Griffiths and Military Compensation and Rehabilitation Commission
[2005] AATA 1021
•14 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1021
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2005/75
VETERANS’ AFFAIRS DIVISION ) Re DAVID GRIFFITHS Applicant
And
MILITARY COMPENSATION AND REHABILITATION COMMISSION
Respondent
DECISION
Tribunal Mr Steven Penglis, Senior Member Date14 October 2005
PlacePerth
Decision 1. The reviewable decision of the respondent dated 5 May 2005, reaffirming its reviewable decision dated 24 November 2003, is set aside and in lieu thereof a direction is made that the calculation of the applicant’s entitlement to compensation under the Safety, Rehabilitation and Compensation Act 1988 is in accordance with s 8 (9) of the Act as it was prior to being repealed and replaced by the Safety, Rehabilitation and Compensation and other Legislation Amendment Act 2001.
2. The matter is remitted to the respondent to recalculate the applicant’s entitlement in accordance with the order made in paragraph 1.
3. Pursuant to s 67 (9) of the Safety, Rehabilitation and Compensation Act, 1988 the respondent is ordered to pay the applicant’s costs to be agreed or taxed in accordance with the Tribunal’s General Practice Direction.
..(sgd) Steven Penglis
Senior Member
CATCHWORDS
COMPENSATION – Commonwealth employees – weekly payments – adjustments to normal weekly earnings – “while the employee continues to be employed by the Commonwealth” – requires employment continuous with previous Commonwealth employment - Safety, Rehabilitation and Compensation Act 1988 s 8(9)
COMPENSATION - amendment to s 8(9) of the Safety, Rehabilitation and Compensation Act 1988, by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act, 2001 not applicable to employees injured prior to amendments
WORDS AND PHRASES – “continuous” – Safety, Rehabilitation and Compensation Act 1988 s 8(9)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 8(7), 8(9), 8(9B), 8(10)
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001(Cth), s 3
Acts Interpretation Act 1901 (Cth), s 8
Catton and Comcare [2001] AATA 154
West and Comcare [1999] AATA 159
Griffiths and Comcare [2003] AATA 85
Comcare Australia v Pires [2005] FCA 747
Maxwell v Murphy (1957) 96 CLR 261
Kraljevich v Lake View and Star Ltd (1945) 70 CLR 647
Ku-ring-Gai Municipal Council v Attorney General for the State of New South Wales (1957) 99 CLR 251
REASONS FOR DECISION
14 October 2005 Mr Steven Penglis, Senior Member Background
1. The applicant served with the Royal Australian Navy from 11 November 1991 until 5 June 2000.
2. The applicant suffered an injury in or about July 1995 while serving on the submarine HMAS Onslow.
3. By reason of his injury, the applicant has been incapacitated for work from 24 July 1995 and as a consequence has been entitled to receive compensation in accordance with provisions of s 19 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the Act”).
4. Prior to his discharge from the Navy on 5 June 2000, the respondent wrote to the applicant by letter dated 31 May 2000 in the following terms:
“SAFETY, REHABILITATION AND COMPENSATION ACT 1988 SECTION 36 ASSESSMENT OF CAPABILITY OF UNDERTAKING REHABILITATION PROGRAM
I refer to your recent meeting with Angela regarding a referral for rehabilitation assistance received by this office.
As discussed, I have referred you to CRS Australia and their Consultant, Mr Nigel Gribble will be contacting you in the near future to assess whether a rehabilitation program is required.
This assessment is being provided under Section 36 of the Safety, Rehabilitation and Compensation Act 1988 (SRCA), which provides that where an employee suffers an injury, arising out of, or in the course of, their work, an assessment to determine the employee’s capability of undertaking a rehabilitation program may be arranged.
As part of your rehabilitation program, you may be required to attend an examination. Therefore, you should note that under Section 36(4), where an employee refuses or fails, without reasonable excuse, to undergo an examination or assessment, or in any way obstructs such an examination, the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the examination takes place.
Should you disagree with this determination, you may request to have this decision reviewed, by forwarding a written request to Wendy Faithfull within 30 days of receipt of this notice.
We believe your treating practitioner plays a vital rose in the rehabilitation process. In order to gain an accurate understanding of your current position it will be necessary to obtain reports and guidelines from your treating practitioner. You have been provided with Medical Disclosure Authorities for the release of medical information for you to complete. Please complete the forms and return them to this office as soon as possible.
Enclosed is information on your rights and responsibilities under the SRCA.
If you require any further information or have any questions please contact me on (08) 9366 8563.
DETERMINATION
In the matter of your accepted claim for compensation in respect of Panic Disorder, pursuant to the provisions of the SRCA, and the rehabilitation provisions contained under Section 36, I hereby determine that your capability to undertake a rehabilitation program shall be assessed.
A notice of your Rights and Obligations under the SRCA is attached.”
5. On 31 May 2000, Neil Arbuthnot of the respondent wrote to CRS Australia “Attention: Nigel Gribble” in the following terms:
“Dear Nigel
Thank you for agreeing to provide rehab services to David Griffiths. Following is a referral together with relevant med docs, if you require anything further please let me know.
He is very keen to undertake rehab and looking forward to hearing from you.
Thank you for your assistance”.
6. The “referral” provided with that facsimile described the “Rehabilitation Services Required” as “Assess Rehabilitation Capability” and “Rehabilitation Plan”. The “Approved Cost Limit” was $800. The “Background & Further Instructions” included the following:
“Please conduct a Section 36 assessment and if appropriate proceed to plan development.”
7. On 7 June 2000 the applicant met with Mr Gribble of CRS. A “Rehabilitation Plan” was prepared. Under the heading “Rehabilitation Provider” the Rehabilitation Plan was signed by Nigel Gribble under the following words:
“I agree to provide the above rehabilitation program to the above employee”.
8. The document is signed by the applicant under the heading “Employee” and after the following words:
“I have been involved in the development of this Rehabilitation Plan and understand my rights and obligations under the Safety Rehabilitation and Compensation Act 1988 which have been provided to me on the separate form (SF5)”.
9. Both the signature of the applicant and that of Mr Gribble are dated 7 June 2000.
10. The document is also signed by Mr Neil Arbuthnot. His signature is dated 13 June 2000 and appears under the heading “Rehabilitation Co-ordinator (SRC Act Delegate) and after the following words:
“I hereby determine under Section 37 of the Safety Rehabilitation and Compensation Act (1988) that the employee should undertake the rehabilitation program described in this Rehabilitation Plan”.
11. The “Plan” consisted of various activities such as “Time Management course to improve organisational skills”, “Vocational counselling – to determine career direction”, “Organise and undertake work trial”.
12. Across from each of the various activities were entered dates being “Start Date” and “End Date” as well as “Estimated Cost”. The earliest “Start Date” was 7 June 2000 with respect to the activities “Liaise key parties” and “Travel”.
13. Mr Gribble prepared a handwritten record of his meeting with the applicant. The document is entitled “Rehabilitation Assessment”. It contains observations under headings such as “Current Condition”, “Return to Work Guidelines”, “Work Restrictions”, “Capability for Rehabilitation”, Recommended Rehabilitation Program” and “Additional Comments”. The document was signed by Mr Gribble and dated 7 June 2000.
14. In August 2000 the applicant commenced a work trial at the University of Western Australia Business Library. He was not employed by the University during that period, but rather continued under the care of CRS. He was paid full weekly payments of compensation by the respondent and was covered for Workers’ Compensation by the respondent.
15. Following highly favourable reviews, the applicant received an employment offer from the Australian Taxation Office to commence employment with the Australian Taxation Office on 6 November 2000.
16. The applicant accepted that offer and remains in full time employment with the Australian Taxation Office.
17. On 15 December 2000 the respondent wrote to the applicant in the following terms:
“I refer to your Rehabilitation Program undertaken in relation to your claim for Panic Disorder under the Safety, Rehabilitation and Compensation Act 1988 (SRCA), for which liability has been accepted.
I am writing to advise you that your Rehabilitation Program has been finalised and your rehabilitation case is now closed.
In arriving at this decision, I have taken into consideration all factors required under Section 37 of the SRCA.
The reason for this decision is that you have obtained suitable full time employment as an Australian Public Service Officer Level 2 with the Australian Taxation Office commencing 6 November 2000”.
Application to Review
18. On 24 November 2003 the respondent determined that, for the period 6 November 2003 to 19 November 2003, the applicant’s gross weekly incapacity benefit was $810.36 and for the period 20 November 2003 to a date to be determined, his entitlement was $796.26 per week. This was determined by the respondent applying the provisions s 8 (9B) and s 8(9C) of the Act.
19. The applicant requested a reconsideration of the determination by letter dated 19 February 2004.
20. By letter dated 4 February 2005, the respondent informed the applicant that it had reaffirmed its decision.
21. The applicant contends that, as from 1 October 2001, the calculation of his weekly compensation should be pursuant to s 8 (9) and 8 (9A) of the Act, not s 8 (9B) and (9C).
22. The issue for determination by the Tribunal is whether, as the applicant contends, the quantification of his entitlement to compensation is pursuant to s 8(I) and 8(9A) of the Act or, as the respondent contends, is pursuant to s 8(9B) and (9C) of the Act.
The Legislation
23. It was common cause before the Tribunal that prior to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 (No.114/2001) (“the Amending Act”), which came into force on 1 October 2001, s 8(9) of the Act governed the calculation of the compensation to which the applicant was entitled. Section 8(9) provided as follows:-
“If the minimum amount per week payable in respect of employees included in a class of employees of which the employee was a member at the date of the injury is increased or reduced on or after that date as a result of:
(a) the operation of a law of the Commonwealth or of a State or Territory; or
(b) the making, alteration or operation of an award, order, determination or industrial agreement, or of the doing of any other act or thing, under such a law;
the normal weekly earnings of the employee before the injury, as calculated under the preceding subsections, shall be increased or reduced by the same percentage as the percentage by which that minimum amount was so increased or reduced, as the case may be”.
24. The Amending Act (by section 3 and Item 13 of Schedule 2) repealed s8 (9) and substituted a new s8 (9), as well as subsections (9A), (9B), (9C) and (9D). Those sections now provide as follows:
“(9) The normal weekly earnings of an employee before the date of the employee's injury, as calculated under the preceding subsections, must, while the employee continues to be employed by the Commonwealth or a licensed corporation, be increased or reduced by the relevant percentage.
(9A)For the purposes of subsection (9), relevant percentage means the same percentage as the percentage of increase or reduction in the minimum amount per week payable in respect of employees included in a class of employees of which the employee was a member at the date of the injury as a result of:
(a) the operation of a law of the Commonwealth or of a State or Territory; or
(b) the making, alteration or operation of an award, order, determination or industrial agreement or the doing of any other act or thing, under such a law.
(9B)The normal weekly earnings of an employee before injury, as calculated under subsections (1) to (8) and as increased or reduced under subsection (9) must, if the employee has ceased, or ceases, to be employed by the Commonwealth or a licensed corporation, be further increased, with effect from each indexation date in relation to that cessation, by reference to the percentage of increase (if any) of an index that is prescribed for the purposes of this subsection over the year ending on the 31 December preceding each such indexation date.
(9C) For the purpose of subsection (9B), the indexation date, in relation to a cessation of employment, is:
(a) the 1 July next following:
(i) the date on which this Act receives the Royal Assent; or
(ii) the date of that cessation of employment;
whichever last occurs; and
(b)each subsequent 1 July.
(9D)For the purpose of subsection (9B), the regulations may specify the manner of calculating the further increase referred to in that subsection by reference to the movement of the index that is prescribed for the purposes of that subsection.”
Applicant’s Submissions
25. Counsel for the applicant, Mr Christie, submitted that the proper construction of s 8(9) of the Act was that the word “continues” should not be construed as requiring “continuous” employment with the Commonwealth since the date of the injury. Rather, it was submitted that when calculating the normal weekly earnings of an employee for a particular week, the issue is whether or not, at that time, the employee is employed by the Commonwealth or a licensed corporation. If so, Mr Christie submits that such an employee “continues to be employed by the Commonwealth“within the meaning of s 8(9). Mr Christie accepted that this meant that the calculation of an employee’s entitlement may vary from period to period should an employee cease to be employed by the Commonwealth or a licensed corporation, then subsequently gain fresh employment by the Commonwealth or a licensed corporation.
26. Mr Christie also submitted that even if the phrase “the employee continues to be employed the Commonwealth or a licensed corporation” requires “continuous” employment since the date of the injury, the applicant nevertheless satisfied that requirement because of both or either of the following:
(a)the period from which such continuity ought to be determined by reference to an employee that had suffered the relevant injury prior to the Amending Act ought to be the date from which the amending Act took effect. It was common cause before the Tribunal that this was 1 October 2001 and that the applicant had been in “continuous” employment with the Commonwealth since that date: and
(b)in any event, the applicant’s employment with the Commonwealth had been continuous since his injury by reason of s 5(6) of the Act.
Respondent’s Submissions
27. Counsel for the respondent, Mr Wallace submitted that the proper construction of s 8(9) of the Act was the word “continues” should be construed as requiring “continuous” employment with the Commonwealth since the date of injury. He submitted that was irrespective of the fact that the Act took effect after the date of the applicant’s injury. He further submitted that s 5(6) of the Act did not assist the applicant in establishing that his employment with the Commonwealth had been continuous since his injury.
The proper meaning of the words “while the employee continues to be employed by the Commonwealth” in s 8(9) and “if the employee ceases to be employed by the Commonwealth or Licensed Corporation” in s 8(9) of the Act.
28. The respondent relied heavily upon two prior decisions of this Tribunal, namely, the decision of Senior Member, Beddoe in re Catton and Comcare [2001] AATA 154 and the decision of Senior Member, Burton in re West and Comcare [1999] AATA 159.
29. Both of those decisions were concerned with s 8(7) of the Act which was (and still is) in the following terms:
“Subject to this section, if:
(a) an employee continues to be employed by the Commonwealth or a licensed corporation after the date of an injury; and
(b) the minimum amount per week payable to the employee in respect of that employment is increased because of the promotion of the employee;
the normal weekly earnings of the employee before the injury, as calculated under the preceding subsections, shall be increased by the same percentage as the percentage by which that minimum amount per week is increased”.
30. In West’s case, Senior Member Burton held as follows:
“13. The applicant urges the word "continues" in s 8 (7) (a) is to be read in the sense of going on after an interruption. The Macquarie Dictionary (2nd edition) provides various meanings for "continue". The first is "to go forwards or onwards in any course or action; keep on", and the second, "to go on after suspension or interruption", and further, "to carry on from the point of suspension or interruption: as to continue a narrative". The latter is supportive of the construction contended for by the applicant. The dictionary further provides for "continue" to mean "to cause to last or endure; maintain or retain: as in a position", or "to carry over, postpone, or adjourn; keep pending, as a legal proceeding".
14. The Act is a remedial statute beneficial in nature. In Saraswati v The Queen (1991) 172 CLR 1 at 21, His Honour Justice McHugh observed that if the literal or grammatical meaning of a provision does not give effect to the purpose of the legislation, that meaning cannot be regarded as "the ordinary meaning" and cannot prevail. His Honour Justice Burchett in Commonwealth v Human Rights And Equal Opportunity Commission & Anor (1998) 76 FCR 513 noted at 520-521 that although remedial legislation should be construed liberally:
…it must be applied with a watchful eye. Sometimes the construction which is liberal to one person may be illiberal to others. Where remedial legislation contains exemptions to strike a careful and practical balance between competing interests, a court which distorts that balance in the name of furthering the remedy risks usurping a political role, and in so doing, frustrating the will of parliament.
The Act must be construed such that the purpose and object of the Act will be served. In so doing, it can only be construed consistently with the language of the Act (Secretary, Department of Social Security v Cooper (1990) 11 AAR 315).
15. Justice Davies in Breust v Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (1991) 13 AAR 399, at 401 considered the construction of section 8 of the Act. He said that "[t]he whole of s 8 should be considered for the purpose of ascertaining the meaning of words used in the section". His Honour also considered the meaning of "that employment" in section 8. To what employment "that employment" refers in subsection 8 (7) is also a matter I must consider. His Honour at page 402 concluded:
However, s 8 is drafted so as to leave no doubt that the references in s 8(1) to "his or her employment" and "that employment" are references to the employment out of which, or in the course of which, the injury or disease arose or was incurred. This is because the section does not refer to earnings generally but to the number of hours worked each week in an employment, to the employee's average hourly ordinary time rate, to the average amount of allowances payable "in respect of his or her employment' and to "the relevant period", a term defined in s 9. All these provisions show that s 8 is not concerned with earnings generally. From this, I deduce that the term "employment" has the limited meaning of "the relevant employment ...".
His Honour Justice Davies in Breust also examined the application of the Act in respect of members of the Defence Force. This required the Court to examine subsection 5(2) of the Act. The relevant part of subsection 5(2) states, in relation to the employments there mentioned, that such an employee:
shall, for the purposes of this Act, be taken to be employed by the Commonwealth, and a person's employment shall, for those purposes, be taken to be constituted by the person's performance of duties as such a member of the Australian Federal Police or member of the Defence Force or the duties of that office, as the case may be.
Commenting on this subsection, Justice Davies at 402 said:
However, I would point out that the provisions of s 5(2) of the Act detract from rather than support, the submission that the Act is concerned with the totality of the employee's employment or employments with the Commonwealth rather than with the employee's individual employment or employments with the Commonwealth. ...
This subsection contemplates that employment as a member or (sic) the defence force will be looked at as a separate employment by the Commonwealth.
16. For the purposes of the Act, a member of the defence forces' employment with the Commonwealth is constituted by that person's performance of the duties of that office. Once discharged from that office, his or her employment with the Commonwealth ceases. Bearing in mind the comments of Justice Davies, the reference to "that employment" in subsection 8(7)(b) must be read as a reference to the applicant's employment in the Army at the time he was injured, rather than to Commonwealth employment generally. The object of the section is to make a correct and fair assessment of what an employee's NWE were likely to be, had he or she not suffered the injury. The applicant's employment with the Army is the relevant employment to look at, not his subsequent employment with the Commonwealth. This interpretation of section 8 of the Act is in keeping with the purpose and object of the Act and is not inconsistent with the language of its provisions.
Discussion
17. It seems clear from the above cases that an employee's resumption of employment with the Commonwealth is not sufficient in itself for the employment to be regarded as continuing. In assessing whether or not subsection 8(7) applies to an employee's situation, regard must be had to the nature of the employment at the time the injury was suffered, the nature of the break in, or the suspension or interruption of, the employment, the nature of the resumed employment, and the employment history, including promotions, thereafter.
18. Circumstances can be envisaged where employment with the Commonwealth continues, notwithstanding a break in that employment. An employee who takes an authorised leave of absence does not necessarily discontinue his or her employment, though that person may be absent for a significant period of time, and working else where - for example on an exchange program. The duration of the break is a relevant factor to be looked at for the purpose of assessing the nature of the break in the employment, but on its own its length is not decisive.
19. The question arises whether an employee who resigns from Commonwealth employment and subsequently obtains employment in the APS can retrospectively change his or her status from that of a person who has ceased being employed by the Commonwealth to one who continues to be employed by the Commonwealth. If "ceased" is to be given any meaning in subsection 8(10), I do not think the passage of time can alter the status of the employee from someone who has "ceased" employment with, to someone who "continues" to be employed by, the Commonwealth.
20. Further, to come within subsection 8(7)(a) an employee is to have received an increase in salary as a result of a promotion. I accept the submission of counsel for the respondent, that the use of the word "promotion" reinforces the requirement of the continuity of service with the Commonwealth. The Macquarie Dictionary (2nd edition) gives the meaning of promotion, in the sense of its use in the subsection, as "advancement in rank or position". A promotion or advance to a position or place is referable to a previous position or place.
21. Resuming or returning to employment with the Commonwealth after termination of Commonwealth employment is not descriptive of an employee "who continues to be employed by the Commonwealth" after the date of an injury, when read in the context of the increase in pay arising as a result of the employee's "promotion". The applicant's return to the APS at a salary in excess of his earnings at the time of his previous termination, can not in those circumstances be regarded as a promotion from that previous employment.
22. The fact of increase in salary is only one factor in determining whether an appointment to a position is by way of "a promotion". An employee may receive a promotion without an increase in salary. I do not think that the fact on its own that an employee obtains a position at a higher salary level from the position held at the time of the employee's injury can be regarded as a "promotion", and certainly not in the applicant's circumstances where he moved in and out of Commonwealth employment over many years and held various positions with both the public and private sector.
23. Counsel for the applicant submits that had the applicant remained in the APS without a break, and had he been promoted he would unquestionably have enjoyed the benefit of subsection 8(7). That might be so. However, in this case, the applicant was discharged from the Army, and when he resumed employment with the Commonwealth, it was in the capacity of a civilian. Further, he did not continue in his APS employment and it can not be assumed that the increase in the applicant's earnings over the period of 29 years subsequent to his injury in 22 October 1968 are attributable only to promotions in the APS. I therefore do not have to decide whether Commonwealth employment which has been terminated can be regarded as unbroken in circumstances where the employee is re-employed in the same Commonwealth employment within a short period of time.”
31. In Catton’s case, Senior Member Beddoe expressed his agreement with the decision of Senior Member Burton in West’s case.
32. Mr Christie, for the applicant, did not seek to challenge the Tribunal’s decision in either West or Catton. Rather, he submitted that they were distinguishable in that they were concerned with s 8(7) of the Act which, he submitted, was “a particular provision suited to benefit employees who are injured and who subsequently receive a promotion and it has not been amended since the Act was first introduced. S 8 (7) addresses a very different situation than that addressed by s 8 (9) and (9B) and the phrase itself is different with the conclusion of the words in s 8(7) (“after the date of injury” and “that employment”)”.
33. Mr Christie further submitted that, in contrast, the phrase “continues to be employed by the Commonwealth” in s 8(10)(a) would appear to have a similar meaning to the same phrase used in s 8(9) and the phrase “has ceased to be employed by the Commonwealth” is s 8(10)(b) would appear to have a similar meaning to the similar (but not identical) phrase used in s 8 (9B)” of the Act.
34. In this regard Mr Christie relied upon the previous decision of this Tribunal concerning the same parties, namely, Griffiths and Comcare [2003] AATA 85 particularly at paragraphs 6, 24, 51 and 65. In that matter, Deputy President Wright QC made certain observations with respect to the applicant “continuing to be employed by the Commonwealth” by reason of his employment with the Australian Taxation Office.
35. The decision of Deputy President Wright QC is of no assistance in the resolution of this matter. In the course of the hearing, Mr Christie, rightly in my view, made it clear that he did not consider the earlier decision to constitute any form of “precedent” or to in any way operate as an estoppel. He agreed that the matter then before the Tribunal was quite different from this matter; it did not concern the proper construction of the subsections presently before the Tribunal, and further, the issue as to whether or not the applicant “continues to be employed by the Commonwealth or licensed corporation” for the purpose of s 8 (10) of the Act was not the subject of any joinder of issue between the parties, and was therefore not the subject of any detailed submissions before the Tribunal. All these reasons, as well as the fact that several of the comments relied upon by the applicant can properly be categorised as simple statements of fact (rather than conclusions), lead me to conclude there is nothing in the prior decision which usefully bears on the matters presently requiring resolution by the Tribunal.
36. Having carefully considered the applicant’s submissions, I am not persuaded that a different meaning to the phrase “continues to be employed by the Commonwealth” in s 8(9), as amended, ought to be given a different meaning than that which has been ascribed to the words “continues to be employed by the Commonwealth” in s 8(7). I respectfully agree with and adopt the views expressed by Senior Member Burton in West’s case (as reproduced by me herein). I acknowledge that, unlike s 8(7), there is no reference to “that employment” in s 8(9), and I accept that those words played some part in Senior Member Burton’s decision. However, I do not read Senior Member Burton’s decision as turning on those words; rather Senior Member Burton appears to have used those words to reinforce what he considered in any event to be the proper construction of s 8(7) having regard to the other factors to which he carefully and thoroughly referred.
37. Having regard to the principles articulated by the authorities referred to by Senior Member Burton, I have concluded that s 8(9) requires continuity of employment. Had it been intended by parliament that, as submitted on behalf of the applicant, each time a payment is made to an injured employee the respondent must consider whether the employee is at that time employed by the Commonwealth or a licensed corporation in order to determine which limb of s 8 applies, the section could and ought have clearly said so. The word “continues”, when read in the context of which it appears, is not satisfied where an employee has not continued to remain an employee of the Commonwealth since his or her injury, but rather having terminated such employment, subsequently gains separate and different employment with the Commonwealth.
38. In reaching this conclusion I am also mindful of and apply what has been referred to as “the modern approach to statutory construction”, namely, ‘to construe the relevant provision in a context that is consistent with the language and purpose of all of the constituents of statute’: Comcare Australia v Pires [2005] FCA 747 at paragraph 30, and the authorities referred to therein.
39. I also consider that this conclusion to be reinforced by s 8(9B), which deals with the situation where “the employee has ceased, or ceases, to be employed by the Commonwealth or a licensed corporation”. That subsection would clearly apply to an employee who terminates their employment with the Commonwealth. To conclude that the subsection no longer applies because the employee has subsequently gained fresh employment with the Commonwealth is to construe the section otherwise than in accordance with the ordinary meaning of the words used.
Does The Amending Act Operate “Retrospectively”
40. Counsel for the applicant submitted that if I were to conclude that the proper construction of s 8(9) is as I have found it to be, the applicant has nevertheless satisfied s 8(9) as he had been in continuous employment with the Commonwealth since the date when the Amending Act passed into law, namely 1 October 2001.
41. Counsel submitted that this was the ordinary meaning of subsections 8(9) and (9B), the former which deals with the first class of injured person, containing the phrase “…was employed …continues to be employed by the Commonwealth…” whilst the latter deals with the second class of injured persons, contains the phrase “…employee has ceased or ceases to be employed by the Commonwealth…”.
42. In the applicant’s outline of submissions, it was put thus
“10. Both of the above phrases are concerned with the employment position of the injured employee as at the date of introduction of the amending Act and with any future changes in that employment. There is nothing in either of the above phrases which suggest that the amending Act is intended to have retrospective effect to take into account breaks in Commonwealth Employment that may have occurred prior to the introduction of the amending Act, or indeed that may have occurred even prior to the introduction of the Principal Act in 1988. An employee may have been injured in the 1960s or 1970s and have been continuously employed by the Commonwealth for the last 30 years; is it really intended that this amendment requires that Comcare search back through such employee’s records, which may no longer exist, to see whether there was at any time a break in that employment, so that Comcare will know which subsection the employee should be paid under?
11. There is nothing in the Explanatory Memorandum or the Parliamentary Speeches which suggested that there was intended to be any retrospective effect to the provision. The Explanatory Memorandum states that the changes apply to those people “who are no longer employed by the Commonwealth”. There is no suggestion that the changes were intended to also apply to people, who were currently employed by the Commonwealth, but who at some time in the past had had a break in that employment. The sole rationale for the changes is stated as being to provide certainty and timeliness in the adjustment of normal weekly earnings. It hardly helps timeliness and certainty if Comcare has to search the records of current Commonwealth employees to see which ones have had a break in their employment and which ones have been continuously employed since their injury or injuries. Mr Reith in his Second Reading Speech in relation to this issue only refers to the Bill addressing deficiencies in compensation to “former employees”.
12. Further it is a basic principle of Statutory interpretation that an Act or an amending Act should not be given retrospective application, unless the words of the Statute clearly require it. There is nothing in the use of the words in s 8(9) and (9B) which requires these sections to be construed retrospectively so that they apply to a person, who has had a past break in his employment with the Commonwealth, but who continues to be employed by the Commonwealth at the time that the amending Act comes into force.”
43. The general rule of common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer, impose or otherwise affect rights or liabilities which the law had defined by reference to the past events: Maxwell v Murphy (1957) 96 CLR 261 at 267.
44. Counsel for the respondent accepted this general rule, but submitted that it had no application to the present matter as it did not affect the applicant’s “rights” or the respondent’s “liabilities” within the meaning of the rule as the applicant’s right to compensation arises by s 14 of the Act: s 8 is only relevant to quantum that the applicant is entitled to be paid and the respondent is liable to pay. He submitted that the issue of retrospectively simply did not arise.
45. It is important to understand, as Mr Christie clarified during the course of his submissions that the applicant is not suggesting that the Amending Act purported to act retrospectively in the sense of changing any of the applicant’s entitlements in respect of the period prior to the Amending Act. Rather, his reference to the Amending Act not being given “retrospective application” was a reference to the general rule to which I have referred.
46. In Ku-Ring-Gai Municipal Council v Attorney-Generalfor the State of New South Wales (1957) 99 CLR 251, Fullagar J. clarified what the High Court had pointed out in Maxwell v Murphy, namely, that “when the word ‘retrospective’ is used in this connection, it is not used in its strict meaning of ‘ex post facto’. A true ex post facto statute is a comparatively rare thing. What the rule really means is that prima facie a statute must not be construed so as to change the legal character, or the legal consequences, of past events and transactions.” (p269). Fullagar J. further held (at p. 269):
“The expression “change the character of past transactions” is used by Willes J. in the well known passage in Phillips v Eyre (1870 LR 6 QB1 at p. 23). In Reg v Guardians of Ipswich Union (1877) 2 QBD 269, Cockburn C.J. said: “It is a general rule that, where a statute is passed altering the law, unless the language is expressly to the contrary, it is to be taken as intended to apply to a state of facts coming into existence after the Act” (1877) 2 QBD at p.270. In Kraljevich v Lake View & Star Ltd. (1945)70 CLR 647, Dixon J stated the rule in similar terms. He said: “The presumptive rule of construction is against reading a statute in such a way as to change accrued rights the title to which consists in transactions passed and closed or in facts or events that have already occurred” (p. 652). So in that case it was held that an amendment of a Workers’ Compensation Act, which altered the method of assessment of compensation in certain cases, was not applicable to a case in which the accident to the worker had occurred before the amendment came into force : cf. Moakes v Blackwell Colliery Co Ltd. (1925)2 KB 64; Clement v D Davis & Sons, Ltd. (1927)AC 162; British Broken Hill Pty. Co. Ltd. v Simmons (1921) 30 CLR 102. Those were all cases relating to workers’ compensation. The fact or event to which the relevant legal consequences attached was the accident to the worker.”
47. In Kraljevich v Lake View and Star Ltd (1945) 70 CLR 647, in holding that an amendment to the Workers Compensation Act of Western Australia (which dealt with an amendment to the method of assessment of amounts payable) did not apply to workers injured prior to the date of the amending legislation coming into effect, Latham CJ held as follows:
“It is a general rule that where a statute is passed altering the law, unless the language is expressly to the contrary, it is to be taken as intended to apply to a state of facts coming into existence after the Act” (per Cockburn CJ in R v Ipswich Union (1877) 2 QBD 269, at p. 270). In the present case there is no language ‘expressly to the contrary’, and therefore prima facie the amending Act applies only in the case of accidents which happen after the Act. On this ground, it should be held that the new Act does not apply to the accident or anything arising out of the accident of which Kraljevich was the victim. If the new Act had merely altered procedure, the case would have been different, but it is impossible to regard that Act as merely affecting procedure.
The rights of the worker and the liabilities of the employer under the 1912-1941 Act are, however, preserved by reason of the rule of interpretation which in Western Australia has been given statutory form in the Acts Interpretation Act 1918, s 16, which provides as follows:- ‘Where any Act repeals … a former Act or any provision or words thereof … then, unless the contrary intention appears, such repeal … shall not … (c) affect any right … created, acquired, established or exercisable … prior to such repeal … or (d) affect any duty, obligation, liability … imposed, created, or incurred prior to such repeal’. A mere right to take advantage of a statutory enactment is not an accrued right within the meaning of this provision (Abbott v Minister for Lands (1895) AC 425). But, in the present case, the right is a right to obtain an order for a sum of money calculated in a particular way, not merely a right to redemption in abstracto. The right of the worker who suffers from an accident for which compensation is payable under a Workers Compensation Act accrues immediately on the happening of the injury (Stevens v Railway Commissioners for New South Wales (1931) 31 SR (NSW) 138; 48 WN 69. See also Clement v D Davis & Sons Ltd (1927) AC 126). The new Act applies only to accidents happening after the Act came into operation and the former provisions continue to apply to rights and liabilities in respect of accidents happening before that time (Moakes v Blackwell Colliery Co Ltd (1925) 2 KB 64). These authorities show that the alteration of the rights and liabilities of persons made by the amending Act must be regarded as relating only to the future, and that the rights of the worker and the liabilities of the employer are preserved as they were before the amending Act was passed.”
48. Section 8 of the Acts Interpretation Act, 1901 (Cth) provides:
“Where an Act repeals in whole or in part a former similar Act, then unless the contrary intention appears the repeal shall not …. (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any Act so repealed”.
49. The rule is, of course, only rule of construction. It is no more than a presumption which must yield to any sufficient indication of a contrary intention.
50. In the present case, however, there is nothing in the Amending Act or the words of the relevant sections themselves indicating a contrary intention
51. I therefore conclude that the Amending Act does not affect any injury to which the Act applied which had occurred prior to the Amending Act. Accordingly, I uphold Mr Christie’s submission that the Amending Act does not affect the calculation of the compensation to which the applicant is entitled, not because, as Mr Christie submitted, the word “continues” in the Amended Act ought to be given a meaning to avoid having “any retrospective effect”, but because the repeal of s 8(9) and its replacement with the new s 8(9) and additional sub-sections introduced by the Amending Act do not apply to the applicant: the applicant’s entitlement remains pursuant to s 8(9) of the Act as it stood unamended. As the Amending Act contains nothing suggesting a contrary intention, I find that to be the necessary result of the application of the decisions of the High Court to which I have referred, as well as s 8 of the Acts Interpretation Act.
S 5(6) of the Act
52. Given the conclusion I have reached, it is unnecessary for me to deal with the applicant’s submission to the effect that, by reason of s 5(6) of the Act, the applicant has been in “continuous” service with the Commonwealth from the date of his injury. Although it is often desirable for the Tribunal to resolve all contentions raised by parties before it, even if it be unnecessary to do so for the purpose of disposing of the application, for the reason which follow, I decline to do so in this case.
53. At the conclusion of the hearing, I considered the state of the evidence on this issue to be unsatisfactory. Accordingly, and at my request, the respondent agreed to provide, within seven days, certain further information. The respondent was given the same period in which to provide, in writing, any further submissions it sought to make on this point having regard to the material then provided, with the applicant given a similar opportunity to provide, in writing, written submissions within seven days thereafter.
54. The material provided by the parties pursuant to the Tribunal’s directions raised various issues, including disputes of fact. It is not possible for the Tribunal to resolve those matters without receiving further submissions (and possibly undertaking a further hearing).
Conclusion
55. For reasons I have given, I find that the respondent’s calculation of the applicant’s entitlements by reference to the subsections of s 8 of the Act which were introduced by the Amending Act to be wrong in law and ought to be set aside. The amendments to s 8 of the Act resulting from the Amending Act did not affect the applicant’s entitlements. They continued to be governed by s 8(9) of the Act prior to repeal by the Amending Act.
56. The matter ought therefore to be remitted to the respondent for re-calculation and payment of the applicant’s entitlements in accordance with these reasons.
57. Section 67 (9) of the Act provides that where the Tribunal gives a decision setting aside a reviewable decision and remitting the case for re-determination by the determining authority, the Tribunal shall, subject to s 67, order that the costs of the proceeding incurred by the claimant shall be paid by the responsible authority.
58. No submissions were made on behalf of the respondent that, in the event of the Tribunal setting aside the reviewable decision and remitting the case for re-determination by the respondent, the claimant ought not to be awarded its costs.
59. Accordingly, and having considered the whole of s 67, I have concluded that the claimant’s costs of the proceedings ought to be paid by the respondent.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Steven Penglis, Senior Member.
Signed: ….(sgd D Brodie)...................................
AssociateDate of Hearing 7 September 2005
Date of Decision 14 October 2005
Counsel for the Applicant Mr H Christie
Solicitor for the Applicant Henry Christie
Counsel for the Respondent Mr J Wallace
Solicitor for the Respondent Sparke Helmore
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