Janssen v Commonwealth of Australia

[1993] QCA 64

IN THE COURT OF APPEAL	[1993] QCA 064
SUPREME COURT OF QUEENSLAND

Appeal No. 192 of 1992

Brisbane

[Commonwealth v. Janssen]

BETWEEN:

CAROLINE ANN JANSSEN

(Plaintiff) Respondent

- and -

COMMONWEALTH OF AUSTRALIA

(Defendant) Appellant

The President
Mr. Justice Pincus

Mr. Justice McPherson

Judgment delivered 15/03/1993

Joint reasons for judgment of the President and Pincus J.A.

McPherson J.A. separate additional reasons. All concurring

as to the order made.

APPEAL DISMISSED WITH COSTS.

CATCHWORDS:	STATUTES - INTERPRETATION - Respondent seeks to strike out plaint - whether Commonwealth employee must obtain determination of entitlement to compensation as pre-condition to suing at common law - whether "payable" has broad or strict meaning depending on context - whether appellant's construction absurd.
Commonwealth Employees' Rehabilitation and Compensation Act 1988 ss.45, 14(1), 15, 24(1); Acts Interpretation Act 1901 (Cth) s.15AA
WORDS AND PHRASES - "PAYABLE" - Respondent seeks to strike out plaint - whether Commonwealth employee must obtain determination of entitlement to compensation as pre-condition to suing at common law - whether "payable" has broad or strict meaning depending on context - whether appellant's construction absurd.
Commonwealth Employees' Rehabilitation and Compensation Act 1988 ss.45, 14(1), 15, 24(1); Acts Interpretation Act 1901 (Cth) s.15AA
DAMAGES - COMMONWEALTH EMPLOYEES - Respondent seeks to strike out plaint - whether Commonwealth employee must obtain determination of entitlement to compensation as pre-condition to suing at common law - whether "payable" has broad or strict meaning depending on context - whether appellant's construction absurd.
Commonwealth Employees' Rehabilitation and Compensation Act 1988 ss.45, 14(1), 15, 24(1); Acts Interpretation Act 1901 (Cth) s.15AA
Counsel:	R. Hanson Q.C., with him Bickford for the Commonwealth R. Gotterson Q.C., with him Dr. C. Jensen for the Respondent
Solicitors:	Australian Government Solicitor for the Commonwealth Janssen & Janssen for the Respondent
Hearing Date(s):	3 March 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 192 of 1992

Brisbane

Before The President

Mr. Justice Pincus

Mr. Justice McPherson

[Commonwealth v. Janssen]

BETWEEN:

CAROLINE ANN JANSSEN

(Plaintiff) Respondent

- and -

COMMONWEALTH OF AUSTRALIA

(Defendant) Appellant

JOINT JUDGMENT - THE PRESIDENT & PINCUS J.A.

Judgment delivered 15/03/1993

This is an appeal from a judgment of the District Court dismissing an application by the appellant, the Commonwealth of Australia, for an order that a plaint be struck out. The plaint claimed damages for personal injuries said to have been suffered by the respondent while in the employ of the appellant; it alleged that the plaintiff suffered an injury in 1988 which was caused by the appellant's negligence. The evidence showed that the respondent had not made any claim for compensation under the Commonwealth Employees' Rehabilitation and Compensation Act 1988 ("the Act"), nor of course had any determination been made in her favour under that Act. The appellant argued before the primary judge that, by reason of the provisions of s.44 of the Act, read with s.45, the appellant had no cause of action; that contention was rejected.

It is necessary to refer in some detail to the

provisions of the Act, but it may be convenient to explain
at the outset the general nature of the appellant's main
contention. It is that, on the proper construction of the
Act, the respondent was not entitled to sue because she had
not first obtained a determination of entitlement to
compensation under the Act. It was submitted, in effect,
that an injured employee of the appellant, such as the
respondent, must as a pre-condition of entitlement to sue at
common law for damages for negligence first obtain such a
determination. If the contention is correct, then its
practical effect is that an injured employee must pursue a
claim under the Act if she wishes to sue under the general

law and pursue it to the point of obtaining a determination;

then before she actually receives any compensation, she

must make an election abandoning the right to compensation.

This seems at first sight a strange position to have

been created by the legislature, but if that is what the Act
says, effect must be given to it. Sections 44 and 45 of the
Act, provisions of which are set out below, provide in
substance as follows. So far as relevant, s.44 says that
subject to s.45, an action for damages does not lie against
the Commonwealth in respect of an injury sustained by an
employee in the course of employment. Section 45 says that
where "compensation is payable" to an employee for permanent
impairment under certain sections of the Act, and the
Commonwealth would but for s.44 be liable for damages for
non-economic loss, the employee may at any time before
compensation is paid under those sections elect to sue for
damages for that loss. If an election is made, s.44 does
not apply to the action but no further compensation is
payable. The appellant's reading of these provisions
depends on attaching to the words "compensation is payable"
the strict sense of "immediately recoverable under a
determination pursuant to the Act".

The most immediately relevant parts of the provisions

in question are the following:

"44. (1) Subject to section 45, an
action or other proceeding for damages
does not lie against the Commonwealth, a
Commonwealth authority or an employee in

respect of:

(a) an injury sustained by an employee
in the course of his or her
employment, being an injury in
respect of which the Commonwealth or
Commonwealth authority would, but
for this subsection, be liable
(whether vicariously or otherwise)
for damages; or

...

45. (1) Where:

(a)	compensation is payable under section 24, 25 or 27 in respect of an injury to an employee; and
(b)	the Commonwealth, a Commonwealth authority or another employee would, but for subsection 44(1), be liable for damages for any non-economic loss suffered by the employee as a result of the injury;

the employee may, at any time before an
amount of compensation is paid to the
employee under section 24, 25 or 27 in
respect of that injury, elect in writing
to institute an action or proceeding
against the Commonwealth, the
Commonwealth authority or other employee

for damages for that non-economic loss.

(2) Where an employee makes an election:

(a)	subsection 44(1) does not apply in relation to an action or other proceeding subsequently instituted by the employee against the Commonwealth, the Commonwealth authority or the other employee for damages for the non-economic loss to which the election relates; and
(b)	compensation is not payable after the date of the election under section 24, 25 or 27 in respect of the injury.

(3) An election is irrevocable.
...".

The respondent's contention would have us read the word

"payable" in s.45(1)(a) broadly, so as to leave out of
account compliance with procedural requirements. It is
argued that it would be odd and pointless to insist upon
compliance with those requirements being met before taking
the course of abandoning the claim for compensation
altogether and suing for damages instead. If the
appellant's contention is accepted, on the other hand, then
the meaning to be given to "payable" is "immediately
payable", so that the mere existence of circumstances which
would, if the appropriate steps were taken, create a right
to receive compensation is not enough. That may be referred
to as the stricter meaning of the word. Mr. Hanson Q.C.,
senior counsel for the appellant, argued that "payable"
where used in the Act covers not only instances in which a
payment is due under a determination, but also those in
which the Act creates an immediate and quantified liability.

It is necessary to mention a number of sections in

which the word "payable" and similar expressions are used to
deal with the appellant's suggestion that there is
consistent pattern of usage in the Act, which shows that the
stricter meaning of "payable" must have been intended in

s.45(1).

Part II of the Act sets out the circumstances giving

rise to liability to pay compensation and the sorts of
compensation which are payable. Section 14(1) says that:

"Subject to this Part, the Commission is liable to pay compensation in accordance with this Act in respect of an injury

suffered by an employee if the injury
results in death, incapacity for work, or
impairment".

Here, the word "liable" is used in the broader sense which the respondent would have us attribute to the word "payable" in s.45. But for no apparent reason "payable" rather than "liable" is used in sub-ss.(2) and (3) of the same section.

Sub-section (2) says "Compensation is not payable in

respect of an injury that is intentionally self-inflicted"
and sub-s.(3) says compensation is not payable in respect of
certain other injuries. It appears to us that variations in
usage of this kind tend against the appellant's contention
that the word "payable" was chosen for use in s.45 because
elsewhere in the Act it has the sense of "immediately
payable, all conditions procedural and otherwise having been

fulfilled".

Similar comments apply to s.15. There, one sees that

the Commission is made "liable to pay compensation" for

property loss or damage. Sub-section (3) says:

"Compensation is not payable under this
section if the loss or damage is
attributable to the serious and wilful

misconduct of the employee".

Sometimes one finds the word "liable" used where the

broader sense is intended, as in s.14(1), but in other
contexts "liable" and "liability" refer to a crystallised
obligation: see for example s.17(3) and s.30(1)(a). One
cannot discern any absolute consistency in the draftsman's
choice of "liable" rather than "payable". It appears
unlikely that there is any particular significance in the
fact that s.45(1)(a) says "compensation is payable" rather
than "there is a liability to pay compensation" or some such
expression.

It is necessary now to consider the provisions which

are mentioned in s.45(1) as being those under which

compensation has to be payable if the section is to operate.

Section 24(1) says that:

"Where an injury to an employee results
in a permanent impairment, the Commission
is liable to pay compensation to the
employee in respect of the injury".

Subsequent provisions deal with the way in which the Commission's function in determining the employee's entitlement is to be exercised. It is helpful to the respondent that s.24(1) uses the expression "liable to pay" without including any express qualification with respect to procedural requirements; that is, the expression in s.24(1) plainly means "liable, subject to compliance by the claimant with procedural requirements, to pay". To our mind, "liable to pay" when used in isolation has no less implication of crystallised liability than "payable" has.

Section 25 says, in effect, that where a

determination is made in favour of an employee under s.24
and certain other circumstances exist, an interim
determination may be made assessing the amount of
compensation payable. The reference to this section in
s.45(1)(a) assists the appellant's argument, because s.25
does not give rise to what might be called a merely
potential liability; s.25 is concerned to alleviate the
position of a claimant pending the final determination of a
claim.

Section 27, the last of the three mentioned in s.45,

has the effect that where there is permanent disablement and
"compensation is payable in respect of the injury under
s.24", the Commission is "liable to pay" additional
compensation, in accordance with a certain formula, in
respect of non-economic loss. It should be noticed that
here "payable" and "liable to pay" are apparently used as
having corresponding meanings. Further, the reference to
compensation being "payable" does not appear to import the
notion that there must already have been a determination
under s.24, in order for s.27 to operate. It may be noted
in passing that the mention of s.27, in s.45, is illogical,
for there can be no liability under s.27 unless there is

liability under s.24.

There appears, then, to be ground for thinking that

"payable" in the statute is not necessarily and always used
as meaning "immediately payable under a determination".

Sometimes it has that meaning and sometimes not.

In arriving at his decision, the judge below declined
to follow the decision of the Supreme Court of Tasmania in
Gaffney v. Australian Postal Corporation (unreported, 7
November 1991). There, the same question was determined,
but against the employee. Zeeman J. remarked:

"I do not consider that the expressions
'liable to pay' and 'is payable' are
interchangeable. Compensation is not
'payable' within the meaning of
s.45(1)(a) of the 1988 Act until such
time as the amount of that compensation
has been determined. With respect, I
would agree with what Beaumont J. said in
Australian Telecommunications Commission
v. Novak (1989) 86 A.L.R. 457, at p.462,
that 'a distinction should be recognised
between the existence of a liability to
pay compensation, which is created by
virtue of the statute itself, on the one
hand and, on the other, the function of
the Commissioner in ascertaining whether
facts exist which match the provisions of
the statute, which is a machinery
provision only. The former creates the
substantive liability; the latter is
adjectival only'. Nevertheless until the
appropriate functions under the
adjectival provisions have been performed
it cannot be said that anything is
payable. For injuries occurring after
the commencement of the 1988 Act, no
amount of compensation is payable until
the amount thereof is assessed by the

Commission".

In our respectful opinion, whether or not the

expressions "liable to pay" and "is payable" are in general
interchangeable, there is no sufficient reason to think that
the statute uses "liable to pay" as meaning liable only in
the broad sense or that it uses the word "payable" only in
the stricter sense. The decision of Beaumont J. to which
reference is made makes the distinction which is mentioned
by Zeeman J., but, it should be noted, does not deal with
the present point.

It may be thought that "where" in s.45 is a word whose

use perhaps tends to indicate a reference to circumstances
other than the particular means of enforcing liability
created by the Act. But whether or not that is so, there is
a measure of ambiguity about the word "payable" in s.45
sufficient to require one to have regard to broader
considerations, when determining the legislature's
intention. One such consideration is the requirement of

s.15AA of the Acts Interpretation Act 1901 (Cth):

"In the interpretation of a provision of
an Act, a construction that would promote
the purpose or object underlying the Act
(whether that purpose or object is
expressly stated in the Act or not) shall
be preferred to a construction that would

not promote that purpose or object".

The object of the statute is to enable Commonwealth
employees to obtain compensation for work-related injuries,
without the necessity of suing and proving negligence or
breach of statutory duty. Sections 44 and 45 were not
enacted in direct pursuit of that basic purpose, but the
construction for which the appellant contends does not
accord well with it. That construction would tend to
clutter up the system with what might be described as
spurious claims under the Act by employees who have no real
interest in the relief the Act provides for, but desire that
their claims for compensation be determined simply so that
they can be abandoned in favour of a right to sue. That may
involve considerable delay, for the process of determination
of a compensation can be lengthy indeed.

Apart from that, it has to be said, in our opinion,

that the result arrived at if the appellant's construction
is accepted borders upon absurdity; it is at least highly
unreasonable. These days there may be a greater tendency
than was once apparent to apply reasoning of the kind
exemplified by that of Lord Keith of Kinkel in Debenhams

P.L.C. v. Westminster City Council [1987] 1 A.C. 396 at 403:

"In resolving a statutory ambiguity, that
meaning which produces an unreasonable
result is to be rejected in favour of
that which does not, it being presumed
that Parliament did not intend to produce

such a result".

Then, there are presumptions which one must apply in

interpreting statutes which assist the respondent.
Particularly clear language is ordinarily required to
deprive a citizen of access to the courts. That has been
described as a "principle not by any means to be whittled
down": Pyx Granite Co. Ltd. v. Minister of Housing and
Local Government [1960] A.C. 260 at 286. Here, no absolute
deprivation is prescribed, but the legislature, so the
appellant would have us hold, intended to take away the
right of action unless the would-be litigant first pursues a
claim for compensation under the Act and then takes
advantage of what may be a very short opportunity to sue.
In general, compensation must be paid under ss.24 and 25
within thirty days after the assessment of the amount -
s.26(1) - and there is nothing to prevent payment being made
immediately upon that assessment. As was pointed out by the
primary judge, the limitation period applying to a
plaintiff's suit may expire before a determination is made.

A broader presumption operating in favour of the

respondent is that against interference with common law
rights: Balog v. Independent Commission against Corruption
(1990) 169 C.L.R. 625. But the essential strength of the
respondent's argument is that the word "payable" is no less
capable of being used with reference to liability in a broad
sense than the expression "liable to pay", which is used a
number of times in that sense in the Act. Unless one is
prepared to hold that the use of the two expressions in the
statute is sharply differentiated, the proper conclusion is
that "payable" is sometimes intended to refer to liability

in the broad sense and sometimes not, depending on context.

In our opinion, the principal argument advanced on

behalf of the appellant must be rejected. It remains to
deal with a subsidiary, but still weighty, contention which
is that the statute clearly has the effect that compensation
is "not payable to a person under this Act unless a claim
for compensation is made ..."; s.54(1) says so. To uphold
the judgment below, one must treat the expression "not
payable" in s.54(1) as having a different meaning from
"payable" in s.45.

One point requiring notice, in our opinion, is that in

a provision such as s.54(1), negating liability, it makes
little sense to inquire whether "payable" has the broader
or narrower sense to which we refer; the result is the same
whichever sense is used. Consistently with what has been
held above, it is our opinion that one should adhere to the
view that "payable" in s.45(1) refers to liability subject
to compliance with the procedural requirements, including
making a claim. There would be no more sense in a reading
which necessitates that a claim for compensation under the
Act be made by anyone who wants to sue than in a requirement

that the claim be pursued and determined.

It may be thought that rejection of the appellant's
contention somewhat strains the language of s.45(1). If
that be so, then the process of so treating that language is
justified by the avoidance of a result which no sensible
legislature could have intended. The language is not so

intractable as to require the adoption of such a course.

We are fortified in our conclusion by the additional

considerations raised by McPherson J.A. which, as his Honour

says, support the view which we have expressed.

In our opinion, the decision of the District Court was

correct; the appeal must be dismissed, with costs.
THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 192 of 1992

Brisbane

Before The President
Mr Justice Pincus
Mr Justice McPherson

[Janssen v. Commonwealth of Australia]

BETWEEN

CAROLINE ANN JANSSEN

(Plaintiff) Respondent

- and -

COMMONWEALTH OF AUSTRALIA

(Defendant) Appellant

REASONS FOR JUDGMENT - McPHERSON J.A.

Delivered the Fifteenth day of March 1993

I agree with the joint reasons of the President and Pincus J.A. for deciding that the appeal should be dismissed. There are some further matters capable of supporting that conclusion which I think can be usefully and briefly stated.

The pivotal provision of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 is s.14(1). It makes the Commonwealth "liable to pay" compensation in accordance with the Act in respect of an injury suffered by an employee if it results in death, incapacity for work, or impairment. The expression "liable to pay" in the comparable context of s.5(1) of the Workers Compensation Act 1958 (Vict.) was said by Windeyer J. in Ogden Industries Pty. Ltd. v. Lucas (1967) 116 C.L.R. 537, 584, to refer to "a situation in which a duty or obligation can arise as the result of the occurrence of some act or event".

I consider that also to be its meaning in s.14(1). His Honour, in the passage of the judgment from which the extract is taken, was concerned to contrast the meaning of "liability to pay" in s.5(1) of the Victorian legislation with other meanings of the term "liability" which imply or assume the presence of an existing legal obligation or duty.

The latter is the meaning which, according to the appellant in this case, ought to be ascribed to the critical words "compensation is payable" in s.45(1)(a). Those words, it is said, assume that everything has happened, by way of determination or otherwise, to impose on the Commonwealth a present obligation to pay an amount of compensation to the employee. However, as is pointed out in the joint reasons, the expressions "liable to pay" compensation, and compensation "payable" or "not payable" are not used with any degree of logical consistency in various provisions of the Act. The impression that the use of one form rather than the other is due to chance rather than design is strengthened by referring to the legislation repealed by the Act of 1988 now being considered.

The legislation repealed was in its original form the Compensation (Commonwealth Employees) Act 1971. The 1988 Act derives a number of its provisions directly from the earlier Act. In the case of what I have called the pivotal s.14, the drafting model was s.27 of the 1971 Act. As with the current s.14(1), s.27(1) made the Commonwealth "liable to pay" compensation in respect of an injury caused to an employee. Like s.14(2), the repealed s.27(2) of the 1971 Act dealt with an injury that was intentionally self- inflicted; but, whereas s.14(2) now provides that "compensation is not payable" in respect of such an injury, s.27(2) of the 1971 Act chose to say that the Commonwealth "is not liable ... to pay compensation" in respect of that injury. No rational basis is discernible for this difference between the two provisions.

It is possible without difficulty to identify other instances that illustrate the same general point; for example, in the case of compensation for injuries resulting in death, which was formerly the subject of s.43 of the 1971 Act, and is now to be found in s.17 of the 1988 Act. In this instance, both the old s.43(2) and the new s.17(2) provide that "compensation is not payable" in respect of injury to an employee who dies without leaving dependants.

Oddly, however, when in sub-s.(3) of each section the amount of compensation comes to be specified, it is the 1988 Act in s.17(3) that uses the expression "liable to pay", in contrast to s.43(3)(a) of the 1971 Act, which speaks instead of the "compensation payable".

When these and other examples are considered, it becomes more than ever apparent that, even with the 1971 Act before him or her as a model, the person drafting the 1988 Act did not intend to discriminate in the use of "liable to pay" and "payable" according to any nice appreciation of the difference in meaning between the two expressions like that which is now sought to be ascribed to them. For the sake of completeness it may be appropriate to add that in both statutes (the 1971 Act and the 1988 Act), the provisions requiring notice of injury and written claims for compensation appear as ss.53 and 54. There are admittedly differences of detail rather than of substance between these two sets of provisions. However, for present purposes it is enough to notice that in both of them s.54 provides that "compensation is not payable under this Act" unless a written claim is made.

When these matters are considered along with those discussed in the reasons of the President and Pincus J.A., I do not think it possible to ascribe to the expression ("where ... compensation is payable under section 24, 25 or 27 ...") in s.45(1)(a) the particular meaning urged by the appellant in this case, which is that, in order for it to be payable, the compensation must first have been determined in accordance with the relevant provisions of the Act; and that this must have taken place before an employee becomes entitled under that section (s.45) to elect to institute an action against the Commonwealth for damages.

The appeal should be dismissed with costs.