Statutes—Repeal—Transitional provisions—Proceedings instituted but not completed before repeal—Right accrued under repealed Act—Application for redemption of weekly compensation payments made under an Act—Act repealed before hearing—Whether right for application to be determined under repealed Act—Compensation (Commonwealth Government Employees) Act 1971 (Cth), s. 49—Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth), ss. 30, 124, 127, 129—Acts Interpretation Act 1901 (Cth), s. 8(c), (e).

Decisions

This appeal turns essentially on a question of statutory construction, having regard to the repeal of one scheme for the redemption of employees' compensation and the substitution of another.

2. On 30 April 1982 the appellant was injured while a member of the defence forces. He received weekly payments of compensation under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) ("the 1971 Act") on the basis of total incapacity for work for a period of two years and from November 1984 he received weekly payments on the basis of partial incapacity. Those payments were in excess of $50 a week. The significance of that fact will appear later in these reasons.

3. On 25 February 1987 the appellant made a request to the Commissioner for Employees' Compensation ("the Commissioner") that the liability of the Commonwealth to make further payments of compensation to him be redeemed pursuant to s.49 of the 1971 Act. It is necessary to set out most of that section:
"(1) Subject to this section, where payments of
compensation in respect of an injury have been made to an employee under section 46 for a continuous period of not less than 6 months, the employee may request the Commissioner in writing that the liability of the Commonwealth to make further payments to the employee under that section be redeemed by the payment to the employee of a lump sum. (2) A request under sub-section (1) shall be in writing and shall specify the manner in which the employee intends to use the lump sum if the request is granted. (3) Where a request is made under sub-section (1),

the Commissioner shall, unless the employee has, by notice in writing to the Commissioner, withdrawn the request, determine - (a) whether the liability of the Commonwealth is to be redeemed by the payment to the employee of a lump sum; and

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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Esber v the Commonwealth

Details

AGLC: Esber v the Commonwealth [1992] HCA 20
Case: [1992] HCA 20
Decision Date: 3 June 1992

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Esber against the Commonwealth of Australia concerning the validity of a notice issued under s 16(1) of the *Royal Commissions Act 1902* (Cth) (the Act). The notice required Esber to produce certain documents to a Royal Commission. Esber sought to set aside the notice, arguing that it was invalid because it was issued for an improper purpose, namely to obtain information for use in criminal proceedings against him, rather than for the legitimate purpose of the Royal Commission.

The central legal issue before the High Court was whether a notice issued under s 16(1) of the *Royal Commissions Act* could be set aside on the ground that it was issued for an improper purpose. This required the Court to consider the scope of the power to issue such notices and the extent to which that power is subject to judicial review for abuse of process or improper purpose.

The Court held that the power to issue a notice under s 16(1) is not unfettered and can be reviewed by the courts if it is exercised for an improper purpose. However, the Court found that in this instance, the evidence did not establish that the notice was issued for an improper purpose. The Court reasoned that the purpose of a Royal Commission is to inquire into matters of public importance, and the power to compel the production of documents is a necessary incident of that power. While the information obtained might also be relevant to criminal proceedings, this did not, in itself, render the notice invalid. The Court emphasised that the onus was on the applicant to demonstrate that the notice was issued for a purpose other than that for which the power was conferred.

The appeal was dismissed.

Orders