Ellavale Engineering Pty Ltd v Pilgrim

[2005] NSWCA 272

CITATION:	ELLAVALE ENGINEERING PTY. LIMITED v. PILGRIM [2005] NSWCA 272
HEARING DATE(S):	23/02/05
JUDGMENT DATE:	19 August 2005
JUDGMENT OF:	Handley JA at 1; Beazley JA at 18; Campbell AJA at 93
DECISION:	Appeal dismissed with costs

CATCHWORDS:	WORKERS COMPENSATION - coal miners - Schedule 6 Part 18 Workers Compensation Act 1987 (NSW) - Coal Mines Regulation Act 1982 (NSW) - whether respondent a "coal miner" - whether respondent employed "in or about a coal mine" - STATUTORY CONSTRUCTION - relevant principles - whether words should be implied into a statutory provision - Schedule 6 Part 18 Workers Compensation Act 1987 (NSW)
LEGISLATION CITED:	Coal Industry Act 2001 (NSW) Coal Mines Regulation Act 1982 (NSW) Interpretation Act 1987 (NSW) Workers Compensation Act 1987 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW)
CASES CITED:	Bermingham v Corrective Services Commission of New South Wales [1988] 15 NSWLR 292 Collector of Customs v Bell Basic Industries Ltd (1988) 20 FCR 146 Commonwealth v Lyon (1979) 24 ALR 300 Commonwealth v Oliver (1962) 107 CLR 353 Cooper Brookes (Wollongong) Pty Limited v Federal Commissioner of Taxation (1981) 147 CLR 297 Delaney v Staples [1992] 1 AC 687 Griffin v Houlder Line Ltd [1904] 1 KB 510 Hope v Bathurst City Council (1980) 144 CLR 1 Jones v Wrotham Park Settled Estates [1980] AC 74 Kingston v Keprose Pty Limited (No.3) (1987) 11 NSWLR 404 Meadows v Ellerman Lines Ltd [1920] 3 KB 544 New South Wales Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 Owens v Campbell Limited [1904] 2 KB 60 Pfeiffer v Stevens (2001) 209 CLR 57 Police v Thomson [1966] NZLR 813 Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 Roberts v Fuchs Lubricants (Australasia) Pty Limited (2002) 24 NSWCCR 125 Staging Connections Pty Limited v WorkCover Authority of New South Wales [2004] NSWCA 357
PARTIES:	Ellavale Engineering Pty. Limited (Appellant) Dean Pilgrim (Respondent)
FILE NUMBER(S):	CA 40209/04
COUNSEL:	L. King SC/L. Stone (Appellant) A. Katzmann SC/T. Edwards (Respondent)
SOLICITORS:	Rankin & Nathan (Newcastle) Bale Boshev (Newcastle)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	3650/01; RJ03650/01
LOWER COURT JUDICIAL OFFICER:	Maguire CCJ; Truss DCJ

CA 40209/04
CC 3650/01

HANDLEY JA
BEAZLEY JA
CAMPBELL AJA

19 August 2005

ELLAVALE ENGINEERING PTY LIMITED v PILGRIM

Headnote

The respondent was employed by the appellant as a leading hand fitter and turner. He was required to attend upon various jobs for which the appellant was contracted, a significant proportion of which were based at coal mine sites. The respondent was injured when, in the course of carrying out maintenance on equipment at a coal mine with which the appellant company had contracted to provide engineering services, he was crushed between two vehicles.

Schedule 6 Part 18 of the Workers Compensation Act 1987 (NSW) (WCA) preserves beneficial compensation entitlements for persons employed “in or about a coal mine to which the Coal Mines Regulation Act 1982 applies”. Neither the WCA nor the Coal Mines Regulation Act, as operative at the time of the respondent’s accident, defined “coal miner”.

There was no issue that the mine where the respondent was injured was a “coal mine” for the purposes of the statute. The issue on appeal was whether the respondent was a “coal miner” within the meaning of Sch 6 Pt 18 and, therefore, was entitled to the enhanced compensation benefits under the WCA. This question turned upon the proper statutory construction of the phrase “worker employed in or about a coal mine” in Sch 6 Pt 18. The appellant contended that the phrase meant persons employed in or about a coal mine by the mine operator. On this construction, the words “by the mine operator” had to be implied into Sch 6 Pt 18. The respondent submitted that it was irrelevant whether a worker injured in or about a coal mine was actually employed by the entity which operated the mine.

Held:
1. As to whether the respondent was a “coal miner”
Per curiam:

(i) The respondent was a “coal miner” for the purposes of Sch 6 Pt 18 of the WCA, and accordingly, was entitled to the enhanced statutory benefits afforded under the legislation.

Per Handley JA (MW Campbell AJA agreeing):

(ii) Under s 35(1)(a) of the Interpretation Act 1987 (NSW), headings to the “Parts” into which an Act are divided are taken to be part of the Act. Given that the heading to Pt 18 is “Special Provisions Relating to Coal Miners”, the language of cl 1(1) of Pt 18 provides a definition of “coal miner” for the purposes of the WCA, namely, “a worker employed in or about a mine to which the Coal Mines Regulation Act 1982 applies”.

(iii) The word “employed” in the definition of “Coal Miner” refers only to the worker without reference to the employer. Therefore, workers employed in or about a coal mine qualify for the enhanced statutory benefits whoever their employer may be and regardless of the employer’s involvement in mining operations.

Per Beazley JA (MW Campbell AJA agreeing):

(iv) Where it is submitted that a court should imply words into a statutory provision, a court must have regard to the overall purpose of the legislation. It must also be clear that Parliament has inadvertently omitted the words sought to be implied bearing in mind the purpose of the Act, and a court must be certain that parliament would have intended those words to be used to overcome the omission had its attention be drawn to the legislative defect: Kingston v Keprose Pty Limited (No.3) (1987) 11 NSWLR 404; Cooper Brookes (Wollongong) Pty Limited v Federal Commissioner of Taxation (1981) 147 CLR 297

(v) Parliament has exhibited an awareness that coal mines are inherently dangerous places for all those who work in or about them. The purpose of Sch 6 Pt 18 is, therefore, to afford enhanced compensation benefits to persons employed in or about coal mines, and no differentiation should be made between those workers employed by the mine operator itself and those who are not.

(vi) There is nothing in the language or structure of the WCA, for example, the “journey” or “nature and conditions” provisions, or its overall purpose, which compels the construction of Sch 6 Pt 18 as restricting the enhanced compensation benefits only to those employed in or about a coal mine by the mine operator.

(vii) Where a group is singled out to receive special treatment under legislation, and that class of persons is defined by reference to another Act, it is a legitimate exercise of statutory construction to determine who is included in that group by reference to the purpose of the other piece of legislation.

(viii) “Coal miner” is defined by reference to the Coal Mines Regulation Act 1982. This statute provides for the safety of persons employed in coal mines and draws no distinction between those employed by the mine operator and those that are not. There is no warrant therefore in confining the meaning of “coal miner” to a worker so employed by the mine operator.

2. As to whether the respondent was employed “in or about” a coal mine

Held per Handley JA:

(ix) Nothing turns on the regularity or timeframe of the work done by a worker in or about a coal mine. The focus is on the actual work being done by the worker at the time of their injury and whether this was substantially centred in or about a mine: Meadows v Ellerman Lines Ltd [1920] 3 KB 544

Per Beazley JA (MW Campbell AJA agreeing):

(x) The phrase “in or about”, in the context of employment, connotes a sufficient connection with the business carried on at a particular place as well as physical proximity to that place (Owens v Campbell Limited [1904] 2 KB 60; Meadows v Ellerman Lines Ltd [1920] 3 KB 544; The Queen v Neil; Ex-parte Cinema International Corporation Pty Limited (1976) 134 CLR 27). The respondent was not a casual visitor to the mine; rather, he worked regularly at the mine in question for purposes directly connected with the mining operations carried on at the site. He was, therefore, employed “in or about” a coal mine.

(Obiter)

(xi) In the absence of evidence adduced to the Court, it is unnecessary to consider how, why or whether special insurance arrangements peculiar to the coal mining industry affect the construction of the term “coal miner” within Sch 6 Pt 18 of the WCA.

Orders

Appeal dismissed with costs.

CA 40209/04
CC 3650/01

HANDLEY JA
BEAZLEY JA
CAMPBELL AJA

19 August 2005

ELLAVALE ENGINEERING PTY LIMITED v PILGRIM

Judgment

1 HANDLEY JA: In this appeal I have had the considerable benefit of reading the judgment of Beazley JA in draft and this enables me to be relatively brief. I have reached the same conclusion for slightly different reasons.

2 The Court is concerned with the construction of Sch 6 Pt 18 of the Workers Compensation Act 1987 which retained for “coal miners” the more favourable rights to weekly compensation during incapacity for work under the 1926 Act despite its general repeal. This favoured treatment was reserved (cl 1(1)) for “a worker employed in or about a mine to which the Coal Mines Regulation Act 1982 applies”. The heading to Pt 18 is “Special Provision relating to Coal Miners”.

3 Under s 35(1)(a) of the Interpretation Act 1987 headings to the “Parts” into which an Act are divided are taken to be part of the Act. This means in effect that the language of cl 1(1) of Pt 18 is a definition of coal miner for the purposes of that Part. A definition includes the word defined and its ordinary meaning can influence its defined meaning: Delaney v Staples [1992] 1 AC 687, 692. This definition leaves little scope for this principle and Mr King SC, for the appellant, did not submit that the special benefits were limited to workers directly engaged in the extraction of coal.

4 The verb “employed” in the definition is in the passive voice, and refers only to the worker, without reference to the employer. This excludes the dictionary definitions of the verb in the active voice or limits their relevance and in my judgment it makes the identity of the employer irrelevant. I therefore agree with Beazley JA that the appellant’s principal argument, that the phrase means persons employed by the entity which operates the coal mine, must be rejected. In my judgment workers employed in or about a coal mine qualify for the enhanced benefits whoever their employer may be and regardless of its involvement in the mining operations.

5 Part 18 has been amended a number of times since 1987 but the amendments prior to the injury throw no light on the meaning of the definition and in my view the later amendments should be disregarded.

6 Some of the cases cited dealt with the meaning and application of phrases where “employed” was used in the passive voice and I regard these as more relevant in the present context. In Owens v Campbell Ltd [1904] 2 KB 60 Collins MR said at 64 that “employment in or about a factory” “involves the idea of an employment connected with the business carried on at the place indicated”. In Taylor v The Cecil Syndicate Ltd [1906] St R Qd 324 the question was whether the plaintiff was “employed in or about a mine” and Cooper CJ said (328-9) that the plaintiff had been because he “was engaged in some operation in connection with mining purposes, because his employment was in connection with obtaining gold from a mineral”. He treated “employed” and “engaged” in that context as synonymous.

7 The Macquarie Dictionary does not include a definition of “employ” as a verb in the passive voice but the Shorter Oxford does viz “in pass. often merely to be occupied”. This approximates to the synonym “engaged” adopted by Cooper CJ.

8 Meadows v Ellerman Lines Ltd [1920] 3 KB 544 dealt with a provision in the Workmen’s Compensation Act 1906 dealing with industrial diseases where the relevant phrase was “workman … employed in any process”. In that case the focus was on the work being done by the worker at or about the time the industrial disease was contracted. Beazley JA has quoted a passage from the judgment of the Court given by Atkin LJ where he said that the words “relate to the general nature of the workman’s service”. Despite the different context I agree that this concept is relevant and helpful in construing the subject definition.

9 In The Queen v Neil; Ex parte Cinema International Corporation Pty Ltd (1976) 134 CLR 27 the High Court was concerned with the eligibility clause of a registered organisation of employees which gave it coverage over “employees employed … in or about theatres, halls etc”. The question was whether this clause gave the registered organisation coverage over employees working for distributors of motion picture films. Gibbs J said at 31-2:

“It is of course clear that this description could not apply to most of the employees of the prosecutors and its possible application arises only in relation to those who are employed as salesmen and who in that capacity visit cinemas and halls. A salesman who is required to visit a theatre in the course of his business cannot properly be described as employed in or about the theatre. A person cannot be said to be employed in or about a theatre unless the theatre is the place in or about which he ordinarily performs the duties of his employment.”

10 There is a substantial difference between the weekly benefits available, during incapacity, to coal miners as defined, and the benefits available to other workers, and Parliament should be credited with the intention of defining a reasonably clear and practical boundary between the two, although it would have been idle to think that disputation could be completely avoided. I agree with Beazley JA that reasoning back from the journey provisions is not helpful and with respect I cannot see that reasoning from s 9A is helpful either. I also agree that no assistance can be obtained from the insurance provisions in force at the date of the injury.

11 The cases referred to enable me to conclude that persons who merely visit a coal mine in the course of other duties to make deliveries, or for similar purposes such as postmen, couriers, chauffers, truck drivers and others are not employed in or about the mine. The general nature of their work excludes such a finding and they are not so employed merely because their work takes them from time to time to the mine site, even if, as in the case of the postman, this is for a short time every working day. In the words of Gibbs J, for such workers the mine is not “the place in or about which [they] ordinarily perform the duties of [their] employment”.

12 On the other hand I do not think that the relevance of “the general nature of the workman’s service” involves an inquiry over an extended period. In the three years before this accident the respondent performed between 36% and 47% of his duties at coal mines. In my judgment a worker such as the respondent does not become a coal miner as defined if 50.1% of his work over some more or less arbitrary period was in or about a coal mine, but is not a coal miner if the percentage is only 49.9%.

13 It seems to me that nothing turns on the regularity or otherwise of the work done by a worker in or about a coal mine. The focus is on the actual work being done by the worker at the time of his injury provided this was substantially centred in or about the mine. This excludes workers who visit the mine in the course of their employment for relatively short periods whose general work is not in or about the mine. It includes a worker whose general work for the time being is in or about the mine even if it is expected to last only for a relatively short time and whether his employer is the coal mine operator or not.

14 A tradesman, employed by a contractor, called in for a short job underground, measured in hours or days, who is injured at the mine would, in my judgment, be employed in or about the mine at the time of his injury regardless of the general nature of his duties before that job. In other cases the fact that the employer is the mine operator may be important, for example in the case of truck drivers employed by the operator for the transport of coal from the mine.

15 A tradesman such as the respondent who worked for between 36% and 47% of his time in or about a coal mine is a coal miner as defined while doing such work, but not at other times, and he would not become a coal miner at other times even if more than half his work over some more or less arbitrary period was in or about a coal mine. The problems with journey cases in this situation can be left to another day.

16 The respondent was injured on the mine site at a time when the general nature of his duties was in or about the mine, that was where for the time being he was going to perform the duties of his employment and these duties were connected with the business of the mine operator. He was therefore a coal miner as defined.

17 The appeal should be dismissed with costs.

18 BEAZLEY JA: The respondent suffered an injury on 15 June 2000 during the course of his employment with the appellant, when he was crushed between two vehicles. At the time, the respondent was on the premises of the Ravensworth Mine, a coal mine in the Hunter Valley owned and operated by Peabody Resources Pty Ltd.

19 The respondent sought compensation from the appellant on the basis that he was entitled to the enhanced statutory workers compensation benefits to which “a worker employed in or about a mine to which the Coal Mines Regulation Act 1982 applies” is entitled under the Workers Compensation Act 1987 (NSW) (WCA). The trial judge, Maguire CCJ, held that the respondent was entitled to the enhanced benefits. Subsequently, Truss CCJ made a determination for weekly compensation and lump sum benefits on that basis.

20 The appellant appeals against both determinations, the issue on the appeal being the same in respect of both, namely, whether the respondent was “a worker employed in or about a mine to which the Coal Mines Regulation Act 1982 applies”. The appeal is on a question of law only: see cl.7 Compensation Court Repeal Transitional Regulations 2003. The parties are in dispute as to whether the appeal raises an error of law.

The legislation
(A) The Workers Compensation Act (WCA)

21 The WCA, which repealed the Workers Compensation Act 1926, introduced significant changes to workers’ entitlements to compensation in respect of injuries “arising out of or in the course of employment”: see WCA 1987 s. 4; as well as to the entitlement to claim common law damages: see WCA 1987 Pt 5. Those entitlements have been varied from time to time by amendments to the WCA. Neither the initial changes to the entitlement to compensation nor the amendments thereto are presently relevant.

22 Pursuant to Sch 6 Pt 18 “Special Provision Relating to Coal Miners”, coal miners were exempted from the changes to workers compensation entitlements effected by the WCA. In short, pursuant to Sch 6 Pt 18, coal miners remained entitled to the more favourable benefits under the 1926 Act. That preferred position has been maintained in the amendments made to the WCA since its introduction.

23 The trial judge decided the matter on the basis of the amendments made in 2001. The submissions to this Court were originally based on the legislation as at that date. As those amendments post-dated the accident they are not applicable. The relevant provision that applied at the time of the accident was Sch 6 Pt 18 cl.1, which provided:

“(1) In the case of a worker employed in or about a mine to which the Coal Mines Regulation Act 1982 applies, the provisions of clauses 4 and 5 of Part 4 of this Schedule apply as if any period of incapacity for work of the worker occurred as the result of an injury received before the commencement of Division 2 of Part 3 of this Act.”

24 Senior counsel for the parties accepted that the legislation in the relevant form at the date of the accident will not make any difference to the issues raised on the appeal – namely, what is the meaning of “coal miner” within Sch 6 Pt 18. That leads directly to a consideration of the Coal Mines Regulation Act 1982.

(B) The Coal Mines Regulation Act 1982

25 “Coal miner” is not defined in the Coal Mines Regulation Act 1982. “Coal” is defined to include oil shale and kerosene shale, but excludes peat. The product being extracted at the Ravensworth Mine was “coal” within the definition.

26 “Mine” is defined:

“when used as a noun [to] include (subject to subsections (3)-(16)) any place, land, building structure, pit, shaft, drive, level, drift, excavation and work on or in which, or whereby, any operation for or in connection with mining is carried on and any pipe, conveyor or ropeway used for the conveyance of coal or stone, but does not include a coal preparation plant that is a declared plant under Part 5A.”

27 There was no dispute that the Ravensworth Mine was a coal mine within the definition.

28 The Coal Mines Regulation Act 1982, which replaced the Coal Mines Regulation Act 1912, is “[a]n Act for regulating coal mines … and certain related places” so as to “more effectively provide for the safety and health of persons employed in coal mines”: see Second Reading Speech, Hansard, 11 March 1982, pp 2490-2491. The 1912 Act was itself concerned with safety in coal mines. As was noted in the Second Reading Speech in respect of the 1982 Act, at the time the 1912 Act was introduced, the vast majority of the 10 million tonnes of coal mined in New South Wales each year was “by miners employed on a contract basis”. Despite numerous amendments to the 1912 Act to take account of technological change, it was considered that the structure of the 1912 Act was not adequate to provide for the rapidly changing mechanical, equipment and technological changes in the industry. As the Minister said at p 2490:

” Legislation was needed that would form the basis of a new code to protect the safety and health of persons engaged in the coalmining industry with sufficient flexibility to enable the code to be changed from time to time as changes in technology and practices required.” (emphasis added)

29 The 1912 Act had been a consolidation of an earlier Act and amendments, much of which had been borrowed from British legislation. The impetus for the original legislation was that mines were extremely dangerous and hazardous places “to the persons employed in them”. Pursuant to s.54 of the 1912 Act, health and safety issues were addressed in a series of “general rules” that were required to “be observed, so far as is reasonably practicable, in every mine”. These rules covered matters such as ventilation (Rule1); reporting of inflammable gas found in a mine (Rule 4A); safety lamps (Rules 8, 9A and 10), sanitation (Rule 43) and the care of horses (Rule 45), to name but a few. Many of the rules are directed to conditions underground, although not exclusively so. For example, Rule 12B(1)(b) relates to dust preventing deposits being raised into “ventilation current or open space so that an explosion propagating condition may be created”. Rule 35B provides that on shifts at which more than thirty persons are employed “the manager shall designate one or more of the employees usually employed on that shift at the surface as a first aid officer” (emphasis added). Rule 43, to which I have already referred, relates to sanitary conveniences both above and below ground at the mine. The reason for the rules being so extensive is obvious.

30 The rules, however, were cumbersome in that legislative amendment was required in order to delete, add, or vary them, in order to respond to any particular health or safety issue. A significant change to the structure of the new legislation was to locate the provisions relating to health and safety of persons employed in mines in regulations so as to facilitate quick amendment as and when the need arose. Despite the change in the structure of the legislation, the focus of the 1982 Act remained directed to ensuring the safety of persons who were employed in mines. The definition of mines makes it apparent that a mine extends to all places within the mining complex, whether above or below ground.

Facts

31 The respondent was employed as a leading hand fitter and turner with the appellant and was based at its Mount Thorley workshop. The respondent, who described his employment as revolving “around the mining industry in large overhaul maintenance work and breakdown work” was required to attend upon various jobs for which the appellant had contracted. About 50% of the appellant’s business involved work at mine sites. In the 3 years prior to the accident, between 36% and 47% of the respondent’s duties were performed at coal mines.

32 The particular work at Ravensworth upon which the respondent was engaged at the time of the accident was servicing the overhead cranes of the mine’s three drag lines. Each drag line had to be serviced once each month. The service was done on the machinery in its position on site.

33 The respondent sustained his injuries when he was crushed between two vehicles at the Ravensworth Mine [Red 31 ff]. He was at the mine to carry out maintenance work on Drag Line 1 and was talking to the supervisor. Immediately before that he had been challenged by the maintenance engineer as to how he had entered the mine complex as it was necessary to sign on at the gate and arrange to have the boom gate opened, unless the entrant had a swipe-card. As it happened, the appellant had a swipe-card which had been provided to him by Peabody Resources about 3-4 years previously because of his frequent attendance at the mine to carry out maintenance work on the Drag Lines and he had used it ever since. While the respondent was talking to the supervisor the maintenance engineer reversed his vehicle and in doing so crushed the respondent between his vehicle and another vehicle.

Trial Judge’s decision/Error of law

34 Maguire CCJ, having reviewed the authorities to which he had been referred by counsel for the parties, concluded that except for the decision of Commissioner Hunt in Roberts v Fuchs Lubricants (Australasia) Pty Limited (2002) 24 NSWCCR 125, there were none in point.

35 In Roberts, the applicant was a service and sales engineer employed by the respondent, Fuchs Lubricants, which had a contract with a number of mines in the southern coalfields. Roberts’ employment with Fuchs Lubricants required him to work at the mine four days a week. Three of those days were worked underground and one on the pit-top analysing oil samples and conferring with other engineers and managers at the mine.

36 Commissioner Hunt held that Roberts was “a worker employed in or about a coal mine to which the Coal Mines Regulations Act 1982 applies”. He said:

“Clearly the benefits which flow from the [coal mine regulation] applied to and have been applied to a wider range of people than those who operate the machines which cut coal.
It applies to the likes of engineers, surveyors, mine deputies and fitters who spend considerable time underground. It also applies to coal preparation plant operators, train loaders, yard foreman, bathhouse attendants, storemen and clerks provided they work within the physical boundary of a mining lease. The only distinction between the foregoing workers and this applicant is the nature of their employer. They worked for coal mining companies while the applicant works for a company which services coal mines. If the regulation (sic) were intended to apply to employees of coal mining companies only it would have been a simple drafting exercise for it to say so. It does not. Mr. Roberts’ presence in or about coal mines four days a week is not incidental to his employment like a courier driver who might spend five minutes at the mine office but it is a basic feature of his work. I find that he is a ‘ worker employed in or about a mine to which the Coal Mines Regulation Act 1982 applies ’ for the purpose of cl 81 of the regulation.”

37 Maguire CCJ, having quoted the above passage, concluded in respect of this case:

“It seems to me that his decision is correct. The case at hand will – like Roberts , and any other case – turn on its own facts.
I regard it as significant that Mr. Pilgrim had not merely entered the gate of the mine but was bound for one of three drag lines which it was his responsibility regularly to service. The drag line – of course – is an integral part of the process of mining coal in an open cut mine.”

38 The appellant submitted that this reasoning involved a misconstruction of Sch 6 Pt 18 cl.1 so that the trial judge thereby erred in law. The respondent contended that there was no error of law in the trial judge determining that the respondent was a “coal miner” within the meaning of Sch 6 Pt 18 cl.1.

39 The principles as to whether a finding constitutes a finding of fact or law are well known. Whether a word or phrase in a statute should be given its ordinary meaning is a question of law. The ordinary meaning of a word, however, is a question of fact. Whether facts fully found fall within a statutory enactment properly construed, is a question of law: see generally the discussion by Kitto J in New South Wales Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 512; Hope v Bathurst City Council (1980) 144 CLR 1 at 7-8 per Mason J; The Australian Gas Light Co v The Valuer-General (1940) 40 SR(NSW) 126 at 137-8 per Jordan CJ; Collector of Customs v Bell Basic Industries Ltd. (1988) 20 FCR 146 at 155-6. In the last case, French J pointed out that the effect or construction of a term is a question of law. This was most recently affirmed by the High Court in Vetter v Lake Macquarie City Council (2001) 202 CLR 439, [2001] HCA 12. In Vetter v Lake Macquarie City Council, Gleeson CJ, Gummow and Callinan JJ observed (at [451]), by reference Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 and to Hope v Bathurst City Council, that where there might reasonably be more than one answer to the question whether a statutory expression applies to primary facts, the question may be a mixed one of fact and law. If there is only one answer, the question is one of law.

40 In Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355; (1998) 153 ALR 490, McHugh, Gummow, Kirby and Hayne JJ said at [381]:

“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos , Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed”. (references omitted)

41 In my opinion, what is involved here is the proper construction of the phrase “worker employed in or about a coal mine” in Sch 6 Pt 18 cl.1. The dispute is whether, properly construed, that phrase means persons employed by the entity that conducts the coal mine (the mine operator) or persons employed in or about a coal mine, regardless by whom employed. The proper construction of the phrase will then, of itself, provide the answer to the question of the respondent’s entitlement to compensation, that is whether his entitlement falls to be determined under Sch 6 Pt 18 or whether it is governed by the general provisions of the WCA. For that reason also, a question of law is involved. The appeal is, therefore, competent.

Proper construction of Sch 6 Pt 18 cl.1
Appellant’s contention

42 The appellant submitted that the respondent was not, as a matter of ordinary parlance, a coal miner. He was a fitter. Nor was the appellant a coal mining company. This, it was said, was an important observation as Sch 6 Pt 18 applied in the case of a worker employed in or about a mine to which the Coal Miners Regulation Act 1982 applied. It was submitted that on the approach taken by Maguire CCJ, the word “employed” in the definition would have to bear a meaning so as to include a person “who from time to time worked or performed duties” in a coal mine.

43 It was submitted that such a construction carried with it certain difficulties. In particular, it was submitted that on the respondent’s approach, he might argue that as he was “employed in or about a mine” from time to time that he was entitled to the enhanced compensation benefits available to coal miners even if he was injured when not at a mine. This complication was avoided if the word “employed” in Sch 6 Pt 18 cl.1 was understood to mean “engaged” or “engaged pursuant to a contract of service”. Given that meaning, it was submitted that the definition lead more naturally to a consideration of the substance of the respondent’s employment or engagement which, in this case, was employment by the appellant as a fitter to work in such places as he was directed, including but not limited to, coal mines.

44 It was also submitted that there could be significant insurance complications, particularly relating to premium calculation, if the respondent’s preferred construction was adopted. I will deal further with the issues raised by each of these submissions below. However, I should indicate that this argument was advanced and developed on the basis of the legislation in its 2001 form. I will deal with this when considering the argument more fully below.

45 The appellant further contended that if the word “employed” was given the effect accepted by the trial judge, it would lack the cohesiveness necessary for the application of the Act as a whole. For example, it was contended that the same individual might, on the trial judge’s construction, be entitled to the beneficial provisions of the legislation in the circumstances which occurred here, but arguably would not be so entitled if on a “journey” (see the WCA 1987; s.10). The appellant also relied upon the “nature and conditions of employment” provisions in support of this argument (see the WCA 1987: ss.4,15 and 16).

46 The appellant also submitted that on the trial judge’s construction the extent of the appellant’s liability to pay compensation under the WCA would change from time to time, depending upon whether one of its employees was working at a coal mine or at one of the other places where it had contracts. The effect of the submission was that this would be incongruous and could not have been the intended consequence of Sch 6 Pt 18 cl.1.

47 It followed on the appellant’s argument that his Honour erred in law in the construction he gave to the phrase “workers employed in or about a mine to which the Coal Mines Regulation Act 1982 applies”. As a matter of construction, the phrase, on the appellant’s submission, only extended to persons who were employed in a coal mine by the mine operator. It must be immediately observed, however, that on this construction, it is necessary to imply words in the provision so as to give it its intended operation.

Respondent’s contentions

48 The respondent submitted that the definition was not, on its express terms, confined to persons who, working in a coal mine, were employed by the mine operator, and that there was no warrant in so confining the legislation. Senior counsel for the respondent relied upon the statement of North P in Police v Thomson [1966] NZLR 813 at 818:

“where a statute contains a definition section giving a word or phrase an extended meaning beyond its ordinary meaning, a Court of construction should commence its inquiry by assuming that the Legislature intended the word or phrase to have its statutory meaning … only rarely indeed will the Court be justified in departing from that meaning.”


With respect to the respondent’s argument, this passage is not of much assistance in this case. Even if the statute gives the phrase “ coal miner ” an extended definition, the question remains as to what the extended definition is. The real issue in the case is whether the appellant is correct in its contention that Sch 6 Pt 18 is only concerned with persons who are employed in or about a coal mine by a mine operator.

Principles of statutory construction: circumstances in which words may be implied into a provision

49 The circumstances in which words may be implied in a statute was considered by McHugh JA in Kingston v Keprose Pty Limited (No. 3) (1987) 11 NSWLR 404 at 421-424. I will turn to those circumstances shortly. It is important to remember, however, that the various principles of statutory construction do not stand in isolation one from the other. Rather, they provide the ground rules by which Parliament’s intention is deduced: see Kingston v Keprose at 421. The question whether words have to be implied into a statutory provision has to be viewed therefore as part of the overall principles of statutory construction.

50 The starting point in any construction exercise is to determine the grammatical meaning of the provision in question. Where there is only one possible grammatical meaning, and “neither the context, the purpose of the provision or the general purpose of the Act throws any real doubt on that meaning” the grammatical meaning is to be taken as the meaning intended by Parliament: see Kingston v Keprose at 421; Cooper Brookes (Wollongong) Pty Limited v Federal Commissioner of Taxation (1981) 147 CLR 297 at 305 and 320. However, if the grammatical meaning gives rise to an anomaly or an injustice, there will be a “real doubt” as to whether Parliament intended the provision to have that meaning: Cooper Brookes at 320. In such circumstances, the court will be justified in refusing to give the words their literal or grammatical construction: see Kingstone v Keprose at 421. The overarching principle for departing from the ordinary grammatical meaning is where “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”: Cooper Brookes at 321 per Mason and Wilson JJ.

51 However, where Parliament’s intention is clear, it may be necessary to put a strained interpretation upon some words that have been “inadvertently” used: Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd [1938] Ch 174 at 201. A “strained” construction may also be justified where it is clear that words have been omitted: see Kingston v Keprose at 422. It may also be necessary to read words into a statutory provision where otherwise the statutory purpose will be defeated. In Jones v Wrotham Park Settled Estates [1980] AC 74, Lord Diplock said that three conditions must be fulfilled before this approach can be taken. McHugh JA summarised these conditions in Kingstone v Keprose at 423:

“First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.”

See also Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 at 302.

52 In Kingston v Keprose, McHugh JA concluded at 424:

“Once the object or purpose of the legislation is delineated, the duty of the Court is to give effect to it in so far as, by addition or omission or clarification, the relevant provision is capable of achieving that purpose or object.“

53 The primacy of construing a statutory provision so as to give effect to the object or purpose of the legislation was again referred to by McHugh J in Pfeiffer v Stevens (2001) 209 CLR 57, [2001] HCA 71 at [69-70]. However, the meaning that achieves the object or purpose is not always clear. As Kirby J observed in that case at [88]: “[Q]uestions of statutory construction that reach this Court rarely involve a choice between clearly right and wrong meanings.” As will be apparent from what follows, this is such a case.

Application of statutory construction principles to Sch 6 Pt 18 cl.1
Grammatical meaning

54 The appellant contends that the word “employed” in Sch 6 Pt 18 cl.1 means “engaged” or “engaged pursuant to a contract of service”. The import of the submission was that “engaged” means “engaged by or engaged pursuant to a contract of service” by, in this case, the mine operator. Conversely, on the respondent’s argument, the relevant dictionary meaning of the word “employed”, to which the respondent referred, focuses upon use of a person’s service. The Shorter Oxford Dictionary meaning is:

“[to] use the services of (a person) for some special business in return for payment; to find work or occupation for; to be occupied.”

The Macquarie Dictionary definition is:

“to use the services of (a person); have or keep in one’s service; this factory employs thousands of workers.”

55 However, the substitution of any of these meanings for the word “employed” in Sch 6 Pt 18 cl.1 merely restates the respective party’s argument and does nothing to advance the construction argument. The word “employ” can have either meaning, as Atkin LJ observed in Meadows v Ellerman LinesLtd [1920] 3 KB 544 at 549:

“The words ‘employ’ and ‘employment’ are capable of two meanings which are apt to cause confusion. They may relate to the general nature of a workman’s employment, or they may be confined to the particular work or job, which he is doing under his contract of service at any particular moment of time. One must judge their true meaning in any particular case by the context.”

56 Statutory construction involves construing a particular provision within the context of the legislation as a whole. The appellant contended that it was necessary to construe the phrase so that only workers employed by the mine operator had the benefit of the enhanced compensation entitlements. It was said that this construction was necessary so as to enable the WCA to apply consistently and cohesively to the employment of a person in the position of the respondent. Senior counsel for the appellant relied upon “journey” claims and the “nature and conditions of employment” provisions of the WCA to demonstrate this point.

57 There are two types of journey for the purposes of the WCA. First there are journeys that occur within the course of employment. The appellant raised, by way of argument, the case of a person, such as the respondent here, who was proceeding from a job that was not at a coal mine to a job at a coal mine. It was contended that it would be absurd to find that a person injured whilst on such a journey, was entitled to the enhanced compensation benefits. Although the worker would be in the course of her or his employment whilst undertaking that journey it could not be said that the worker was working in or about a coal mine for the whole journey. The appellant submitted that it would be equally absurd to have some arbitrary delineation in the journey, for example, at the half way mark to determine whether or not Sch 6 Pt 18 applied.

58 Such a case could raise difficult questions for the determination of the court. Indeed, workers compensation is replete with difficult cases. The legislation itself has provided for some of the difficult questions that have arisen. For example, the case of a journey between two different employments is dealt with by s.10(5) of the WCA. There is nothing in the legislation which assists in this particular case. However, the fact that a particular factual situation would not be easy to resolve under the legislation does not of itself mean that the legislation should be construed in such a way as to “fit” the difficult case.

59 Many “difficult case” scenarios are thrown up by the s.10 “journey” cases. Section 10 provides, in broad terms, that where a worker suffers injury on a journey to or from that person’s place of abode and place of employment, compensation is payable under the Act. There is also provision for journeys to and from medical appointments relating to injuries caused in the course of employment. The appellant argued that if the respondent’s construction was accepted, it would be a matter of some difficulty, and an unnecessary complication, to determine whether a worker, who was a “coal miner” whilst undertaking some work for his employer and not a “coal miner” whilst undertaking other work, was on a s 10 journey that related to work as a “coal miner” so as to be entitled to the enhanced benefits. It was submitted that the difficulty was further illustrated if the worker was on a journey from a coal mine to undertake medical treatment (such journeys also being covered by s.10) in respect of an injury received during the course of employment which was not at a coal mine.

60 The journey provisions have always tested the courts, as have the recess provisions (see s.11), as the factual circumstances thrown up by the lunchtime, sporting and Christmas party cases demonstrate: see, for example, Wilkins v Electricity Commission of NSW [1969] WCR (NSW) 111 (social functions); Commonwealth v Oliver (1962) 107 CLR 353 (lunchtime activities); Commonwealth v Lyon (1979) 24 ALR 300 (sporting events). There is no special difficulty in the examples posed by the appellant in determining whether the journey provisions apply, beyond the difficulties that can be encountered in the determination of whether, in a particular factual circumstance, the worker was on a “journey” to which the WCA applies.

61 The appellant also submitted that there would be similar considerations in determining whether the “nature and conditions” provisions applied to a person who, although working at a mine, was not employed by the mine operator. However, when properly analysed, the difficulty is no different or greater than in the case of a worker whose injury has more than one contributing factor. Take the example of an ardent tennis player who develops ‘tennis elbow’ and whose employment involves the performance of a repetitive task that contributes to his injury. In that case, the Court has to determine whether the employment is a substantial cause of the injury: WCA; s.9A. Although this is not always an easy question to answer, such determinations are made regularly under the WCA.

62 In my opinion, therefore, there is nothing in the need to have a consistent and comprehensive application of the WCA that compels the construction for which the appellant contends.

63 At the time that the WCA was introduced, Sch 6 Pt 18 was the only provision that related to coal mines or coal miners. However, the Act, including Sch 6 Pt 18, has been extensively amended. Relevantly for present purposes, pursuant to amendments made, by the Coal Industry Act 2001 (NSW), Pt 18 was amended so as to include, in cl. 3(4), a definition of coal miners. This is the provision upon which the trial judge wrongly based his determination. The definition in Sch 6 Pt 18 cl.3(4), which in effect extracted as the meaning of coalminers the phrase from the original Sch 6 Pt 18 cl.1, provides:

“ Coal miners means workers employed in or about a mine to which the Coal Mines Regulation Act 1982 applies.”

64 At the same time that Sch 6 Pt 18 was amended to include this definition, s.7A(3)(a) was introduced. That section, which relates to the application of the Act in respect of the coal industry, provides that “an employee of an employer in the coal industry” is precluded from making a claim on the Uninsured Liability Scheme (emphasis added). Section 9A(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIMA) uses the identical expression (although Part 9 of Chapter 5, to which s.9A related, is now repealed).

65 The difference in the language used in Sch 6 Pt 18 cl.3(4) following the 2001 amendments and s.7A(3) is significant, in that s.7A(3)(a) expressly includes the words that the appellant contends ought to be implied in the meaning of coal miner. The respondent contended that by the use of different language the Legislature must be taken to mean something different. That difference was that the words “employed in or about a coal mine” used in the definition meant a worker who is engaged to perform work in or about a coal mine regardless of whether the employer was the mine operator.

66 This argument raises an interesting point as it relates to amendments made after the date of the accident. As a matter of construction, subsequent amendments to a provision are not resorted to in order to determine the meaning of the provision in its earlier form. Rather, in the case of amending legislation, the construction process involves seeking to construe the amendment. That being so, regard may be had to the original or predecessor provision to determine the mischief, if any, the amendment was directed to. It is of interest to note, however, that this case throws up this: if the definition provision (that is, the phrase “coal miner” in the 2001 legislation), was the focus of the construction exercise, it would be legitimate to have regard to provisions such as s.7A introduced at the same time. The difference in the language in s.7A and Sch 6 Pt 18 cl.3(4) demonstrates the type of language that may have been appropriate to use had Parliament intended the meaning for which the appellant contends.

67 The respondent further submitted that the phrase “coal miner” was a composite phrase, involving two concepts: “workers employed”; and “in or about” a coal mine to which the Coal Mines Regulation Act 1982 applies.

68 In respect of the phrase “workers employed”, the respondent relied upon the dictionary definitions with their emphasis upon “use of a person’s service”, as opposed to a person being engaged by a particular employer -in this case, the mine operator. He submitted that this construction was supported by the manner in which s.9 of the WCA operates. Section 9A, which provides by way of a negative formulation for the payment of compensation under the WCA (“No compensation is payable under this Act in respect of an injury unless the employment has been a substantial contributing factor to the injury”), has, according to the respondent, always been construed to apply at the time of injury.

69 I pause to observe that that is correct in relation to a frank injury, as was the case here. However, where in the case of a disease of gradual onset, the time of injury, for the purposes of determining the relevant employer is governed by s. 15. The respondent’s submission continued that it followed, contrary to the appellant’s concern about the operation of the section, that a worker in the position of the respondent would not be able to claim the enhanced benefits of the section merely because he worked, from time to time, in or about a coalmine. His entitlement to those benefits would depend upon whether, at the time of injury, the worker was “employed in or about a coal mine”. It followed on this argument that at the time of injury, the respondent was a worker employed in or about a mine and was thus a “coal miner” within the definition.

70 The respondent submitted that the phrase “in or about” a coal mine bore the sense of physical proximity to the coal mine. In Owens v Campbell Limited [1904] 2 KB 60, the English Court of Appeal was concerned with the question whether a seaman who was injured in a boiler room of a ship which was, at the time of injury, moored at a wharf outside the docks at Cardiff, was injured “in or about a factory”. A wharf was included in the definition of factory so the question became whether, by being on a ship docked at a wharf, the seaman was employed “in or about a factory”.

71 The focus in the case was on the word “about”, as the seaman was not employed by the wharf operator. Collins MR said (at 64) that the word “about” in the phrase “[employed] … in or about a factory … carries with it the idea of physical proximity; but it also involves the idea of an employment connected with the business carried on at the place indicated”. Collins MR explained what he meant at 64:

“If and so far as the applicant was employed in relation to the purposes for which his employers had the use of the wharf, I think he could be said to be employed about it; but, in order to ascertain the rights of the parties, it is necessary to bear in mind that we are dealing with what may be called ‘constructive factories’. We have to look to the nature of the factory and the character of the workman’s employment, and the mere fact that he was employed by the undertakers in juxtaposition to the factory in the occupation of his employers does not make his employment one that is ‘about’ the factory. To take an example: suppose that a coachman comes to a factory to drive the occupier, who is his master, home, and at a distance of, say, fifty yards from the factory the coachman meets with an accident. The man would be in the employment of the occupier of the factory, and he would be near it, but his employment could not be said to be on or in or about the factory, because it was not concerned in any way with the business of the factory.”

72 Collins MR concluded therefore, that as the seaman’s duties had no connection with the use by his employer of the wharf, his “employment was not in or about a wharf”. Romer LJ agreed (at 65) that on the facts the seaman was not employed “in or about a wharf”, although, had the seaman’s duties involved working on the wharf whilst the ship was moored, he would have come within the Act: see also Griffin v Houlder Line Ltd [1904] 1 KB 510.

73 The approach of Collins MR was adopted in The Queen v Neil; Ex-parte Cinema International Corporation Pty Limited (1976) 134 CLR 27. In that case the High Court was concerned, relevantly, with whether persons employed by the respondent were employed “in or about … theatres, halls …” etc. Gibbs J said at 32:

“An employee who is required to leave what might be called his headquarters, and to visit other places in the course of his employment, is not employed in or about those other places; for example, a clerk who goes to the post office to post a letter, or to a court to file a document, or to a warehouse to make a purchase, on behalf of his employer, is not employed in or about the post office, court or warehouse. The words describing the second class are quite inapt to refer to a salesman who, on behalf of his employer, visits a cinema to do business with the exhibitor who carries on business there.”

74 In Taylor v The Cecil Syndicate Limited [1906] St. & R. QD 324, the Queensland Supreme Court was concerned with the meaning of the phrase “in or about a mine” in s.218 of the Mining Act (Qld) 1898. The plaintiff was a contractor engaged by the respondent, a gold mining syndicate, to break up the tailings from its mine to facilitate the extraction of minerals. He was requested by the mine’s manager to assist in placing a heavy vat on a dray. In doing so, the plaintiff was injured. The question was whether he was entitled to damages under s.218 which provided: “If any person employed in or about a mine suffers injury .. owing to the negligence of the owner … the person may recover damages”. It was held by Cooper CJ (at 328-329), that the tailings area was “a mine” within the Act and that, as the plaintiff’s “employment was in connection with obtaining gold from a mineral. He was sifting tailings in order that gold might be extracted from them … [therefore] the plaintiff was ‘engaged in or about a mine’”.

75 The respondent submitted that, having regard to the above, the trial judge’s finding that the respondent was a “coal miner” was correct. He was not a casual visitor to the mine. He worked at the mine regularly for purposes directly connected to the mining operations carried on at the mine. On the occasion that he was injured he was at the mine to undertake his regular work there. Accordingly, at the time of the injury he was a worker “employed in or about a coal mine”.

76 In my opinion, these authorities provide persuasive support for the respondent’s construction. It remains necessary, however, to determine whether that construction achieves, or is more consistent with, the object of the provision.

Purpose of Sch 6 Pt.18 of the WCA

77 The purpose of Sch 6 Pt 18 is tolerably clear. It is to continue to provide to a certain class of worker, that is, coal miners, the more beneficial compensation benefits that applied under the 1926 legislation. The question is, however, who falls within the class? There is nothing in the purpose of the WCA as a whole, or Sch 6 Pt 18 itself, that provides the answer. That then raises the further question whether it is a legitimate approach to statutory construction to have regard to the purpose of other legislation in order to determine the meaning of a provision in the statute the subject of the construction issue. The answer to that question depends upon the terms of the respective legislation. For example, in the case of complementary legislation such as the WCA and WIMA, it is expressly provided that the WCA is “to be construed with, and as if it formed part of, the WIMA”: WCA s 2A(2) and WIMA s 60(2). Accordingly, the purpose of both Acts would be relevant to any construction exercise.

78 In a case such as the present, where a group is singled out to receive special treatment under legislation and that class is defined by reference to another Act, it is legitimate, in my opinion, to have regard to the purpose of the other Act, at least as an initial step in the construction exercise, to see whether it provides an answer as to who is included in the group. It may be, of course, that when other considerations are taken into account the meaning of the provision in question is not determined by the purpose of the other legislation.

79 In the present case, the legislation concerned is the WCA, which, inter alia, is an Act to provide compensation benefits to workers in respect of work related injuries. The Coal Mines Regulation Act 1982 makes provision for the safety of persons employed in coal mines. Underlying that purpose is the recognition, as expressly acknowledged in the Second Reading Speech to the 1982 Act, that coal mines are inherently dangerous places. As a matter of common knowledge and common sense, mines are not only inherently dangerous for those who extract the coal. They are inherently dangerous for persons who work in or about a mine, whether those persons are directly engaged in the extraction process or not. For example, an office worker or cleaner working “about a mine” could be endangered by an explosion, a fire, or a cave-in. It was not suggested by the appellant that such persons employed did not fall within Sch 6 Pt 18 cl.1.

80 Likewise, coal mines are inherently dangerous places for persons working “in or about” the mine, regardless of whether such persons are employed by the mine operator. However, on the appellant’s construction, the employees of a cleaning company whose sole contract was with a mine would not have the benefits preserved by Sch 6 Pt 18 and yet, if the mine operator employed cleaners directly, they would be entitled to the preserved beneficial compensation provisions. There is nothing in the words of the definition that requires such a differentiation to be made. The appellant’s argument is even less compelling if the example was that all cleaners were employed by a wholly owned subsidiary of the mine operator. The examples and incongruities can be multiplied.

81 Thus, there seems to be no good reason to imply into the phrase “coal miners” in Sch 6 Pt 18 cl.1 the words “by the mine operator” as is required on the appellant’s construction, when work necessary for the ongoing operation of the mine, such as machinery repair and maintenance, is outsourced. Nor should it make any difference if the entity that undertakes the outsourced work does not carry out its entire work at the mine. Accepting, therefore, that the purpose of the Coal Mines Regulation Act 1982 is to provide for the safety of persons working in mines, there appears to be no warrant to confine the meaning of “coal miner” to a worker who is so employed by the mine operator.

82 It is against this background of argument that it is necessary to return to the three conditions that need to be satisfied before a court should imply words into a statutory provision. Those conditions (which are set out fully at [51] above), are in summary: the court must know the mischief to which the provision is directed; it must be satisfied that there was an inadvertent oversight by Parliament; and it must be certain as to the words that Parliament omitted. In this case, it is likely that the mischief with which Parliament intended to deal was the special protection of a class of workers, that is, coal miners, who work in a particularly dangerous industry. If words have been omitted, then the only words that the Parliament would have used to overcome the omission are those proposed by the appellant. However, in my opinion, for the reasons discussed above, it cannot necessarily be said that Parliament inadvertently overlooked an eventuality that required the implication of the words “by the mine operator”, if the purpose of the provision was to be achieved.

Other considerations

83 A further consideration referred to briefly above at [44], relates to whether the insurance scheme established under the workers compensation legislation regime is relevant to the construction of the phrase “coal miner” in Sch 6 Pt 18. The appellant’s argument in relation to the insurance provisions was advanced initially on the basis that the relevant provisions were those enacted in 2001. I will deal with that argument below. The insurance provisions of the WCA in the form they were operative in this case were such that the Joint Coal Board, as a specialised insurer (see s. 3), was not affected by the prudential and other provisions of Part 7 that were directed to ensuring that insurers had funds out of which to make compensation payments, and that there were funds out of which to make compensation payments in the case of defaulting and insolvent insurers. The effect of these provisions was that the Joint Coal Board was neither required to maintain the statutory funds specified in these provisions nor was it a beneficiary of the provisions. The respondent submitted therefore that the insurance provisions did not aid the construction issue with which we are presently concerned. I agree. There is nothing in the provisions which refers to coal miners or otherwise touches upon the meaning of “coal miner”.

84 The amendments to the WCA in 2001 included a change in the definition of “specialised insurer”. Under the amendments, a specialised insurer was a licensed insurer whose license was specially endorsed: see s 3. One of the consequences of these amendments was that the Joint Coal Board was no longer a specialised insurer under the Act. Rather, a workers compensation company approved by the Minister under the provisions of the Coal Industry Act 2001 was taken to be the licensed insurer for all employers in the coal industry. It was common ground that the “workers compensation company” referred to in s.7A(1) of the WCA is Coal Mines Insurance, which is the compensation insurer for the coal mine industry.

85 I have already referred (at [64]) to the effect of these provisions, namely, that an employee of an employer in the coal industry is not entitled to make a claim under the Uninsured Liability and Indemnity Scheme established under Pt 4 Div 6 of the WCA. Relevantly however in respect of this submission, these provisions indicate that workers compensation insurance for employees in the coal mining industry is distinct from workers compensation generally, in that the WCA makes specific and different provisions in relation to it. It was submitted by the appellant that this pointed to the Legislature intending that there be a separate regime for those engaged in the coal industry and that such a regime could not operate in accordance with the legislative intention if someone in the position of the respondent was “a coal miner”.

86 A question also arose as to whether the appellant was “an employer in the coal industry” within the meaning of s.7A(4) of the WCA. As I understand the argument, there could be an incongruity if the respondent was a coal miner within the definition but the appellant was not an employer in the coal industry. For my part, I do not consider there to be an incongruity, or at least one relevant to the interpretation of “coal miner”. The provisions operate independently and are directed to quite different ends. Sch 6 Pt 18 of the WCA is directed to preserving benefits for certain categories of persons. Sections 7A and 9A are directed to the question of who bears the burden of insurance in the coal industry. That this is so reinforces, in my opinion, the respondent’s argument that the definition of “coal miner” bears the meaning for which he contends.

87 As I have already stated, these submissions were made on the basis that the relevant provision was Sch 6 Pt 18 cl.1 in its 2001 form. However, as in the case of my earlier consideration of s.7A, any assistance derived from these later provisions can only be on the basis that the phrase “coal miner” bears the same meaning in the later amendments as it did in the original enactment. To the extent that they have that relevance, I am of the opinion that they support the construction of ”coal miner” found by the trial judge.

88 I should also add that the insurance arrangements relating to employers in the coal industry are not straightforward. For example, s.7A(4) of the WCA provides that the workers compensation company (that is, Coal Mines Insurance) “is taken to be the insurer under this Act of all employers in the coal industry (whether or not any such employer maintains a policy of insurance with that company)”. Apart from the argument that arose in relation to the insurance provisions of the WCA referred to above, there was no evidence before the court at first instance as to how insurance relating to employers in the coal mining industry operates. Nor was there any evidence as to how, why or whether insurance arrangements peculiar to the coal mining industry affected the construction of the phrase “coal miner” within Sch 6 Pt 18. If it were relevant, the Court would have expected there would have been evidence on the point as well as submissions to this Court based on such evidence. In the absence of evidence having been adduced I would not be prepared to entertain any argument that the construction of “coal miner” within Sch 6 Pt 18 was affected by any special insurance provisions or concerns peculiar to the coal mining industry. It is worth commenting in any event that the setting of premiums for workers compensation insurance purposes is a complex and in some respects artificial exercise: Staging Connections Pty Limited v WorkCover Authority of New South Wales [2004] NSWCA 357.

Conclusion

89 This is a case where the application of the principles of statutory construction do not overwhelmingly point to one construction over the other. Rather, there are sound arguments that support either construction. However, in the end result, I am of the opinion that the purpose of Sch 6 Pt 18 cl.1 is that those who work in the inherently dangerous conditions of coal mines were to be entitled to more favourable compensation benefits, and that purpose is best achieved by construing the clause in the way contended by the respondent.

90 Although his Honour approached the matter on the basis that the later enacted definition in Sch 6 Pt 18 cl.3(4) applied, the two provisions (cl.1 as originally enacted and cl.3(4) that was subsequently inserted), are identical and should be given the same construction. This was the construction applied by the trial judge. It follows, therefore, that his Honour did not err in law in respect of the construction of the phrase “coal miner” in Sch 6 Pt 18. His Honour found on that construction that the respondent was a “coal miner” as defined. That factual finding is not subject to challenge in this Court, but in any event flows directly from the construction applied by his Honour.

91 I have also now had the benefit of Handley JA’s reasons in draft. I agree that his Honour’s approach is also an available one to the question of construction involved here.

92 I propose that the appeal be dismissed with costs.

93 CAMPBELL AJA: I agree with Handley and Beazley JJA.

94 It is, I consider, unnecessary to comment upon differences in emphasis in the two judgments.

95 With respect the observations of Handley JA at [13] seem to me both correct and of considerable utility in the practical application of Sch 6 Pt 18.

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