Esber v the Commonwealth

[1992] HCA 20

HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Toohey and Gaudron JJ.

ESBER v. THE COMMONWEALTH OF AUSTRALIA AND ANOTHER

(1992) 174 CLR 430

3 June 1992

Statutes

Statutes—Repeal—Transitional provisions—Proceedings instituted but not completed before repeal—Right accrued under repealed Act—Application for redemption of weekly compensation payments made under an Act—Act repealed before hearing—Whether right for application to be determined under repealed Act—Compensation (Commonwealth Government Employees) Act 1971 (Cth), s. 49—Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth), ss. 30, 124,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the Commissioner shall, unless the employee has, by notice in writing to the Commissioner, withdrawn the request, determine - (a) whether the liability of the Commonwealth is to be redeemed by the payment to the employee of a lump sum; and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 of the employee and any other relevant matters. (5) The Commissioner shall not make a determination that the liability of the Commonwealth to make further payments to an employee under section 46 is to be redeemed unless he is satisfied that - (a) the injury is not likely to result in the employee becoming totally incapacitated for work; (b) the employee intends to use the lump sum in a manner that is particularly advantageous to the employee; and

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

4. On 29 October 1987 a delegate of the Commissioner determined that the liability of the Commonwealth should not be redeemed. On 15 September 1988 the appellant applied for a review of the delegate's determination in accordance with Pt V of the 1971 Act. It was necessary for the appellant to seek an extension of time in which to make his application. That extension was granted; it was common ground that the extension operated so as to confirm that proceedings to review the delegate's decision were instituted on 15 September 1988. By reason of Pt V of the 1971 Act, the application for a review was made to the Administrative Appeals Tribunal ("the Tribunal").

5. After the appellant's request for a review of the delegate's decision, but before any hearing by the Tribunal, the 1971 Act was repealed. It was repealed by s.139 of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) ("the 1988 Act") which was assented to on 24 June 1988 but did not commence until 1 December 1988.

6. The application to the Tribunal was dealt with in two stages. First, on 1 June 1990 the Tribunal ruled that the decision of the delegate should be reviewed "in accordance with the law applicable" under the 1971 Act. There was no appeal from that decision. There was a further hearing as a result of which, on 20 February 1991, the Tribunal set aside the decision of the delegate and determined that the liability of the Commonwealth be redeemed pursuant to s.49 of the 1971 Act, by payment to the appellant of $199,742. The Tribunal arrived at that figure on the basis that its decision was made on 20 February 1991 but as if the 1971 Act had not been repealed. It concluded that there should be no deduction from the sum arrived at of any weekly payments made to the appellant until the lump sum was paid.

7. There was an appeal to the Federal Court from the decision of the Tribunal. The appellants were the Commonwealth and the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees ("the Commission"), a body established under the 1988 Act to pay compensation under the terms of that Act. The latter had been a respondent to the application to the Tribunal. As originally formulated, the notice of appeal related only to the date at which the value of the entitlement to redeem should be calculated and the extent to which weekly payments of compensation made under the 1988 Act should be taken into account in assessing that entitlement. On the hearing of the appeal the appellants, that is to say the present respondents, obtained leave to amend their notice of appeal to include a challenge to the Tribunal's ruling that the application for review was to be determined in accordance with the 1971 Act, not the 1988 Act. The distinction is important because, under the 1988 Act, redemption of compensation is unavailable where weekly payments exceed $50 (1) s.30(1)(b). As already noted, weekly payments to the appellant exceeded that figure. A majority in the Full Court of the Federal Court (Davies and Hill JJ., Lee J. dissenting) allowed the appeal on the ground that the appellant's application to the Tribunal should have been determined in accordance with the 1988 Act.

8. The respondents contended as they contend now that, with the repeal of the 1971 Act before any determination by the Tribunal, the appellant's entitlement to redemption fell to be determined in accordance with s.30 of the 1988 Act, with the result that redemption was no longer available to him. The appellant's response was and is that his entitlement to redemption under the terms of the 1971 Act was preserved by the transitional provisions of the 1988 Act and, in any event, by s.8 of the Acts Interpretation Act 1901 (Cth).
Transitional provisions of the 1988 Act

9. So far as the 1988 Act is concerned, the appellant relies upon s.129(2) which reads:
" Where the Commonwealth is a party to any proceedings
relating to any matter arising under the 1912 Act, the 1930 Act or the 1971 Act (including proceedings under Part V of the 1971 Act), being proceedings instituted but not completed before the commencing day, those proceedings may be continued on and after that day and, where the proceedings are so continued, the relevant authority and the Commonwealth shall be parties to those proceedings."

10. Section 129 is part of "Division 2 - Transitional provisions", which in turn lies within "Part X - TRANSITIONAL PROVISIONS, CONSEQUENTIAL AMENDMENTS AND REPEALS". Section 124(1), which is the opening section in Div.2, reads:
" Subject to this Part, this Act applies in relation to
an injury, loss or damage suffered by an employee, whether before or after the commencing day." There follows a complex scheme in relation to injuries sustained and payments of compensation made before the 1988 Act commenced. Section 129 carries the heading "Application for review and other proceedings under previous Acts". In its terms, s.129(2) applies to the appellant's situation. The Commonwealth was a party to proceedings arising under the 1971 Act, those proceedings being an application for review under Pt V of the Act. The proceedings were instituted but not completed before the commencing day. Therefore, they may be "continued" and, the appellant argues, continued as if the 1988 Act had not come into force.

11. On the other hand, the respondents contend that s.129(2) is procedural only, that it does no more than obviate the need for fresh proceedings to be instituted after 1 December 1988, but that any entitlement to compensation, including redemption of weekly payments, must be dealt with in accordance with the 1988 Act.

12. It is true that s.129(2) cannot be plucked out of Div.2 and construed without reference to the other provisions that make up the Division. But the argument that the sub-section does no more than obviate the need to bring fresh proceedings is at odds with the language of the sub-section. The "proceedings" which are here "continued" are proceedings begun under the 1971 Act, seeking, in accordance with that Act, a review of the delegate's decision. If such proceedings were to be continued and determined in accordance with the 1988 Act, one would expect that to be made clear.

13. Furthermore, the respondents' argument finds no support in the context of the Division. Section 124 does not assist the respondents' argument. While it makes the 1988 Act apply in relation to an injury suffered, whether before or after the commencing day, the section itself is expressed to be subject to Pt X so that in the end the question is one of the proper construction of s.129(2) in the context of that Part. Section 124(2) is in negative terms, precluding any entitlement to compensation under the 1988 Act in respect of injury, loss or damage suffered before the commencing day if there was no entitlement under the 1971 Act or an earlier compensation statute. The amount of compensation for permanent impairment or death occurring before the commencing day is the amount payable under the 1971 Act or earlier statute (2) s.124(4). The rate of compensation in respect of the death of an employee and the rate of compensation for incapacity, where the compensation relates to a period occurring before the commencing day, are in accordance with the earlier statutes (3) s.124(7). There are other provisions in s.124 to which it is unnecessary to refer but the effect of which is to gear payments to the earlier statutes where entitlement to compensation arose before the commencing day. Thus the effect of s.124 is that the provisions of the 1971 Act provide a reference in the particular circumstances which we have mentioned. But s.124 does not presuppose that any proceedings were on foot when the 1988 Act commenced. In that situation we must look to s.129.

14. Something needs to be said about s.127 which carries the heading "Settlements and determinations under previous Acts". Provision for settlements was made under an earlier statute and questions concerning them need not be pursued. Section 127(2) provides that any determination made or action taken by the Commissioner under the 1971 Act "shall be taken to be a determination made by the relevant authority under this Act in respect of the corresponding liability of that relevant authority to pay compensation or make a similar payment under this Act to that person". The sub-section is intended to identify the "relevant authority" against whom an earlier determination may be enforced. It supports the appellant's claim in that it provides machinery to ensure that an entitlement to payment under the 1971 Act is not lost because of the disappearance of the Commissioner. The same may be said of sub-s.(3) which reads:
" Where a determination or action referred to in
subsection (2) is, or has been, varied by a court or a tribunal, subsection (2) has effect in relation to that determination or action as so varied."

15. As Lee J., in the Federal Court, observed (4) (1991) 29 FCR 324, at pp 333-334 of s.127(3):
"If the 1988 Act had provided that those proceedings were to
become proceedings under the 1988 Act, no further statement as to the effect of the Act thereon would be required. To put it another way, unless s.127(3) was inserted to acknowledge that saved proceedings may continue under the preceding law and that the outcome of those proceedings would require further provision in the 1988 Act, the words were superfluous."

16. It follows from a review of Div.2 that s.129(2) of the 1988 Act should be given the effect which its language indicates, there being nothing in the Act standing in the way of that approach. The sub-section is concerned with more than procedural matters; it ensures the continuance of the application to the Tribunal and the resolution of the entitlement to redeem in accordance with the 1971 Act. The Tribunal rightly so decided.

17. This conclusion is enough to dispose of the appeal in favour of the appellant. But the alternative ground was fully argued and should be dealt with. As will be seen, it lends strong support for the construction of s.129(2) already reached.
Acts Interpretation Act, s.8

18. Section 8 of the Acts Interpretation Act, so far as it was relied on by the appellant, reads:
" Where an Act repeals in the whole or in part a former
Act, then unless the contrary intention appears the repeal shall not; ... (c) affect any right privilege obligation or liability

acquired accrued or incurred under any Act so repealed; or ... (e) affect any investigation legal proceeding or remedy
in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid ..."

The first step in a consideration of s.8 is to identify the "right" which the appellant says was acquired or accrued under the repealed Act. Paragraph (e) operates in relation to such a right, not independently of it.

19. In this regard the appellant puts his case on s.49 of the 1971 Act on two footings. First, he says that he had, in the circumstances, a right to redemption of weekly payments. Alternatively, he says that he had a right to have the Tribunal determine his application to review the delegate's decision. In either event, the appellant contends, the repeal of the 1971 Act did not affect the right.

20. Although the appellant put this aspect of his case in two ways, it is fair to say that he relied much more on the second approach. As to the first approach, the question is whether, if the Commissioner was satisfied of the matters in pars (a), (b) and (c) of s.49(5), he had any residual discretion to refuse redemption or, perhaps more accurately, whether there were other factors he could properly take into account in so refusing. Could the Commissioner, for instance, determine that the liability of the Commonwealth should not be redeemed because of the budgetary circumstances of the Commonwealth? This is not an easy question to answer. Clearly, the Commissioner must act according to law. If he took into account a consideration that was irrelevant, for instance the colour of the appellant's eyes, he would not have acted according to law. In the present case the delegate wrote to the appellant a letter in which he said: "I have disallowed your claim under section 49". He added: "The reason I have made this decision is because I am not satisfied in your case that the requirements of sub-section 49(4) have been met." Unless the reference to sub-s.(4) was a mistake for sub-s.(5), the letter is a curious one. Sub-section (4) is concerned with calculation of the amount of the lump sum to be paid in redemption; it presupposes a determination under sub-s.(3) that the liability of the Commonwealth is to be redeemed. However, the balance of the letter does indicate that the delegate was referring to sub-s.(4) because he spoke of his inability to predict the level at which weekly payments of compensation would continue and that, without this information, "it is not possible to determine the value of your right to receive further payments under section 46 (sub-section 49(4))".

21. It is not profitable to explore this aspect any further. One cannot easily extract from the letter a conclusion that the delegate was satisfied of the matters in pars (a), (b) and (c) of s.49(5). And in the end it does not matter because, at the least, the appellant had, at the time of the repeal of the 1971 Act, a right to have his application to the Tribunal determined pursuant to Pt V of the 1971 Act. It may not be possible to say of a person in the position of the appellant that he had a right to a favourable determination from the Tribunal. The Tribunal was required to stand in the shoes of the decision-maker (the delegate) and arrive at its own decision (5) Drake v. Minister for Immigration (1979) 24 ALR 577, at p 589. In Drake, Bowen C.J. and Deane J. said of the Tribunal (6) ibid:
" The question for the determination of the Tribunal is
not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal." But that is not to the point here. If it be assumed that the appellant did not have a right to redemption in the sense first discussed, he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim. To borrow a sentence from the judgment of Hope J.A. in N.S.W. Aboriginal Land Council v. Minister (7) (1988) 14 NSWLR 685, at p 694:

"The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional."

Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely "a power to take advantage of an enactment" (8) Mathieson v. Burton (1971) 124 CLR 1, per Gibbs J. at p 23; and see Robertson v. City of Nunawading (1973) VR 819. Nor was it a mere matter of procedure (9) See Newell v. The King (1936) 55 CLR 707, at pp 711-712; it was a substantive right(10) See, by way of analogy, Australian Coal and Shale Employees Federation v. Aberfield Coal Mining Co. Ltd. (1942) 66 CLR 161, at pp 175, 178, 185, 194; Colonial Sugar Refinery Company v. Irving (1905) AC 369, at pp 372-373. Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, "although that right might fairly be called inchoate or contingent"(11) Free Lanka Insurance Co. Ltd. v. Ranasinghe (1964) AC 541, at p 552; see also Continental Liqueurs Pty. Ltd. v. G.F Heublein and Bro. Inc. (1960) 103 CLR 422, at pp 426-427; Director of Public Works v. Ho Po Sang (1961) AC 901. This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s.8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act.

22. We would allow the appeal with costs.

23. It would ordinarily follow that the orders made by the Full Court of the Federal Court should be set aside, save the order that the respondents (applicants to the Full Court) pay the costs of the appeal to that Court. That would leave the decision of the Tribunal undisturbed. An order in those terms may give rise to a problem because of the attack on the Tribunal's decision made by the respondents in their notice of appeal to the Federal Court as originally formulated. Because of the view taken by the majority in the Federal Court, it was not necessary for their Honours to determine the original grounds of appeal.

24. The respondents did not invite this Court to take any action in respect of the original grounds of appeal to the Federal Court. In response to a question from the bench as to the orders he was seeking, counsel for the appellant said that, in regard to weekly payments made to the appellant, which we take to be a reference to payments made under the 1988 Act:
"I have instructions to say that if that is a matter thought
in the end to be material to the ultimate result of the proceedings, we were to give an undertaking to repay those amounts". The matter was left on the basis that the parties should be given an opportunity to agree upon the consequences of the Court's decision for weekly payments made should the appeal succeed and, failing agreement, to make written submissions on the point. It seems that the matter is capable of resolution by the parties. But, in the event that resolution may not prove possible, we propose an order in the following terms:

1. Appeal allowed with costs. 2. Set aside the orders of the Full Court of the Federal Court save the order that the applicants (the present respondents) pay the costs of the appeal to that Court. 3. Dismiss the appeal to the Federal Court.
4. Liberty to apply within 14 days as to the repayment by the appellant to the respondents of amounts of weekly compensation paid to the appellant under the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth). In the event of the appellant or the respondents exercising this liberty to apply, the parties shall make written submissions as to the form of order which should be made in respect of those amounts.

The appellant was a soldier who suffered a bodily injury compensable under the provisions of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) ("the 1971 Act"). Pursuant to s.46 of the 1971 Act, he received weekly payments of compensation from November 1984 for an injury resulting in his being partially incapacitated for work. He requested pursuant to s.49(1) of the 1971 Act that the liability of the Commonwealth to make further payments under s.46 be redeemed by the payment of a lump sum. The relevant provisions of s.49 read as follows: " (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 of the employee and any other relevant matters. (5) The Commissioner shall not make a determination that the liability of the Commonwealth to make further payments to an employee under section 46 is to be redeemed unless he is satisfied that - (a) the injury is not likely to result in the employee becoming totally incapacitated for work;

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

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

On 29 October 1987, a delegate of the Commissioner for Employees' Compensation determined that the Commonwealth's liability to make weekly payments would not be redeemed.

2. On 15 September 1988 the appellant made an application pursuant to s.63(1) of the 1971 Act to the Administrative Appeals Tribunal ("the AAT") for review of the decision of the Commissioner's delegate. Section s.63(1) reads as follows:

"Where a determination by the Commissioner is made under this Act, an application may be made to the Administrative Appeals Tribunal for a review of the determination by or on behalf of a party to the determination".

The parties to the proceeding before the AAT were the appellant and the Commonwealth: ss.62(1), 63(2). The appellant's application for review was lodged outside the time for lodging applications prescribed by s.29 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), but the appellant sought an extension of time under sub-s.(7) of s.29 for the lodging of his application. The application for extension of time was granted on 28 June 1989. In the meantime the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) ("the 1988 Act") was proclaimed to commence on 1 December 1988. By s.139 of that Act the 1971 Act was repealed. Division 2 of Pt X of the 1988 Act contained a number of transitional provisions.

3. The appellant's application for review of the determination of the Commissioner's delegate was listed before the AAT for hearing on 21 May 1990. At that hearing, the AAT was asked to decide whether the review of the delegate's determination would be governed by the provisions of the 1971 Act or by the provisions of the 1988 Act. The AAT decided that the 1971 Act would be applied in the review. The significance of the decision lies in the fact that the 1988 Act denies an entitlement to redemption in the circumstances of the appellant's case. It is necessary to refer briefly to those circumstances.

4. By force of s.127(2) of the 1988 Act, the determination under s.46 of the 1971 Act that the Commonwealth was liable to pay the appellant weekly compensation for an injury resulting in partial incapacity was taken to be a determination of a "corresponding liability" under the 1988 Act. The corresponding liability under the 1988 Act is a liability of the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees to pay weekly compensation pursuant to s.19 of the 1988 Act. Immediately prior to 1 December 1988, the appellant was paid $127.45 per week pursuant to s.46 of the 1971 Act; from 1 December 1988, the appellant was paid $310.35 per week pursuant to s.19 of the 1988 Act and that rate of payment was subsequently increased. Redemption of weekly payments under the 1988 Act is provided for by s.30 of that Act:

"(1) Where:

(a) the Commission is liable to make weekly payments under section 19, 20 or 21 to an employee in respect of an injury resulting in an incapacity;

(b) the amount of those payments is $50 per week or less; and

(c) the Commission is satisfied that the degree of the employee's incapacity is unlikely to change; the Commission shall make a determination that its liability to make further payments to the employee under that section be redeemed by the payment to the employee of a lump sum.

(2) The amount of the lump sum is the amount calculated under the formula: (AW x ND) - SR x (AW x ND) 7 7

where: AW is the amount per week payable to the employee under section 19, 20 or 21, as the case may be, at the date of the determination; ND is the number of days between the date of the determination and the day on which the employee reaches 65; and SR is the specified rate applicable at the date of the determination. (3) The Minister may, from time to time, by notice in writing, specify a rate for the purposes of subsection (2)."

As the appellant was, at all material times, entitled to weekly compensation payments considerably in excess of $50 per week, he was not entitled to payment of an amount in redemption of weekly compensation pursuant to s.30 of the 1988 Act. The appellant could not and did not rely on s.30 of the 1988 Act.

5. The appellant's argument is that he acquired a vested right to a redemption payment under the 1971 Act and that the coming into force of the 1988 Act and the consequential repeal of the 1971 Act did not divest him of that right. The AAT made its determination on that footing on 20 February 1991 and determined the lump sum to be paid to the appellant to be $199,742, but the Federal Court by majority (Davies and Hill JJ., Lee J. dissenting) held that the AAT should have applied the 1988 Act in making its determination. Accordingly, the Court set aside the determination of the AAT and ordered in lieu that the appellant's application to the AAT be dismissed. The appeal to this Court turns upon the nature of the right, if any, which the appellant had when the 1988 Act came into force and the effect of the transitional provisions of that Act.

6. At common law, on the repeal of a statute by which a right or immunity is created or under which a right or immunity arises, the right or immunity ceases to exist unless the right has already accrued or the immunity has already been established or acquired. "The statements of the (common law) rule which are most commonly cited", Fullagar J. said in Ferrum Metal Exports Pty. Ltd. v. Lang(12) (1960) 105 CLR 647, at pp 655-656,

"are those which are found in Surtees v. Ellison (13) (1829) 9 B. and C.750 (109 ER 278) and in Kay v. Goodwin (14) (1830) 6 Bing 576 (130 ER 1403). In the former case Lord Tenterden C.J. said: 'It has been long established that, when an Act of Parliament is repealed, it must be considered (except as to transactions past and closed) as if it had never existed'(15) (1829) 9 B. and C., at p 752 (109 ER, at p 279). In the latter case Tindal C.J. said: 'I take the effect of repealing a statute to be, to obliterate it as completely from the records of the Parliament as if it had never been passed; and it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law'(16) (1830) 6 Bing., at pp 582-583 (130 ER, at p 1405)."

The exception to the rule that the law must be applied as if the repealed statute had never existed was confirmed by Dixon C.J. in Maxwell v. Murphy(17) (1957) 96 CLR 261, at p 267; see also Geraldton Building Co. Pty. Ltd. v. May (1977) 136 CLR 379, per Stephen J. at p 400:

"This (rule) is subject to an exception, variously expressed, as to past matters. Lord Tenterden C.J. used the expression 'transactions past and closed': Surtees v. Ellison(18) (1829) 9 B. and C., at p 752 (109 ER, at p 279). Lord Campbell C.J. said: '... all matters that have taken place under it before its repeal are valid and cannot be called in question': Reg. v. Inhabitants of Denton(19) (1852) Dears.3, at p 8 (169 ER 612, at p 614). The phrase of Blackburn J. was 'transactions already completed under it' - Butcher v. Henderson(20) (1868) LR 3 QB 335, at p 338."

7. The principles of the common law are affirmed by s.8 of the Acts Interpretation Act 1901 (Cth) which provides, in its relevant parts, as follows:

"Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not - ... (c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or

... (e) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid;

and any such investigation legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed."

To determine whether a right is "acquired (or) accrued under" a repealed Act for the purposes of par.(c) it is necessary, of course, to ascertain the nature of the right by reference to the provisions under which it is said to have been acquired or to have accrued.

8. As at 1 December 1988, the appellant had failed to lodge an application for review of the determination of the Commissioner's delegate made on 29 October 1987. Within the time prescribed pursuant to s.29 of the AAT Act, he had lost his right under the 1971 Act to a review of that decision. He had a right to seek an extension of time for lodging an application and he had exercised that right. But a right to seek an extension of time to lodge an application for review of an administrative decision is not an accrued right to that benefit which an applicant desires to obtain by a favourable review(21) J R Exports Pty. Ltd. v. Australian Trade Commission (1987) 14 FCR 161, at p 163. After 1 December 1988, the extension was granted. Assuming that, for the purposes of s.8(c) of the Acts Interpretation Act, the extension of time served to bring within time the lodging of the appellant's application for review, the appellant's right as at 1 December 1988 was no more than a right to have his application determined. So stated, the "right" falls short of an "accrued right" for the purposes of s.8(c) of the Acts Interpretation Act. The appellant had no right to a redemption payment as at 1 December 1988. A right to a redemption payment did not arise under s.49 of the 1971 Act until the Commissioner was satisfied that the conditions prescribed by pars (a), (b) and (c) of s.49(5) were fulfilled and the Commissioner determined the amount of the lump sum to be paid. If the Commissioner is not so satisfied, no right to a redemption payment could arise until, on a review, the AAT was satisfied that those conditions were fulfilled and determined the amount of the lump sum to be paid. Whether the AAT would be so satisfied was contingent, inter alia, on its formation of two value judgments: that the appellant's intended manner of using a lump sum redemption payment would be "particularly advantageous" to him (par.(b)) and that redemption would be "desirable" in his interests (par.(c)). Assuming that the appellant had duly taken all the steps required of him in order to obtain a review of the determination by the delegate of the Commissioner, the investigation or proceeding before the AAT was not an investigation or proceeding in respect of an acquired or accrued right. The observations of the Privy Council in Director of Public Works v. Ho Po Sang(22) (1961) AC 901 apply to the present case. In that case, petitions and a cross-petition had been duly lodged with the Governor of Hong Kong following a notification of intention to issue a lessee with a rebuilding certificate which, under the existing Ordinance, would have entitled him to eject sub-lessees without compensation. While the petitions and cross-petition remained undetermined, the Ordinance was repealed. The Privy Council rejected an argument by the lessee that, under s.10 of the Interpretation Ordinance (substantially in the same terms as s.8 of the Acts Interpretation Act), the lessee had "a right or a privilege, either acquired or accrued" to a consideration by the Governor of the petitions and cross-petition, saying(23) ibid., at pp 921-922; and see Robertson v. City of Nunawading (1973) VR 819, at p 825:

"On April 9 (the day of the repeal) the lessee was quite unable to know whether or not he would be given a rebuilding certificate, and until the petitions and cross-petition were taken into consideration by the Governor in Council no one could know. The question was open and unresolved. The issue rested in the future. The lessee had no more than a hope or expectation that he would be given a rebuilding certificate even though he may have had grounds for optimism as to his prospects."

Mutatis mutandis, the same may be said of the appellant's "right" to have the AAT determine his application for a redemption payment. Their Lordships proceeded(24) ibid., at p 922:

"It is to be observed that under section 10 (e) a repeal is not to affect any investigation, legal proceeding or remedy 'in respect of any such right.' The right referred to is the right mentioned in section 10 (c), i.e., a right acquired or accrued under a repealed enactment. This part of the provisions in paragraph (e) of section 10 does not and cannot operate unless there is a right as contemplated in paragraph (c). It may be, therefore, that under some repealed enactment a right has been given but that in respect of it some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given. Upon a repeal the former is preserved by the Interpretation Act. The latter is not. Their Lordships agree with the observation of Blair-Kerr J. that: 'It is one thing to invoke a law for the adjudication of rights which have already accrued prior to the repeal of that law; it is quite another matter to say that, irrespective of whether any rights exist at the date of the repeal, if any procedural step is taken prior to the repeal, then, even after the repeal the applicant is entitled to have that procedure continued in order to determine whether he shall be given a right which he did not have when the procedure was set in motion.'"

No doubt the appellant entertained some expectation that he would satisfy the AAT that the conditions prescribed by s.49(5) of the 1971 Act would be fulfilled but until he persuaded the AAT to form the value judgments required by pars (b) and (c) and otherwise to be satisfied that the relevant conditions had been fulfilled, the appellant had no more than "a hope or expectation" that he would become entitled to a redemption payment. There was no transaction "past and closed"; no transaction "already completed under (the repealed Act)". It is unnecessary to decide whether the appellant would have had an accrued right if, at 1 December 1988, the only matter awaiting determination had been the amount of the lump sum to be paid (25) Cf. Free Lanka Insurance Co. Ltd. v. Ranasinghe (1964) AC 541, at pp 552-553.

9. The appellant's application to the AAT invoked an administrative jurisdiction to review his application under s.49(1) for a redemption payment. Exercising an administrative jurisdiction, the AAT determines applications for review on a rehearing de novo, acting on the materials before it when it makes its determination(26) Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd. (1976) 135 CLR 616, at pp 620-621; Drake v. Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, at pp 589, 599; Re Costello (1979) 2 ALD 934, at pp 940, 943. Where, on a rehearing de novo, the question for decision is whether an applicant should be granted a right, the law as it then exists is applied, not the law as it existed at an earlier time(27) Harris v. Caladine (1991) 172 CLR 84, at p 125; Re Costello (1979) 2 ALD, at p 944. By contrast, in a judicial proceeding brought to enforce an alleged right accrued at the time when the proceedings were instituted, the question for decision is determined according to the law existing when the proceedings were instituted unless statute otherwise provides. Continental Liqueurs Pty. Ltd. v. G.F Heublein and Bro. Inc.(28) (1960) 103 CLR 422; on appeal (1962) 109 CLR 153 was such a case. There, Kitto J. at first instance held in reliance on s.8(c) and (e) of the Acts Interpretation Act that, in proceedings for the removal of a trade mark from the register under the Trade Marks Act 1905-1948 (Cth), the applicant's right to have the mark removed under that Act survived its repeal by the Trade Marks Act 1955 (Cth). His Honour said(29) (1960) 103 CLR, at p 427:

"The filing of the notice of motion in the present case was an act done by an individual towards availing himself of the right to have an order made for the removal of the mark from the register: cf. In re A Debtor; Ex parte Debtor(30) (1936) Ch 237, at p 243. There is nothing in the 1955 Act to displace the general rule of the common law which the Acts Interpretation Act reinforces, namely that, in general, when the law is altered during the pendency of an action the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights".

On appeal, the Full Court found that the survival of the accrued right on which the applicant for removal relied - "a right for an order that the trade mark should be removed from that register"(31) (1962) 109 CLR, at p 160 - was inconsistent with the provisions of the repealing Act, but nothing that was said by the Full Court threw doubt on the general rule applicable to judicial proceedings to enforce a right that had accrued when the proceedings were commenced.

10. The distinction between a judicial proceeding to enforce an accrued right and an administrative proceeding to determine whether a right should be granted is critical in this case. Clearly the appellant had no accrued right on 1 December 1988 to a redemption payment; the very purpose of the review by the AAT which the appellant applied for was to obtain a right to a redemption payment. As the AAT was bound to apply the law as it was at the time of the rehearing, it was bound to refuse the application.

11. That was the only course open to the AAT consistent with the provisions of the 1988 Act. Section 127(2) and (3) of the 1988 Act provide as follows:

"(2) Any determination made or action taken by the Commissioner for Employees' Compensation under the 1930 Act or the 1971 Act and having effect immediately before the commencing day, being a determination or action in respect of the liability of the Commonwealth to pay compensation or make any other payment to a person under the 1930 Act or the 1971 Act, as the case may be, shall be taken to be a determination made by the relevant authority under this Act in respect of the corresponding liability of that relevant authority to pay compensation or make a similar payment under this Act to that person. (3) Where a determination or action referred to in subsection (2) is, or has been, varied by a court or a tribunal, subsection (2) has effect in relation to that determination or action as so varied."

I interpret sub-s.(3) to equate determinations made by a court or tribunal to determinations made by the Commissioner for the purposes of sub-s.(2) and thus to apply to determinations made prior to 1 December 1988. As there was no determination by the AAT prior to 1 December 1988 varying the determination of the delegate of the Commissioner that the liability of the Commonwealth would not be redeemed, the delegate's determination had to be taken as the determination in respect of the corresponding liability under the 1988 Act. Subject to possible review, the appellant's application for a redemption payment had been resolved against him for the purposes of the 1988 Act. However, by s.129(2) of the 1988 Act the appellant was given a right to continue with his pending application to the AAT for review:

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

Section 129(2) preserves existing proceedings, whether before a court or before a tribunal, but it does not prescribe the law to be applied in those proceedings. Section 129(2) applied to the proceedings commenced by the appellant's application to the AAT for an extension of time for lodging his application for review of the delegate's determination and his substantive application for review of that determination. Those proceedings were thus "continued" after 1 December 1988, but s.129(2) does not, either expressly or by implication, provide that the determination on review had to be made on the footing that the 1971 Act had not been repealed.

12. If it were thought that s.129(2) directed that an AAT review after 1 December 1988 be conducted under the 1971 Act, what decision could the AAT have made? If it were to determine under s.49 of the 1971 Act that the liability of the Commonwealth to make weekly payments to the appellant under s.46 of that Act were to be redeemed, the AAT would have to determine, pursuant to sub-ss.3(b) and (4) of s.49, the value, presumably as at the date of the AAT determination, of the appellant's right to receive further payments under s.46. As at that date, the appellant had no right under s.46 to receive further payments and, if it were permissible to treat his enhanced entitlement under s.19 of the 1988 Act as if it were a "right ... to receive further payments ... under s.46" of the 1971 Act(32) s.49, 1971 Act, s.30(1)(b) of the 1988 Act precluded redemption of that entitlement. If the value of the appellant's right to receive further payments under s.46 of the 1971 Act were to be determined as at the date of the determination under review (that is, the determination of the Commissioner's delegate on 29 October 1987(33) The date on which the AAT determination would have effect in the absence of a contrary order: AAT Act, s.43(6).), the amount of the lump sum that would be fixed pursuant to sub-s.(4) of s.49 would not take account of the weekly payments that the appellant had in fact received under s.46 of the 1971 Act and s.19 of the 1988 Act in the period between the delegate's determination and the AAT determination. That would be inconsistent with the plain intention of s.125(2) of the 1988 Act which attributes to a redemption payment made under the 1971 Act the effect of a redemption under s.30 of the 1988 Act of the "corresponding liability" (i.e., liability for weekly payments).

13. In the event, the AAT decided that the review should be conducted under the 1971 Act and, by its determination of 20 February 1991, determined the amount of a lump sum payable as a redemption payment as at that date. Taking into account the amount of weekly compensation last prescribed pursuant to s.46(2)(1)(i) of the 1971 Act before that Act was repealed, the AAT determined the lump sum by multiplying an amount which it considered to be the appellant's "base weekly rate of loss" by a factor actuarially calculated on whole-of-life tables for a person of the appellant's age. That calculation yielded the lump sum of $199,742. The AAT said that "no deductions (should be made) from this sum in respect of weekly payments of compensation paid to the applicant in the past or up until this lump sum is paid to him". This determination did not accord with s.49(4) of the 1971 Act: as at the date of the determination, the amount fixed as a lump sum did not reflect the value at that date of the actual liability of the relevant authority to make future weekly payments (by that date, the amount of weekly payments had increased), nor did it reflect the value of the right to receive further compensation under s.46 of the 1971 Act (that right having been extinguished and a corresponding right having taken its place). Nor did the result accord with the 1988 Act: apart from the bar on redemption effected by s.30(1)(b) of the 1988 Act, the amount fixed as a lump sum was not calculated in accordance with the formula in s.30(2) of the 1988 Act. None of the factors represented by the letters "AW", "ND" or "SR" in that formula was employed.

14. The flaw in the determination of the AAT flows from its failure to perceive that the transitional provisions of the 1988 Act provide for a new set of liabilities to be discharged by a "relevant authority" under that Act in place of the old liabilities that the Commissioner for Employees' Compensation was required to discharge under the 1971 Act (though s.124 of the 1988 Act excludes from the benefits of the 1988 Act cases in which the injury, loss or damage occurred while the 1971 Act was in force but which were not compensable under the 1971 Act). The transitional provisions of the 1988 Act expressly provide for the effect to be given under that Act to applications, determinations and payments made under the 1971 Act. It is impossible to impose on the corporation of the Commissioner under the 1971 Act liabilities that the 1988 Act imposes on a relevant authority under that Act, and it is equally impossible to impose on the relevant authority under that Act liabilities which were imposed on the corporation of the Commissioner under the 1971 Act except to the extent and upon the conditions stated in the 1988 Act. The legislative intention manifested by the 1988 Act is that the regime of rights and liabilities under the 1971 Act - relating to eligibility, quantum, party liable, redemption and review - should be swept away and a new regime - relating to the same matters - should take its place. Applicants and beneficiaries under the 1971 Act were protected by the transitional provisions of the 1988 Act but only by those provisions. As those provisions are definitive of the appellant's rights, the repealing Act in this case, like the repealing Act in the case of G.F Heublein and Bro. Inc. v. Continental Liqueurs Pty. Ltd.(34) (1962) 109 CLR 153, excludes application of s.8 of the Acts Interpretation Act.

15. The appellant in this Court expressed a willingness to repay the amounts of weekly compensation that he has received under s.19 of the 1988 Act if repayment is "thought in the end to be material to the ultimate result". In my respectful opinion, if repayment of weekly payments under s.19 of the 1988 Act were material to the result, that fact would demonstrate that the appellant could not have had an accrued legal right to a lump sum as at 1 December 1988. If he had had such a right under the 1971 Act, his entitlement to that right could not have been conditional on repayment of moneys received as an entitlement under the 1988 Act which came into force only when the 1971 Act was repealed. He would be entitled both to his accrued right under the 1971 Act and to his new statutory entitlement under the 1988 Act. Clearly that was not the intention of the legislature. At most he was entitled to a lump sum in redemption of his entitlement under s.46 of the 1971 Act and to such benefits as were conferred on him by the 1988 Act. But the entitlements under s.46 of the 1971 Act were fully paid out and the 1988 Act denied him a right to lump sum redemption.

16. The approach of the AAT accorded the appellant the benefits to which he was entitled by way of weekly compensation under s.19 of the 1988 Act until payment of the lump sum but also accorded him a lump sum in redemption of entitlements under s.46 of the 1971 Act on the footing that those entitlements continued for the rest of the appellant's life. Apart from the incongruity between the determination made and particular statutory provisions, there was a fundamental inconsistency between a determination of a lump sum amount calculated as at a date after the 1971 Act was repealed but in purported conformity with the 1971 Act and the notion that, as at the date of the repeal, there was already an accrued right to that lump sum.

17. The Federal Court was right to set aside the AAT decision. In my opinion, the appeal should be dismissed.

Orders

Appeal allowed with costs.

Set aside the orders of the Full Court of the Federal Court save the order that the applicants (the present respondents) pay costs of the appeal to that Court and in lieu thereof order that the appeal to that Court be dismissed.

Liberty reserved to the parties to apply within fourteen days as to the repayment by the appellant to the respondents of amounts of weekly compensation paid to the appellant under the Commonwealth Employees' Rehabilitation and Compensation 'act 1988 (Cth). In the event that the appellant or the respondents exercise this liberty to apply, the parties shall make written submissions as to the form of order which should be made in respect of those amounts.