the law as it was prior to repeal notwithstanding that no express words to that effect have been included. There are transitional provisions where such express words have been included, for example sub-ss.124(4), 124(7), 124(9), but the failure to use such express terms will not, in itself, negate a clear inference to be obtained from the words used. This is particularly so where longstanding provisions such as s.8 of the Acts Interpretation Act 1901 have not been expressly excluded. It should also be noted that the repealed Act to which the transitional provisions relate did include such express qualifications.
Section 107 of the 1971 Act was much more restrictive in relation to continued proceedings. Although sub-s.107(5) expressly acknowledged that the repeal of the Commonwealth Employees' Compensation Act 1930 did not affect the application by virtue of s.8 of the Acts Interpretation Act 1901 of s.20 of the repealed Act, the succeeding sub-sections of s.107 varied that right of appeal. Section 20 of the Commonwealth Employees' Compensation Act 1930 was as follows:

"(1) Any person affected by any determination or action of the Commissioner under this Act may appeal to a County Court against the determination or action and the Court shall have jurisdiction to hear and determine the appeal, and such appeal may be in the nature of a re-hearing."

Sub-section 107(6) provided that if an appeal had not been instituted at the date of repeal, s.20 of the Commonwealth Employees' Compensation Act 1930 would not, by virtue of s.8 of the Acts Interpretation Act 1901, apply and Pt.V of the 1971 Act providing for review by a tribunal and judicial review by a County Court would apply.

Sub-section 107(8) of the 1971 Act further provided that if an appeal had been instituted in a County Court before the date of repeal but the appeal had not been determined before that date, the appeal was to be deemed to be an application duly made under Pt.V of the 1971 Act for a judicial review and the County Court was to conduct the review as if it were a prescribed court.
The foregoing provisions made it clear that the proceedings to which those sub-sections applied were to be conducted under, and according to, the 1971 Act and further that in sub-s.107(3) "a court on an appeal" could only be a court hearing an appeal from a County Court in an appeal proceeding instituted before the commencement of the 1971 Act.
Whereas s.107 expressly referred to s.8 of the Acts Interpretation Act 1901 and to the manner in which the operation of that section was intended to be modified, neither s.129 nor any other part of the 1988 Act makes any reference to that section.
The 1971 Act in s.4 made further reference to s.8 of the Acts Interpretation Act as follows:

"4.(1) The Acts specified in Schedule 1 are repealed.

(2) Notwithstanding section 8 of the Acts Interpretation Act 1901-1966, the Commonwealth is not liable, on or after the proclaimed date, to make any payments under the Commonwealth Workmen's Compensation Act 1912 or the Commonwealth Employees' Compensation Act 1930-1971 but section 8 of the Acts Interpretation Act 1901-1966 otherwise applies in relation to the repeals effected by the last preceding sub-section to the extent to which its application would not be inconsistent with the operation of any provision of this Act."

Unlike sub-s.107(8) of the 1971 Act, sub-s.129(2) of the 1988 Act does not make a proceeding instituted but not completed before 1 December 1988 subject to the provisions of the 1988 Act. The effect of sub-s.129(2) upon a proceeding instituted under Pt.V of the 1971 Act before 1 December 1988 is similar to that of the 1971 Act in respect of a proceeding by way of appeal from a County Court instituted prior to the date of commencement of the 1971 Act where no limitation upon the application of s.8 of the Acts Interpretation Act 1901 was imposed by the 1971 Act in respect of such a proceeding.
If a review proceeding were "continued" as permitted by sub-s.129(2) of the 1988 Act, the continuation of that review could not be a proceeding of the type provided for in the 1988 Act in that no "reviewable decision" would have been made to permit an application for review to be made to the Tribunal pursuant to s.64 of the 1988 Act. Under Pt.VI of the 1988 Act, the only decision the Tribunal is empowered to review is a "reviewable decision", defined as a decision made by the Commission or an administering authority upon reconsideration of a determination made by it (ss.60, 62 and 64).
If the provisions of the 1988 Act did apply to Esber's application for review, the provisions of that Act would render the application incompetent. The only provision for redemption in the 1988 Act is in s.30 which obliges the Commission to make a determination that the liability of the Commission to make further payments to an employee under ss.19, 20 or 21 of the Act be redeemed by the payment of a lump sum if the amount of those payments is $50 per week or less and if the Commission is satisfied that the degree of incapacity is unlikely to change. As recited earlier, at all times Esber received payments exceeding $50 per week and, therefore, the 1988 Act would not permit the Commission, or the Tribunal in its stead, to make a determination in respect of redemption of the Commission's liability to make compensation payments to Esber.
Pursuant to s.43 of the Administrative Appeals Tribunal Act 1975, the Tribunal is entitled to exercise all powers and discretions conferred on the decision-maker: it may affirm the decision under review, vary it or set it aside and substitute another decision. Although sub-s.127(3) refers to a determination or action "varied" by a tribunal, that word in its ordinary meaning is capable of including any alteration to a binding state of affairs effected by a determination or action. The context in which the words of the sub-section are to be interpreted supplies no cause for restricting the meaning of the word "varied" to exclude a decision of a Court or Tribunal which sets aside or substitutes the determination or action under review. If the sub-section were so construed, the provision would have an unnecessary and absurd gap.
The application to the Tribunal on 15 September 1988 under Pt.V of the 1971 Act for a review of the delegate's determination made on 29 October 1987 was the exercise by Esber of a right provided by the 1971 Act.
The 1971 Act provided such a right to apply for a review of a determination and Esber had availed himself of that right before the commencement date of the 1988 Act. The 1988 Act recognized a pending application for review as an accrued right and made express provision for the preservation of such a right in sub-s.129(2). The determination made on 29 October 1987 under sub-s.49(3) of the 1971 Act was a determination having effect before 1 December 1988 in respect of the liability of the Commonwealth to "make any other payment" under the 1971 Act and was a determination to which sub-ss.127(2) and (3) applied in conjunction with sub-s.129(2). The facts in this case may be contrasted against those considered by the Judicial Committee in Director of Public Works v. Ho Po Sang (1961) AC 901. In Ho Po Sang the aggrieved party had no more than an expectation in the outcome of the exercise of a discretion and the absence of any words in the repealing statute preserving that expectation left no room for a finding that whatever right the applicant had possessed, it survived the repeal.
As pointed out by the Privy Council at p 925, other facts will provide different results. (See also The Colonial Sugar Refining Company, Limited v. Irving (1905) AC 369.)
In the end it is a question of what was the intention of the legislature as conveyed by the words it has employed. As is noted in Worrall v. Commercial Banking Co. of Sydney Ltd. (1917) 24 CLR 28 per Barton, Isaacs and Rich JJ. at p 31:

"The distinction between 'rights' and 'procedure' is only an aid to interpretation, and not the test. The test is: What did the Legislature mean when its words are read, after giving due weight to every relevant consideration?"

Under the 1971 Act, Esber had a right to seek a review of the delegate's determination. The investigation in respect of that right was the conduct of review proceedings by the Tribunal. (See Free Lanka Insurance Co. Ltd. v. A.E. Ranasinghe (1964) AC 541 at p 552.) By instituting the proceedings for review, Esber acquired an accrued right under the 1971 Act. (See Continental Liqueurs Pty. Ltd. v. G.F. Heublein and Bro. Incorporated (1960) 103 CLR 422 at pp 426-427.)
Parliament has made it clear that such proceedings may be continued and has refrained from providing that the continuation of the proceedings is to be under the terms of the 1988 Act. A contrary legislative step may be found in J.R. Exports Pty. Ltd. v. Australian Trade Commission (1987) 14 FCR 161.
Although in J.R. Exports Fox J. opined that an application for reconsideration of a refusal to grant an indulgence in respect of time could not be in the nature of an accrued right simply because the application had already been refused, the foundation for the finding of the majority in that case was the conclusion that the transitional provisions in the relevant repealing Act had express provisions which required a pending application to be dealt with under the terms of the repealing Act.
There are no such words in the 1988 Act and although the review procedure conducted by the Tribunal permitted the consideration of fresh material and fresh submissions which thereby lessened any analogy that may have been made with an appeal in judicial proceedings, it remained an investigation in respect of an accrued right under the 1971 Act.
The effect of the foregoing, therefore, is as follows. The review proceedings in the Tribunal commenced prior to 1 December 1988 were to be continued by the Tribunal as proceedings under the 1971 Act and determined in accordance with the law provided by that Act as if the 1988 Act had not been enacted. The review proceedings carried on by the Tribunal satisfied the right granted to Esber by the 1971 Act to have such a review conducted by the Tribunal. The ordinary principles of law embodied in s.8 of the Acts Interpretation Act 1901 in respect of the preservation of such a right have not been excluded by the 1988 Act. The right of review was the right to have a decision made under the provisions of the 1971 Act reconsidered and, if necessary, redetermined. Unless the repealing Act provided otherwise, that right of review continued. Until the commencement of the 1988 Act Esber, having instituted an application for review before 1 December 1988, had a right to have the determination made on 29 October 1987 under the 1971 Act reviewed or reconsidered by the Tribunal to ensure that it was a determination properly made under the 1971 Act. By virtue of sub-s.129(2) of the 1988 Act, Esber retained the right to have such a review carried out and completed.
Although an order for redemption operates prospectively in respect of future payments of compensation, the transitional provisions of the 1988 Act in respect of any review proceeding already instituted in the Tribunal in exercise of the right of review provided by the 1971 Act required the determination to be made as to whether redemption should be effected and calculation made of the amount of the sum to be redeemed by application of the 1971 Act as if it had not been repealed.
Therefore, in carrying out the review, the Tribunal was obliged to consider Esber's claim for redemption of his entitlement to the payment of compensation under s.46 of the 1971 Act as if such payments under that section were a continuing obligation notwithstanding the repeal of the 1971 Act, and assess the application for redemption under s.49 of that Act in the terms of sub-s.49(4) as if the provisions were still in force.
By sub-ss.127(2), (3) of the 1988 Act, a determination of the Tribunal is taken to be a determination by the relevant authority under the 1988 Act in respect of the corresponding liability of the authority to make a payment under s.30 of the 1988 Act and sub-s.23(3) of the 1988 Act would apply to discharge the authority from any further liability.
In Behan v. Australian Telecommunications Corporation (1990) 99 ALR 79, Lockhart J. was required to consider the effect of the transitional provisions of the 1988 Act, but not the precise point that is raised in the case before this Court. In Behan, no application to redeem weekly payments had been made before 1 December 1988 and quite clearly the application for redemption had to be determined under the terms of the 1988 Act irrespective of when the injury had occurred. Similarly, any request for a redemption made before 1 December 1988 but not determined, would fall to be determined under the provisions of the 1988 Act. There is no saving provision in respect of a claim for compensation or a request for redemption to be found in the transitional provisions. Sub-section 129(2) only applies to pending proceedings in respect of determinations already made before 1 December 1988. That is, it applies to accrued rights. A claim for compensation or a request for a payment in redemption of compensation entitlements is not a "proceeding" within the meaning of that term as used in sub-s.129(2).
The Tribunal did not err in making its determination according to the provisions of the 1971 Act.
The applicants should be granted leave to amend their notice of appeal, but the appeal should be dismissed and the Commonwealth and the Commission ordered to pay Esber's costs of the appeal.

JUDGE3

The facts relevant to the present appeal are set out in the judgment of Lee J., which I have had the privilege of reading, and need not be repeated.

As his Honour points out, the question of law raised by the proposed amendment to the notice of appeal, was whether, in the Administrative Appeals Tribunal review of the decision of the delegate of the Commissioner for Employees' Compensation made on 29 October 1987 not to redeem the liability of the Commonwealth to make payments under s.46 of the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act"), the provisions of the 1971 Act or the provisions of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 ("the 1988 Act") applied.
Ultimately, it seems to me, that that question is one to be determined by reference to the proper construction of the 1971 Act and the 1988 Act.
Under the 1971 Act, the liability to pay compensation in a case where an injury to an employee results in the employee being partially incapacitated for work, was to be determined pursuant to s.46. That section provided for payment to an employee during the period of the incapacity of a weekly amount to be determined in accordance with that section.
Redemption by the payment of a lump sum was provided for in s.49 of the 1971 Act. That section relevantly provided as follows:

"49. (1) Subject to this section, where payments of compensation in respect of an injury have been made to an employee under section 46 for a continuous period of not less than six months, the employee may request the Commissioner in writing that the liability of the Commonwealth to make further payments to the employee under that section be redeemed by the payment to the employee of a lump sum.

(2) A request under the last preceding sub-section shall be in writing and shall specify the manner in which the employee intends to use the lump sum if the request is granted.

(3) Where a request is made under sub-section (1), the Commissioner shall, unless the employee has, by notice in writing to the Commissioner, withdrawn the request, determine -

(a) whether the liability of the Commonwealth is to be redeemed by the payment to the employee of a lump sum; and

(b) if he determines that the liability is to be so redeemed - the amount of the lump sum.

(4) The amount of the lump sum is the amount determined to be the value, as at the date of the determination by the Commissioner that the liability is to be redeemed, of the right of the employee to receive further payments of compensation under section 46 and, in the determination of the value of that right, regard shall be had to the nature of the injury to the employee, the age and occupation of the employee and any other relevant matters.

(5) The Commissioner shall not make a determination that the liability of the Commonwealth to make further payments to an employee under section 46 is to be redeemed unless he is satisfied that -

(a) the injury is not likely to result in the employee becoming totally incapacitated for work;

(b) the employee intends to use the lump sum in a manner that is particularly advantageous to the employee; and

(c) in all the circumstances it is desirable in the interests of the employee that the liability of the Commonwealth be redeemed."

It will be noted that what is to be redeemed, if the conditions of the section are satisfied, is the liability of the Commonwealth to make further payments under s.46. Section 49 does not authorise redemption of payments made under any other section of any other Act. Not only that, but the quantum of the lump sum has to be determined by looking at the matter at the date of the making of the determination, and considering the value of the right to receive further payments of compensation under s.46.
The 1988 Act imposes an obligation on the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees, established under that Act, to pay compensation in accordance with that Act in respect of an injury suffered by an employee, inter alia, if the injury results in incapacity for work or impairment: s.19. The 1988 Act makes it clear that it applies, subject to the provisions of Part X (transitional provisions), in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing date: s.124(1). Where the compensation relates to a period occurring before the commencement date, the rate of compensation is to be the same as the rate of compensation that would have been payable to that person if the 1988 Act had not been enacted: s.124(7). A person is not entitled to compensation under s.19 in respect of an incapacity, where the compensation relates to a period prior to the commencement of the 1988 Act, if the person received weekly payments of compensation in respect of that period under earlier Acts (including the 1971 Act) or was not entitled to receive weekly payments of compensation in respect of that earlier period: s.124(6).
Once the 1988 Act had commenced, and in respect of the period from the date of that commencement and thereafter, there was no obligation remaining to pay compensation under s.46 of the 1971 Act. There was, in substitution for that, an obligation to pay compensation under s.19 of the 1988 Act.
While it is true that what was before the Administrative Appeals Tribunal was an application to review a decision made prior to the 1988 Act, the power of the Tribunal in a case such as the present, is to set aside the decision under review, if it be so minded, and to make a decision in substitution for it: s.43(1) of the Administrative Appeals Tribunal Act 1975. In determining whether to set aside the decision under review, the Tribunal considers the matter as at the date it makes its decision and in accordance with the law as it then is, unless some special provision to the contrary is to be found. If it makes a determination in substitution for the decision set aside, that determination is made when the Tribunal so acts, not when the original decision-maker made his decision. This is subject to s.43(6) which authorises the Tribunal to order that its decision have effect, or be deemed to have had effect, on or from the day on which the decision has or had effect. Hence the matter before the Tribunal, assuming the 1971 Act to apply to the review (a matter that I do not need to consider) was whether the liability under s.46 of the 1971 Act was to be redeemed. However, at the date that question fell to be considered, there was no longer any liability under the 1971 Act at all. There was then only a liability under s.19 of the 1988 Act. Accordingly, there is nothing to redeem under the 1971 Act.
Section 128 of the 1988 Act makes it clear that after the commencement of that Act there can be no liability to pay compensation to an employee during a period of incapacity under either ss.44 or 46 of the 1971 Act. Section 128 provides, to the extent that the liability under (inter alia) those sections has not been discharged before the commencing date, is to be deemed to have been incurred under the corresponding provision of the 1988 Act (that is to say in the present case, s.19). There is no scope in the 1988 Act for liability under the 1971 Act to continue unless otherwise provided for by the 1988 Act itself.
Section 129(2) of the 1988 Act clearly operates to continue proceedings which have been instituted under the 1971 Act. However, it is in general terms and while it obviates the necessity of a party who has instituted proceedings in relation to payment for compensation, for example, under s.46, to commence new proceedings under the 1988 Act, it does not touch upon the present issue.
Some indication that the intention of the legislature was that redemptions should not take place under the 1971 Act after the commencement of the 1988 Act, even where proceedings were pending as at the commencement date, is to be found in s.125 of the 1988 Act.
Sub-section (2) of that section provides that a payment made before the commencement date in respect of a liability of the Commonwealth that had effect as a redemption of such liability is to be deemed to have effect as a redemption under s.30 of the 1988 Act. Had it been intended that redemptions be permitted in respect of proceedings pending at the commencement date (in cases where s.30 is inapplicable), then the sub-section would not have been limited merely to payments made before the commencement date, but would, by necessity, have comprehended payments made after the commencement date in respect of proceedings pending as at that date.

The point can be illustrated in another way. If an application for redemption were made under the 1971 Act and proceedings were pending in respect of it and the circumstances were such that the amount of weekly payments of compensation to be redeemed was $50 per week or less, a redemption carried out under the 1971 Act, where the redemption payment was after the commencement date of the 1988 Act, would not operate as a redemption under s.30 of the 1988 Act. The consequence might well be argued to be that the employee was entitled to make a further application under s.30. Alternatively, the strange result would follow that the employee or the Tribunal could chose under which section the redemption should be effected. It may be that it could be argued that the provisions of s.127(2) would obviate this result, but that sub-section is a general sub-section and s.125(2) a specific sub-section, so that the provisions of the specific sub-section may well prevail over the general. In any event, a determination for redemption under s.127(2) would have no operation.
Sections 127(2) and 127(3) provide as follows:

"(2) Any determination made or action taken by the Commissioner for Employees' Compensation under the 1930 Act or the 1971 Act and having effect immediately before the commencing day, being a determination or action in respect of the liability of the Commonwealth to pay compensation or make any other payment to a person under the 1930 Act or the 1971 Act, as the case may be, shall be taken to be a determination made by the relevant authority under this Act in respect of the corresponding liability of that relevant authority to pay compensation or make a similar payment under this Act to that person.

(3) Where a determination or action referred to in subsection (2) is, or has been, varied by a court or a tribunal, subsection (2) has effect in relation to that determination or action as so varied."

The effect of sub-sec.(2) is that if a determination has been made, for example, in respect of compensation payable under s.46 of the 1971 Act, that determination is taken to be a determination in respect of the corresponding liability under the 1988 Act, that is to say a determination under s.19. If anything, s.127(2) makes it clear that the direct operation of s.46 of the 1971 Act is spent once the 1988 Act commences.
Nor does sub-sec.(3) add anything to a case such as the present. I have considerable doubt whether the redemption of the obligation to make payments under s.46 can properly be referred to as a variation of the determination to make payment under s.46. Redemption does not operate as a variation, rather it operates to put an end to the determination by paying it out. Redemption involves discharge of the obligation, its termination for ever: cf Spalding Co-operative Society Ltd v Artherton (1944) 37 BWCC 134; Re Sandbach (1951) Ch 791. Variation on the other hand involves an alternation of a continuing obligation. Although the meaning of the word "variation" must depend on its context, the normal connotation of the word suggests the introduction of change or alteration. Such alteration may come about by addition or substitution or by qualification or otherwise: R v Tonkin, Ex parte Federated Ship Painters' Union (1954) ALR 777 at 779. However, once varied there will continue to exist an obligation under that which has been varied. It is not, however, necessary to resolve that question here for even if redemption could constitute a variation, nothing in s.127(3) authorises a redemption of a liability under s.46 of the 1971 Act once that obligation to be redeemed had ceased to exist.
The question raised in the appeal is one of considerable importance. We were told from the bar table that there are a number of other cases dependent upon the resolution of the present one.
I am in agreement with the orders proposed by Davies J.

[1991] FCA 291

30 MAY 1991