Cook v Thales Australia Limited
[2012] FCA 777
•20 July 2012
FEDERAL COURT OF AUSTRALIA
Cook v Thales Australia Limited [2012] FCA 777
Citation: Cook v Thales Australia Limited [2012] FCA 777 Appeal from: Cook v Thales Australia Limited [2012] AATA 222 Parties: HAYDN COOK v THALES AUSTRALIA LIMITED (ACN 008 642 751), TEENA COOK and COMCARE File number: VID 359 of 2012 Judge: GORDON J Date of judgment: 20 July 2012 Catchwords: STATUTORY INTERPRETATION – Commonwealth employees’ compensation – death claim – dependent spouse and partially dependent son – meaning of “for the benefit of all of those dependants” ‑ Safety Rehabilitation and Compensation Act 1988 (Cth), s 17(3) Legislation: Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)Cases cited: Dunstone v Ferrari [1926] VLR 155 at 159
Fernance v Walker Bros (1966) 67 SR (NSW) 14
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Ranck and Australian Overseas Telecommunications Corporation (1993) 17 AAR 299Commonwealth, Parliamentary Debates, House of Representatives, 27 April 1988, 2191 (Brian Howe, Minister for Social Security)
Date of hearing: Determined on the papers Date of last submissions: 17 July 2012 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 23 Solicitor for the Applicant: Kennedy & Cooke Lawyers Solicitor for the First Respondent: Curwoods Lawyers Solicitor for the Second Respondent: Maurice Blackburn Lawyers Solicitor for the Third Respondent: Comcare Legal Services
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 359 of 2012
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: HAYDN COOK
ApplicantAND: THALES AUSTRALIA LIMITED (ACN 008 642 751)
First RespondentTEENA COOK
Second RespondentCOMCARE
Third Respondent
JUDGE:
GORDON J
DATE OF ORDER:
20 JULY 2012
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The decision of the Administrative Appeals Tribunal of 17 April 2012 be set aside and the matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law.
2.The Second Respondent pay the Applicant’s costs of and incidental to the Appeal.
3.There be no other costs orders.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 359 of 2012
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: HAYDN COOK
ApplicantAND: THALES AUSTRALIA LIMITED (ACN 008 642 751)
First RespondentTEENA COOK
Second RespondentCOMCARE
Third Respondent
JUDGE:
GORDON J
DATE:
20 JULY 2012
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Gary Cook was an employee of Thales Australia Limited (Thales). In December 2008, Mr Cook collapsed at work. He died on 2 January 2009. His widow, Teena Cook (Mrs Cook), claimed compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) (the Act). His son from a prior relationship, Haydn Cook, also claimed compensation under the Act.
Thales decided that compensation payable under s 17(3) of the Act should be paid in equal shares to Mrs Cook and Haydn. Mrs Cook applied to the Administrative Appeals Tribunal (the Tribunal) for a review of that decision. On 17 April 2012, the Tribunal set aside Thales’ decision and decided the entire amount payable under s 17(3) of the Act was to be paid to Mrs Cook. The Tribunal found that Haydn could not be paid compensation under s 17(3) of the Act because Haydn was partly, not wholly, dependent on his father.
The issue is a question of statutory construction. Section 17(3) of the Act relevantly provides that:
(3)Subject to this section and to sections 16 and 18, if the employee dies leaving dependants some or all of whom were, at the date of the employee's death, wholly dependent on the employee, Comcare is liable to pay compensation in respect of the injury of $400,000 and that compensation is payable to, or in accordance with the directions of, Comcare for the benefit of all of those dependants.
(Emphasis added.)
The total amount payable under s 17(3) is indexed and was $412,000 at the relevant time.
What does the phrase “all of those dependants” in s 17(3) mean? The Tribunal concluded it means (and is limited to) dependants who were wholly dependent on the employee.
Comcare and the Applicant contend that, on its proper construction, the phrase includes dependants who were wholly dependent on the employee and dependants who were partially dependent on the employee. For the reasons that follow, the latter construction is correct. It is consistent with the language of the Act, the scheme of the Act, the relevant extrinsic materials and common sense.
Statutory framework
It is necessary to understand the Act. Section 14(1) of the Act provides that Comcare is liable to pay compensation, in accordance with the Act, in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. That liability may be assessed by a licensee of Comcare: s 108 of the Act. Thales was a licensee.
As noted above, the central provision in issue is s 17 of the Act. It relevantly provides:
(1) This section applies where an injury to an employee results in death.
(2)Subject to this section and sections 16 and 18, if the employee dies without leaving dependants, compensation is not payable in respect of the injury.
(3)Subject to this section and to sections 16 and 18, if the employee dies leaving dependants some or all of whom were, at the date of the employee's death, wholly dependent on the employee, Comcare is liable to pay compensation in respect of the injury of $400,000 and that compensation is payable to, or in accordance with the directions of, Comcare for the benefit of all of those dependants.
(4)If the employee dies without leaving dependants who were wholly dependent on the employee at the date of the employee's death but leaving dependants who were partly dependent on the employee at that date:
(a)subject to this section and to sections 16 and 18, Comcare is liable to pay compensation in respect of the injury of such amount, not exceeding $400,000, as Comcare determines, having regard to any losses suffered by those dependants as a result of the cessation of the employee's earnings; and
(b)that compensation is payable to, or in accordance with the directions of, Comcare for the benefit of those dependants.
(5)If:
(a)a prescribed child was, at the date of the injury or at the date of the employee's death, wholly or mainly dependent on the employee;
(b)a prescribed child, being a child of the employee, was born after the employee's death; or
(c)a prescribed child would, if the employee had not died, have been wholly or mainly dependent on the employee;
Comcare is liable to pay compensation at the rate of $110 a week and that compensation is payable to, or in accordance with the directions of, Comcare for the benefit of that child from the date of the employee's death or the date of the birth of the child, whichever is the later.
…
(8)Where an amount of compensation is payable under this section for the benefit of 2 or more dependants of the deceased employee, Comcare shall determine the shares of those dependants in that amount as Comcare thinks fit, having regard to any losses suffered by those dependants as a result of the cessation of the employee's earnings.
…
(10)Where claims for compensation under this section are made by or on behalf of 2 or more dependants of a deceased employee, Comcare shall make one determination in respect of those claims.
Next, it is necessary to refer to some critical definitions in the Act. “Dependant” and “dependent” are both defined in s 4 of the Act:
“dependant”, in relation to a deceased employee, means:
(a)the spouse, parent, step-parent, father-in-law, mother-in-law, grandparent, child, stepchild, grandchild, sibling or half-sibling of the employee; or
(b)a person in relation to whom the employee stood in the position of a parent or who stood in the position of a parent to the employee;
being a person who was wholly or partly dependent on the employee at the date of the employee’s death.
Note: See also subsection 4(2).
“dependent” means dependent for economic support.
(Emphasis added.)
There was, and is, no dispute that at the time of Mr Cook’s death, Mrs Cook and Haydn were both dependent on Mr Cook. Indeed, in the case of Mrs Cook, she was deemed to be a person who was wholly dependent on Mr Cook at the date of his death: s 4(5) of the Act. Haydn was not deemed to be wholly dependent on Mr Cook at the date of his death because he was not living with his father. It is not disputed that Haydn was partly dependent on his father.
What then is the proper construction of s 17(3) and, in particular, what does the phrase “all of those dependants” in s 17(3) mean?
First, the express words of s 17. Sections 17(2)‑(4) deal with the quantum of compensation payable in particular circumstances. If there were no dependants, no compensation is payable: s 17(2). If there were dependants and some or all of them were wholly dependent, $412,000 is payable: s 17(3). (It will be necessary to return to this sub-section later in these reasons for decision). If there were dependants but none of them were wholly dependent, an amount not exceeding $412,000 is payable: s 17(4). If, as occurred here, two or more dependants have entitlements under ss 17(3) or (4), Comcare (or the licensee) determines the respective shares “in that amount as Comcare thinks fit, having regard to any losses suffered by those dependants as a result of the cessation of the employee’s earnings”: s 17(8).
Why then, properly construed, does the “all of those dependants” in s 17(3) refer to persons who were wholly dependent and persons who were partly dependent?
The first time the word “dependants” appears in s 17(3) (line 2) is important. The words must be interpreted having regard to the statutory definition of that word in s 4 of the Act. It means a person “who was wholly or partly dependent on the employee at the date of the employee’s death”: see [8] above. The task is to identify if there were dependants of the deceased regardless of their level of dependence.
Section 17 then directs the reader to analyse the level of dependency of those dependants. In particular, s 17 directs the reader to ascertain whether “some or all of whom were, at the date of the employee's death, wholly dependent on the employee” (emphasis added). The phrase “some or all of whom were ...” in s 17(3) imposes a requirement that the dependants include (not comprise) persons who were wholly dependent on the employee at the date of the employee’s death. Put another way, s 17(3) imposes a requirement that at least one of the dependants was wholly dependent on the deceased. Why? Because as noted above, the level of dependency determines the quantum of compensation able to be paid under the Act: see [7] above. If there were no wholly dependent persons, the quantum of compensation could not exceed $412,000 and could possibly be lower: see s 17(4).
The next relevant limb of s 17(3) is the phrase that directs Comcare that the amount of compensation ($412,000) is payable “for the benefit of all of those dependants” (emphasis added). It is clear that the phrase “all of those dependants” refers to all dependants, the wholly dependent and the partly dependent. That construction is consistent with the express words of the Act, the scheme of the Act and the statutory definition of “dependant”. How that compensation is to be shared is a matter for Comcare (or the licensee): s 17(8) of the Act.
The Tribunal interpreted the phrase “all of those dependants” in s 17(3) to mean “dependants wholly dependent on the employee”. That interpretation ignored the statutory definition of the word “dependant” and the express words of s 17(3). It is rejected. Put simply, contrary to the submissions of Mrs Cook, the scheme of the Act in respect of payments to dependants is not to allow recovery to wholly dependent persons to the exclusion of partly dependent persons but to allow recovery to partly dependent persons where no wholly dependent person or persons exist. The proposition has only to be stated to be rejected.
There are other reasons why the construction of s 17(3) that I have adopted is to be preferred. First, the construction adopted by the Tribunal rendered the phrase “some or all of whom” in s 17(3) superfluous. No word or sentence is to be ignored. All words must prima facie have, and be given, some meaning and effect: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71].
Next, s 17(4) of the Act. It addresses the situation where the employee dies without leaving dependants who were wholly dependent on the deceased but does leave dependants who were partly dependent on him or her. The manner in which the section is drafted is important. It does not, in its terms, apply in all cases where the employee dies leaving dependants partly dependent. It applies where the employee dies without leaving dependants who were wholly dependent on the deceased but does leave dependants who were partly dependent on him or her. The interrelationship between ss 17(3) and (4) is best understood diagrammatically as follows:
There is another aspect of s 17(4) which assists in the construction of s 17(3). The language chosen by the parliamentary drafters in ss 17(3) and (4) is different. The closing words of s 17(3) refer to “all those dependants”. The closing words of s 17(4) refer to “those dependants”. The difference in language is important. It is important because, as the diagram illustrates, “those dependants” in s 17(4) refers to one type – those partly dependent where there are no dependants wholly dependent on the employee. The different language in s 17(3) does, and was intended to, cover two categories of dependants – those wholly dependent and those partly dependent (where there are also dependants wholly dependent).
Next, the Tribunal’s reference to (and reliance upon) the previous legislation, the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act). Section 43 of the 1971 Act made provision for compensation where an injury to an employee resulted in the death of the employee. It relevantly provided:
(1)Where an injury to an employee results in the death of the employee, the succeeding provisions of this section have effect.
(2)Subject to this section and sections 37 and 44, if the employee dies without leaving dependants, compensation is not payable in respect of the injury.
(3)If the employee dies leaving dependants who were, at the date of the death of the employee, wholly dependent upon him, then‑
(a)subject to this section and to sections 37 and 44, the compensation payable in respect of the injury is $28,000 or such higher amount as is prescribed; and
(b)that compensation is payable to, or in accordance with the directions of, the Commissioner for the benefit of those dependants and of any dependants who were partly dependent upon the employee at that date.
(4)If the employee dies without leaving dependants who were, at the date of the death of the employee, wholly dependent upon him but leaving dependants who were, at that date, partly dependent upon him, then‑
(a)subject to this section and to sections 37 and 44, the compensation payable in respect of the injury is such amount, not exceeding $28,000 or such higher amount as is prescribed, as the Commissioner determines should be paid, taking into account any losses suffered by those dependants as a result of the cessation of the earnings of the employee; and
(b)that compensation is payable to, or in accordance with the directions of, the Commissioner for the benefit of those dependants.
…
(Emphasis added.)
In support of its conclusion that compensation payable under s 17(3) did not extend to Haydn, the Tribunal compared s 17(3) of the Act with s 43(3)(b) of the 1971 Act. The Tribunal stated that when s 17(3) was enacted it did not include the italicised words in s 43(3)(b) of the 1971 Act or any equivalent provision. I reject that proposition. Despite the difference in language, the result is the same. There is nothing in the language of the Act which evidences an intention by Parliament to no longer permit compensation to be shared between persons wholly dependent and persons partly dependent: see also Commonwealth, Parliamentary Debates, House of Representatives, 27 April 1988, 2191 (Brian Howe, Minister for Social Security).
Finally, the Tribunal sought to draw support for its construction of s 17(3) (a construction I have rejected) on the basis that the construction adopted was “neither absurd nor unfair” because an employee’s prescribed child would be adequately compensated by the receipt of weekly payment under s 17(5) of the Act. That contention is rejected. Section 17(5) was not a new entitlement. Such an entitlement existed under the 1971 Act: see s 43(5) of the 1971 Act. Further, the compensation payable under s 17(5) (see [7] above) is a separate and additional entitlement to that payable under s 17(4). Put another way, the entitlement to compensation under one section (say s 17(4)) is not reduced by the entitlement to compensation under the other section (say s 17(5)). The reverse is also true: cf Fernance v Walker Bros (1966) 67 SR (NSW) 14 at 16; Dunstone v Ferrari [1926] VLR 155 at 159-60 and Re Ranck and Australian Overseas Telecommunications Corporation (1993) 17 AAR 299 at 304-7.
Conclusion and Orders
For those reasons, the decision of the Tribunal should be set aside and the matter remitted to the Tribunal to be heard and determined according to law. Unless the parties are prepared to accept Thales’ decision, it will be necessary for the Tribunal to determine how the compensation is to be shared between Mrs Cook and Haydn. Mrs Cook should pay Haydn’s costs of and incidental to the appeal. Thales filed a submitting appearance. Comcare was joined as a party to the appeal. Comcare should bear its own costs. In those circumstances, no other costs orders are necessary.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon. Associate:
Dated: 20 July 2012
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