Elliott v Return to Work Corporation of South Australia - [2022] SASCA 40

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
ELLIOTT v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2022] SASCA 40
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice Blue)
28 April 2022
WORKERS' COMPENSATION - ASSESSMENT AND AMOUNT OF COMPENSATION - ADJUSTMENT OF BENEFITS AND REVIEW OF WEEKLY PAYMENTS
WORKERS' COMPENSATION - ASSESSMENT AND AMOUNT OF COMPENSATION - AMOUNT OF COMPENSATION IN CASE OF DEATH - MAXIMUM AMOUNT PAYABLE
WORKERS' COMPENSATION - ASSESSMENT AND AMOUNT OF COMPENSATION - AMOUNT OF COMPENSATION IN CASE OF DEATH - PARTIAL DEPENDANTS
Application for permission to appeal against the dismissal by the Full Bench of the South Australian Employment Tribunal of an appeal against confirmation by a Deputy President of determinations by the respondent on annual reviews of weekly payments under section 60 of the Return to Work Act 2014 (SA).
The Corporation determined under section 59 of the Act that the appellant was entitled to weekly payments of $339.65 following the death of her husband on the basis that she had been only partially dependent on him because she was receiving a Newstart Allowance. If she had been assessed as totally dependent, she would have been entitled to weekly payments of $428.
Eight months after her husband’s death, the appellant’s Newstart Allowance was terminated. On subsequent annual reviews, the respondent determined under section 60 of the Act that this was not a relevant change that should result in an increase in the appellant’s weekly payments. Her application to the Tribunal for review of those determinations was dismissed by a Deputy President and her appeal to the Full Bench of the Tribunal against that dismissal was dismissed.
The appeal and the respondent’s notice of contention give rise to three issues of construction of section 60:
1Can weekly payments be increased on a review under section 60(4)(a) above the amount fixed by reference to the level of dependency determined under section 59?
2Is the reference in section 60(4)(a) to “other relevant changes” confined to matters other than sources of income related solely to the individual circumstances of the claimant?
3Are changes to Centrelink payments “other relevant changes in the circumstances of that person” within the meaning of section 60(4)(a)?
Held (by the Court):
1Weekly payments can be increased on a review under section 60(4)(a) above the amount fixed by reference to the level of dependency determined under section 59 (at [57]).
2The reference in section 60(4)(a) to “other relevant changes” is not confined to matters other than sources of income related solely to the individual circumstances of the claimant (at [75]).
3Changes to Centrelink payments are capable of being “other relevant changes in the circumstances of that person” within the meaning of section 60(4)(a) (at [118]).
4Leave to appeal granted and appeal allowed. Order by the Full Bench dismissing the appeal from the decision of the Deputy President set aside and in lieu thereof the appeal is allowed and the matter remitted to the Tribunal or the Corporation (on which the parties are to be heard) to determine the weekly payments to the appellant on each annual review from 2013 in accordance with law (at [119]).

Civil Liability Act 1936 (SA) s 24; Return to Work Act 2014 (SA) s 4, s 59, s 60, s 61, s 62, and s 63; South Australian Employment Tribunal Act 2014 (SA) s 68; Social Security Act 1947 (Cth); Workers Compensation Act 1987 (NSW) s 37; Workers Compensation (Dust Diseases) Act 1942 (NSW) s 8; Workers Rehabilitation and Compensation Act 1986 (SA) s 44 and s 45, referred to.
Aafjes v Kearney (1976) 180 CLR 199; Athans v WorkCover Corporation (Ferro Con (SA) Pty Ltd) [2014] SAWCT 8; Bradburn v Great Western Railway Co (1874) LR 10 Ex 1; Claydon v Jayton Pty Ltd (1999) 18 NSWCCR 381; Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586; Lee v Redding (1981) 28 SASR 372; Muller v Evans (No 2) [1982] Qd R 209; Nieass v WorkCover/MMI (Pavement Salvage Pty Ltd) [2000] SAWCT 41; Payne v Railway Executive (1952) 1 KB 26; Pianezzola v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (R & G Pianezzola) [1997] SAWCT 63; Redding v Lee; Evans v Muller (1983) 151 CLR 117; Simmons v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (NS & PA Murch Pty Ltd) [2000] SAWCT 110; Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531; The National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569; Wentworth Securities Ltd v Jones [1980] AC 74; Workers Rehabilitation & Compensation Corporation v Spiel (No 2) (1993) 61 SASR 83; Workers’ Compensation (Dust Diseases) Authority v Cunha [2017] NSWCA 111, considered.

ELLIOTT v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2022] SASCA 40

THE COURT: The appellant, Sharleen Jane Elliott, seeks permission to appeal[1] against the dismissal by the Full Bench of the South Australian Employment Tribunal (the Tribunal) of her appeal against the confirmation by a Deputy President of determinations by the respondent, Return to Work Corporation of South Australia, on annual reviews of her weekly payments under section 60 of the Return to Work Act 2014 (SA) (the Act).
[1] Under section 68 of the South Australian Employment Tribunal Act 2014 (SA).
The Corporation determined under section 59 of the Act that Mrs Elliott was entitled from the date of death of her husband to weekly payments of $339.65 on the basis that she had been only partially dependent on him because she was receiving a Newstart Allowance as at the date of his death. If she had been assessed as totally dependent, she would have been entitled to weekly payments of $428. Although Mrs Elliott challenged this determination in the Tribunal, there is no appeal to this Court against it.
Seven months after Mr Elliott’s death, Mrs Elliott’s Newstart Allowance was terminated. On subsequent annual reviews, the Corporation determined under section 60 of the Act that this was not a relevant change that should result in an increase in Mrs Elliott’s weekly payments. Mrs Elliott’s application to the Tribunal for review of those determinations was dismissed by a Deputy President and her appeal to the Full Bench of the Tribunal against that dismissal was in turn dismissed.
Mrs Elliott’s grounds of appeal and a notice of alternative contention by the Corporation raise three issues of construction of section 60:
1.Can weekly payments be increased on a review under section 60(4)(a) above the amount fixed by reference to the level of dependency determined under section 59?
2.Is the reference in section 60(4)(a) to “other relevant changes” confined to matters other than sources of income related solely to the individual circumstances of the claimant?
3.Are changes to Centrelink payments “other relevant changes in the circumstances of that person” within the meaning of section 60(4)(a)?
The issue of construction raised by Mrs Elliott is reasonably arguable and the matter is of general public importance as well as being important to her. The criteria for the grant of permission to appeal are met and permission to appeal should be granted.
Background
On 24 November 2012 Mrs Elliott’s husband, Robert Elliott, was killed in a motor vehicle collision while driving in the course of his employment as a security officer for Liamsans Security Solutions.
At that time, Mrs Elliott and her husband were living together as husband and wife, having reconciled in late October 2012 after having separated two years earlier. During the separation, Mrs Elliott received a Newstart Allowance from Centrelink because she was unemployed. Mr Elliott separately received a Newstart Allowance until he commenced employment with Liamsans on 15 November 2012.
In December 2012 Mrs Elliott lodged with WorkCover Corporation a claim for workers compensation, amongst other things, by way of weekly payments under section 44 of the Workers Rehabilitation and Compensation Act 1986 (SA) (the Former Act).
In August 2014 the Corporation determined that Mrs Elliott was entitled from 24 November 2012 to weekly payments of $339.65. This amount was assessed on the basis that, at the date of his death, Mrs Elliott had been partially dependent on Mr Elliott.
The calculation was based on Mr Elliott’s after tax income from his employment being $856 per week and Mrs Elliott’s after tax income from Centrelink being $257 per week. Therefore, Mrs Elliott was assessed as contributing 23.1 per cent of the family income (contribution percentage). It was also based on the family’s ordinary necessities of living assessed as costing $653 per week (necessities cost); and Mrs Elliott’s share of the ordinary necessities being assessed as $426 per week (dependant’s necessities cost).
The extent of Mrs Elliott’s dependency on Mr Elliott was assessed by the Corporation as:
(dependant’s necessities cost – (necessities cost x contribution percentage))
dependant’s necessities cost
being:
($426 – ($653 x 0.231)) = 64.6%
$426
Section 44 of the Former Act, and section 59 of the Act, do not define partial dependency, nor do they indicate how weekly payments are to be calculated in a case of partial dependency (as opposed to total dependency). They leave this to the evaluative judgment of the Corporation, which is subject to review by the Tribunal.
On 20 June 2013 Mrs Elliott ceased receiving the Newstart Allowance. It is not clear from the reasons of the Deputy President at first instance what was the cause of this cessation, but it may have been because Mrs Elliott failed to attend a meeting with, or respond to a request for information from, Centrelink.
The Corporation was required by section 45 of the Former Act to review the weekly payments at least annually. However, by the time that it undertook the first annual review (for 2013), the Former Act had been replaced by the Act and all annual reviews were conducted under section 60 of the Act. Section 45 of the Former Act, and section 60 of the Act, do not indicate how an adjustment to weekly payments is to be calculated in a case of partial dependency. They leave this to the evaluative judgment of the Corporation, which is subject to review by the Tribunal
In July 2016 the Corporation completed the 2013, 2014 and 2015 annual reviews. It increased Mrs Elliott’s weekly payments by 3.4 per cent, 2.7 per cent and 2.3 per cent respectively by reference to changes in general rates of remuneration but made no adjustment by reason of Mrs Elliott no longer receiving Newstart Allowance since June 2013. In November 2016 it completed the 2016 annual review, increasing Mrs Elliott’s weekly payments by 2.2 per cent by reference solely to changes in general rates of remuneration.
In March 2017 Mrs Elliott filed at the Tribunal an application for review of:
(a)the Corporation’s original August 2014 decision that she was only partially dependent, contending that she was wholly dependent, at the date of Mr Elliott’s death; and
(b)the Corporation’s annual review decisions, contending that her circumstances had changed upon cessation of the Newstart Allowance and her weekly payment should thereafter have been based on 50 per cent of Mr Elliott’s wages.
In March 2017 the Corporation confirmed the August 2014 decision and in July 2017 it confirmed the subsequent annual reviews.
In August 2017 Mrs Elliott filed at the Tribunal an application for review of the Corporation’s decision confirming the annual reviews.
In August 2017 the Corporation confirmed the July 2017 decision.
In due course the Corporation undertook the 2017, 2018 and 2019 annual reviews and made similar adjustments to those made in the previous annual reviews. Mrs Elliott filed at the Tribunal applications for review of those annual reviews.
Mrs Elliott’s applications for review of the Corporation’s decisions were heard by a Deputy President. The Corporation contended that, under section 44 of the Former Act and section 59 of the Act, the receipt of Newstart Allowance (and Centrelink benefits more generally) was to be taken into account in reduction of weekly payments but, on subsequent annual reviews, any change in such benefits was not to be taken into account.
The Deputy President delivered reasons for judgment essentially accepting the Corporation’s contentions.[2] The Deputy President confirmed the original August 2014 determination and the subsequent annual review determinations.
[2] Elliott v Return to Work Corporation of South Australia [2020] SAET 50.
Mrs Elliott appealed to the Full Bench of the Tribunal. The Full Bench dismissed the appeal but in respect of the annual reviews did so on different grounds to the ground adopted by the Deputy President at first instance.[3]
[3] Elliott v Return to Work Corporation of South Australia [2021] SAET 112.
Deputy President Judge Calligeros (with whom Deputy President Judge Kelly agreed) held that, on the proper construction of section 60, weekly payments can be reduced below, but cannot be increased above, the level of dependency initially set under section 59. Deputy President Judge Rossi held that, on the proper construction of section 60, the reference to “other relevant changes” is confined to matters other than sources of income related solely to the individual circumstances of the claimant.
The statutory regime
Division 8 of Part 4 of the Act provides for the payment of compensation if a worker dies as a result of a work injury. The following compensation is payable:
·(under section 61) a fixed lump sum (regardless of income or assets of the worker or family) payable (in defined proportions) to the worker’s spouse or domestic partner (collectively partner) and/or children (if any) or otherwise an amount up to that lump sum payable to a person or persons who were to any extent dependent on the worker's earnings (a section 61 lump sum);
·(under section 62) the cost of the worker’s funeral up to a prescribed maximum (regardless of income or assets of the worker or family);
·(under section 63) the cost of approved counselling services to assist a family member to deal with issues associated with the worker’s death in accordance with scales determined or approved by the Minister (regardless of income or assets of the worker or family); and
·(under sections 59 and 60) a weekly payment (a Division 8 weekly payment) calculated as a percentage of the worker’s notional weekly earnings payable to the worker’s:
-dependent partner (if any) at 50 per cent in the case of total dependency and in the case of partial dependency such lesser percentage as may be fixed by the Corporation having regard to the extent of the dependency;
-dependent orphaned children (if any) at 25 per cent in the case of total dependency and in the case of partial dependency such lesser percentage as may be fixed by the Corporation having regard to the extent of the dependency;
-dependent non-orphaned children (if any) at 12.5 per cent in the case of total dependency and in the case of partial dependency such lesser percentage as may be fixed by the Corporation having regard to the extent of the dependency; and
-dependent relatives (other than a partner or children) (if any) at such amount as may be fixed by the Corporation having regard to the extent of the dependency, the relative’s earning capacity, the relative’s means and the extent of any other benefits provided in respect of the death,
adjusted under section 60 to reflect changes in the income from employment or earning capacity or any other relevant change in the circumstances of the recipient (excluding income derived from the investment of a section 61 lump sum) and annual changes in remuneration payable to workers generally or to workers engaged in the kind of employment from which the worker’s injury arose.
Section 59 relevantly provides:
59—Weekly payments
(1)Subject to this Act, if a worker dies as a result of a work injury, compensation in the form of weekly payments is payable as follows:
(a)     a dependent spouse or domestic partner is entitled to weekly payments equal to—
(i)in the case of total dependency—50%;
(ii)in the case of partial dependency—such lesser percentage as may be fixed by the Corporation having regard to the extent of the dependency,
of the amount of the notional weekly earnings of the deceased worker;
(b)     a dependent child (being an orphaned child) is entitled to weekly payments equal to—
(i)in the case of total dependency—25%;
(ii)in the case of partial dependency—such lesser percentage as may be fixed by the Corporation having regard to the extent of the dependency,
of the amount of the notional weekly earnings of the deceased worker;
(c)     a dependent child (not being an orphaned child) is entitled to weekly payments equal to—
(i)in the case of total dependency—12.5%;
(ii)in the case of partial dependency—such lesser percentage as may be fixed by the Corporation having regard to the extent of the dependency,
of the amount of the notional weekly earnings of the deceased worker;
(d)     a dependent relative (not being a spouse, domestic partner or child) is entitled to such compensation by way of weekly payments as may be determined by the Corporation having regard to—
(i)the extent of the relative's dependency on the deceased worker;
(ii)the earning capacity of the relative;
(iii)the relative's means;
(iv)the extent of any other benefits provided under this Act in respect of the worker's death.
(2)For the purposes of subsection (1), if a worker and the worker's spouse or domestic partner jointly contributed to the support of a dependent child immediately before the occurrence of the work injury that resulted in the worker's death, any contribution to the support of the child from the worker's spouse or domestic partner will be disregarded in determining whether the child is a dependant and, if so, the extent of the child's dependency.
(3)If—
(a)     a worker dies leaving a spouse or domestic partner and a dependent child; and
(b)     the spouse or domestic partner subsequently dies,
the child (if still eligible to receive weekly payments under this section) will then be entitled to receive weekly payments under subsection (1)(b) as an orphaned child.
(4)Compensation is payable, if the Corporation so decides, to a spouse or domestic partner or child of a deceased worker who, although not dependent on the worker at the time of the worker's death, suffers a change of circumstances that may, if the worker had survived, have resulted in the spouse or domestic partner or child becoming dependent on the worker.
(5)Weekly payments will not be made to a dependent child under this section unless—
(a)     the child is under the age of 18 years; or
(b)     the child is a full-time student at an educational institution approved by the Corporation for the purposes of this paragraph and is under the age of 26 years; or
(c)     the child is, by reason of disability, incapable of earning a living.
(6)Weekly payments will not be paid under this section beyond the date at which such payments would, assuming that the worker had survived but had been a seriously injured worker, have ceased to be payable to the worker.
(7)If weekly payments payable under this section would, but for this subsection, exceed in aggregate the amount of the weekly payments to which the worker would have been entitled in the event of being a seriously injured worker with no current work capacity, the weekly payments must be proportionately reduced so as not to exceed that amount.
…

Subsections (9) and (10) provide for payment of a supplementary allowance to assist in the care of a child who was in the care of a person other than a dependent partner of the worker. Subsections (11) to (16) provide for commutation of the liability to make weekly payments to a liability to make a capital payment actuarially equivalent.
Section 60 provides:
60—Review of weekly payments
(1)The Corporation may on its own initiative and must if requested by an employer or the person to whom weekly payments are payable, review the amount of weekly payments payable to any person under this Division.
(2)A request for a review of the amount of weekly payments payable under this Division may not be made within 6 months from the completion of an earlier review.
(3)The amount of the weekly payments payable under this Division must be reviewed at least once in each year.
(4)On a review under this section the Corporation must make any adjustments to the amount of weekly payments—
(a)     to reflect changes in the income from employment or earning capacity of the person to whom the weekly payments are payable and any other relevant changes in the circumstances of that person but in any event not so as to take into account income derived from the investment of a lump sum paid to the person under this Division; and
(b)     if the review is an annual review conducted under subsection (3)—to reflect changes in the rates of remuneration payable to workers generally or to workers engaged in the kind of employment from which the worker's injury arose.
(5)For the purposes of a review under this section, the Corporation may, by notice in writing to a person who is receiving weekly payments under this Division, require that person to produce evidence to the satisfaction of the Corporation of—
(a)     income from employment;
(b)     earning capacity;
(c)     any other circumstances that are relevant to the payment, or the amount, of weekly benefits.
(6)If a person fails to comply with a requirement under subsection (5) within the time allowed in the notice, the Corporation may suspend weekly payments to that person.
(7)If the Corporation proposes the reduction of weekly payments to a person on a review under this section the Corporation must, at least 21 days before the proposal is to take effect, give notice in writing to the person—
(a)     containing such information as the regulations may require as to the grounds on which weekly payments are to be reduced; and
(b)     informing the person of the person's rights to have the Corporation's decision reviewed.
The term “dependent” is defined by subsection 4(1) of the Act in the following terms:
dependant, in relation to a deceased worker, means a relative of the worker who, at the time of the worker's death—
(a) was wholly or partially dependent for the ordinary necessities of life on earnings of the worker; or
(b) would, but for the worker's injury, have been so dependent,
and includes a posthumous child of the worker; and dependent has a corresponding meaning;
The meaning of “the ordinary necessities of life” in the definition section of the Former Act was articulated by King CJ (with whom Mohr and Bollen JJ agreed) in Workers Rehabilitation & Compensation Corporation v Spiel (No 2) (Spiel)[4] in the following terms:
[I]n Kauri Timber Co (Tas) Pty Ltd v Reeman… Barwick CJ said…:
“The expenditure which, in my opinion, is comprehended by it is, I think, related to the provision of the necessities of life having regard to the manner in which the worker’s household in which the claimant to dependency lived... That does not involve setting up some standard as a level of expenditure by reference to which support or maintenance can be referred.”
The other judges all endorsed the view that questions of dependency were not to be decided by reference to some standard of living thought to prevail in the community or some section of it.
…No doubt the use of the word “ordinary” supposes the existence of a norm to which the expression “necessities of life” is referred. That norm must relate to what would be recognised in the community as ”ordinary”. I think, however, that the norm contemplated by the expression relates to the type rather than to the level of expenditure. Expenditure on food would be expenditure on ordinary necessities of life irrespective of the level of expenditure. Expenditure on investments would not be on the ordinary necessities of life, however small that expenditure. In some instances it may be difficult to disentangle notions of level of expenditure from type of expenditure. If reasonable holidays are regarded as ordinary necessities of life, as I believe they should be, the reasonableness may be determined by the nature of the holiday and cost may be a relevant consideration.[5]
[4] (1993) 61 SASR 83.
[5] At 88.
The meaning of “dependence” in section 44 of the Former Act was articulated by King CJ in Spiel in the following terms:
The notion of dependency has been considered in a number of authorities since the inception of workers’ compensation legislation. The underlying concept is that of maintenance and support. If a person derives maintenance or financial support from the earnings of the worker at the time of death, that person is dependent upon the worker.
…
…Dependency, by virtue of the definition of “dependant”, is measured by the contribution which the dependant received from the deceased’s earnings towards the ordinary necessities of life. That is a question of fact which involves a consideration of the actual extent of that contribution…
…
…There is a consistent theme discernible in the authorities that the existence and degree of dependency are to be determined on a practical and realistic assessment of the circumstances of the case and not necessarily by reference to the financial relations of the claimant and the deceased actually existing at the moment of death.…
…
It is clear law that the extent of dependency is to be measured by the actual reliance of the dependent upon the support of the deceased, not by the need for such support. It is a question of the extent to which the dependent did rely not the extent to which she had to rely. The fact that a dependent had assets or income which she used for purposes other than for the ordinary necessaries of life is irrelevant.[6]
[6] At 87, 90, 92 (Authorities omitted).
The reasons of the Full Bench
Deputy President Judge Calligeros (with whom Deputy President Judge Kelly agreed) held that, under section 60, weekly payments can be reduced below, but cannot be increased above, the level of dependency initially set under section 59. He said:
I do not agree with the comment in the passage [of the reasons of the Deputy President at first instance] that a review under s 60 is not based on a change in the level of dependency. If a dependant obtains employment and derives earnings, assuming the earnings are directed to the ordinary necessities of life, the claimant has become less dependent upon the earnings of the deceased. If the employment subsequently ceases, weekly payments may then be increased and may revert to the level at which they were originally set (subject to any economic adjustment made). In my view it is more accurate to say that a s 60 review does not permit an increase in the level of dependency above the level that was initially set.
I agree with the observation made by the Judge that s 60 makes no reference to a review of the level of dependency. In my view the absence of any such mention supports the conclusion reached. One would expect that if the rate of dependency originally determined could be increased by a review that would be made clear. That observation has force given that s 60(4)(a) provides that regard is not had to income derived from the investment of the lump sum payable upon death. If Parliament was of the view that Pianezzola and Athans were wrongly decided, or the intended ambit of s 60 had not been achieved, one would expect s 60 to have been amended to remedy the error or misunderstanding.
…
Under s 59(1), the degree of dependency a claimant has upon the earnings of the deceased worker is expressed as a percentage and applied to the NWE of the deceased worker to calculate the weekly payment. Under s 60, the weekly payment determined under s 59 is reviewed and adjusted by reference to the criteria in s 60(4).
A review under s 60(1) is a review of “the amount of weekly payments” payable to a dependant. That amount is fixed under s 59 by reference to the NWE of the deceased worker, and the degree of dependency of the dependant upon the deceased worker’s earnings for ordinary necessities. The method of calculating weekly payments under s 59 links, for the life of the claim, the NWE of the deceased worker and the degree of dependency. The weekly payment payable to a dependant therefore takes into account the percentage of dependency determined under s 59(1).
It follows that a review under s 60 does not have regard to the degree of dependency, because that consideration has formed part of the weekly payment. The degree of dependency originally determined remains part of, and operates as an upper limit upon, weekly payments to dependants.
Deputy President Judge Rossi agreed with the reasons of Deputy President Judge Calligeros subject to his own reasons. His own reasons did not refer to the issue of weekly payments being increased above the level of dependency initially set under section 59. However, he did hold that, under section 60, the reference to “other relevant changes” is confined to matters other than sources of income related solely to the individual circumstances of the claimant. He said:
As I understood the submissions for the appellant, it was contended that the reference to ‘…any other relevant changes in the circumstances of that person…’ within s 60(4)(a) is broad enough to encompass the change in the appellant’s Centrelink benefits, and in particular, the cessation of those benefits in June 2013, when considering the annual reviews of the appellant’s weekly payments.
I reject that submission. Section 60(4)(a) identifies the relevant types of income related to the claimant by reference to income from employment or otherwise the exercise of earning capacity. No category of Centrelink benefit is of that type. In referring to ‘any other relevant changes’ the legislature must be referring to matters other than sources of income related solely to the individual circumstances of the claimant. Whilst it is not necessary to identify other relevant circumstances in order to resolve the issues raised in this matter, I observe that it may relate to circumstances such as remarriage, a substantial inheritance or the winning of a substantial amount in a lottery.
By way of illustration, remarriage, with the husband, from proceeds of sale of capital assets, savings, and sources of income, paying for the necessities of life for his wife, may have been contemplated by the legislature as a relevant change in the circumstances of the claimant warranting a review of the entitlement to weekly payments. I express no concluded view as those circumstances were not the subject of submission before this Full Bench.
Are increases under section 60(4)(a) precluded?
Mrs Elliott contends under her first ground of appeal that the Full Bench erred in law in holding that weekly payments cannot be increased above the level of dependency initially set under section 59. The Corporation contends that the Full Bench was correct in its conclusion. This issue involves the proper construction of section 60(4)(a).
Starting with the text of section 60(4)(a), it provides:
(4)On a review under this section the Corporation must make any adjustments to the amount of weekly payments—
(a) to reflect changes in the income from employment or earning capacity of the person to whom the weekly payments are payable and any other relevant changes in the circumstances of that person but in any event not so as to take into account income derived from the investment of a lump sum paid to the person under this Division;
Section 60(4)(a) uses the neutral term “changes”, which suggests that, for example, a change in income from employment might be either an increase or a decrease and might result in either a decrease or an increase in weekly payments accordingly. There is no a priori reason why the legislature would have contemplated only increases in income from employment or earning capacity when it is an obvious fact of life that persons over their lifetime often receive a reduction in their income from employment and often have a reduction in their earning capacity.
Section 60(4)(a), in referring to a change in the recipient’s income from employment or earning capacity, proceeds on the basis that the recipient’s income from employment and earning capacity are factors in determining under section 59 whether the recipient was wholly or partially dependent on the deceased worker’s earnings and, if partially dependent, in determining the level of that dependency. It is logical that, if there is either a decrease or increase in the recipient’s income from employment or earning capacity, it may be expected that there would be a consequential increase or decrease in weekly payments accordingly.
Section 60(4)(a), in referring to any other relevant changes in the recipient’s circumstances, proceeds on the basis that the circumstance in question was relevant to the determination under section 59 whether the recipient was wholly or partially dependent on the deceased worker’s earnings and, if partially dependent, in determining the level of that dependency. Again, it is logical that, if the recipient’s circumstances in this respect have deteriorated or improved, there would be a consequential increase or decrease in weekly payments accordingly. It is an obvious fact of life that a person’s circumstances can improve or deteriorate over their lifetime.
The text of section 60(4)(a) indicates that the result of a review having regard to the criteria in that provision can be either an increase or a decrease in weekly payments compared to the weekly payments resulting from the initial section 59 termination. If the legislature had intended otherwise, it may be expected that it would have expressly said so.
The immediate context of section 60(4)(a) is subsection 60(4). The provision uses the neutral term “adjustments” and moreover makes it mandatory for the Corporation to make adjustments by reference to the changes referred to in paragraphs (a) and (b): it is not given any discretion to ignore changes if they produce an increase rather than a decrease by reference to the original level of dependency. Paragraph (b) provides for adjustments to reflect changes in general rates of remuneration. Again, the legislature has used the neutral word “changes”. Although historically rates of remuneration have generally tended to increase, there have been occasions when they have decreased. There is nothing in subsection 60(4) to indicate that the legislature intended to provide for no adjustment in the event of a decrease.
The intermediate context of subsection 60(4) is the whole of section 60. Under subsections (1) to (3), it is mandatory for the Corporation to undertake a review at least annually and, upon request by the recipient or employer, any time after six months since the last review. Subsection (5) empowers the Corporation to require the production of evidence of income from employment or earning capacity, which again is expressed in neutral terms. Paragraph (c) of that subsection empowers the Corporation to require the production of evidence of any other circumstances relevant to the amount of weekly benefits: the reference to “amount” is again a neutral term not limited to a reduction.
Subsection 60(7) provides that, if the Corporation proposes on a review to reduce weekly payments, it must first give a prescribed notice in writing to the recipient. This subsection contemplates that the Corporation might on a review increase weekly payments, in which event no such notice is required.
The broader context of subsection 60(4) is section 59, which provides for the fixing of weekly payments in the first instance. In the case of a dependent partner, under section 59(1)(a) the amount of the initial weekly payment in a case of total dependency is 50 per cent of the deceased worker’s notional weekly earnings. In the case of partial dependency, it is a lesser percentage having regard to the extent of the dependency. If the recipient was only partially dependent at the time of the worker’s death because they were earning a certain level of income from employment, it may be expected that, upon a review under section 60, a reduction in their income from employment (all other things being equal) would result in an increase in their weekly payment.
Subsection 59(4) provides that compensation is payable, if the Corporation so decides, to a partner or child who was not dependent at the time of death but suffers a change of circumstances that may have resulted in their becoming dependent on the worker if the worker had survived. This provision obviously contemplates an increase in weekly payments above the level initially determined. It would be incongruous if the legislature provided (as it did in subsection 59(4)) that there may be an increase from, say, zero to 50 per cent of the deceased worker’s notional weekly earnings but, under subsection 60(4), there cannot be an increase from, say, 10 to 20 per cent.
It may be observed that subsection 59(4) uses the words “if the Corporation so decides”. The Act uses similar terminology in other provisions, such as subsection 59(9), in a manner and context that suggest that this terminology does not confer a discretion on the Corporation whether or not to make a payment. The better view may well be that this terminology is adopted to refer to the need for the Corporation to make a determination (as opposed to an automatic entitlement arising under the Act without the need for any such determination). However, even if subsection 59(4) imports a discretion, it does not detract from the anomalous position that would otherwise arise on the construction adopted by the Full Bench.
Subsection 59(7) imposes a cap on the aggregate amount of weekly payments payable to all dependent partners, children and relatives equal to the weekly payments that would have been payable to the worker in the event of being seriously injured with no current work capacity. Similarly, subsection 59(6) imposes a cap on weekly payments such that they are not payable beyond the date when weekly payments to the worker would have ceased if the worker had survived. The legislature could similarly have imposed a cap in section 60 by reference to the initial payments if it had wished, but it did not do so.
The evident purpose of subsection 60(4) is to make adjustments, by increases or decreases in weekly payments, to reflect deteriorations or improvements in the recipient’s relevant circumstances and in general rates of remuneration. The evident purpose is not to differentiate such that only decreases compared to the initial weekly payments fixed under section 59 are permitted.
The text, context and evident purpose of subsection 60(4) all indicate that weekly payments can be increased or decreased compared to the initial weekly payments fixed under section 59.
The Corporation contends that section 60 does not permit an increase in weekly payments on the first review but, if on a previous review weekly payments have decreased, it permits an increase in weekly payments above the level previously fixed (subject to not exceeding the weekly payments originally fixed under section 59). There is nothing in the text, context or evident purpose of section 60 to support such a construction. If the legislature contemplated that weekly payments might increase from one review to another, there is nothing to suggest that it prohibited an increase from the original amount fixed under section 59.

The Corporation contends that section 59 impliedly imposes a cap on the amount of weekly payments determined on a section 60 review by reference to the percentage of dependency fixed under section 59(1)(a)(ii). The Corporation submits that section 59 imposes a cap in the case of total dependency at 50 per cent of notional weekly earnings by virtue of section 59(1)(a)(i), and therefore it would be irrational to have a cap in the case of total dependency but not in the case of partial dependency.
The Commission’s contention must be rejected. Even in the case of total dependency, section 59(1)(a)(i) does not impose a cap on weekly payments reviewed under section 60 at 50 per cent of notional weekly earnings. Weekly payments can be increased above the amount initially fixed pursuant to section 60(4)(b) if there is an increase in general rates of remuneration. The reason that they cannot be increased above 50 per cent of notional weekly earnings (as adjusted for changes in general rates of remuneration) is not because of any implied cap in section 59(1)(a)(i) but because no relevant change under subsection 60(4)(a) would be capable of causing the Corporation to adjust the amount of weekly payments above the level for total dependency.
In any event, regardless of the construction or operation of section 59(1)(a)(i), there is no reason to imply that, in the case of partial dependency, section 59(1)(a)(ii) caps weekly payments reviewed under section 60(4)(a) at the level initially fixed under section 59.
Deputy President Judge Calligeros, in the passage extracted at [32] above, referred to decisions of the Workers Compensation Tribunal in Pianezzola v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (R & G Pianezzola)[7] and Athans v WorkCover Corporation (Ferro Con (SA) Pty Ltd)[8] in which it had been held that income earned on investing a lump sum received under section 44 of Former Act (the equivalent of section 61 of the Act) could be taken into account on a review under section 45 of the Former Act (the equivalent of section 60). His Honour said that, if those cases were wrongly decided, one would expect section 60 to have been amended to remedy the error. However, those decisions did not hold that reviews under section 45 of the Former Act could not result in an increase in weekly payments above the level of dependency initially set under section 44. Moreover, those decisions were counteracted by the legislature by the insertion of the proviso in section 60(4)(a) for income derived from investment of a section 61 lump sum.
[7] [1997] SAWCT 63.
[8] [2014] SAWCT 8.
Two decisions of the Workers Compensation Tribunal have held that weekly payments could be increased under section 45 of the Former Act above the level of dependency initially set under section 44.
In Nieass v WorkCover/MMI (Pavement Salvage Pty Ltd)[9] a contention by the Corporation that section 44 fixed a ceiling for partial dependency was rejected by Parsons DPJ, who said:
Adjustments can be made to the amount of weekly payments to reflect changes in the income or earning capacity of the person to whom the weekly payments are payable, or to reflect any other changes in the circumstances of that person (s 45(4)). By this means s 45 provides sufficient flexibility to alter the level of weekly payments up or down dependent on the changing circumstances of the claimant. However there is nothing in the wording of s 44 or s 45 which supports Mr Kourakis' submission that the initial setting of dependency creates a ceiling above which weekly payments cannot be reviewed. The only limit that applies to the amount of weekly payments is that in no case can the claimant's weekly payments exceed 50 per cent of the worker’s notional weekly earnings, as reviewed from time to time.[10]
[9] [2000] SAWCT 41.
[10] At [13].
This decision was approved by the Full Bench in Simmons v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (NS & PA Murch Pty Ltd).[11] Jennings PJ, Cawthorne DPJ and Parsons DPJ said:
Of course the changes in income or earning capacity which may be reflected in a review of weekly payments can be upwards or downwards.. In Nieass v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (Pavement Salvage Pty Ltd) a review resulted in an increase of the weekly payments of the partially dependent spouse who, through illness and family responsibility, resigned from her employment and remained at home to care for her children.[12]
[11] [2000] SAWCT 110.
[12] At [22]. (Citations omitted)
On its proper construction, subsection 60(4) permits weekly payments to be increased or decreased compared to the initial weekly payments fixed under section 59. The Full Bench erred in its construction of section 60. The first ground of appeal is established.
Other relevant changes: non-employment income sources
The Corporation contends by way of alternative contention that the decision of the Full Bench should be upheld on an alternative ground to that adopted by the majority, namely the reasoning adopted by Deputy President Judge Rossi that, on the proper construction of section 60(4)(a), the reference to “other relevant changes” is confined to matters other than sources of income related solely to the individual circumstances of the claimant. Mrs Elliott contends to the contrary under her second ground of appeal but this issue arises by way of alternative contention because the majority in the Tribunal did not adopt this reasoning.
This issue involves the proper construction of the words “any other relevant changes in the circumstances of that person” in section 60(4)(a).
Starting with the text of section 60(4)(a), it identifies three types of changes and then contains a proviso to exclude a specific change. Subsection 60(5) reproduces the three matters the subject of change in a list and it is convenient to do likewise in respect of section 60(4)(a). The three types of changes are:
(a)changes in the income from employment of the recipient;
(b)changes in the earning capacity of the recipient; and
(c)any other relevant changes in the circumstances of the recipient.
The proviso excludes “income derived from the investment of a lump sum paid to the person under this Division”.
The use of the word “other” in the third type of change emphasises that a change in income from employment or in earning capacity is a relevant change in the circumstances of the recipient. This will be so because the initial determination of the percentage of dependency under section 59 will have taken into account any income (or lack of income) from employment being earned by the recipient and any earning capacity (or lack of capacity) of the recipient at the time of the deceased worker’s death.
The use of the word “relevant” in the third type of change ensures that not every change in the circumstances of the recipient will be taken into account. The only conceivable criterion for determining whether a change is relevant is whether it is a change in something that was or would have been relevant to determining the percentage of dependency under section 59. The use of the word “any” in the third type of change emphasises that there is no limitation on the type of change in circumstances of the recipient provided that it is relevant.
The principal integers in determining percentage of dependency under section 59 will ordinarily be the amount of income (if any) being earned by the recipient, the cost of the recipient’s ordinary necessities of life and the extent to which any income being earned by the recipient is applied to those ordinary necessities of life. Although it is possible that the recipient was applying capital to fund those ordinary necessities of life, it may be expected that necessities will ordinarily be funded out of income rather than capital. When taking into account the amount of income (if any) being earned by the recipient under section 59, it is common ground that income is not confined to income from employment. It extends at least to income from self-employment, income from the conduct of a business and income derived from capital, such as investments.
On a review under section 60, the most obvious integer likely to change will be income earned by the recipient. Indeed, if the recipient was earning any income at the time of the deceased worker’s death, it would be an exceptional case in which the level of that income would not change over the ensuing years.
There is nothing in section 60(4)(a) that confines the relevant circumstances that may change to income from employment or life circumstances such as remarriage. On the contrary, the legislature chose to limit the circumstances that can change and be taken into account only by reference to the criterion of their being relevant. This is a very broad criterion which is inconsistent with narrowing changes in circumstances to exclude changes in income other than income referable to employment or the exercise of earning capacity. If the legislature had intended that the only changes in income to be taken into account are changes in income from employment or earning capacity, section 60(4)(a) would have been very differently expressed.
The proviso contained in section 60(4)(a) excludes income derived from the investment of a lump sum paid to the recipient under Division 8, in other words a section 61 lump sum, as a change in circumstances that can be taken into account. The obvious rationale for this exclusion is that the legislature intended the recipient to have the benefit of the lump sum and any income derived from its investment in addition to and independently of Division 8 weekly payments. The fact that the legislature excluded such investment income actually indicates that investment income in general (other than investment of a section 61 lump sum) is included in the category of other relevant changes in circumstances.
Turning to the context of subsection 60(4) within section 60, section 60(5)(c) empowers the Corporation to require the production of evidence of any other circumstances relevant to the payment or amount of weekly benefits. Although this is a procedural provision that complements section 60(4)(a), applying the construction of section 60(4)(a) advocated by the Corporation to section 60(5)(c) would result in the Corporation being unable to obtain evidence of income received by the recipient, other than from employment or the exploitation of earning capacity, which appears anomalous.
The context of section 60 includes section 59. The two provisions are obviously intended to operate in harmony. It would be anomalous if non-employment or earning capacity income were to be taken into account in determining the extent of dependency under section 59 but were required to be ignored on a review under section 60.
Subsection 59(4) uses similar terminology to section 60(4)(a) in referring to a partner or child of a deceased worker who, although not a dependent at the time of the worker's death, “suffers a change of circumstances that may, if the worker had survived, have resulted in [their] becoming dependent on the worker”. It is clear that the change of circumstances referred to in subsection 59(4) encompasses changes in income other than employment income and it would be anomalous if the same phrase in section 60(4)(a) were construed to exclude changes in income other than employment income.
The context further includes the legislative history. Section 45(4)(a) of the Former Act was the predecessor of section 60(4)(a). It provided
(a)to reflect changes in the income or earning capacity of the person to whom the weekly payments are payable and any other relevant changes in the circumstances of that person;
As observed above, in Pianezzola v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (R & G Pianezzola)[13] and Simmons v WorkCover /MMI (NS & PA Murch Pty Ltd),[14] the Full Bench of the Workers Compensation Tribunal held that income earnt on investing a lump sum received under the equivalent of section 61 of the Act could be taken into account on a review under section 45(4)(a).
[13] [1997] SAWCT 63.
[14] [2000] SAWCT 110.
When the Act was enacted, the legislature made a policy decision that such income should be explicitly excluded from the equivalent provision of the Act. This explains the proviso contained within section 60(4)(a) described above. It also explains why the draftsperson inserted the words “from employment” after the word “income” in the first type of change of circumstances to which that provision refers. This emphasises that the primary changes of circumstances envisaged are changes in income from employment and earning capacity but leaves a broader residual category of other relevant changes in circumstances. There is no reason to impute to the legislature an intention, by this change, to exclude income from self-employment, the conduct of a business or from investments generally.
The evident purpose of section 60(4)(a) is to provide for periodic reviews having regard to any change in circumstances that were or would have been relevant to the assessment of total or partial dependency in the first instance.
The text, context and evident purpose of subsection 60(4)(a) all indicate that relevant changes in circumstances are not confined to changes in income from employment or changes in circumstances other than the recipient’s income.
The first aspect of the Corporation’s notice of alternative contention is not established.
Other relevant changes: exclusion of Centrelink payments
By its notice of alternative contention, the Corporation contends that the decision of the Full Bench should be affirmed on the alternative ground that changes to Centrelink payments (or social security payments) are not “other relevant changes in the circumstances of that person”, and are therefore not to be taken into account under section 60(4)(a). Mrs Elliott takes issue with this contention.
The Corporation contends that the Deputy President at first instance was correct in holding that Centrelink payments can be taken into account in determining the level of dependency under section 59 but cannot be taken into account on a review under section 60.
The Corporation’s argument in support of this contention is that, if Centrelink payments that are subject to a means test on income received by the recipient are taken into account on a section 60 review, there is the potential for a circuitous or iterative process whereby a change in the level of Centrelink payments results in a change in the level of Division 8 weekly payments, which in turn results in a change in the level of Centrelink payments, and so on.
Circuity of such a nature was identified by Parsons DPJ in Nieass v WorkCover/MMI (Pavement Salvage Pty Ltd).[15] In that case, the recipient was employed at the time of her husband’s death, subsequently ceased employment and then commenced to receive a Commonwealth Sole Parent Pension and Guardians Allowance. Parsons DPJ held that the Commonwealth payments were not to be taken into account on a review under section 45, saying:
Finally as to the pension payments; I am not convinced that there is a proper basis upon which to regard these amounts as income for the purposes of a review of weekly payments. Although there was no evidence on the topic I think I am entitled to assume that the amount of a pension is fixed by reference to the amount of earnings or other income received by the recipient. Accordingly, the applicant’s weekly payments under the Act were taken into account by the Department of Social Security when it set the level of her pension entitlement. The purpose of the pension payment is to supplement the recipient’s income if it falls below a certain level. If the word “income” in s 45(5)(a) includes this kind of pension then a curiously circuitous process could be set in train whereby successive reductions in weekly payments would result in successive increases in the pension until there would be no entitlement to weekly payments at all. If Parliament intended to divest itself of liability to make weekly payments to the spouses of deceased workers in this way, in favour of a pension paid by the Commonwealth government, then it is likely that the Act would contain provisions specifically directed to that process. I would therefore conclude that the word “income” in the relevant section excludes sole parent pension and guardian’s allowance.[16]
[15] [2000] SAWCT 41.
[16] At [38].
In the present case, the Deputy President at first instance adopted this reasoning and applied it to all social security payments, saying:
With respect I think Parsons DPJ [w]as right to conclude as she did in Nieass and I think as a matter of principle her reasoning must apply to all social security payments.
The Corporation’s contention under its notice of alternative contention in this respect differs from the first aspect of its notice of alternative contention. The latter involves the proper construction of the words “other relevant changes in circumstances of the person” in section 60(4)(a). The former involves deriving an implication from the provision of an intention to exclude Centrelink payments from the changes the subject of section 60(4)(a).
In Wentworth Securities Ltd v Jones[17] Lord Diplock identified three preconditions before words could be read into a legislative provision, saying:
My Lords, I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd. provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course are satisfied.
[a]First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy;
[b]secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and
[c]thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law.[18]
[17] [1980] AC 74.
[18] At 105. (Citations omitted) The three conditions have been placed on new lines to enhance readability.
In Inco Europe Ltd v First Choice Distribution[19] Lord Nicholls of Birkenhead (with whom Lord Jauncey of Tullichettle, Lord Steyn, Lord Clyde and Lord Millett agreed) reformulated the three conditions in the following terms:
A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters:
(1)the intended purpose of the statue or provision in question;
(2)that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and
(3)the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed.
The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation…[20]
[19] [2000] UKHL 15; [2000] 1 WLR 586.
[20] At 592. The three conditions have been placed on new lines to enhance readability.

In Taylor v Owners – Strata Plan No 11564[21] French CJ, Crennan and Bell JJ referred with approval to the three preconditions identified by the House of Lords in Inco Europe Ltd, although noting that it was unnecessary to decide whether the three conditions were always necessary and sufficient. Their Honours said:
In Leys the Victorian Court of Appeal was critical of Spigelman CJ’s characterisation of purposive construction as a process of construing “the words actually used” (emphasis in original). Their Honours said that the process requires the court to determine whether the modified construction is reasonably open in light of the statutory scheme and against a background of the satisfaction of Lord Diplock's three conditions. Their Honours questioned the utility of the distinction between "reading up" and "reading down" and rejected the proposition that a purposive construction may not result in an expanded operation of a provision.
Consistently with this Court's rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Leys demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect. And as their Honours observed… the question of whether a construction “reads up” a provision, giving it an extended operation, or “reads down” a provision, confining its operation, may be moot.
The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills "gaps disclosed in legislation" or makes an insertion which is "too big, or too much at variance with the language in fact used by the legislature".
Lord Diplock's three conditions (as reformulated in Inco Europe Ltd v First Choice Distribution) accord with the statements of principle in Cooper Brookes and McColl JA was right to consider that satisfaction of each could be treated as a prerequisite to reading s 12(2) as if it contained additional words before her Honour required satisfaction of a fourth condition of consistency with the wording of the provision. However, it is unnecessary to decide whether Lord Diplock's three conditions are always, or even usually, necessary and sufficient. This is because the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that "the modified construction is reasonably open having regard to the statutory scheme" because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise. Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd, the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour's further observation, “[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances”.
Lord Diplock's speech in Wentworth Securities laid emphasis on the task as construction and not judicial legislation. In Inco Europe Lord Nicholls of Birkenhead observed that even when Lord Diplock's conditions are met, the court may be inhibited from interpreting a provision in accordance with what it is satisfied was the underlying intention of Parliament: the alteration to the language of the provision in such a case may be "too far-reaching". In Australian law the inhibition on the adoption of a purposive construction that departs too far from the statutory text has an added dimension because too great a departure may violate the separation of powers in the Constitution.[22]
[21] [2014] HCA 9; (2014) 253 CLR 531.
[22] At [36]-[40]. (Footnotes omitted)
Starting with the third condition identified in Inco Europe Ltd, there are several difficulties in satisfying this prerequisite.
First, if the purpose of the implied exclusion is to avoid circuitous or iterative changes potentially resulting from adjustments to Division 8 weekly payments and adjustments to Centrelink payments, the implied exclusion is too broad because there will be Centrelink payments in respect of which no circuitous or iterative process will be capable of applying. Examples include the following:
1.Some Centrelink payments are not or may not be subject to a means test by reference to income received by the recipient (a topical example is the recent JobKeeper Payment but there have been other examples in the past and there may be other examples in the future).
2.Some Centrelink payments may have a sufficiently high threshold before application of a means test that a change in a Division 8 weekly payment will have no effect on the Centrelink payment (and this will increasingly be the case the lower the notional weekly earnings of the deceased worker).
3.A recipient may cease to be eligible for a Centrelink payment for reasons independently of means, and independently of the amount of a Division 8 weekly payment (some of many examples include where the Centrelink payment is time limited, Youth Allowance and AusStudy which end on the completion of full-time study or apprenticeship; JobSeeker Payment for the sick or injured which ends upon recovery or upon attaining retirement age; Disability Support Pension which ends upon recovery or upon attaining retirement age; JobSeeker Payment for the unemployed which ends upon failing to take adequate steps to seek employment or upon attaining retirement age; and many types of social security payments which may end upon failing to attend interviews or respond to requests for information).
On the other hand, the implied exclusion is too narrow because there are other types of payments that are not Centrelink payments in respect which circuitous or iterative changes might result from adjustments to Division 8 weekly payments and adjustments to such payments. Examples include the following:
1.Welfare provided by State government agencies involving the payment of money or the provision of goods or services that are means tested.
2.Welfare provided by charitable institutions involving the payment of money or the provision of goods or services that are means tested.
3.A (notional) family trust in which distributions of income to eligible family members are subject to a means test.
These circumstances render it difficult to formulate the scope of any implied exclusion and comply with the third pre-requisite identified in Inco Europe Ltd.
Secondly, the Corporation’s contention is premised upon its exercising its powers under section 60 in a manner that would result in a circuity or iterative process. However, just as section 59 does not dictate the manner in which the Corporation is to assess the percentage to be fixed by the Corporation having regard to the extent of the dependency in the case of partial dependency, nor does section 60 dictate the manner in which the Corporation is to adjust weekly payments to reflect changes in the circumstances of the recipient.
No potential circuitous or iterative process arises on the facts of the present case because Mrs Elliott did not receive any Newstart Allowance during the periods the subject of the annual reviews since June 2013. If the Corporation were to increase her weekly payments to reflect that circumstance, that would not result in any change in respect of Newstart Allowance.
Considered generally however, the Corporation can exercise its broad power to make appropriate adjustments to reflect a change in a manner which ensures that no potential circuitous or iterative process will arise without having to imply an exclusion into section 60. For this purpose, five scenarios might be considered:
1.A recipient is in receipt of a Centrelink payment at the time of the death of the deceased worker but later becomes ineligible to receive the payment.
2.A recipient is not in receipt of a Centrelink payment at the time of the death of the deceased worker but later becomes eligible to receive the payment.
3.A recipient is in receipt of a Centrelink payment at the time of the death of the deceased worker and the amount of that benefit is increased or decreased because the recipient is now in receipt of a Division 8 weekly payment instead of receiving the benefit of the deceased worker’s wage.
4.A recipient is in receipt of a Centrelink payment and the amount of that benefit is increased or decreased under the relevant Centrelink rules for reasons unrelated to the amount of the Division 8 weekly payment.
5.A recipient is in receipt of a Centrelink payment and the amount of that benefit is increased or decreased because of a change in the amount of the Division 8 weekly payment.
In the first three scenarios, no circuity or iterative process will arise. In the first scenario the Corporation will increase the Division 8 weekly payment to reflect the loss of the Centrelink payment. In the second scenario, the Corporation will decrease the Division 8 weekly payment to reflect the new receipt of the Centrelink payment. In the third scenario, the Corporation will adjust the Division 8 weekly payment upwards or downwards to reflect the decease or increase as the case may be of the Centrelink payment.
In the fourth scenario, upon the increase or decrease in the Centrelink payment, the Corporation can ascertain the prospective effect on the amount of the Centrelink benefit of a change in the Division 8 weekly payment by reason of the original change in the Centrelink benefit. There may be no prospective effect but, if there is, the Corporation can take that into account in determining the amount of the prospective change so that the total of the Division 8 weekly payment and the Centrelink payment will remain the same.
In the fifth scenario, the Corporation would make no change because the consequential change in the Centrelink benefit will already have been taken into account at the fourth scenario and that consequential change will not be a relevant change in the circumstances of the recipient but a pure consequence of the Division 8 weekly payment change.
Thirdly, if it were considered necessary to imply an exclusion in respect of Centrelink payments, the question arises whether the exclusion should be implied in respect of both section 59 and section 60, or only in respect of section 60. It would be more logical to imply the exclusion in respect of both sections and simply ignore Centrelink payments for the purposes of determining the amount of Division 8 weekly payments. If the fundamental rationale for an implied exclusion is the anomalous result that would apply in the absence of any implied exclusion, it would be inconsistent to create an anomalous result by applying the exclusion in respect of section 60 but not in respect of section 59. For example, a recipient in receipt of Youth Allowance would have that payment taken into account in fixing weekly payments under section 59 but on its cessation on completion of the recipient’s studies there would be no adjustment under section 60 to reflect that cessation.
There is a line of authority that would support the exclusion of benevolent payments from the calculation of workers compensation to relatives on the death of a worker. In Aafjes v Kearney[23] Mason J (with whom Gibbs J and Stephen J agreed) said:
The dominating consideration here and in the United Kingdom is a strong disinclination, founded on common sense, to attribute to the legislature an intention to deprive an applicant of a claim based on total dependency for support where a legal obligation to provide that support exists which has not been abandoned, merely because the applicant is in receipt of benefits from others, whether proceeding from charity or some other motive.[24]
[23] (1976) 180 CLR 199.
[24] At 212.
In a series of cases in the Compensation Court of New South Wales, it was held that social security benefits received by the spouse of the worker were not to be taken into account in determining whether the spouse was totally or mainly dependent for support on the worker under former subsection 37(4) of the Workers Compensation Act 1987 (NSW). That Act is materially different to the Act in its relevant provisions and caution must therefore be exercised in relation to decisions in relation to it. The decisions culminated in the decision of Walker CCJ in Claydon v Jayton Pty Ltd,[25] who said:
The respondent submits that because both the applicant and his partner are on Social Security benefits she cannot be totally or mainly dependent upon him within the meaning of s 37(4).
This is a popular submission but finds no favour that I can determine in the decided cases on the matter. In Fatovic v Standard Telephones & Cable Pty Ltd, his Honour Judge Burke dealt with a submission that an increment to an invalid pension to include a benefit for children had changed the dependency in respect of the children.
Judge Burke pointed out that there was a long line of authority to the effect that benevolence from relatives, friends or the State after injury to a worker does not derogate from dependency...
Judge Burke held that in situations where a relative was dependent prior to injury there was a presumption of continuance with an evidentiary onus on the respondent to establish change. In the circumstances he found the onus had not been discharged.
His Honour Judge O’Meally in Warrender v Orange City Council took the view that Social Security payments in themselves are not sufficient to alter a wife’s status as a dependant. He took the same view in Bishop v Bucciarelli.
His Honour Judge Moran in Dunn v Sydney City Council rejected the suggestion that, because the applicant’s wife received a Social Security benefit for herself and two children whilst the husband only received the benefit for himself, the Court should draw the conclusion that the wife and children were not mainly dependent.
I agree with my colleagues’ approach to the interpretation of s 37(4)…[26]
[25] [1999] NSWCC 36; (1999) 18 NSWCCR 381.
[26] At [78]-[84]. (Citations omitted)
In Workers Compensation (Dust Diseases) Authority v Cunha,[27] the New South Wales Court of Appeal considered the construction of subsection 8(2B) of the Workers’ Compensation (Dust Diseases) Act 1942 (NSW), which provides that workers compensation is payable to dependent persons in respect of workers who die after contracting a dust disease in compensable circumstances. The section provides for both a fixed lump sum payment and a fixed weekly payment in the case of total dependency and a lesser amount determined by the Authority in the case of partial dependency. Unlike Division 8 of Part 4 of the Act, there is no provision for review of weekly payments by reference to a future change in circumstances and the only adjustments to weekly payments are by way of indexation.
[27] [2017] NSWCA 111.
When Mr Cunha died, both he and Mrs Cunha had retired and were in receipt of the couples aged pension at the rate of $532 per week and he was in receipt of weekly payments of workers compensation of $360 per week. The Authority determined that Mrs Cunha was totally dependent on Mr Cunha for the purpose of weekly payments under subsection 8(2B) but, by reason of the age pension, was only partially dependent for the purposes of the lump sum payable under subsection 8(2B). Mrs Cunha appealed to the District Court against the determination in respect only of the lump sum. The primary Judge held that the aged pension payments were to be disregarded in assessing dependency, applying subsection 8(2B) of the Workers’ Compensation (Dust Diseases) Act 1942 (NSW) to the line of cases in respect of subsection 37(4) of the Workers Compensation Act 1987 (NSW) referred to at [98] above.
The Court of Appeal held that the primary Judge erred in ignoring payment of the aged pension in an absolute sense without further inquiry and remitted the matter to the District Court to determine Mrs Cunha’s entitlement in accordance with law. Leeming JA (with whom Meagher and Simpson JJA agreed) addressed a contention by Mrs Cunha that the reduction in her aged pension due to receipt of a lump sum should be taken into account in determining the amount of that lump sum, saying:
In further support of the primary judge’s reasoning that the receipt of the pension ought not to make a difference to her dependency, Ms Cunha submitted that:
“if the age pension is reduced, because of the lump sum payment, or may be reduced because of the lump sum payment, under the social security legislation, it can’t be and shouldn’t be taken into account, in relation to the Board, under the Dust Diseases Act, and to do so would be grossly unfair.”
That submission reflected and elaborated upon the reasons of the primary judge at [40], stating that it appeared to be “erroneous factually, if not legally”, to take into account the payment of the age pension. Three points may be made in response.
First, the nature of the gross unfairness for which Ms Cunha contended was not clearly articulated. So far as I can see, the gravamen of the complaint was that receipt of a larger amount under the Act might result in a smaller age pension...
Secondly, and in any event, there was no evidence as to what, if anything, the effect of receipt of some $332,850, as opposed to $99,855, would be on Ms Cunha’s pension…
…
Thirdly, in Miles v SAS Trustee Corporation [2017] NSWCA 86… Sackville AJA, with whom Payne JA agreed, said at [55]:
“Having regard to the submissions made by STC in the present case, it is important to appreciate that a construction that gives effect to the words of a statute is not to be rejected simply because one party labels the result as ‘perverse’ or, to use a less pejorative term, ‘anomalous’.”
…
…However, contrary to what was said by the primary judge at [40], I cannot agree that it is erroneous, either factually or legally, to take into account the payment of a pension when determining the extent of Ms Cunha’s dependency. The question is one of the construction of the Workers’ Compensation (Dust Diseases) Act 1942 (NSW). There is nothing which is express in that legislation to require or permit the factual assessment of dependency to disregard the receipt of an age pension, and no sound reason has been advanced for any implication to that effect. The authorities to which the primary judge referred, to the effect that the receipt of some income or charitable support does not necessarily preclude a finding of total dependency, do not support the very different proposition that such other income is to be disregarded, irrespective of its significance.
True it is that the payment under the State Act may have a consequential effect upon a right to a federal pension. The possibility of its having that effect – without more – is insufficient to warrant a court from assessing dependency on a basis which disregards the federal pension altogether.
Much may turn on the particular facts…[28]
[28] At [31]-[33], [34], [39], [50]-[52].
The decision in that case does not greatly assist in the present case because it addressed a lump sum rather than weekly payments and there was no provision in the New South Wales legislation for review of weekly payments by reference to a change in circumstances. There was therefore no possibility of a circuitous or iterative effect of the type posited by the Corporation in the present case.

As observed above, this appeal proceeds on the premise that Centrelink payments, and in particular the Newstart Allowance that was being paid to Mrs Elliott in 2013, are to be taken into account in determining the level of dependency under section 59. This appeal affords no occasion for this Court to consider whether there is an implied exclusion for the purposes of section 59 and section 60 in respect of Centrelink payments for the purpose of determining the amount of Division 8 weekly payments. It was the Corporation itself that persuaded the Tribunal that there was no implied exclusion for the purposes of section 59 in respect of Centrelink payments.
In summary, in respect of the third prerequisite identified in Inco Europe Ltd, it is not possible to be abundantly sure that an exclusion of Centrelink payments for the purpose of section 60 but not for the purpose of section 59 would have been included if Parliament has addressed its mind to the issue.
In respect of the first prerequisite, the Corporation does not clearly articulate the intended purpose of section 60(4)(a) that requires the implication of an exclusion of changes in Centrelink payments for the purpose of section 60 but not for the purpose of section 59, and it is not possible to be abundantly sure what it might be.
In respect of the second prerequisite, this is not satisfied consequentially on the non-satisfaction of the first prerequisite.
The prerequisites for implication of an implied exclusion in respect of Centrelink payments for the purpose of determining weekly payments under subsection 60(4) but not for the purpose of section 59 do not exist.
This appeal does not afford this Court the opportunity to consider whether, on the proper construction of sections 59 and 60, Centrelink payments are excluded for the purpose of both sections. Nothing in our reasons should be construed as expressing any view on this question, which would give rise to quite different considerations to exclusion for the purpose of section 60 alone.
Whilst the parties were given leave to provide further written submissions regarding the nature of the Centrelink payments in issue in this case, they did not address whether, as a matter of construction of the Commonwealth legislation, those rights are intended to be enjoyed in addition to the rights in issue which arise under the Act.
In a sense that is unsurprising because this way of looking at the case did not appear to feature in the earlier hearings, despite the way in which this kind of issue has been addressed in other contexts. For example, in the field of common law damages assessments, the issue has been addressed as a matter of the construction of the relevant Commonwealth legislation and whether what has been described as a ‘third-party subvention’ should be enjoyed in addition to damages awarded pursuant to common law principles. The best-known example is the decision of the High Court in The National Insurance Co of New Zealand Ltd v Espagne.[29] In that case the question was whether the trial Judge was right to disregard the plaintiff’s receipt of the invalid pension as a matter going to the reduction of damages.
[29] (1961) 105 CLR 569.
Dixon CJ relied upon “general reasoning as applied to the character of the statute” and warned that it “appears to be futile to look in the present state of the law for a rule of general application capable of furnishing a ready solution to all or most such questions”.[30] Menzies J identified a difference between cases involving common law damages assessments and those arising under Lord Campbell’s Act (in this State, being damages for dependency under Part 5 of the Civil Liability Act 1936 (SA)).[31] Menzies J pointed out that, since the decision of Bramwell B in the Court of Exchequer Chamber in Bradburn v Great Western Railway Co,[32] the contention that damages for injuries caused by the defendant’s negligence should be reduced by what the plaintiff received under an accident insurance policy had been rejected. His Honour explained that in Payne v Railway Executive,[33] the Court of Appeal held that a plaintiff’s naval disability pension was rightly disregarded in the assessment of damages for the defendant’s negligence even though there was evidence that the pension would be reduced in consequence of the judgment.
[30] (1961) 105 CLR 569 at 571 and 573.
[31] (1961) 105 CLR 569 at 581.
[32] (1874) LR 10 Ex 1.
[33] (1952) 1 KB 26. The decision appears to have been based on the proposition that the plaintiff did not receive his pension because of the accident but because of his status as a sailor.
Windeyer J described “the ultimate contest” in Espagne as being whether the cost of ameliorating “the lot of a sufferer” is something to be “borne by an insurer or by the State”. His Honour explained that disability pensions, sick pay and similar benefits are “common incidents of employment” and that these and “various forms of social welfare services, free medical aid, invalid pensions and workers’ compensation” in fact alleviated the consequences of many tortious injuries. Windeyer J regarded the issue as one to be determined by the common law.[34] His Honour also regarded the starting point as the nature of the invalid pension granted by the Commonwealth, and he embarked on a close analysis of the relevant legislation. As with Menzies J, his Honour also examined actions under Lord Campbell’s Act and observed that, unlike various common law damages cases, amounts received as a pension granted upon death, together with the value of the prospect or probability of continuance of that pension, will be taken into account in assessing damages, absent any statutory provision displacing the general rule.[35] Windeyer J drew a distinction between damages under Lord Campbell’s Act and a common law action for damages for personal injury. Damages under Lord Campbell’s Act “are for the loss of pecuniary benefits consequent upon death”, whereas damages at common law do not comprise “a claim to have a pecuniary loss made good, but to have a pecuniary compensation for all the consequences of physical injury”. His Honour accepted that this distinction “becomes thin” when damages for economic loss are separately considered.[36]
[34] (1961) 105 CLR 569 at 584.
[35] (1961) 105 CLR 569 at 587-588).
[36] (1961) 105 CLR 569 at 588.
A similar issue was considered in Redding v Lee;Evans v Muller.[37] In Redding v Lee, the High Court upheld the decision of the Full Court of the Supreme Court of South Australia by which invalid pension payments granted pursuant to the Social Security Act 1947 (Cth) were disregarded in a common law damages assessment.[38] By contrast, in Evans v Muller the High Court overturned the decision of the Full Court of the Supreme Court of Queensland, finding that unemployment benefits received by the injured plaintiff pursuant to the Social Security Act 1947 (Cth) should be deducted from the assessment of damages for loss of earning capacity up to the date of trial.[39] It is unnecessary to address these decisions in any further detail save to observe that various amendments have since been made to Commonwealth social security legislation conferring broad powers of recovery and preclusion on the Commonwealth, triggered by the receipt of common law damages or other compensation.
[37] Redding v Lee; Evans v Muller (1983) 151 CLR 117.
[38] Lee v Redding (1981) 28 SASR 372.
[39] Muller v Evans (No 2) [1982] Qd R 209.
Finally, it is relevant to note that in claims for damages for wrongful death made pursuant to the Civil Liability Act 1936, the issue has been put beyond doubt by section 24(2aa) which is in the following terms:
(2aa)In assessing damages under this section in any action based on a death occurring after the passing of the Wrongs Act Amendment Act 1956 there shall not be taken into account—
(a)     any sum paid or payable on the death of the deceased under any contract of assurance or insurance, whether made before or after the passing of the said Act;
(b)     any sum paid or payable consequent on the death of the deceased person as a gratuity to any person for whose benefit the action is brought;
(c)     any superannuation payments or benefits consequent upon the death of the deceased person;
(d)     any sum paid or payable consequent upon the death of the deceased person under any contributory medical hospital death or funeral benefit scheme;
(e)     any sum paid or payable as a social service benefit or pension by the Governments of the Commonwealth of Australia, or the United Kingdom, or the State of South Australia to or in respect of any person for whose benefit the action is brought;
(f) any sum recovered or recoverable for the benefit of the estate of the deceased under section 3(2) of the Survival of Causes of Action Act 1940 (which permits the recovery of damages for certain kinds of non-economic loss where the deceased dies of a dust-related condition).
Clearly enough, there are no similar provisions in the Act which preclude Centrelink payments being taken into account.
Cases like Espagne raise difficult and complex questions of statutory construction. In circumstances where the parties have not put into issue the nature of the Centrelink payments having regard to the legislation under which they are paid, this case does not provide an occasion to undertake the kind of analysis that was undertaken in Espagne. Rather, as has been seen, the parties approached the question as one solely to be determined by an analysis of the Act. Having regard to the way in which this litigation was conducted, there is no proper basis to find that Centrelink payments should be taken into account when a claim is initially made under s 59, but not for the purposes of a review conducted under s 60(4)(a) of the Act.
Whether on a close analysis of the interaction, if any, between the relevant Commonwealth legislation and the Act a worker’s dependents should have Commonwealth payments taken into account when determining entitlements under the Act must await a case in which these questions are put into issue.
The Corporation’s alternative contention is not established.
Conclusion
We make the following orders:
1.Permission to appeal granted.
2.Appeal allowed.
3.The order by the Full Bench dismissing the appeal from the decision of the Deputy President is set aside.
4.In lieu thereof, the appeal from the decision of the Deputy President is allowed and the matter remitted to the Tribunal or the Corporation (on which the parties are to be heard) to determine the weekly payments to Mrs Elliott upon each annual review from 2013 to 2019 in accordance with law.
We will the hear the parties as to costs and any other orders.