Re Kwan; ex parte Hastings Deering (Solomon Islands) Ltd
[1987] FCA 275
•04 JUNE 1987
Re: JANICE BEVERLY NEAL
And: COMMISSIONER FOR SUPERANNUATION
No. ACT G51 of 1986
Superannuation
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fox J.
Neaves J.
Beaumont J.
CATCHWORDS
Superannuation - Benefit classification certificate - Delay in considering medical reports - Death of employee prior to issue of certificate - Whether if certificate to issue it must issue within a reasonable time after medical reports received - Whether temporal limitations to be implied into statutory provisions because provisions said to operate unfairly in absence of limitation.
Administrative Appeals Tribunal Act 1975 (Cth), s.44
Superannuation Act 1976 (Cth), ss.16, 81
HEARING
SYDNEY
#DATE 4:6:1987
Counsel for Applicant: Mr. T. Higgins Q.C. with Ms. J. Rees
Solicitor for the Applicant: Pamela Coward & Associates
Counsel for Respondent: Mrs. P. Flemming Q.C. with Mrs. J. Bonsey
Solicitor for the Respondent: Australian Government Solicitor
ORDER
The application be dismissed.
The applicant pay the respondent's costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This application by way of appeal from a decision of the Administrative Appeals Tribunal raises the question whether the Commissioner for Superannuation ("the Commissioner") was authorised by s.16(10) of the Superannuation Act 1976 (Cth) ("the Act") to issue on 30 May 1984 a benefit classification certificate in respect of the late Robert Claude Neal.
The circumstances in which the question arises are as follows. On 3 November 1981 Mr Neal, who was born on 17 June 1947, joined the Australian Public Service as a driver with the Department of the Capital Territory and thus became an "eligible employee" within the meaning of that expression in s.3(1) of the Act. For the purposes of the Act, he was required by a delegate of the Commissioner to submit himself for medical examination by a Commonwealth Medical Officer. On 7 December 1981 he was examined by Dr J.J. McCarthy, an approved medical practitioner within the meaning of that expression in s.16(2) of the Act. Dr McCarthy reported to the Commissioner that, in his opinion, Mr Neal was fit for appointment to the Australian Public Service but did not meet the general medical standard due to the condition "migraine". On 11 December 1981, Dr H.S. Turner, Senior Medical Officer, reported to the Commissioner that she concurred in that opinion. The general medical standard referred to forms part of the Handbook for Commonwealth Medical Officers. It is designed to assist in the classification of new contributors to the Superannuation Fund established by the Act and serves as a guide in assessing in a particular case whether to recommend the issue of a benefit classification certificate.
Upon his appointment to the Australian Public Service, Mr Neal became a contributor to the Superannuation Fund. He remained an "eligible person" and, as such, a contributor to the Fund until his death on 16 December 1983 from a myocardial infarction, a condition in no way related to the condition "migraine".
It appears that no consideration was given by the Commissioner or any of his delegates to the medical reports made by Dr McCarthy and Dr Turner until 21 December 1983. The delay in considering the reports was said to be due to substantial arrears of work in the Commissioner's office. A delegate of the Commissioner on that date decided under s.16(4) to issue a benefit classification certificate in respect of Mr Neal specifying the condition "migraine". However, before the certificate in fact issued, advice of Mr Neal's death was received and it is common ground that the power to issue a certificate under s.16(4) did not survive Mr Neal's death on 16 December 1983.
On 30 May 1984, a delegate of the Commissioner purported to act pursuant to s.16(10) of the Act. The delegate, not being satisfied that Mr Neal's death was not caused, and was not substantially contributed to, by a physical or mental condition that existed at the time he became an eligible employee, or by a physical or mental condition connected with such a condition, issued in respect of him a benefit classification certificate specifying the conditions "migraine" and "history of anterior myocardial infarction". Those were conditions which, in the opinion of the delegate, existed at the time Mr Neal became an eligible employee. That certificate, if validly issued, was deemed, by s.16(10), to have been in force in respect of Mr Neal immediately before his death. The delegate was also of opinion that Mr Neal's death was caused, or was substantially contributed to, by the condition "history of anterior myodardial infarction" specified in the certificate or by a physical condition connected with that condition (see s.81(2)(c) of the Act).
The issue on 30 May 1984 of the benefit classification certificate and the opinion formed by the delegate under s.81(2)(c) of the Act affected the benefits which would have been payable under the Act to the applicant as Mr Neal's surviving spouse if such certificate had not been issued or if that opinion had not been formed.
Where an eligible employee who dies before attaining his maximum retiring age is survived by a spouse, there was in force in respect of the eligible employee, immediately before his death, a benefit classification certificate and the Commissioner is of the opinion that the eligible employee's death was caused, or was substantially contributed to, by a physical or mental condition or conditions specified in the certificate or by a physical or mental condition or conditions connected with such a condition or conditions, the spouse is entitled to benefits under the Act as prescribed by s.81(2). The amount of benefit payable varies according to the period of contributory service of the eligible employee.
Where the period of such service is not less than 8 years, the spouse may be entitled to make an election under s.86 or under s.87 of the Act. If the spouse does not make an election under either of those sections, the spouse is entitled to spouse's pension at an annual rate of 67 per centum of the annual rate of invalidity pension to which the deceased eligible employee would have been entitled under s.70 if he had not died, but had, on the day immediately following the date of his death, become entitled to invalidity pension in accordance with that section. The annual rate of invalidity pension to which the eligible employee would have been so entitled would have been a percentage of his final annual rate of salary, the percentage varying according to his period of prospective service and his number of complete years of contributing service. In the case of an employee with prospective service of not less than thirty years, the percentage would vary from 28 per centum in the case of an employee with eight complete years of contributory service rising on a graduated scale to 66.5 per centum where the number of complete years of contributory service totals 19. If the spouse makes an election under s.86, the spouse is entitled to a reduced rate of pension and, in addition, a lump sum benefit equal to the accumulated contributions of the deceased eligible employee. In each of the cases mentioned above, adjustments are made to the rate of benefit if there are eligible children of the eligible employee or if the deceased eligible employee had paid supplementary contributions to the Fund. If the spouse is entitled to make, and makes, an election under s.87, a lump sum benefit only is payable.
Where the period of contributory service of the eligible employee is less than eight years, as was the case with Mr Neal, the spouse is entitled to a lump sum benefit equal to the lump sum benefit to which the deceased eligible employee would have been entitled under s.73(2) if he had not died, but had, on the day immediately following the date of his death, become entitled to invalidity benefit. In such circumstances, the invalidity benefit payable to the eligible employee would have been an amount equal to -
(a) three and one-half times the employee's accumulated basic contributions; or
(b) one-half of the amount that is the amount per annum of the employee's final annual rate of salary,
whichever would be the greater. An additional lump sum is payable if the eligible employee had paid supplementary contributions to the Fund.
At this point reference should be made in greater detail to the provisions of s.16 of the Act. By virtue of s.16(2) the Commissioner may, for the purposes of s.16, require a person (with certain exceptions immaterial for present purposes) who proposes to become or becomes an eligible employee to undergo such medical examination or examinations by an approved medical practitioner or practitioners as the Commissioner determines. A report of the result of any medical examination is to be furnished to the Commissioner (s.16(3)). Section 16(4) provides:
"(4) The Commissioner shall consider the report or reports, and such other matters (if any) as the Commissioner considers relevant, and, if he is of the opinion that the person is not likely, by reason of or for a reason connected with a physical or mental condition or conditions referred to in the report or reports, to continue to be an eligible employee until the person attains his maximum retiring age, the Commissioner shall issue a benefit classification certificate to that effect, being a certificate in which the relevant condition or conditions is or are specified."
Section 16(5) provides:
"(5) In the application of this Act to an eligible employee at any time, a reference in this Act to a benefit classification certificate that is in force in respect of an eligible employee shall, in the case of an eligible employee whose period of contributory service would, if he ceased to be an eligible employee at that time, be not less than 20 years or an eligible employee who has attained his maximum retiring age, be read as not including a reference to a benefit classification certificate that has been issued in respect of him."
An eligible employee in respect of whom a benefit classification certificate is in force may request the Commissioner to revoke or vary the certificate and, if he does so, he may be required to undergo such further medical examinations (if any) as the Commissioner requires (s.16(6)). Reports of the results of such examinations are to be furnished to the Commissioner (s.16(7)). Section 16(8) sets out the circumstances in which the benefit classification certificate is to be revoked or varied. Section 16(10) provides:
"(10) Where -
(a) a person who is an eligible employee dies or ceases to be an eligible employee by reason of retirement on the ground of invalidity -
(i) before he has undergone a medical examination or examinations as required under sub-section (2);
(ii) if he has undergone such an examination or examinations - before the report or reports of the result or results of the examination or examinations has or have been considered by the Commissioner;
(iii) if the report or reports has or have been considered by the Commissioner - before the Commissioner has reached a decision as to whether he should issue a benefit classification certificate in respect of the person under sub-section (4); or
(iv) if the Commissioner has decided to issue a benefit classification certificate in respect of the person under sub-section (4) - before the certificate has been issued; and
(b) the Commissioner is not satisfied that his death or the incapacity which was the ground for his retirement, was not caused, and was not substantially contributed to, by a physical or mental condition or conditions of the person that existed at the time the person became an eligible employee, or by a physical or mental condition or conditions connected with such a condition or such conditions,
the Commissioner shall issue in respect of the person a benefit classification certificate in which there is or are specified the physical or mental condition or conditions of the person which, in the opinion of the Commissioner, existed at the time the person became an eligible employee and, for the purposes of this Act, the certificate shall be deemed to have been in force in respect of the person immediately before his death or retirement."
Section 16(11) provides for the case where the eligible employee, at or in connexion with a medical examination which he was required to undergo, failed to furnish any information which he was required to furnish or furnished false information. If the Commissioner is satisfied that the prescribed circumstances exist, he is obliged to issue a benefit classification certificate notwithstanding that the person has ceased to be an eligible employee by reason of death or retirement on the ground of invalidity. It is, however, unnecessary to set out the provision in full.
Section 154(4) of the Act should also be noticed. It provides that, upon the receipt by the Commissioner of a request by a person affected by a reviewable decision to reconsider that decision, the Commissioner is to reconsider the decision and "may confirm or revoke the decision or vary the decision in such manner as he thinks fit". The expression "reviewable decision" clearly includes a decision to issue a benefit classification certificate.
The applicant, having unsuccessfully sought a review under s.154(4), sought a review by the Administrative Appeals Tribunal of the decision to issue the benefit classification certificate.
It was argued before the Tribunal that the scheme of the Act requires a benefit classification certificate to be issued, if at all, within a reasonable time after the Commissioner has received the medical reports which he is, by s.16(4), required to consider. The Tribunal rejected that argument, concluding that a condition as to reasonable time should not be implied. In the joint reasons for their decision, two members of the Tribunal, Davies J. and Dr D.B. Travers, said:
"Parliament has specified a procedure to be followed but has not specified any time within which the steps should be taken. 'Reasonable time' is an amorphous concept and scarcely a workable test in relation to routine decision making. In the Act, there is no guide as to time against which to judge reasonableness. We do not think Parliament intended that a court or tribunal should specify a period of 3 months, 6 months, 1 year, 2 years or 3 years as a reasonable period for the ordinary case which involves no difficulty. Yet, that is what would have to be done if Mr Crowe's submissions were to be accepted.
The functions which s.16(4) repose upon the Commissioner are mandatory. They are not discretionary. The Commissioner is under a statutory duty to consider the medical reports. In our opinion, it ought not to be implied that Parliament intended that the medical reports be considered within a reasonable time or not at all. Section 16(4) not only confers power upon the Commissioner to consider the medical reports and, in an appropriate case, to issue a benefit classification certificate, it imposes a duty upon him to do so. No time limit for carrying out that duty is specified and, in our opinion, none ought to be implied."
The other member of the Tribunal, Mr E. Smith, agreed with that view.
Davies J. and Dr Travers, however, construed s.16(10) of the Act as having no operation in a case where the Commissioner has failed to perform a duty which s.16(4) imposes upon him, whether that failure results from a deliberate decision not to perform it or because the performance of the duty was overlooked due to loss or misplacement of documents or simply from inattention to the performance of the duty. The sub-section was held to apply only where the Commissioner has not had time to consider the medical report or reports or has not had time, after such consideration, to issue a benefit classification certificate. The joint reasons for decision proceed:
"If Parliament had simply intended that the s.16(10) power should be exercised whenever the Commissioner had not previously made a decision as to the issue of a benefit classification certificate or, having made a decision to issue a certificate had not done so, Parliament would have said so."
The Tribunal, however, accepted that the delay on the part of the Commissioner in considering the medical report relating to Mr Neal was due to the limitation in the staff resources available to him and not to any deliberate policy not to carry out his function. The Tribunal, therefore, concluded that, while the Commissioner was slow in fulfilling the duty which s.16(4) imposed on him, he had not abandoned or otherwise neglected to fulfil that duty. In the result, the decision under review was affirmed. It is against that decision that the applicant has appealed to this Court.
On the hearing of the appeal neither party supported the construction placed upon s.16(10) by the Tribunal. Counsel for the applicant submitted that certain temporal limitations should be read into ss.16(2) and 16(4). Thus s.16(2) was to be construed so that the Commissioner might only make the initial requirement that the person undergo a medical examination as soon as practicable, or alternatively within a reasonable time, after the person becomes an eligible employee, the argument presumably allowing a similar time scale for requiring any subsequent medical examinations considered necessary. Similarly, s.16(4) was to be read so that the Commissioner may only issue a benefit classification certificate if the reports and other material referred to in the sub-section are considered and a decision made thereon as soon as practicable, or alternatively within a reasonable time, after the receipt thereof. Having so construed ss.16(2) and 16(4), the submission espoused a construction of s.16(10) which would limit its operation to those cases in which the death of the eligible employee, or his retirement on the ground of invalidity, occurs prior to the expiration of the temporal limits which, if the argument were accepted, would be implied into ss.16(2) and 16(4). Counsel for the respondent, on the other hand, submitted that the language of the sub-sections was clear and unambiguous, that so construed the provisions gave effect to the intention of the legislature, and that there was no warrant for implying any words of limitation.
The limitations which the applicant sought to place upon the operation of ss.16(2), (4) and (10) were said to arise, not because the provisions were not capable of operating according to their tenor, but because it was perceived that, unless limited in some such manner as that suggested, the provisions would operate to treat some eligible employees differently from others and in a way that was said to be unfair to them. Delay on the part of the Commissioner in determining under s.16(4) whether to issue a benefit classification certificate was said to work unfairness in two related ways. First, it was said to be unfair because the eligible employee would not be made aware of the possibility that the benefits payable under the Act might be affected in the event of his death or early retirement. Secondly, the right of the eligible employee to seek under s.16(6) the revocation or variation of the benefit classification certificate could not, of necessity, be exercised until a decision was taken to issue such a certificate and the certificate was, in fact, issued. Similarly, it was said to be unfair, in the sense of promoting uncertainty, if the power in s.16(10) to issue a benefit classification certificate were not strictly confined as a power ancillary to, and in aid of, that conferred by s.16(4) and available only where the exercise of that power was frustrated by the death of the eligible employee or his early retirement on the ground of invalidity. The comment, however, must be made that, even if it be thought that the statutory provisions operate in some circumstances in a harsh or drastic or unfair way, that of itself provides no justification for the Court importing words into the statute in an endeavour to ameloriate that situation.
A reading of ss.16(4) and 16(10) discloses that the powers which they respectively confer do not overlap. Section 16(10) is expressed in such terms that it can have no operation until the person has ceased to be an eligible employee by reason of death or retirement on the ground of invalidity. On the other hand, s.16(4) can only operate prior to either of those events occurring. It is also of some importance that s.16(10) poses a different question for the Commissioner than that posed by s.16(4). Section 16(4) focuses attention on the physical or mental condition referred to in a medical report furnished to the Commissioner pursuant to s.16(3). It is only in respect of such a condition that a benefit classification certificate may issue under that sub-section. Under s.16(10), however, the question for the Commissioner is whether the person was suffering from a mental or physical condition at the time he became an eligible employee, it being immaterial whether that condition was specified in a medical report furnished to him.
In considering the argument presented to the Court on behalf of the applicant it is essential to bear well in mind that ss.16(4) and 16(10) do not simply confer powers on the Commissioner - they each impose a statutory duty upon him to issue a benefit classification certificate whenever the prescribed circumstances exist. The language in which the provisions are cast leaves no room for doubt that that was the legislature's intention. Yet, the essence of the applicant's argument is that the duty which each sub-section imposes does not survive the expiration of the period ascertained by reference to the temporal limitations which the applicant submits should be read into the provisions. To recognise that as being the essence of the applicant's argument is to demonstrate the fallacy on which the argument is based. Let it be assumed that, in a particular case, the Commissioner's conduct in failing to make a decision as soon as practicable, or alternatively within a reasonable time, after the receipt of the medical report upon the eligible employee amounts to a failure to perform the duty imposed upon him. In such circumstances, the Commissioner would not be relieved, by reason of his conduct, from any further obligation to fulfil the duty. On the contrary, in an appropriate case, the law would, by the issue of a mandamus or an order in the nature of a mandamus, require that the duty be fulfilled. We can find no justification for attributing to the legislature the result which acceptance of the applicant's argument would require.
The operation of s.16(10) depends on the non-occurrence of one or other of the events for which ss.16(2), (3) and (4) provide. In terms, the sub-section is not otherwise relevantly qualified. It does not require an inquiry to be made why the circumstances upon which the operation of the sub-section depends did not occur: the provision comes into operation once the fact is established. Nor do ss.16(2), (3) and (4), in terms, impose a time limitation within which the events referred to must occur. Indeed, it would be surprising if they did having regard to the infinite variety of circumstances in which those sub-sections will operate.
The circumstances in which it is appropriate to imply words into a statutory provision have been the subject of much discussion in the cases. It is, we think, sufficient for present purposes to refer to what was said by Gibbs C.J. in Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation (1981) 147 CLR 297 at pp 304-5:
"It is an elementary and fundamental principle that the object of the court, in interpreting a statute, 'is to see what is the intention expressed by the words used': River Wear Commissioners v. Adamson (1877) 2 App Cas 743, at p 763. It is only by considering the meaning of the words used by the legislature that the court can ascertain its intention. And it is not unduly pedantic to begin with the assumption that words mean what they say: cf. Cody v. J.H. Nelson Pty. Ltd. (1947) 74 CLR 629, at p 648. Of course, no part of a statute can be considered in isolation from its context - the whole must be considered. If, when the section in question is read as part of the whole instrument, its meaning is clear and unambiguous, generally speaking 'nothing remains but to give effect to the unqualified, words': Metropolitan Gas Co. v. Federated Gas Employees' Industrial Union (1925) 35 CLR 449, at p.455.There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case: see per Lord Reid in Connaught Fur Trimmings Ltd. v. Cramas Properties Ltd. (1965) 1 WLR 892, at p 899; (1965) 2 All ER 382, at p 386. Examples of that sort of case may be found in Maxwell on the Interpretation of Statutes, 12th ed., (1969), at p.228 et seq., and Craies on Statute Law, 7th ed., (1971), at p.520 et seq. However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature. The danger that lies in departing from the ordinary meaning of unambiguous provisions is that 'it may degrade into mere judicial criticism of the propriety of the acts of the Legislature', as Lord Moulton said in Vacher & Sons Ltd. v. London Society of Compositors (1913) AC 107, at p 130; it may lead judges to put their own ideas of justice or social policy in place of the words of the statute. On the other hand, if two constructions are open, the court will obviously prefer that which will avoid what it considers to be inconvenience or injustice. Since language, read in its context, very often proves to be ambiguous, this last mentioned rule is one that not infrequently falls to be applied."
In our opinion, applying these principles, the submissions put on behalf of the applicant cannot be accepted. It may well be postulated that, as a matter of due administration, the duty imposed on the Commissioner by s.16(4) should be carried out as soon as it conveniently may be after a person becomes an eligible employee. But, to say that is to give no support to the proposition that there should be implied into the sub-section a time limit which the Parliament has not seen fit by express language to impose. The sub-section, on its face, may have an operation at any time before the eligible employee ceases to be such. That is the temporal context in which the provision operates and there is no warrant for confining its operation within narrower limits.
Support for the conclusion to which we have come is, we think, also to be gained from a consideration of the legislative purpose in enacting s.16 of the Act. It seems clear that the purpose was to provide some protection for the superannuation scheme established by the Act against claims due to the premature invalidity or death of an eligible employee who, at the time when he became an eligible employee, was suffering from a potentially disabling or fatal physical or mental condition which, in the event, results in his early retirement or death. We say some protection because the protection afforded to the scheme is not absolute. Thus, a benefit classification certificate ceases to have any effect at all after the eligible employee has completed twenty years' contributory service (s.16(5)) and has a diminishing effect in the event of death or retirement on the ground of invalidity where the period of contributory service is not less than eight years (ss.66 and 81). But the existence of the purpose of providing limited protection to the scheme militates, in our view, against the construction of the various sub-sections of s.16 put forward on behalf of the applicant.
It follows from what we have said that we do not embrace the construction of the provisions put forward by the applicant nor, indeed, that adopted by the Administrative Appeals Tribunal.
An alternative argument was put on behalf of the applicant that the Commissioner was estopped by the lapse of time from issuing the benefit classification certificate in respect of Mr Neal. That argument has no foundation and must be rejected.
In our opinion, for the reasons set out above, the application should be dismissed with costs.
JUDGE2
Section 16 of the Superannuation Act 1976 ("the Act") gave the Commissioner for Superannuation certain powers and imposed upon him certain duties. He was empowered to require an eligible employee to submit to a medical examination (s.16(2)). He was obliged to consider the report of that examination and, if of the prescribed opinion, he was obliged to issue a benefit classification certificate (s.16(4)). No time limit was specified in the Act for the performance of these functions. However, the usual implication of a reasonable time should be made as part of the ordinary process of statutory construction (see Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty. Ltd. (1983) 50 ALR 577 per Murphy J. at p 578; Koon Wing Lau v. Calwell (1949) 80 CLR 534 per Dixon J. at pp 573-4; Wade, Administrative Law, 5th ed. at p 634; Bennion Statutory Interpretation at p 416; p 785). What is the measure of a reasonable time is a question of fact to be determined in the light of all the circumstances (see Giris Pty. Ltd. v. Federal Commissioner of Taxation (1969) 119 CLR 365 per Windeyer J. at pp 383-4).
The deceased was medically examined on 7 December 1981. A migraine condition was noted. At the time of his death from heart failure two years later, on 16 December 1983, no attempt had been made by the Commissioner to turn his mind to the question whether a certificate under s.16(4) should issue. The deceased would have been justified in making the assumption that the Commissioner did not propose to issue any certificate. In the intervening period of two years, the deceased was obliged to contribute to the statutory superannuation fund but in return acquired rights akin to property rights (see Greville v. Williams (1905) 4 CLR 694 per Griffith C.J. at p 703; Pearce, Statutory Interpretation in Australia, 2nd ed. at p 87).
On 21 December 1983, the Commissioner's delegate entered upon a consideration of the medical reports furnished to the Commissioner two years earlier. The two year delay in dealing with the medical reports occurred because of lack of staff. On 21 December 1983, relying on the medical reports but in ignorance of Mr. Neal's death, the delegate decided that he should issue a benefits classifiction certificate specifying "migraine". In fact, the certificate was not issued because, in the meantime, it was found that Mr. Neal had died. On 30 May 1984, the Commissioner issued a certificate specifying, in addition to migraine, the condition "history of anterior myocardial infarction". On the same day, the Commissioner decided, pursuant to s.81 of the Act, that the heart condition specified in the certificate caused or substantially contributed to his death. It is common ground that the infarction was in no way related to his migraine.
(At the time of his medical examination in December 1981, Mr. Neal was not aware that he was, in fact, suffering from serious heart disease. It appears that in 1973, he was diagnosed as suffering from pericarditis (inflammation of the membranous sac enclosing the heart). In October 1983, Mr. Neal suffered an infarction. Apparently, he was then informed that the previous diagnosis of pericarditis was incorrect and that he had, in fact, suffered a coronary episode in 1973. A question could arise whether Mr. Neal gave the doctors full and truthful answers (see Davis "The Law of Superannuation in Australia" at p.256). This question does not arise in this appeal).
On behalf of the Commissioner it is said that despite the fact that the power to issue a certificate under s.16(4) no longer existed, nonetheless the extraordinary powers conferred by s.16(10) were available to him in the present case. His contention is that s.16(10) should be read literally. Its provisions apply, the argument runs, in any case where an employee dies or retires for invalidity after undergoing a medical examination but before the Commissioner has in fact considered the report of the results of the examination. It is said that the power to issue a certificate under s.16 is available whatever the delay, unreasonable or reasonable, in considering those results - even if as long as 19 years has elapsed.
I cannot accept the construction of s.16(10) contended for by the Commissioner. In my opinion, s.16(10) should be construed as capable of application where, by reason of the employee's death or retirement for invalidity, the process of implementing the procedures contemplated by s.16(2), (3) and (4) is interrupted but not otherwise. There was no such interruption here. On the contrary, because of the inability of the Commissioner to proceed under s.16(4) without unreasonable delay, the matter had become stale. Since this was not a case of the interruption of current processes of the kind envisaged by s.16(10), the Commissioner lacked the power to issue a certificate in May 1984. It is hardly necessary to add that the Commissioner also had no duty to do so.
It cannot be assumed that the legislature intended that in the performance of his functions under s.16, the Commissioner could put the file aside for as long as his lack of resources compelled him to do so (in this case, and in Miller's Case (1985) 63 ALR 237 at p.245, more than two years) and, upon discovery of the employee's death, seek to invoke the restrictive provisions of s.16(10). Parliament may be presumed to have intended that a coercive power such as the power to issue a benefit classification certificate would be exercised promptly if at all (see Bennion, op.cit., at p.785). It is difficult to imagine that Parliament intended that the Commissioner could make a policy decision which had the effect that the results of the medical examination would not be considered for years and, if death or retirement occurred in the meantime, the Commissioner could use the retrospective powers conferred by s.16(10). On the contrary, it may be presumed that the legislature intended that s.16(10) operate in the special, limited circumstances already mentioned, that is to say, where the procedures under s.16(2), (3) and (4) which are in the course of implementation are interrupted by the supervening event of death or retirement. Here, at the time the deceased died, these processes were not current. They had been arrested by virtue of a deliberate decision of the Commissioner not to embark at that stage upon them. To all outward appearances at least, they had been abandoned.
In my view, it should be presumed that Parliament intended that the Act be administered not only without unreasonable delay but also fairly, without discrimination and not arbitrarily (see Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation (1980) 147 CLR 297, per Mason and Wilson JJ. at pp 320-321; In re Preston (1985) 1 AC 835 at pp 852, 865, 867; Clive Lewis, Fairness, Legitimate Expectations and Estoppel (1986) MLR 251 at p 253; De Smith's Judicial Review of Administrative Action 4th ed. at p.346).
The approach to the construction of s.16 for which the applicant contends accords with the decision of the New South Wales Court of Appeal dealing with a similar problem arising under the New South Wales legislation in Athanasiou v. State Superannuation Board, unreported, 21 June 1985. See also Davis op.cit. at pp 263-4.
I would allow the appeal and order that the decision to issue the certificate be set aside.
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