Redman v Return to Work Corporation of South Australia - [2021] SASCA 25

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
REDMAN v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2021] SASCA 25
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice Livesey and the Honourable Justice Bleby)
30 April 2021

WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE - GENERALLY
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION
On 22 September 2014 the appellant worker suffered injuries to his knees in the course of his employment and was paid compensation under the Workers Rehabilitation and Compensation Act 1986 (SA). From 1 July 2015 that Act was repealed and replaced by the Return to Work Act 2014 (SA) (the Act). Pursuant to sub-clause 29(1) of the Transitional provisions in Part 10 of Schedule 9 to the Act, the appellant’s injuries were “existing injuries”, not “new injuries”, because they were attributable to trauma occurring before 1 July 2015.
The worker first underwent knee surgery during January 2017 and he was entitled to weekly income maintenance payments until 29 June 2017. His entitlement to medical and like expenses expired on 29 June 2018. Before that date, the worker was advised by his treating orthopaedic surgeon that he required surgery to his left knee. The worker sought approval for that surgery pursuant to s 33(17) of the Act. The approval was granted on 20 November 2017 and the worker underwent surgery on 7 December 2017, before the end of the worker’s medical expenses entitlement period. Following surgery, the worker was totally incapacitated from work for 13 weeks.
A question of law was referred to the Full Bench of the South Australian Employment Tribunal (the Full Bench) as to whether, on the proper construction of s 40(1) of the Act, the worker was entitled to supplementary income support payments for that period. The Full Bench answered this in the negative. The appellant appealed to this Court, arguing the Full Bench adopted an “overly restrictive and impractical reading of s 40(1)”.
Held per Livesey JA (Bleby JA agreeing), dismissing the appeal:
1. The case for the worker effectively required that this Court legislate. That is not a step that this Court can take where Parliament’s intention is clear and unambiguous. Extrinsic materials cannot be used to displace the clear meaning of a provision or to generate ambiguity where none exists.
2. Section 40(1) is intended to provide a degree of income support for workers who are incapacitated by surgery approved under s 33(21)(b) after the end of the medical expenses entitlement period. The terms of s 40(1) confine that support to the third of the three categories of workers who might benefit from supplementary income support payments following surgery.
3. It has not been shown that the decision of the Full Bench was wrong. If there is a “gap” in the legislation, the remedy is legislative amendment. This is a case where legislative review is warranted so as to ensure that the terms of s 40(1) accurately reflect Parliament’s intention.
4. The alternative contention that clause 37(3) of the Transitional provisions precluded any entitlement to any weekly payment under s 40 must be rejected. That clause is concerned only with payments under s 39 (and its equivalent under the repealed Act), and not payments under s 40 of the Act.
Held per Kourakis CJ (dissenting), allowing the appeal:
1. The Full Bench erred in its construction of s 40 for three reasons: (1) by failing to give proper effect to the text of s 40 which premises the entitlement to supplementary income support to surgery ‘approved’ by the Corporation; (2) by failing to appreciate that unless the operative text of s 40 was read as a reference to approval pursuant to s 33(17), the construction results in an absurdity; (3) by giving the provision a construction that has a capricious result that is inconsistent with the objects of the Act.
2. The choice before the Court is between two constructions of the provision and is a proper exercise of the judicial power of statutory construction. A decision between two or more constructions is not an act of judicial legislation that breaches the third limitation outlined by the House of Lords in Inco Europe Ltd v First Choice Distribution.
3. The reading in of the word ‘including’ into s 40 is a confined textual change that is supported by the textual context of the section and is consistent with the structure and objects of the Act.
Arbitration Act 1979 (UK); Arbitration Act 1996 (UK); Civil Liability Act 2002 (NSW) s 12; Compensation to Relatives Act 1897 (NSW); Return to Work Act 2014 (SA) s 3, s 40(1), s 33(21)(b), s 33(1), s 33(17), s 33(20), s 33(2), s 39(1), s 39(3), s 97; Return to Work Regulations 2015 (SA) Reg. 23; South Australian Employment Tribunal Act 2014 (SA) s 22; Supreme Court Act 1981 (UK) s 18(1)(g), referred to.
Esso Australia Pty Ltd v Australian Workers’ Union (2018) 263 CLR 551; Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586; R v Di Maria (1996) 67 SASR 466; Redman v Return to Work Corporation of South Australia [2019] SAET 127; Return to Work Corporation v Karpathakis (2018) 130 SASR 481; Return to Work Corporation v Watkins [2017] SASCFC 149; Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531; Wentworth Securities Ltd v Jones [1980] AC 74, discussed.
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Attorney-General for the State of South Australia v Bell (2013) 117 SASR 482; Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1; Burch v South Australia (1998) 71 SASR 12; Carr v Western Australia (2007) 232 CLR 138; CIC Insurance Ltd v Bankstown Football Club Limited (1997) 187 CLR 384; Commissioner of Taxation (Cth) v Ryan (2000) 201 CLR 109; Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297; Director of Public Prosecutions (Vic) v Leys (2012) 296 ALR 96; Gajic v Return to Work Corporation of South Australia [2019] SAET 7; Hall v The Queen [2020] SASCFC 84; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; Marshall v Watson (1972) 124 CLR 640; Mills v Meeking (1990) 169 CLR 214; Momcilovic v The Queen (2011) 245 CLR 1; Owen v South Australia (1996) 66 SASR 251; R v Young (1999) 46 NSWLR 681; Return to Work Corporation of South Australia v Preedy (2018) 131 SASR 86; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; Saraswati v The Queen (1991) 172 CLR 1; Schroeder v Return to Work Corporation of South Australia [2020] SASCFC 77; Thompson v His Honour Judge Byrne (1999) 196 CLR 141; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; Vickers Sons & Maxim Ltd v Evans [1910] AC 444; X v Australian Prudential Regulation Authority (2007) 226 CLR 630, considered.

REDMAN v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2021] SASCA 25
Court of Appeal - Civil: Kourakis CJ, Livesey and Bleby JJA
KOURAKIS CJ:

I gratefully adopt the summary of the factual context out of which this question of law arises appearing in the judgment of Livesey JA.
Simplifying the compensation provisions of the Return to Work Act 2014 (SA) (the RTW Act), it provides for the payment of compensation to injured workers by way of income maintenance and medical expenses. Leaving aside the minority of injured workers who fall within the restrictive definition of a seriously injured worker, workers are entitled to payments of income maintenance for a period of 104 weeks from when they are first unable to perform their work (the primary income support period). The period of 104 weeks reflects the Parliament’s assessment of the period which optimises support to recovering workers but at a cost which, in its judgment, can reasonably be afforded by employers. During that period workers are also entitled to the payment of medical expenses. An injured worker’s entitlement to medical expenses continues for a period of 52 weeks after the primary income support period expires (the medical entitlement year). Finally, a worker may be entitled to medical expenses after the expiry of the medical entitlement year if, on an application made within the medical entitlement year, the Return to Work Corporation (the Corporation) determines or accepts that it is reasonable to undertake particular treatment at a later time.
Pursuant to s 33(17) of the RTW Act, a worker may seek the ‘approval’ of the Corporation for the payment of medical expenses connected to a particular medical procedure in advance of receiving that treatment (preapproval). Section 33(17) of the RTW Act is the only provision conferring an entitlement in respect of medical services which uses the expression ‘approval’. If a worker has not engaged that process, he or she may claim his or her entitlement to the costs of medical treatment after receiving it, in the hope and expectation that either the Corporation will determine to pay those costs or, if it does not, that the South Australian Employment Tribunal (SAET) will so determine on a review.
Section 40 of the RTW Act, which is the provision which falls to be construed on this appeal, provides that a worker is entitled to supplementary income support for a period of 13 weeks if he or she is incapacitated after the end of the primary income support period as a result of surgery ‘approved’ by the Corporation. The Full Bench of the SAET (the Full Bench) held, and the Corporation contends, that, on a proper construction of s 40 of the RTW Act, supplementary income support is only available for surgery performed after the end of the medical entitlement year.
I would hold that the Full Bench erred in the construction it gave s 40 of the RTW Act for three reasons. First, it failed to give proper effect to that part of the text of s 40 which premises the entitlement to supplementary income support on ‘surgery approved by the Corporation’. Surgery can only be approved by the Corporation pursuant to s 33(17) of the RTW Act which applies throughout the primary income support period, in the medical entitlement year and in respect of any surgery performed thereafter. Secondly, the Full Bench failed to appreciate that, unless the operative text of s 40 was read as a reference to preapproval pursuant to s 33(17) of the RTW Act, the entitlement to supplementary income support accrued on a determination that it was reasonable to undertake surgery after the end of the medical entitlement year, even if it later becomes unnecessary (and therefore unreasonable) to perform the surgery. In effect, on the Full Bench’s construction a worker may be denied the medical expenses of surgery undertaken after the medical entitlement year, but still be entitled to supplementary income support whilst recovering from it. That is an absurd result. Thirdly, the Full Bench’s construction has the result, which is both inconsistent with the statutory objects of the RTW Act and capricious, that a worker must either have surgery in the medical entitlement year, without supplementary income support, or endure the pain and incapacity of an injury until the medical entitlement year has elapsed in order to receive that support. Put another way, a worker who cannot afford to be without income support will wait for up to a year beyond when the surgery should be undertaken as a matter of good medical practice.
I elaborate on my reasons below.
Statutory construction
In Inco Europe Ltd v First Choice Distribution[1] (Inco) the House of Lords considered whether s 18(1)(g) of the Supreme Court Act 1981 (UK) (Supreme Court Act) had been amended in a way which precluded any appeal against a decision of a judge staying proceedings in order to allow an arbitration of the dispute under the Arbitration Act 1996 (UK). The relevant provision read that no appeal shall lie to the Court of Appeal except as provided by Part I of the Arbitration Act 1996, as amended by a schedule of amending provisions which implemented the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration (the Model Law). Neither the Model Law nor any of the reports on its implementation suggested the removal of the then existing right of appeal against decisions made on stay applications. Part I of the Arbitration Act 1996 restricted in certain respects the right of appeal against the decisions made by judges of the High Court of the United Kingdom (the High Court) conferred by the Supreme Court Act. Part I did not, in itself, confer an entitlement to appeal or a jurisdiction to entertain an appeal. The respondent argued that s 18(1)(g) therefore failed to confer any entitlement to appeal against the stay.
[1] [2000] 1 WLR 586.
Section 18 of the Supreme Court Act imposed restrictions on the rights of appeal conferred by its earlier provisions. Before the Model Law amendments, subpara (g) provided that no appeal shall lie to the Court of Appeal, except as provided by the Arbitration Act 1979, from any decision of the High Court in an appeal under sections 1 and 2 of the Arbitration Act 1979. However, by contrast, the Arbitration Act 1996 was premised on the existence of the right of appeal in the Supreme Court Act and in Part I, as I earlier observed, imposed certain restrictions on those rights of appeal.
Lord Nicholls of Birkenhead, with whom their Lordships agreed, was left in no doubt that the draftsman had slipped up. His Lordship concluded that the whole object of the schedule was to amend subpara (g) in order that it serve the same purpose in its application to the Arbitration Act 1996 as the original subpara (g) had served in its application to the Arbitration Act 1979, but it had used inapt language to do so. He construed subpara (g) to mean ‘from any decision of the High Court under that [Part I]’. Lord Nicholls acknowledged that that construction read words into s 18(1)(g). His Lordship held, however, that the reading in of those words did not go beyond the constitutional role of the courts, which was to interpret legislation and not to engage in judicial legislation:[2]
… The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation: see per Lord Diplock in Jones v. Wrotham Park Settled Estates [1980] A.C. 74, 105-106. In the present case these three conditions are fulfilled.
Sometimes, even when these conditions are met, the court may find itself inhibited from interpreting the statutory provision in accordance with what it is satisfied was the underlying intention of Parliament. The alteration in language may be too far-reaching. In Western Bank Ltd. v. Schindler [1997] Ch. 1, 18, Scarman L.J. observed that the insertion must not be too big, or too much at variance with the language used by the legislature. Or the subject matter may call for a strict interpretation of the statutory language, as in penal legislation. …
[2] Inco Europe v First Choice Distribution [2000] 1 WCR 586 at 592.
The ‘reading in’ of words in the way which arose in Inco needs to be distinguished from the relatively simpler task of statutory construction in which the court selects from a range of grammatical meanings of a word. Typically, the choice before the Court is between a narrow or wider connotation or denotation of a word. In pronouncing on such a construction, a court might hold that a particular word, in its connotation, does or does not include certain attributes, or, in its denotation, does or does not extend to certain things or circumstances. In one sense, the effect of that construction is to read in words like ‘including’ and ‘extending to’ when giving a more expansive meaning, and words like ‘but not’ and ‘except for’ when adopting a narrower meaning. The particular problem of statutory construction with which Inco was concerned was the reading in of words which do more than select between a grammatically available connotation or denotation of the word.
I will refer to the three enumerated conditions mentioned by Lord Nicholls, and the fourth overriding consideration in the following paragraph as ‘the four Inco limitations’.
In Taylor v The Owners – Strata Plan No 11564 [3] the High Court considered the principles governing the attribution of an ungrammatical meaning to, or the reading of words into, a statutory provision which fails to give effect to the manifest intention of the legislature by reason of what appears to be a drafting infelicity.
[3] (2014) 253 CLR 531.
The statutory provision in question was s 12(2) of the Civil Liability Act 2002 (NSW) (the CL Act) which obliged a court, when making awards for personal injury or death, to disregard the amount (if any) by which ‘the claimant’s gross weekly earnings’ would, but for the injury or death, have exceeded three times average weekly earnings as at the date of the award. The operation of s 12(2) of the CL Act was simple enough in the case of injury but it had no obvious application to claims made under the Compensation to Relatives Act 1897 (NSW) brought by a representative of the deceased’s dependents (dependency claims). In dependency claims, the gross weekly earnings of the claimant, in the sense of the person bringing the action, has little obvious relevance to the calculation of the quantum of the dependency claim.
The High Court, by majority (French CJ, Crennan and Bell JJ), held that the word ‘claimant’ or alternatively the phrase ‘the claimant’s gross weekly earnings’ could not be construed to mean the deceased or the deceased’s gross weekly earnings respectively. The minority Gageler and Keane JJ held that the phrase ‘the claimant’s gross weekly earnings’ meant the gross weekly earnings on which the claimant relies.
The difference between the majority and the minority lay in the construction of s 12(1) of the CL Act which Gageler and Keane JJ described as the gateway to the construction of s 12(2) of the CL Act. Section 12(1) of the CL Act provided that the section applied to an award of damages:
(a) for past economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or
(b)for future economic loss due to the deprivation or impairment of earning capacity, or
(c) for the loss of expectation of financial support.
Subparas (a) and (b) plainly related to loss of earning capacity in the case of an injury and s 12(2) of the CL Act, as I earlier observed, had a straightforward operation in respect of awards under those heads of damages.

The majority held that the head of damage which may be claimed in a dependency action for household services provided by the deceased could also properly be described as financial support. The majority also held that the quantification of that head of damage may properly be based on the claimant’s gross weekly earnings.
On the other hand, Gageler and Keane JJ held that subpara (c) could only apply to the loss of financial support provided by the deceased, by reference to his earning capacity. On that construction of subpara (c) the word ‘claimant’ in s 12(2) of the CL Act could only refer to the earnings of the deceased if it were to have any work to do.
It follows that only on the construction of s 12(1)(c) taken by Gageler and Keane JJ did the question of the limits governing the reading in of words to give effect to a manifest legislative intention arise.
If s 12(1)(c) of the CL Act was limited to financial support of that kind, it was plain that the word ‘claimant’ or the phrase ‘the claimant’s gross weekly earnings’ must be construed to extend to the gross weekly earnings of the deceased if s 12(2) was to have any operation with respect to the head of damages for loss of expectation of financial support within the operation of subpara (c).
There was little difference between the majority and the minority on the proper limits on statutory construction when the reading in of words appears to be necessary to give effect to the legislative intention.
The majority set out the reasoning of McColl JA in the Court of Appeal of New South Wales, which relied on the preconditions for reading in of words:[4]
[4] Taylor v The Owners Strata Plan No 11564 (2014) 253 CLR 531 at [22]-[26].
[22]The first of Lord Diplock’s conditions requires the identification of the precise purpose of the provision. McColl JA said that s 12 of the Liability Act and s 125 of the MAC Act evince the same legislative purpose. Her Honour adopted Hodgson JA’s description of the latter as demonstrating: “a clear legislative intention that there be an effective limit put on claims by dependants of persons whose efforts would have produced very high financial benefits to those dependants.”
[23]The second of Lord Diplock’s conditions requires satisfaction that the drafter and the Parliament inadvertently overlooked an eventuality that must be dealt with if the provision is to achieve its purpose. McColl JA considered it plain the drafter of s 9 of the HCL Act had failed to appreciate the irrelevance of the claimant’s earnings to a damages award falling within the equivalent to s 12(1)(c) and that this omission had been carried over to s 12(2).
[24]The third of Lord Diplock’s conditions requires the court to identify the words that the legislature would have included in the provision had the deficiency been detected before its enactment. McColl JA was satisfied that had the deficiency been identified the legislature would have included the words “or deceased person’s” after the word “claimant’s” consistently with the drafting of s 125 of the MAC Act and s 151I of the WC Act.
[25]The fourth condition which McColl JA held to be necessary of fulfilment before a court is justified in reading words into a provision is taken from Dawson J’s statement of the principles (dissenting in the result) in Mills v Meeking. His Honour said that the modification “must be consistent with the wording otherwise adopted by the draftsman”.
[26]McColl JA’s construction reads s 12(2) as if it provided:
(2) In the case of any such award, the court is to disregard the amount (if any) by which the claimant’s or deceased person’s gross weekly earnings would (but for the injury or death) have exceeded an amount that is 3 times the amount of average weekly earnings at the date of the award.
(Emphasis of McColl JA.)
[Citations omitted]
After referring to the observations of Spigelman CJ in R v Young[5] that statutory construction is limited to reading down the scope of statutes, and the rejection of that constraint by the Court of Appeal of Victoria in Director of Public Prosecutions (Vic) v Leys,[6] the majority continued:[7]
[37]Consistently with this Court’s rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Leys demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect. And as their Honours observed by reference to the legislation considered in Carr v Western Australia, the question of whether a construction “reads up” a provision, giving it an extended operation, or “reads down” a provision, confining its operation, may be moot.
[38]The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills “gaps disclosed in legislation” or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”.
[39]Lord Diplock’s three conditions (as reformulated in Inco Europe Ltd v First Choice Distribution) accord with the statements of principle in Cooper Brookes and McColl JA was right to consider that satisfaction of each could be treated as a prerequisite to reading s 12(2) as if it contained additional words before her Honour required satisfaction of a fourth condition of consistency with the wording of the provision. However, it is unnecessary to decide whether Lord Diplock’s three conditions are always, or even usually, necessary and sufficient. This is because the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that “the modified construction is reasonably open having regard to the statutory scheme” because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise. Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd, the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour’s further observation, “[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances”.
[40]Lord Diplock’s speech in Wentworth Securities laid emphasis on the task as construction and not judicial legislation. In Inco Europe Lord Nicholls of Birkenhead observed that even when Lord Diplock’s conditions are met, the court may be inhibited from interpreting a provision in accordance with what it is satisfied was the underlying intention of Parliament: the alteration to the language of the provision in such a case may be “too far-reaching”. In Australian law the inhibition on the adoption of a purposive construction that departs too far from the statutory text has an added dimension because too great a departure may violate the separation of powers in the Constitution.
[Citations omitted]
[5] (1999) 46 NSWLR 681 at [15]-[16].
[6] (2012) 296 ALJR 96 at [107]-[109].
[7] Taylor v The Owners Strata Plan No 11564 (2014) 253 CLR 531 at [37]-[40].
A similar approach was adopted by Gageler and Keane JJ:[8]
[8] Taylor v The Owners Strata Plan No 11564 (2014) 253 CLR 531 at [65]-[71].
[65]Statutory construction involves attribution of legal meaning to statutory text, read in context. “Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning … But not always”. Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.
[66]Context more often reveals statutory text to be capable of a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies.
[67]The construction of s 12(2) adopted by the majority in the Court of Appeal coheres with the statutory object of subjecting an award of damages of the kind identified in para (c) of s 12(1) to the rule set out in s 12(2). But it is a very strained construction.
[68]The statutory object is equally achieved if “the claimant’s gross weekly earnings” is read as meaning the gross weekly earnings on which the claimant relies, as “claimant”, in making the claim for damages that is the subject of an award of damages. And the text of s 12(2) is less strained.
[69]The word “claimant” is naturally understood to denote a person who makes (or is entitled to make) a claim. To read “the claimant’s gross weekly earnings” as meaning the gross weekly earnings on which the person making the claim for damages relies gives the rule in s 12(2) work to do in respect of an award of damages falling within para (c) of s 12(1) in exactly the same way as it gives that rule work to do in respect of an award of damages falling within paras (a) and (b) of s 12(1). The claimant in relation to an award of damages falling within para (c) of s 12(1) may (but need not) be one of the relatives of the deceased for whose benefit the action is brought and may simply be the executor or administrator. To establish the claimed loss of expectation of financial support which is the subject of the award, such a claimant relies on the gross weekly earnings of the deceased.
[70]The construction of s 12(2) which we prefer is therefore that which we put to learned senior counsel for Mrs Taylor in the course of argument: it is to construe s 12(2)’s reference to “the claimant’s gross weekly earnings” as a reference to the gross weekly earnings on which the claimant relies in the claim for damages that is the subject of an award of damages.
[71]The alternative grammatical meaning, for which counsel for Mrs Taylor resolutely contended, involves reading “the claimant’s gross weekly earnings” as meaning the gross weekly earnings of the person who happens to be the claimant. The problem with that meaning is that the gross weekly earnings of the claimant could then never bear on the loss of expectation of financial support to be quantified in an award of damages falling within para (c) of s 12(1). While it would leave s 12(2) with work to do in respect of awards of damages falling within paras (a) and (b) of s 12(1), the meaning would deprive s 12(2) of any work to do in respect of any award of damages falling within para (c) of s 12(1). Indeed, the meaning would render para (c) of s 12(1) a statutory curiosity: a target which could never be hit.
[Citations omitted]
A capricious result
The objects of the RTW Act are found in s 3 which provides:
3—Objects of Act
(1)The object of this Act is to establish a scheme that supports workers who suffer injuries at work and that has as its primary objective to provide early intervention in respect of claims so as to ensure that action is taken to support workers—
(a)     in realising the health benefits of work; and
(b)     in recovering from injury; and
(c)     in returning to work (including, if required, after retraining); and
(d)     in being restored to the community when return to work is not possible.
(2)In connection with subsection (1), the other objectives that apply with respect to this Act are—
(a)     to ensure that workers who suffer injuries at work receive high-quality service, are treated with dignity, and are supported financially; and
(b)     to ensure that employers' costs are contained within reasonable limits so that the impact of work injuries on South Australian businesses is minimised; and
(c)     to provide a reasonable balance between the interests of workers and the interests of employers; and
(d)     to reduce the overall social and economic cost of work injuries to the State and to the community; and
(e)     to support activities that are aimed at reducing the incidence of work injuries; and
(f)     to reduce disputation when workers are injured at work by improving the quality of decision-making and by reducing adversarial contests to the greatest possible extent.
(3)A person exercising judicial, quasi judicial or administrative powers must interpret this Act in the light of its objects and these objectives without bias towards the interests of employers on the one hand, or workers on the other.
(4)The Corporation, the worker and the employer from whose employment a work injury arises must seek to achieve an injured worker's return to work (taking into account the objects and requirements of this Act).
In the generality of cases of traumatic injury, if surgery is required it is performed close to the occurrence of the injury. In the case of degenerate conditions, more time for recovery, with the assistance of less invasive treatment modalities, may be allowed. However, as a general rule, if surgery is reasonably required to treat an injury, it is more likely to be performed in the three years following first incapacity than at a later date. The statutory scheme which confers a medical entitlement period for 12 months after the primary income support period, but allows for that entitlement to be extended in limited circumstances, reflects that expectation. The construction given to s 40 of the RTW Act by the Full Bench has the effect that, after the primary income support period, a worker will not be entitled to supplementary income support whilst recovering from surgery when it is most likely to be needed. Indeed, it is accepted by the Corporation that the effect of its construction would be to cause workers to delay surgery beyond the time at which it should, on medical grounds, be undertaken.
I understood the submissions of Mr Redman to be that the construction given to s 40 by the Full Bench is irrational and capricious. Whether or not I have correctly understood Mr Redman’s submissions, I would so characterise the effect of that construction of s 40 of the RTW Act. As we have seen, the objects of the RTW Act include supporting the recovery of workers who have sustained injuries at work and, wherever possible, returning them to remunerative employment. In particular, in accordance with s 3(2)(a), it is an objective to provide workers injured at work with high-quality service. A provision which, for no apparent reason, pushes workers to delay surgery beyond the time when it is medically appropriate, or which deliberately leaves workers who undertake surgery at the appropriate time without income support whilst recovering, but which confers that entitlement if they first (unnecessarily) endure pain and disability for up to a year until the medical entitlement year has lapsed, is inconsistent with the objects of the Act. In particular, it does not advance early intervention in support of a worker’s recovery from injury and return to work.[9] It does not provide injured workers with high-quality service, nor does it treat them with dignity.[10] It does not operate to reduce the overall social and economic cost of work injuries to the State and the community.[11] I acknowledge that in accordance with the objects of the RTW Act, its provisions may moderate the benefits available to injured workers to accommodate the public interest and the interests of employers in an affordable scheme.[12] However, that objective provides no support for the construction of a provision which arbitrarily discourages timely surgery which enhances recovery, and promotes decisions which defer surgery and delay recovery.
[9] Section 3(1)(c).
[10] Section 3(2)(a).
[11] Section 3(2)(d).
[12] Section 3(2)(b).
It is an irrational and capricious result to force an injured worker into the invidious position of having to choose between alleviating pain and enhancing his or her work capacity on the one hand, or enduring financial hardship on the other. A worker who does not have the financial reserves to manage a loss of income over the weeks or months it may take to recover from surgery may have to endure pain and incapacity for a period of up to one year in order to spare himself or herself, and his or her dependents, financial hardship.
Counsel for the Corporation proffered but one possible reason for denying workers supplementary income support in the medical entitlement year, but emphasised that it was not a policy rationalisation which the Corporation itself embraced. The postulated explanation was that Parliament may have thought that workers who undertake surgery after the end of the medical entitlement year will be in greater need of financial support than those who undertake surgery in the medical entitlement year. The explanation assumes that the costs of providing supplementary income support, in both the medical entitlement year and at a later time is not reasonably affordable. If that is so, the most obvious solution is to reduce the 13 week maximum period in which supplementary income support is payable in whichever period it is provided. Be that as it may, presumably the supposed rationale is that workers undertaking surgery after the medical entitlement year will have gone longer without income support than those undertaking it in the medical entitlement year. However, the premise is a false one. Many workers will have recovered and returned to remunerated employment before the expiry of the primary income support period. More still will have done so in the medical entitlement year. Indeed, the legislative premise, in limiting primary income support to 104 weeks, can only have been that most workers, who are not seriously injured, would, or should, have returned to remunerated work by the end of that period.
It is impossible to see why a worker who undertakes surgery in the medical entitlement year has any less need for income support during his or her recovery than a worker undertaking it at a later date. After the termination of primary income support, those workers who have found paid employment are unlikely to be given paid leave to undertake their surgery. A worker who has not found remunerated employment, and his or her dependents, would already be in straitened financial circumstances. For the period of incapacity following surgery that worker would have to put his or her efforts into finding and taking up employment on hold. It follows that most workers who undertake surgery in the medical entitlement year will suffer financial hardship if denied supplementary income support. Most workers who undertake surgery at a later time will be in a similar position, either employed or still looking for work. They could be in no more need of support during their recovery than those undertaking surgery in the medical entitlement year.
From the perspective of providing that medical care which best promotes recovery and the expeditious enhancement of working capacity, workers should not be deterred from undertaking appropriate surgery at the earliest practicable opportunity. Having regard to those statutory objects of the RTW Act, it can only be described as capricious to leave workers with little practical alternative but to defer surgery, which is both necessary and reasonable, by denying income support for surgery performed as closely as practicable to when it is medically indicated. Indeed, a provision to that effect could be described as cruel, even though that description has no legal significance for the purposes of statutory construction, it being a prerogative of the legislature to so legislate.

Moreover, the construction given by the Full Bench embeds an inherent conflict of interest for the Corporation in considering whether it is reasonable to defer surgery, and requires a policy decision on a review by the SAET which balances the incommensurable considerations of scheme costs against proper treatment. Let us assume that all of the objective evidence supports a decision that surgery should immediately be performed within the medical entitlement year, in order to alleviate pain and to enhance a worker’s capacity for employment. Let it also be assumed, however, that the worker prefers to endure the pain until after the medical entitlement year so that the worker, and his or her dependents, do not suffer financial hardship. The Corporation, acting in its financial interest, will tend to the view that the surgery should immediately be performed. On a review, the SAET would, in effect, have to choose between the reasonableness of the workers desire for financial support against the Corporation’s desire to save scheme costs. Alternatively, if the policy of the legislature is, as the Full Bench found, not to provide income support when recovering from surgery which can, and should, from a medical perspective, be undertaken in the medical entitlement year, the SAET may be bound to conclude that it is not reasonable to defer the surgery and that the worker must undertake it within the medical entitlement year, leaving the worker and his or her family without supplementary income support. To put it another way, the circumstance that income support is available in the later period is, on the Full Bench’s construction, not a proper consideration in determining whether it is reasonable to defer the surgery. It follows that its construction attributes to Parliament an intention to require whatever surgery can properly be performed in the medical entitlement year to be performed in that year, so as to deny workers income support whilst they are recovering from it. A worker could only succeed in obtaining a deferral of that surgery by adopting the fraught position that, even though his or her symptoms do not yet require surgery, they may do so in the future, in the hope that a deferral will be granted, and that the surgery will later be determined to be reasonably necessary, notwithstanding the worker’s ability to tolerate the symptoms over the previous year.
As we shall see below, the text of s 40 of the RTW Act is not so intractable as to require that capricious intention to be attributed to Parliament.
Section 40 operates on an approval given pursuant to s 33(17)
Section 40 confers an entitlement to supplementary income benefits by reference to the entitlements to medical expenses conferred by s 33. It is therefore necessary to first consider the operation of s 33.
Section 33(1) of the RTW Act confers upon workers an entitlement (‘a worker is entitled’) to compensation for the necessary costs of the medical services described in s 33(2) which are reasonably incurred by the worker in consequence of having suffered a work injury. It is not a condition of the entitlement that a worker first obtain the approval of the Corporation. The entitlement is determined administratively.[13]
[13] That general proposition is qualified in respect of recovery and return to work services, approval of which is an unreviewable decision of the Corporation pursuant to ss 24 and 25 of the RTW Act, but for which, once approved, a worker has entitlement to related transport and accommodation costs pursuant to ss 33(2)(d) and (e).
If a worker incurs an expense for medical treatment, he or she may make a claim in the manner and form approved by the Corporation pursuant to s 30 of the RTW Act. That claim must be determined expeditiously by the Corporation in accordance with s 31(4) of the RTW Act, after undertaking such investigations and enquiries as are necessary to achieve an evidence based decision. The determination by the Corporation of a claim made on an entitlement given by s 33(1) is in no sense an approval. It is an administrative decision made on a claim. If the Corporation determines the claim adversely to the worker, the worker may commence proceedings for a review of the determination in the SAET in accordance with s 97 of the RTW Act. Even though s 97(g) refers to a decision on a claim for compensation for costs under s 33(2), the reference to s 33(2) of the RTW Act is plainly a slip, because the entitlement to costs is conferred by s 33(1) of the RTW Act. Section 33(2) of the RTW Act simply defines the services, an entitlement to the costs of which is conferred by s 33(1).
Section 33(17) provides that a worker may apply to the Corporation for approval to obtain certain medical services or otherwise incur costs ‘on the basis that the Corporation will agree in advance to be liable for the relevant costs rather than the worker being required to claim compensation under [s 33] once the costs have been incurred’. I observe here that, even though there is no express conferral on the Corporation, in s 33(17) of the RTW Act or elsewhere, of a power to approve a worker obtaining those services or otherwise incurring costs, the power to give that approval is necessarily implicit in that subsection. The application for approval must be made in accordance with any regulation made pursuant to s 33(18) of the RTW Act. Section 33(19) obliges the Corporation to give the same consideration to an application made under s 33(17) that would be given to a claim made on the entitlement conferred by s 33(1) of the RTW Act. The effect of s 33(19) is to impose on the Corporation the obligations to proceed expeditiously and to make evidence based decisions imposed more generally by s 31 of the RTW Act. A decision not to approve the provision of medical services pursuant to s 33(17) of the RTW Act is a reviewable decision.[14]
[14] Return to Work Act 2014 (SA) s 97(h).
Section 33(17) enacted an earlier informal procedure, which had been adopted by the Corporation, in which it voluntarily agreed to consider the preapproval of medical expenses, and to bind itself, contractually and/or equitably, to paying the costs of any medical services it preapproved. The informal procedure reduced litigation and uncertainty over the outcome of a claim for medical expenses. That informal arrangement was plainly beneficial to workers because it removed uncertainty about whether the cost of medical services would be met by WorkCover, and therefore gave them confidence to undertake reasonable medical procedures. Not surprisingly, given its voluntary adoption by the Corporation, it too benefited from the preapproval procedure. The timely provision of medical services was likely to reduce the duration of any period of incapacity, and therefore the extent of income support which the Corporation would be obliged to pay. It was also to the Corporation’s advantage to have advance notice of its potential future costs and liabilities, both in individual cases and for the scheme as a whole.
The enactment of s 33(17) of the RTW Act did more than formalise the earlier practice. By giving it a statutory foundation, it provided the Corporation a mechanism by which a decision to proceed with treatment which had not been approved might more readily be found to be unreasonable. The enactment of s 33(17) of the RTW Act is calculated to reduce unnecessary medical interventions.
Absent the statutory preapproval mechanism, if a worker chose to undertake medical treatment on the recommendation of his or her medical practitioner, the question of the reasonableness of the treatment would be determined by the SAET retrospectively and in a context in which the advice of the worker’s medical practitioner will generally be determinative of the reasonableness of undertaking the treatment. However, if a worker seeks the comfort of the statutory preapproval process he or she must disclose the nature of the treatment and the medical justification for it to the Corporation. The Corporation will then make an administrative decision on that application for preapproval on its own evaluation of the worker’s medical advice and/or on the basis of any independent medical advice it obtains. Any review by the SAET, on the application of a worker, would be conducted prospectively and the worker’s medical advice will not necessarily be determinative. If the SAET were to confirm the Corporation’s decision on a review it will generally, if not invariably, be unreasonable for the worker to undertake that treatment, with the result that a claim on the entitlement conferred by s 33(1) would properly be refused.
The Corporation contends that obtaining preapproval pursuant to s 33(17) of the RTW Act conditions the entitlement to income support provided by s 40. That implication could only be located in the phrase ‘surgery approved by the Corporation’ contained in s 40(1). The implication is strongly supported by the evident purpose of s 40 to support the recovery of workers form surgery that is necessary for their recovery. If a condition to that effect is implied, the entitlement to supplementary income support would be limited to surgery preapproved pursuant to s 33(17) of the RTW Act, the reasonableness of which had been determined prospectively on the basis of medical opinion obtained by both the worker and the Corporation.
Section 33(20) limits, subject to s 33(21), the medical entitlement year to 12 months after the worker last had an entitlement to receive weekly payments. Section 33(21)(b)(ii) provides that the limitation of the medical entitlement year does not apply in relation to surgery ‘where the Corporation has determined or accepted, on application made before the end of the [medical entitlement year] that it is reasonable and appropriate for such surgery to be undertaken at a later time due to the impact … of the work injury on the worker’s health and capacity’. It is to be observed that s 33(21)(b)(ii) does not speak of the Corporation’s approval of surgery, but only of a determination or acceptance that it is reasonable to undertake it after the medical entitlement year. Section 97(i) of the RTW Act provides that ‘a decision not to approve surgery under section 33(21)(b)(ii) or the provision of services under s 33(21)(b)(iii)’ is reviewable. The legislature has used the elliptical expression ‘approve surgery’ in s 97(i) as a shorthand reference to the decision, or acceptance, which may be made under s 33(21)(b)(ii) of the RTW Act. The ellipsis may be the result of economical drafting or because of the legislature’s mistaken understanding that the provision of surgery, rather than its deferral, is ‘approved’ pursuant to s 33(21)(b)(ii). This Court explained in Return to Work Corporation v Karpathakis[15] (Karpathakis) that subsection 33(21) does not provide for the approval of the provision of surgery or the incurring of the associated cost.[16] It authorises only a determination that it is reasonable to defer surgery. However, the ellipsis does not create any ambiguity in s 97(i) of the RTW Act because its context, the identification of reviewable decisions, leaves no doubt that it is determinations made under s 33(21)(b) which are reviewable. Accordingly, it does not follow, from the legislature’s loose use of the word ‘approval’ in s 97(i), for the purposes of allowing a review of a determination by the Corporation not to defer surgery, that the use of word ‘approval’ in other provisions of the RTW Act is a reference only to a determination to allow surgery to be deferred.
[15] (2018) 130 SASR 481.
[16] (2018) 130 SASR 481 at [53].
As I earlier observed, the Corporation contends that a determination that it is reasonable to defer surgery, whether made by the Corporation or on review by the SAET, does not operate as a preapproval of that surgery under s 33(17) of the RTW Act and does not bind the Corporation to payment of the costs of that surgery if it is later undertaken. It is not surprising that the Corporation so contends. A decision may be made that it is reasonable to defer the decision whether to undertake surgery until after the medical entitlement year precisely because, with the passage of time, it may be clear that the surgery is neither reasonable nor necessary. If the Corporation, by accepting that it is reasonable and appropriate for surgery to be deferred, were to be bound to pay the costs incurred when that surgery was later performed, the very purpose of the deferral may be defeated. On the literal construction given to s 40 of the RTW Act by the Full Bench, a worker who unreasonably undertakes surgery which the Corporation had accepted should be deferred would be entitled to supplementary income support but not the medical expenses of the surgery. For that reason, the Corporation on this appeal accepted that s 40 should not be construed literally.
Section 40 of the RTW Act provides:
40—Supplementary income support for incapacity resulting from surgery
(1)Subject to this section, an injured worker who has an incapacity for work as a result of surgery approved by the Corporation under section 33(21)(b) is entitled to weekly payments (supplementary income support payments) as provided by this section if the incapacity occurs after the end of the second designated period that applies under section 39(1)(b).
(2)Supplementary income support payments are not payable under this section in respect of any period of incapacity that occurs more than 13 weeks after the surgery concerned.
(3)Supplementary income support payments under this section are payable at the rate provided by and in accordance with section 39(1)(b) as if the period of incapacity in respect of which the payments are made occurred during the second designated period subject to any adjustments made under the regulations to take into account—
(a) changes in the CPI; and
(b) any other matter prescribed by the regulations.
The difficulties with the drafting of s 40(1) of the RTW Act are manifold.
The provision of surgery, and the incurring of associated medical costs, is never approved by the Corporation under s 33(21)(b). I repeat again, that the Corporation can only determine or accept that it is reasonable not to undertake the surgery in the medical entitlement year, but to undertake it at a later time because of the way in which undertaking the surgery, either within the medical entitlement year or at a later time, may affect the worker’s health. Parliament could not have intended that s 33(21)(b)(ii) would empower the Corporation to determine in advance the reasonableness of the surgery when the very reason for its deferral was uncertainty about its effects on the worker’s health. Properly construed, s 33(21)(b)(ii) of the RTW Act confers a discretionary power to defer the question, whether surgery should or should not be performed, to a time after the expiration of the medical entitlement year, either because it is clear that it is too early for surgery, or so that a more informed decision might later be made.
Contrary to the false premise on which s 40(1) and s 97(h) appear to proceed, this Court held in Karpathakis that s 33(21)(b) does not provide for the approval of the provision of surgery and the acceptance of the costs of that surgery.[17] It is irrelevant that Parliament may have mistakenly thought that it did so. This Court is not bound by Parliament’s understanding of s 33(21)(b) but by the construction which that subsection was given in Karpathakis. If the phrase ‘surgery approved by the Corporation’ is construed to mean approved pursuant to s 33(17), and so much is not disputed by the Corporation, s 40(1) will be legally effective to confer an entitlement to supplementary income benefits. If construed literally, s 40(1) fails to confer any entitlement to supplementary income benefits because surgery is never approved by a determination made pursuant to s 33(21)(b). By reason of the infelicity of its drafting it does not hit any target at all. I acknowledge that a loose construction of the word ‘approval’ is possible, but it leads to absurd results. It would, on the one hand confer an entitlement to supplementary income support even if it were later shown to be unreasonable to undertake the surgery. On the other hand, it would deny income support to workers who undertake surgery at a medically appropriate time within the medical entitlement year, but entitle workers to that support if they endure the pain of a medically inappropriate delay until after the medical entitlement year has elapsed. Not surprisingly, neither party to the appeal supported that construction.
[17] Return to Work Corporation v Karpathakis (2018) 130 SASR 481 at [53].
The real controversy, accepting that the word ‘approved’ is a reference to approval pursuant to s 33(17), is what meaning can then be attributed to the phrase ‘under s 33(21)(b)’? There are two available remaining constructions of s 40 of the RTW Act. They are that it confers an entitlement to supplementary income support for workers incapacitated by surgery:
1.which has been preapproved pursuant to s 33(17) but only if the Corporation has determined that it is reasonable for it to be performed after the medical entitlement period, and it is not performed until after that period ends; and
2.which has been preapproved pursuant to s 33(17) of the RTW Act and performed after the primary income support period, including surgery which the Corporation has determined can reasonably be undertaken after the medical entitlement period.
Both constructions are available. They both recognise that s 33(21)(b) of the RTW Act does not empower the Corporation to approve the performance of surgery. They both give full effect to the use of the word ‘approved’ as a reference to a preapproval under s 33(17), recognising that that subsection is the only provision of the RTW Act in which the word ‘approved’ is used in connection with the entitlement to the costs of medical treatment, and the only subsection of s 33 in which the word appears. Both constructions therefore meet the first two Inco limitations.
The dispute on this appeal is between a construction which limits supplementary income support to those workers incapacitated by reason of surgery approved under s 33(17) which surgery the Corporation had determined should be deferred pursuant to s 33(21)(b) and a construction which confers that entitlement on all workers who undergo surgery after the primary income period. In terms of the necessary implication, the difference is whether the word ‘including’ or the phrase ‘but only if the Corporation has determined that it is reasonable to defer the surgery to a later date’ should precede the words ‘under s 33(21)(b)’.
On the Corporation’s proposed construction the operative part of s 40 reads ‘as a result of surgery approved by the Corporation pursuant to s 33(17) but only if the Corporation has determined pursuant to s 33(21)(b)(i) that it is reasonable to undertake the surgery after the end of the medical entitlement year’.
Both constructions referred to in paragraph [48] involve reading in words which link the approval to a preapproval pursuant to s 33(17) of the RTW Act. Those words to not dramatically change the meaning, and reach, of s 40, and are consistent with the remainder of the text.
The strongest indication in favour of the Corporation’s construction is the textual reference to s 33(21)(b)(ii). It can be accepted that, semantically, s 40 of the RTW Act can be read to limit the entitlement to supplementary income benefit to surgery undertaken after the medical entitlement year following a decision made under that subsection that it is reasonable to defer that surgery. The difficulty is that, although grammatical on a loose use of the word ‘approval’, the construction is a legal nonsense because, as I have already laboured to emphasise, the provision of surgery can only be approved pursuant to s 33(17).

Moreover, the reference to s 33(21)(b)(ii) in s 40 of the RTW Act can be explained by an intention to make it clear that surgery approved pursuant to s 33(17) qualifies an incapacitated worker for supplementary income support even if the surgery is performed after the expiry of the medical entitlement year in accordance with a determination made pursuant to s 33(21)(b). In that way, the words ‘under s 33(21)(b)’ complement the words in parenthesis in s 33(20) of the RTW Act which makes it clear that the entitlement to preapproval conferred by s 33(17) continues after the end of the medical entitlement year if there has been a determination that the deferral of surgery to a later time is reasonable and appropriate.
The strongest textual indicator that the legislative intention was to confer the supplementary income entitlement on preapproved surgery performed both during the medical entitlement year, and later in accordance with a favourable determination under s 33(21)(b), are the concluding words of s 40(1); ‘if the incapacity occurs after the end of the second designated period that applies under s 39(1)(b)’. The medical entitlement year follows immediately after the second designated period, which is part of the primary income support period. If the legislative intention was to provide supplementary income benefits only for surgery undertaken after the medical entitlement year, the concluding words would, instead, have read ‘if the incapacity occurs after the period specified in s 33(20)’.
I would construe the relevant part of s 40 of the RTW Act to read “an injured worker who has an incapacity for work as a result of surgery approved pursuant to s 33(17), including surgery undertaken under s 33(21) is entitled to … supplementary income support payments”. The remedial construction for which Mr Redman contends also removes what would otherwise be the capricious operation of the section which I have explained above at [27]-[32]. On Mr Redman’s proposed construction, the operative part of s 40 reads ‘… an injured worker who has an incapacity for work as a result of surgery approved by the Corporation under section 33(21)(b) or s 33(17) is entitled to weekly payments … as provided by this section if the incapacity occurs after the end of the second designated period that applies under section 39(1)(b).’ This construction too accords much more closely with the objects of the RTW Act.
Choosing between two or more constructions of a statutory provision is common place and, generally, a proper exercise of the judicial power of statutory construction. In and of itself, the making of a choice is not an act of judicial legislation which breaches the third Inco limitation. Statutory construction takes on a legislative character, and exceeds the proper scope of judicial power, when there is no textual or contextual anchor and navigational aid for selecting between a number of more expansive or restrictive constructions which reflect competing rational policy considerations. After applying the judicial method of statutory construction, a court may be satisfied that one, and not the other, of two possible constructions was intended by the legislature. That is permissible, and indeed orthodox, statutory construction.
The textual anchor for the construction I would give s 40 of the RTW Act is its use of the word ‘approval’ and its internal indication that it applies to surgery after the primary income support period. The construction is consistent with the structure of the RTW Act which provides for the staged tapering off of benefits. Reading the word ‘including’ into s 40 of the RTW Act is a relatively confined textual change. Contextually, the construction propounded by Mr Redman is supported by the management of income support through the preapproval process, by the statutory object of supporting the recovery of workers and the way in which benefits are structured so as to gradually taper off. Finally, there is a rational basis for the construction in medical science, whereas there is no rational basis at all for the alternative construction which discourages the provision of surgery.
Conclusion
I would allow the appeal. I would hear the parties on the appropriate consequential orders.
LIVESEY JA:
Introduction
This is an appeal from the decision of the Full Bench on a question of law referred to it for a decision pursuant to s 22 of the South Australian Employment Tribunal Act 2014 (SA), being whether the appellant (the worker) was, on the agreed facts and pursuant to s 40(1) of the Return to Work Act 2014 (SA), entitled to “supplementary income support payments” for a period of incapacity for work following surgery for a compensable disability.
The Full Bench answered that question in the negative. The Full Bench held that the words and meaning of s 40(1) are clear and only recognised claims for “supplementary income support payments” by workers who had made an application for one of the forms of approval recognised by s 33(21)(b). In this case, the worker had only sought approval under s 33(17) and so was outside the class of claimants recognised by s 40(1).
The case for the worker effectively required that this Court legislate. That is not a step that this Court can take in circumstances where Parliament’s intention, as revealed by the words it has used, is clear and unambiguous. It was not suggested in argument that the terms or effect of s 40(1) are capricious or irrational.[18] In my opinion, it has not been shown that the answer given by the Full Bench was wrong.
[18] Drawing on the conclusory phrase used in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297, 321 (Mason and Wilson JJ).
Accordingly, I would, for the following reasons, dismiss the appeal.
The agreed facts
In broad outline, the worker suffered injuries to his knees on 22 September 2014 and he claimed and was paid compensation under the Workers Rehabilitation and Compensation Act 1986 (SA). From 1 July 2015, that Act (the repealed Act) was repealed and replaced by the Return to Work Act 2014 (SA) (the Act).
Pursuant to sub-clause 29(1) of the Transitional provisions in Part 10 of the Act, the worker’s injuries were “existing injuries”, not “new injuries”, because they were attributable to trauma occurring before the “designated day”, being 1 July 2015. However, under sub-clause 29(3), and subject to the Transitional provisions, a reference under the Act to a “work injury” includes a reference to a compensable injury under the repealed Act, and the Act applies “as if this Act had been in operation before the injury occurred”.
The worker first underwent knee surgery during January 2017.
The worker’s entitlement to compensation by way of weekly payments of income support continued until 29 June 2017. That was the end of the “second designated period” under ss 39(1) and 39(3) of the Act, as extended by clause 37 of the Transitional provisions.
By virtue of s 33(20) of the Act, the worker’s entitlement to medical and like expenses expired 12 months later, on 29 June 2018 (the medical expenses entitlement period).
Before that date, the worker was advised by his treating orthopaedic surgeon that he required surgery to his left knee. The worker determined to seek “approval” for that surgery pursuant to s 33(17) of the Act. By that provision, a worker may apply for approval to obtain a medical or like service or otherwise to incur the relevant cost, and the compensating authority may agree in advance to be liable rather than require the worker to claim compensation after the cost has been incurred.
That approval was granted to the worker on 20 November 2017 and the worker underwent surgery on 7 December 2017.
To be clear, that surgery took place before the end of the worker’s medical expenses entitlement period, but after his entitlement to compensation by way of weekly payments of income support under s 39 had come to an end.
Following surgery, the worker was totally incapacitated for work between 7 December 2017 and 8 March 2018, a period of 13 weeks.
The worker then sought weekly payments for the period of his incapacity following surgery pursuant to s 40(1) of the Act. That provision refers to weekly payments of “supplementary income support payments”. Those are payments made after a worker’s entitlement to compensation by way of weekly payments of income support has come to an end under s 39 of the Act.
The worker’s claim was rejected because no approval for the surgery had been given under s 33(21)(b) of the Act.
Sub-section 40(1) and “the conundrum”
Whether the worker has an entitlement to “supplementary income support payments” depends upon the proper meaning and effect of s 40(1) of the Act:
40—Supplementary income support for incapacity resulting from surgery
(1) Subject to this section, an injured worker who has an incapacity for work as a result of surgery approved by the Corporation under section 33(21)(b) is entitled to weekly payments (supplementary income support payments) as provided by this section if the incapacity occurs after the end of the second designated period that applies under section 39(1)(b).
Because the worker’s surgery was approved under s 33(17) rather than s 33(21)(b), s 40(1) does not in terms allow for supplementary income support payments to be paid to the worker. And, because the approval and the surgery occurred within the medical expenses entitlement period, there was no basis upon which the worker could have applied for approval under s 33(21)(b) for surgery outside the medical expenses entitlement period specified by s 33(20).
That means that the worker is without income support even though he was incapacitated by surgery which was approved by the compensating authority. This apparently unfair outcome was what the Full Bench described as “the conundrum”.[19]
[19] Redman v Return to Work Corporation of South Australia [2019] SAET 127, [12] (Dolphin PJ, Gilchrist and Calligeros DPJJ).
Whether this Court can address that outcome by an orthodox process of statutory construction of s 40(1) lies at the heart of this appeal.
The relevant provisions of the Act
The provisions relevant to the determination of this appeal are ss 3, 33(1), 33(17), 33(20), 33(21) and 40 of the Act. They are as follows:
3—Objects of Act
(1)     The object of this Act is to establish a scheme that supports workers who suffer injuries at work and that has as its primary objective to provide early intervention in respect of claims so as to ensure that action is taken to support workers—
(a)in realising the health benefits of work; and
(b)in recovering from injury; and
(c)in returning to work (including, if required, after retraining); and
(d)in being restored to the community when return to work is not possible.
(2)     In connection with subsection (1), the other objectives that apply with respect to this Act are—
(a)to ensure that workers who suffer injuries at work receive high-quality service, are treated with dignity, and are supported financially; and
(b)to ensure that employers' costs are contained within reasonable limits so that the impact of work injuries on South Australian businesses is minimised; and
(c)to provide a reasonable balance between the interests of workers and the interests of employers; and
(d)to reduce the overall social and economic cost of work injuries to the State and to the community; and
(e)to support activities that are aimed at reducing the incidence of work injuries; and
(f)to reduce disputation when workers are injured at work by improving the quality of decision-making and by reducing adversarial contests to the greatest possible extent.
(3)     A person exercising judicial, quasi-judicial or administrative powers must interpret this Act in the light of its objects and these objectives without bias towards the interests of employers on the one hand, or workers on the other.
(4)     The Corporation, the worker and the employer from whose employment a work injury arises must seek to achieve an injured worker's return to work (taking into account the objects and requirements of this Act).
…
33—Medical expenses
(1)     Subject to this section, a worker is entitled to be compensated for costs of services described in subsection (2) that are reasonably incurred by the worker in consequence of having suffered a work injury—
(a)in accordance with a scale published by the Minister under this section; or
(b)if the relevant service is not covered by a scale under this section—to the extent of a reasonable amount for the provision of the service.
…
(17) A worker is entitled, in relation to prescribed classes of services, appliances, medicines or materials referred to in subsection (2), to apply to the Corporation for approval to obtain the provision of those services or otherwise to incur costs on the basis that the Corporation will agree in advance to be         liable for the relevant costs rather than the worker being required to claim     compensation under this section once the costs have been incurred.
…
(20) Subject to subsection (21), an entitlement to compensation under this section (including an entitlement to make an application under subsection (17)) comes to an end if the worker has not had an entitlement to receive weekly payments in relation to the work injury under Division 4 for a continuous period of 12 months (or has not had an entitlement to receive weekly payments under Division 4 and a period of 12 months has expired) (insofar as costs are incurred after the end of that period).
(21) Subsection (20)—
(a) does not apply in relation to a seriously injured worker; and
(b) does not apply—
(i)in relation to any therapeutic appliance required to maintain the worker’s capacity; or
(ii)in relation to surgery, any associated medical, nursing or medical rehabilitation services (including the cost of hospitalisation), where the Corporation has determined or accepted, on application made before the end of the period referred to in subsection (20), that it is reasonable and appropriate for such surgery to be undertaken at a later time due to the impact (or likely impact) of the work injury on the worker's health and capacity (or future health and capacity); or
(iii)in relation to prescribed classes of injury, where the Corporation has determined or accepted, on application made before the end of the period referred to in subsection (20), that it is reasonable and appropriate for the services to be provided after the end of that period (and then, in such a case, the services will be compensable to the extent determined by the Corporation); or
(iv)in any other circumstances prescribed by the regulations.
…
40—Supplementary income support for incapacity resulting from surgery
(1) Subject to this section, an injured worker who has an incapacity for work as a result of surgery approved by the Corporation under section 33(21)(b) is entitled to weekly payments (supplementary income support payments) as provided by this section if the incapacity occurs after the end of the second designated period that applies under section 39(1)(b).
(2)           Supplementary income support payments are not payable under this section in respect of any period of incapacity that occurs more than 13 weeks after the surgery concerned.
(3) Supplementary income support payments under this section are payable at the rate provided by and in accordance with section 39(1)(b) as if the period of incapacity in respect of which the payments are made occurred during the second designated period subject to any adjustments made under the regulations to take into account—
(a)changes in the CPI; and
(b)any other matter prescribed by the regulations.
In addition, regulation 23 of the Return to Work Regulations 2015 (SA) is also relevant:
23—Medical expenses—period of entitlement (section 33(21) of Act)
(1)For the purposes of section 33(21)(b)(iii) of the Act, the following classes of injury are prescribed:
(a)multiple myeloma;
(b)primary leukaemia;
(c)primary non-Hodgkin's lymphoma;
(d)primary site bladder cancer;
(e)primary site brain cancer;
(f)primary site breast cancer;
(g)primary site colorectal cancer;
(h)primary site kidney cancer;
(i)primary site oesophageal cancer;
(j)primary site prostate cancer;
(k)primary site testicular cancer;
(l)primary site ureter cancer;
(m)pneumoconiosis (including silicosis) and other injuries in so far as they are caused by exposure to crystalline silica.
(2)For the purposes of section 33(21)(b)(iv) of the Act, section 33(20) of the Act will not apply if—
(a)the services relate to an injury that is subject to the application of the Act by virtue of clause 29(1)(a) of Schedule 9 of the Act (an existing injury); and
(b)the services—
(i) constitute surgery, or associated medical, nursing or medical rehabilitation services (including the cost of hospitalisation), associated with the provision, maintenance or replacement of a therapeutic appliance; and
(ii) have been approved by the Corporation.
(2a)For the purposes of section 33(21)(b)(iv) of the Act, section 33(20) of the Act will not apply if—
(a)the services relate to an injury that is subject to the application of the Act by virtue of clause 29(1)(a) of Schedule 9 of the Act (an existing injury); and
(b)the services constitute surgery, or associated medical, nursing or medical rehabilitation services (including the cost of hospitalisation), where the Corporation has determined or accepted, on application made before 1 July 2016, that it is reasonable and appropriate for such surgery to be undertaken at a later time due to the impact (or likely impact) of the existing injury on the worker's health and capacity (or future health and capacity).
(3)For the purposes of section 97 of the Act—
(a)a decision not to grant an approval under subregulation (2)(b); or
(b)a decision on an application under subregulation (2a)(b), is declared to be reviewable.
The operation of the Act
It is next appropriate to notice certain essential features of the Act in a little more detail.
The Act now confines weekly payments of compensation by way of income support to a maximum period of two years.[20] That is to say, the entitlement to weekly payments is confined to a time period of 52 weeks from the date on which incapacity to work first occurs, described as the “first designated period” and a subsequent period of 52 weeks, described as the “second designated period”, after which a worker has no entitlement to weekly payments under s 39.
[20] See ss 39(1) and 39(3).
This constraint does not apply to workers designated as “seriously injured workers” under s 21 of the Act.[21]
[21] Return to Work Act 2014 (SA), s 39(1).
By reason of s 33(20), a worker’s medical expenses entitlement period ends 12 months after the end of the second designated period. This time limitation on the medical expenses entitlement is subject to s 33(21).
By sub-clause 35(1) of the Transitional provisions, the 12-month period referred to in s 33(20) will, in the case of existing injuries, run from the designated day or commence on or after the designated day. In addition, by sub-clause 35(2), s 33(21)(b)(ii) does not apply to “existing injuries”. Accordingly, s 33(21)(b)(ii) only applies to “new injuries”, however a similar mechanism is available to workers with “existing injuries” pursuant to s 33(21)(b)(iv) and regulation 23 of the Return to Work Regulations 2015 (SA).
By s 33(21)(a), the time limitation in s 33(20) does not apply to seriously injured workers.
Relevantly, by ss 33(21)(b)(ii) and 33(21)(b)(iv) (and regulation 23(2a)), a worker can effectively extend the time limitation by an application which is “determined or accepted” by the compensating authority before the end of the time limitation in s 33(20) where it is “reasonable and appropriate for … surgery to be undertaken at a later time…”.[22]
[22] Return To Work Corporation of South Australia v Karpathakis (2018) 130 SASR 481, [55]-[56] (Nicholson J, with whom Kourakis CJ and Parker J agreed).

Finally, it was suggested at times in argument that the extrinsic material might have a role to play in determining whether there was relevant ambiguity about the proper meaning of s 40(1). Whilst I suppose there must be cases where the identification of the mischief has a role to play in exposing ambiguity, in many cases, perhaps most, ambiguity will be patent in the words actually used. Here, of course, the appellant’s dilemma is that there is no patent ambiguity. The words and meaning of s 40(1) are clear and stark. In this type of case I doubt whether one can then go back to the extrinsic material in order to found an argument that, because of the breadth of the speeches made in the Parliament the words actually used in the statute cannot mean what they say and, in that manner, attempt to generate ambiguity where none exists.
It follows that I agree with the construction given to s 40(1) by the Full Bench in this case.
Judicial construction or “legislation”?
The worker submitted that the construction of s 40(1) upheld by the Full Bench failed to recognise that there was “clearly a drafting error” because there were internal inconsistencies as the provision referred to the concept of “approval”, not “determination or acceptance”.
For the reasons earlier given, the reference to the concept of “approval” is apt to include what is referred to in s 33(21)(b) and regulation 23 as “determination or acceptance”. There is nothing in Return To Work Corporation of South Australia v Karpathakis that requires a different conclusion.[40] Whilst Nicholson J in that case held that s 33(21) was “not directed to obtaining approval for a medical service to be undertaken in the future nor is it directed to obtaining the approval for costs to be incurred in the future”, he accepted that an application may be “allowed”.[41] There is clearly a very short step between “allowing” and “approving” an application. In my view, there is no relevant difference.
[40] Return To Work Corporation of South Australia v Karpathakis (2018) 130 SASR 481, [53], [60] (Nicholson J, with whom Kourakis CJ and Parker J agreed).
[41] Return To Work Corporation of South Australia v Karpathakis (2018) 130 SASR 481, [53] (Nicholson J, with whom Kourakis CJ and Parker J agreed).
What is “allowed” or “approved” under s 33(21)(b)? In so far as is relevant to this case and in substance, a worker is, on an application made under s 33(21)(b), approved to defer the making of a claim under ss 33(1) and 33(2), or the seeking of approval under s 33(17), for the necessary cost of reasonable surgery in respect of a compensable injury outside the medical benefits entitlement period of 12 months otherwise specified by s 33(20) of the Act.
In my opinion, it cannot be said that the compendious reference to “approval” rather than to “determination or acceptance” demonstrates that there has been any drafting error. Unlike cases such as R v Di Maria, it is not possible to point to the legislative history and see that there has been an obvious slip or drafting error.[42]
[42] R v Di Maria (1996) 67 SASR 466, 472 (Doyle CJ).
In addition, the worker submits that the construction upheld by the Full Bench failed to give “appropriate weight to the obvious anomalies” created by an interpretation which confines claims for “supplementary income support payments” to workers in the third category but not in the second category (including the worker in this case). It is not necessary to address all of the asserted anomalies. At bottom, the worker points to the lack of any “logical explanation” for the absence of any income support during the medical benefits entitlement period. Though the worker emphasised the second category (into which his case fits), the same point may be made in favour of workers in the first category as well.
Contrary to the case for the worker, the Full Bench explicitly recognised and evaluated the potentially anomalous, if not also arbitrary, outcomes:[43]
… we cannot be certain that the wording of s 40(1) of the RTW Act reflects a drafting error. We agree that its wording is consistent with Parliament making a considered decision that the supplementary income support payments are only available to workers who have had approved surgery that has been the subject of a s 33(21)(b) application, which necessarily means that s 40 only applies in respect of surgery that takes place after the primary medical entitlement period has expired. This might seem arbitrary, but even on the construction urged upon us by [the worker], there would be arbitrary outcomes. Why should the supplementary income support payments only apply in the case of pre-approved surgery? Why should it not also apply to a period of incapacity following reasonably required surgery that was not the subject of pre-approval? Why should the supplementary income support payments be limited to incapacity for work following surgery? Why would they not be payable in connection other forms of treatment that result in an incapacity for work? And why only 13 weeks? We intend no criticism is saying this. We merely make the point that legislation such as this involves all sorts of policy decisions and compromises that could be regarded as resulting in arbitrary outcomes. It is a long step to say that any one of them was unintended.
[43] Redman v Return to Work Corporation of South Australia [2019] SAET 127, [32].
The respondent did not suggest that the outcome was necessarily satisfactory. It was submitted, however, that the explanation may be that the final 12 months of the medical benefits entitlement period is not long after income support compensation has been received, and at a time when a worker might still have the benefit of those payments. That may be contrasted with cases of deferred surgery under s 33(21)(b) where the incapacity for work after surgery may be many years after the receipt of weekly payments of income support. Whether that is the explanation is difficult to say, and it is not hard to see cogent policy reasons against refusing any worker in any of the three categories earlier outlined to a degree of income support following compensable surgery. However, it is not for this Court to construe the provision by reference to what the Court regards as an appropriate policy:[44]
This approach, with respect, emphasised a judicially constructed policy at the expense of the requisite consideration of the statutory text and its relatively clear purpose. In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.
[44] Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1, [28].
In Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth), the High Court intervened to correct a drafting oversight in the Income Tax Assessment Act 1936 (Cth), emphasising the need to be able to discern the legislative intention:[45]
For the reason already given in the discussion of the literal rule, departure from the ordinary grammatical sense cannot be restricted to cases of absurdity and inconsistency.
In some cases in the past these rules of construction have been applied too rigidly. The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction.
…
Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.
[45] Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297, 320 - 321 (Mason and Wilson JJ).
In this case, the Court simply cannot be confident about Parliament’s intention concerning the availability of “supplementary income support payments” to workers in each of the categories earlier mentioned, save for the third category.
In my opinion, it cannot be confidently concluded that there has been any drafting error, or indeed any failure to select words adequate to meet the evident legislative purpose. That said, even if one is prepared to assume that there has been a drafting error, or perhaps a failure to select words adequate to meet the evident legislative purpose, as distinct from a deliberate policy choice to benefit cases within s 33(21)(b) alone, that then raises what, in my view, is an important issue arising on this appeal. To what extent can this Court supply the deficiency?
It is traditional to commence with the well-known three-stage approach of Lord Diplock in Wentworth Securities v Jones.[46] Wentworth Securities has been referred to many times by the High Court.[47]Doyle CJ “borrowed” from that decision in R v Di Maria:[48]
… first of all I am satisfied that Parliament intended to punish manufacture of the relevant substances in all cases, and to enable the Executive to do no more than by regulation identify substances which would attract a higher penalty if more than a specified quantity was involved. I am satisfied that Parliament did not intend to penalise manufacture only if the Executive prescribed an amount in respect of a given drug of dependence or prohibited substance. Secondly, I am satisfied that when Parliament amended the provision it overlooked the significance of removing the words "in any case". Thirdly, it is possible to specify the words that would have been inserted if the omission had been identified. The words are to be found elsewhere in s 32, they were previously used in s 32(5)B itself. They are, "in any other case".
[46] Wentworth Securities Ltd v Jones [1980] AC 74, 105-106 (Lord Diplock)
[47] Mills v Meeking (1990) 169 CLR 214; Saraswati v The Queen (1991) 172 CLR 1; Thompson v His Honour Judge Byrne (1999) 196 CLR 141; Commissioner of Taxation (Cth) v Ryan (2000) 201 CLR 109, [82]; X v Australian Prudential Regulation Authority (2007) 226 CLR 630, [115]-[116]; Carr v Western Australia (2007) 232 CLR 138, [10]; Momcilovic v The Queen (2011) 245 CLR 1; Esso Australia Pty Ltd v Australian Workers’ Union (2018) 263 CLR 551.
[48] R v Di Maria (1996) 67 SASR 466, 472 (Doyle CJ).
As the majority explained in Taylor v Owners – Strata Plan No 11564, however, satisfaction of the three criteria in Wentworth Securities does not always permit a court to read words into a statute:[49]
Lord Diplock’s three conditions (as reformulated in Inco Europe Ltd v First Choice Distribution) accord with the statements of principle in Cooper Brookes and McColl JA was right to consider that satisfaction of each could be treated as a prerequisite to reading s 12(2) as if it contained additional words before her Honour required satisfaction of a fourth condition of consistency with the wording of the provision. However, it is unnecessary to decide whether Lord Diplock’s three conditions are always, or even usually, necessary and sufficient. This is because the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that “the modified construction is reasonably open having regard to the statutory scheme” because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise. Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd, the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour’s further observation, “[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances”.
Lord Diplock’s speech in Wentworth Securities laid emphasis on the task as construction and not judicial legislation. In Inco Europe Lord Nicholls of Birkenhead observed that even when Lord Diplock’s conditions are met, the court may be inhibited from interpreting a provision in accordance with what it is satisfied was the underlying intention of Parliament: the alteration to the language of the provision in such a case may be “too far-reaching”. In Australian law the inhibition on the adoption of a purposive construction that departs too far from the statutory text has an added dimension because too great a departure may violate the separation of powers in the Constitution.
Conclusion
The primary judge’s construction and that proposed by the active respondents on the appeal each require that the phrase “claimant’s gross weekly earnings”, in the case of an award of damages under s 12(1)(c), be read as referring to the gross weekly earnings of the deceased. On no view can the deceased be “the claimant”. To read s 12, in the case of an award under s 12(1)(c), as applying the s 12(2) limitation to the deceased’s gross weekly earnings cannot be reconciled with the language that the Parliament has enacted. The phrase “the claimant’s gross weekly earnings” is incapable of identifying the gross weekly earnings of the deceased.
(citations omitted)
[49] Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531, [39]-[41] (French CJ, Crennan and Bell JJ, Gageler and Keane JJ dissenting)
The demarcation between judicial construction and judicial legislation was recognised by Lord Diplock in Wentworth Securities, who explained that where the third condition is not satisfied:[50]
… any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts.
[50] Wentworth Securities Ltd v Jones [1980] AC 74, 105-106 (Lord Diplock).
I accept that in Taylor v Owners the High Court effectively rejected[51] the approach of Spigelman CJ in R v Young,[52] preferring the approach of the Victorian Court of Appeal in Director of Public Prosecutions (Vic) v Leys,[53] however the majority in Taylor v Owners emphasised that what was involved was a “judgment of matters of degree” about what is ultimately a question of the evident legislative object and purpose:[54]
Consistently with this Court's rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation ...
The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgement of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills “gaps disclosed in legislation” or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”.
[51] Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531, [35]-[37] (French CJ, Crennan and Bell JJ).
[52] R v Young (1999) 46 NSWLR 681, [22], [30]-[31].
[53] Director of Public Prosecutions (Vic) v Leys (2012) 296 ALR 96, [92], where the utility of the distinction between "reading up" and "reading down" was questioned and the proposition that a purposive construction may not result in an expanded operation of a provision was rejected.
[54] Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531, [37]-[38] (French CJ, Crennan and Bell JJ).
Though in dissent as to the result, the minority in Taylor v Owners were also at pains to emphasise the need to discern the legislative intention, as well as the proper limits to the process of judicial construction, “it is not repair”:[55]
Statutory construction involves attribution of legal meaning to statutory text, read in context. “Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning … But not always”. Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.
Context more often reveals statutory text to be capable of a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies.
[55] Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531, [65]-[66] (Gageler and Keane JJ).
In Momcilovic v The Queen, the need to discern the legislative purpose was again emphasised:[56]
In Wentworth Securities Ltd v Jones Lord Diplock stated certain conditions as necessary to be fulfilled before a court, construing legislation, could read words into the text. However, they were directed to correcting a defect or omission which had been overlooked by Parliament. Moreover, as Kirby J pointed out in James Hardie & Coy Pty Ltd v Seltsam Pty Ltd, his Lordship made it plain that that possibility only arises “if the application of the literal or grammatical meaning would lead to a result which would defeat the clear purpose of a statute”.
(citations omitted)
[56] Momcilovic v The Queen (2011) 245 CLR 1, [580] (Crennan and Kiefel JJ).
In this case various “solutions” were offered by the worker to meet his particular circumstances. In the course of argument, another potential solution was offered, that is, simply adding the word “including” as follows:
Subject to this section, an injured worker who has an incapacity for work as a result of surgery approved by the Corporation [including] under section 33(21)(b) is entitled to weekly payments (supplementary income support payments) as provided by this section if the incapacity occurs after the end of the second designated period that applies under section 39(1)(b).
However, whilst this proposal would, with respect, simply and elegantly meet this worker’s claim, it would not address whether in fact there was any legislative intention to benefit workers in the second category.
In addition, to effectively amend s 40(1) in this way would simply underscore the question why workers in the first category should be left out of account. In short, one cannot be confident whether Parliament’s intention extended beyond the third category in this case. Accordingly, there is, as was recognised in Esso Australia Pty Ltd v Australian Workers’ Union, the need for this Court to guard against entry into “the legislative realm”:[57]
It is not the Court’s function to attempt to overcome unintended consequences of the intended operation of a provision by construing the provision as if it had a meaning that Parliament did not intend it to have. To do so would go beyond the judicial function of construing legislation according to established precepts of statutory construction and into the legislative realm of amending the Act by reference to what it may be supposed Parliament might have provided if it had considered the specific circumstances before the Court.
[57] Esso Australia Pty Ltd v Australian Workers’ Union (2018) 263 CLR 551, [52] (Kiefel CJ, Keane, Nettle and Edelman JJ)

In these circumstances, one is left with the clear words and meaning of s 40(1) of the Act:[58]
We are considering here not what the Act ought to have said, but what it does say.
[58] Vickers Sons & Maxim Ltd v Evans [1910] AC 444, 445 (Lord Loreburn LC, with whom Lords Macnaghten, James of Hereford, and Collins agreed): “This appeal may serve to remind us of a truth which is sometimes forgotten, that this House sitting judicially does not sit for the purpose of hearing appeals against Acts of Parliament, or of providing by judicial construction what ought to be in an Act, but simply of construing what the Act says. We are considering here, not what the Act ought to have said, but what it does say; and I agree with the conclusion which has been arrived at by the Court of Appeal”.
In my opinion, and though the outcome might well be thought by some to be unsatisfactory, it has not been shown that the Full Bench was wrong. Respectfully, I agree with it. If there is believed to be a “gap”, the remedy is legislative amendment:[59]
… it is no power of the judicial function to fill gaps disclosed in legislation; ... “If a gap is disclosed, the remedy lies in an amending Act” and not in a “usurpation of the legislative function under the thin disguise of interpretation”.

[59] Marshall v Watson (1972) 124 CLR 640, 649 (Stephen J), citing Magor and St. Mellons R.D.C. v Newport Corporation (1952) AC 189, 191 (Lord Simonds).
The alternative contention
The respondent filed a notice of alternative contention dated 1 August 2019 addressing an argument that the Full Bench did not find it necessary to address.
Whilst it might be said that the rejection of the worker’s case renders it unnecessary to address the notice, it can be seen that the proper operation of the Act and the Transitional provisions is integral to the recoverability of “supplementary income support payments” under s 40(1). In these circumstances, it is appropriate to address the notice, drawing on what has already been said in these reasons.
The alternative contention is that because the worker’s surgery and incapacity from that surgery related to an “existing injury”, clause 37(3) of the Transitional provisions precluded any entitlement to any weekly payment, including under s 40 of the Act.
That argument must be rejected. It is clear from the text and context that clause 37 of the Transitional provisions is concerned only with the entitlement to weekly payments otherwise addressed under s 39 or its equivalent under the repealed Act. It is not concerned with payments made under s 40, a provision unique to the Act.
Though compensation payments under both ss 39 and 40 are in the nature of weekly payments of income support, clause 37 evinces no intention to address the latter and, because no Transitional provision otherwise explicitly addresses s 40, the general terms of clauses 29(1) and 29(3) otherwise apply and the worker can rely on the Act.
That means that where a worker is incapacitated for work following surgery in respect of an existing injury, after making an application under s 33(21)(b) (most likely under s 33(21)(b)(iv) and regulation 23(2a)) which has been accepted or approved, there is scope for a claim to be made under s 40(1) for “supplementary income support payments”. Whether that claim will succeed depends on satisfying the requirements of both s 40 as well as ss 33(1), 33(2) and, if applicable, 33(17) so that it may be concluded that the cost of surgery is otherwise compensable.
Though I readily accept that s 40 is not explicitly framed in terms that limit the entitlement to weekly payments under that provision to incapacity for work following compensable surgery, that must be implicit. Any alternative approach would be both capricious and irrational.
The requirement for “approval” under s 33(21)(b) only addresses, as has been seen, the time limitation otherwise specified by s 33(20). The content and structure of s 33 betrays no suggestion that a worker is to be relieved of the need to satisfy the requirements of ss 33(1), 33(2) and, where applicable, 33(17) merely because “approval” has been given. In terms, that approval will, where the application is made under s 33(21)(b)(ii), be based on a view formed about:
·The nature of the proposed surgery, and any associated medical, nursing or medical rehabilitation services (including the cost of hospitalisation); and
·That it is reasonable and appropriate for such surgery to be undertaken at a later time due to the impact (or likely impact) of the work injury on the worker's health and capacity (or future health and capacity).
What “the Corporation has determined or accepted, on application made before the end of the period referred to in subsection (20)”, will not then extend to whether the surgery is, or is eventually, compensable. That will only be addressed once the requirements of s 33 have eventually been addressed. Having said that, if the proposed surgery appears to have nothing at all to do with a worker’s work injury, that might nevertheless be relevant to the approval process.
As s 40(1) says nothing about the compensability of the surgery approved under s 33(21)(b), one must look to the context in which “supplementary income support payments” under s 40(1) are potentially available. There is nothing in the Act or the Transitional provisions which suggest that compensation of any form will be made available to workers who cannot demonstrate a requisite causal connection between a work injury and an incapacity for work or, between a work injury and an impairment, or between a work injury and the necessary cost of reasonable medical treatment. These connections, however expressed in the Act,[60] are integral to the scheme reflected in the terms of the Act in just the same way as they have been in each precursor to the Act, including the repealed Act.
[60] See for example ss 7 and 9(1) of the Act.
In circumstances where the availability of compensation for incapacity by way of weekly income support and for medical and like expenses are both subject to new, clear time limitations under the Act, the potential availability of “supplementary income support payments” under s 40(1) must therefore be seen as a limited amelioration of the time limitation, providing a degree of income support after those time limitations have expired, but not so as to confer that benefit even if the surgery which causes the incapacity for work is outside the scope of the Act. In context, that would be capricious because it is unfair to benefit workers incapacitated as the result of non-compensable surgery when most workers have no means of extending the time limitations imposed by s 39(3) of the Act or clause 37 of the Transitional provisions. It would also be irrational. The potential for “supplementary income support payments” under s 40(1) should rationally be confined to those cases where the incapacity for work “results from” compensable surgery.
The notice of alternative contention should be dismissed.
Conclusion
Whilst I would dismiss this appeal, this is a case where legislative review is warranted,[61] so as to ensure that the terms of s 40(1) accurately reflect Parliament’s intention.
[61] As was suggested relatively recently in Return to Work Corporation of South Australia v Preedy (2018) 131 SASR 86, [3] (Kourakis CJ) and Hall v The Queen [2020] SASCFC 84, [55] (Kelly, Livesey and Bleby JJ), concerning different legislation.
Accordingly, I would make the following orders:
1. The notice of alternative contention is dismissed.
2. The appeal is dismissed.
BLEBY JA:
I agree, for the reasons given by Livesey JA, that the appeal and the notice of alternative contention should be dismissed. I agree with the approach taken by Livesey JA to the construction of s 40(1), and that the meaning of the section is clear. To the extent that this may understandably be thought to lead to unsatisfactory outcomes for workers in the second of the categories described by his Honour, that is a matter for the legislature to address.