Esber v The Commonwealth of Australia

[1991] HCATrans 321

IN THE HIGH COURT OF AUSTRALIA .

Office of the Registry

Brisbane No B21 of 1991

B e t w e e n -

FARAGE ESBER

Appellant

and

THE COMMONWEALTH OF AUSTRALIA

First Respondent

THE COMMISSION FOR THE
SAFETY, REHABILITATION AND
COMPENSATION OF COMMONWEALTH

EMPLOYEES

Second Respondent

MASON CJ
BRENNAN J

DEANE J

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 12 NOVEMBER 1991, AT 10.17 AM

Copyright in the High Court of Australia

Esber(2) 1 12/11/91

MR D.F. JACKSON, QC:  May it please the Court, I appear with

my learned friend, MR J.A. LOGAN, for the

appellant. (instructed by Taylors)

MR G.J. GIBSON, QC:  May it please the Court, I appear for

the respondents, with my learned friend,
MS. M.A. WILSON, of counsel. (instructed by the

Australian Government Solicitor)

MASON CJ: Yes. Yes, Mr Jackson.

MR JACKSON:  Your Honours, may I hand to the Court copies of our outline of submissions?

MASON CJ: Thank you.

MR JACKSON:  Your Honours, the question at issue in the

appeal is the effect of the repeal of one employees

compensation Act by another, the redemption

provisions, if I could describe them shortly, of

the repealed Act, being the part presently

material. Your Honours, the repealed Act is a 1971

Act, the Compensation (Commonwealth Government

Employees) Act 1971. The repealing Act is a 1988

Act, the Commonwealth Employees' Rehabilitation and

Compensation Act 1988.

The resolution of the issue, Your Honours, as

is apparent from our outline of submissions, turns

in the end on the operation to be attributed to two

provisions, one being a provision of the repealing

Act, namely section 129(2), the other being

section 8 of the Acts Interpretation Act 1901.

Your Honours, I said that the resolution of the matter turned in the end on those provisions,

and before I get to them, I need to go to the

relevant substantive provisions of the two

enactments to make the critical provisions rather

more intelligible. Your Honours, may I go first to	the 1971 Act. Could I say that I am not a hundred	per cent certain of the form in which Your Honours
have the document. I am able to provide
Your Honours with - I am afraid I think it is two
documents which put together the various
provisions, but could I ask Your Honours what - - -

MASON CJ:  The one I have, Mr Jackson, is one incorporating

all amendments by legislation made

31 December 1979, and I gather that is the copy

that other members of the Court have.

MR JACKSON:  Your Honour, I think that should cover the

situation. May I at some point give to

Your Honours copies of the relevant provisions

Esber(2) 2 12/11/91

which are extracted and which are up to date at the

time of the amending Act.

MASON CJ: Yes.

MR JACKSON:  Your Honours, the 1971 Act provides in

section 46(1) that where an employee is rendered by

injury partially incapacitated for work, the

succeeding provisions of that section have effect.

Your Honours will see that those provisions include subsection (2) which provides for weekly

payments to be made, and the weekly payments are to be of amounts calculated in the manner provided for by subsection (2).

Your Honours, the application of those provisions to the appellant may be summarized very

shortly. He was a young soldier who was injured

whilst he was participating in what was described

as compulsory sport. That appears at page 26

line 16 through to page 27 line 28. The injury

resulted in his discharge from the Army in

November 1984, and as appears at page 28 line 12 he

was paid compensation between injury and the

discharge.

Now, Your Honours, the entitlement to such compensation was, as I submitted a moment ago,

pursuant to section 46(1) of the 1971 Act, and the

1971 Act provided that such a right might be the

subject of an application for redemption under
section 49. Could I take Your Honours now to
section 49, which is is the provision of that Act

which dealt with applications for redemption.

Now, Your Honours, I see from a copy I have

that section 49(1) was amended in 1985.

Your Honours, it is perhaps convenient that I do

give to the Court copies of the amended extracts.

MASON CJ: Yes.

MR JACKSON: But, Your Honours, whilst those are being

obtained, perhaps I might go on to say this: that

section 49(1) entitles an employee, whose weekly

compensation has been paid for more than six

months, to request the Commissioner to redeem the

Commonwealth's liability to make further periodical

payments.

Your Honours, I wonder if I could hand to the

Court - perhaps I could do it in two stages. The

first is a copy of a document, a small book, which

puts together most of the provisions to which I

will be referring in all the enactments. Since

that document was prepared it has become apparent

Esber(2) 12/11/91

that there may be some other provisions which are

material not included there, and may I give to Your

Honours copies of further extracts from the

enactments, the enactments being clearly enough

identified from the first page of each. I am

sorry, Your Honours, to make it somewhat messy.

Section 49 will be found, Your Honours, in the

booklet with plastic covering, the page number at
the bottom of the page, page 9.

BRENNAN J: What section are we looking at?

MR JACKSON: Section 49(1), Your Honour.

MASON CJ: It is not on page 9.

GAUDRON J: Page 7.

MR JACKSON:  Mine is page 9, Your Honour.

MASON CJ: It is page 7 in my book.

MR JACKSON:	I am sorry, we are not quite ad idem, but may I go to the provision. Section 49(1), Your Honours
will see, provides that:

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.

Your Honours, that is an entitlement to make

that request. The succeeding provisions of section

49 prescribe the manner in which such a request

must be dealt with. Could I go first to subsection

(2). It deals with two matters, first the form of

the application, that is, the application must be

in writing; secondly, it requires that the

application state the manner in which the lump sum

will be used if redemption is permitted.

Your Honours, going then to subsection (3), it

imposes an obligation on the Commissioner to do two

things. The Commissioner, Your Honours, is the

Commissioner for Employees Compensation. The first

is to make the determination that redemption may

take place. The second is to determine the quantum

of the sum which is to be the sum which is the

redemption sum.	I will pass over subsection (4)
for the moment.

Esber(2) 4 12/11/91

The criteria to be applied by the Commissioner

in determining whether there should be a redemption

are specified in subsection (5), and may I take

Your Honours to that. Subsection (5) is expressed

in this way, that he shall not make a determination that the liability appears to be redeemed unless he is satisfied first, that the injuries - and I shall

not read them out - but may I take Your Honours to

the three criteria there specified.

Your Honours will see, in relation to

paragraph (b) that it takes one back to the second
part of section 49(2) and that is that the

applicant had to tell the Commissioner in writing

how he intended to use the lump sum if the request

were granted.

Your Honours, the quantum of the sum is to be

calculated in the manner set out in subsection (4),

and may I take Your Honours to that, is:

to be the value, as at the date of the

determination by the Commissioner ..... 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.

Now, Your Honours, could I pause at that point to

say one thing about the function of the

Commissioner under that provision, that is, that

the Commissioner is not given, in our submission,

by the provision any kind of overriding discretion.

He cannot say, for example, that "The Commonwealth

is short of money at the moment so we won't allow more redemptions this year, you have to wait till

next year". What we would submit is that, under

section 49, he does not have an overriding

discretion capable of being exercised other than by

a reference to the criteria specified in section 49

to determine whether the employee's right to weekly

payments should or should not be redeemed.

TOOHEY J:  Does it follow, Mr Jackson, that if the

Commissioner is satisfied of the matters referred

to in paragraphs (a), (b) and (c) that he is

obliged then to redeem?

MR JACKSON:  In our submission, yes, Your Honour.

Your Honours, if I could put it perhaps a little

more broadly, but put it in this way, in our

submission, the Commissioner could not determine

not to permit redemption if he is satisfied of the

matters specified in subsection (5) and the request

Esber(2) 12/11/91

for a redemption is a request to have him act

according to law, it is not a request for an act of

grace.

Your Honours, the decision of the Commissioner

that there should not be or should - perhaps I

should put it that way - be redemption may be

reviewed. The review occurs pursuant to Part V of

the 1971 Act and the review is by the

Administrative Appeals Tribunal. In that regard,

could I take Your Honours to section 63 of the

1971 Act which is, I think, Your Honours, in the

copy which is the loose pages headed "The

1971 Act", and it is at the page which at the top

right corner is numbered 82.

GAUDRON J: Might it be in the book?

MR JACKSON:  Your Honour, I am sorry. I have seen two

books. It is in one, it is not in the other.

GAUDRON J:  It seems to be the following page in the book.

MR JACKSON:  Your Honour, my confidence is shattered. It is

not in the copy that I have. Your Honours, in the

copy of the book that it is in, it is the page

numbered 9, and what Your Honours will see is that

section 63(1) provided that:

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.

Your Honours, section 62(1) deals with parties to the determination and it says, first, that:

a reference to a party to a determination

shall be read as a reference to the

Commonwealth or to the claimant -

and then subsection (2) speaks specifically of

redemption cases because it - Your Honours will see

the reference to section 49, and it says -

This Part has effect in relation to a

determination made in respect of a request

under section 49 as if the person who made the

request were a claimant and the request were a
claim.

So that the position is that the injured person, the person entitled to the compensation, and the

Commonwealth, are the claimants, depending on which

party seeks the review of the Commissioner's

determination.

Esber(2) 6 12/11/91

Now, Your Honours, in the present case the

Commissioner's determination was that the request

should be refused. That appears at page 5,

paragraph 5. It appears, Your Honours, in

paragraph 5 of what are the reasons for interim

decision by the Administrative Appeals Tribunal. I

will come back to the form of the decisions of that

tribunal in just a moment.

Your Honours, the determination by the

Commissioner for Employees Compensation, as appears from that paragraph on page 5, was made on

29 October 1987. That was before the new Act came

into force. And on 15 September 1988, again before

the new Act came into force, the applicant applied
to the Administrative Appeals Tribunal for review

of that decision. That appears, again, on page 5,

and this time in paragraph 6.

Now, Your Honours, although the application to

the Administrative Appeals Tribunal was made before
the new Act came into force, the Act came into

operation before the application to that tribunal

was dealt with by it. The new Act came into force

on 1 December 1988.

Your Honours, I will come to the terms of the

1988 Act in just a moment, if I may, but before

doing that, may I just indicate the way in which

the case was dealt with in the Administrative

Appeals Tribunal.

As Your Honours will see from page 4 from the

heading in the middle of the page, the reasons

was a decision which dealt with the

there set out are described as being Reasons for decision

question presently before the Court, namely whether

the coming into operation of the 1988 Act prevented
the tribunal from proceeding to determine the

matter on the basis that the old Act continued to

apply.

If Your Honours go to page 23, paragraph 46,

the decision of the tribunal was in favour of the

appellant. Your Honours, the tribunal then

proceeded to a second consideration of the matter,

namely on the substance of the application for
redemption. In its second decision, it held first

that there was an entitlement to redemption, and

secondly that the redemption figure should be

$199,742. That appears, Your Honours, at page 54,

paragraph 65 - perhaps I should say the part of
paragraph 65 immediately before paragraph 66, the

last paragraph of paragraph 65.

Esber(2) 7 12/11/91

Your Honours, as we set out in our submissions, the appellant's reason for	outline of
wishing to
have a redemption was to set himself up	in a taxi
business. That appears, Your Honours,	at page 39,
paragraphs 32 to 34.
Your Honours, could I come now to the relevant provisions of the 1988 Act.	May I make a general

observation concerning the Act before moving to the

particular provisions which are material.

The general observation is that the

terminology of the 1988 Act, including the
terminology of the transitional provisions, is a

little complicated by the fact that the 1988 Act

allowed the Commonwealth's functions under it, and

I use the Commonwealth in the broadest sense, to be

divided amongst a number of authorities.

Now, Your Honours, before the new Act came

into force there was the Commissioner for employees

compensation who was the person to whom claims, in

effect, were directed. The functions formerly held

by the Commissioner under the 1971 Act were changed

and in terms of statutory drafting divided, and the

effect of the division was that some Commonwealth authorities in their own right, as it were, might

themselves administer the 1988 Act in respect of

their own employees, and they were described under

the 1988 Act as administering authorities - I will

come to the definition of that in just a moment -

and they, together with the Commission established

under the Act in respect of other Commonwealth

employees, were the relevant authorities for the

purposes of the Act.

Now, Your Honours, I am sorry to have made

that seem unduly complicated, all I am seeking to

say is this: that one sees the term "relevant

authority" in the Act, whereas under the previous

Act one could simply treat the Commonwealth as the

relevant term. Under the new Act it says "relevant

authority" and many of the transitional provisions

deal with the fact that there are now relevant

authorities as well as the Commonwealth.

Your Honours, could I come then to the

Commission itself. The Commission is established

by section 68 of the 1988 Act, and Your Honours

will see that in the loose parts of the 1988 Act.

Could I inquire if Your Honours have the pamphlet copy of the 1988 Act?

MASON CJ: Yes.

MR JACKSON:  Thank you, Your Honours. If I could just go

then to section 68 of the 1988 Act, Your Honours

Esber(2) 12/11/91

will see that that establishes the Commission, and

the Commission is liable to pay compensation, that

appears from section 14(1) at page 19. The quantum

of weekly compensation is calculated in accordance

with sections 19(2) and 19(3), and the Act makes

provision for redemption in section 30.

Now, Your Honours, if I could go to

provision for redemption which may be noted.	section 30(1). There are several features of the referred to in section 30(1) are satisfied the Commission is obliged to make the "determination" there referred to. Your Honours will see the
words:

shall make a determination.

The second is, that the amount of the weekly

compensation payable, which can give rise to a

right to redeem, must be less than $50. That

appears, Your Honours, from section 30(l)(b).

Now, the amount of compensation being paid to

the appellant was in excess of that sum. That

appears, Your Honours - I do not think I need to go

to the paragraph but may I give it to Your Honours:

page 45, paragraph 53 - and he would thus not be

entitled to redeem if his application were made

under section 30 of the 1988 Act.

Your Honours, the third feature of section 30

which is material is that the quantum of the lump
sum is fixed by the application of the formula

referred to in section 30(2). One of the elements

of the formula is an element described as SR,

specified rate; that is something determined in

accordance with subsection (3).

Now, Your Honours, the 1988 Act contains a number of transitional provisions dealing with

persons whose entitlement to compensation derived

from the 1971 Act and also from enactments which

predated the 1971 Act. The first provision that is

material is section 137(1), at page 90, and it is a

provision which gives a right of redemption in cases where there was an entitlement to weekly

compensation under the 1971 Act, and it once again

uses the $50 per week limit. It applies to a

person who has not, at the time when the 1988 Act

comes into force, made an application, and it would

deal with the position of a person in the position

of the appellant if he were, after the 1988 Act

came into being, then to make an application for

redemption.

BRENNAN J: What section is that, Mr Jackson?

Esber(2) 9 12/11/91

MR JACKSON: Section 137, page 90, Your Honour, of the

pamphlet copy.

BRENNAN J: Yes.

TOOHEY J: What does that do, Mr Jackson, that section 30

itself would not have done, in respect of those

former employees?

MR JACKSON:  Your Honour, it perhaps does not do very much.

It may be simply declamatory, in a sense, and I

suppose in a sense declaratory. But the formula,

Your Honour - I have not attempted to work it out.

I am not sure if it is exactly the same as the previous one. Apart from a possible difference in

money terms, and perhaps I could check on that,

Your Honour - - -

TOOHEY J:  I was really thinking of something slightly

different. In the case of an employee whose injury

had occurred before the 1988 Act and was being paid

weekly payments, the obligation to make weekly

payments continues under the 1988 Act.

MR JACKSON:	Yes.
TOOHEY J:	Why then does section 30 itself not operate on

the situation of that employee?

MR JACKSON:	Your Honour, it is difficult to find an answer which really contradicts what Your Honour puts to
me.  What may well have been thought, Your Honour,
is that if one leaves aside the question of any
potential difference in the number of dollars, that
what it was seeking to do was to make it clear,
because one is talking about - this is a part of
the Act dealing with transitional provisions.
Perhaps it was simply seeking to make clear what
the position was of persons who had no subsisting
application.  Your Honour, I do not know that I can

answer it better than that.

TOOHEY J: Could I just ask you this also, Mr Jackson. What

is the philosophy underlying the introduction of

the $50 cut-off point?

MR JACKSON:  Your Honour, it perhaps has two broad

underlying bases. One is this - and I will need to

take a moment to say it - that there tends to be,

with workers compensation and similar enactments, a broad difference of view, a difference of political

philosophies, as it were, on the question of the

desirability of making available to persons injured

and who have a permanent partial incapacity lump

sums of money which may of course be dissipated and

not be available for them in the future in terms of

being able to provide them with some money.

Esber(2) 10 12/11/91

So that it perhaps reflects, Your Honour, a

particular view taken of that and saying that if

the disability is sufficiently small for the

compensation to be no more than $50 a week, then

there is no great perceived harm in allowing

redemption of that. But the view is taken that it

is better to let redemption take place in those

cases but not in more serious ones. Your Honours,

that is a matter on which political views may well

change from time to time. That is the first thing.

The second feature of course may well be a

question of funding, because if one looks at, to

take the example of a case such as the present, and

if one took every five people in the position of

the appellant, it would cost in effect $1 million
up front, if I could use that expression. It might

be thought better for the potential liability for

such large payments not to exist.

Your Honours, referring to section 137(1),

Your Honours will see the definition of "former

employee" used in that provision is in section 123.
Could I mention two further features of section 137

before moving on. The first is that it only comes

into operation upon the making of a written request

for redemption. It is not dealing with a case

where such a request had been made at the time when

the Act came into force.

The second feature of it is that like section 30, there is no discretion to refuse the

request. Your Honours, the provisions to which I

have so far referred of the 1988 Act - - -

MASON CJ: There is another difference, is there not,

although it may not be material? There is no

requirement that the Commissioner be satisfied of

the requirement in section 30(l)(c). That is in

the case of section 137.

MR JACKSON:  Yes, Your Honour. Thank you, Your Honour.

DEANE J: And there is another difference in that the two

formulas are quite different.

MR JACKSON:	Yes.
DEANE J:	One is based on life expectancy, the other is

based on 65 years.

MR JACKSON:  Yes. Your Honour, I must say I have not worked

out the particular difference in that regard, but
could I just say that the provisions to which I

have referred, section 130 and section 137, do not

deal with the case of a person who had applied for

redemption before the 1988 Act came into force.

Esber(2) 11 12/11/91

But, Your Honours, the position of those persons

was dealt with by a number of provisions.

Your Honours, I will come to the provisions

shortly, but in order to make them intelligible, or

perhaps more intelligible, I need to go to the

concept of "relevant authority" introduced by the

1988 Act, and may I take a moment to do that.

Your Honours, the term "relevant authority" is

defined by section 4(1) - that is at page 6. It

means:

in relation to an employee who is employed by

an administering authority - that

administering authority -

otherwise:

the Commission.

Your Honours, the definition of "relevant authority" speaks of employees. That term is itself defined by section 5 very widely - that is

at page 9, and, Your Honours, I do not need to go

into the detail of it, but if I could go back to

the definition of "relevant authority", its effect
is that the relevant authority in relation to an

employee is the Commission unless the employee is employed by an administering authority. The term

"administering authority" is itself defined by

section 4(1) towards the top of page 2. It means:

a Commonwealth authority declared by the

Minister under section 101 to be an

administering authority.

And, if Your Honours go to section 101, at page 71,

it will be seen that it empowers the Minister to:

declare a Commonwealth authority ..... to be an

administering authority.

Commonwealth authority - and, Your Honours, I

should have taken Your Honours to it while I was at

section 4(1) - is at the bottom of page 2 and at

the top of page 3, and it refers to bodies

corporate incorporated under laws of the

Commonwealth and laws of territories other than the

Northern Territory.

Your Honours, if the Minister, under

section 101(1), declares a Commonwealth authority
to be an administering authority, the administering

authority becomes a relevant authority and the

functions of an administering authority in relation

to its employees mirror those of the Commission.

That appears from section 102.

Esber(2) 12 12/11/91

Your Honours, if one goes back to

section 101(2), one sees what happens as between

the Commission and the administering authority on
the administering authority acquiring that status,
and the purpose of my taking Your Honours to these

provisions is because the way in which the

responsibilities are allocated under section 101(2)

in that event rather mirror what occurs in the

transitional provisions in the transition from the

Commonwealth, or the Commissioner, to relevant

authorities.

Without reading out the provisions, could I

ask Your Honours to look at the various

subparagraphs of section 101(2). Your Honours will

see that under paragraph (a), liabilities of the

Commission become liabilities of the relevant authority. Under paragraph (b), claims made upon

the Commission are taken to have been made upon the

authority. Under paragraph (c), determinations

made by the Commission are taken to have been made

by the authority, and under paragraph (d), if I

could take Your Honours to that, proceedings in

being, including proceedings in the Administrative

Appeals Tribunal, are continued although the

parties change. I say the proceedings,

Your Honours, in the Administrative Appeals

Tribunal are included. That comes about from the

words in brackets:

(including proceedings under Part VI) -

so Your Honours will see the use of the expression

continued that there appears.

Could I go then, Your Honours, to the

transitional provisions which are material for

present purposes. They appear - - -

BRENNAN J:  Mr Jackson, what is the significance of the sections that we have just been taken to?

MR JACKSON:  I am sorry, Your Honour. I was going to them

in order to indicate a number of provisions which use language which parallels to the provisions to

which I am about to refer. The reason why I have

done that is because, if one comes to the provision

which is the critical provision ultimately, it uses

language similar to that of section 101(2)(d) and

it is clear enough from section 101(2)(d) that it

is referring to a continuation not merely of a form

of proceedings but also to the substance of the

proceedings before the change from one body to

another. The point I am seeking to make, Your

Honours, is simply that when one sees similar

Esber(2) 13 12/11/91

language in section 129(2) it is, in effect, a

drafting provision, a drafting device used.

Your Honours, could I go to the transitional

provisions which appear in Part X of the Act

commencing at page 82. The general proposition is

dealt with by section 124(1), which says that: this Act applies in relation to an injury,

loss or damage suffered by an employee,

whether before or after the commencing day.

But it goes on to say, in subsection (2), that the injury must have been one compensable, in effect,

under the earlier Act - that is 124(2)(c) - and

Your Honours will also see that the general

proposition in section 124(1) is qualified by the

words, "Subject to this Part".
Your Honours, sections 125 and following deal

with a number of topics. Section 125, at page 86,
deals with the case of payments made before the

1988 Act comes into force - that is in

subsection (1) - and subsection (2) deals with the
case of payments made before the Act comes into

force by way of payments for redemption.

Your Honours will see that, in that case, it treats

them as payments made in respect of the relevant

authority's, what it describes as "corresponding

liability".

Your Honours, the correspondence there spoken

about is conceptual rather than exact. What I mean

by that is that when section 125(2) speaks of the

payment made:

as a redemption of a liability -

under the prior Act as having -

effect as a redemption under section 30 of the

corresponding liability -

Your Honours, if the person in respect of whom the

redemption payment was made had been in receipt of

a sum in excess of $50 a week, then the operation

of subsection (2), at least as we would submit, is that there is no new entitlement to redeem brought

about by the coming into effect of the new Act.

What there is is a position where the payment made

for redemption is treated also as having redeemed

what otherwise would be a corresponding liability,

that is, a potential liability otherwise to redeem

under the Act, because it could be, Your Honours,

that there had been a reduction in the incapacity

which would otherwise bring someone under the $50.

Esber(2) 14 12/11/91

Your Honours, the effect of treating the

redemption under the 1971 Act as if it were a
redemption under section 30 of the 1988 Act - and I

am still referring to section 125(2) - is that

provisions such as section 31 thereafter apply.

May I take Your Honours to that in just a moment?

Section 31, at page 34, speaks of the case,

and this is 31(1)(a) where the injury, in effect,

becomes worse, and disables the employee from

engaging in suitable employment, then

notwithstanding the payment of a redemption sum the

Commission becomes liable to pay compensation.

Your Honours, from section 125 one goes to section 126, the effect of which, in short, is that

it makes notices and claims which had been given

under the 1971 Act, or earlier enactments, treats

them as being notices and claims which had been

given under the 1988 Act and given to whichever

authority was the relevant authority. Could I

refer Your Honours to section 126(l)(c), to

section 126(2), and Your Honours will see

particularly in section 126(2) that a claim for

compensation duly made before the commencing day

under the 1971 Act is to be taken to be a claim for

compensation duly made to the relevant authority

under that Act. I shall not go through the

succeeding provisions of section 126, but they are

to the same effect.

BRENNAN J:  Does 126(2) in its reference to a claim for

compensation comprehend a claim for the redemption

of compensation?

MR JACKSON: Your Honour, the answer is, I think, no. It

simply talks about a claim for compensation.

Redemption payment is dealt with separately, and in

particular under section 129.

Could I go then to section 127. It contains

three provisions: the first in subsection (1)

deals with the position in relation to the 1912

Act, and perhaps I could pass that over,

Your Honours. Section 127(2) and section 127(3)

are, however, germane. Section 127(2) deals with

determinations of the Commission made under the

1971 Act, and Your Honours will see that it speaks

of any determination made by the Commissioner under

the 1971 Act and, Your Honours, it used the words: and having effect immediately before the

commencing day -

and it goes on to say -

Esber(2) 15 12/11/91

and it goes on to say -

being a determination or action in respect of

the liability of the Commonwealth to pay

compensation or make any other payment -

which would include a liability to make a payment

by way of redemption -

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.

Your Honours, as far as section 127(2) is

concerned, if I could stay with subsection (2) just

for the moment, it seems apparent enough, in our

submission, that what it does, perhaps amongst

other things, is to treat a determination made by

the Commissioner prior to the coming into effect of the new Act, as being in respect of, for example, a determination for redemption as being a

determination made in respect of not merely the

liability to redeem under the earlier Act but also

as decisive of the liability to redeem under the

present Act.

BRENNAN J:  So put, that suggestion that there are two

cumulative rights to redemption,it assumes that

there are two cumulative rights to redemption.

MR JACKSON: That there may be, Your Honour. If one took,

for example, the case where a person was in receipt
of less than $50 under both Acts, then the
determination that there should be a redemption,

for example, under the earlier Act would mean that

there was no right to claim compensation or a

redemption under the new Act, because the nature of redemption, if one looks at section 49, was that it

redeemed the liability to make payments.

So that what subsection (2) is saying is that

if there was a determination for redemption under

the previous Act, then you cannot seek redemption

under this Act. It may be of course that because

of the $50 limitation, under the new Act there

would be relatively few cases, I suppose, to which

it has potential application, but I simply refer

Your Honours to that.

I refer Your Honours to it really by way of introduction to subsection (3), because

Your Honours will see from subsection (3) that it

speaks specifically of the circumstance:

Esber(2) 16 12/11/91

Where a determination or action referred to in subsection (2) -

and Your Honours will see it speaks both

prospectively and retrospectively -

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.
Your Honours, I do not want to seek to make a

very large brick out of the provision, but the

point I do seek to make about it is that what it

contemplates, when read with subsection (2), is

that a determination of a tribunal made after the

coming into effect of the 1988 Act may yet be

treated as a determination which, if one goes back
then to subsection (2), is to be treated as having

effect immediately before the commencing day. In

other words, Your Honours, it contemplates that

there may be cases in which, notwithstanding the

coming into effect of the 1988 Act, there may be a

determination of a tribunal in respect of rights

under the 1971 Act.

Your Honours, could I go then from that to section 128. What section 128 does, in our

submission, is to identify as between the

Commonwealth and the relevant authority by whom any

undischarged liability under the 1971 Act is to be

borne. From section 128, one goes to section 129.

Section 129 contains two provisions.

Section 129(1) deals with the situation of a person

who was entitled to apply to the Administrative

Appeals Tribunal on the commencing day but who had not done so.

It says that Part VI of that Act, which is the

provision which deals with appeals to the
Administrative Appeals Tribunal, applies as if the

claimant were making a claim under the Act, and

then it provides the time in paragraph (b) within

which such a claim may be made, that is the time

after the new Act comes into force. It is

subsection (2) which deals with cases of this kind.

What it says is that:

Where the Commonwealth is a party to any

proceedings relating to any matter arising

under the ..... 1971 Act -

and Your Honours will recall the language of

section 62 of the 1971 Act which identified who

were to be parties, namely the Commonwealth was to be a party and the claimant was to be a party, and

Esber(2) 17 12/11/91

it dealt specifically with the case of redemption

applications -

(including proceedings under Part V of the

1971 Act) -

and, Your Honours, Part Vis the section of the

1971 Act which dealt with reviews by the

Administrative Appeals Tribunal. So if I could

pause there, it is clear that subsection (2) deals

specifically with cases of this kind:

being proceedings instituted but not completed

before the commencing day -

and, Your Honours, again that is this case -

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.

Now, Your Honours, unlike subsection (1), subsection (2) does not make the Administrative

Appeals Tribunal provisions of the new Act, that is

Part VI, apply. What it says is that the prior

proceedings may be continued. Now, Your Honours,

it refers, specifically, to proceedings which are

uncompleted and it says that those proceedings may

be continued. Your Honours that means, in our

submission, that they may be continued until they

are completed, that is, are completed in the way in

which they would have been completed if the new Act

had not come into force.

TOOHEY J:  On that view of section 129, Mr Jackson, the new

Act otherwise has nothing to say about the situation of the claimant, is that the position?

MR JACKSON: Yes, Your Honour. This claimant?

TOOHEY J: Yes.

MR JACKSON: Yes, Your Honour. And, Your Honours, the

relevant authority is added as a party and no doubt

that is so for a number of reasons, one being that

it is it, the relevant authority, which will bear

the financial liability, if any, and it empowers it

to be represented in the proceedings. The second,

of course, is that in some cases it may be so that
the relevant authority can continue the

proceedings, for it may well have been the

Commonwealth which was the moving party in

referring the matter to the Administrative Appeals

Tribunal in the first place. Can I refer

Esber(2) 18 12/11/91

Your Honours, again, to sections 62 and 63 of the

1971 Act.

Now, Your Honours, if section 129(2) is

doubtful on the point then, in our submission,

section 8 of the Acts Interpretation Act 1901 will

apply unless, of course, the contrary intention

appears.

Your Honours, section 8 Your Honours will find

in the book, at page 1. Your Honours will see that

the terms of section 8 provide that:

Where an Act repeals ..... a former Act, then

unless the contrary intention appears the

repeal shall not -

may I take, Your Honours to paragraphs (c) and

( e) -

(c) affect any right ..... acquired accrued or

incurred under any Act so repealed; or .....

(e) affect any investigation legal proceeding

or remedy in respect of any such right -

and it goes on to say -

and any such investigation legal proceeding or

remedy may be instituted -

and Your Honours will see the use of the word again

"continued", that of course the word in

section 129(2) though not with as full a context as

in section 8 -

as if the repealing Act had not been passed.

Now, Your Honours, the nature of the right

contemplated by section 8(c) includes, in our

submission, a right of the kind presently in

question, even though some investigation or

proceeding may be necessary to establish it or have

it quantified, or it may be in some respect

conditional.

Could I take Your Honours - and I will do so as briefly as I can - to a number of cases in which

the meaning of the terms in provisions equivalent

to section 8 has been discussed.

BRENNAN J: Could I just delay you for a moment, Mr Jackson.

What is the significance of the provisions of

129(2) relating to the addition of the relevant

authority, so far as the making of an order is

concerned, imposing a liability in the proceeding

that is so continued?

Esber(2) 19 12/11/91

MR JACKSON:	Your Honour, can I try to answer Your Honour and then see if I have answered what Your Honour
put to me?  The purpose of the having the relevant
authority there would seem to be first to enable
it, which, as a practical matter, I suppose, will
have to pay it, to be the moving party, because it
may be the appellant, in effect, or to resist the
claim on behalf of the claimant. That is really
the prime purpose of its being there.

So far as an order that is made, I suppose the

effect of the order that is made would simply be a

determination that there is or is not an

entitlement to redemption, which would be under

section 49, the determination of the quantum of it.

Your Honour, that would then take one, for

example, to section 127(3), which would treat the

determination as being a determination, in effect,

having effect immediately before the commencing

day. That would then be a liability, in terms of

section 138, to pay compensation under a provision

of the 1971 Act which had not been discharged
before the commencing day, and is taken to have

been incurred by the relevant authority.

Your Honour, the drafting could be simpler, it

could be fuller, but it, in the end, serves its

effect.

BRENNAN J:  The problem about that approach to it is that

looking at 128, it is to:

be taken to have been incurred by the relevant

authority on that day under the corresponding

provision of this Act.

MR JACKSON:  Yes, Your Honour, but the reason why that

phrase appears, Your Honour, is - and it appears on

a number of occasions - it seems to be, in our

submission, to perform a number of functions.	One
is to indicate, in the first place, that a

redemption after the new Act comes into force in

respect of the old Act, or a payment of something

that should have been paid or a determination that

should have been made, one way or another in

respect of something under the old Act after the

new Act has come into force, is to be treated as

having effect upon the liability to do a

conceptually similar thing, such as redeem, under

one Act.

Equally, no doubt, if one were looking at

reporting provisions, it required there to be determinations of the amount paid by relevant

authorities for redemptions, this would come under

it. It is to serve ends of that kind, Your Honour.

Esber(2) 20 12/11/91

BRENNAN J: Yes.

MR JACKSON:	Your Honour, could I also say, it would seem a somewhat strange result, in effect, if one had
circumstances where, let us say, the determination had been by the Commissioner that there be a
redemption - there be a redemption in, say, a sum
subject of reference to the Administrative Appeals
of $200,000 - then one finds that that has been the comes into force, then one would think the
Commonwealth must succeed in that case simply because the amount of the compensation was
something in excess of $50 a week.  Your Honours,
the section speaks of proceedings which are instituted and are not completed before the
commencing day, and says those proceedings may be continued on and after that day.

Your Honours, one says that the person who has

to pay becomes an additional party or can become the moving party and, in effect, carry the ball,

but it contemplates, in our submission, that where

people have utilized their rights prior to the

commencing day they can continue to do so.

I was going to take Your Honours to the first

of the cases, that is, Director of Public Works v

Ho Po Sang, (1961) AC 901. Your Honours, perhaps

the facts of it do not matter a very great deal,

except that I should take Your Honours to page 905

and in the paragraph about one-quarter of the way

down the page commencing with the words:

Section 3C dealt with the situation -

as Your Honours will see from that paragraph -

where the director gave notice of his

intention not to give a rebuilding

certificate -

in respect of buildings. Then, section 3D(2) is

set out in that paragraph, and it allowed a

petition to the Governor in Council of Hong Kong,

and Your Honours will see that it said that:

every petition and cross-petition ..... shall be

taken into consideration by the Governor in

Council -

and then, the last two lines of that paragraph made

it as clear as could be that the Governor in

Council was under no obligation to grant or not to

grant such a certificate was expressed to be:

Esber(2) 21 12/11/91

as he may think fit in his absolute

discretion.

Your Honours, perhaps with the passage of time, even a discretion so absolute might not be as

absolute today but it was absolute enough in 1961. Then, Your Honours, if one goes from there to

page 919, Your Honours will see the judgment of the

Privy Council being given by Lord Morris, and in

the second paragraph on that page, about point 5,

Your Honours will see that one of the things that

was asserted, and this is in the fifth line of that

paragraph:

there was -

they submitted -

an accrued right in the lessee to have his

application for a rebuilding certificate

determined in accordance with the provisions

of sections 3A to 3E.

Your Honours, at the bottom of page 920,

Their Lordships referred to the fact that at the

time when the new Act came into force the lessee

had no right and had no more than a hope that the

Governor in Council would give a favourable

decision.

Your Honours will see again at page 921, about

a third of the way down the page, it said:

At the time of the repeal all the procedure

under sections 3A and 3B had been followed and

it can properly be said that the stage had

been reached when the lessee could expect and

was entitled to have the petitions and

cross-petitions considered in due course by

the Governor in Council and to have a decision

reached.

And then the question was posed as to whether that

fitted within the ordinance. Then, Your Honours,

at the bottom of the page commences the passage

which sets out the test to be applied.

Your Honours will see that the view is summarized

first as being that it was not such a right and

that is expanded upon in the paragraph at the top

of the next page. Then, Your Honours, the most

material part in the first paragraph on page 922.

Their Lordships speak of the fact that

section l0(e), here section 8(e), related back to

the right which was the subject of section 8(c),

and then they go on to say:

Esber(2) 22 12/11/91

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.

And I refer Your Honours to the rest of the

paragraph.

The question was discussed by Justice Kitto,

sitting alone, in Continental Liquers Pty Ltd v

G.F. Heublein & Bro Inc, (1959-60) 103 CLR 422, at page 426-427. Your Honours, that was a case where,

under the repealed Trade Marks Act, an application

had been made for an order that a trade mark be removed. The application had been made but the

proceedings not determined at the time when the new

Act came into force.

His Honour dealt with the issue about half-way

down page 426, the last sentence of the paragraph

running on from the preceding page, the one

commencing "finally". He sets out the question.

Then, Your Honours, about three-quarters of the way

down the page, says that:

in my opinion the applicant, by instituting

its application in the Court ..... acquired a

right to have the Court decide whether it

ought to exercise its jurisdiction under s 72

in that application, and that right was within

the protection of s 8(c).

His Honour referred to Abbott v Minister for Lands,

and then went on to say: 

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 -

and he goes on to the end of that paragraph.

The observations of the Privy Council in

Director of Public Works v Ho Po Sang were further

discussed by the Privy Council in Free Lanka

Insurance Co Ltd v Ranasinghe, (1964) AC 541 at

552, about a quarter of the way down the page,

where the Privy Council said that they agreed with

Esber(2) 23 12/11/91

the primary judge, one of the judges below, whose

name I shall not pronounce:

in thinking that on September 1, 1951, the

respondent had as against the appellants

something more than a mere hope or expectation

- that he had in truth a right, within the

contemplation of section 6(3) ..... although

that right might fairly be called inchoate or

contingent.

And, Your Honours, then there is the reference to

Director of Public Works v Ho Po Sang, and the

nature of the right that was in contemplation in

that case was a provision of the Motor Car

Ordinance which allowed a person who had been

injured by a vehicle which was insured, and who

recovered judgment against the driver or owner of

that vehicle, to execute the judgment directly

against the insurer, and all that had happened was

that the proceedings had been instituted against

the other tortfeasor prior to the coming into

effect of the repealing enactment. So that

Your Honours will see that a number of stages had

to be gone through before it could be said that

there would be any development of the right beyond

that.

Your Honours, a summary of the position in

relation to these cases appears in some
observations of Justice Gibbs in Mathieson v

Burton, (1971) 124 CLR 1 at 23. Your Honours will

see in the paragraph commencing towards the bottom

of the page that His Honour said:

The presumption of the common law is that

this right, having been acquired, should not

be affected by the provisions of s 4(h) of the

Act of 1968 which clearly dealt with matters

of substantive law and not with matters of

procedure. The same presumption would arise

ifs 8(b) of the Interpretation Act of 1897 (NSW) applied.

Can I ask Your Honours to read the remainder of

that page, and particularly the reference to the

fact that it applies to everything -

that may truly be described as a right,

"although that right might fairly be called

inchoate or contingent" -

and, at the top of the next page, Your Honours, the

passage continues just a little further on.

I shall not take Your Honours to it now, but

could I refer Your Honours to a decision of the New

Esber(2) 24 12/11/91

South Wales Court of Appeal in New South Wales Aboriginal Land Council v the Minister, (1988)

14 NSWLR 685, at 693 to 697. Your Honours, what we

would submit is that under the terms of section 49,

there was a right to redemption. Certainly it was

a right which was in a sense contingent in the

sense that if it was necessary for the Commissioner

to be satisfied of the matters referred to in

subsection (5), that if the Commissioner were so

satisfied, there was an entitlement, in our

submission, to redemption.

BRENNAN J: That is the proposition on which your case

rests, is it not?

MR JACKSON:  The first proposition, Your Honour, on which

our case rests under section 8.

BRENNAN J: If, for example, it was open to the Commissioner

to take into account, in determining under the 1971

Act whether there should be redemption, factors

other than those which are expressly set out in the

Act, does that make any difference to your submission?

MR JACKSON:	Your Honour, it would take me to a second submission, and I will come to that in just a
moment, if I may.  Our first submission is that
under section 129(2) of the new Act, the proceedings are continued, and that means in the
context that the former Act goes on. So one does
not need to identify precisely what was the
function of the Commissioner under the former Act
in the sense of what one does in dealing with
section 8.

The second submission we would make concerns

the operation of section 8. If the position is

that we had a right to redeem subject to the

satisfaction of the matters referred to in

subsection (5) of section 49, then there is

absolutely no reason why that right would not be

preserved, we would submit.

If one comes to a situation where the nature of the power of the Commissioner under section 49

is one where, notwithstanding satisfaction of the

matters particularly referred to in the subsection,

he yet has a discretion to refuse and the

discretion may be based on matters which - it is a

little difficult to describe them, but if one

assumes it may be based on in effect any matter,

for example, and one example would be the availability of funds, whatever funds the

Commonwealth has, if I could give that example,

then we would submit that whilst we did not have a

right to have redemption, albeit contingent, what

Esber(2) 25 12/11/91

we did have at the time when the new Act came into

as had been carried out by the

force, was a right to have the Administrative function

Commissioner.

Your Honours, that is not a mere hope or

expectation; it is a right to have the out the same exercise.

Now, that is a right which is something more

than just saying, "You can ask the Governor in

Council to decide whether to toss the coin", in

effect. The line may be fine but there is a line,

because in exercising the power the Administrative

Appeals Tribunal would have to consider the same matters and go about it in a manner in which it had

to determine, precisely, whether it was satisfied

of the three matters in question; if it were, then

exercise the power under that provision. So, we

had a right to have them do that. And,

Your Honours, we would then say that right, if one

puts it in that lower form, is one that is picked

up by section 8(e), investigation of it proceeds
under section 8(e).

Now, Your Honours, could I say one further

thing in relation to that and it is this: one

would hesitate to assume, in our submission, that

the rights given to the Commissioner under

section 49 were rights that could be exercised by

reference to matters which were the pure caprice of

the decision maker. And, Your Honour, I mentioned

before in dealing with Ho Po Sang that, perhaps,

views change a bit over time, but one would need

today, in our submission, the strongest more or

less express indication in the statute, before one

would see that a power such as that given to the

Commissioner under section 49 was a power which

could be exercised in his absolute discretion,

giving "absolutely" the widest possible meaning.

One would think, we would submit, that in dealing

with applications under section 49 what the

Commissioner would have to take into account would be the factors which could be derived from a

consideration of the statute. Wide they might be,

but not unlimited. And once one takes that view,

Your Honour, it does not leave much room, in our

submission, for saying that all one had was a mere

hope or expectation.

Now, Your Honours, could I go from those

submissions to the reasons which moved the majority

of the Full Court to find the other way.

Esber(2) 26 12/11/91

DEANE J:  Mr Jackson, to deal with your last argument, do

you not need to take us to the nature of the

function of the Administrative Appeals Tribunal.	I
mean, is it a review function in a case such as
this or is it, as it were, back to square one?

MR JACKSON: Broadly speaking, Your Honour, back to

square one.

DEANE J:  The decision of the Commissioner stands, does it

not, until a decision is made by the Administrative

Appeals Tribunal which means, to some extent, it is

a review function.

MR JACKSON:  Yes, Your Honour. Your Honour, the - - -

DEANE J:  We look at the AAT Act to determine the function

or is there something special in relation to - - -

MR JACKSON:  Your Honour, there is nothing special about it.

Part V of the 1971 Act took one to be

Administrative Appeals Tribunal Act. Having done

that, there is nothing really very different about

this kind from any other determination.

it, in the sense of the way in which the determination of

DEANE J:  But may not the answer to it depend on the nature

of the function though? For example, if the

Commissioner's decision had been in your favour and

there had been an appeal by the Commonwealth or an

application by the Commonwealth, subject to what

might be said, it is hard to see how it could be

put against you that the position was not that for

which you contend.

MR JACKSON:  Yes, Your Honour. The powers of the tribunal

are I think in the book that Your Honour has in I

think the last document in the book.	Your Honours
will see there section 43, and subsection (1) gives

the tribunal the power to exercise all the powers

and discretions of the decision maker, as it were,
and allows it to make decisions of the kind

referred to in the various subparagraphs.

Your Honours, could I move then from that to

subsection (SA).	The decision itself comes into
operation forthwith upon its giving.	(SB),

however, adds a qualification to that, and that is

that the tribunal may specify some different date.

Then subsection (6) sets out the prima facie rule

that the decision comes into effect in effect on

the day when the original decision was made.

Your Honours, those provisions really relevantly

encapsulate the powers of the tribunal.

Esber(2) 27 12/11/91

DEANE J: That supports you, does it not, in that if what I

suggested to you be so, and a decision of the

Commissioner in your favour which was there would

have been the end of it - let me put it

differently; a decision of the Commissioner in

your favour which you wished to have varied as to

the amount, it is difficult to see why your

argument would not apply for that.

MR JACKSON:  Yes, Your Honour.

DEANE J: If you look at (6), does not the dating back of

the decision on review, in a context where one

makes it clear that what is involved is a review,

assume a degree of significance in relation to your

second argument?

MR JACKSON:  Your Honour, the answer is it may, and I am

sorry not to be rushing to pick it up in a sense,

but could I indicate what I mean by that? I was

going to deal with this point in the next thing I

was doing, and that was dealing with the reasons

for judgment of Mr Justice Davies, because he

refers to this provision.

But if one takes first section 129(2), then

our submission would be that it simply continues
the proceedings and then when the proceedings are

continued with the law applicable being the 1971

Act -

DEANE J: Yes, I follow all that. I was only directing this

to section 8(c) and the right to review being a

substantive right.

MR JACKSON: Perhaps I misunderstood what Your Honour was

putting to me, I think. What Your Honour puts to

me is right; yes, it does support the notion that

there is a substantive right and one is capable of

being put in the position one would have been in if

the first performance of it had been in the way in

which the Administrative Appeals Tribunal feels

that it should have been done.

TOOHEY J: Is this Act excluded - by this Act I mean the

Employees Compensation Act - from the scope of the

Judicial Review Act?

MR JACKSON:	No, Your Honour.
TOOHEY J:	So it would it have been open to the present

applicant to have proceeded by way of application for judicial review? I am not suggesting that it would have been advantageous but it just, perhaps,

helps to point up the sort of questions that

Justice Deane has been asking, say on the ground

Esber(2) 28 12/11/91

that the decision was one that could not reasonably

have been come to.

MR JACKSON:  Your Honour, the answer is yes and,

Your Honour, the possibility of variation by a

court seems to be contemplated by section 127(3).

BRENNAN J:  Mr Jackson, we are dealing here with a case of

redemption of weekly payments. Under the

transition provisions, was your client entitled to

a continuance of weekly payments as under the

1988 Act?

MR JACKSON:  Yes, Your Honour. That was because of

section 124.

BRENNAN J:  Is it that entitlement which is the subject of

redemption?

MR JACKSON:  No.

BRENNAN J: Well, if it is not, and it is the entitlement

under the 1971 Act, and if one were to backdate it,
as it were, to the date when the Commissioner's

decision was first made, how does one quantify the amount of the redemption, by reference to the time

which is to elapse between that date and the 65th

birthday, and without reference to the intermediate

payments of weekly compensation?

MR JACKSON:  No, Your Honours, how one does it, is that

one - there are really two possible ways. The

first way of doing it is that one treats the
1971 Act as remaining in force, and what that means

is that it is then possible - and I will take

Your Honours to the way in which it was done, and,

with respect, the way in which the reasons for
judgment of the majority put it do not quite
represent what the tribunal did. If the 1971 Act

continues in force, then there is a redemption, let

us say, by the tribunal.	Now, when the tribunal
does that, it is in a position where it has to

consider a number of matters.

If I could just take Your Honours back to

section 49 for a moment, it considers that the

injury is not likely to result in total incapacity.
It considers the intention to use the lump sum, and

so on. Having done that, it then goes on to

subsection (4), and it determines the value:

of the right of the employee to receive

further payments of compensation under

section 46 -

and in determining that, Your Honours, it has to

look at the nature of the injury to make it better

Esber(2) 29 12/11/91

or worse in terms of capacity. It has to look at

the capacity to earn, for example, a matter made

relevant by age and occupation, and other relevant

matters. Now, the maximum amount is fixed pursuant

to section 46, and I think Your Honours were

looking at section 46(2) before. It may not have

been in its final form - this was a

section 46(2)(a) case, Your Honour - but you will

see it refers to particular sums. So, what is

done, Your Honours, is simply to treat the

doing it, Your Honour.

situation as if the Act had continued as at the of

time when the redemption decision is made by the

If one does that, then there is no need to

take into account payments made up to that time,

because one is speaking entirely prospectively, and

section 43(6) of the Administrative Appeals

Tribunal Act, of course, allows it to fix some

other time.

It is possible, of course, to do it the other

way, and that is to do it as at the date when the

first decision was made of the Commissioner. Now,

if one does it as at that date, one has to take

into account the fact that following that date

there have been payments made of compensation.

The payments - if I could just interpolate -

of compensation might have been made between
decision of the Commissioner and decision of the

tribunal, whether a new Act came into force or not,
but it would be possible, because section 49(4)
allows any other relevant matters to be taken into

account in fixing the amount, to take into account

the fact that there had been payments made after

the date of the assumed redemption. Your Honour, I

am sorry that is a long answer to a short question,

but there are two possible ways of doing it.

Your Honours, I wonder if I could go then to

the reasons for judgment of the majority and could

I take Your Honours to Mr Justice Davies - the majority was Mr Justice Davies and Mr Justice Hill. Could I say something concerning Mr Justice Davies, some general thing, first, and that is that much of

His Honour's reasoning appears to be based on the

practice of the Administrative Appeals Tribunal to

make its decisions operate prospectively, and no

objection could be taken to the practice in most

cases, but the conclusion which His Honour draws

from it, in our submission, is not correct. Could

I go to page 68, Your Honours. His Honour says, at

line 3 on page 68, that:

Esber(2) 30 12/11/91

It is clear that a decision of an

Administrative Appeals Tribunal may have a

retrospective effect.

He refers to section 43(6), and then says, towards the bottom of the page, that:

by necessary implication speak as from the date of the decision ..... the Administrative Appeals Tribunal ordinarily applies the law as at the date of the

in the ordinary course, a decision of the expressly or

tribunal's decision.

Your Honours, could I just say, in relation to the last observation to which I referred, that that

must, of course, depend on the terms of the law

which is being applied and it must turn, both on

the old law and on the new law, and also on the

Acts Interpretation Act provisions.

His Honour then refers, towards the bottom of

page 69, at about line 17, to an earlier decision

of the tribunal, Re Costello, and that decision

expressly recognizes the matters to which I have

just referred. That appears on page 70, line 18:

The nature of the decision under review may

require the Tribunal to consider the facts and

circumstances before it in the light of the

law at some anterior date -

and then, Your Honours, in the last paragraph of

the quotation there is an express recognition that

there may be accrued rights and liabilities. That

is no doubt a reference to the general concept

underlying section 8. At page 71, line 6,

His Honour says:

A decision as to the redemption of a

liability to make weekly payments does not
relate back to the date of the claim.	A

decision that the liability be redeemed is

forward looking and redeems the future

liability.

Now, Your Honours, of course that is, as a general

proposition in terms of redemption of the future

liability, true but it does leave the question,

"What is the liability which is being redeemed?".

If the effect of transitional provisions or of the

Acts Interpretation Act is to leave the former

enactment in place for the purpose of the

proceedings, the liability being redeemed, albeit,

ex hypothesi covering the future, is not under the

new Act, it is under the old Act.

Esber(2} 31 12/11/91

At page 72, His Honour, in the first new

paragraph of the page, speaking of the practice of
the tribunal being to make decisions prospective,

says:

This practice is not inconsistent with

the transitional provisions ..... for

s.129(2) ..... merely provides.

Now, Your Honours, that is His Honour's observation

concerning section 129(2). We would submit that

the way in which His Honour puts it, with respect,

devalues section 129(2) which is really, in a
sense, the first critical provision for the case

and it does, with respect, rather start at the

wrong end when it says the "practice" of the

tribunal:

is not inconsistent with the transitional

provisions -

because the first question is: what does the

statute require, not is the statute consistent with

a practice arising dehors the statute.

Your Honours, His Honour's ultimate conclusions appear at page 74 through to page 76.

In relation to his observations there, may I make a

number of submissions. The first concerns the

observation made at the top of page 74 that:

The Tribunal was correct in treating the

matter as one in which its decision spoke as
from the date of the decision.

Could I just say in relation to that, Your Honours,

that is the way in which the tribunal treated it,

but it treated it in that way because it treated

the 1971 Act as continuing in operation. Could I also say, Your Honours, in passing in relation to that, that the only challenge argued before the

Full Court was not one in relation to manner of	quantification but the ground set out at page 64 as
ground 3(c) of the amended notice of appeal, the
last ground.

Now, Your Honours, the second observation we

would seek to make concerning this passage from

His Honour concerns the part at page 74 lines 9 to

15, where he said the inquiry was as to whether a

right should be granted and, Your Honours, that of

course, in our submission, involves giving the

decision maker an element of discretion where none

existed.

Your Honours, the third observation we would

seek to make in relation to His Honour's reasons

Esber(2) 32 12/11/91

concerns the passage immediately following that,

where he says:

Your Honours, at the bottom of page 74 to the top of page 75, His Honour expresses the view that the tribunal valued the liability of the

Commonwealth to make future payments under the

later Act. He notes that they did not specifically

refer to it but says:

it is clear that its calculations took into

account the value of the weekly payments under

that Act.

His Honour quotes a passage to which I will come in

a moment, and then says at line 21 on page 75:

This line of reasoning took account of the

provisions as to weekly payments in the 1988

Act -

Your Honours, this part is dealt with by the

tribunal at page 53. Your Honours will see there

is a reference in paragraph 64 to -

a dispute as to the base weekly rate -

but it is said also there was no dispute as to the multiplier figure, which is the 1331.613. Then if

Your Honours look at paragraph 65, there is not a

word about the 1988 Act.

What is done is to work out what, at that

time, would have been the wage if he were still a

private soldier, and what is then recorded is a

submission that he has shown a capacity to earn

about $250 a week as a taxi driver. A submission

that he should get the balance is recorded, and at

the top of the next page, the tribunal refers

specifically to the 1971 Act, that is

section 49(4), and not to the 1988 Act.

The figure of $150 was a figure which was less

than the maximum fixed by section 43(2)(a) of the

1971 Act, which was at that stage about $190.

Your Honours, we would submit it is very difficult

to derive from anything that was said by the

tribunal, in the passage to which I have referred,

the notion that the tribunal was seeking to apply

the 1988 Act when the only specific reference to

any Act is a reference to section 49 of the 1971

Act. The reference to the - I said $190. It is at

page 33, paragraph 20. It is $192.80, the maximum

then fixed. That was the last maximum fixed under

the 1971 Act.

Esber(2) 33 12/11/91

Your Honours, the remainder of His Honour's reasons for judgment really sets out his

conclusions. Could I go to Mr Justice Hill's

reasons for judgment which commence relevantly at

page 104. The first submission we would make about

it relates to page 107 in the first new paragraph

on the page, where His Honour said that once the

new Act came into force:

there was no obligation remaining to pay

compensation under s 46 of the 1971 Act -

in respect of that period. Your Honours, that is

true of course, but with respect it is not to the

point of the operation of the provisions to which I

have referred.

Your Honours, could I also refer - at the

bottom of page 107, from lines 18 to the bottom of
the page, His Honour refers to section 43(6) but,

with respect, that rather seems not quite to

paraphrase what section 43(6) says because

section 43(6) says that unless the tribunal orders

otherwise one goes back to the date of the original
decision.

At the top of the next page, page 108, His Honour says that:

at the date that question fell to be

considered, there was no longer any liability

under the 1971 Act.

Your Honours, that gives, with respect, no effect

to the transitional provisions and to section 8,

and one must look at them first, rather than the

substantive provisions of the new Act to see what,

if any, continued operation there is. Again, at

the bottom of the same page, we would submit

insufficient relevance is given to section 129(2).

Your Honours, at page 109, in a passage which

goes for virtually the whole of that page and over

to the top of the next page, His Honour refers to

section 125 and some of the transitional

provisions. What we would simply submit about it

is that if one looks at the various transitional

provisions, the correspondence contemplated by them

is, as we have submitted, rather more general and,

if one takes the case of an amount unpaid as at

1 December 1988, it is clearly something to which

section 128 applies, even if the amount is in

respect of something that could not be the subject

of redemption under the 1988 Act. The remainder of

the judgment is really simply contrary to these

submissions I have advanced, and I do not think

anything would be gained by going to them.

Esber(2) 34 12/11/91

Your Honours, finally, we would submit two

things. The first is that if section 8 is not to

apply, the contrary intention must appear. That is

what the opening words of section 8 say. And

unless the contrary intention appears, then

section 8 should be applied.

The final thing is this: that one is entitled,

we would submit, to bear in mind the nature of the

legislation. Could I refer to two passages in the

judgment of members of the Court in Bird v The

Commonwealth, (1988) 165 CLR 1 at page 9. If I

could go first to the joint reasons for judgment of

Your Honours Justices Deane and Gaudron, in the

first new paragraph on that page where it is said

that:

it is well to remember that employee's

compensation legislation ..... is remedial in

its character "and, like all such Acts, should

be construed beneficially". The "established
principle" ..... "where two constructions of a

Workers Compensation Act are possible that

which is favourable to the worker should be
preferred". If a person or a case falls

within the general spirit of such remedial

legislation, and there are two possible

interpretations, the courts ought not to

construe the Act so as to exclude that person

or case.

Your Honours, at page 6, at the start of the

remedial legislation but thought there was not any ambiguity.

second paragraph, Your Honour the Chief Justice and

Your Honours, we would submit that if, in the

end, there is some ambiguity thought to arise, then

it should be construed in favour of the

Commonwealth's employees who injure themselves in

the course of their employment, whether they do so

by acquiring a repetitive strain injury, or even

broken a thumb moving documents from one place to

another, or whether they injure themselves in
seeking to be part of the active defence force of

the nation.

BRENNAN J:  Mr Jackson, looking at the nature of the right

which you say exists here - - -

MR JACKSON:  Yes. Under the Acts Interpretation Act,

Your Honour?

BRENNAN J: Yes.

Esber(2)	35	12/11/91
MR JACKSON:	Your Honour, we would say two things:	first,

that under section 49 there was a right to have

redemption if the matters referred to in

section 49(5) were established.

BRENNAN J: Established to whose satisfaction?

MR JACKSON:  Your Honour, established to the satisfaction of the Commissioner or to the AAT.

BRENNAN J: Yes. If it is the AAT satisfaction which is

relevant, then the right which survives the

enactment is a right to have the AAT consider

whether those circumstances exist or not. It is a

right to have the AAT, in other words, deal with

the matter.

MR JACKSON:  Yes, Your Honour. One can put it in a number

of ways, but that is one way one can put it, yes.

BRENNAN J:  In dealing with it, why is it that the AAT does

not look to see what liability then stands to be

redeemed, that is, at the time at which the

tribunal is dealing with it? In other words, you

have the right - the tribunal has set about its

task, it is doing it. Why does not the tribunal

then say, "What is the liability to be redeemed?"

MR JACKSON:  Your Honour, for two reasons. The first is

that if one looked at section 49(4) and assumed

that the tribunal was doing the same conceptual

thing as the Commissioner might have done, what it

would be doing would be determining the value as at

the date of the determination by the

Commissioner - and that is because the Act says so,

Your Honour. Those are the Acts words, not

mine - of the right. That is one thing it would be

doing. It would be also, Your Honour, determining

that it was satisfied of the various matters. Now,

Your Honour, it is right to say that the tribunal

is deciding, as at the time it hears it, I suppose,

but what right there was at the time when the new

Act came into force was a right to have the

tribunal do just that.

Your Honour, I think perhaps I have not

answered what Your Honour was putting to me.	Could
I put it slightly differently?

It is in a sense circular. If one is looking

purely at the provisions of the new Act, leaving

aside the transitional provisions, whatever their

source be, then one has to apply the new Act and

what is being done by the tribunal is to act

pursuant to the new Act. Your Honour, that is

acting pursuant to Part VI of the new Act. It is clear, at least from section 129(2), that that is

Esber(2) 36 12/11/91

what the tribunal is not doing, because

section 129(2) speaks of proceedings under Part V
of the repealed Act which are proceedings in the
Administrative Appeals Tribunal under the 1971 Act.

So the proceedings being dealt with by the Administrative Appeals Tribunal fell within the

words in brackets in 129(2). Your Honours, that is

what the tribunal was dealing with. In dealing

with those, the point I am seeking to make about it

is that there were proceedings before the tribunal.

Those proceedings under the new Act might be

continued, those proceedings. Those proceedings

are proceedings for a determination of a matter, in

our submission, under section 49 of the repealed

Act.

BRENNAN J: Let us assume that the 1988 Act had not been

enacted, but there had been a change in the rate of

weekly compensation between the time of the

Commissioner's refusal and the tribunal's
determination under the 1971 Act. Would the

tribunal, at the time when it was making its

determination under the 1971 Act, have been bound

to ask itself, "What is the liability which now

stands to be redeemed", and would it not have taken
the new rate into account in reaching its

determination?

MR JACKSON: Well, Your Honour, if one goes first to the

statute to find the indication in a case such as

that, the indications would be twofold: that they

should be looking at the situation at the time when

the Commissioner should have made his

determination. The indication would derive from

two things: the first is section 49(4), which

speaks of the manner in which the lump sum is to be

calculated. That speaks of it being of value as at

the date of the determination by the Commissioner.

BRENNAN J: But when one moves into the AAT area, under the

1971 Act, for "Commissioner" do you not read "AAT"?

MR JACKSON: Well, Your Honour, that takes one to the second

provision then, the second provision being

section 43(6) which sets out the prima facie rule

that unless the tribunal otherwise orders, the

decision of the tribunal takes effect from the date

on which the original decision was made, takes

effect from the earlier date. To vary that

requires an exercise of - the tribunal can do it,

of course - but it is a question whether the

tribunal should, and it would, we would submit, be,

in a case where that was the precise issue, there

would be a lot to be said, in our submission, for

the view that the tribunal should not.

Esber(2) 37 12/11/91

BRENNAN J: But does not the nature of the review function,

the power being administrative in nature, require
the tribunal, in the absence of other statutory
indicia, to place itself in the position of the
original decision maker, having regard to the facts
and the law as at the time of the tribunal's
decision, and then under 43(6) making whatever

consequential order is appropriate?

MR JACKSON:  Your Honour, with respect, no. What I mean by

that is that - Your Honour puts it to me as

dependent on the Act, and it really is in the end a

question of construction of two things: one, in
every case, is the enactment other than the

Administrative Appeals Tribunal Act which involves

the relevant decision. The nature of the decision,

Your Honour, may make it obvious one way or the

other, but if it does not do so, then the prima

facie provision is that provided for by

section 43(6). Section 43(6) allows for the
possibility that in an appropriate case, be the
date of the decision by the tribunal or it be an

earlier date, but if the tribunal does not exercise

its power to fix a date other than the date of the

original decision, the statutory preference is for

the date of the original decision.

Your Honours, that is what the section says,

and one can understand that in perhaps most cases

as a practical matter, either it will not matter

whether the decision is treated as being early or

late for various reasons, Your Honour, because of

the nature of the decision. In many cases the

appropriate thing will be to make it operate

prospectively. So that if one is looking at the

course of events, the course of events will

probably lead, statistically, to most cases being

ones decided as Your Honour has put to me. That is

not what the section says. The section says: the

legislative preference is that it operates

retrospectively. Your Honour, I do not know that I

can take it beyond that.

MASON CJ: Thank you, Mr Jackson. Yes, Mr Gibson?

MR GIBSON: Thank you, Your Honours. Might I hand up five

copies of our outline.

MASON CJ: Yes, Mr Gibson.

MR GIBSON:  Thank you, Your Honour. Your Honours, in our

submission, this case turns principally upon the

interpretation of the Part X transitional

provisions of the 1988 Act. Paragraph 1 of our
outline endeavours to identify the scheme of those

provisions in so far as it is relevant to the facts

Esber(2) 38 12/11/91

of this case, and the Court has already been taken

comprehensively to the statutory background both in

the 1971 Act and the 1988 Act.	We shall not dwell
on that background any further.

In our submission, it sufficiently appears

from that scheme, and from particular provisions to

which we shall shortly refer, that the 1988 Act

does not provide for the continued operation of the

redemption provisions of the 1971 Act, relevantly

section 49 of that Act, beyond the commencing day

of the 1988 Act, that is, 1 December 1988.

In consequence, although the appellant had

instituted an appeal to the Administrative Appeals

Tribunal from the determination of the Commissioner refusing the appellant's request to redeem future

payments of compensation under section 49, the

outcome of that appeal was to be governed by the

legislative provisions in existence as at the date

of the tribunal's decision and not as at the date

on which the request was made, and we shall refer

shortly to the provisions and relevance of
section 43(6) of the Administrative Appeals

Tribunal Act, the matter to which Your Honour

Mr Justice Brennan adverted a short time ago.

The appellant's submission to the contrary

focuses on the combined operation which he seeks to

attribute to sections 129(2) and 127, particularly

(2) and (3), of the 1988 Act.

DEANE J:  Is it implicit in what you say that if the

Commissioner had made the order which the

Administrative Appeals Tribunal thought he should

have made and allowed redemption, and the
Commonwealth had appealed from that order, that the

Administrative Appeals Tribunal should have set aside the order allowing redemption because, on your submission, it was not in respect of less than

$50 per week?

MR GIBSON:  No. Your Honour, in our submission, to take

that illustration to which Your Honour has just

referred and considering it against the background

of sections 127 and - particularly 127 -

DEANE J:  I thought that was implicit in what you had said.

If it is not, do not let me take you out of your

way.

MR GIBSON:  We would submit that there is a distinction

which becomes relevant to the inquiry as to the

existence of an accrued right. It is relevant in that context to determine as to whether any given

determination was favourable to the applicant; that

is, a determination in favour of a redemption or,

Esber(2) 39 12/11/91

on the other hand, a determination against

redemption. Because if there was a determination

made by the Commissioner prior to the commencing

day that the applicant's entitlement to future

weekly payments of compensation be redeemed, then

that would be a determination which conferred

rights upon the applicant.

DEANE J: But a right of review of a wrong decision does not

constitute a right for the purposes of section 8.

MR GIBSON:  Is Your Honour opposing a situation where the

Commissioner's decision was subsequently found to

be erroneous?

DEANE J:  One surely, in dealing with the application of

section 8 to a right of appeal or a right of

review, assumes that the primary decision was

wrong.

MR GIBSON:	Yes.
DEANE J: We make that assumption here.	Indeed, it has been

held to be wrong, so the query is whether the right

to review a wrong decision refusing $198,000 worth

of redemption is not a right for the purposes of

section 8(c) of the Interpretation Act.

MR GIBSON: In our submission, it is not. In our

submission, the way section 8 arises or applies in

this context is dependent upon whether a proper

interpretation of the transitional provisions of

the 1988 Act reveals that they are exhaustive and

therefore do reveal the contrary intention referred

to in section 8.

DEANE J: But I have taken you out of your planned course,

Mr Gibson. Please do not let me divert you any

further, but that is the area which I would be

assisted on.

MR GIBSON:  Thank you, Your Honour, we shall come to it. As

we understood the submissions just made, it was the

combined effect of sections 127 and 129 on which

the appellant's case focuses in this context. As

regards section 129(2), attention was given to the
reference in that provision to:

( ...•. proceedings under Part V of the 1971

Act), being proceedings instituted but not

completed before the commencing day, those

proceedings may be continued -

Our learned friends placed emphasis on the word

"those" in the phrase in which it appears as

implying or indicating that it was intended thereby

that the proceedings in a substantive way under

Esber(2) 40 12/11/91

Part V may be continued. Your Honours, it is our

submission that section 129 is no more than a

machinery provision.

Mr Justice Lee below erred, in our submission,

in concluding, as he did at page 91 of the record -

TOOHEY J: What do you mean by a "machinery provision",

Mr Gibson?

MR GIBSON:  Simply this, Your Honour, that it obviated the

need for fresh proceedings to be instituted. In

other words, if proceedings had been instituted

under the 1971 Act, then section 129(2) put it

beyond doubt that there was no need for fresh

proceedings to be instituted upon the commencement

of the 1988 Act. It went further than that to this

extent, and has a substantive operation to this
extent, that it provides that the relevant
authority, a term defined by section 4, shall be a

party with the Commonwealth in the proceedings so

continuing. To that extent, therefore, it does

have a substantive operation. But that aside, it

merely permits the continuation of proceedings

already instituted under the earlier Act.

TOOHEY J:	You would read section 129(2) as permitting the continuation of proceedings continued under the
1971 Act, but those proceedings would have to be determined in accordance with the 1988 Act?
MR GIBSON:	Yes.

TOOHEY J: Where do you find that in the subsection?

MR GIBSON:  Your Honours, we find it in this way: firstly

that there is an absence of sufficiently clear

language to indicate that the proceedings which are continued under section 129(2) are to be determined

in accordance with any substantive provision other
than the 1988 Act.	The transition of provisions of

the 1988 Act commence with section 124(1), which

provides that -

this Act applies in relation to an injury,

loss or damage suffered by an employee,

whether before or after the commencing day.

TOOHEY J: Except that the section is expressed to be -

Subject to this Part -

so you could go around in circles really.

MR GIBSON:  One must find a contrary intention to give

effect to the opening words of 124(1). In our

Esber(2) 41 12/11/91

submission, there is no contrary intention revealed

by the language of 129. All that is revealed is,

as I have submitted, a machinery provision to

facilitate the continuation of proceedings already

instituted. In our submission, Mr Justice Hill was

correct in that regard when he adverted to this

issue in similar terms at page 108 of the record,

in the last paragraph of that page, where

His Honour observed that:

Section 129(2) ..... obviates the necessity of a party who has instituted proceedings in

relation to payment for compensation, for

example, under s.46, to commence new

proceedings under the 1988 Act, it does not

touch upon the present issue -

and the present issue in the context of

His Honour's reasons was whether the 1988 Act

applied to the proceedings so continued.

TOOHEY J: It is still a curious result though, is it not,

if you read section 129(2) as meaning that the

earlier proceedings may be continued even though

something in the 1988 Act operates to take away the

very foundation of those proceedings.

MR GIBSON:  That happens to be the case in this situation

where by virtue of section 30 of the 1988 Act and

the receipt by the appellant of weekly compensation

in excess of $50 a week, there was no right to

redemption conferred by the 1988 Act. But,

Your Honour, that happens to be one particular

illustration. Section 129(2) is, of course, of

general application and we are unable to advert, or

to think, of another illustration to which that

situation would apply. In short, therefore, apart

from the extraordinary case thrown up by the facts

of this case, the interpretation for which we

contend does not yield other than a sensible

result.

Your Honours, at page 91 of the record,

Mr Justice Lee in addressing this issue, said at

about line 7:

The natural inference from the words of the subsection is that the proceedings continue

according to the law as it was prior to repeal

notwithstanding that no express words to that

effect have been included.

We would, respectfully, take issue with that and

highlight the matters to which His Honour himself

adverts in the subsequent lines where His Honour

notes that on those occasions on which the

legislature has seen fit to extend the operation of

Esber(2) 42 12/11/91

the 1971 Act, namely, sections 124, 4, 7 and 9 -

and those provisions, Your Honours, relate to the

rate of payment of compensation in respect of

events which have occurred prior to the

commencement of the 1988 Act - then the legislature

has expressly so provided. We would submit that

the fact that the legislature has adverted to the

issue and has expressly so provided in those cases

substantially detracts from the force of

His Honour's interpretation to which we have just

referred.

In our submission, section 129 could have

expressly provided that the continued proceedings

be determined in accordance with the law applicable

as at the date of their commencement. The fact

that it does not so provide weighs heavily, in our

submission, against the view to the contrary.

DEANE J: But your submission involves a strange

consequence, does it not, and that is, in effect,

that the claimant lost his entitlement to

redemption by reason of the Commissioner's wrong

decision, because you say if the Commissioner had got it right and done what the AAT said he should

have done, then that decision stands and

section 129(2), on a review on the application by

the Commonwealth, will be directed to whether the

Commissioner was right or wrong.

MR GIBSON:  Yes.

DEANE J: But that if the Commissioner gets it wrong and the

claimant exercises his right of seeking review,

then even though the AAT has authority to determine

that the Commissioner was wrong and to substitute

its decision for the one he should have made, none

the less it is all different and the AAT should not

direct its attention to the question: should the

Commissioner have allowed redemption, that being

the appropriate question in the circumstances that

have developed, but is perforce obliged to

effectively ignore that question and say what

should be done now.

MR GIBSON:  In a way, Your Honour, the AAT was obliged to

ask itself the question: what should the

Commissioner have done, because, under section 43

the tribunal stood, in colloquial terms, in the

shoes of the Commissioner.

DEANE J: Well, when you get it entitled to ask itself that

question, and entitled to make the decision the

Commissioner should have made, in the sense that it

is entitled to backdate it, why, in these

circumstances, was not that the appropriate

Esber(2) 43 12/11/91

question and answer, subject only to adjustment to

reflect payments made in the interim?

MR GIBSON:  Because the tribunal's consideration of the

Commissioner's decision was not by way of an

appeal, stricto sensu. It was a review; it was

upon fresh evidence; evidence which existed as at

the date of the tribunal's decision; and upon the

law as it stood as at the date of the tribunal's

decision. That that is so as a matter of fact in

this case appears from the decision of the

tribunal, that dated 20 February 1991, which

commences at page 24 of the record. After reciting

the history, which my learned friends have already
taken the Court to, the tribunal turned to the
decision of the Commissioner's delegate, at page 36

of the record, the decision dated 29 October 1987,

at paragraph 24. Your Honours will recall this was

the determination made by the Commissioner's

delegate made under section 49.

The determination was contained in the letter

set forth at line 20 and thereafter. Your Honours

will see that the delegate did not, in terms, in

the letter, refer to the provisions of

section 49(5), nor to any of the subsections

contained therein, but rather has stated that his
determination was based upon his lack of

satisfaction in relation to the requirements of

section 49(4). That appears in the second last

paragraph at page 36 of the record, and is

developed at page 37.of the record in the third

paragraph, that which commences, "Until such time".

It appears that the Commissioner's delegate

felt that there was insufficient material placed

before him by the applicant in order to enable him

to make a determination in the applicant's favour.

TOOHEY J: But subsection (4), Mr Gibson, can only arise

once there has been a determination that redemption

be effected.

MR GIBSON:	Your Honour, we would acknowledge that, perhaps, by referring to subsection (4), the delegate,
although not expressly adverting to it, may nevertheless in truth, have had the provisions of
49(S)(c) in mind, that is, that although he did
not, as I have said, expressly refer to it, nevertheless the effect of his decision might well
be interpreted as meaning that in all the
circumstances he was not satisfied, on the material
placed before him, that it was desirable in the
interests of the employee that the liability be
redeemed, because he was unable to form a decision,
or make a decision, as to the quantum of any entitlement which the applicant may have.

Esber(2) 44 12/11/91

But, Your Honours, for my present purposes,

and to emphasize that the decision of the tribunal

speaks from the date on which it is pronounced,
being based on evidence before it at that time and,

in our submission, upon the law as it stands at

that time, one sees in the subsequent pages of the

tribunal's decision in this case a reference to

evidence that was apparently not before the

Commissioner's delegate.

We see, at page 39, paragraph numbered 35, a

reference to material, a written and oral evidence,

from an orthopedic surgeon, Dr Pentis, and at

paragraphs 32 to 34 on the same page, the reference

to Mr Esber's intentions regarding taxi driving and

his history in that regard.

The tribunal carries on, at page 40, to

canvass the evidence of Dr Pentis in considerable

detail and one sees, at page 41, a report dated

22 August 1990 from Dr Pentis which quite plainly

postdated the decision of the Commissioner's

delegate. At page 42, paragraph 42, reference to

evidence from a Mrs Coles, an occupational

therapist, who saw the applicant on 26 June 1990.

TOOHEY J:  But he may have got a bit out of kilter by that

stage, because the tribunal had handed down a decision affirming that the 1971 Act remained applicable to the circumstances of redemption.

That was not challenged at that stage and, indeed,

was not challenged following the subsequent

decision of the tribunal, until the matter was some

way down the track when the notice of appeal was

amended to bring in that question. So that the

matter seems to have gone before the tribunal
simply by reference to, really, the circumstances
of redemption and the circumstances that were

relevant to the amount to be paid.

MR GIBSON:

Indeed that is so, Your Honour, but with

respect, it would appear not to affect the

principle involved.

TOOHEY J:  No, but it may have made a difference, because

you are pointing us to aspects of the evidence

which focused on circumstances post the decision of

the Commissioner.

MR GIBSON: That is so, but - - -

TOOHEY J:  Now, whether the matter would have been conducted

in that way, had the question of the availability

of the 1971 Act been squarely before the tribunal,

is perhaps a matter for conjecture.

Esber(2) 45 12/11/91

MR GIBSON:  As Your Honour said, the tribunal determined in

favour of the application of the 1971 Act by its

decision of June 1990. We ought not to forget that

the decision of the Commissioner's delegate dated

back to October 1987. There was substantial delay

in relation to which the applicant was required to

and did obtain an extension of time within which to

seek a review of the decision of the Commissioner's

delegate by the tribunal.

There is, with respect, no reason to conclude

other than that if at 1 June 1990, the first
occasion on which the tribunal addressed these

issues, evidence had been gone into, that we would

not have had material similar to this which was

placed before it later that year.

BRENNAN J:	Mr Gibson, was the 1971 Act expressly repealed?
MR GIBSON:	Yes, Your Honour, by section 139, if I be

correct, of the 1988 Act.

MASON CJ:  Mr Gibson, this may be a convenient time to

adjourn. We will resume at 2.15.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

MASON CJ: Yes, Mr Gibson.

MR GIBSON: Thank you, Your Honour. If I might just

conclude on the matter to which I was referring

before the break. The decision of the

Commissioner's delegate having been given on

29 October 1987, the applicant was entitled, had he

so chosen, to put further material before the

Commissioner by way of a fresh application or,

alternatively, to seek a review of the

Commissioner's determination by the Administrative

Appeals Tribunal.

He chose to do the latter and, by virtue of the delay which occurred, the application to the

tribunal being made only in September 1988, and the

relevant hearing on the merits being held in late

1990, the decision being given in February 1991, he

availed himself of a procedure whereby the tribunal

was made aware of facts which existed as at the

date of its hearing and determination, not facts as they existed as at the date of the determination of

Esber(2) 46 12/11/91

the Commissioner's delegate. In our submission, by

so doing, the tribunal ought to have determined the

question of his entitlement to a redemption by
reference not only to the facts as they existed and
as were put before the tribunal at the date of its

determination, but also in accordance with the law

as it then stood.

TOOHEY J: That may say nothing more than throw light upon

the way in which the proceedings were conducted,

rightly perhaps, wrongly perhaps, but it does not
really touch the basic issue with which we are

concerned, does it? Are you suggesting that the
introduction of evidence bearing upon
contemporaneous events, that is contemporaneous to

the hearing and decision of the tribunal, in some

way determines questions of construction or what

the effect of the decision was?

MR GIBSON:  Your Honours, we would submit that it would be

unusual if the facts were put before the tribunal
as at the date of its determination being a
proceeding by way of review rather than by way of
appeal proper, and yet the law to be applied was

the law which existed as at the date of the

original determination.

The converse may not apply. In the

illustration to which Your Honour Mr Justice Deane

adverted before the break, it may well be that if

a decision favourable to the applicant were made by

the Commissioner's delegate prior to the commencing
date and an application for review to the tribunal

instituted also prior to the commencing date by the

Commonwealth, the Commonwealth having no material

to put before the tribunal other than the fact of
the amended legislation, it may well then be proper

for the tribunal to conclude that the law to be

applied is that which was applied as at the date of

the determination.

Alternatively, and perhaps further, in the

illustration to which Your Honour referred us, it

may be that section 128 has application. It

provides that:

Any liability of the Commonwealth ..... to pay

compensation -
under, relevantly -

the 1971 Act shall, to the extent that it had

not been discharged before the commencing day,

be taken to have been incurred by the relevant

authority on that day under the corresponding

provision of this Act.

Esber(2) 47 12/11/91

Notwithstanding that it would be our submission

that section 128 may well apply to the
determination of the Commissioner's delegate in

favour of the applicant, and that the effect of

that determination would be to give rise to a

liability in the Commonwealth, albeit a liability

which may be liable to be set aside, in effect, by

a contrary determination of the Administrative

Appeals Tribunal on review.

BRENNAN J:	Mr Gibson, the real problem may be that 127(2) and 129(2) on their face are irreconcilable on your
argument. If 127(2) takes each existing
determination and embeds it in the 1988 Act as a determination under the law prescribed by the 1988
Act, there would not be any purpose in a proceeding
to challenge that determination under the 1971 Act,
because by statutory operation the determination
which is under challenge in the proceeding is
already embedded by 127(2) in the 1988 Act. Does
that not suggest there is, as it were, a kind of
proper law of a proceeding under 129(2) and the
proper law has to be the 1971 Act, to make those
two sections operate in conjunction?
MR GIBSON:	Your Honour, section 127 has a somewhat

different scope of operation to 129. In

particular, 127(2) applies only in the case of a

determination having been made.

BRENNAN J: That is the extent to which there is any right

to have a review under section 62 of the 1971 Act.

MR GIBSON: Indeed, that is quite so.

BRENNAN J:  So you have got a determination, you have got an

application for review under 62 of the 1971 Act,

and you have got upon that determination, that same

determination, 127(2) operating. What room does

that give, on your argument, for 129(2) to operate

at all?

MR GIBSON:	We would submit that 127(2) merely preserves the effect, or the operation, of a determination
made under the earlier Act.  Were 127(2) not
included in the legislation, doubt may attach as to
the continued operation of a determination made
under the previous legislation.
BRENNAN J:	You mean it is defeasible under the previous

legislation by review under section 62 of the 1971

Act?

MR GIBSON:  I am not sure whether I would put it in those

words but, in effect, yes.

Esber(2) 48 12/11/91

BRENNAN J:  It is either set in concrete by 127(2) or it is

left in its previous vulnerable state.

MR GIBSON:  Yes. It is not, in our submission, set in

concrete, no.

BRENNAN J: Well then, if the determination under the 1971

Act is going to be avoided by a change in the law

in the 1988 Act, there would be no purpose in

having 129(2).

MR GIBSON:  To return to the submission we made earlier,

129(2) is, on our contention, purely procedural.

It does not affect the substantive rights that would derive from a determination made previously.

We would contend that they have a different field

of operation in that manner. Your Honours, we

would submit that in relation to section 127

subsection (3), or the effect of subsection (3) is

to apply subsection (2) to a decision of the court

or tribunal made after 1 December 1988 but that

subsection (2) relevantly provides in the last four

lines that such a determination:

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.

It is our submission that the concluding words

of that subsection derive similar meaning or

amplification as to their meaning by reference to

section 11 of the 1988 Act, which provides that:

The liability of a relevant authority to

pay compensation to a person under this Act is

the liability of that authority to pay to the

person such amount or amounts as are

determined by that authority to be payable to

the person under this Act.

And it is our submission that if the relevant authority is under no corresponding liability to

pay compensation to the employee in question under

the 1988 Act, in this case, by virtue of the

operation of the $50 per week cap on the weekly

compensation, it follows that there is no

corresponding liability to which the liability

referred to in subsection (2) can attach. In the

case at hand there was no corresponding liability

under the 1988 Act. As I have said, the

applicant's receipt of weekly compensation in a sum

exceeding $50 disentitled him to redemption under

section 30.

Esber(2) 49 12/11/91

We would submit, furthermore, that section 127

says nothing as to the substantive law to be

applied. There is nothing in the language of
subsection (2) or (3) which, in our submission,

authorizes a redemption of the liability under

section 46 of the 1971 Act to make future weekly

payments of compensation, once the liability to

make those payments had ceased to exist as it did

as from 1 December 1988.

Your Honours, as Mr Justice Hill observed in

his reasons for judgment at page 109 of the record,

the first and second paragraphs in particular,

there is further support to be derived for this

submission from the language of section 125,

particularly subsection (2). Section 125(2) and

section 137 are the only sections of Part X of this

legislation which refer, expressly, to the question

of redemption.

Section 125(2) refers only to payments having

effect:

as a redemption of a liability -

and made before 1 December 1988, and, in our

submission, that carries the implication that

redemptions of liability under the 1971 Act were

not contemplated as occurring after

1 December 1988.

I have referred to section 137. Perhaps I

should mention in passing, as it was adverted to by

our learned friends, that, in our submission, it

takes the considerations in this case no further at

all. It perhaps merely serves to point out that if

the applicant in this case had not applied for

redemption as at the date of commencement of this

Act, he would not have been entitled to redemption.

The effect upon his rights, such as they were,

would be the same as is the effect for which we

contend on the proper interpretation of the other

provisions of Part X.

Your Honours, in our submission, therefore,

one comes to the conclusion that the traditional
provisions of the 1988 Act are exhaustive and cover

the full ground. There is no scope for an argument

as to accrued rights existing by virtue of earlier
legislation and, in fact, there were no accrued
rights or rights which accrued by virtue of the
1971 Act in favour of the applicant in this case.

In particular, the submission made as to the operation of section 49(5) of the 1971 Act is, in

our submission, erroneous. Section 49(5), which

sets out certain matters to which the

Esber(2) 50 12/11/91

Commissioner's delegate is to have regard, is

couched in negative terms. It provides that:

The Commissioner shall not make a

determination that the liability of the

Commonwealth ..... be redeemed unless he is

satisfied -

as to the matters set forth in subsections (a), (b)

and (c).

In our submission, it does not follow as a

corollary that upon being satisfied of each of the

matters set out in those subparagraphs, the

Commissioner is thereupon obliged to make a

determination in favour of redemption, and we would
draw the Court's attention to the language of

section 30 of the 1988 Act which is couched in

positive terms and which does oblige the

Commissioner's delegate to make a determination in

favour of redemption upon being satisfied of the

matters therein set out.

In our submission, section 49(5) does not

confer a right upon the applicant to redemption. redemption but it is the investigation which is

undertaken upon such a request being made is truly
characterized as an investigation to determine

whether a right ought to be granted, not an

investigation, in relation to the existence of a

right. The distinction in that regard is that

which was addressed by the Privy Council in the

case of Director of Public Works v Ho Po Sang,

(1961) AC 901 at 922, a reference to which the

Court has already been given, and, in particular,

in the first complete paragraph on that page, that

which commences with the words "It is to be

observed", about half-way down the page

Their Lordships say:

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.

It is that distinction which we submit is thrown up by section 49(5) and it is the latter of the two

illustrations given in that passage which is

applicable under section 49(5).

Esber(2) 51 12/11/91

The cases to which the Court was referred this

morning are illustrative of the application of the

principles to different fact situations. We do not

take issue with the statements of principle in the
cases to which the Court was referred this morning.

The question rather is in what way the principle ought to be applied to section 49 and what result

does it yield?

In our submission, the point is perhaps

further elucidated in the judgment of

Mr Justice Fox in the case of J.R. Exports Pty Ltd

v Australian Trade Commission, (1987) 14 FCR 161.

The issue is conveniently summarized in the

headnote. The provision there under consideration

appears at the top of page 162. At page 163, in

the third-last paragraph, about point 7 of the way

down the page, His Honour said that:

It is not possible to define an "accrued right", anymore than it is a "right" but the notion which underlies the latter, when dealing with the present type of problem, is

that there is something in the nature of a

cause of action which has arisen, or is

claimed to have arisen, before the repeal or

amendment, in circumstances which would render

it manifestly unjust for the repealing or

amending Act to affect the situation

adversely.

What is not an "accrued right" is a right to

claim an indulgence, without which there can

be no claim of substance.

We do not necessarily seek to characterize or

describe the decision of the Commissioner's
delegate under section 49 as an indulgence, but it
is nevertheless, in our submission, something other

than a right which is accrued, something other than

a right which could be enforced in the nature of a
cause of action.	The application for

determination, a request for determination, is, in
our submission, of a quite different character.

TOOHEY J: And yet you are driven almost to the point of

saying that it is an indulgence, are you not, if
the delegate were to say, "Well, I'm satisfied of
the matters that are referred to in subsection (5)

but I propose not to accede to the application for

redemption. I do not propose to give reasons why I

do not accede, but that is my decision".

MR GIBSON:  Your Honour, we would certainly acknowledge that

the discretion to be exercised under section 49

must be exercised on reasonable grounds. A

discretion purporting to be exercised capriciously

Esber(2) 52 12/11/91

or on whim would not, in truth, be a proper
exercise of the discretion. But whether there are

matters falling outside the ambit of each of

subparagraphs (a), (b) and (c), but nevertheless

within the ambit of a properly exercised

discretion, is another matter.

Our learned friend gave the example this

morning of a refusal to redeem, a determination

against redemption, by the Commissioner's delegate

on the grounds that the consolidated revenue may

not be able to meet the claim or, perhaps, in a
less extreme case, that for reasons of policy or
otherwise no further redemptions would be granted

until the next financial year. In our submission,

such an illustration is an illustration of a

capricious purported exercise of a discretion and

would not be within the purview of section 49 at

all.

The relevant issue, Your Honours, would seem

to be the distinction which has been drawn between

an administrative decision on the one hand, and a

judicial decision on the other. The discretion

which is exercised under section 49 is of the

former character and, in relation to decisions of

that character the courts have consistently held

against an accrual of rights.

At the risk of descending to cases that are

merely illustrative of different fact situations,

could we refer Your Honours briefly to those cases

which are set out at the foot of page 3 of our

outline of submissions: the case of Robertson v

City of Nunawading, (1973) VR 819, a case in which

the owner of land applied to council for permission

to subdivide land. The relevant local government

legislation was subsequently amended, conferring

upon the council power to make certain demands upon

a person in the applicant's position. The council

exercised those powers and the issue was whether it

was entitled to do so, that is, whether the

amendment to the legislation was applicable to the

circumstances of the case.

At page 823, in the joint judgment of the Full Court, at line 45 and thereafter,

Their Honours referred to the well-known judgments

in Mathieson v Burton and Maxwell v Murphy, and I would simply ask Your Honours to read the passage which goes over to page 824, about line 15. Then,

at page 825, in the final paragraph, commencing

adjacent to line 50, the sentence commencing:

The mere locus standi of a member of the

community to take advantage of an enactment is

Esber(2) 53 12/11/91

not a right within the principle being

discussed, for otherwise there could be no

effective repeal or amendment of any such

enactment.

And after reference to Abbot v Minister of Lands:

There must be a specific right. Resort to the

enactment by the making of an application

under it which looks to an expectancy of

benefit from the application is not itself

productive of such a right. The applicant, by

reason of the mere launching of the

application, acquires no vested right to have

the application determined irrespective of the

repeal of the enactment. The making of the

application sets in train a procedure, but in the absence of some right otherwise existing, there is no right to have the procedure

continued in the face of the repeal of the
enactment under which it was instituted.

TOOHEY J: That is a different right, is it not? You have

moved now from the right to redemption to the right

to have the claim for redemption determined, have

you not?

MR GIBSON:  We have.

TOOHEY J: Would you argue that under the language of the

1971 Act that the applicant had no right to have

his claim determined, whether favourably or

unfavourably?

MR GIBSON:  No, we would not make that submission. He had a

right to request the Commissioner's delegate for a

determination, and he had a right to a

determination but we submit that he had no right to

a favourable determination.

DEANE J:  He had a right to review, is that not the relevant

right here?

MR GIBSON:  He did have a right to review.

DEANE J: And the cases clearly establish that a right to

appeal is a right for the purposes of section 8(c)?

MR GIBSON:  The right of review though, Your Honour, is not

necessarily of the same character as a right of

appeal.

DEANE J: But that is a rather large question, is it not?

MR GIBSON:  It is a matter for consideration in these

proceedings certainly but, in our submission, the

right under section 8 does not attach in that way.

Esber(2) 54 12/11/91

Your Honours, briefly again, if I may take

Your Honours to the case of Ungar

v City of Melbourne, (1979) VR 259. It is not

referred to in our outline but it is in our list.

Again, a joint judgment of the Full Court of the

Supreme Court of Victoria and, again, local

government based matter.

An owner of land applied for a relevant permit

to permit him to use his land in a certain way;
the permit was refused; the owner appealed against

the refusal; by the time the appeal was heard

amendments had been made to the planning scheme,

the effect of which was to make it no longer

permissible to grant the permit in question. At

page 262, about line 45, the court referred to

Robertson's case, Maxwell and then at page 263, at

the top of the page, to Mathieson v Burton. At

page 264, Their Honours referred to the case of

Continental Liqueurs v Heublein, to which the Court

was referred this morning, and then said, at

page 264 in the paragraph commencing at about

line 25:

The issue in the present case is quite disparate from -

those considered in the cases referred to above:

In the present case -

Their Honours said -

there is no issue as to whether the appellant

had a right of appeal to the Appeals Tribunal.

That right was in no way affected by the

amendment to the Planning Scheme. The

amendment to the Planning Scheme did no more

than alter the law applicable to the

appellant's application for a permit.	The
question accordingly is whether the relevant

law to be applied by the Appeals Tribunal was

the law as it existed at the time the appeal

came to be determined.

Then, in the next paragraph, reference was made to

Ho Po Sang, and the discussion concluded at the

foot of page 265 line 50, to 266 line 10, with the

Court concluding that:

the institution of the appeal by the appellant

gave him no more -

in its language -

than a hope or expectation that his appeal

would succeed -

Esber(2) 55 12/11/91

and that there was no accrued right, and that the

applicable law was that which existed as at the

hearing of the appeal.

Finally, in this context, the decision of

Justice Waddell in the case of Sofi v Wollondilly

Shire Council, (1975) 2 NSWLR 614. Your Honours,

that was, again, a case of an appeal and the
question of which law was applicable to the hearing

of the appeal which arose out of local government

legislation.

At page 618 between letters Band C,

His Honour referred to the question of an accrued

right, then referred to Continental Liqueurs v

Heublein. At page 619, the paragraph commencing

between letters Band C, reference to Ho Po Sang,

and then at page 620, the second paragraph, again,
as with the earlier cases, the focusing on the

distinction in principle between the Continental

Liqueurs case and the decision of the Privy Council

in Ho Po Sang. We would simply draw Your Honours'

attention to page 620 from about letter C to the

end of the page through to page 621 letter D.

BRENNAN J: Mr Gibson, do you have any cases which identify

the nature of a right to review in terms of what is

involved in a review of an administrative decision?

MR GIBSON:	Save, Your Honour, for the decision of the Administrative Appeals Tribunal in Costello, which
is referred to in the judgment of Mr Justice Davies
below, Costello's case is on our list and is recorded at (1979) 2 ALO 934, and His Honour
referred to it himself at page 69 of the appeal
record.

BRENNAN J: Yes, well that collects all the relevant cases,

I think.

MR GIBSON:	our submission, referring to the appeal record in Yes. The particular passages of relevance, in	this case, appear at page 69 between lines 25 and 30, at page 70 between lines 5 and 10, and also between lines 20 and 25 and finally, in the
paragraph adjacent to line 40 on that page.
Our submission as to the effect and operation of the transitional provisions of the 1988 Act is
in accord, in our submission, with the judgment in
this Court in the case of Continental Liqueurs Pty
Ltd v G.F. Heublein & Bro. Inc, (1962) 109 CLR 153,
the other decision of the Continental Liqueurs case
which has thus far been referred to being a
decision of Mr Justice Kitto some time earlier. repeal of the trade marks legislation,
Esber(2)	56	12/11/91

consideration of the operation of section 8 of the
Acts Interpretation Act, culminated in the joint
judgment of the Court at page 161, at point 9 of

the way down the page, indeed the last sentence, in

which the Court said:

Close consideration of the special provisions of s.5 -

that is of the trade marks legislation -

induces us to think that the express provision

which it makes with respect to applications

pending under the earlier Act must be read as

exhaustive and that there is, therefore, no otherwise possible to bring the case within
room for the application of s.8 of the

its terms.

Your Honours, we submit that that is the case

here.	We submit that there was no accrued right
arising by virtue of section 49.	We submit that in

any event, the transitional provisions of the 1988

legislation covered the whole field and there was

no scope left for the operation of section 8 of the

Acts Interpretation Act.

Of course, we submit that on the proper

interpretations of sections 127 and 129, what the
applicant had here was not any entitlement to a
decision from the Administrative Appeals Tribunal

based on antecedent legislation, that the effect of

Part X was to terminate the operation of section 46

of the 1971 Act, and that it was section 46 of the

1971 Act which is the origin of the right which the
applicant had to request a redemption of future

payments of compensation, those payments of

compensation being his entitlement under that

section of the legislation.

Your Honours, it is our submission that the

r~asoning of the majority in the Federal Court is

correct in this regard and that the criticisms

which have been directed by our learned friends are

not well founded. The reasoning of His Honour

Mr Justice Davies proceeds relevantly in these

stages: at page 70 of the record, His Honour takes up, in the last passage extracted from the judgment

in Costello at about line 40; he proceeds then at

page 71, between lines 5 and 10, correctly, in our

submission, to say that a decision as to the

redemption of liability to make weekly payments

does not relate back to the date of the claim, but

is a redemption of future liability.

Esber(2) 57 12/11/91

The third stage in His Honour's reasoning

appears at page 74 in lines 1 to 5, lines 10 to 15

and at line 20, and finally at page 75 adjacent to

line 30 .. Having referred to the manner in which

the tribunal approached its decision, His Honour

noted that it had regard to evidence as to the

quantification of the redemption of future payments

of compensation under the 1971 Act.

In that regard we would refer to the

submissions that were made by our learned friends

as to the operation of section 43(6) in this

Administrative was directed to the concluding words of the subsection which provide that unless the tribunal otherwise orders, its decision shall have effect:

context - that is 43(6) of the

or shall be deemed to have had effect, on and
from the day on which the decision under

review has or had effect.

In our submission, whilst it may be the case that
no express order was made by the tribunal in those
terms, nevertheless it is clear from the tribunal's
decision that it did impliedly and effectively so

order. That was the only sensible operation to be

given to its decision, because it did not have

regard to the value of the right of redemption as
at the date on which the applicant applied for a
determination from the Commissioner's delegate; to

the contrary, it had regard to the value of that

right at a later date.

Mr Justice Hill's reasoning is relevantly to

be found in the appeal record commencing at

page 107, in the paragraph adjacent to line 5, the

first complete paragraph on the page. Then,

Your Honours, at page 107 between lines 10 and 15;

at page 108 in the first paragraph, and the final

paragraph on that page.	In relation to section 125
of the Act at page 109 between lines 10 and 15;

then at page 111 adjacent to line 5; and finally,
the foot of page 111 to the top of page 112.

For the reasons which we have already explained, we submit that Mr Justice Hill's

treatment of sections 129 and 127 was erroneous,

particularly His Honour's discussion at page 89 in

relation to section 127 and, as we have already

taken the Court to page 91 of the appeal record, in

the first complete paragraph in relation to

section 129.

Finally, at page 96 in the second paragraph of

that page - I should say, we do not take issue with

the contents of that paragraph but it leads into

Esber(2) 58 12/11/91

the third paragraph commencing at line 10. We take

issue with His Honour's treatment of the matter in

the sentences between lines 10 and 15.

BRENNAN J: What is wrong with that?

MR GIBSON:  Between lines 10 and 15, Your Honour?

BRENNAN J: Yes.

MR GIBSON: Perhaps it is a matter of terminology, but the

reference to the recognition by section 129 of an

"accrued right consisting in the pending

application", or comprising the "pending

application for review", in our submission, is

consistent with His Honour's earlier elevation of

the status of section 129 to a provision of
substance, that being at page 91 of the appeal
record, but for the reasons we have given as to the
machinery nature of that provision, if correct,

then this part of His Honour's reasoning is in

error.

Finally, at page 99 of the record,

His Honour's summary commencing in the paragraph

adjacent to line 10, where he ties up the extensive

discussion previously - the summary relevantly

concludes at page 100 line 5 - is not supportable,

in our submission.	Your Honours, those are our
submissions.

MASON CJ: Thank you, Mr Gibson. Yes, Mr Jackson.

MR JACKSON:  Your Honours, one of the arguments advanced by

our learned friends was that the wording of

section 129(2) was perhaps doubtful and was not

sufficiently clear to show that the 1971 Act

continued to apply, but, Your Honours, if that is

so, and there is an element of doubt about whether

section 129(2) does or does not keep going in the

1971 Act then, we would submit, why does not

section 8 apply, and it would be a curious

consequence if section 129(2) was sufficiently

opaque to make it unclear whether the 1971 Act

continued to apply, but if section 129(2) was at

the same time sufficiently clear to make it

apparent that the general enactment providing for

this class of case, namely, section 8 of the Acts
Interpretation Act, was yet not applicable.

Your Honours, the second thing we would say is this: if one is looking, in terms of section 8, to

the application of the Ho Po Sang test and cases

like it to particular cases, then the decision of

the majority of the Full Court of the Federal Court

in JR Exports Pty Ltd v Australian Trade

Commission, 14 FCR 161, should not, with respect,

Esber(2) 59 12/11/91

be preferred. We would submit that the dissenting

judgment on this point of Mr Justice Beaumont, at

pages 168 to 170, sets out the considerations and

the tests in a more apposite way. Your Honours,

could I indicate the passage and take Your Honours

to the one short part of it to which I wish to

refer particularly.

The relevant part, Your Honours, appears at

page 168, commencing about point 6 on the page,

where Your Honours will see that His Honour set out

Justice Kitto's observations. One goes on then to

page 169, then about the middle of page 169,

His Honour says the "reasoning" in that case was:

applicable in the present case.

Then, Your Honours, in the last paragraph on the

page, says:

It is true that the rights of the

applicant were inchoate or contingent in the

sense that on 16 October, when the new

provisions came into force, the applicant had
not by then requested the Board to

reconsider -

et cetera, and then goes on to say:

But it has been held that a provision such as

s 8(c) can apply to an inchoate or contingent

right provided that it is more than a mere

hope or expectation of administrative action

in favour of the party concerned.

Now, Your Honours, as the judgments in that case and other cases demonstrate, there may be

difficulty in particular cases in deciding on which

side of the line the case falls. However, if one

has a case such as the present, where what is given

is not:

a mere hope -

"mere", if I could emphasize the word "mere" -

hope or expectation -

but an entitlement to have a tribunal consider a
matter by reference to, at the very least,

specified criteria, then it is impossible, we would

submit, with respect, to say that one has a case

where there is no more:

than a mere hope or expectation.

Esber(2) 60 12/11/91

And, of course, the position is a fortiori if the

true analysis of section 49 is that it gives not a

claim to redemption as, if I might use the

expression again, an act of grace if certain
criteria in addition are satisfied, but gives one a

right to redemption if those criteria are

established.

BRENNAN J:	Mr Jackson, does 129(2) preserve any more than the right conferred under section 62 of the 1971
Act. That is the right to review by the AAT.

MR JACKSON:  Yes, I am sorry, Your Honours. So far as that

is concerned, it depends, I suppose, what one

comprehends by that expression. Does it preserve more than the right to review because, of course, the right to review is an expression which, on one

view of it at least, encapsulates the procedure of
the whole of the procedural review including the

steps which may be taken in consequence of the

review. Your Honours, what it does preserve, in

our submission, section 129(2), is that it bases

itself - if I can just go back one stage - on an

assumption, the assumption being that there are

proceedings relating to a matter arising under the

1971 Act; those are the first group of words of

the section. And then it makes it clear by the

words in brackets that that expression to which I

have just referred contemplates in particular

proceedings under Part V, including section 62, of

the 1971 Act. So it is speaking of proceedings

that one, in effect, lifts up, as it were, that

have been instituted in the Administrative Appeals

Tribunal for a review of the decision of the

Commissioner in relation to redemption.

It speaks of those proceedings. It assumes

again, as one sees in the fourth line, that those

proceedings have not yet been completed and it says

in respect of those proceedings that they may be
continued.	Your Honour, one asks then what is

contemplated by the concept of continuation and

what we would submit flows from it is that they may

be continued until the point which they would have

reached had there been no new Act, that is

continued until completion. The completion of the

proceedings, of course, is the determination by the

tribunal. I do not know if that answers

Your Honour's question, but one sees that really everything that the tribunal might have done under

the 1971 Act is something that is contemplated by

subsection (2), and the only aspect of

interpretation in a sense of it is in saying what

is contemplated by continuation in the section and

the answer, we would submit, is that it continues

to complete the uncompleted.

Esber(2) 61 12/11/91

BRENNAN J:  Does section 129(2) apply to judicial reviews as

well as administrative reviews?

MR JACKSON:	Your Honour, it speaks of proceedings relating to a matter arising under the 1971 Act. That,
prima facie, would seem to be an expression which would contemplate legal proceedings which satisfied
the tests.  By "legal proceedings" I mean
proceedings in a court.  Your Honour, there seems
no reason why it would not. And, Your Honour, as I
mentioned before, section· 127(3) contains an express - at least, without attempting to give a
detailed meaning to it - recognition of the fact
that proceedings may be pending in a tribunal. And
Your Honour will have seen that section 127(3) -
which, of course, can only operate from 1 December
1988, in other words operate in a forward sense -
uses both tenses in the verbs contained in it.
That is, "has been", meaning, one would think, in
at least one operation of it, "before that date",
and then "is", meaning an operation from and after
that day.

Your Honours, I was just going to say one more

thing concerning section 8. Our learned friends

said that perhaps the term "right" applies only to

something akin to a cause of action. Well,

Your Honours, of course it includes rights that are

rights of action, but there is not a particular

reason why, in our submission, that should be the
only type of right that is contemplated by it

because, of course, section 8(c) uses a fairly

traditional form of words of "privilege", "right",

"obligation", "liability", and one would think that
that is intended to cover all the possible ranges

of Hohfeldian rights and obligations et cetera

there can be including, Your Honours, in - and when

one comes to paragraph (e) it refers to

investigations in respect of those rights, as well

as other matters. Your Honours, if I could go then to two other

matters. The first is this: our learned friends

referred to the course of evidence which had taken

place before the tribunal. Your Honours, it would
be a very strange result, with respect, if the

course of evidence before the tribunal, after the

new Act came into effect, in some way determined

whether the appellant did or did not, at the

earlier time when the new Act came into force, have

a legal right which survived the enactment of the

new Act.

Your Honours, if I could move then to

something that was said about section 127.

Section 127(3) recognizes the ability to vary

determinations. The determinations which may be

Esber(2) 62 12/11/91

varied are, as subsection (3) says, determinations

referred to in the preceding subsection.

Your Honours, if one looks at what are the

characteristics of determinations referred to in

the preceding subsection, what they are are

determinations made under the 1971 Act - that is

the first thing, Your Honours.

The second thing is that they are

determinations having effect immediately before the

commencing day. Ex hypothesi, of course, such

determinations are ones made by the application of the law in force prior to the commencing day, that is the 1971 Act. Subsection (3), when it speaks of

a variation of a determination of that kind and
when, again, of its own nature - and by "its", I

mean subsection (3) - it is referring to events

occurring after the new Act coming into force, it

is recognizing, in our submission, that there will

be circumstances where, after the new Act has come

into force, the law being applied to matters which

may be varied retrospectively will be the law of

the 1971 Act.	Your Honours, those are our
submissions.

MASON CJ:  Mr Jackson, in the event that you were to

succeed, what order are you seeking?

MR JACKSON:  The order of the Full Court was that the

application to the tribunal be dismissed.	What we
would seek, Your Honour - - -

MASON CJ:. So you would want that set aside?

MR JACKSON:  We would want that set aside, Your Honour, and

that having been done the order would then be that

the decision of the tribunal would then stand.

MASON CJ: What about payments made in the meantime, after

the decision made by the Commissioner?

MR JACKSON:  Your Honour, may I just take some instructions

about that?

MASON CJ: Yes.

MR JACKSON:  Your Honour, could I just say there is a

preliminary question about whether, if we were

successful, we should have to repay anything

because the determination of the tribunal was one

which was made on the basis of the 1971 Act

continuing. The tribunal, in arriving at its
decision, arrived at a conclusion which was then
operating in the way in which it did for the

future, the future being the period after the

payments had been made. The tribunal specifically

declined to reduce the amount of that decision by

Esber(2) 63 12/11/91

reference to amounts which had been paid up to that

time.

Your Honour, I indicated when I was making my

submissions earlier this morning, that there were

two ways in which the tribunal could take account

of payments that had been made. One of them was by

making a decision prospectively; another by going

back and making an adjustment, and, Your Honour,

that is what the position is. So, Your Honours, in

our submission, there should not be any deduction

made. Your Honours, 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.

MASON CJ:  It may be better to leave it on a footing that,

in the event that you were to succeed, and I am not

expressing a view about that, that if any

difficulty does arise then the parties might be

given the opportunity to agree upon the

consequences, and if not to put some submission to

the Court in writing about it.

MR JACKSON:  Yes. Your Honour, the horse of deduction seems

to have not emerged from the barrier after the

Administrative Appeals Tribunal.

MASON CJ: Very well, the Court will consider its decision

in this matter.

AT 3.25 PM THE MATTER WAS ADJOURNED SINE DIE

Esber(2) 64 12/11/91