Heath v Commonwealth

[1982] HCA 61

HIGH COURT OF AUSTRALIA

Mason, Murphy, Wilson and Brennan JJ. The Hon. Mr Justice Aickin died before reasons for judgment were published.

HEATH v. THE COMMONWEALTH

(1982) 151 CLR 76

28 October 1982

Workers' Compensation (Cth)

Workers' Compensation (Cth)—Entitlement to weekly payments for partial incapacity—Right of employee to request lump sum redemption in lieu of weekly payments after certain period—Other provisions for lump sum payments for certain permanent times—Weekly payments to terminate on payment of lump sum—Relationship between right to redemption and other lump sum provisions—Compensation (Commonwealth Government Employees) Act 1971 (Cth), ss. 27(4), 39, 46, 49(1), 50.

Decisions

October 28.
The following written judgments were delivered: -
MASON AND WILSON JJ. This is an appeal from a decision of the Federal Court of Australia on a question of law referred to it in accordance with s. 94A(1) of the Compensation (Commonwealth Government Employees) Act 1971 (Cth), as amended ("the Act"). The question concerns the entitlement to compensation of the appellant, Mr. Heath. (at p78)

2. Between 1969 and 1974 Mr. Heath suffered a series of compensable injuries which left him with a twenty per cent permanent loss of the efficient use of the left leg at or above the knee and a twenty-five per cent permanent loss of the efficient use of the right leg at or above the knee. These injuries resulted ultimately in a continuing partial incapacity for work. After receiving weekly payments in respect of his partial incapacity for work for a period Mr. Heath, pursuant to s.49 of the Act, requested the payment of a lump sum in redemption of the liability of the Commonwealth to continue making those weekly payments. It is unnecessary to trace in detail the course of events in relation to that request. On 30 November 1978 the Chief Delegate of the Commissioner for Employees' Compensation ("the Commissioner") determined of his own motion that, pursuant to s. 39 of the Act, Mr. Heath was entitled to compensation in respect of the physical injuries to his legs and awarded him a total lump sum of $5,212.50. He then refused the request for redemption, on the basis that by reason of s. 46(5) of the Act any entitlement to weekly payments during partial incapacity ceased on payment of the lump sum, with the consequence that there was no further liability of the Commonwealth in that regard to be redeemed. (at p79)

3. The decision of the Chief Delegate is said by his counsel to have very serious implications for Mr. Heath. He was then thirty-seven years of age. He had been receiving weekly payments of approximately fifty dollars in respect of his partial incapacity, and the prospect was that in the absence of a determination under either s. 39 or s. 49 that entitlement would continue until he attained sixty-five years of age, by which time the total compensation he would have received could be expected to exceed seventy thousand dollars. (at p79)

4. In accordance with s. 90 of the Act, Mr. Heath sought a judicial review of the determination by the County Court of Victoria, whereupon that Court referred a question of law to the Federal Court. By majority (Fox and Franki JJ., Northrop J. dissenting) the Federal Court answered the question adversely to Mr. Heath, who now appeals to this Court. (at p79)

5. The issue is clearly drawn between the parties. It is common ground that if there were no incapacity for work, Mr. Heath would be entitled to the lump sum compensation awarded to him by the Chief Delegate for the injuries to his legs. It is also common ground that, in the absence of a determination pursuant to s.39, Mr. Heath was entitled to continue to receive weekly payments during partial incapacity for work with the further entitlement in accordance with s. 49 to request the payment to him of a lump sum in redemption of the Commonwealth's liability to make further weekly payments. (at p79)

6. There are three questions arising out of the matters argued on the appeal. The first is whether a present partial incapacity for work affects the power to grant lump sum compensation under s. 39. If that question be answered in the negative, it becomes necessary to consider whether an award under s. 39 has any effect on the employee's right to continue to receive weekly payments under s. 46. The third question is whether in the circumstances of this case the Chief Delegate was required to make a determination under s. 39. (at p80)

7. It is convenient to begin the consideration of these questions with a brief survey of those features of the Act from which the answers are to be drawn. They include the following: (at p80)

8. (a) Section 20(1) provides that, subject to the Act, the function of the Commissioner is to determine all matters and questions arising under the Act, and he is empowered to do all things necessary to that end, being guided by equity, good conscience and the substantial merits of the case. (at p80)

9. (b) Section 27(1) renders the Commonwealth liable to pay compensation, in accordance with the Act, in respect of personal injury arising out of or in the course of the employment of an employee. An amount of compensation payable under one provision of the Act in respect of an injury is, unless the contrary intention appears, in addition to any amounts of compensation paid or payable under any other provision of the Act in respect of that same injury (s. 27(4)). (at p80)

10. (c) Section 39 provides that compensation in the form of a lump sum is payable for the permanent losses, resulting from injury, specified in that section. Incapacity for work is not a criterion of eligibility for this compensation. Indeed, total incapacity, or the likelihood of total incapacity, resulting in whole or in part from the injury, is an express disqualification (s. 39(14)). (at p80)

11. (d) Sections 40, 41 and 42 provide for compensation in the form of a lump sum for injury resulting in sexual impairment, permanent facial disfigurement and the loss of taste respectively. These entitlements may be awarded in addition to any amounts of compensation that may be payable during incapacity for work arising from the same injury. (at p80)

12. (e) Section 45 provides, subject to the section, for compensation in the form of weekly payments during total incapacity for work. Special provision is made to deal with a case where total incapacity occurs after a determination has been made under s. 39, or under s. 49(s. 45(9)). Any entitlement in that regard must be found in s. 47 or s. 50. (at p80)

13. (f) Section 46 provides, subject to the section, for compensation in the form of weekly payments during partial incapacity. Sub-section (5) is of great importance, being relied on by the Commonwealth to establish a "contrary intention" referred to in s. 27(4). It reads as follows:
"(5) Subject to the next succeeding section, where a determination is made that an amount of compensation is payable to the employee under section 39 in respect of an injury that caused a loss referred to in that section or a determination is made that the liability of the Commonwealth to make further payments to the employee under this section in respect of an injury is to be redeemed, compensation is not payable to the employee under this section in respect of a period of incapacity for work resulting from that injury, being a period occurring after the date of the making of the determination." (at p81)

14. (g) Section 49 provides that where payments of compensation in respect of any injury have been made to an employee under s. 46 for a continuous period of not less than six 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 of a lump sum. The Commissioner must not make an order for redemption unless he is satisfied that the employee is not likely to become totally incapacitated for work, that he intends to use the lump sum in a manner which is particularly advantageous to him, and that in all the circumstances it is desirable in the interests of the employee that the liability of the Commonwealth be redeemed (s. 49(5)). The method of computing the value of the lump sum is set out (s. 49(4)). (at p81)

15. (h) Section 50 provides for the case where total incapacity supervenes, and is likely to continue indefinitely, after the payment of a lump sum pursuant to s. 39 or s. 49. (at p81)

16. (i) Section 53 requires notice in writing of any injury to be served on the Commonwealth as soon as practicable after the occurrence of the injury, and s. 54(1) requires a claim in writing for "the compensation" to be served as prescribed on the Commonwealth by or on behalf of the employee. There is no provision for more than one claim to be made by or on behalf of an employee, notwithstanding that his entitlement may vary from time to time as the consequences of the injury change. Nevertheless, there is nothing to stop an employee from informing the Commissioner of any change in his circumstances and requesting that consideration be given to any compensation to which he considers himself entitled. Section 20(4)(b) indicates one situation where the Commissioner may receive requests from the Commonwealth or the claimant, and s. 49 dealing with redemption also contemplates a request from the employee. But there is no reason to suppose that these occasions are exhaustive of those where an employee may approach the Commissioner with a request that he consider some aspect of his possible entitlement to compensation. Likewise, there may be circumstances where the Commonwealth, if it thinks fit, can invoke the consideration of the Commissioner with respect to the entitlement of the employee to compensation. (at p82)

17. As we have said, Mr. Heath accepts that he would be entitled to compensation in the form of a lump sum in accordance with s. 39 if he were not also suffering from a partial incapacity for work. It may be important to note the basis of that entitlement. He suffers from a degree of permanent loss of the efficient use of both legs at or above the knee. Section 39(3), in conjunction with sub-ss. (11) and (12), provides that where an injury to an employee results in such a loss, then compensation in the prescribed amount "is payable to the employee". The section does not apply in relation to any injury resulting in a loss where that injury or another injury sustained at the same time results in the death of the employee (s. 39(13)); nor is compensation payable so long as the employee is, or is likely to become, totally incapacitated for work as a result, in whole or in part, of the injury (s. 39(14)). There is no mention in the section of partial incapacity which results from the injury. Prima facie, the existence of such incapacity does not affect in any way the entitlement to compensation contained in the plain words in s. 39(3) that "compensation is payable". In terms, the section attracts the same forceful observation that Williams J. made of the analogous section (s. 12) in the predecessor to the present Act. In The Commonwealth v. Matheson (1955) 93 CLR 403, at p 412 , speaking of s. 12 of the Commonwealth Employees' Compensation Act 1930-1950 (Cth), his Honour said:
"The section is mandatory. It requires compensation to be determined in accordance with its provisions in all cases where the employee sustains any of the injuries specified in the first column of the Third Schedule."
Nevertheless, although s.39 identifies circumstances which will give rise to an entitlement to compensation, it is silent as to the procedures necessary to bring the section into operation. (at p82)

18. Mr. Hill, counsel for Mr. Heath, argues that, even though his client may have an entitlement to compensation under s. 39, the proper construction of the Act denies power to the Commissioner to act under s. 39 if the employee was then entitled to weekly payments during partial incapacity under s. 46. This was the view of Northrop J. in dissent in the Federal Court. His Honour was assisted to this conclusion by his opinion that the final phrase in s. 46(5), namely, "being a period occurring after the date of the making of the determination" referred to a new and discrete period of incapacity which came into existence for the first time after the making of the determination under s. 39. This is clearly the meaning which the same phrase bears where it appears in s. 45(9). Northrop J. then reasoned that the Commissioner's power to make a determination under s. 39 must be limited by implication so as to exclude its application to employees who are receiving weekly payments for partial incapacity as a result of an injury which also results in a loss specified in s. 39. With great respect to his Honour, we do not think that the argument can be sustained. It depends on the word 'occur' in s. 46(5) being construed as 'coming into existence'; that is to say, as a word which in itself rebuts the notion of a presently existing period of incapacity. However, we think that in this context the word 'occur' simply means 'happen', either now or in the future: cf. Black's Law Dictionary, 5th ed. (1979), p. 974. The word appears in a phrase which refers to a period of incapacity for work, a period which 'occurs' after the date of the making of the determination. It seems to us that, given the prospective operation that the words require, a period of incapacity commences afresh from day to day during the currency of the incapacity. The sub-section then has immediate effect according to its terms if and when a s. 39 determination is made during the currency of a period of partial incapacity. It is true that the same phrase in s. 45(9) must be referring to a fresh period of incapacity which will commence at some time in the future, because the section is speaking of total incapacity which so long as it was presently existing would have precluded both a determination under s. 39 and an order for redemption under s. 49. (at p83)

19. That s. 46(5) is not necessarily confined to discrete periods of partial incapacity occurring in the future is confirmed by the reference in it, not only to s. 39, but to a determination under s. 49. It is a condition precedent to a request for redemption, and therefore to a determination under s. 49, that the employee has been in receipt of weekly payments for partial incapacity for a continuous period of not less than six months, and the necessary implication is that the incapacity continues (and with it the liability of the Commonwealth) until the determination is made. One therefore cannot have a determination under s. 49 unless there is a period of incapacity then current and continuing. It is by virtue of the provisions of s. 46(5) that the making of an order for redemption under s. 49 causes the weekly payments which are then being paid in respect of the period of incapacity to be no longer payable. (at p83)

20. We therefore come to the conclusion that the fact that an employee is receiving compensation pursuant to s. 46 during partial incapacity is not necessarily a bar to the Commissioner making a determination under s.39 in respect of a loss resulting from the same injury. (at p84)

21. This conclusion is strengthened by the express denial of compensation under s. 39 when the employee is totally incapacitated or likely to become so (s. 39(14)). The absence of any reference in the section to partial incapacity affords a strong indication that the legislature intended that partial incapacity should not be a necessary disqualification under the section. (at p84)

22. It then becomes necessary to consider whether, having regard to s. 27(4), the employee in such a case is entitled to receive both the compensation under s. 39 and weekly payments during partial incapacity. He will be so entitled "unless the contrary intention appears". However, in our opinion, s. 46(5) is a clear indication of a contrary intention. The sub-section treats a determination under s.39 in precisely the same way as an order for redemption under s.49. In each case, it excludes the payment of compensation in respect of partial incapacity occurring after the determination. The legislature could not have contemplated that the liability of the Commonwealth to make weekly payments during partial incapacity would continue after that liability had been redeemed. If that conclusion is inescapable in the case of a determination under s. 49, it is equally inescapable in the case of a determination under s. 39. (at p84)

23. It must then follow that if a determination is made pursuant to s. 39 then by virtue of s. 46(5) the employee's entitlement to weekly payments will cease and there will be no further liability of the Commonwealth to be redeemed. (at p84)

24. However, this conclusion does not dispose of the matter. There remains the question whether the Commissioner is obliged to act of his own motion in making such a determination. It may be that he has a discretion to refrain from doing so notwithstanding that the terms of the section are satisfied. Mr. Black, counsel for the Commonwealth, argues that there is a duty on the Commissioner to act of his own motion under s. 39 so soon as it is proper to do so. As a proposition, that may sound reasonable enough. The difficulty is that the Act supplies very little guidance to assist him to determine the proprieties of a particular case. One can postulate a case of serious and permanent partial incapacity resulting from the loss of a leg or an arm. Is it mandatory for the Commissioner to take the initiative as soon as the employee takes up light duties with the Commonwealth and effectively terminate his entitlement to weekly payments under s. 46 by making a lump sum determination under s. 39? Take the present case. Mr. Heath was entitled to request redemption of the Commonwealth's liability to continue weekly payments to him. He exercised that right. Prima facie, that right entitled him to the bona fide consideration by the Chief Delegate of his request, a consideration in which the welfare of the employee may have played a significant part. It is true that at the same time Mr. Heath had an entitlement to a lump sum payment under s. 39, but he did not seek to enjoy the fruits of that entitlement. By what authority did the Chief Delegate put Mr. Heath's request aside until on his own initiative he had taken up and dealt with the question of an entitlement under s. 39, and in consequence of which not only was the purpose of the request aborted but his former entitlement to weekly payments came to an end? This is a case where the Chief Delegate was confronted with the choice of acting under s. 39 or s. 49, with the possibility of vastly differing consequences for Mr. Heath. It was a collision situation. He chose to give s. 39 precedence over s.49, and the question now is whether he was right to do so. (at p85)

25. In the Federal Court, the case presented itself in such a way as to focus attention on the proper construction to be accorded to s. 46(5), and the majority were constrained by what they saw to be the plain and natural meaning of the words of the sub-section. As we have already indicated, we agree with respect with the approach of their Honours to that provision. But the problem now is a different one. It is a question of the powers and responsibility of the Commissioner when confronted with two entitlements in the employee carrying differing consequences, yet with no express guidance in the Act in that regard. (at p85)

26. The Commonwealth's case rests in the proposition that the Commissioner is obliged, of his own motion, to act under s. 39 so soon as the conditions precedent to a determination are satisfied. However, the Act does not in terms oblige him to do so, and we are not satisfied that that is so. Having regard to the salient features of the Act to which we have referred and to the considerations to which we now turn, we prefer a different conclusion. (at p85)

27. Section 20(1) describes the function of the Commissioner. It is "to determine all matters and questions arising under this Act" (our emphasis). A solution to the difficult questions which we have posed touching resort to s. 39 is to say that a question under that section will not arise unless and until an employee seeks a determination under it. Such an approach would be consistent with the history and general practice of workers' compensation legislation. The Act itself in terms denies recourse to the section while an employee is totally incapacitated. It would not be an unreasonable reading of the intent of the legislature to accord a choice to an employee who is only partially incapacitated. He may continue to exercise his entitlement to weekly payments with the added right in appropriate circumstances to request a redemption of the Commonwealth's liability. Alternatively, he may seek a determination under s. 39, thereby securing the immediate payment of a lump sum, notwithstanding that its effect will be to put an end to his entitlement to weekly payments. The circumstances of particular cases may vary so much as to demand, if there is to be equity and justice to the injured employee, a flexible approach. Compensation in the form of weekly payments is a basic feature of the Act, as it was of its precursors. Given an ambiguity in the operation of s. 39, we do not think it should be construed so as to result in the payment of a lump sum having the effect of ousting an entitlement to weekly payments during partial incapacity otherwise than at the option of the employee. (at p86)

28. It may be observed that there is another closely analogous way of construing the Act which would lead to the same result. Given that Mr. Heath is entitled to a determination under s. 39 but has made no request to the Commissioner in that regard, s. 20 requires that the latter be "guided by equity, good conscience and the substantial merits of the case". In the present case that guidance clearly encourages the Commissioner to refrain from making a determination under s. 39. There is then no obstacle to his proceeding to deal on the merits with Mr. Heath's application for redemption under s. 49. (at p86)

29. For these reasons, we conclude that the Commissioner erred in making a determination under s. 39. He should have put that question aside until it arose, and dealt with Mr. Heath's request under s. 49. If this conclusion fails to accord with the intent of the legislature, then it will be for the legislature to make its intention plain. In any event, we consider it to be a matter for regret that in a statute of this kind these difficulties of construction have been left for the Courts to resolve. (at p86)

30. We are not unmindful of the fact that the view we take of the Act could result in an employee receiving a lump sum under s. 49, and thereafter claiming an entitlement also to a lump sum under s. 39. We do not find this consequence so unreasonable as to lead us to doubt the propriety of the conclusion. After all, the lump sum entitlements specified in ss. 40, 41, 42, to which we have referred earlier in these reasons, are clearly cumulative on compensation in respect of incapacity for work (cf. s. 27(4)). Like these entitlements, the entitlement to a lump sum in accordance with s. 39 is not dependent on the existence of any incapacity for work arising from the loss which is the subject of the section. (at p87)

31. It was urged by Mr. Black that the provisions of s. 50 pointed clearly to the payment of one lump sum to an employee under either s. 39 or s. 49 as excluding the payment of another lump sum under the alternative section. We do not think that the section supports the Commonwealth's argument. It deals with the situation where an employee has received a lump sum under s. 39 or s. 49 and thereafter becomes totally incapacitated for work by the same injury, and that incapacity is likely to continue indefinitely. In those circumstances, compensation is payable in the form of a weekly payment which is calculated by resort to a formula which is prescribed in s. 50(2). The formula requires that the lump sum that was paid to the employee be brought into account, together with a further factor, which is described as b, and being
". . . the sum of the amounts that would, but for the payment to the employee of that lump sum, have been paid to the employee under section 46 in respect of the period that commenced on the date on which the Commissioner determined that the lump sum was to be paid to the employee and ends on the date on which compensation became payable to him under this section".
In our opinion, this formula would still work appropriately notwithstanding that an employee had received a lump sum under s. 49, and then subsequently a further lump sum under s. 39. The lump sum which is required to be brought into account is the total of both lump sums (Acts Interpretation Act 1901 (Cth), as amended, s. 23(b)). The commencement of the period involved in the computation of the amount represented by the factor b in the formula would in the case postulated be determined by the date of the first lump sum payment, because that is the date on which weekly payments must have ceased. (at p87)

32. In our opinion, the appeal should be allowed, the questions on which the opinion of the Federal Court is sought should be answered as follows: (at p87)

33. 1. Whether, on a proper construction of the provisions of the Compensation (Commonwealth Government Employees') Act 1971 the compensation payable on 30 November 1978 to the applicant in respect of the injuries sustained by him - (a) which at that date have resulted in 20 per cent permanent loss of efficient use of the left leg at or above the knee and 25 per cent permanent loss of efficient use of the right leg at or above the knee; (b) each of which losses is described in s. 39 of the Act; and (c) which did not on 30 November 1978 result, nor were they on that date likely to result, either in whole or in part, in the applicant's becoming totally incapacitated for work but which did on that date result and which were on that date likely to continue to result, either in whole or in part in the applicant's being partially incapacitated for work as an airport fireman, was (i) the amounts of compensation prescribed by s. 39 for the relevant losses specified in that section; or (ii) a weekly payment for partial incapacity for work under s. 46; or (iii) both. (at p88)

34. Answer: The compensation payable on 30 November 1978 to the applicant was the amount payable under s. 46 during the period of his partial incapacity for work and, in addition, on application made after the expiry of that period or after the earlier determination (if made) of a lump sum payable under s. 49, a lump sum as prescribed by s. 39. (at p88)

35. 2. Whether on 30 November 1978 it was open to the Commissioner to determine that the compensation payable was the amounts specified by s. 39 for the relevant losses described in that section. (at p88)

36. Answer: No. (at p88)

37. 3. Whether the determination of 30 November 1978 awarding compensation under s. 39 brought to an end any entitlement of the applicant under s. 46 to weekly payments for partial incapacity for work resulting from the relevant injuries. (at p88)

38. Answer: Not necessary to answer. (at p88)

39. 4. Whether on 30 November 1978 it was open to the Commissioner to refuse the applicant's request under s. 49 that the liability of the Commonwealth to make further payments under s. 46 be redeemed by the payment of a lump sum to the applicant. (at p88)

40. Answer: Subject to the proper exercise of the discretion conferred upon the Commissioner by s. 49 of the Act, No. (at p88)

41. The case should be remitted to the County Court of Victoria for determination in accordance with the answers given. (at p88)

MURPHY J. The first main issue is whether under the Compensation (Commonwealth Government Employees) Act 1971 (Cth), as amended, ("the Act") a worker who is permanently partially incapacitated by reason of a scheduled injury or injuries (for which he or she is entitled upon determination to a lump sum under s. 39) who is in receipt of continuing weekly compensation (under s. 46) is entitled to the continuance of those payments after such a determination under s. 39. A consequential issue is whether (after a s. 39 lump sum determination) the employer is eligible for a redemption under s. 49 of the continuing entitlement to weekly sums, which must obviously be the same as the answer to the main question. (at p89)

2. The second main issue is whether the lump sum determination under s. 39 can be made only at the option of the employee. (at p89)

3. If both main questions are answered adversely to the employee the consequences are grossly inequitable. The appellant employee, Mr. Heath, is a comparatively young man. His entitlement to weekly compensation is much more valuable than the lump sum determined under s. 39; the effect would be to impose a statutory maximum. (at p89)

4. The general, but not invariable, pattern of Australian compensation schemes is for lump sum compensation for physical loss in addition to any periodical payments for incapacity and provision for redemption - that is, capital payments to extinguish liability to continue weekly payments. (at p89)

5. For example, the Workers' Compensation Act 1926 (N.S.W.) introduced a lump sum provision which, in addition to weekly compensation and redemption by payment of a lump sum, provided ". . . an alternative form of compensation at the option of the worker in the case of certain specific injuries, . . . It is clearly intended as compensation for the physical injury, as distinguished from the mere loss of wages resulting from the injury . . . It is a new statutory right to receive specific compensation for a specific injury . . ." (Street C.J., Ferguson and James JJ. in Horlock v. North Coast Steamship Navigation Co. (1927) 27 SR (NSW) 236, at pp 240-241 ). In the present case the Commissioner's approach would mean that the appellant (although seriously incapacitated) would receive the same statutory maximum as if, although he suffered the same injury, he were not incapacitated. That result, although admittedly unjust, is said by the representatives of the Commonwealth to be compelled by the words of s. 46(5). (at p89)

6. Consistent with the benevolent approach which should be adopted in the interpretation of workers' compensation laws (see, for example, Fullagar J. in Wilson v. Wilson's Tile Works Pty. Ltd. (1960) 104 CLR 328, at p335 ; Dodd v. Executive Air Services Pty. Ltd. (1975) VR 668 ; and Jordan C.J. in Salisbury v. Australian Iron &Steel Ltd. (1943) 44 SR (NSW) 157, at p 161 ) in the Federal Court Northrop J. read s. 46(5) as not ending the entitlement to weekly payments for an incapacity which was in existence before and continued after a s. 39 determination. However, I am satisfied that a s. 39 determination must operate in the same way as a s. 46 redemption, that is, it ends entitlement to further weekly payments. The first main issue and the consequential one must therefore be answered in the negative. (at p90)

7. The crucial issue remaining is whether, without any application from the employee (and without his consent) the Commissioner can make a s. 39 determination and thus bring into operation a statutory maximum. The Act is silent. If it can be done, the result can be extremely unjust and inequitable. The Act was intended not to produce inequitable results. Section 20(2)(a) provides that in determining any matter or question under the Act, the Commissioner shall be "guided by equity, good conscience and the substantial merits of the case without regard to technicalities. . .". (at p90)

8. The Act is an example of the style of drafting which departs from the simplicity and clarity of earlier laws which (although occasionally criticised) were a model the departure from which has led to great confusion and much unnecessary litigation. The difference of opinion in the Federal Court was provoked by the unnecessary obscurity of s. 46(5) as well as of the provisions governing the circumstances in which a determination might be made under s. 39. As counsel for the Commonwealth conceded, if the legislation means what they assert this could have been stated in plain words. In favour of the appellant there is at least an ambiguity. No one asserts the language is unambiguous. In such a case it is appropriate to turn to the Parliamentary debates for possible clarification. (See Dillingham Constructions Pty. Ltd. v. Steel Mains Pty. Ltd. (1975) 132 CLR 323 ; Commissioner for Prices and Consumer Affairs (S.A.) v. Charles Moore (Aust.) Ltd. (1977) 139 CLR 449 ; Credit Tribunal (S.A.) v. Charles Moore (Aust.) Ltd. (1977) 139 CLR 449 ; Wacal Developments Pty. Ltd. v. Realty Developments Pty. Ltd. (1978) 140 CLR 503 ; Sillery v. The Queen (1981) 55 ALJR 509; 35 ALR 227 ; Wacando v. The Commonwealth (1982) 148 CLR 1 ; Federal Commissioner of Taxation v. Whitfords Beach Pty. Ltd. (1982) 150 CLR 355 ; South Australia v. The Commonwealth (1942) 65 CLR 373 ; also Dockers' Labour Club and Institute Ltd. v. Race Relations Board (1976) AC 285 ; D. C. Pearce, Statutory Interpretation in Australia, (1974); J. B. Elkind, "The House of Lords - A New Departure in Interpretation?" (1975) New Zealand Law Journal, p. 234. See also Acts Interpretation Act 1901 (Cth), as amended, s. 15AA.) (at p90)

9. The Parliamentary debates disclose unambiguously that Parliament intended that there would be no statutory maximum, and that the employee if entitled to continuing periodical payments, could request a determination under s. 39 and if this was made, would receive a lump sum, and weekly payments would cease. (at p91)

10. The Government introduced the legislation as "a generous and modern scheme" of workers' compensation provisions for its own employees and this was generally accepted by the Parliament. One mischief in the previous legislation that the Act aimed to overcome was the statutory maximum. The second reading speeches addressed this problem:
"The existing Act and the Bill that was introduced into the Parliament last year both provide for a maximum limit to the amount of compensation payable in certain circumstances in respect of any one accident. Under this Bill there will be no statutory maximum . . . The removal of the statutory maximum will . . . mean that (amongst other matters), by comparison with the existing Act and the withdrawn Bill, there will be no upper limit to compensation where an employee is permanently partially incapacitated for work." (The Hon. W.C. Wentworth, Minister for Social Services, Parliamentary Debates - House of Representatives, vol. 72, 1971, p. 1896; also Senator Ivor Greenwood, Parliamentary Debates - Senate Hansard, vol. 48, 1971, p. 1643; Mr. L. Irwin, Parliamentary Debates - House of Representatives, vol. 72, 1971, p. 2761; Mr. C. Cameron, ibid., p. 2765.) (at p91)

11. The references to statutory maximum echoed the language used in The Commonwealth v. Matheson (1955) 93 CLR 403 , decided on the provisions of the Commonwealth Employees Compensation Act 1950-1960 (repealed by this Act) which provided for weekly payments and for lump sum payments for scheduled injuries. In that case Taylor J. said (1955) 93 CLR, at pp 415-416 :
"In the case of partial incapacity the diminution in the earnings, or in the earning capacity of the employee, plays a part, subject to a prescribed maximum, in determining the amount of the appropriate weekly payments." (my emphasis) (at p91)

12. The prescribed maximum is referred to in the debates and in the explanatory memorandum accompanying the Bill as the statutory maximum. (at p91)

13. The Commonwealth Government now contends that the Act provides a statutory maximum for all those permanently partially incapacitated employees who suffer a scheduled injury, and that in this instance it was open to the Commissioner without any request from the worker to determine a lump sum under s. 39, whereupon the worker became entitled to that sum and nothing more. This is the application of a statutory maximum. It is true that when a lump sum payment is made or payment by way of redemption, this extinguishes the right to periodical payments. (I leave aside the question of a fresh incapacity arising after the date of the payment of lump sum or redemption, for example, where incapacity or a new incapacity occurred only after the s. 39 or s. 49 payment.) A statutory maximum is avoided if the s. 39 determination can be made only on the application of or with the consent of the employee. Thus entitlement to continuing periodical payments for a scheduled injury can be extinguished only upon a s. 39 determination on the application or consent of the employee, or a s. 49 redemption at his request. (at p92)

14. This is the only reading of the Act and the explanations during its passage (including the Explanatory Memorandum on the Bill circulated by the Minister for Social Services) that renders the provisions of the Act consistent, sensible and just. This point was specifically raised by Senator James McClelland (Senate, vol. 48, p. 2117). In reply Senator Greenwood said:
"I think it is fair to summarise the position in this way: Under the Bill which is now before the Senate a person has a right to weekly payments. He can make an application if he desires to do so, and instead of the weekly payments continuing he would receive a lump sum. That is a matter for determination. He cannot have the lump sum and the weekly payments." (Parliamentary Debates - Senate Hansard, vol. 48, p. 2160.) (at p92)

15. The second main issue should be resolved in the affirmative. (at p92)

16. The appeal should be allowed. I agree with the proposed order. (at p92)

BRENNAN J. Mr. Heath was an employee of the Commonwealth who suffered a series of injuries compensable under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) ("the Act"). Prior to 1 July 1976, weekly payments of compensation had been made to Mr. Heath under s. 46 during several periods of partial incapacity for work. An employee who is entitled to weekly payments of compensation under s. 46 may, in the circumstances set out in s. 49(1), become entitled to a lump sum paid in redemption of the Commonwealth's liability to make further weekly payments. Section 49(1) provides:
"Subject to this section, where payments of compensation in respect of an injury have been made to an employee under section 46 for a continuous period of not less than six 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."
It was common ground that Mr. Heath had made a request for a lump sum redemption payment but on 1 July 1976, before that request was dealt with, the Delegate of the Commissioner for Employees' Compensation determined that Mr. Heath was entitled to an amount of lump sum compensation payable under s. 39 of the Act. The making of that determination attracted the operation of s. 46(5) which provides:
"Subject to the next succeeding section, where a determination is made that an amount of compensation is payable to the employee under section 39 in respect of an injury that caused a loss referred to in that section or a determination is made that the liability of the Commonwealth to make further payments to the employee under this section in respect of an injury is to be redeemed, compensation is not payable to the employee under this section in respect of a period of incapacity for work resulting from that injury, being a period occurring after the date of the making of the determination." (at p93)

2. The phrase "a period occurring after the date of the making of the determination" relates to any period of incapacity which occurs after that date, whether or not the incapacity commenced before that date. Thus, by reason of s. 46(5), the effect of that determination was to deprive Mr. Heath of his entitlement to payment of weekly compensation in respect of any period after 1 July 1976. To reinstate his entitlement to weekly compensation and his consequential entitlement to a lump sum redemption payment under s. 49(1), Mr. Heath applied for judicial review of the determination of 1 July 1976, seeking to set aside the determination that he was entitled to lump sum compensation under s. 39. On 30 May 1978 his Honour Judge Ogden, a Judge of the County Court of Victoria (a "prescribed Court" for the purposes of s. 63(1)(b) of the Act) set aside the determination of 1 July 1976, so that thereafter account of that determination was not to be taken for the purposes of s. 46(5): see s. 51(1). His Honour then remitted for determination by the Commissioner or his delegate Mr. Heath's request that the liability of the Commonwealth to make further weekly payments be redeemed. (at p93)

3. On 30 November 1978 the Chief Delegate of the Commissioner made a further determination of the total amount of compensation payable under s. 39. The Chief Delegate gave reasons for his determination, saying:
"I consider that it is open to the Commissioner, or his Delegate, when making a determination, to consider any or all of the entitlements which a claimant has under the Act at the time the determination is being made. In this particular case, I consider that the Commissioner, or his Delegate, has a responsibility to examine Mr. Heath's entitlement under section 39, as well as his request for a lump sum redemption under section 49, particularly since I consider that section 39 takes precedence over section 49 and that Mr. Heath's entitlement under section 39 must be considered before his request under section 49 can be determined."
He therefore made a determination under s. 39, although the making of that determination disentitled Mr. Heath to weekly compensation payments under s. 46 and consequentially to a lump sum redemption payment under s. 49. (at p94)

4. Mr. Heath then applied for judicial review of the determination of 30 November 1978. His Honour Judge Howse in the County Court of Victoria referred at the request of the Commonwealth certain questions of law arising in the proceeding before him to the Federal Court of Australia for decision pursuant to s. 94A(1). The Chief Judge of the Federal Court directed that the questions referred be determined by a Court constituted by three judges (s. 94A(3)). By a majority (Fox and Franki JJ., Northrop J. dissenting) that Court upheld the decision of the Chief Delegate, answering the questions referred as follows:
"Question 1
Whether the compensation payable on 30 November 1978 to the applicant in respect of the injuries sustained by him - (a) which at that date have resulted in 20 per cent permanent loss of efficient use of the left leg at or above the knee and 25 per cent permanent loss of efficient use of the right leg at or above the knee; (b) each of which losses is described in s. 39 of the Act; and (c) which did not on 30 November 1978 result, nor were they on that date likely to result, either in whole or in part, in the applicant's becoming totally incapacitated for work but which did on that date result and which were on that date likely to continue to result, either in whole or in part in the applicant's being partially incapacitated for work as an airport fireman, was (i) the amounts of compensation prescribed by s. 39 for the relevant losses specified in that section; or (ii) a weekly payment for partial incapacity for work under s. 46; or (iii) both. Answer: The compensation payable to the applicant on 30 November 1978 in addition to his entitlement for partial incapacity up to an including that date was the amount prescribed by s. 39 of the Act for the relevant losses specified in that section. Question 2 Whether on 30 November 1978 it was open to the Commissioner to determine that the compensation payable was the amounts specified by s. 39 for the relevant losses described in that section. Answer: Yes. Question 3 Whether the determination fo 30 November 1978 awarding compensation under s. 39 brought to an end any entitlement of the applicant under s. 46 to weekly payments for partial incapacity for work resulting from the relevant injuries. Answer: Yes. Question 4 Whether on 30 November 1978 it was open to the Commissioner to refuse the applicant's request under s. 49 that the liability of the Commonwealth to make further payments under s. 46 be redeemed by the payment of a lump sum to the applicant. Answer: Yes."
This appeal is brought from that judgment. It turns, of course, upon the provisions of the Act. The Act exhibits features of similarity to other statutes providing for workers compensation, but it must be construed according to its unique terms. (at p95)

5. Two provisions of the Act should be mentioned. The first is s. 20(1) which reposes in the Commissioner the power to determine all matters and questions arising under the Act. The Commissioner is not simply an arbiter between the Commonwealth and the employee; his function is not to decide a contest between adversaries as to the Commonwealth's liability to the employee, but to inquire into the circumstances in order to determine whether an employee is entitled to any and what amounts of compensation under the Act. But the Act, not the Commissioner's decision, is the source of an employee's entitlements. The Commissioner's decision is, however, effective to determine an employee's entitlement subject to reconsideration by a Compensation Tribunal or judicial review by a prescribed Court (ss. 61, 63). (at p95)

6. The second provision to be mentioned is s. 27(4). That subsection provides:
" An amount of compensation payable under a provision of this Act in respect of an injury is, unless the contrary intention appears, in addition to any amounts of compensation paid or payable under any other provision of this Act in respect of that injury."
This provision confers cumulative rights to payment of compensation under the several provisions of the Act. Prima facie, the right to payment of weekly compensation under s.46 is cumulative upon the right to payment of a lump sum under the table of injuries as provided by s. 39. However, by reason of s. 46(5), the right to payment of weekly compensation can be extinguished by the making of a determination of entitlement under s. 39. A question thus arises as to whether the Chief Delegate was empowered to make a determination which was intended to have that effect or which he knew would have that effect. (at p96)

7. On 30 November 1978, before the Chief Delegate made his determination of the amount of compensation payable under s. 39, Mr. Heath was entitled under the Act to weekly payments of compensation during the period of his partial incapacity for work and he was thus entitled, on request and subject to the conditions contained in s. 49, to payment of a lump sum in redemption of the Commonwealth's liability to make those weekly payments. His entitlement to payment of a lump sum under the table of injuries (s. 39) was cumulative upon his entitlements under ss. 46 and 49. Conversely, he was not entitled to payments under ss. 46 and 49 cumulatively upon a determination of entitlement under s. 39. The legislature cannot have intended that the cumulative entitlement for which s.27(4) provides should be cut down by the manner of exercise of an administrative function performed by the Commissioner or his delegate under s. 20. In my opinion, the Commissioner or his delegate is bound to perform the functions cast upon him by s. 20 in such a manner that he does not intentionally or knowingly cut down or extinguish an employee's entitlement to cumulative payments under the Act. (at p96)

8. Weekly compensation under s. 46 is intended to maintain or to contribute towards the maintenance of an employee during periods of partial incapacity for work. The amount of his pre-injury earnings is material to the payments to be made under that section, and he is unable to yield up his entitlement to weekly compensation for a lump sum in redemption unless the Commissioner is satisfied, inter alia, of the matters mentioned in pars. (b) and (c) of s. 49(5):
"(b) the employee intends to use the lump sum in a manner that is particularly advantageous to the employee; and (c) in all the circumstances it is desirable in the interests of the employee that the liability of the Commonwealth be redeemed." (at p96)

9. The maintenance of an employee partially incapacitated by injury is thus an object of the Act. That object ought not to be defeated by making a determination of entitlement under the table of injuries, the lump sum payments under which become due to an employee irrespective of his period of partial incapacity for work provided only that he has been injured in one or more of the ways set out in s. 39. (at p97)

10. Reading together ss. 27(4) and 46(5), I would construe the legislature's intention to be that an employee whose compensable injury has caused him to be partially incapacitated for work should be paid weekly compensation during the period of his incapacity and that he should be paid his lump sum entitlement under the table of injuries when the period of partial incapacity ceases or the lump sum in redemption of the Commonwealth's liability in respect of that period is determined. When the Commissioner finds that the period of partial incapacity has ceased or when he determines the lump sum to be paid in redemption, he is then to determine the lump sum payable under s. 39. Once he does so, of course, the employee's entitlement to weekly compensation under s.45 or under s. 46 is extinguished subject to the possibility of a claim under s. 47 if the employee undergoes medical treatment or under s. 50 if the injury should result in the employee becoming totally incapacitated for work. (at p97)

11. If a determination made under s. 39 while the employee remains partially incapacitated for work were allowed to stand, the Commissioner or his delegate could abort the entitlement to weekly compensation upon which, by s. 27(4), a lump sum under the table of injuries is payable cumulatively. I cannot attribute that operation to an Act which should be given a beneficial construction. Other statutes have made different provisions for fixing the upper limit of compensation for a particular injury: see The Commonwealth v. Matheson (1955) 93 CLR 403 and Fraher v. Wunderlich Ltd. (1963) 110 CLR 466 . But the Act with which we are here concerned abjures any attempt to set a maximum, and none can be set by administrative action. (at p97)

12. It follows that where an employee is entitled to weekly compensation under s. 46 and a request for redemption is made by him, that request must be dealt with so as to extinguish the liability of the Commonwealth for future weekly payments before the entitlement under s. 39 is determined. However, it was submitted that such a conclusion does not sit easily with the terms of s. 50. Under that section, an employee who has already been paid a lump sum under s. 39 or a redemption payment under s. 49 but whose injury subsequently results in total incapacity for work which is likely to continue indefinitely, may, notwithstanding the provisions of s. 46(5), be paid a weekly sum by way of compensation. A formula is provided by s. 50(2) for deducting a sum from the amount of weekly compensation to which the employee would have been entitled if the lump sum had not been paid. The factors in the calculation of the deduction include the lump sum paid to the employee in pursuance of s. 39 or s. 49. (at p98)

13. But what if there be two lump sums, one paid under s. 49, one under s. 39? The lump sum to which s. 50 refers is a singular, not an aggregate, payment. That is the lump sum "but for" which the employee would have been paid amounts under s. 46. If that lump sum were determined under s. 49, that is the figure which is to be brought into the formula; if a payment determined under s. 39, it is that figure which is to be brought into the formula. Whichever determination extinguished the entitlement to payment under s. 46 is the determination which identifies the relevant lump sum for the purposes of the formula. Thus it is possible that an employee who was partially incapacitated and who received two lump sums, the first under s. 49 and the second under s. 39, and who then became totally and permanently incapacitated would be entitled to receive a weekly payment under s. 50 and yet retain a payment under s. 39. It may be thought that that would be anomalous for s. 39(14) precludes a payment under the table of injuries in respect of an injury so long as the employee is or is likely to become totally incapacitated for work where the incapacity for work results, or, if it occurs, will result, in whole or in part from that injury. (There is a similar provision with respect to lump sum redemption payments in s. 49(5)(a)). (at p98)

14. The anomaly, if it be one, flows from s. 46(5) which extinguishes an entitlement to further weekly compensation under s. 46 where a determination under either s. 39 or 49 is made. The alternative grounds for extinguishing the entitlement under s. 46 are necessarily carried forward into the s. 50(2) formula, which requires the amounts which would have been paid under s. 46 to be deducted from the lump sum payment which extinguished the entitlement to receive them. Unless the Act itself makes an entitlement to a lump sum under s. 39 and an entitlement to a lump sum under s. 49 alternative, the anomaly is inevitable. Section 27(4), as we have seen, makes those entitlements cumulative. That is the more dominant provision to which difficulties in the construction of other provisions, including s. 50, must be accommodated. (at p98)

15. The appeal should be allowed and the answers given by the majority of the Federal Court should be set aside. In lieu thereof, the questions referred for determination by the Federal Court should be answered as follows: (at p98)

16. 1. The compensation payable on 30 November 1978 to the applicant was the amount payable under s. 46 during the period of his partial incapacity for work and, in addition, on the expiry of that period or on the earlier determination (if made) of a lump sum payable under s. 49, a lump sum as prescribed by s. 39. (at p99)

17. 2. No. (at p99)

18. 3. Yes, but the determination ought to be set aside with the consequence that no account shall be taken of the determination of 30 November 1978 for the purposes of sub-s. (5) of s. 46. (at p99)

19. 4. No, subject to the proper exercise of the discretion conferred upon the Commissioner by s. 49 of the Act.
The case should be remitted to the County Court of Victoria for determination in accordance with the answers given. (at p99)

Orders

Appeal allowed with costs.

Order of the Full Court of the Federal Court of Australia set aside and in lieu thereof answer the questions asked in the case stated as follows:

On a proper construction of the provisions of the Compensation (Commonwealth Government Employees Act 1971) (Cth) -

1. Was the compensation payable on 30 November 1978 to the applicant in respect of the injuries sustained by him -
(a) which at that date have resulted in 20 per cent permanent loss of efficient use of the left leg at or above the knee and 25 per cent permanent loss of efficient use of the right leg at or above the knee;
(b) each of which losses is described in s. 39 of the Act;
and
(c) which did not on 30 November 1978 result, nor were they on that date likely to result, either in whole or in part, in the applicant becoming totally incapacitated for work but which did on that date result and which were on that date likely to continue to result, either in whole or in part in the applicant being partially incapacitated for work as an airport fireman,
(i) the amounts of compensation prescribed by s. 39 for the relevant losses specified in that section; or (ii) a weekly payment for partial incapacity for work under s. 46; or
(iii) both?
Answer: The compensation payable on 30 November 1978 to the applicant was the amount payable under s. 46 during the period of his partial incapacity for work and, in addition, on application made after the expiry of that period or after the earlier determination (if made) of a lump sum payable under s. 49, a lump sum as prescribed by s. 39.

2. On 30 November 1978 was it open to the Commissioner to determine that the compensation payable was the amounts specified by s. 39 for the relevant losses described in that section?
Answer: No.

3. Did the determination of 30 November 1978 awarding compensation under s. 39 bring to an end any entitlement of the applicant under s. 46 to weekly payments for partial incapacity for work resulting from the relevant injuries?
Answer: Not necessary to answer.

4. On 30 November 1978 was it open to the Commissioner to refuse the applicant's request under s. 49 that the liability of the Commonwealth to make further payments under s. 46 be redeemed by the payment of a lump sum to the applicant?
Answer: No, subject to the proper exercise of the discretion conferred upon the Commissioner by s. 49 of the Act.